A little over a century ago, a great and enduring myth was born. Muckraking novelist Upton Sinclair wrote a novel entitled The Jungle—a tale of greed and abuse that still reverberates as a case against a free economy. Sinclair’s “jungle” was unregulated enterprise; his example was the meat-packing industry; his purpose was government regulation. The culmination of his work was the passage in 1906 of the Meat Inspection Act, enshrined in history, or at least in history books, as a sacred cow (excuse the pun) of the interventionist state.A century later, American schoolchildren are still being taught a simplistic and romanticized version of this history. For many young people, The Jungle is required reading in high-school classes, where they are led to believe that unscrupulous capitalists were routinely tainting our meat, and that moral crusader Upton Sinclair rallied the public and forced government to shift from pusillanimous bystander to heroic do-gooder, valiantly disciplining the marketplace to protect its millions of victims.But this is a triumph of myth over reality, of ulterior motives over good intentions. Reading The Jungle and assuming it’s a credible news source is like watching The Blair Witch Project because you think it’s a documentary.....Most Americans would be surprised to know that government meat inspection did not begin in 1906. The inspectors Holbrook cites as being mentioned in Sinclair’s book were among hundreds employed by federal, state, and local governments for more than a decade. Indeed, Congressman E. D. Crumpacker of Indiana noted in testimony before the House Agriculture Committee in June 1906 that not even one of those officials “ever registered any complaint or [gave] any public information with respect to the manner of the slaughtering or preparation of meat or food products.”To Crumpacker and other contemporary skeptics, “Either the Government officials in Chicago [were] woefully derelict in their duty, or the situation over there [had been] outrageously overstated to the country.” If the packing plants were as bad as alleged in The Jungle, surely the government inspectors who never said so must be judged as guilty of neglect as the packers were of abuse.Some 2 million visitors came to tour the stockyards and packinghouses of Chicago every year. Thousands of people worked in both. Why did it take a novel, written by an anticapitalist ideologue who spent but a few weeks in the city, to unveil the real conditions to the American public?All the big Chicago packers combined accounted for less than 50% of the meat products produced in the United States, but few if any charges were ever made against the sanitary conditions of the packinghouses of other cities. If the Chicago packers were guilty of anything like the terribly unsanitary conditions suggested by Sinclair, wouldn’t they be foolishly exposing themselves to devastating losses of market share?In this connection, historians with an ideological axe to grind against the market usually ignore an authoritative 1906 report of the Department of Agriculture’s Bureau of Animal Husbandry. Its investigators provided a point-by-point refutation of the worst of Sinclair’s allegations, some of which they labeled as “willful and deliberate misrepresentations of fact,” “atrocious exaggeration,” and “not at all characteristic.”Instead, some of these same historians dwell on the Neill-Reynolds Report of the same year because it at least tentatively supported Sinclair. It turns out that neither Neill nor Reynolds had any experience in the meat-packing business and spent a grand total of two and a half weeks in the spring of 1906 investigating and preparing what turned out to be a carelessly written report with predetermined conclusions. Gabriel Kolko, a socialist but nonetheless a historian with a respect for facts, dismisses Sinclair as a propagandist and assails Neill and Reynolds as “two inexperienced Washington bureaucrats who freely admitted they knew nothing” of the meat-packing process. Their own subsequent testimony revealed that they had gone to Chicago with the intention of finding fault with industry practices so as to get a new inspection law passed.According to the popular myth, there were no government inspectors before Congress acted in response toThe Jungle, and the greedy meat packers fought federal inspection all the way. The truth is that not only did government inspection exist, but meat packers themselves supported it and were in the forefront of the effort to extend it so as to ensnare their smaller, unregulated competitors.When the sensational accusations of The Jungle became worldwide news, foreign purchases of American meat were cut in half and the meat packers looked for new regulations to give their markets a calming sense of security. The only congressional hearings on what ultimately became the Meat Inspection Act of 1906 were held by Congressman James Wadsworth’s Agriculture Committee between June 6 and 11. A careful reading of the deliberations of the Wadsworth committee and the subsequent floor debate leads inexorably to one conclusion: knowing that a new law would allay public fears fanned by The Jungle, bring smaller rivals under controls, and put a newly laundered government seal of approval on their products, the major meat packers strongly endorsed the proposed act and only quibbled over who should pay for it.In the end, Americans got a new federal meat inspection law, the big packers got the taxpayers to pick up the entire $3 million price tag for its implementation, as well as new regulations on the competition, and another myth entered the annals of anti-market dogma.To his credit, Sinclair actually opposed the law because he saw it for what it really was—a boon for the big meat packers. He had been a fool and a sucker who ended up being used by the very industry he hated. But then, there may not have been an industry that he didn’t hate.
