College Tuition Costs

At the Volokh Conspiracy, Prof. Ilya Somin attacks the idea of public subsidies for college tuition. His first argument, "the increasing benefits of college education are more than enough to pay the increasing costs.", is premised upon lifetime earnings of college graduates, not discounted to present value. This gives a grossly exaggerated picture of the financial returns of a college education. It's hard to imagine that this is not an intentional distortion, as the figures come from economists. I note that it also omits opportunity costs - the person who could be earning $40,000.00 per year but instead goes to college for four years (assuming they're atypical and graduate on time) adds another $160,000.00 or so to the "cost" of college.

This argument also skips over inequality of earnings (something Somin does subsequently address) to argue, "The vast majority of students can therefore afford to pay for college by borrowing against their future incomes, and still have an enormous income gain left over". This, of course, largely misses the point. In addition to the points already raised,

• For somebody from a family where nobody has gone to college, the idea of borrowing $100,000 - $200,000 to finance a four year college program is likely quite frightening. Heck - for those of us from educated families, that's pretty scary.
• The college graduate is not the only person who benefits from his college education. Employers benefit. Society benefits.
• Even assuming significant economic benefit, to cast this as a retrospective choice puts college education into the category of "shouda's" - "I shoulda gone to college." A recent high school graduate should not be presumed to be a rational economic actor - we "grown-ups" don't make these choices very well.
• Repayment of student loans begins shortly after graduation, not ten or twenty years down the road when income differentials are likely to be the most significant.

Somin continues, "What about college graduates who go into relatively low-paying professions?"

Obviously, the $1 million figure is an average that won't hold true for every college graduate. What about those who enter relatively low-paying professions? In most cases, there is good reason for income disparities between professions: the lower-paying ones are less in demand. We want the market to channel more people to higher-paying professions for which there is more of a demand and fewer people to fields where the demand is relatively low. Subsidizing the low-paying fields by having the government subsidize college tuition undermines this efficient allocation of labor and makes us all worse off by channeling too many workers into the wrong fields.

A professor is writing this? (A Volokh Conspiracy redux.) Granted, law professors tend to earn more than professors in most other colleges, but really. The government has no interest in subsidizing the education of social workers? Of public school teachers? Of college professors? Of research scientists? We want to financially squeeze students out of those career paths and into higher-paying jobs?

Here, Somin compounds his previous errors, and adds some new ones:

But what if you think there is some market failure that leads to undesirably low salaries in a particular profession? Perhaps the market generates too many accountants and not enough artists. Even if you think this "problem" really exists, general subsidies for all college tuition are not the right solution. Rather, you should advocate targeted subsidies specifically for the artists (or whatever other profession you think the market undersupplies). There is no reason to subsidize those students who don't go into the undersupplied field where you think a market failure exists. Subsidizing all students indiscriminately won't do nearly as much to raise the number of artists because it won't create as much of an incentive to choose art over higher-paying fields.

A few responses:

• Teacher salaries are not the result of market failure. Social worker salaries are not the result of market failure. They're all we're willing to pay.
• What sort of planned economy does Somin anticipate, where the government attempts to predict what educational fields require subsidy?
• What sort of distortion does he accept, as students intending to go to graduate school pick majors that are heavily subsidized, then merrily enroll in law school or business school?
• What new brand of high school graduates does he envision, who will know exactly what they wish their career to be the day they enroll in college. If they switch majors, do they have to repay the subsidy - and what type of market distortion does that create, as you financially coerce students to continue a course of studies that no longer interests them?
• What of the benefits to employers and society in having a larger pool of college graduates? Why write those benefits completely out of the analysis?

To the extent that some of these distortions could be eliminated by making the subsidy retroactive - loan repayment assistance for students who enter lower-paid or public service careers - you introduce a new level of distortion. Those least able to repay their loans, and its safe to assume that they will disproportionately be those from poor families, will enter careers that do not necessarily suit them or maximize their long-term earning capacity, because they will want the assistance with their loans. The kid from my Contracts Law class, receiving a 100% subsidy from his wealth family, who bragged that he had never seen a student loan contract? No such constraint.

It's important to remember that even income gains far below the average return to going to college are still more than sufficient to pay for tuition. For example, a college graduate who increases her lifetime earnings by "only" $400,000 (less than half the average gain) has still earned enough extra income to pay for tuition several times over.

But when reduced to present value, that "$400,000" could easily drop below the cost of a college education.

