Antonin Scalia Professor, Harvard Law School

Category: Uncategorized (Page 3 of 25)

Back in New Haven: And fresh from a Torts exam, with a complex issue-spotter invoving hazardous chemicals, allegedly defective car seats, and the exposure of chimpanzees to Barry Manilow. (No joke.)

In other news, I came back from vacation to find the following on my answering machine. Disturbing, no?

“You have two messages:

“Message One:

“‘Hi, this is, uh, [name inaudible]. I’m having a little trouble again, Doctor. [cough] The tooth came out again, while I was eating. That was back on Friday, but I was awfully sorry about what I heard about your father — didn’t want to bother ya then. Get back to me as soon as you can, please? Thank you.’

“Monday, 2:42 p.m.

“Message Two:

“‘If you would like to discontinue this automated recording, press 1.

“‘An inmate from DONALD W. WYATT DETENTION FACILITY, DONALD W. WYATT DETENTION FACILITY, has attempted to place a call to this phone number.

“‘The call wasn’t able to complete, due to a collect call block with your local telephone company. If you would like to receive calls from DONALD W. WYATT DETENTION FACILITY in the future, please have this block removed, by calling your local telephone provider. Thank you. To repeat this message, press 3.’

“Monday, 7:07 p.m.

“End of Messages.”

Happy New Year! As recent events offer a sobering reminder of how tenuous life can be, best wishes for a safe, happy, healthy year to all.

This has been both a busy and relaxing break — in between studying for classes and thesis revision, I was able to spend some time at home with family, as well as to attend the wedding of two friends in Rockford, Ill. I’ve got exams as soon as I get back, so posting may be a little light in January.

One highlight: on my last day at home, I went to see Painted Prayers, an exhibition of medieval books of hours at the St. Louis Art Museum. As you probably know, I’m partial to medieval and renaissance art, especially books of hours, and these works were absolutely terrific. If any of you are in St. Louis before Jan. 9, you must go see the exhibition.

These books of hours were designed for personal use in a private home, where readers would return to them several times a day for the ‘hours’ of prayer. As a result, the manuscripts offered intricate designs and complex imagery to hold the reader’s attention in repeated readings. The books themselves were small and easy to hold; the museum wisely provided magnifying glasses in the exhibition, so that visitors could see the extraordinary level of detail in the painted miniatures. Unfortunately, some of the most memorable works aren’t available online, but some are in the Morgan Library’s digital collection — such as a simple but beautiful Nativity, a penitent Jerome in the desert, and an allegorical representation of Lust. (Note the checkered pavimento pattern in the latter, displaying an attempt at artistic perspective.)





The exhibit was very informative, explaining the unusual medieval system of marking time — complete with lunar-based “Golden Numbers,” Roman ‘kalends’ and Christian saints’ days — in the following calendar page for February:

The audiotour was also helpful — and as it turned out, I recognized some of the background music. To accompany an Annunciation scene, you could certainly do worse than Dufay’s Ave Maris Stella (buy it here or here). (Best line from the audiotour, concerning an “Annunciation to the Shepherds” by the Master of the Échevinage de Rouen: “At the bottom of the page, there’s a monkey, playing the bagpipes.” Haven’t you always wanted one of those?)

The promotional book is sold out, for good reason, and the exhibition will only be traveling to one more city. But if you’re within range of the Getty Museum when the exhibition reaches L.A. on October 18, 2005, make sure to check it out.

P.S.: I’ve been linking to Ross Douthat and The American Scene since way back, but I’m very pleased to see their recent resurgence (and guestblogging role!) with a new co-conspirator. Go read their stuff.

P.P.S.: Confidential to CLM — thank you for your interest in my writings on Missouri statutes concerning pornography and prostitution. Even were I inclined to assist you with Volume 2 of your DVD series, however, I have not yet passed the Missouri bar, and thus am not qualified to offer legal advice.