Friday, October 31, 2014
#29 – "Upton Sinclair's ‘The Jungle' Proved Regulation Was Required" : The Freeman : Foundation for Economic Education
#29 – "Upton Sinclair's ‘The Jungle' Proved Regulation Was Required" : The Freeman : Foundation for Economic Education
Thursday, October 30, 2014
'The Bell Curve' 20 years later: A Q&A with Charles Murray
'The Bell Curve' 20 years later: A Q&A with Charles Murray
October marks the 20th anniversary of “The Bell Curve: Intelligence and Class Structure in American Life,” the extraordinarily influential and controversial book by AEI scholar Charles Murray and Richard Herrnstein. Here, Murray answers a few questions about the predictions, controversy, and legacy of his book.
October marks the 20th anniversary of “The Bell Curve: Intelligence and Class Structure in American Life,” the extraordinarily influential and controversial book by AEI scholar Charles Murray and Richard Herrnstein. Here, Murray answers a few questions about the predictions, controversy, and legacy of his book.
Monday, October 27, 2014
Minimum wage, maximum damage | WashingtonExaminer.com
Minimum wage, maximum damage | WashingtonExaminer.com
There are few policies more popular than increasing the federal minimum wage. In a 2013 Gallup poll, 76 percent of respondents approved of the idea. It seems to make economic and moral sense on an intuitive level. President Obama reflected this sentiment in his Oct. 11 weekly radio address, saying, “We believe that in America, nobody who works full time should ever have to raise a family in poverty. … America deserves a raise right now.”
Yet most economists oppose the concept of a minimum wage at all, and data back them up. In fact, the minimum wage harms those it is intended to help.
The federal minimum is now $7.25 an hour, but it is higher in some states and municipalities. There is a movement, headed by the president, to raise this to $10.10 an hour, with the ostensible goal of reducing poverty and inequality. Some states and cities are on board. California will raise its minimum to $10 on Jan. 1, 2016, and San Diego will raise it to $10.50 on the same date, with another dollar on top of that a year later. SeaTac, Washington, the area around Seattle-Tacoma International Airport, has already raised its minimum to $15 an hour with unhappy consequences, as we shall see.
Most economists agree that the minimum wage cannot achieve its aim. Harvard economist Greg Mankiw’s “Ten things economists believe” is a list of statements that members of the economics profession finds uncontroversial. Here is one of the statements: “A minimum wage increases unemployment among young and unskilled workers.” This proposition is supported by 79 percent of economists.
James M. Buchanan, Nobel Prize winner for economics in 1986, put it thus:
“Just as no physicist would claim that 'water runs uphill,’ no self-respecting economist would claim that increases in the minimum wage increase employment. Such a claim, if seriously advanced, becomes equivalent to a denial that there is even minimal scientific content in economics, and that, in consequence, economists can do nothing but write as advocates for ideological interests.”
The overwhelming majority of empirical studies into the effects of the minimum wage find that it erodes employment. In 2007, David Neumark of the University of California-Irvine and William Wascher of the Federal Reserve surveyed over 100 minimum wage studies published since the early 1990s. They discovered that over two-thirds of them found negative effects on employment, while only about an eighth found positive effects. Worse, those studies that focused on the low-skilled people including youths found particularly bad damage done.
Wascher and Irvine also looked at the quality of the studies. They found 33 studies that were robust to most criticisms, of which 28 found negative employment effects. (Notably, much of the evidence for positive employment effects in the larger sample came from the United Kingdom rather than the United States, and that those studies may have failed to account for complicating factors during the 1980s, when the UK had sector-specific minimum wages. But the more recent evidence from the UK’s introduction of a national minimum wage in 1997 mirrors the American evidence.)
The federal minimum wage was raised in 2007, and again in a couple of steps until 2009. There has been recent research into the effects of that increase. One study, by Aspen Gorry of the University of California-Santa Cruz, focuses on the effect on youth unemployment. He found that minimum wages effect unemployment, especially youth unemployment, “because they interact with a worker’s ability to gain job experience.” While the minimum wage increase pushed the general unemployment rate 0.8 of a percentage point higher over the study period (compounding the misery of the economic downturn), the unemployment rate for 15- to 24-year-olds surged by almost 3 percentage points.
Gorry also looked at youth unemployment in France, where the minimum wage is about $12 per hour, considerably more than America’s, and where the youth unemployment rate has hovered around 24 percent, double the U.S. rate. Gorry finds that the different minimum wage levels account for nearly the entire difference between France’s and America’s youth jobless rates. That means France could find jobs for about half its unemployed youngsters by reducing its minimum wage to American levels.
Such a preponderance of evidence is reflected in official studies. When the Congressional Budget Office earlier this year reviewed the probable effects of a minimum wage increase to $10.10 an hour, it took into account the findings of over 60 studies on the issue. The CBO report suggested that the increase would help lift 900,000 families above the poverty line, as the president touted, but at the cost of killing the jobs of half a million other people.
