Justice For Sale

Retired Justice O’Connor laments the fact that politicized judicial elections in many states have decreased public confidence in the impartiality of the courts. She shills for her profession by suggesting that civic education and merit-based judicial appointments can solve this problem.

The reality is that judges themselves bear most of the blame for the politicization of the judiciary. An impartial judiciary is an essential part of American government, but judges in recent generations have increasingly taken on activist roles. Since they increasingly usurp functions of the legislative and executive branches it is no longer enough to ask whether they are “qualified.”

Justice O’Connor tries to whitewash the actions of judges in my home state of Pennsylvania for accepting “a legislatively enacted pay raise.” The real story on the 2005 pay raise scandal is that it was an unconstitutional act. Even though it was quickly repealed for everybody in government, the judges (amusingly, citing a different clause in the constitution) ruled that the unconstitutional pay raise could not be repealed for them.

Perhaps some blame could be apportioned to constitutions that offer The People little recourse for reigning in activist judges. In Pennsylvania judges only face retention votes every ten years, and there is no constitutional mechanism for recalling them.

Of course, constitutional reforms wouldn’t be necessary if judges took down the “For Sale” signs and returned to their traditional calling as impartial adjudicators of the law.

Government Mismanages the Strategic Petroleum Reserve

Here’s another way government can replace taxes with the astute stewardship of public assets: David Henderson notes that the U.S. government is in a unique position to arbitrage commodities market. Since it stockpiles massive quantities of commodities it could take risk-free profits in a backwardated market — while helping to mitigate a transient supply crunch (which is what a backwardated market indicates). For example, right now it can sell oil from the Strategic Petroleum Reserve at $96/barrel, while buying contracts to refill the SPR in one year at only $87/barrel.

My cynical side suspects that this is such an obvious win for both commodities consumers and taxpayers that we can almost guarantee it won’t happen.  [Sure enough, Nov 14, WSJ notes, “Last week, the Department of Energy announced plans to continuing buying crude oil to fill the 694-million-barrel Strategic Petroleum Reserve, noting that the reserve’s purpose is to cope with oil supply disruptions — not to manipulate prices.”  So if a backwardated market doesn’t indicate a supply disruption, what does?]

Control All Our Rights Equally

This incisive letter in Wednesday’s WSJ, responding to questions of how to prevent voter fraud, says it all:

Make the requirements to vote the same as to own a gun. Simply go to the polling place, fill out a form, show your ID, and the poll worker will check with the FBI database to make sure that you’re not prohibited from voting. If everything is working correctly, you will be allowed to vote in a few minutes.

If such a computer system doesn’t violate the rights of gun owners, then what possible objection could there be to implementing the same system for voting?

Robert Racansky

Judicial Monopoly

I see no reason why a government should impose a judicial monopoly on civil affairs. If two parties are competent to enter into a contract, then they should also be competent to agree on how that contract should be adjudicated.

Indeed, when given a choice it seems that many American entities would rather have their first appeal through manifestly more cheap and efficient private arbitration. However, the WSJ yesterday noted that the Trial Bar Lobby is tired of losing its monopoly on civil litigation. Which brings us the Arbitration Fairness Act, which “would outlaw pre-dispute arbitration agreements in the future for all private contracts involving consumers, employment and franchising.”

An earlier post here noted the beauty of competition in regulation in principle. The WSJ points out that competition in civil litigation (through arbitration agreements) has proven itself an effective alternative to government monopoly in practice:

Even lawyers concede its virtues. In 2003, an American Bar Association survey found that 78% of lawyers “believe that arbitration is generally timelier than litigation, and 56% feel it is more cost effective.”

One could imagine that without any government oversight a particular industry could form an arbitration cartel at the expense of its customers, but the government already guards against that:

Under existing law, judges can throw out arbitration agreements tilted too far in favor of one party, so most arbitration clauses tend to give the consumer a reasonably fair shake. University of Kansas law professor Stephen J. Ware says that even in cases where arbitration contract terms are more favorable to sellers, the result is generally lower prices for consumers, because the cost of lawyering has been stripped out. “Recognition of this has been standard in the law-and-economics literature for at least a quarter of a century,” he notes.

Really Inconvenient Truths

My pregnant wife was outside electioneering.  During quiet periods she got in her coupe and ran the engine to warm up.  A liberal electioneer saw her doing that and chastised her for burning fuel to stay warm: “Do you realize how much harm you’re doing to the environment?  Look at your carbon footprint!”  Amusingly, this electioneer later drove off in a Mercedes S-Class sedan.

