Convergences

Massachusetts v. EPA: Establishing Religion

At The American: "Supreme Climate Folly," on the Supreme Court decision telling EPA to list CO2 as an air pollutant. Conclusion:

The irony is that the Supreme Court, which jealously guards against any hint of a religious symbol on public property lest a religion be established, has gone a long way toward making the Earth Cult the official religion of the United States.

To a one-time expert in administrative law -- I was Research DIrector of the Administrative Conference of the United States -- the most shocking part of the decision is that it's elementary legal craftsmanship is so shoddy. To get to its desired result, the majority was willing to simply ignore the absolutely elementary canons of statutory interpretation and administrative law.

The decision is also an example of the institutional wreckage wrought by the climate change issue, in which every body that touches it gets de-legitimized, including the EPA, the presidency, the scientific community, the mainstream media, and the Supreme Court itself.

My fantasy is a scene in which the five guilty justices sit at the Supreme Court bench and perform ritual yubitsume to demonstrate their mortification.

Climategate & Judicial Review

At The American's Enterprise Blog, an entry notes the importance of Climategate to judicial review of EPA's forthcoming decision to list CO2 as  harmful pollutant. 

Long ago, in defining the level of inquiry a court should make in the course of determining whether an agency action is "arbitrary and capricious," the D.C. Court of Appeals said that the inquiry cannot be performed without some attention to the factual basis for an action, because an agency decision premised on a particular state of facts is, obviously enough, highly capricious if those facts do not exist.

From this seed has grown the doctrine that an agency must be very forthcoming in revealing any technical and scientific studies, and the basis of any models, that underpin a decision. The American entry contains a recent quotation from the court summing up this Law of Openness.

Given the state of the data and the models revealed by Climategate, EPA is going to have a hard time meeting this standard. 

The Art of Policy Advocacy

I was delighted to learn that Cato has put up on the Web all the past issues of Regulaton, starting back in 1977 when it was published by the American Enterprise Institute.

For all that time, Regulation has been a source of thoughtful analysis of government policy and programs, their successes and failings, and a consistent defender of markets and liberty. This archive is a mine of gold on a topics ranging from environmental policy to the financial crisis.

From a personal viewpoint, I am happy to see available an article I wrote in 1982 entitled How to Convince an Agency: A Handbook for Policy Advocates. It analyzes the differences between legal advocacy and policy advocacy, noting that:

A legal argument is not the same thing as a policy argument, though, and as advocates become increasingly concerned with the policy arguments, a problem arises: the principles of legal advocacy are only partially applicable to policy advocacy, and in places where they are not applicable they can be misleading and downright harmful. Even so, when a problem shifts to the policy arena there is a lawyers' reflex that "advocacy is advocacy"-and this invites wholesale importation of litigation principles into that arena.

The article was well-reviewed, as they say, and was at various times used in classes at Yale Law School and at Carnegie Mellon Management School. There are a few things I would change, but it holds up pretty well. What hasn't changed is the millions of dollars that people spend making the wrong types of arguments.

I was in great company, too -- on the cover with Richard Epstein and Timothy Muris:

A Nation of Criminals

On October 1, Cato will have a forum on The Criminalization of (Almost) Everything. The focus will be on Three Felonies a Day, a new book by civil liberties attorney Harvey Silverglate which points out the uncomfortable fact that "the typical American professional is likely unaware that he or she violates federal law each day because of the breadth and dangerously broad scope of the Code of Federal Regulations. As a result, scores of people—doctors, lawyers, journalists, businesspeople—are vulnerable to sudden, arbitrary prosecution."

It is an important topic. I wrote on it a decade ago in The New 'Criminal Classes': Legal Sanctions and Business Managers (1997), and things have certainly gotten worse since then. The problem is not only the criminal law, but the cascade of supposedly "civil" sanctions -- monetary penalties; property forfeitures; treble damages; punitive damages; debarments and franchise revocations; etc.

A point I made in Congressional testimony I gave in 1998 (to absolutely no effect) remains apropos:

The punitive impulse is permeating environmental protection, financial practices, government contracting, employment relations, civil rights, health care -- every area of government interaction with the society and the economy. It is becoming a matter of Congressional habit, as serious penalties are added routinely to every kind of regulatory proposal.

Here is the whole statement:

Running a Government: The Czar Issue

I agree with a recent comment by John McQuaid that conservatives need to give the "czar" issue a rest.  Sampling the list, a few are worthy of concern: the auto czar; the pay czar; the energy/enviro czar. These look like they have some dubious powers.

But, while I can't claim to have studied all of the job descriptions, I sampled a few, and most "czars" seem to be mid-level officials who have been charged with "coordination" in some area. As McQuaid says: "So: Obama, the president, is appointing people to government positions that have certain policy coordination responsibilities. That's what presidents do."

Besides, anyone who has ever held a "coordinator" slot in an organization knows that the occupant, lacking authority over budget, staff, activities, salary reviews, or parking spaces, is an object of pity and derision, not awe.

Indeed, the problem may well be the reverse of what is assumed; the fact that so many people have been assigned such vague and powerless coordination responsibilities indicates the existence of some serious and unaddressed organizational problems.

So stop calling someone a czar every time a job description includes "coordination." It's getting silly.

More Praise for Document Collections

A couple of weeks ago, I praised the usefulness of Google Books for anyone interested in historical documents. Three other sites deserve similar mention:

Cornell University's 907,750 page Making of America collection, "a digital library of primary sources in American social history from the antebellum period through reconstruction. The collection is particularly strong in the subject areas of education, psychology, American history, sociology, religion, and science and technology. This site provides access to 267 monograph volumes and over 100,000 journal articles with 19th century imprints."