The minimum wage transfers resources not from the rich to the poor, but among the poor. Some of America’s least well-off workers would get a raise, but many more others would see theirs hours cut, or lose their jobs entirely. Obama’s radio address concluded, “America should forever be a place where your hard work is rewarded.” But those whose jobs are destroyed by a minimum wage increase have neither hard work nor reward.
So why is the minimum wage so popular? The answer is that there are economic effects that are seen and others that are not seen, as the great French economist Frederic Bastiat noted. As he explained, any new economic policy “gives birth not only to an effect, but to a series of effects. Of these effects, the first only is immediate; it manifests itself simultaneously with its cause — it is seen. The others unfold in succession — they are not seen.” In the case of the minimum wage, what is seen is the increase in many workers’ pay packets. What is not seen is workers losing their jobs.
The public may not attribute those job losses to a minimum wage increase, blaming instead other factors such as increasing automation, a company’s contraction, or an employer’s greed. Yet the underlying reason is the same in all these cases: A corporation invests in a machine because it is less expensive than paying workers the higher minimum wage, the company contracts because it cannot afford to keep the same number of workers with the same wage budget, and the employer, far from being greedy, sees the new wage cutting into his bottom line and he chooses to do other things rather than pay a marginally effective worker more than he thinks he is worth.
Yet job losses are just the beginning of the unseen effects. There are other workers, particularly inexperienced young ones, who will not be hired in the first place because the cost of their wages is too high. As Gorry found, jobs that never come into being prevent potential workers from gaining experience. Young would-be workers are denied the chance to gain basic job skills. Instead, they set off down the road to long-term unemployment. This is what is happening in France.
Those who lose their jobs or never get them are not the only ones to suffer. Even those workers who keep their jobs and are paid a higher wage and are “lifted out of poverty” often fail to account for these changes.
One unintended consequence is that taxes on wage earners go up. A higher minimum wage can make employers less inclined to offer non-wage benefits such as generous leave policies or insurance, as well as on-the-job perks such as free meals and parking. Non-cash perks such as parking and food are not taxed. But when these non-wage benefits are converted to wages, they become subject to income and sales taxes. So not only do workers have to pay for perks that used to be free, they get taxed for them, too. ....
Sunday, October 26, 2014
The State is No Friend of the Worker - Reason.com
The election season is upon us, and we're hearing the usual political promises about raising wages. Democrats pledge to raise the minimum wage and assure equal pay for equal work for men and women. Republicans usually oppose those things, but their explanations are typically lame. ("The burden on small business would be increased too much.") Some Republicans endorse raising the minimum wage because they think opposition will cost them elections. There's a principled stand.
In addressing this issue, we who believe in freeing the market from privilege as well as from regulation and taxes should be careful not to imply that we have free markets today. When we declare our opposition to minimum-wage or equal-pay-for-equal-work legislation, we must at the same time emphasize that the reigning corporate state compromises the market process in fundamental ways, usually to the detriment of workers. Therefore, not only should no new interference with the market be approved, but all existing interference should be repealed forthwith. If you omit that second part, you'll sound like an apologist for the corporatist status quo. Why would you want to do that?
The fact is that no politician, bureaucrat, economist, or pundit can say what anyone's labor is worth. That can only be fairly determined through the unadulterated competitive market process. Perhaps ironically (considering libertarians' individualism), it's a determination we make collectively and continuously as we enter the market and demonstrate our preferences for various kinds of services through our buying and abstaining.
If the market is free of competition-inhibiting government privileges and restrictions, we may assume that wages will roughly approximate worth according to the market participants' subjective valuations. This process isn't perfect; for one thing, preferences change and wage and price adjustments take time. Moreover, racial, ethnic, and sexual prejudice could result, for a time, in wage discrimination. (See Roderick Long's excellent discussion of the wage gap, "Platonic Productivity.")
The surest way to eliminate wage discrimination is to keep government from impeding the competitive process with such devices as occupational licensing, permits, minimum product standards, so-called intellectual property, zoning, and other land-use restrictions. All government barriers to self-employment — and these can take implicit forms, such as patents and raising the cost of living through inflation, or burdening entrepreneurs with protectionist regulation — make workers vulnerable to exploitation. Being able to tell a boss, "Take this job and shove it," because alternatives, including self-employment, are available, is an effective way to establish the true market value of one's labor in the marketplace. With the collapsing price of what Kevin Carson calls the "technologies of abundance" (think of information technology and digital machine tools), sophisticated small-scale enterprise — and the independence it represents — is more feasible than ever.
