How could members of the Supreme Court possibly seriously consider the argument that ObamaCare’s individual mandate to purchase health insurance is unprecedented and unconstitutional? The quality of the arguments? The presence of a genuine legal debate? No, if you ask the law’s liberal cheerleaders, there can only be one answer: pure partisan politics.

From the beginning, ObamaCare’s backers presumed that the nation’s legal institutions would be on their side—and wouldn’t require much effort to convince. Going into this week’s Supreme Court arguments over the fate of the 2010 health care overhaul, liberal analysts were supremely confident. Since the law’s passage, they’d been predicting that the law would pass constitutional muster with ease. In February 2011, Harvard Law Professor Laurence Tribe reassured readers of The New York Times that even conservative justices would not buy the challengers’ arguments, insisting upon the “clear case for the law’s constitutionality.” Andrew Koppelman, writing in The Yale Law Journal Online, declared the mandate’s constitutionality “obvious.”

Liberal analysts maintained their enthusiasm even after multiple losses in the lower courts. The case against the mandate is “analytically so weak that it dissolves on close inspection. There’s just no there there,” wrote former New York Times legal correspondent Linda Greenhouse a few days before the arguments began.

What can explain liberals’ widespread failure to anticipate the Court’s wariness of the mandate? Research conducted by University of Virginia psychologist Jonathan Haidt suggests one possible answer: Liberals just aren’t as good as conservatives and libertarians at understanding how their opponents think. Haidt helped conduct research that asked respondents to fill out questionnaires about political narratives—first responding based on their own beliefs, but then responding as if trying to mimic the beliefs of their political opponents. “The results,” he writes in the May issue of Reason, “were clear and consistent.” Moderates and conservatives were the most able to think like their liberal political opponents. “Liberals,” he reports, “were the least accurate, especially those who describe themselves as ‘very liberal.’”

Anecdotally, this mirrors my experiences in Madison and at the University of Pittsburgh (two very liberal environments). I’ve found some liberals that I can have rational, political discussions with. On the whole though, most liberals in Madison seem unable to accept that conservatives (or libertarians) act from any motive other than greed, hate, stupidity, or pure evil.

Many of them seem unable to understand conservative rationales or arguments, so they act as though conservatives have no rationales or arguments. It can make for a toxic atmosphere, where the easiest road to peace is the one where you just keep quiet.

But what fun would that be?

Visit This Link →

A friend of mine linked to this article, from Facebook, upset that Republican State Senator Glenn Grothman isn’t concerned about the male-female pay gap. So, I read the article. And, wow. It is very sloppily written.

According to The Daily Beast, “A 2007 study by the American Association of University Women found that college-educated women earn only 80 percent as much as similarly educated men a year after graduation.”

After ten years in the workforce, the gap opened to 12 percent.

Wait. What? A 20 perccent gap opened to a 12 percent gap? How does that work? Having nothing better to do with my time, I decided to look up the referenced 2007 study. (And, people? This is 2012 and you’re writing for the web. You can link to studies for your readers. Don’t make them do their own Googling.)

Here’s the original study: Behind the Pay Gap (2007). I started with the Executive Summary. First page, second paragraph:

One year out of college, women working full time earn only 80 percent as much as their male colleagues earn. Ten years after graduation, women fall farther behind, earning only 69 percent as much as men earn.

Oh. So, the 80 percent pay gap increases 11 points, to a 69% pay gap. Now, to be fair to David Ferguson, he’s pretty much re-writing a story from the Daily Beast. And this goofily worded section is in the original story. But quoting another story is no execuse for bad writing or for failing to correct the bad writing, for your own readers.

Now, about the pay gap itself. Reading this story and the Daily Beast story, one gets the impression that their is an immense pay gap between men and women. If you read the 2007 study closely though, the pay gap isn’t nearly as immense.

One year out of college, women working full time earn only 80 percent as much as their male colleagues earn. Ten years after graduation, women fall farther behind, earning only 69 percent as much as men earn.

… The only way to discover discrimination is to eliminate the other possible explanations. In this analysis the portion of the pay gap that remains unexplained after all other factors are taken into account is 5 percent one year after graduation and 12 percent 10 years after graduation.

