Thursday, November 28, 2013

Happy Thanksgiving

Monday, November 25, 2013

Success in negotiations

Over the weekend, negotiators in Geneva achieved what many are calling an historic agreement with the Iranian government. What was achieved is an interim agreement, effective for the next six months, that essentially freezes Iranian nuclear development and allows for the lifting of some international sanctions against Iran. During that time, the parties will attempt to negotiate a more comprehensive agreement that satisfies the world community's demand that Iran be precluded from developing nuclear weapons while moving toward normalized economic and political relations with Iran.

Before the ink is even dry on this agreement, we are hearing a wide variety of reactions, most of which are predictable. Some are already heralding the agreement as President Obama's greatest foreign policy achievement, even though it seems a bit early to make that judgment. Others are condemning the agreement as a threat to peace. It's not just that the critics have not taken the time to study the agreement and give a thoughtful, measured response, or that more time is needed to determine whether this agreement will be successful or not. The real problem is that most critics are judging this agreement by the wrong criteria. They are complaining that it does not do enough to restrain or dismantle Iran's nuclear program; or that it relies too much on trust of an untrustworthy adversary; or that it lets our guard down by dismantling the sanctions program without getting enough in return. All of these criticisms measure the agreement against a hypothetical, better agreement. The correct way to judge the fairness of an agreement, however, is not to compare it to the deal we wish we could make, but instead to compare it to the alternative of no agreement. Are we better off with this agreement, or without any agreement? That is the relevant question.

Criticizing an agreement because it does not achieve as much as one side hoped it would achieve is usually a pointless exercise. What critics are doing in that situation is simply attacking the negotiating skills of our own side's representatives, or arguing that we could have achieved more by force or sanctions than by diplomacy. Now it could be true that our side could have made a better deal (though I haven't seen anyone make a convincing case for that yet). But that is a judgment best left to historians. Right now we are stuck the agreement that our chosen representatives actually made. We have no reason to think they did not gain as much as was possible at the negotiating table. In any event, it is bad form to second guess them. Even worse is to suggest that we could have obtained better terms through some other means besides diplomacy. That is also a useless thing to tell our diplomatic team on their way back from the table. Why did we send them off to Geneva in the first place?

If there are valid criticisms of the deal to be made, they must be based on showing that we would be better off with no deal at all with Iran, than with an imperfect deal. But without any deal, the Iranians could engage in whatever nuclear development they want. Without a deal the Iranian government is treated as an outlaw nation instead of being given incentives to abide by international norms. With a deal, on the other hand, Iran is being forced to make some changes, albeit not as many as the critics would want. With a deal, Iran will be hindered for at least some period of time from developing nuclear weapons. By these criteria, most people would agree that we are better off with a deal than without a deal.

Parties in conflict should not compare what they have gained through negotiations with what they wish they had, or what they think they should have in an ideal world. They should only compare what they have gained with what they started out with. By that measure, it seems that diplomacy has yielded success thus far.

 Fabrice Coffrini/AFP/Getty Images

Sunday, November 24, 2013

Thursday, November 21, 2013

Harry Reid saves the world!

Today's 52-48 vote in the U.S. Senate asserting the majority's power to make the rules, and in the bargain abolishing the 60 vote cloture requirement for Presidential appointments, was unquestionably a BFD in the annals of history and democracy. But the Senate's partial abolition of the filibuster has far-reaching policy implications as well.

Let's start, just as an example, with a case like EME Homer City Generation v. Environmental Protection Agency, decided by the D.C. Circuit Court of Appeals in the summer of 2012. In that case, the majority of a D.C.Circuit panel held that the EPA had exceeded its authority by adopting a rule that would have sharply curtailed cross-state power plant emissions of pollutants such as sulfur dioxide. I'm not going to weigh in on the merits, or lack of merits, of this legal opinion. It's currently up on appeal to the U.S. Supreme Court. The point is that the D.C. Circuit--the most important Court of Appeals in terms of ruling on the validity of Executive Branch administrative rules--probably would not be issuing such opinions if President Obama were able to get more of his appointees to this important court confirmed. In terms of the impact on policy, then, nothing less is at stake in decisions like the Homer City case and numerous other cases before this court, than the ability of the duly-elected government of the most powerful country on earth to deal with the most important problem the people on earth are currently facing, namely the problem of climate change.