It gets even better - Somin argues that subsidies for education are harmful to the poor.

Not only are government subsidies for government tuition unnecessary, they also victimize the truly disadvantaged people in our society: those who lack the educational qualifications to go to college in the first place (usually due to a combination of poor public schooling and a flawed family environment). These people pay some of the taxes that support subsidized tuition for college students who are likely to end up far wealthier than they are.

This is nonsense at every level. First, given that college tuition subsidies come from income tax, this poor person Somin envisions as lacking any capacity for college likely contributes little or nothing to the subsidy. By any reasonable measure, any poor person who attends college will receive an extraordinarily progressive subsidy - one that vastly outstrips their past or present tax contribution. Second, there are many state colleges that offer significant remedial programs to help students from poor school districts get up to speed and get on track to college graduation. Without a subsidy, few colleges would offer that type of support. Somin again is happy to ignore benefits to society, but there are obvious social benefits in taking somebody from a community with poor schools and a family that does not support education, and immersing them in a college environment. I am hard pressed to think of anybody whose way of thinking was unaffected by the completion of even a year or two of college, whether or not they completed a degree. Third, although Somin does not appear to be aware that such a thing exists, there are also community colleges, which are a sensible alternative for a lot of people who want to try to recover from a mediocre public school education or who want to "try out" college while engaging in a much shorter course of studies.

They are also indirectly harmed by the diversion of public funds to tuition subsidies and away from other priorities that might do more to advance the interests of the truly poor.

For instance? Really. If you're going to argue that the government should be putting the tuition subsidy elsewhere, tell us of these places where the money is better spent. Don't say the word "school vouchers", because pretty much every word you use to attack college tuition subsidies applies to K-12 tuition subsidies.

This is pretty funny, although I can't say it's particularly self-serving:

In some cases, tuition has been artificially increased by government-imposed restraints on competition. In my own field of legal education, for example, tuition rates have been increased by restrictions on competition created by the American Bar Association accreditation requirement for law schools.

I suggest that Somin take a look at the infrastructure, salaries and working conditions in the largest colleges on his campus, such as the English Department. Would he still be a professor if he had to work in that setting, at a similar wage? I doubt it. But it's a quintessential "ivory tower" argument - "things would be better if we didn't have the subsidies that benefit me."

Sure, there are costs and market distortions in making sure that college is universally affordable. Sure, there are ways to help the poor attend college without subsidizing the wealthy. But c'mon.

Thinking Like A Lawyer?

Law professors sometimes contend that they teach their students to "think like lawyers". If this guy is an example of what law professors mean by "thinking like a lawyer", let's hope that they fail in their mission. His argument, on analogies between South Africa and the situation in the occupied territories commences,

For reasons that should be obvious to any objective observer, I find the South Africa analogy to be both absurd and obscene. However, let's assume for the sake of argument that Israel's occupation of the lands it captured in 1967 is indeed morally analogous to South African apartheid.

Okay, so far so good. It's not at all unreasonable to point to the many differences between the two situations. Lawyers frequently advance positions they don't accept "for the sake of argument". So let's see where he runs with this. What happened after Apartheid ended?

Instead, the black population of South Africa voted in a new government composed of black supremacists, who expressed openly and vigorously their hatred and contempt of white people, and swore that they would never negotiate any accommodation with the South African government, short of turning all of South Africa into a black supremacist state, with whites being forced to return to their "homelands". The new black government used its new territorial sovereignty to establish terrorist bases, smuggle weapons, and establish new military and political ties to other organizations that had genocidal views toward South African whites. White South African towns faced a constant missile barrage from this territory.

Even knowing the hatred leveled at South Africa during apartheid years, I find it hard to believe that under these circumstances anyone with a modicum of respectability would have been calling for boycotts of the South African government.

So the analogy he would have us accept between South Africa and Israel's occupation of the West Bank is that the subjects of Apartheid and the occupation are similarly nasty, awful people, undeserving of freedom and self-determination. Nobody with a "modicum of respectability" would disagree, once they accept that "fact". If you support a boycott in favor of the freedom of these awful, nasty, undeserving people, you are "morally bankrupt" and support terrorism.

Nice.

You don't have to agree with a boycott to grasp the depravity of that position.

The Latest from Jim "Foxworthy" Lindgren

The curent subject is a little bit different than last time, but the punch line is the same.... If you disagree with Mr. Lindgren's politics... you might be a racist.