Leak of the Day: From the Washington Post:

IAEA Leader’s Phone Tapped

U.S. Pores Over Transcripts to Try to Oust Nuclear Chief

By Dafna Linzer

Washington Post Staff Writer

Sunday, December 12, 2004; Page A01

The Bush administration has dozens of intercepts of Mohamed ElBaradei’s phone calls with Iranian diplomats and is scrutinizing them in search of ammunition to oust him as director general of the International Atomic Energy Agency, according to three U.S. government officials.

But the diplomatic offensive will not be easy. The administration has failed to come up with a candidate willing to oppose ElBaradei, who has run the agency since 1997, and there is disagreement among some senior officials over how hard to push for his removal, and what the diplomatic costs of a public campaign against him could be.

Although eavesdropping, even on allies, is considered a well-worn tool of national security and diplomacy, the efforts against ElBaradei demonstrate the lengths some within the administration are willing to go to replace a top international diplomat who questioned U.S. intelligence on Iraq and is now taking a cautious approach on Iran.

The intercepted calls have not produced any evidence of nefarious conduct by ElBaradei, according to three officials who have read them. But some within the administration believe they show ElBaradei lacks impartiality because he tried to help Iran navigate a diplomatic crisis over its nuclear programs. Others argue the transcripts demonstrate nothing more than standard telephone diplomacy.

“Some people think he sounds way too soft on the Iranians, but that’s about it,” said one official with access to the intercepts.

I’m sure this sort of thing goes on all the time. In fact, if the U.S. didn’t tap ElBaradei’s phone, I think it would be almost criminal negligence on the part of our diplomatic services. But it can’t look good for our international image when we wiretap the IAEA, or spy on the Security Council.

So how did this get on the front page of the Post? The article makes it pretty clear that those in favor of keeping ElBaradei leaked the information, not to stop an unethical practice (cf. the Pentagon Papers), but rather to embarrass the other side in an intragovernmental policy debate. And that seems inexcusable to me. You can’t run a State Department with every piece of information you collect on the front page of the Post the next morning. The organization claims to have blown it off (“‘We’ve always assumed that this kind of thing goes on,’ IAEA spokesman Mark Gwozdecky said”), but foreign publics aren’t likely to react the same way — and the Post doesn’t put many non-stories on A1.

If the transcripts are really that inconclusive, could the benefits from the leak possibly have outweighed the danger that we’d push for a replacement? Whoever leaked to the Post ought to be fired, and quickly. We’ve got enough to worry about in stopping Iran’s nuclear programs without our own officials sabotaging our intelligence.

Thought for the Day: From Federico Fellini:

I wonder what . . . kind of evil spell could have fallen upon our generation, to explain how we started, all of a sudden, to look at the young as the messengers of who knows what absolute truth. The young, the young, the young . . . you would have thought that they had just arrived from outer space. . . . Only some form of collective madness could have made us consider children of fifteen . . . the master guardians of all truths.

(Quoted in Jed Rubenfeld, Freedom and Time 34.)

Spiderman to the Rescue: Ever wonder what insightful political analysis the bloggers are keeping to themselves? Here’s this morning’s instant-message discussion with Josh Chafetz:

S: http://nytimes.com/2004/12/08/

opinion/08simmons.html

S: Spiderman will save the Dems!

J: “the first competitive contest for party leader since 1988,” ???

S: has the DNC been contested much?

J: oh, by “party leader”, he means DNC chair?

S: yeah — that’s the election coming up

J: that’s kinda absurd

S: true

J: someone should tell that guy that spiderman’s a republican

J: I mean, why else would he keep wrapping himself in the flag

S: and wear a RED suit

J: with a spider on it! everyone knows all the voracious insects are republicans!

S: and basilisks vote democrat

J: exactly

S: only democrats speak parseltongue

J: actually, only wes clark speaks parseltongue

S: yesssssss…

S: wait — but aren’t fundamentalist snake handlers republicans?

J: exactly — they *handle* the snakes

J: beat them

J: abuse them

J: don’t identify with them

J: blue snakes

J: red snake handlers

S: what about the swing snakes?

