ProfessorBainbridge.com

UCC to Divest from Israel?

From the LA Times:

The 1.4-million-member United Church of Christ will vote this summer on whether to divest from certain U.S. firms doing business with Israel, a protest against the Jewish state's occupation of Palestinian territories, church officials said Friday.

It'd be a lousy investment decision, as I explained in a TCS column on the PC(USA)'s divestment decision. It's also immoral. I call that a lose-lose scenario.

Arnie Pulls a Pete

With his poll numbers slipping into Gray Davis territory, our immigrant governor Arnold Schwarzenegger has gone off the rails:

Schwarzenegger said in a radio interview that the federal government is failing to secure the border with Mexico, and he cast the hundreds of private citizens who have been patrolling the Arizona-Mexico border since April 1 as a popular response to government inaction. (Link)

One can but assume that Arnie's worries about winning the GOP gubernatorial primary in 2006 have prompted him to appeal to the nativist/racist wing of the state party. It's the same tactic Pete Wilson used. It's also the same tactic that killed the state GOP's ability to attract both Latino and moderate voters, helping to turn California into a reliably blue state. If this is to be his tact, he'll doom the California GOP to minority status for the foreseeable future. And we'll again deserve to be called the "stupid party."

In contrast to Schwarzenegger, President Bush has aptly referred to these nuts as "vigilantes." Let's hope he can convince Arnie that nativism and racism are bad politics and bad policy. And that's a damn bad combination.

Fun with Data Mining

James Barnes observes:

If [Hillary] Clinton ends up capturing the Democratic nomination, her success will mark the first time since Adlai Stevenson in 1956 that a Democratic front-runner who was neither an incumbent president nor an incumbent vice president has won after being identified as the leader of the pack in Gallup's first post-election poll of the cycle.

I love useless trivia like this, even though it means exactly nothing in terms of predictive value. It's just data mining.

Where's Hayek When You Need Him?

Gerard Baker on the UK Election:

MUCH INK has been spilt in an effort to explain why this election campaign has failed to engender excitement in the streets. Allow me, as a quasioutsider, to offer a provocative thesis.

I haven?t lived in Britain for more than a decade now, having spent most of my time in the US. But back in the country for the election, I?m not surprised at the palpable sense of futility. The British people are steadily being reduced to a state of cringing dependence on an ever-more voracious and aggrandising Government and a political establishment of almost unconquerable scale that supports and sustains it.

Wow: "a state of cringing dependence on an ever-more voracious and aggrandising Government." What a potent turn of phrase. Indeed, that's serving up the red meat, eh? In any event, it would be a pity if the UK decided to voluntarily start back down The Road to Serfdom from which the Thatcher Revolution once saved them.

Has Bush gone Commie?

President Bush proposes social security reforms that effectively means-test it:

Under the proposal, first developed by Robert C. Pozen, an investment executive, benefit cuts would be imposed gradually on future retirees. The cuts would fall most heavily on people at upper income levels. The cuts would be less, but still substantial, for middle-income workers. Low- income people would suffer no benefit cut at all. Politically, the plan has the advantage, in the White House's view, of being attractive to moderate Democrats by making the system more progressive. (Link)

Has Bush suddenly become a redistributionist, soak-the-rich pinko? I doubt it. Instead, I suspect there may be something else going on here. William Voegli recently reminded us of what he calls The cynical idealism behind Social Security:

Wilbur Cohen, who devoted half a century in government to designing and defending America's social insurance programs, gave his answer in a 1972 debate with Milton Friedman on Social Security: "I am convinced that, in the United States, a program that deals only with the poor will end up being a poor program. . . . Ever since the Elizabethan Poor Law of 1601, programs only for the poor have been lousy, no good, poor programs. And a program that is only for the poor- -one that has nothing in it for the middle income and the upper income- -is, in the long run, a program the American public won't support." In other words, people who don't need Social Security and Medicare are enrolled as beneficiaries for the sake of people who do. Cohen doubted that people could be persuaded to support programs to help the poor, but he was confident that they could be induced to support them.

Since Social Security long has been the third rail of US politics, maybe Bush thinks the prospects of serious changes in the program will be stronger in the long-run if political support for it is weakened. It would be consistent with suggestions that Bush's real goal in pursuing private accounts is to expand the investor class, which leans GOP. In other words, the whole thing could be just another move in a long chess match.

If I'm right, the nice thing about Bush's plan is that it forces the Dems to make a tough choice: Do they publicly disavow their adherence to soaking the rich progressivity as a solution to income inequality or do they risk weakening long term political support for their signature program?

Unfortunately, I don't think the Dems are dumb enough to fall for it. After all, while the Dems may think the people are too dumb to fend for themselves, the Dem elites are pretty bright. Or, at least, well-educated. Even Teddy Kennedy supposedly managed to pick up some learning while drinking his way through Harvard and Virginia. So they'll probably figure a way out of the trap. And if they don't, their pals in the MSM will do it for them.