After controlling for variables other than sexism, the pay gap after 1 year is 5% and the pay gap after 10 years is 12%. Or is it? You could read “portion .. that remains is 5%” as meaning 5% of the 20%, which is 1%. Similarly, 12% of 31% is 3.7%.

To figure out which it is, I checked the Full Report, from the study.

That is, after controlling for all the factors known to affect earnings, college-educated women earn about 5 percent less than college-educated men earn. Thus, while discrimination cannot be measured directly, it is reasonable to assume that this pay gap is the product of gender discrimination.

Okay. I think the Executive Summary isn’t worded as clearly as I would like, but it is saying that 5% of the pay gap can’t be explained by their regression analysis against other variables. So, the unexplained pay gap after 10 years is 12%. That’s a lot better than the 20% and 31% mentioned in the Daily Beast article, but it’s still not great.

But I had one more question: did the study account for the fact that men, generally speaking, negotitate more aggressively for starting pay and raises than women do?

I found this in the “What Can We Do About the Pay Gap?” section of the study? The fact that this in the potential solutions section strongly suggests, to me, that the authors didn’t control for it, in their regression analysis.

Further magnifying these gender differences, women expect less and negotiate less pay for themselves than do men. Researchers have found that women expect less, see the world as having fewer negotiable opportunities, and see themselves as acting for what they care about as opposed to acting for pay. These learned behaviors and expectations (which may be based on experiences) tend to minimize women’s pay (Babcock & Laschever, 2003).

Individual differences in negotiating skills may lead to pay variation among workers with similar skill sets. Employers have a fair amount of discretion in setting wages as long as they pay at least the minimum wage and do not discriminate based on gender, race, ethnicity, age, or other protected group. One study by Babcock and Laschever (2003) found that starting salaries for male students graduating from Carnegie Mellon University with master’s degrees were about 7 percent higher (almost $4,000) than the starting salaries for similarly qualified women. Babcock and Laschever argue that this gap in part reflects differences in men’s and women’s willingness to negotiate. It may also reflect women’s perceptions about the labor market, expectations about the wages they’ll receive, and willingness to take a lower-wage job (Orazem, Werbel, & McElroy, 2003).

On a related front, several economic experiments have demonstrated that regardless of their actual work performance in a competitive setting and their beliefs about their performance, more women than men choose noncompetitive payment schemes over tournament (where a winner gets a prize and a loser gets nothing) or competition rates of payment for a task (Niederle & Vesterlund, 2005).

Indeed, when I checked “Figure 21. Key Variables Used in Regression Analysis, by Category”, negotiating ability or style isn’t listed as a variable. Given that, I’m perfectly willing to conceed that a 5% pay gap exists but I’m chalking it up to negotiating strategy rather than to overt discrimination. It’s also not surprising that after 10 years of negotiating less aggressively, a 5% gap could grow to a 12% gap. I don’t think you need to bring in the specter of active discrimination to explain that gap.

Secondly, Senator Grothman seems to say that the existing law was unfair because it would penalize employers who paid men and women differently on the basis of experience.

“Take a hypothetical husband and wife who are both lawyers,” he says. “But the husband is working 50 or 60 hours a week, going all out, making 200 grand a year. The woman takes time off, raises kids, is not go go go. Now they’re 50 years old. The husband is making 200 grand a year, the woman is making 40 grand a year. It wasn’t discrimination. There was a different sense of urgency in each person.”

The way I read the law, that actually isn’t the case.

Your employer may offer up a number of reasons for the differences in pay. It may point to a seniority system, a merit system, a system based on quality or quantity of work, or any other factor that accounts for the difference other than sex. Your employer could also try to argue that the jobs simply aren’t substantially similar. Ultimately, however, if your employer responds to the allegations with a valid nondiscriminatory reason for the difference in pay, you must show that the reasons given are pretextual, and that the true reason for the unequal compensation is based on your sex.

Unequal pay for unequal experience does seem to be a valid exception, under state law.

Third, if you’ll pardon my wordiness, I’ll proceed to the actual effect of the bill that Governor Walker signed last week. I had to go to an Illinois lawyer to find a good description. That this description isn’t in either The Raw Story’s article or the Daily Beast’s article just confirms my impression that both are sloppily written.

Here’s how the bills have been described.

