Tuesday, June 28, 2005

Phew -- Made It!

Looks like I've successfully pulled off this relocation. I am here, as is my wife, my two dogs, and nearly all of my earthly possessions. So, that's a start anyway.

Unfortunately, there's still a lot to do. As such, I will be resuming my work here, but the pace is going to be fairly slow for a little while longer. So it goes.

At any rate, you can expect something of substance to show up here by the weekend. I know -- it must be difficult to contain your excitement. All I can say is: suck it up! It'll be worth it.

Trust me.

Update: Did I say new post by the weekend? I meant by Monday. Sorry for the confusion.

Friday, June 10, 2005

The Immediate Future

I'm guest blogging again over at TIA today, so today's work product will be found there.

On another note, I'm moving in a few short days. That means I'm going to be without a reliable Internet connection for a couple of weeks at least. Obviously, that's going to make it difficult to keep this project running at its current pace. So, don't be surprised if things get slow for a while.

But, along with this move, a number of other things are going to change in my life. I'll be starting a job relatively soon and then starting graduate school starting in the fall. At this point, I'm not completely certain how all this is going to affect my work here. However, there is no question that it will be affected somehow. My hope is that I will be able to keep this going in some capacity, but right now it's just wait and see.

Once I get settled in my new home, I'll be able to figure a few of these things out. Once I do, I'll be sure to share that with you.

Unfortunately, one of the realities of running a small traffic blog is that service interruptions have a tendency to be fatal. With the number of blogs out there producing high-quality material on a daily basis, not many of us are going to hover around one that has gone silent. That's just life.

That said, I hope that you will check back in a few weeks to see what has become of me. I've had a lot of fun doing this and a big part of the enjoyment is knowing that there are people out there reading what I have to say. That's been incredibly flattering and I hope that it will continue in the future.

Until then, enjoy yourselves and stay out of trouble. I'll see you all soon.

Thursday, June 09, 2005

Lessons from the Arena, Part II

I'd like to spend today expanding upon a point I raised over at TIA last week. In that post, I lamented the liberal tendency to get distracted by the moral character of the opposition, while ignoring the systemic nature of their nefarious activity.
But, too often, I think, the accusations [of wrongdoing] revolve around the bad character of the involved actors. Karl Rove is accused of playing dirty (and he does). Katherine Harris illegitimately ended the Florida recounts (agreed). The Swift Boat Veterans were a bunch of stinking liars (testify, my brother!). I could go on (and on, and on...).

However, there comes a point in time went you actually want to do something about it. Demonizing the opposition may serve to solidify your coalition, but it persuades few new voters to take your side -- even when the accusations are undeniably true. It just doesn't work that way.

Rove may be an unscrupulous character, but he is so only because of the nature of the game. If the game were different, he would be different or he would be replaced by someone who was. It's that simple.
So, to my eyes, the applied solutions should be systemic ones. If we don't like the way the game is being played, we need to change the environment in which the game occurs. Simple.

But this does require abandoning certain fantasies of retribution, something many liberals seem unable to accept. And, in truth, who amongst us hasn't let a smile creep across their face as they imagined an indictment with Karl Rove's name on it? Be that as it may, it's never going to happen and we had better spend our energy elsewhere. Still, some can't let go.

Why is that?

I believe this stems from a somewhat naïve understanding of what rules, in practice, really are. Many of us can recall our days on the playground where we concocted byzantine regulations to govern that day's diversion. Similarly, we can recall the outrage we felt when someone chose to go outside the rules. We understood the order and fairness that these rules brought to our games and condemned those who devalued these social amenities with their lawlessness.

Most of us internalized these lessons and continue to apply them in our daily lives. We happily exist in a heavily regulated environment with laws, social etiquette, ethical guidelines, and tradition defining the limits of our behavior. We may not always be able to comply completely with the rules as we understand them, but we try the best we can and accept the repercussions for failure. On a certain level, we understand that it's best for all of us if rules are followed.

But, what are these rules?