Taking A Moment To Be A Bit Unfair....

Professor Bernstein, who spent a year collecting a paycheck from the University of Michigan Law School, bleats about UM's reaction to the Michigan proposal banning affirmative action:

President Coleman, in the midst of lengthy remarks expressing her dedication to "diversity," added, "Of course the University of Michigan will comply with the laws of the state." Her devotion to a cause she believes just is admirable, but I think it would have been appropriate for her to recognize, even if briefly, that out of a student body of 40,000, and an alumni body of hundred thousands, there are many thousands of people of good will who disagree. The actual remarks, however, suggest that the only good member of the Michigan community is someone who supports "diversity" policies.

It does? Well, it's pretty clear that Prof. Bernstein isn't in favor of "diversity" policies, but he's not really part of the Michigan community.

I'm assuming that he didn't have access to UM Law's admissions records, but still I have to ask: Was his experience with UM Law's minority students really so bad? (And where can I read him lament that his children will have an advantage getting into Yale, as the children of an alumnus?)

Affirmative action, at least as presently defined, has to end sometime - that is, at some point you have to recognize that it has passed its point of effectiveness or, if it is effective, that it is no longer necessary. I personally believe that many (perhaps most) affirmative action programs are deeply flawed as administered. Funny, though, I can't recall the last time I saw an opponent of affirmative action make a cogent case against the need for affirmative action, or even the manner of its administration. I can't recall the last time I heard an opponent argue for reform and improvement as opposed to abolition. To the extent that a plausible case can be made that affirmative action is no longer helping to achieve progress for targeted groups, I don't recall hearing that argued, either.

Straying From Your Sphere Of Expertise

Sometimes I wonder if I should join the majority of Americans who tune out politics - my cousin’s recipe for peace of mind. I know I blog for different reasons than many. I probably wouldn’t blog if nobody read what I wrote, but I’m not blogging here to show off expertise, unveil the inner workings of my soul, or to show that I am the world’s greatest political analyst, capable of understanding far more from the comfort of my armchair than anybody else in the world. And I would find it comical if somebody were to suggest to me that my blog somehow established such a credential.

So is it a lack of ego, or is it a mark of ego, which causes somebody to claim, “I can't speak for anyone else, but in my case, I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others.” What if the person further explains,

Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues.

Ah, to be blessed with such insight into your own limitations.

So let’s follow the link:

As we enter the home stretch of the 2004 presidential election, the majority of citizens remain ignorant about many of the issues at stake. Surveys show that 70 percent of American adults don't know that Congress recently passed a prescription drug benefit for seniors, even though the new law -- projected to cost $500 billion over the next 10 years -- is probably the most significant domestic legislation passed during the Bush administration. More than 60 percent do not know that President Bush's term has seen a massive increase in domestic spending, about 25 percent above previous levels, that has led to a major increase in the national debt. And despite the extensive media attention focused on employment numbers, almost two-thirds of the public don't know that there has been a net increase in jobs this year. Three quarters admit they know little or nothing about the USA Patriot Act and 58 percent mistakenly believe that the Bush administration perceives a connection between Saddam Hussein and the 9/11 attacks.

Oh, the irony. This editorial published by Fox News, the network whose viewers are most likely to accept the false link between Saddam Hussein and 9/11. And what sort of measure is this, given that the Bush Administration has done pretty much everything within its power to suggest a link, with Fox News and various right-wing television and radio hosts “connecting the dots” that everybody is supposed to know don’t exist?

The first question that comes to mind is, why should all Americans be familiar with these particular issues? Why should every voter care enough to follow the Medicare prescription bill, when most won’t qualify for the benefit for many years (and can reasonably assume that the entire Medicare system may look radically different by that time)? Why should an individual who is unemployed, who is working a “newly created” job inferior to the one he held a few years before, or whose family is suffering similar woes, care about raw job numbers - why isn’t their experience more important, and for that matter more relevant to their voting decision? The budget deficit? Again, an area where if you watch the wrong news programs or listen to the Bush Administration, you’ll walk away feeling that you have the informed opinion that everything’s coming up roses and we’re on a path toward budgetary balance.

Am I wrong to infer, also, that other than the budget deficit issue, the subtext of these questions is, “Why are voters too stupid to know that they should vote Republican?” (Perhaps he should have titled his work, “What’s the matter with everybody other than Kansas?”)