The Senate Republican minority's blocking of the appointment of three eminently qualified individuals to this crucially important court was the last straw.  It was a blatant effort to prevent the orderly functioning of government. It was a pure power grab by the minority that would have deprived the president of his ability to exercise the most basic of his own powers. It was an act of immense over-reaching by a political party that holds a majority in only one-half of one branch of the three branches of government, to control the other half of the legislative branch, to hamstring the executive branch, and to retain control over the judiciary. The Republicans essentially dared the majority to do something about it. And Senate Democrats knew that if they failed to do something about it, not only the President but the Senate would have been stymied by a minority of its members from effectively functioning. This action could not stand.

So cheers to Senate Majority Leader Harry Reid and 51 other Senators, for taking the necessary action to prevent a blatant abuse of power, for fundamentally reforming our government in favor of more democracy, and in the bargain, for helping to save the world!

Wednesday, November 20, 2013

Freeways to parks, Long Beach

The LA Times reported this morning that the City of Long Beach is thinking of turning a one mile stretch of freeway into a park. If the city were to carry out this plan, it would mark the first time that any section of the Southern California freeway system has been restored to other uses. More importantly, converting this stretch of road to a park might do a great deal to reduce the harmful health effects of smoke and other chemicals inhaled by children in the area (known as "asthma alley"). And in this case the arguments for maintaining this stretch of freeway are particularly weak since the need for it has been mostly obviated by the Alameda corridor project, and since it does not connect very well to the rest of the freeway system.

Nevertheless, opponents of such a project will undoubtedly claim that closing the freeway will send more truck traffic into the streets. The evidence shows, however, that when cities remove urban expressways and close street lanes, much of the expected traffic simply . . . disappears. No one really knows where it goes, but it seems to be a proven fact that when we make fewer accommodations for vehicular traffic, we end up with fewer vehicles. 

Perhaps the most important thing we could do to improve the quality of life in our cities would be to reduce the number of vehicles. Doing that reduces noise, reduces pollution, and makes the whole environment more pleasant to live in. One of the best ways to reduce the number of vehicles is to narrow streets and eliminate freeways. Such projects have been shown time and again to reduce traffic and reduce other ill effects of vehicles, and to return precious real estate to more productive uses. 

Let's hope the City of Long Beach leads the way to set this region on a better path!

Thursday, November 14, 2013

Liking it and keeping it

Some of my law professors were disciples of a fairly radical libertarian ideology. They genuinely believed that people are better off if government, including the courts, stays out as much as possible of the business of protecting people from the consequences of their economic decisions. For example, I recall one of my law professors strongly disapproving of the doctrine of unconscionability in contract law, which can sometimes be used to strike down contract provisions that are so one-sided and unfair that they shock the conscience. Behind this viewpoint is the theory that people are generally better off left to their own devices, and that the government should not step in and try to help people make better choices for themselves. So if for example, a consumer signs a loan agreement or installment contract that allows the seller to repossess their furniture or vehicle or appliance, and declares forfeit all of the payments they have made, just because they are late on the last payment, the idea is that those might just be the best credit terms that consumer could have gotten, and they are better off suffering the consequences of those kinds of draconian provisions, than having the courts or the government declaring such contracts illegal. Even if enforcement of such contracts actually causes a consumer to lose the item they already paid too much for, as well as all the payments they made for it.

Behind all the grandstanding and political posturing in reaction to insurance companies' cancellation of insurance policies that people thought they would be able to keep, lies this genuine philosophical dispute. To the extent that opponents of health care reform have legitimate beefs with the law, they can claim that they are upholding a proud libertarian tradition. On the other side stand those who want to help people make better choices.

