22 September 2012

Overdue Link Sausages of Confidential Origin

Sometimes Life gets in the way of important things like blawgging. And sometimes... it's worse than that.

  • This is a brilliant piece of work, both artistically and substantively... assuming that one ignores a fundamental problem with the context. Not everything should be subject to a popular vote in the first place: Those involved in the administration of justice should never be subject to, or selected by, popular vote. Not just judges, but prosecutors and sheriffs and attorneys general.

    There is no perfect way to select these officers of the law and of justice; even a "merit selection" approach will have flaws, and will ultimately require some interface with elected representatives. Nonetheless, officers of the courts whose sole loyalty must be to the rule of law — and to the concept that the public wins when justice is done, even when that means that the government loses a case or even a passel of them — simply cannot be directly accountable to popular whim.1 Consider the sheer hypocrisy of recent elections to state high courts in Illinois, Iowa, and California, and now even Montana; I can't, and won't, tolerate it. I haven't missed an election since I've been eligible to vote... but, contrary to the second-order implication of that otherwise exceptional campaign ad, I consciously choose not to vote for judges. I know precisely what I am doing when I leave that part of the ballot "undervoted," whether in partisan or nonpartisan elections for judicial/justice administration offices. On this issue, I stand with Justice O'Connor: It's not that all elected judges are hyperpartisan dolts and all appointed judges evenhanded geniuses (or vice versa); it's that election is, in these limited circumstances, the wrong method... especially when it is not a truly free and open election.

  • All of that said, appointed judges have their own blind spots and can act like children at recess, too. It really doesn't matter that, in substance, Judge Posner is far closer to correct than is Justice Scalia on this point; as a specific example, just try finding “a liberal federal policy favoring arbitration agreements” (PDF) (slip op. at 2) from 9 U.S.C. § 2 from that text alone, without going outside the text... particularly if one actually reads the entire opinion in Cone Hospital. It's a silly argument being fought with words over words and inelegant (one might also say ineloquent) rhetoric.

    Then, too, the foundation of Justice Scalia's argument is that the "meaning" of a statute, in context, is actually discernable from the crappy writing that one finds in statutes. They are, after all, ordinarily written by lawyers — a profession that depends on words that can't write a coherent shopping list.

  • Science often makes some strange discoveries, such as the possibility that mushrooms (or at least fungi) may be more responsible for a violin's sound than the wood and a possible evolutionary basis for everything tasting like chicken. Of course, you have to fund research and educate researchers to have much chance of making any scientific discoveries... and that's one place that diminishing returns on capital accumulation could be put to better use than, say, in an offshore account.
  • Or, for that matter, in egregiously wrong approvals of entertainment-industry mergers. This time, it's both European and US regulators who have allowed themselves to be fooled by the Austrian school(s) of economics... on behalf of the French. Of course, that assumes that recorded music has a discernable future as an industry in the first place, which should worry commercial publishing more than it does. Instead, commercial publishers are too busy engaging in other antitrust violations, resulting in getting smacked around (and not to the benefit of their profit margins), to pay enough attention to what they're selling, or how they're selling it. Then, "organized" authorship really isn't much, if any, better.
  • All of the above, however, assumes some sense of education beyond mere training for a dead-end job. That's the real problem with the arguments that college degrees should focus explicitly on what employers want right now: Things change, and a liberal arts education is a better preparation for change than is technical training in specific tasks. That's not just the lament of an English major, either; what I learned from the chemistry curriculum — in particular, the appreciation for the difference between obtaining one's facts from a report and what goes into making that report in the first place — is as valuable.

  1. I am not even sure that electing state judges is constitutional. U.S. Const. Art. 4, § 4 states that "The United States shall guarantee to every State in this Union a Republican Form of Government," but the only exemplar available in the 1780s of a "Republican Form of Government" was the one being established by the Constitution itself — a system with appointed judges not subject to election. Ever. Every time this issue has been presented for serious examination, it has been punted on primarily procedural grounds, thanks (in part) to the stupidity of the constitutional avoidance canon (PDF).