The author argues,

No matter how well-informed a citizen is, her vote has only a tiny chance of affecting the outcome of an election; about one chance in 100 million in the case of a presidential race. Since her vote is almost certain not to be decisive, even a citizen who cares greatly about the outcome has almost no incentive to acquire sufficient knowledge to make an informed choice. Acquiring significant amounts of political knowledge so as to be a more informed voter is, in most situations, simply irrational. But the rational decisions of individuals create a dysfunctional collective outcome in which the majority of the electorate is dangerously ill-informed.

The author illustrates this by observing, “Polls show that many more people know the names of the judges on ‘The People's Court’ than those on the Supreme Court.” Funny, though, I don’t recall ever being invited to vote for a Supreme Court Justice. I know all of their names, yet I really don’t believe that actually makes me a more informed voter, nor is it relevant to most of my voting decisions. “Gee, I should vote for Jennifer Granholm for governor, because Justice Scalia is on the Supreme Court. And I should vote for Debbie Stabenow because Justice Ginsburg looks really good in judicial robes.” Oh, sure, knowing which one is most likely to retire in a coming Presidential term may be relevant to that particular vote, but even there it is most relevant to people who vote on single issues as opposed to those making truly informed voting decisions. And even there, the individual Justice's name or political philosophy isn't relevant, as all you really care about is the political philosophy of the successor.

Moving back to the argument that it is a rational choice not to be informed about the issues, I would step beyond that and say that it is possible to believe yourself to be very informed about the issues, yet have no real grasp of them. You could spend an hour each day between reading a daily newspaper, watching the news on TV, and discussing issues with your family, yet have no real understanding of the issues the author sets forth as his litmus test. We don’t make it easy to be informed - in fact, many aspects of our current political system are designed to make it harder, and our news media is increasingly focusing on entertainment and argument, with the conveyance of information a distant afterthought. Beyond that, billions of dollars are invested annually by lobbying interests, business interests, and advocacy groups of various sorts to mislead the public about important issues.

What is more than a bit troubling about the author’s suggestion is that it in fact supports removing the vote from the public at large. It’s unreasonable to expect the public to educate itself, it’s too hard to devise a system that actually would educate the public. He reminds us that even the most informed voters can only stay on top of a small number of issues. And even if they do, he asserts that an individual vote doesn't really make any difference. So why do we let people vote at all? The author attempts to get back onto the road to democracy by proposing,

The problem of political ignorance is not going to be solved anytime soon. But it may be possible to ensure that more people possess at least basic political knowledge. At the same time, we should consider the possibility that a government with fewer functions might be easier for voters to understand and control.

Oh, good grief. Who picks the subjects for these efforts at educating the public? The government? And this smaller government that is easier to understand - is it responsible for that small set of things that the author deems important? Or will it be limited to those things which are actually understood by a significant majority of voters? “As voters really don’t understand foreign policy, but have a very good understanding of taxes on beer and gas, we have divested the federal government of making any foreign policy decisions - but it can continue to tax beer and gas.” Why are we going to pretend that the issue is whether or not the voting public understands what the government is doing, when we obviously are not going to model the government around that understanding, nor are we going to much care if the public understands matters upon which only the government (even if stripped down to its smallest form) can reasonably act?

If this is an example of the author’s “scholarly work” within his area of expertise (I snarkily comment), perhaps I shouldn’t be surprised that he doesn’t want to embarrass himself on subjects outside of his areas of expertise.

Is Process More Important Than Outcome?

If you attend law school, you will encounter on exams what is described as a "theory question". I have a hard time describing theory questions in a manner that does not sound cynical, as I happen to have developed a very cynical take on them. Although ostensibly designed to test your understanding and application of legal theory, if you don't know this up front you will quickly learn that maximizing your grade on a theory question usually involves conforming your theories to what the professor wants to hear. If the professor believes that the President is too powerful and must be kept in check by Congress, that's what you write on the exam. Oh, the professor may claim that the test will be graded without respect to whether or not you agree with him, but it's a distinction without a difference - he won't grade you down because you disagree that Congress should be the most powerful branch of government; he'll grade you down because any other theory is wrong.

I am reminded of theory questions by Ann Althouse's editorial in the New York Times, A Law Unto Herself, an editorial that she would presumably grade as an "A" or "A+" if written by one of her students at the University of Wisconsin Law School. It should have been easy for her - after all, her primary areas of expertise are civil procedure, constitutional law and federal jurisdiction. Now, I'm not saying that had I received this editorial as an essay from a 2L or 3L I would necessarily have given the student a low or failing grade. But that doesn't mean it's good.