Patterico's Pontifications » WaPo Publishes Scientific Evidence of Voter Fraud on a Massive Scale — As Previously Predicted By This Here Very Blog
Patterico's Pontifications » WaPo Publishes Scientific Evidence of Voter Fraud on a Massive Scale — As Previously Predicted By This Here Very Blog
What you are about to read should be front-page news in every newspaper in the country tomorrow. You know it won’t be — but I want you to treat it as that important . . . because it is. Jesse Richman and David Earnest write in the Washington Post:
Could control of the Senate in 2014 be decided by illegal votes cast by non-citizens? Some argue that incidents of voting by non-citizens are so rare as to be inconsequential, with efforts to block fraud a screen for an agenda to prevent poor and minority voters from exercising the franchise, while others define such incidents as a threat to democracy itself. Both sides depend more heavily on anecdotes than data.This is astonishing — but Richman and Earnest fail to convey just how astonishing it is . . . because they don’t explain how many people they are talking about.
In a forthcoming article in the journal Electoral Studies, we bring real data from big social science survey datasets to bear on the question of whether, to what extent, and for whom non-citizens vote in U.S. elections. Most non-citizens do not register, let alone vote. But enough do that their participation can change the outcome of close races.
Our data comes from the Cooperative Congressional Election Study (CCES). Its large number of observations (32,800 in 2008 and 55,400 in 2010) provide sufficient samples of the non-immigrant sub-population, with 339 non-citizen respondents in 2008 and 489 in 2010. For the 2008 CCES, we also attempted to match respondents to voter files so that we could verify whether they actually voted.
How many non-citizens participate in U.S. elections? More than 14 percent of non-citizens in both the 2008 and 2010 samples indicated that they were registered to vote. Furthermore, some of these non-citizens voted. Our best guess, based upon extrapolations from the portion of the sample with a verified vote, is that 6.4 percent of non-citizens voted in 2008 and 2.2 percent of non-citizens voted in 2010.
Allow me to remedy that.
The progressive think tank Center for American Progress puts the number of noncitizens in the U.S. at 22.1 million in 2012. Of these, “13.3 million were legal permanent residents, 11.3 million were unauthorized migrants, and 1.9 million were on temporary visas.” These numbers are roughly consistent with numbers offered by the Department of Homeland Security (.pdf) and Kaiser Health News. So let’s take 22 million as our number of noncitizens.
Richman and Earnest estimate that 6.4% of noncitizens voted in 2008. 6.4% of 22 million is 1,408,000.
That’s 1.4 million illegal votes likely cast in the presidential election of 2008.
Richman and Earnest also estimate that 2.2% of noncitizens voted in 2010. (In off-year elections, such as 2010 and the approaching election in 2014, turnout is obviously lower.) 2.2% of 22 million is 484,000. That’s nearly half a million illegal votes likely cast in the election of 2010 (and the same number could be cast in the upcoming election).
How important is this? Richman and Earnest say:
Because non-citizens tended to favor Democrats (Obama won more than 80 percent of the votes of non-citizens in the 2008 CCES sample), we find that this participation was large enough to plausibly account for Democratic victories in a few close elections. Non-citizen votes could have given Senate Democrats the pivotal 60th vote needed to overcome filibusters in order to pass health-care reform and other Obama administration priorities in the 111th Congress.
I don’t like to say I told you so, but . . . ah, hell. Y’all know I actually love to say I told you so. And I have, repeatedly. In November 2008, I cited reports that huge increases in Latino voter registration had accompanied huge increases in illegal immigrant populations, and argued that this was probably not a coincidence. As I said then:
It certainly seems logically possible that there were hundreds of thousands, if not millions, of illegal votes cast in this past election. If this is true, it is possible that illegal immigrants decided this election.
If Richman and Earnest are correct, there may well have been hundreds of thousands, indeed almost a million and a half, votes cast by noncitizens (including legal residents who may not vote in federal elections, as well as illegals). And I argued in 2010:
Over time, as our population increases, your vote becomes worth less and less. This problem is exacerbated by factors such as voter fraud. Oh, I know: the liberals all assure us that there is no such thing. But let’s just take one likely rich vein of illegal votes: votes cast by illegal immigrants. What’s that, you say? Votes cast by illegal immigrants? Yes. Estimates say that there are anywhere from 10 million to 18 million illegal immigrants in the country. This means millions are of voting age. What’s more, many of them are experts at obtaining false documents, allowing them to work, drive, and participate in all other aspects of civic life. Do we really think that none of them vote? None? Let’s go with a conservative estimate of 10,000,000 illegal immigrants. If only one percent of them vote — just one percent! — that’s 100,000 illegal votes. That is voter fraud on a massive scale — certainly enough to tip a close election. This sort of thing dilutes your vote.
One percent? In 2010, Richman and Earnest say it was more than two percent, and in 2008 it was more than six percent. And again, I overlooked the population of legal noncitizen permanent residents, which more than doubles the number of people we are talking about. But, although my numbers were conservative, I will modestly concede that I totally nailed the main point — which is: hundreds of thousands of illegal votes are potentially being cast in every federal election, and nobody talks about it.