J: the dangerous, but — for obvious reasons — endangered purple grass snake

Updating “The Jumbler”: Following the kind suggestion of a YLS classmate (to wit: “your word jumbler is junk and needs work”), I’ve decided to update the text-jumbling GAWK script to a new version. (Read about the program here.) Although the new code is slightly less elegant than the old, it now makes sure that the randomly jumbled word always differs from the original word, with a minor exception for repeated strings like “aaaa”. I usually prioritize elegance over functionality, but as they say, the customer is always king…

Two Years On: Well, after a prolonged absence, I’ve returned to posting, to note this blog’s birthday (and mine). I think it’s been a good two years thus far. The blog has risen far from its humble beginnings; it’s been alternately described as a “blog to add,” “utterly childish,” in “plain error,” etc. And these are somewhat happier times than last year, when I spent my birthday sick as a dog.

Unfortunately, I’ve found the blog much more difficult to maintain now that I’m out of Oxford and in law school, where we have actual work to do. Hopefully, though, I’ll find time to post more often. I’ll be using the holiday to stock up on food, reading, and much-needed sleep. Back on Monday.

Letter to the Editor: Just published in Harvard Magazine:

To the Editor:

I am astounded that [Professor Lisa L.] Martin can write an article on unilateralism and fail to mention Kosovo [“Self-Binding,” September-October, p. 33]. Unlike the United States-led invasion of Iraq, which could plausibly claim to enforce past UN resolutions, the NATO campaign against Serbia lacked even the shadow of UN authorization. I, for one, thought the Kosovo campaign was just and necessary, and that it illustrated the occasional need to step beyond multilateral bonds in protecting peace and security. Yet Martin’s failure to mention it, even as she accuses the current administration of merely “go[ing] through the motions” of seeking UN support, makes me wonder whether her “multilateralism” is simply another word for the approval of France and Germany.

Stephen E. Sachs ’02

New Haven, Conn.

A Tax Epiphany: I just realized something I should have understood four years ago. Ever since the Bush tax cuts were first discussed in the 2000 campaign, I’ve been persuaded by claims like the following:

CBO Report: Bush Tax Cuts Tilted to Rich

By Vicki Allen

Reuters

Saturday 14 August 2004

WASHINGTON – One-third of President Bush’s tax cuts have gone to the wealthiest 1 percent of Americans, shifting more burden to middle-income taxpayers, congressional analysts said on Friday.

The report by the nonpartisan Congressional Budget Office and calculations by congressional Democrats based on the CBO findings fueled the debate over the cuts between Bush and his Democratic challenger in November, Sen. John Kerry.

 Using the CBO’s figures, Democrats in Congress said the top 1 percent, with incomes averaging $1.2 million per year, will receive an average tax cut of $78,460 this year…

In contrast, the report showed that households in the middle 20 percent, with incomes averaging $57,000 per year, will receive an average cut of $1,090…

The CBO report said about two-thirds of the benefits from the cuts went to households in the top 20 percent, with an average income of $203,740…

Democrats said the CBO calculations, which they requested, confirm the view of independent tax analysts that the tax cuts enacted in 2001 and 2003 have heavily favored the wealthiest taxpayers.

Let’s consider a thought experiment where the government decides to cut the income tax by 50%. In particular, it decides to cut everyone’s income tax burden in half, so that everybody pays only half as much in income tax as they used to. The multi-gazillionaire who paid $4 gazillion in income taxes now pays $2 gazillion less; the working family that paid $1,000 gets a tax cut of only $500. As above, it seems like the gazillionaire gets a pretty sweet deal, and “the rich” (suitably defined) may very well receive most of the benefits.

What’s important to see, however, is that the new system may be just as progressive as the old. If before the cuts, the top 1 percent of income tax payers paid as much as the bottom 20 percent, then after the cuts, they’ll still pay as much as the bottom 20 percent–both tax burdens will just be half as much as before. In terms of the total tax burden, since everyone’s fell by half, the proportion borne by the top 1 percent will be unchanged. In other words, a tax cut which offers disproportionate benefits to the wealthy, in absolute terms, may be perfectly equal in relative terms, and may represent a progressivity-neutral change to the tax code. The absolute benefits are disproportionate only because the wealthy’s tax payments were disproportionately large to begin with.

