Month: March 2017

Seth Barrett Tillman: This Is What Is Wrong With The American Judiciary

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Excerpt:

For example, judges, like anyone else in any other role, want a reasonable amount of time to meet their responsibilities. So a compressed briefing and argument schedule is onerous. But all temporary restraining orders are onerous in just this way. That being so, it is difficult to credit why this all too common fact of judicial life is among the “worst conditions imaginable.” Bybee’s overstatement here is palpable.
 
Even more problematic, Judge Bybee states that “intense public scrutiny” is another of these “worst conditions imaginable.” That is a problem. Judges have extraordinary public power. They are supposed to be scrutinized, and that includes scrutiny by the wider public. The only legitimate question is whether the scrutiny is fair, not how “intense” it is. The First Amendment does not end at the courthouse door, nor do parties’ First Amendment rights end because they find themselves dragooned into litigation.
 
Moreover, it is wholly “out of … bounds” for an American judge to instruct litigants that their out-of-court statements are inconsistent with “effective advocacy.” Even if not specifically intended, the natural, probable, and expected effect of the dissent’s language is to chill constitutionally protected speech.* It amounts to a directive, from the court** to the lawyers before it, to instruct their clients to shut up during ongoing litigation. Bybee’s extraordinary language here demands a response from the public, the wider legal community, and the elected arms of the government.

Read the whole thing.

UPDATE: I Was Wrong

Free Trade with a Hostile Mercantilist Empire?

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2017 marks the 200 year anniversary of David Ricardo’s publication on the theory of comparative advantage that underlies the economic case for free trade. Several years later Frederic Bastiat wrote the satirical Candle Maker’s Petition debunking the arguments in favor of protectionism. This was an ironic choice, as candle makers were politically protected by the Founding Fathers as necessary for the Revolutionary War. These protections lasted several centuries, and in 2016 Senator Chuck Schumer sought it re-instated on grounds of unfair competition from China.

President Trump’s trade representative economist Peter Navarro is making both the political and economic case against free trade with China, which he considers a mercantilist trader with military ambitions hostile to the U.S.

Navarro’s political case is an update of that faced by the Founders regarding candle making. China is viewed as pursuing a trading strategy to accumulate wealth and technical know-how to challenge the U.S. militarily in the South China Sea and globally. China’s mercantilist trade practices result in huge export surpluses with the U.S. He argues that China uses this advantage to weaken America’s industrial base and future defensive capability.

While economists can’t reject this political concern out of hand, it does seem several decades premature given the relative size of the two countries’ navies. At present the US could quickly secure sources of supply for military purposes, and protectionism tends to linger for decades or even centuries.

The second case against free trade with a mercantilist trader relates mostly to the loss of jobs due to “unfair” competition, i.e., not due to inherent comparative economic advantages as much as political subsidies, in China’s case a purportedly cheapened currency and weak labor and environmental protections. The standard argument is that such trade generally benefits consumers at the expense of high cost producers, resulting in a less political more fair distribution of consumption as well as a higher overall level.

Read more

Music Review: The Rose of Roscrae

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This work by Tom Russell is a highly ambitious album:  a song-cycle, practically an opera, whose storyline extends from Ireland to the American West to the island of Molokai, where the priest Father Damien cared for outcast lepers.

In the title song, Johnny Dutton tells of being beaten up by the father of the beautiful 15-year-old Rose (after being caught in the hayloft with her) and making his way from Ireland to the United States, where he planned to live out the dreams he had absorbed from cheap novels of the West.

Johnny works for the legendary rancher Charlie Goodnight, but eventually turns to a life of crime.  He is caught and found guilty, but escapes.  He is pursued by his nemesis Augie Blood, US Marshal and evangelist, who travels in a prairie schooner (drawn by mules named Matthew, Mark, Luke, and John) with a cross on the sail and a saloon piano in the back on which he plays gospel tunes.

Will Johnny escape Augie Blood?  Will he ever be reunited with the Rose of Roscrae?  Will his longing for Ireland ever take him back to the Old Country?

A few of the songs:

The Rose of Roscrae

Doin’ Hard Time in Texas

I Talk to God

The Water is Wide / Overture

He Wasn’t a Bad Kid When He Was Sober.  (Russell got a letter from “a rather well-known Western artist” who apparently wanted him to write a song based on “new information that Billy the Kid was a real hero of sorts. A true Irishman and a friend of the Mexican poor.”  This song is Russell’s answer)

There are a LOT of performers on this album, in addition to Tom R himself, they include Johnny Cash, Ramblin’ Jack Elliott, Maura O’Connell, Ian Tyson, and Gretchen Peters.  There is even a Swiss Yodel Choir!

When I first heard this album, I liked it but didn’t think it quite measured up to TR’s earlier song-cycle, The Man from God Knows Where (link goes to my review)  But The Rose of Roscrae grows on you.  An exceptional piece of work, well-worth buying and listening to many times.

The album can be purchased at Amazon.  Also available is a bundle which includes the program guide / libretto as well as the album itself.

 

Seth Barrett Tillman: NPR’s Planet Money, President Trump, and the Foreign Emoluments Clause

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Noel King & Robert Smith, NPR Podcast #758, Can Trump Take the Money, NPR: Planet Money (Mar. 10, 2017), http://tinyurl.com/zg6cgte.
 

Noel King: Presidents and other elected officials have been so paranoid that they might seem to be in violation of [the Foreign Emoluments Clause] that they do everything they can to avoid it. In fact, in the handful of times it does come up it sounds ridiculous.
…
Noel King: Or if Presidents or other U.S. officials do accept gifts, they do what the [Foreign Emoluments] [C]lause says they got to do, they ask Congress for permission.

 
Dear Noel,
 
I listened to your full podcast. In fact, I listened to it twice. And then I delayed two days before writing you.
 
In your podcast (at 10:20ff), you state that Presidents have done “everything they can to avoid” application of the Foreign Emoluments Clause “or … they ask Congress for permission [to keep the gift].”
 
I find your willingness to make this claim more than a little troubling. You interviewed me for well over an hour, and you and I discussed in detail President George Washington’s diplomatic gifts: gifts which he received, acknowledged, and kept, absent any request for congressional consent.
 
[. . .]

Read Seth’s full post.