Always trust content from Patterico.
P.S. I can’t leave this post without noting this by Richman and Earnest:
We also find that one of the favorite policies advocated by conservatives to prevent voter fraud appears strikingly ineffective. Nearly three quarters of the non-citizens who indicated they were asked to provide photo identification at the polls claimed to have subsequently voted.Really? That’s “strikingly ineffective”? (Well, yeah, it could be a lot better. But read on.)
The converse of that is that more than a quarter of the people who were asked for voter ID did not vote. We’re not told how many of the 1.4 million who voted illegally in the 2008 election were asked for IDs, but if voter ID laws were in effect in all 50 states, rather than only about 15 states, we might see over 25% of 1.4 million illegal votes prevented in a presidential election. That’s over 350,000 illegal votes that could potentially be prevented by voter ID laws.
Now: I’m perfectly happy to consider other means for preventing illegal voting. But voter ID laws work, and this study helps prove it.
This is hugely important, folks. Bookmark this post, right now. The next time people try to tell you there is no such thing as voter fraud, I want you to take this link and shove it right down their throats.
P.P.S. The authors do say: “Finally, extrapolation to specific state-level or district-level election outcomes is fraught with substantial uncertainty.” We can’t know for sure whether the extrapolation I present here is overstated, understated, or completely accurate. But one thing we can say: despite the false claims by the left, there is definitelymassive voter fraud occurring in every federal election.
Friday, October 24, 2014
Iraq's WMD: The Shameless New York Times Moves the Goalposts - Larry Elder - Page full
Iraq's WMD: The Shameless New York Times Moves the Goalposts - Larry Elder - Page full
Contrary to the expectations of all 16 of our U.S. intelligence agencies, the "weapons hunters" sent to Iraq by President George W. Bush found no "stockpiles" of WMD.Never mind that there was a 15-month run-up to the war, during which time Saddam was not combing his moustache. A former Iraqi general, Georges Sada, who met with members of Congress, has long claimed Saddam Hussein moved tons of WMD by land and air into Syria during the run-up to the 2003 invasion. James Clapper, the current Director of National Intelligence, has also said publicly that he, too, believes the WMD were there. But Bush's two weapons hunters found no stockpiles.President George W. Bush looked like a fool.Bush-hating critics chanted, "Bush lied, people died." About the prewar intelligence, Sen. Ted Kennedy said, "Before the war, week after week after week after week, we were told lie after lie after lie after lie." Critics said the lives of over 4,000 troops were wasted, in addition to the money supposedly squandered prosecuting the Iraq War.Now comes the 10,000-word, eight-part story in The New York Times. The front-page story, called "The Secret Casualties Of Iraq's Abandoned Chemical Weapons," says WMD were in Iraq: "In all, American troops secretly reported finding roughly 5,000 chemical warheads, shells or aviation bombs, according to interviews with dozens of participants, Iraqi and American officials, and heavily redacted intelligence documents obtained under the Freedom of Information Act."Moreover, the soldiers were told to keep quiet about the WMD:"Troops and officers were instructed to be silent or give deceptive accounts of what they had found. ?'Nothing of significance' is what I was ordered to say,' said Jarrod Lampier, a recently retired Army major who was present for the largest chemical weapons discovery of the war: more than 2,400 nerve-agent rockets unearthed in 2006 at a former Republican Guard compound."Jarrod L. Taylor, a former Army sergeant on hand for the destruction of mustard shells that burned two soldiers in his infantry company, joked of 'wounds that never happened' from 'that stuff that didn't exist.' The public, he said, was misled for a decade. 'I love it when I hear, 'Oh there weren't any chemical weapons in Iraq,' he said. 'There were plenty.'"This is not new news to those who get news from publications other than the Times. Following a 2010 WikiLeaks leak, Wired magazine wrote: "By late 2003, even the Bush White House's staunchest defenders were starting to give up on the idea that there were weapons of mass destruction. But WikiLeaks' newly-released Iraq war documents reveal that for years afterward, U.S. troops continued to find chemical weapons labs, encounter insurgent specialists in toxins and uncover weapons of mass destruction (emphasis added). ... Chemical weapons, especially, did not vanish from the Iraqi battlefield. Remnants of Saddam's toxic arsenal, largely destroyed after the Gulf War, remained. Jihadists, insurgents and foreign (possibly Iranian) agitators turned to these stockpiles during the Iraq conflict -- and may have brewed up their own deadly agents."But, rest assured, the Times emphatically insists, the discovered WMD "did not support the government's invasion rationale." It doesn't? Well, you see, according to the Times, Bush still misled Americans because the discovered WMD were "old" and "degraded," not part of an "active" weapons program. "Active?"But only days before the bombshell Times piece, MSNBC's Rachel Maddow restated why she felt Bush "lied." Not once during her three-minute send-up about Bush "lies" and "wrong" intel, did Maddow ever use the word "active," let alone the term "active weapons program":"There still exists -- on the right -- a sort of dead-ender fringe who believe thatactually Saddam Hussein really did have weapons of mass destruction. He must have. George Bush couldn't have been wrong about that. I say it's a dead-ender fringe because even ... George W. Bush had to admit he was wrong about weapons of mass destruction. Iraq did not have them. ..."We are four weeks out from the elections this year. It is 10 years today since our own government officially admitted the whole WMDs thing about Iraq was a lie. It's not like an accusation that it was a lie. It's a lie. We've admitted it was a lie."Maddow then handed the floor to colleague Lawrence O'Donnell, who promptly piled on. But again O'Donnell, like Maddow, said nothing about "active": "Rachel, I wish this wasn't true, but I do have a prediction for you -- and that is that you have not done your last segment about a Republican who believes that there were (starts laughing) weapons of mass destruction in Iraq."Now we know. WMD were, in fact, in Iraq.The New York Times, Democrats and the doofi at MSNBC should apologize to President George W. Bush, an honorable man who attempted to do the right thing, only to be savaged by his critics. Fox's Charles Krauthammer has a term for this inability to acknowledge a scintilla of decency in our 43rd president -- "Bush Derangement Syndrome."