The first noteworthy aspect of the editorial is that Professor Althouse pretends to be judging the issue based solely on issues of procedure, and not on the basis of the outcome reached. And you need to look no further than her blog to see her insist that she was not approving or disapproving the outcome, and her very scholarly refutation of those who believe otherwise:

I can see that a lot of people are missing the point of the op-ed... But I don't want to get out my sledgehammer, and I'm bored with telling people to calm down and reread it.

Well, gee... I'm convinced. So how might people have come to the conclusion that a law professor and expert in civil procedure was taking sides, despite her insistence that she was not? Perhaps it is their experience with statements like these:

In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason. Frey & Son, Inc. v. Cudahy Packing Co., 256 U.S. 208 , 41 S.Ct. 451; United States v. American Ry. Exp. Co., 265 U.S. 425 , 44 S.Ct. 560; United States v. Holt State Bank, 270 U.S. 49, 56 , 46 S.Ct. 197, 199; Langnes v. Green, 282 U.S. 531 , 51 S.Ct. 243; Stelos Co. v. Hosiery Motor-Mend Corp., 295 U.S. 237, 239 , 55 S.Ct. 746; cf. United States v. Williams, 278 U.S. 255 , 49 S.Ct. 97. [Helvering v. Gowran, 302 U.S. 238 (1937)]

Perhaps I'm being unfair, and Professor Althouse has a long and distinguished history of attacking the many state and federal cases which assert this rule; but if this is the first time she has raised the question of how courts "ignore their obligations" by focusing on outome over proper process, it invites the question - why now?

Then there is her attack on the Judge's sentence, "There are no hereditary kings in America and no powers not created by the Constitution." Professor Althouse describes that sentence as a "juicy quotation that represents "sheer sophistry."

The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

But what the Judge actually wrote was this:

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.

The Judge's statement may be "juicy" when taken out of context, but all the judge is actually stating is that the President's powers derive from the Constitution. It is reasonable to assume that Professor Althouse has read the opinion she criticizes, so it is fair to assume that her misrepresentation of the quote is intentional, and it is fair to further infer that her comments are based upon her taking offense at the judge's ultimate conclusion.

Futher, there is the question, what exactly is wrong with there being a "juicy" quote in a judicial opinion? Here's a "juicy quote" that is often used and abused by pundits: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." Again, I have to assume that a constitutional scholar like Professor Althouse is familiar with the rhetorical flourishes judges often choose to include in their opinions. Again, in fairness, I have not followed Professor Althouse's writings and choosing this time to speak out would only suggest partisanship if Professor Althouse has no history of criticizing such "juiciness" in judicial opinions - although her own use of quotations suggests otherwise.

In terms of substantive complaints, Professor Althouse gets off to a weak start:

Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness)

Perhaps Prof. Althouse mentors the footnote editors for her school's law reviews, such that this "carelessness" shocks her, but to me she's nitpicking, and engaging in the logical fallacy of poisoning the well. I can't help but also note that she does not condemn Chief Justice Warren for producing such a "juicy" quote in the first place.

In relation to her call for careful judicial decisions which demonstrate a concern for accuracy, completeness and impartiality, I agree with Professor Althouse.

... let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.

I agree that both branches should seek to observe and respect their own obligations under the law and Constitution - and both the Judge and the President swore oaths to uphold the Constitution. But irony? Perhaps it's that we have different expectations, but from where I sit Professor Althouse is describing hypocrisy.

I disagree with Professor Althouse that a trial court decision, if poorly reasoned, sends the message that there are no good arguments in support of the outcome. I think it is fair to infer bias from her castigation, "It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush." From her claimed perch on the fence between the two sides, it is interesting that Professor Althouse finds nothing to criticize on the President's side - she seems satisfied that his oath of office and covey of advisers would steer him away from any disingenous or self-serving stance - and has a history of pecking at faults by the judge which may exist only in her imagination.

Professor Althouse also suggests that the decision represents (or, at best, can't be distinguished from) judicial activism,

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.

Why do I suspect that Professor Althouse spends little time reading federal trial court opinions, and little to no time reading state trial court decisions? I don't want to be the one to cause the scales to fall from her eyes, but despite its many obvious faults this is actually a pretty thorough, substantive opinion for a trial court. I don't want to paint with too broad a brush - there are many excellent trial judges who regularly write opinions which meet or exceed the quality of typical appellate court decisions. (For that matter, there are plenty of appellate decisions, often unpublished, which would make Judge Taylor's opinion look good.)