Let's talk about the NBA again. In my last post on this topic, I acknowledged that "cheating" is rampant in professional basketball. Also, there is a considerable amount of play that many would consider to be unethical or, at bare minimum, a demonstration of poor sportsmanship. Whether we are talking about an elbow thrown when the ref isn't looking or a hard foul landed to prevent an easy layup, there is a fair amount of on-court behavior that is explicitly or implicitly prohibited by the rulebook. It rarely gets completely out of hand or interferes with legal gameplay enough to upset the ultimate outcome. But, it certainly gives people ammunition for their complaints.

There is, though, an old saying that I think is apropos to this situation: if a tree falls in the forest and no one was there to hear it, does it make a sound? Or, if you throw an elbow and the ref doesn't see it, is it still a foul? Of course, there are a lot of philosophical approaches to answering such a question, but in the real world there is only one answer: no.

There are the rules that exist in the rulebook and there are the infractions that the refs are actually able to call. Of these two, only the second set matters. You might get a bad reputation if you habitually attempt to evade the rulebook rules, which might lead to a heavier focus on your conduct. However, this doesn't change my contention in the slightest. It doesn't matter what you do on the court -- if the ref doesn't call it, it's legal.

A friend of mine who had just completed a contract law class shocked me one day with a declaration that contracts don't really exist. He went on to explain that contracts are only binding if (a) both parties perceive the benefits of compliance, or (b) a practical enforcement mechanism exists. For example, if a small technology company contracts with a powerful multinational corporation, the details of the contract are whatever the multinational says they are regardless of what is written on paper. If the multinational decides to default on its obligations, it will unless there is a realistic threat that their contractual partner will be able to enforce the contract through litigation. Since economic realities usually foreclose this possibility, the contract is binding only as far as the multinational allows it to be. The contract might exist in a theoretical universe, but it fails to materialize in the real world.

This is something that we all have to come to grips with. People are only bound by the letter of the law, not the spirit. Moreover, people are only bound by the laws that are likely to be enforced. If you can break the law without being noticed, your activity was, in effect, legal.

Was the election stolen in 2000? Were laws broken in Ohio this last year? From a theoretical perspective, the answer is probably yes. But, from a practical standpoint, the answer is no. Or, perhaps more accurately, it doesn't matter because if laws were broken, they were broken in such a way that the refs aren't going to call it. And if the refs can't or won't call a foul, there's no point wasting energy complaining about it.

Actually, I'm being a little bit glib here. Of course complaining helps. It's commonly referred to as "working the refs" and the right has been applying this principle to the media for the last 30 years. But the point is that it only gets you so far. If you want real change you have to focus on system dynamics.

And this doesn't just mean enacting new laws. You have to make sure that a practical enforcement mechanism exists, otherwise the law is hollow

What you don't want to do is to spend time hoping that those who have misbehaved will receive their comeuppance. They threw elbows and got away with it. The play is over and we need to be present for the next one. If we don't like playing games with thrown elbows, we need to create a system that is capable of effectively policing that behavior. Right now, throwing elbows is effectively legal. So, we can throw our own elbows or we can change the rules so they can't be thrown so easily in the future.

However, complaints do nothing more than highlight our regulatory naïveté. The other side has figured out which rules matter. We need to do the same.

Tuesday, June 07, 2005

One Toke over the Line

Well, thanks to a 6-3 decision handed down on Monday, the Justice Department has once again managed to put the fear of God into the hearts of AIDS and cancer patients all across that decadent land known as California. I can't wait to see the press photos at their next bust. It's almost hard to believe that they would fight for the opportunity to have such a horrible public relations disaster. But, what do I know?

As I've thought about this case today, I find that I keep coming back to the idea that drugs make people crazy. You don't even have to take them; just injecting the subject into the discussion is enough to drive otherwise rational people into intellectual knots. It never ceases to amaze me, and this case is no exception.

The argument put forth by the respondents (i.e. the potheads) was simple enough. The federal Controlled Substances Act is limited by the Commerce Clause to regulating interstate economic activity. Since the respondents consumed their own product, there was no economic transaction. And since the activity occurred in their living room, it was all intrastate. I mean, to rule against this position you'd have to be willing to assert that this activity would substantially affect the national cannabis market.

Unfortunately, that is exactly what seems to have occurred. By relying on a precedent set in Wickard v. Filburn, the court ruled that Congress has the ability to regulate noncommercial intrastate activity because such activity "has a substantial effect on supply and demand in the national market." Moreover, the standard for such an assertion is rather low. The government doesn't have to prove that the existence of medical marijuana would affect the national market, it merely has to demonstrate that "a 'rational basis' exists for so concluding."