On the surface, the law's defenders would appear to have the weaker argument because they are in fact interfering with contracts that people enter into freely and voluntarily. The argument only appears weak, however. Once people understand that the insurance policies we are talking about, that people supposedly "like," are actually something of a scam, they are not so quick to defend these contracts. These policies might be cheap, but they turn out to be almost worthless if you actually get sick. They provide people only with the illusion of coverage. If people fully understood the limitations of these kinds of policies, they might even decide they are overpriced considering what they pay out in benefits. They might decide they are better off with no coverage at all, rather than phony coverage.

Those who stand up for the rights of people to hold onto the benefits of contracts that don't actually provide much in the way of benefits, are the same people who stand up for peoples' right to work for poverty-level wages; they are the same people who stand up for peoples' rights to eat tainted food, or drink polluted water. In other words, people taking the libertarian position are standing up for the rights of people to be ripped off. In other, other words, when the president promised that if you like your insurance, you can keep it, he probably assumed that just as no one likes drinking poison, no one really likes insurance policies that turn out to be worthless if you ever need to make a claim.

The president fixed a political problem today, by allowing insurance companies to continue offering these ripoff policies for another year. But he stayed true to the principles behind the ACA by imposing this catch. If the insurance companies want to keep selling crappy policies, they at least have to spell out for people just how lousy these contracts actually are. That seems only fair, and it should satisfy those who have genuine attachment to the libertarian ideal as well as those who support the Affordable Care Act's goals of helping people obtain health insurance that will actually provide some benefits if they get sick or injured.

Tuesday, November 12, 2013

D.C Circuit

Below I'm re-posting the biographies of President Obama's three stellar nominations to the D.C. Circuit Court of Appeals, that I previously posted back in June when they were announced.

Today 41 Senators voted to refuse to allow the nomination of Nina Pillard to come up for a vote. That means she cannot yet be confirmed, despite support from a solid majority. In October the Millett nomination was blocked by a similar-sized minority, and the nomination of Robert Wilkins is also looking doubtful.

It's almost as if the Senate Republicans were begging the majority in the Senate to change the rules. But watch them act surprised and outraged when it finally happens.

Nina Pillard (from the Georgetown Law School website):
Professor Cornelia T.L. ("Nina") Pillard joined the Georgetown Law faculty after a decade as an accomplished litigator. Pillard's Supreme Court work includes more than twenty-five cases that she has briefed and nine that she has argued before the Court. Litigation highlights include United States v. Virginia (1996), which opened the Virginia Military Institute to women, and Nevada Dept. of Social Svcs. v. Hibbs (2003), sustaining Family and Medical Leave Act rights against constitutional challenge. Pillard is Faculty Co-Director of the Supreme Court Institute, which assists lawyers from around the country in preparing for Supreme Court arguments, without regard to issue or position.
Pillard served as Deputy Assistant Attorney General, Office of Legal Counsel (1998-2000); and Assistant to the Solicitor General (1994-1997). She also represented Georgetown as inaugural Academic Co-Director and Professor at the Center for Transnational Legal Studies (CTLS) (2008-2009). CTLS is a London-based semester academic program for law students from the U.S. and around the world.
A magna cum laude graduate of Yale College and Harvard Law School, Pillard began her legal career in a federal clerkship with the Honorable Louis H. Pollak (1987-1988), held the Marvin M. Karpatkin fellowship at the ACLU (1988-89), and litigated individual and class-action racial discrimination cases and appeals at the NAACP Legal Defense and Education Fund, Inc (1989-1994). Professor Pillard teaches Civil Procedure, Constitutional Law, and a new seminar on corporate and multi-stakeholder efforts to assure that jobs in global value chains are abundant, fair and safe.