In fact, the appellate courts in some ways reward trial courts for writing cursory opinions, or no opinion at all. In Michigan, a trial court is not required to write an opinion when resolving a motion for summary disposition. A trial court which writes an opinion may well be affirmed, even if incorrect it in its analysis, under the "no harm, no foul" principle described above - it won't be reversed if it reaches the right result for the wrong reason. But if the judge doesn't pen so much as a word, simply granting or denying the motion, the chances of reversal do not appear to increase, while the chances of being corrected in the course of an affirmation drop to zero.

It's also interesting that Professor Althouse implicates judicial activism, without actually accusing the judge who penned the opinion as being activist. Again I'm with the Professor in believing that judges should take care to avoid not only bias, but the appearance of bias. But if it can truly be said that a careless trial court decision "helps those who have been arguing for years about result-oriented, activist judges," unless she's arguing that this is the straw which breaks the camel's back, this one opinion changes nothing.

Perhaps the most unfortunate part of the editorial is that Professor Althouse spends so much time focusing on style, she leaves herself with no space to address the substance of the opinion.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

Maybe Professor Althouse should have left out the "juicy" quote from Chief Justice Marshall, to give herself a bit more space to describe the law of standing, why the judge's opinion should be regarded a superficial and incomplete in relation to standing, and maybe even an opinion as to how the issue of standing should have been resolved (assuming she's comfortable climbing off of the fence). Would the Professor describe it as "ironic" if an editorial that pretends to condemn superficial legal analyses that give the impression (even if false) of partiality were itself superficial and seemingly partisan?

I guess in the end, if I were a law professor, I would be inclined to downgrade Professor Althouse's essay even though if you simmer off all of the fat and vitriol, I agree with her primary arguments for respect of the judicial process, judicial professionalism, and greater care in the drafting of judicial decisions at all levels.

David Bernstein Attacks Presidential Signing Statements

Bernstein decries signing statements as reflecting the attitude of, "Whatever. It's only a law." Well, not really. But if you're a Volokh reader you already suspected that.

Law Professor Creativity in Law School Exams

This post over at the Volokh Conspiracy brought back memories, good and bad, about law professors' efforts to be clever in drafting their exams. To some degree, a clever hypothetical can interject a small dose of comic relief into an intense examination process. At the same time, it isn't particularly creative to set the hypothetical in the "State of Grace", "State of Ignorance" or "State of Anxiety". At least to me, such obvious jokes aren't particularly impressive, and aren't likely to help with a law student's State of Mind.

I had one professor who, well, was a lunkhead. He did use one of the obvious "State of" jokes for the context of his hypothetical, but then gave all of the various actors in the hypothetical meaningless, generic and extraordinarily similar names along the lines of the "Mr. Smith of the ABC Company," and "Mr. Jones of the CBA Corporation". The professor's personality left me with little doubt that he was looking for a "gotcha" - that he was less interested in grading the students on what they knew than downgrading them, for example, for mistakenly referencing the "ABC Corporation".

I don't mind the fact that law professors have the time to be creative in writing their examinations, as long as the time they spend being clever doesn't take away from their writing a clear, fair exam. But I am curious as to whether this type of exam-drafting creativity is commonly seen in any other graduate school context.

Insults Between Academics

Prof. David Bernstein writes of an insult once uttered by one of his law professors:

When I was a student at Yale, one of my professors, the author of eminently forgettable and inconsequential works on law and economics, referred to Prof. Siegan as "that nut from San Diego, what's his name?"

Calling another academic a "nut from San Diego"? How inappropriate.

Whiny Crybabies

I know that James Lindgren disagrees with the study which suggests that conservatives were whiny crybabies as children, even if perhaps asserting statistical arguments which are no less dubious, but his blogging colleagues are doing him no favor with their endless whiny posts about how hard it is to be a conservative.

Oh, crikey.... Just when I was thinking Ilya Somin's posts were somewhat reasonable....