A380 Flies

As the monstrous A380 returned from its maiden flight,

French President Jacques Chirac pointed to the "magnificent result of European industrial cooperation", and in Berlin, deputy economy minister Ditmar Staffelt called the flight "proof of Europe's high technical capabilities". (Link)

Well, yes, but:

Shares in the European Aeronautic Defence and Space Company, the parent of Toulouse-based aircraft maker Airbus Industrie, fell 2.35 percent to close at EUR 22.04 .... Airbus has had to hike its break-even point on the programme several times in recent months, raising investor eyebrows and sending the stock lower. The company now considers 300 A380s would need to be sold for the programme to stop losing money.

So far they've only sold half that.

Volokh on Religious Tests

Fir st Things reviews Scalia Dissents: Writings of the Supreme Court?s Wittiest, Most Outspoken Justice. Quick excerpt:

Perhaps the happiest outcome of the Court?s many miserable decisions is that they provide Scalia with occasions for writing opinions that are both persuasive and entertaining.

GIGO: Polling the Filibuster

Orin Hatch points out that it all depends on how you ask the question:

I saw in the Washington Post yesterday a poll framed in partisan terms, asking whether Senate rules should be changed ?to make it easier for the Republicans to confirm Bush?s judicial nominees.?

With all due respect, this question could easily have been written in the Democrats? new public relations war room. I am actually surprised that such a biased question did not get more than 66 percent support.

A more balanced, neutral, fair poll was released yesterday, asking whether Senate procedures should make sure that the full Senate votes, up or down, on every judicial nomination of any President. The results, not surprisingly, were exactly the opposite of the biased poll, with 64 percent of Americans, including 59 percent of moderates and almost half of liberals, embracing this common sense, fair, and traditional standard.

It's definitely one of those go read the whole thing pieces. Lots of good stuff on the history of the filibuster and its application to judicial nominations.

The Least Necessary Organization in Legal Academia

I once called the American Constitutional Society the least necessary organization in the law school world. But Tony Rickey's found (via Tung Yin) a very plausible new contender for the title:

Via Prof. Yin, I see that a new online journal has started at Harvard: Unbound: The Harvard Journal of the Legal Left. Seeing that reminds me of the old joke about magazines like Maxim: when they publish "The Sex Issue" every year, what exactly do they think the other eleven issues are?

As somebody famous might say, "heh."

Fat Cats Only Modestly Deflated

Remember how the Rigas family looted Adelphia? The SEC and the US Attorney have announced a settlement of the charges against the Rigas:

The Securities and Exchange Commission today announced that it and the United States Attorney's Office for the Southern District of New York (USAO) reached an agreement to settle a civil enforcement action and resolve criminal charges against Adelphia Communications Corporation, its founder John J. Rigas, and his three sons, Timothy J. Rigas, Michael J. Rigas and James P. Rigas, in one of the most extensive financial frauds ever to take place at a public company.

In its complaint, the Commission charged that Adelphia, at the direction of the individual defendants: (1) fraudulently excluded billions of dollars in liabilities from its consolidated financial statements by hiding them on the books of off-balance sheet affiliates; (2) falsified operating statistics and inflated earnings to meet Wall Street estimates; and (3) concealed rampant self-dealing by the Rigas family, including the undisclosed use of corporate funds for purchases of Adelphia stock and luxury condominiums. The USAO also announced that it had entered into a Non-Prosecution Agreement with Adelphia and had settled forfeiture claims against Rigas family members.

Under the settlement agreement, which is subject to the approval of the District and Bankruptcy Courts for the Southern District of New York, the Rigas family members will forfeit in excess of $1.5 billion in assets that they derived from the fraud, including the Rigas family's interests in certain cable properties. Upon the forfeiture of these assets, Adelphia will obtain title to those cable properties and will pay $715 million into a victim fund to be established in the District Court in accordance with the Non-Prosecution Agreement. Under the Non-Prosecution Agreement, payment to the victim fund must occur at or around the time of Adelphia's emergence from chapter 11.

As the reader who flagged this for me observed:

Are you kidding me? Middle managers and middle-tier investment bankers go to the pokey for participating in tax and accounting shenanigans where they got no real -- or relatively small -- benefits and the Rigas family does no jail time? None? Yeah, they gave up a bunch of $$ but they lived like kings for a long time.

It does seem a surprisingly modest settlement, given the scale of the fraud and other wrongdoing, especially given the harsher terms meted out in other recent cases.

Loss Causation in the Supreme Court

In a law review article published several years ago, my friend Mitu Gulati and I semi-seriously argued that the Supreme Court should not be allowed to decide securities cases. The gist of our complaint was that the Court has little incentive to get such cases right and, predictably, often fails so to do. Hence, imagine my surprise when the Supreme Court actually got the latest one right.

Dura Pharmaceuticals, Inc. v. Broudo involved one of the most opaque issues in securities fraud litigation; namely, the requirement of loss causation. (Naturally, my Corporation Law and Economics treatise has a most cogent explanation of that doctrine, but you already knew that, didn't you.) Forbes offers a brief but cogent analysis of the case, which it described as a "no brainer," which probably explains why the 9th Circuit got it wrong and the Supreme Court didn't.