Well, what is the “carbon footprint” of a luxury car, and how does it compare to a regular car?  I suspect that if we consider the carbon dioxide emitted by all of the gasoline that will be burned in our coupe over its entire life, it will not exceed the carbon footprint of a new S-Class just being driven off the lot.

Many shrill environmentalists have a childish perception of the world’s energy cycle: They seem unable to think beyond the immediate combustion of fossil fuels.  The inconvenient truth they should know is that they can’t buy their way out of responsibility for energy use.

Suppose the life of my car is 120,000 miles.  At a conservative 20mpg we are burning 6000 gallons, which at $3/gallon is $18,000 of pure “carbon.”  (I.e., let us suppose that producing and burning fossil fuels is the most direct way to turn dollars into carbon emissions.)  But in a world running on fossil fuels almost all market activity can ultimately be traced to some marginal emission of carbon.  In the present example we could almost discount the fuel (although the environmentalist’s car is significantly less fuel-efficient than mine).  Instead let us focus on the fact that the environmentalist’s car cost at least $60,000 more than mine, and let us imagine what the carbon footprint of that premium might be.

  1. Of course, part of the price of a luxury car is a luxury premium.  It goes to maintain a luxury dealer and customer support infrastructure — larger showrooms, more salesmen, more staff.  All of which burn more energy.
  2. That luxury premium is also preserved through extensive advertising and branding campaigns.  Part of this ends up in the print media, which also burns energy.  I.e., if Mercedes weren’t pumping all of that money into advertising some publications would not be printed, and some would be smaller and lighter.
  3. There are knock-on effects to all expenditures that employ more people, since on average more people with more money end up consuming more energy.
  4. Expensive cars are designed with more resources.  More man-hours are spent in design and production of each car. More expensive materials are used — e.g., aluminum instead of steel — and that expense typically implies more “carbon” in its production tail.
  5. Note that even “environmentally-friendly” hybrid cars may be net-emitters when you take into account their entire carbon tail.  For example, once you take away government and manufacturer incentives (which hide but don’t reduce the production costs) a Toyota Prius costs at least $7,000 more than a comparable conventional car.  This premium would take over 18 years to pay off in fuel savings, which is longer than the life expectancy of the car.

I have previously challenged the numerous dubious assumptions of “global warmists,” but even if we accept their alarmist hypotheses their hypocrisy can be astonishing.

Campaign Finance Law Furthers Our Corrupt Politics

The McCain-Feingold Campaign Finance “Reform” law is a fascinating microcosm of the corruption of our modern American government. From the illuminating introduction to John Samples’ book, The Fallacy of Campaign Finance Reform (emphases mine):

The Madisonian and the Progressive visions frame the debate about campaign finance by identifying the general interest, the particular interests that threaten it, and what is to be done about that particularity. For the past three decades, Progressives have driven this debate. Their vision of politics says that economic elites—variously defined as “Big Money,” “the rich” or “corporate America”—compose a particular interest that corrupts American government, thereby preventing a redistribution of wealth that would realize the Progressive dream of an egalitarian nation. The symbol and means of that corruption is private spending on elections and politics. For Progressives government is both the victim of these private interests and the solution to their dangerous particularity. If government heavily regulates or eliminates private interests (and thus private spending) in politics, the common interest in egalitarian economic outcomes will be vindicated. Progressives see government as a benevolent force that overcomes the threat posed by private interests fostered by the market economy.

Madisonians think government is the problem. They identify the general interest with liberty and hence with natural rights recognized by an empowered and limited government. The greatest threat to that general interest is a predatory majority bent on abrogating a minority’s right to life, liberty, or property. The founders designed the U.S. Constitution to protect that general interest against that threat. But they did not look to government to impose a substantive notion of the general interest by suppressing particular interests. Instead, Madison and others proposed a political structure that would set interests into conflict, thereby limiting government and preserving liberty. The First Amendment reflects that strategy: particular interests have a right to be heard in the national debate. The Madisonian vision suggests another problematic particular interest: the government itself. Instead of assuming that only economic elites threaten democracy, we might also consider the danger posed by those who have political power.

So is this just a Conservative/Progressive philosophical debate? Perhaps, but it is no longer just a debate. With this law the majority (with more time than money) has waged a coup against the minority (i.e., the productive group with more money to spend on politics than time):

In recent history, Republicans have generally raised more money than have Democrats. Republicans have also relied more heavily on money to fight elections. In contrast, Democrats can count on unpaid labor provided by members of their coalition and favorable free coverage by a largely sympathetic national media. Neither volunteers nor the media have been seriously regulated by campaign finance laws. By reducing a Republican advantage while ignoring a Democratic strength, campaign finance law has generally biased elections toward the Democrats.

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