Some of those who claim that campus intolerance of conservatives and libertarians is not a significant problem argue that right of center students are themselves obnoxious, intolerant, and so forth. If there really is an overrepresentation of such people among outspoken campus right-wingers, this fact may itself be the result of PC intolerance. If speaking out in favor of un-PC viewpoints can lead to social ostracism, an obnoxious jerk is less likely to be deterred by this danger than a conservative who is generally nice and popular. After all, the jerk is probably already widely disliked, while his more popular counterpart has much more to lose from any PC backlash to his remarks.

A recent post on what to me seems like a childish grudge match leads to this:

Just wanted to drop you a line to tell you how much I enjoy your blog and also commend you for standing up to Brian Leiter. Without articulate spokesmen like yourself, upcoming conservatives wouldn't have a chance of survival in today's leftist-dominated universities. Good work.

You know, I just can't bring myself to feel sorry for tenured professors, most of whom were privileged enough to go to schools like Harvard and Yale, when they whine for decades afterward about how horribly oppressed they were in their college years. If they have a valid complaint, judging from the typical post on the subject, it seemingly should be that they managed to spend that much money on their bachelor's and graduate degrees at top colleges yet didn't develop better critical thinking skills.

Political Ideology and Racism

Over at the Volokh conspiracy, contributor James Lindgren (who is quite adept with statistical analysis software and the data at issue) contends that white Democrats are significantly more racist than are white Republicans:

Eugene,

To your list I would add that, over the last 30 years, typical white Republicans in the general public have been significantly less traditionally racist than typical white Democrats.

For example, in the 1996-2004 General Social Surveys, 11.9% of white Democrats think that differences in black/white success are due to black inborn disability, compared to only 9.1% of white Republicans. Similarly, 14.5% of white Democrats favor laws against racial intermarriage, compared to 12.2% of white Republicans.

In the two decades before 1996, these differences tend to be much stronger. Republicans have traditionally been less traditionally racist.

So, although there is a shift in traditional racism toward members of the Republican Party, members of the Democratic Party have been still more racist over the last decade--though the Republican Party may overtake it soon. Only if one uses "modern racism" measures that conflate opposition to big government with racism do Republicans usually score as significantly more racist than Democrats.

Given the tiny percentages at issue, it is astonishing that Lindgren would try to assert significant racism or lack thereof on the basis of his recited figures. But beyond that, if the data truly supports his claims, why is he the only one making these claims? Would Karl Rove truly sit on such explosive data, as the Republicans attempt to make headway among this nation's minority populations?

Although I don't have access to the same tools as Lindgren, it is possible to perform a basic reality check on his assertion through Berkeley's SDA Archive site. Using the "Frequencies or crosstabulation" tool, looking at the General Social Surveys, 1972-2004 Cumulative File, focusing on Lindgren's hallmark of racism, the question of inborn ability [RACDIF4], limiting results to white respondants [RACE(1)], and weighing results with a non-response adjustment [WT2004NR], I see the following results:



When I look at expression of admiration for blacks [ADMIRBLK], I see the following results:



By Lindgren's measure (and let me again emphasize that I disgree with his measure), if Democrats can be said to be significantly more racist than Republicans, conservatives (and moderates) would appear to be vastly more racist than liberals.

When I look at Lindgren's argument that Democrats are more likely to favor laws against interracial marriage [RACMAR], he's right - the survey indicates that strong and moderate Democrats and strong Republicans are more likely to support such laws:



But when liberal and conservative ideology is examined, it seems that strong support for such laws comes from people who describe themselves as moderate, polically conservative and strongly conservative, while political liberals are significantly less likely to support such laws:



Perhaps the difference between the two results is explained by the fact that political moderates are more likely to self-identify as Democrats than they are as Republicans:



I don't agree with Lindgren's extrapolations from the data - I don't think his data supports his claims, and I think he knows it. I know that at least one statistics guru passes by this blog on occasion - I would love to hear an expert opinion on this, as a final word on my clumsy analysis as presented above.

Darn The Censorious Government

Perhaps somebody can explain this to me. Over at the Volokh Conspiracy, Professor Bernstein rails against censorious public employers, concluding,

Yes, I'm troubled by the fact that the government, acting as employer, has such censorious powers. In the case of the prosecutor, it's pretty much unavoidable. In Mr. Gray's case, it provides another reason to support privatization of peripheral government functions.

Leaving Emerson aside for the moment, isn't that a non sequitur? Does Professor Bernstein really think that private employers are more tolerant of employee speech than public employers?

Returning to Emerson, is running a law school a peripheral government function, or is Prof. Bernstein's concern limited to peripheral functions that don't pay his salary?