We get mail on judges

Reader responses to my post Judicial Nominations and Disparate Impact. I pass them along without comment for the sake of presenting a wider array of opposing (and supporting) views:

1. Walter Olson emailed a copy of his post on the subject: If you oppose one or another agenda item of the organized religious right these days, you're apt to get accused of "anti- religious bigotry". Gordon Smith (Apr. 26) provides a handy summary with links of the current flap over judicial nominations. Longtime readers will find it little surprise that I think Cathy Young ("An ugly new chapter in the religious wars", Boston Globe, Apr. 25) has the better of the argument (also check out Mark Kleiman, Apr. 26) while Prof. Bainbridge is barking up a desperately wrong tree (Apr. 25) when he declares that Senate Democrats' actions have a disparate impact on nominees "of faith"; the disparate-impact concept has done enough damage already in the realm of employment discrimination law without encouraging it to debilitate the rest of American discourse. [Ed.: Do read Gordon's post ]

2. I don't think your analogy works. An employer can always defend a policy that produces a disparate impact by arguing that the policy is necessary to serve some legitimate employment-related purpose. Admittedly, the standard varies -- a bona fide occupational qualification under Title VII has to be a lot stronger than a rational reason in the ADEA context. From the standpoint of a pro-choice Senator, I think support for Roe would clearly qualify as a legitimate employment-related objective.

3. There's a point, I think, that Eugene (and Mark Kleiman and Glenn Reynolds) are missing in the current debate about judges and anti-Catholic bigotry. It's this: all of the nominees currently being filibustered have said that they will base their legal opinions on their view of the law, not their religious views. Thus, it's not clear to me how Eugene et al. can defend any discussion of their religious views. Unless we have evidence that their religious views have somehow infiltrated their legal views (and I have seen no such evidence), then the mere fact that their religious beliefs are even being discussed at all is grounds for suspicion.  It would be like asking a nominee for Secretary of State if he is Jewish and whether his religion would influence his decisions at State.  Wouldn't the mere asking of such a question raise legitimate questions about the interrogator's attitude towards Jews?

4. I think you?re spot on in that, unless I?m mistaken, you?re not saying that there is hostility towards Catholics for being Catholics as Eugene?s follow up post argued. But only that as a majority of Christians are ardently pro-life and the Left is equally or more so pro-abortion, being a Christian judge triggers an automatic litmus test. Something akin to racial profiling; you?re black and driving an Escalade with ?spinners? on the wheels in the wrong neighborhood, you must be breaking the law.

A Sad Commentary

You know GM and Ford are in trouble when their chief rival seems willing to invoke the ten run rule:

At the annual motor show in Detroit earlier this year, Toyota President Fujio Cho and Honda Motor Co. Chief Executive Takeo Fukui said Japanese brands' expansion in the United States should not go unchecked, with Fukui volunteering that the combined share should be kept under 40 percent. (Link )

Of course, in this case, their pity seems condescending, at best, which merely adds insult to injury. Indeed, one is reminded of Melville's aphorism:

Of all insults, the temporary condescension of a master to a slave is the most outrageous and galling. That potentate who most condescends, mark him well; for that potentate, if occasion come, will prove your uttermost tyrant.

In any event, cooler heads appear to have prevailed at Toyota:

"Our basic stance is that prices are something for the market to determine," a spokesman at Japan's top auto manufacturer said. "We are not thinking about changing (vehicle) prices in order to help the U.S. auto industry."

More on Judicial Nominations

Juan Non-Volokh comes down on my side of the debate:

As much as I hate to disagree with my host, I think I have to side with Professor Bainbridge on this one. As I explained some time ago in posts on the nomination of William Pryor, here and here, I think it is fair to say that at least some Democratic Senators -- and some outside interest groups -- have taken the position that an individual who accepts the Catholic Church's teaching on abortion, and who therefore believes that abortion is murder, is unfit for the federal bench. While I would not call this anti-Catholic bigotry, it is quite anti-Catholic in effect. Larry Solum also had some thoughts on the matter here.

Meanwhile, Mark Kleiman more or less sides with Cathy Young and Eugene Volokh:

An accusation of religious bigotry is a very grave accusation. Prof. Bainbrige should consider whether the evidence in this case justifies his throwing it around so freely.

My original point, of course, was the more modest one that it seemed perfectly plausible to draw the same inferences here, by way of analogy, that one would draw in disparate impact litigation in race or gender cases. Does Prof. Kleiman want to give up the disparate impact principle in those areas?

B16 on Music and Liturgy

Benedict's views on music are very much a mixed bag. On the one hand, there's this:

... pop music, which is cer?tainly no longer supported by the people in the ancient sense (populus). It is aimed at the phenomenon of the masses, is industrially produced, and ultimately has to be described as a cult of the banal. ?Rock?, on the other hand, is the expression of elemental passions, and at rock festivals it assumes a cultic character, a form of worship, in fact, in opposition to Christian worship.

Well, modern pop is certainly banal, but does this mean I've got to delete all those Clapton and Who songs from my iPod? Fortunately, I don't think this is magisterial teaching.

In any case, on the plus side there's this:

Dancing is not a form of expression for the Christian liturgy.

PTL. The only thing I like less than praise music in a worship service is liturgical dance.

(HT: Amy Wellborn)