According to Mr. May, the Assembly has recently passed two bills: the first “repeals an employee’s right to recover compensatory and punitive damages when they have proven in court that they were victims of workplace discrimination or harassment;” the second, according to Mr. May is a bill that repeals Wisconsin’s Equal Pay Act, “which guarantees women the same pay as men for doing the same work.”

Is that what happened?

What Mr. May does not mention is that compensatory and punitive damages were not available under the Wisconsin Fair Employment Act until 2009! So the Wisconsin Republicans’ bill would simply undo what the lawmakers perceive as a recent mistake—not some venerable feature of Wisconsin law.

Well, okay, but won’t victims of employment discrimination be left without a remedy? No, almost never. The Wisconsin Fair Employment Act is largely duplicative of the federal anti-discrimination laws, all of which allow the full panoply of damages. Indeed, one of the business lobby’s chief complaints is that the WFEA creates an unnecessary layer of administrative hearings, which of course cost money (and therefore increase the costs and risks of hiring employees, at the margins).

This is all a big misunderstanding. There is no such thing as the Equal Pay Act in Wisconsin. Instead, the 2009 Act that created the right to get compensatory and punitive damages under the WFEA—the Act discussed above that Republicans are now trying to appeal—was entitled the “Equal Pay Enforcement Act.” This is confusing because there is a federal law called the “Equal Pay Act,” which requires “equal pay for equal time.” But Wisconsin’s Equal Pay Enforcement Act actually has nothing to to with “equal pay for equal time”—it just provides for compensatory and punitive damages for the substantive laws passed previously. Since there is no separate Wisconsin Equal Pay Act, there is no separate bill to repeal it.

Wisconsin Law has a two-step process, when alleging an equal-pay violation.

Currently, an employee may file a complaint of workplace discrimination with Wisconsin’s Department of Workforce Development (DWD). The DWD has the power to investigate the claim, hold hearings and award an employee back pay, reinstatement, costs and attorneys’ fees upon a finding that the employer engaged in discrimination. Repealing the WFEA in the manner proposed will not take away any of these administrative proceedings or remedies. Instead, under current law, after an employee has already proved discrimination once at a hearing in the DWD, she has to then go to state court and again prove discrimination in order to recover compensatory and punitive damages. It is the right to go to state court to recover these damages that is in danger of being repealed.

Now that the “right to go to state court” has been repealed, employees will have to follow the federal process, to receive compensatory and punitive damages.

First, federal law mandates that, just like in Wisconsin, employees go through an administrative process at the Equal Employment Opportunity Commission (EEOC) before bringing suit. After that administrative procedure, the employee then must bring a lawsuit in federal court to recover any compensation. Thus, the federal system also requires both an administrative and judicial step to resolve these claims.

Over the past two decades, the United States has established one of the harshest systems of copyright enforcement in the world. Our domestic copyright law has become broader (it covers more topics), deeper (it lasts for a longer time), and more severe (the punishments for infringement have been getting worse). These standards were established through an alphabet soup of legislation: the No Electronic Theft (NET) Act of 1997, the Digital Millennium Copyright Act (DMCA) of 1998, and the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008. And every few years, there’s a call for more.

Many features of existing U.S. copyright law are harsh by international standards. The U.S. penalizes the attempt to access digital material against a rights-holder’s wishes, even when the material itself is not protected by copyright. We guarantee large monetary awards against infringers, with no showing of actual harm. We effectively require websites to cooperate with rights-holders to take down material, without requiring proof that it’s infringing in court. And our criminal copyright law has such a low threshold that it criminalizes the behavior of most people online, instead of targeting infringement on a true commercial scale.

I’d say there’s a strong argument to be made that we should be weakening U.S. copyright law—not strengthening it.

Visit This Link →

Here’s the bottom line.

What we have in this debate is a clash not between two liberty interests, but rather between two rights-claims – one negative (genuine), the other positive (counterfeit). All that is required for the exercise of a negative right (to self-ownership and, redundantly, liberty and one’s legitimately acquired belongings) is other people’s noninterference. (“When we say that one has the right to do certain things we mean this and only this, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof,” writes James A. Sadowsky, S.J.) But the fulfillment of positive rights requires that other people act affirmatively even if they don’t want to — say, by providing products or paying the bills. If one person’s freedom depends on the infringement of someone else’s freedom, the first claim is illegitimate. To hold otherwise is to reject the principle of equality.