How Sexy is Affirmative Consent?
Source: Advice Goddess Blog
How Sexy Is "Affirmative Consent"?
Conor Friedersdorf, at The Atlantic, blogged an email from a guy who "began college determined to ask women for explicit verbal consent during sexual encounters, but abandoned that approach over time." The guy writes:
I was raised by a left-leaning, feminist family who (at least I thought at the time) were relatively open about sex. But while I arrived at college with a healthy respect for women, I was totally unprepared for the complex realities of female sexuality.
"Oh," sighed one platonic female friend after we had just watched Harrison Ford grab Alison Doody and kiss her is Indiana Jones and the Last Crusade, "Why don't guys do that kind of thing anymore? Now days they are all too scared."On our second night together, one of my first partners threw up her hands in disgust. "How am I supposed to get turned on when you keep asking for permission for everything like a little boy?" She said. "Just take me and fuck me already."She didn't stay with me for long.This would be a recurring theme. More than once I saw disappointment in the eyes of women when I didn't fulfill the leadership role they wanted me to perform in the bedroom. I realized that women don't just desire men, they desire men's desire―and often they don't want to have to ask for it. I also realized that I was in many ways ashamed of my own sexual desire as a man, and that this was not healthy....One night I ended up back in a girl's room after a first date (those do happen in college). She had invited me in and was clearly attracted to me. We were kissing on her bed, outer layers of clothing removed, but when my hands wandered downward she said, "No, wait." I waited. She began kissing me again, passionately, so again I moved to remove her underwear. "Stop," she said, "this is too fast." I stopped."That's fine," I said. I kissed her again and left soon after, looking forward to seeing her again.But my text messages received only cold, vaguely angry replies, and then silence. I was rather confused. Only many weeks later did I find out the truth from one of her close friends: "She really wanted you, but you didn't make it happen. She was pretty upset that you didn't really want her.""Why didn't she just say so then, why did she say we were moving too fast?""Of course she said that, you dumbass. She didn't want you to think she was a slut."Talk about confusing. Apparently in this case even no didn't mean no. It wasn't the last time I've come across "token resistance" that is intended to be overcome either. But that's a line that I am still uncomfortable with testing, for obvious reasons.But I have learned not to ask when it clearly isn't necessary, or desired.There's a name for a guy like this -- at least on college campuses: "rapist."
Wednesday, October 22, 2014
How Will Voting Litigation Affect the Upcoming Elections? | National Review Online
How Will Voting Litigation Affect the Upcoming Elections? | National Review Online
In Texas, to no one’s surprise, Obama appointee Nelva Gonzalez Ramos of the federal district court in Corpus Christi issued an injunction against the state’s voter-ID law despite the fact that it was successfully implemented in state elections in 2013 with none of the problems predicted by its opponents. As opposed to suppressing anyone’s vote, 2013 voter turnout actually went up compared to 2011 levels. This held true throughout the state, including its heavily minority counties.
Ramos made the remarkably illogical claim that, although Texas offers a free ID to anyone who doesn’t have one, the ID requirement still amounts to a prohibited poll tax. Her decision is an outlier. Federal district courts in other states including in Arizona, Georgia, Indiana, South Carolina, and Tennessee have all concluded that an ID requirement is neither discriminatory nor a poll tax.