The Central Pacific Railroad Photographic History Museum, which has numerous photos, maps, essays, and (scroll down on the main page for a list) a wonderful collection of digitized contemporary articles on the building of the transcontinental railroad and its times, and then links to further documents etc.

The Libary of Congress' American Memory collection is a rich vein, including in particular the Congressional Record and its predecessors going back to the Continental Congress.

The relevance to a website concerned with telecom, innovation, and intellectual property? -- The issues at the center of contemporary debates are not new. If a contemporary tech or telecom tycoon sat down with the Big Four of the Central Pacific, they would quickly find many common issues to discuss (including how to deal with a rapacious political system).

Business and economic history receive too little attention. Judge Harold Leventhal, an administrative law expert of a generation ago, once said "[This] is the kind of issue where a month of experience will be worth a year of hearings." Our society has generations of experience with many regulatory issues, but this resource is simply not brought to bear on present issues. It is easier, and more profitable for the lawyers, to hold hearings and opine about theory.

Administrative State

The D.C. Examiner says the city's Police Chief is irate because drivers are buying a "new technology [that] streams to iPhones and global positioning system devices, sounding off an alarm as drivers approach speed or red-light cameras."

The Chief pushes the safety button, of course, but DC has 290 traffic cameras,which is 10% of the nation's total, and collected $1 billion from 2005-2008. No D.C. dweller believes that this is about safety.

In D.C., as in many other places, speed limits represent a compromise. Neighborhoods and goo-goos want them set low, drivers and realists want them high. The outcome is to set them low and not enforce, or enforce sporadically. Most D.C. drivers are speeding most of the time, and often by more than a little, and safely so, because the limits are consistently 15 to 20 mph below safety requirements.

Technology is making the speed limits enforceable, which disrupts the bargain and throws the system into disequilibrium. Multiply this by all the other areas of life in which analogous compromises have been in place for decades and one sees the outline of serious problems.

The imposition of the 55 mph speed limit on Interstates, for reasons having nothing to do with safety, did much to delegitimize government. It has been raised to 65, but, on most Interstates, that is  ignored, unless traffic requires it.

Lack of concern for maintaining legitimacy is endemic to D.C. though:  "Washington insiders seem to think it is cute that voters expect Members of Congress actually to have read the complex and expensive bills that they pass before they, well, render them into law," notes Tigerhawk. "On the contrary, it is not cute, quaint, or unsophisticated but rather essential that these representatives of ours put in the hours to know what they are voting for. It is, in fact, necessary to the proper operation of the republican form of democracy."

And Still More on Health Care Disinvestment

A primary care physician explains his decision to drop out of Medicare:

[T]he service won’t pay for phone consultations, won’t pay for email consultations, barely pays for an office visit, and does not pay nearly enough to cover a house call.

This is also bad for me as a patient; since it is difficult for my doctor to deal with me by email or phone, I must spend time going to his office. It is also never wise to be an undesirable customer of any business -- if they have a choice, they won't see you. And if they have no choice? Well, one of life's fundamental rules is that you would rather not have people sorry to see you, especially when your life, health, or money is in their hands.

Plus:

Medicare has too many regulations and rules; we can’t understand a lot of them, and frankly, Medicare doesn’t seem to understand them most of the time either.  If I would accept Medicare, then they have the right to audit our notes and then fine us for non-compliance for infractions that are not readily clear. Their external auditors get paid for every infraction they find which means the temptations for fining doctors are irresistible.

There is more good and thoughtful stuff. Read it all.

Thanks to Instapundit.

Positive Liberty & Negative Liberty

The legal and political blogs are full of discussions of "negative liberty" (rights to have the state not do things to you) versus "positive liberty" (rights to have the states actually do things for you). Some fret that Obama-appointed judges might interpret the Constitution as embodying positive rights, such as a minimum income.

But I have bad news for them -- one need not even get to the Constitution. As I wrote in a law review article a couple of decades ago, "a browse through the United States Code indicates that Congress often exhibits a great generosity -- perhaps even a grandiosity -- of spirit." The Code is full of statements such as "The Congress declares it to be the policy of the [U.S.] that every citizen is entitled to an education to meet his or her full potential without financial barriers."

In the past, the Supreme Court has resisted the idea, which has indeed been argued, that preambular language creates actual, enforceable rights, but such precedents are written in water. A truly radical judge might enjoy telling Scalia that he/she is just dong what Scalia wants, and deferring to Congress.

Initial Post

CONVERGENCES is the weblog of the Convergence Law Institute LLC, a consulting firm that characterizes itself as "a private think tank" devoted to analysis and advocacy of government policies.

The premise of our work, and of this blog, is that our many areas of interest – telecom regulation; intellectual property; knowledge as a form of capital; competition policy; globalization of markets; financial affairs (and disasters); energy; administrative law – are interconnected in ways both obvious and obscure.

Our perspective is that the institutions of property rights and free markets provide the best foundation for economic activity. Our clients are firms that share a dedication to these institutions and build their business models upon them (as opposed to models based on rent-seeking, government subsidies, and "venture socialism").

However, property rights and markets must adapt with changes in technology and societal structure. Rigid fundamentalism is seldom wise. And, it must be noted, governments have always had a crucial role in creating and shaping both property rights and markets, so any discussion that tries to draw a sharp line between "government" and "the market" is certain to be bootless, especially in a time of economic crisis. One cannot hope to make markets work without making governments work. One of our activities is to consider how to promote adaptations that will enable the institutions of property rights and markets to survive in the Darwinian struggles of the real world.