For the government, this low standard of proof is awfully fortuitous, as the evidence for said market impact is rather scarce, to say the least. Justice O'Connor seized on this point in her dissent:
There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market–or otherwise to threaten the CSA regime.

The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime.
So, without actual evidence, we're down to the so-called "rational basis" for the market effect conclusions. But, in truth, how rational is this conclusion? It appears to be justified largely by an Econ 101 understanding of supply and demand laws. Medical marijuana patients, with access to legal domestic supplies, would drop out of the national market. With fewer consumers for illegal product, prices would drop as demand declined. Since these lower prices would make it easier for marijuana consumers to acquire their product, this market effect would undercut the intent of the Controlled Substances Act. It's an explanation good enough to satisfy any first-year Econ student.

Of course, some people move beyond Econ 101 and discover that real markets are a good deal more complicated than those described in first-year textbooks. In particular, illicit markets endure specialized costs not present in legitimate economies. Mark Kleiman explains this for us.
In the case of marijuana and other illicit drugs, the dominant cost facing any producer is the cost imposed by law enforcement (employees and principals alike need to be compensated for their risks of arrest and imprisonment) and the cost of evading law enforcement.

Roughly speaking, the enforcement risk faced by the average drug transaction depends on the ratio of the volume in that market to the enforcement effort devoted to suppressing it. If there's one dealer on a street corner and one cop patrolling it, the dealer is much more likely to get busted than if the same cop confronts 100 dealers. That "safety in numbers" principle is why prey animals herd.

So if we take some of the demand out of the illicit marijuana market in a way producers in that market can predict, they will likely reduce the amount they produce. If we leave the enforcement effort constant, each remaining kilogram of pot faces more law enforcement. Thus we would expect the price of illicit pot to rise…as a result of removing medical demand from the market.
It seems to me that there is as much of a "rational basis" for concluding that medical marijuana will drive the price of illicit marijuana up as there is for concluding that it will drive it down. Of course, the truth is that the marijuana market is so complex that it is impossible to rationally conclude anything at all with respect to prices. Therefore, this isn't really about rationality at all -- it's about convenience.

Take a look at these comments from Ann Althouse posted over at SCOTUSblog.
Justice Stevens wrote what I thought the Court would have to say: if noncommercial, homegrown marijuana were seen as beyond the Commerce Power for medicinal users, it is also beyond the Commerce Power for recreational users. The theory is the same, that noncommercial user-producers can’t be included in the Wickard-style analysis.
This is, without a doubt, a problem with ruling in favor of the respondents. If all it takes to evade federal drug prosecution is that you produce and consume all of your own product without ever crossing state lines, you've created a loophole to be seized upon by every pothead in the land. Better to whip up some supply and demand justification than to face the consequence of a more honest ruling.

But, I'm no longer surprised by the contortions that prohibition advocates will perform in order to maintain the status quo. The case for medical marijuana couldn't be clearer. Despite the current scheduling of marijuana within the Controlled Substances Act, there is an enormous amount of clinical data demonstrating the medicinal effects of cannabis. The government, if it were so inclined, could easily develop a system in order to manage distribution and prevent diversion into the illegal market.

But doing so would undermine the central message of prohibition: drugs are bad. They realize (rightly so) that once the absolutism of this message is pierced in any way, the questions will begin to fly fast and furious. If marijuana can be used as medicine, is recreational use really that harmful? If not, is it really worth the societal costs preventing it? What if we began to see marijuana use as separate from other types of drug use? Would the levels of use in these remaining drug classes be high enough to justify the crisis rhetoric consistently emanating from the ONDCP? If not, how would the DEA budget be affected?

From a strictly legal perspective, this decision was hardly surprising. It appears to be well justified by existing case law and judicial analysis. But, this decision, like many before it, is based upon irrational justifications for the government's regulatory goals. The central premise, that it is in the interest of society to regulate recreational drug consumption, is never challenged. In fact, the government will go to almost any length in order to avoid answering that very question. Every discussion begins by accepting the truth of that claim.