Fortunately, on October 14, a three-judge panel of the Fifth Circuit Court of Appeals dissolved the Ramos injunction “based primarily on the extremely fast-approaching election date.” In other words, with Ramos issuing her opinion only nine days before early voting started and just 24 days before Election Day, the injunction “substantially disturbs” the election process. As Judge Edith Brown Clement said, the “Supreme Court has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election.” Otherwise, court orders affecting elections “especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”
The NAACP filed an emergency petition with the Supreme Court to overturn the Fifth Circuit and restore the injunction. But on Saturday, October 18, the Supreme Court rejected the petition and refused to overrule the Fifth Circuit. Curiously, Justice Breyer did not join the dissent filed by Justices Ginsburg, Kagan, and Sotomayor. So Texas’s voter-ID requirement will remain in place for this year’s election.
Finally, on October 16 the Arkansas state supreme court threw out that state’s voter-ID law, concluding that it violated the state constitution. The court held that voter ID is an additional “qualification” on voters that can only be implemented if the requirement is placed in the state constitution. Other state supreme courts have concluded that voter ID is just a way of verifying that a state resident meets the eligibility requirement to be a qualified voter — it is not a new qualification. Since this is a state constitutional issue, there is no basis for an appeal to the U.S. Supreme Court. Thus, the law will not be in effect in Arkansas in the election, but the state legislature may be able to implement a voter-ID requirement if the Arkansas constitution is amended.
South-Western: Increase in the Minimum Wage
South-Western: Increase in the Minimum Wage
There follow a number of links to data and opinions.
Issues and Background
The minimum wage does not prevent everyone from getting any job. But the minimum wage does make it more difficult for those who already have a hard time getting a job - the least skilled - to begin or continue a career. Passing a law that forces people to earn a minimum amount in order to work seems a cruel policy in an already cruel world?
~Donald R. Deere
Our findings suggest that the efficiency aspects of a modest rise in the minimum wage are overstated.... [W]e find no evidence for a large negative employment effect of higher minimum wages. Even in the earlier literature, however, the magnitude of the predicted employment losses from a much higher minimum wage would be small: the evidence at hand is relevant only for a moderate range of minimum wages, such as those that prevailed in the U.S. labor market during the past few decades. Within this range, however, there is little reason to believe that increases in the minimum wage will generate large employment losses.
~David Card and Alan B. Krueger, Myth and Measurement: The New Economics of the Minimum Wage, (Princeton: Princeton University Press, 1995, p. 393).Minimum wage laws in the U.S. were first introduced during the 1930s in response to the Great Depression. This period was characterized by falling output, falling prices, and falling employment. The National Industrial Recovery Act (NIRA) of 1933 attempted to stop this downward spiral by encouraging the formation of trade association agreements that established price floors and minimum wages. This was the first national attempt to introduce minimum wages in major industries. Those firms that participated in the trade association agreements were able to display a "blue eagle" logo in their establishments. In 1935, the U.S. Supreme Court ruled that the NIRA was unconstitutional, and these initial minimum wage agreements were terminated.In 1938, the Fair Labor Standards Act (FLSA) established a national minimum wage of $0.25 an hour. (This act also established restrictions on child labor and required that overtime pay be provided for hours of work in excess of 40 hours per week.) This Act initially only applied to a relatively small share of the labor force, but has been revised over time so that it now applies to approximately 90% of all nonsupervisory workers.Introductory economics textbooks usually first introduce the minimum wage as an application of demand and supply analysis. This initial discussion is usually based on the following assumptions:
- the labor market is perfectly competitive,
- the minimum wage covers all workers, and
- worker productivity is unaffected by the wage rate.
Under these assumptions, the effect of the minimum wage is quite straightforward: the introduction of a minimum wage results in unemployment in those labor markets in which the equilibrium wage rate is below the minimum wage. This is illustrated in the diagram below:In the labor market illustrated above, the equilibrium wage would be w* and the equilibrium level of employment would be L* in the absence of a minimum wage. When a minimum wage of wmin is introduced, however, the level of employment falls to LD. Notice that the quantity of labor demanded exceeds the quantity of labor supplied at this minimum wage. A total of LS - LD unemployed workers will be created by the introduction of this minimum wage.While minimum wage increases generally receive substantial public support, economists have generally relied on the above analysis to argue that such legislation will result in an increase in the unemployment rate in low-wage labor markets. In recent years, however, a series of studies by David Card, Alan B. Krueger, Lawrence F. Katz, and others have suggested that small to moderate increases in the minimum wage will have no adverse effects on unemployment (and may even lead to reduced unemployment). There are a number of theoretical models that can explain such results. Among these are:
- monopsony models, and
- efficiency wage models.