This controversy is not about contraception. It’s about freedom versus compulsion.

And here’s the part that’s been driving me nuts for two weeks now. There are too many smart people repeating this line. Are they really that dumb? Or do they just think that everyone else is?

How exactly was the liberty to use contraception jeopardized by the Catholic exemption? In no way would a woman’s freedom in this respect be infringed simply because her employer was free to choose not to pay for her contraceptive products and services.

Yet advocates of Obamacare insist on conflating these issues. They repeatedly portray opposition to forced financing of contraception as opposition to contraception itself. (Alas, some conservatives have encouraged this conflation.) Must the difference really be spelled out?

Visit This Link →

We can strengthen our defense of liberty if we remember to keep in mind those who are struggling to make ends meet. What makes our Constitution such an extraordinary document is that, in making the United States the freest civilization in history, the Founders guaranteed that it would become the most prosperous as well. The American system of limited government, low taxes, sound money and the rule of law has done more to help the poor than any other economic system ever designed.

I want to talk today in particular about the last of those – the rule of law, which is absolutely essential to all the other benefits of our system, to the prosperity and freedom of our country, and to the well being of all Americans, especially the most vulnerable.

What is the rule of law? When the Declaration of Independence cited as justification “the laws of nature and of nature’s God,” the Founders were channeling Aristotle, who wrote that the rule of law in principle means that, quote, “God and intellect alone rule.”

Aristotle defined the law as “intellect without appetite,” by which he meant justice untainted by the self-interest of those in power.

The great difficulty we encounter in striving to meet Aristotle’s ideal was best summed up by James Madison: “if men were angels, no government would be necessary. And if angels were to govern men, neither external nor internal controls on government would be necessary.”

But, as Madison reminded us, men are no angels, and government is “administered by men over men.” Grounded in a proper understanding of human nature, our Founders tackled this challenge head-on with a brilliant Constitution and a healthy separation of powers, binding all men to the same set of laws and preventing any one man or group of men from gaining enough power to declare themselves above the law.

Do read the whole thing.

Visit This Link →

“This court is unwilling to declare that there is a fundamental right to consume the food of one’s choice without first being presented with significantly more developed arguments on both sides of the issue.”

“no, Plaintiffs to not have a fundamental right to own and use a dairy cow or a dairy herd;

“no, Plaintiffs do not have a fundamental right to consume the milk from their own cow;”

“no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice…”

If Americans don’t have a fundamental right to produce and consume the foods of their choice, what rights do they have?

Visit This Link →

“Caylee’s Law,” a proposed federal bill that would charge parents with a felony if they fail to report a missing child within 24 hours, or if they fail to report the death of a child within an hour.

Radley Balko points out the many reasons that such a law would be a stupendously bad idea, verging on being evil itself.

In an interview with CNN, Crowder concedes that she didn’t consult with a single law enforcement official before coming up with her 24-hour and 1-hour limits. This raises some questions. How did she come up with those cutoffs? Did she consult with any grief counselors to see if there may be innocuous reasons why an innocent person who just witnessed a child’s death might not immediately report it, such as shock, passing out, or some other sort of mental breakdown? Did she consult with a forensic pathologist to see if it’s even possible to pin down the time of death with the sort of precision you’d need to make Caylee’s Law enforceable? Have any of the lawmakers who have proposed or are planning to propose this law actually consulted with anyone with some knowledge of these issues?

What if a child dies while sleeping? When would you start the clock on the parent’s one-hour window to report? From the time the parent discovers the child is dead, or from the time the child actually dies? If it’s the former, can you really believe what a parent tells you if he knows a felony charge hinges on his answer? What if a parent or babysitter missed the deadline because she fell asleep at the time the child was playing outside and suffered a fatal accident? You could argue this is evidence of bad parenting or inattentive babysitting, but under those circumstances, do you really want to charge a grieving parent or heartbroken babysitter with a felony?