Hon. Robert L. Wilkins (from the D.C.District Court website):

Judge Wilkins was appointed United States District Court for the District of Columbia on December 27, 2010. A native of Muncie Indiana, he obtained his B.S. cum laude in chemical engineering from Rose-Hulman Institute of Technology and his J.D. from Harvard Law School.
Following graduation, Judge Wilkins clerked for the Honorable Earl B. Gilliam of the United States District Court for the Southern District of California. He later served as a staff attorney and as head of Special Litigation for the Public Defender Service for the District of Columbia, and he also practiced as a partner with Venable LLP, specializing in white collar defense, intellectual property and complex civil litigation.
During his tenure with the Public Defender Service and in private practice, Judge Wilkins served as the lead plaintiff inWilkins, et al. v. State of Maryland, a civil rights lawsuit against the Maryland State Police. This lawsuit resulted in two landmark settlements that were the first to require systematic compilation and publication by a police agency of data for all highway drug and weapons searches, including data regarding the race of the motorist involved, the justification for the search and the outcome of the search. These settlements inspired a June 1999 Executive Order by President Clinton, Congressional hearings and legislation that has been enacted in over half of the fifty states.
Judge Wilkins also played a key role in the passage of Public Law No. 107-106, establishing the National Museum of African American History and Culture Plan for Action Presidential Commission, and he served as the Chairman of the Site and Building Committee of that Presidential Commission. The work of the Presidential Commission led to the passage of Public Law No. 108-184, which authorized the creation of the National Museum of African American History and Culture. This museum will be the newest addition to the Smithsonian, and it is scheduled to open in 2015 between the National Museum of American History and the Washington Monument on the National Mall.
Judge Wilkins has received numerous honors and awards, including being named one of the “40 under 40 most successful young litigators in America” by the National Law Journal in 2002 and one of the “90 Greatest Washington Lawyers of the Last 30 years” by the Legal Times in 2008.

Patricia Millett (from Akin Gump's website):

Patricia A. Millett heads Akin Gump’s Supreme Court practice and co-heads the firm’s national appellate practice. She has argued a total of 32 cases before the U.S. Supreme Court and approximately 36 in the courts of appeals. She has briefed scores of cases in the Supreme Court and appellate courts across the nation.

From August 1996 to September 2007, Ms. Millett served as an Assistant to the Solicitor General in the Office of the Solicitor General at the U.S. Department of Justice in Washington, D.C. During that time, she was awarded the Attorney General’s Distinguished Service Award for representing the interests of the United States Government before the Supreme Court in July 2004, and the Environmental and Natural Resources Division, Special Commendation for Assistance and Support in the Activities of the Division, in September 2005.
Prior to her employment with the Office of the Solicitor General, Ms. Millett worked for four years in the Department of Justice’s Civil Division, Appellate Staff, where she briefed and argued more than 20 cases before the federal courts of appeals and, occasionally, state appellate courts. Before that, she clerked for two years for the late Judge Thomas Tang, on the U.S. Court of Appeals for the 9th Circuit. She also worked for two years in the litigation department of a Washington, D.C. law firm.

Saturday, November 9, 2013

New Orleans

Wednesday, November 6, 2013


I have decided that it's way too soon to start talking about 2016, even though last night Chris Christie gave what most people thought was his opening speech for the next presidential campaign. And even though I have written a lot about presidential politics here, I'm not very interested in writing about the next presidential election.  At least not yet. One reason we should refrain from talking about 2016 is that it would reduce the importance of 2014. And 2014 is important because it will determine whether President Obama will get a Congress that might actually accomplish a few things during his final two years. It is also important because it will also help determine whether the Tea Party movement is on the decline or not. It's important because if people get cynical and tired and discouraged and only wake up every four years for presidential elections, they concede the field to their opponents.

I'm a bit tired myself. I've written 1000 posts on this site, but I've slowed down quite a bit since the election last year. The need doesn't seem quite as urgent since my candidate got re-elected. But there is still plenty of crazy stuff going on. Plenty of records that need to be set straight. And still quite a few hopeful and changing events to report on.