However, that claim is undeniably false. There are few things in this world that I'm prepared to declare with absolute certainty. This is one of them. Too many are blinded by the hype and hysteria surrounding drug use to see the reality. But, there is no question that we pay a high price for this course of action. Hopefully, that will one day become clear.

Until then, let's hope we don't see too many glaucoma patients in handcuffs.

Update: Naturally, Publius has a take on this case that's worth reading. In short, he believes the case to be correctly decided, in that the court properly held that the Legislature should be the final arbiter of the Commerce Clause. I'm not sure that I agree, given that appropriate application requires that there be a "rational basis" for concluding that the national market is affected by medicinal marijuana. Somebody has to make that evaluation and Congress clearly isn't up to the task.

On the other hand, the judiciary doesn't seem to fare much better on this front. So, perhaps it doesn't matter at all.

Friday, June 03, 2005

To Compare or Not to Compare -- That Is the Question

Irene Khan of Amnesty International managed to cause a bit of a stir recently during the speech that she gave introducing AI's 2005 annual report. While summarizing the document's findings, she spent a moment discussing the United States' contribution to the universe of human rights abuses. As she did so, she made the following statement.
Guantanamo has become the gulag our times, entrenching the notion that people can be detained without any recourse to the law. [Emphasis added]
Predictably, the White House has retreated into denial mode. Scott McClellan responded by claiming that the report is "ridiculous and unsupported by the facts." Bush called the allegations "absurd." Why am I not surprised?

As this has been going on, another discussion has been brewing, centering on AI's use of the term "gulag." At Legal Fiction we have Publius arguing:
Ok - after giving it some thought, I must concede that the use of "gulag" is inappropriate…

The main difference is that the Soviets tortured and killed millions, while we torture and kill hundreds or perhaps thousands. Now, if you were a Kantian, that might not make a difference, morally speaking. But I'm not a Kantian, and I think that numbers matter. Killing millions is exponentially more heinous than killing hundreds - and that makes it different in kind.
In a similar vein, we have Eric Martin's $0.02.
…Amnesty International made a strategic blunder by evoking the Soviet-run network of prisons ranging throughout the "gulag" archipelago to describe the detention facility at Guantanamo. Yes, there are certain similarities in the sense that both are extra-judicial prison systems. There is at least the specter of indefinite detention without due process at Guantanamo (though the Supreme Court will eventually intercede to halt this in my opinion) and thus far Guantanamo, and other facilities, have been the sites of incidents of violence, torture and homicide delivered at the hands of US officials. But the difference in the magnitude of horrors at the Soviet helmed gulags (millions killed, millions more suffered heinous conditions and abuse that exceed most of the more damning reports from Guantanamo) makes the comparison so strained as to render it devoid of meaning - or so wanting in clarifications of nuance that it becomes an unwieldy analogy that requires extensive unpacking every time it is trotted out.
And, for flavor, here's Andrew Sullivan.
Some of the rhetoric in Amnesty International's report on U.S. detainment policies is indeed excessive. It is simply wrong on every level to equate the United States' policy of detention, abuse, torture and rendition of terror suspects with the Soviet Union's vast domestic prison system, designed to perpetuate an evil totalitarianism.
So, I think it's safe to say that AI isn't getting a pass on this language. But, I've got to admit, I'm starting to believe that this is all getting blown out of proportion. Was this comment really so great a sin?

As I see it, there are really two questions. First, was this a "strategic blunder"? Have they hurt their cause by using such inflammatory language? Second, is use of such inflammatory language inherently wrong?