That’s why, for example, the Bush tax cuts can plausibly be described as progressive–as long as one is looking solely at the income tax. (More on this below.) The rich may receive much greater absolute amounts than the poor, but that doesn’t imply anything about their share of the tax burden. And according to other analyses of the CBO figures, the share of the income tax burden borne by the wealthy in fact shifted slightly upward, and that of the poor fell.

I came to these conclusions after reading Steven Landsburg’s piece in Slate, which has provoked an energetic response by John Quiggin at Crooked Timber. Quiggin, as I understand him, makes three (non-ad-hominem) arguments against Landsburg’s analysis.

One argument is that Landsburg’s piece is “hopelessly biased” because it employs the “presentational trick” of separating relative and absolute reductions in taxes. Suppose the wealthy pay a 40 percent income tax, and the poor pay 10 percent; these rates are then cut to 30 and 5, respectively. Quiggin notes that the high-earners have “[c]learly . . . gained twice as much, relative to pretax income”; their rate fell by 10 points, while the poor’s tax rate fell by only 5 points. But that’s just another way of restating the initial claim. What Quiggin doesn’t accept is that the wealthy’s share of the tax burden has increased; they’re still paying three-fourths of their previous tax bill, while the poor are only paying half. This result is made even more clear if we cut the rates further, to 20 and 0. The wealthy have still saved twice as much as the poor, relative to pretax income–but since they now bear all of the tax burden, it’s hard to describe that as deeply unfair.

A second argument, which Quiggin mentions in passing, is that the rich pay less in taxes than the rates would imply, because they have more access to sharp lawyers and tax loopholes. That’s true, and that’s a problem, but it also doesn’t imply anything at all about a change in the tax system–which may or may not increase cheating. If the wealthy only paid 2/3 of what they were supposed to before, then after a proportional change they’ll still be paying 2/3 of what they’re supposed to–which means their actual share of the tax burden will be unchanged. (Lowering marginal tax rates on the wealthy would, if anything, diminish this effect, since it reduces the financial incentive to cheat.)

A third argument, and ultimately the only successful one, is that the income tax doesn’t tell the whole story. The taxes that have been cut in recent years–on Income, corporate income, and capital gains–are borne primarily by the rich, while the taxes that weigh most heavily on the poor, like sales taxes and the Social Security payroll tax, have largely been left unchanged. Thus, no matter how progressive your income tax cuts might be, the net result to the system might be a greater burden on the poor. In fact, if you fill in the ellipses from the Reuters report above, the Congressional Democrats found that the share of the tax burden of the top 1 percent has fallen by about 2 points to 20.1 percent, while the share of the middle quintile of taxpayers has risen from 10.4 to 10.5 percent. So the Bush tax cuts were slightly imbalanced in their effects–but not dramatically so, as Landsburg’s graph shows here.

None of this is to say that equal absolute reductions, like cutting everyone an equal $300 check, would necessarily be wrong. In fact, I thought the $300 rebate was the best part (some would say the only good part) of the Bush tax cuts. But we can’t pretend that equal absolute reductions are the only neutral way to cut taxes. The fallacy here is to look at the tax cut as if it were a spending program, cutting $78,000 checks to the wealthy and $1,000 checks to the poor; if we assume a completely neutral tax system beforehand, such a spending program would rightly be reviled. Under our system, though, the revulsion ignores the fact that we’re starting from an already-progressive base. Since we’re already extracting more money from the rich, giving everyone an equal check isn’t a neutral change–it increases the redistributive aspects of the system, shifting money from rich to poor.

Again, more redistribution may be a good idea. (Under certain limits, since high marginal rates have distortionary effects.) But it’s one thing to say that the tax system ought to be more progressive than it is now; it’s quite another to assume that equal proportional reductions will make it worse.

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