The portion of the bill that requires a parent to report a missing child within 24 hours is just as fraught with problems. When does that clock start? From the time the child actually gets abducted, gets lost, or is somehow killed, or at the time the parents noticed the child was missing? How do you pinpoint the time that they “noticed”? When teenager Rosie Larsen is abducted and murdered in the new AMC drama The Killing, it takes two days for her parents to notice she’s missing. They thought she was spending the night at a friend’s house, and she and her friends often rotated sleeping over at one another’s homes on the weekends. The Killing is fiction, but this isn’t an implausible scenario. Again, are we really so angry about the Casey Anthony verdict that we’re prepared to charge grieving parents with a felony because it takes them longer than some arbitrary deadline to notice their child is missing?

The law and the attention it attracts could also cause problems of overcompliance. How many parents will notify the authorities with false reports within an hour or two, out of fear of becoming suspects? How many such calls and wasted police resources on false alarms will it take before police grow jaded and begin taking note of missing child reports, but don’t bother investigating them until much later? How many legitimate abductions will then go uninvestigated during the critical first few hours because they were lost in the pile of false reports inspired by Caylee’s Law?

It isn’t difficult to come up with other scenarios where innocent people may get ensnared in Caylee’s Law.

Visit This Link →

Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

The already weak circumstantial evidence for a “murder” verdict is now even weaker. I still think there’s plenty of evidence to convict Ms. Anthony of being a horrible parent. But that’s not the same thing as proving, beyond any reasonable doubt, that she acted with deliberate premeditation to commit murder. Losing this piece of evidence just makes those doubts all the more reasonable.

Gandolf’s words to Frodo, from the Fellowship of the Ring still ring hauntingly true.

Many that live deserve death. Some that die deserve life. Can you give it to them, Frodo? Do not be too eager to deal out death in judgment. Even the very wise cannot see all ends.

For the second time in a year, Lawrence County Children and Youth Services has been accused in a federal lawsuit of removing a child from a mother’s custody after a positive test for opiates allegedly triggered by poppy seeds.

Eileen Ann Bower, a Lawrence County resident whose residence and age were not provided, gave birth to a son, Brandon, on July 13, 2009, according to a complaint filed late Friday. She was stunned, it said, when a blood test at Jameson Hospital came back positive for opiates.

Brandon was taken into foster care three days after his birth, it said, and only returned on Sept. 29. In the interim, Ms. Bower came to the conclusion that the test must have come back positive due to her ingestion, at her last meal before childbirth, of Salad Supreme dressing with poppy seeds . . .

As a repeatedly new parent, I have a hard time imagining a worse thing. This mother has had her right to due process of law violated rather blatantly. There was no evidence that chain of custody was preserved with her blood sample: do we know that the blood that was tested was actually hers? There was no evidence that the sample was collected appropriately: was it tainted somehow during the drawing process? There was no evidence presented that the traces in the blood were actually from opiates: could the traces have actually been from poppy seeds?

None of this evidence was presented, this mother was not convicted after receiving due process of law, and she wasn’t legally sentenced to losing custody of her child. No, the county agency took one look at one lab test and immediately assumed that they knew what was going on.

That’s wrong and it needs to stop. This is the second time that Pennsylvania county has done this. As Glenn Reynolds is apt to say: “Tar. Feathers.” That’s what will make this kind of abuse of power stop.

(Thanks to Radley Balko for the link.)

At the time, I thought that their case was exceedingly weak and more in the vein of a stupid Hail Mary attempt than a serious effort at practicing law. Today, I saw that the United States Court for the Western District of Wisconsin appears to agree with me. They denied the unions’ request for a temporary restraining order and/or preliminary injuction in quite plain terms. Check out the ruling [PDF].

If you don’t read the ruling, the breakdown of their argument shows you pretty clearly what they think. It’s not a final ruling yet but, if this is representative of what the court is thinking, the final ruling could be even more fun.

• “There Is A Rational Basis For The Differing Treatment Of General Employees And Public Safety Employees”
• “Plaintiffs’ Attempt To Reduce Act 10 To Crass Political Payback Fail”
• “Plaintiffs Have No Probability Of Success On The Merits Of Their First Amendment Claim, As That Claim Is Without Merit”
• “Plaintiffs Misstate The Nature Of Their Alleged Irreparable Harm”
• “The State And The Public Interest Will Suffer Great Irreparable Harm By The Issuance Of A Preliminary Injunction”
• “Plaintiffs Seek To Alter The Status Quo, Not Maintain It, By Asking For A Remedy That Will Result In A Completely New Set Of Collective Bargaining Statute”

The ruling is all kinds of good fun.