Looking at our first question, I'm under the impression that the positive/negative outcome of the statement has been a wash. Using the term "gulag" certainly leaves AI open to accusations of hyperbole, which has allowed administration officials to once again shift focus away from their conduct and on to the conduct of the investigating agency. On the other hand, as Eric Martin says
…Amnesty did end up drawing the media's attention to a report on conditions at Guantanamo that would have otherwise gone unnoticed and ignored in favor of the ongoing Jackson trial, a runaway bride, and/or the child abduction/amber alert du jour.
Moreover, I doubt very much whether the "gulag" comment really played a decisive role in determining the administration's response. If they hadn't seized on this language (and assuming that the report would still have been news without it), they would have seized on some other aspect of the report in order to discredit it. This way, at least, the report is being mentioned during primetime news broadcasts. And this time, according to David Schraub, the administration hasn't been fully in control of the spin.
This is one of the few times that the Bush administration has really let a negative story about itself spin out of its control. I mean, you have Bush, Cheney, and Rumsfeld dragged into this, and I have to think their comments have given the story a renewed life it would not otherwise have. Furthermore, I don't think they are coming out the better in these exchanges--they sound bitter and in denial.
So, on the one hand AI opened itself up to the administration's preferred plan of attack, but it was merely a variation of the attack that would have been used anyway. On the other hand, people are actually talking about the report, no mean feat. Bonus points are added when Bush & Co. sound like they are "bitter and in denial." Could AI have achieved these positive goals without the negatives? Perhaps. But, I hardly think that the answer is clear. There may have been an opportunity cost for their use of this rhetoric, but I'm not willing to say that it was a net negative.

Then we get to the question of the appropriateness of the term. For me, this gets into the larger question of when, if ever, is it appropriate to make comparisons to some of the darker moments in human history. Are analogies built upon these events ever illuminating enough to warrant their use?

Obviously, the Soviet gulags and our system of extrajudicial detention differ greatly in many respects, especially with respect to magnitude. Over the years, millions were tortured and killed in the Soviet system, while most estimates place the toll for our system in the hundreds. Similarly, the extremes of the Soviet system undoubtedly make Guantánamo Bay look tame in comparison. Therefore, claiming that these two systems are indistinguishable from each other would be an excusably reckless and dishonest.

However, that isn't what Amnesty International did. They referred to Guantánamo as "the gulag of our times," which I understand as meaning "similar to," not "exactly like." And, you've got to admit, there are similarities. We have cast a wide net, ensnaring many who are guilty of nothing and who pose no threat. We hold these detainees incommunicado without due process. We engage in abusive interrogation techniques of dubious value, many of which directly violate both international and domestic law. In fact, the main distinction between our detention system and the Soviet gulags is one of degree. In most other respects, the comparison is a fair one.

Some might argue that the magnitude issue renders the comparison meaningless. Here, I couldn't disagree more. In fact, I would argue that it is important to make exactly these types of comparisons. Let's remember that the Soviet gulags didn't torture and kill a million people during their first week of operation. It took decades for them to accomplish this feat. Their crime was a product of both the system AND time. It therefore follows that any similarly constructed system could produce a similar result if it were allowed to persist over an equivalent period. Once you have all of the ingredients, all you have to do is wait.

And that's the point of making the comparison. It lets people know both the company we are keeping and the possible results of maintaining that affiliation. The hope is that people, once they realize the potential outcome, will demand that we change course long before the magnitude of our sins equal those of the Soviet Union, or of Nazi Germany, or of whomever we are being compared to. If someone had shamed these governments by comparing their actions to those of another ancestral perpetrator of evil, perhaps their atrocities would have been averted. Who knows?

There are, of course, lots of inappropriate comparisons being made these days. I'm not going to stand here and defend all of them. Each one has to be examined in context. What matters isn't the comparison itself, but the aspect being compared and whether or not that aspect is truly probative. Adolf Hitler and Martin Luther King Jr. were both powerful public speakers, however a comparison between the two would be greatly misleading. Their differences overwhelm their similarities, making the comparison useless.

But, there are definitely times when such comparisons have value. It can give you an idea about where you're headed and give you an opportunity to decide whether that's really where you want to go. It can serve as a wake-up call allowing you to avert disaster. Even if there is some blowback from your rhetoric, it can be worth it.

On balance, that's where I see Amnesty International's comment falling. It identifies accurate similarities between detention systems while foreshadowing the possible outcome of persisting along this path. It has both practical and rhetorical value. As such, I don't have a problem with it. I wouldn't overdo it, but an occasional reminder of our historical bedfellows goes a long way in informing the debate. When done in moderation, we should welcome it.

Thursday, June 02, 2005

How to Blog

If you're thinking of joining the exciting world of blogging, you might want to read this so you know what you're getting into.

(via IsThatLegal?)

Still Unpacking

Metaphorically speaking. Anyway, I'm not going to be putting anything substantial up today. Of course, if you missed my guest appearance over at TIA, now would be a great time to check it out (here, here, and here). Enjoy!
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