In a monopsony labor market, there is a single employer of workers. This employer faces an upward sloping labor supply curve. Because the cost of hiring an extra worker (the marginal factor cost) exceeds the wage rate, a monopsony firm will hire fewer workers than would be hired in a perfectly competitive labor market. This is illustrated in the diagram below.As the diagram above indicates, a profit-maximizing monopsonist will hire an optimal quantity of labor at the point at which the firm's marginal revenue product (MRP = the additional revenue associated with the use of an additional unit of labor) equals the firm's marginal factor cost (MFC = the additional cost associated with the use of an additional unit of labor). In this case, the optimal level of employment occurs at Lm. When this firm hires Lm workers, the labor supply curve indicates that it must pay a wage equal to wm.If a minimum wage is introduced into this labor market, the labor supply curve effectively becomes horizontal at this wage up to the point at which the minimum wage intersects the supply curve. This is illustrated in the diagram below. The thicker red line represents the labor supply curve in the presence of a minimum wage equal to wmin. Because the wage is constant in this portion of the labor supply curve, the marginal factor cost is constant and equal to the minimum wage in this range. Once the labor supply curve starts rising again, the marginal factor cost once again is above the wage (in the diagram below, this occurs once the level of employment exceeds Lmin).If a minimum wage equal to wmin is introduced into this market, the optimal level of employment for the monopsony firm will occur at Lmin (since MRP = MFC at this point). Thus, it is possible that the introduction of a minimum wage will result in both higher wages and a higher level of employment. If the minimum wage is set anywhere between wm and w', employment will increase in a monopsony labor market. A minimum wage equal to w' will result in the same level of employment as in the monopsony outcome (although with a higher wage). Employment will fall if the minimum wage is set above w' in this labor market.The efficiency wage model suggests that firms that pay workers a wage above the equilibrium wage will find that the higher pay results in more productive workers. The higher pay results in less labor force turnover, lower training costs, and better motivated workers. If the increase in labor productivity is sufficiently large, an increase in the minimum wage need not reduce employment.Much of the controversy surrounds a study conducted by David Card and Alan Krueger. In this study, Card and Krueger conducted a phone survey of 410 fast-food restaurants on both sides of the border between Pennsylvania and New Jersey prior to and after an increase in the state minimum wage in New Jersey. They found that employment increased by more in New Jersey in response to the higher minimum wage in this state.Because of concerns about the Card and Krueger data, the Employment Policies Institute examined payroll records for 71 fast-food restaurants and found significant discrepancies between the Card and Krueger data and payroll records for these firms. They found significantly different results when their revised data was used for estimation purposes. Critics of the EPI study argue that the selection process used to generate the Employment Policies Institute sample appears not to be random (all Pennsylvania observations are Burger King restaurants owned by a single franchise owner).Those who believe that increases in the minimum wage will not adversely affect employment argue that, even if there are some problems with the data used by Card and Krueger in their study of fast-food restaurants in New Jersey and Pennsylvania, there is a growing empirical literature that provides quite similar results. Card and Krueger present an extensive collection of such studies in Myth and Measurement (1995).An issue related to that of a minimum wage is a growing movement for a "living wage." Living wage proposals suggest that the existing minimum wage is too low to allow families to exceed the poverty level. Advocates of this view support "living wage ordinances" that require the local government to only accept contracts from firms (or, in some cities, provide assistance to firms) that pay their workers a wage that is high enough to place the worker above the poverty line. Baltimore was the first city to adopt such an ordinance in 1994. Under Baltimore's "living wage" requirement, firms must pay a worker an hourly wage that will allow a full-time worker to receive an annual income greater than or equal to the poverty level for a family of three.One of the reasons why the minimum wage is so often the focus of political debate is that it is set at a specific nominal value and is not indexed to inflation. Thus, as inflation occurs, the real value of the minimum wage declines until Congress decides to pass new legislation. (The highest real value of the minimum wage was reached in 1968.) Because of this, it is likely that the debate over the effects of the minimum wage will continue to remain a significant source of political and economic debate.
There follow a number of links to data and opinions.
Embarrassing Economists - Walter E. Williams - Page full
Embarrassing Economists - Walter E. Williams - Page full
It turns out that there's a law in economics known as the first fundamental law of demand, to which there are no known real-world exceptions. The law states that the higher the price of something the less people will take of it and vice versa. Another way of stating this very simple law is: There exists a price whereby people can be induced to take more of something, and there exists a price whereby people will take less of something.Some people suggest that if the price of something is raised, buyers will take more or the same amount. That's silly because there'd be no limit to the price that sellers would charge. For example, if a grocer knew he would sell more -- or the same amount of -- milk at $8 a gallon than at $4 a gallon, why in the world would he sell it at $4? Then the question becomes: Why would he sell it at $8 if people would buy the same amount at a higher price?There are economists, most notably Nobel Prize-winning economist Paul Krugman, who suggest that the law of demand applies to everything except labor prices (wages) of low-skilled workers. Krugman says that paying fast-food workers $15 an hour wouldn't cause big companies such as McDonald's to cut jobs. In other words, Krugman argues that raising the minimum wage doesn't change employer behavior.....Krugman says that most minimum-wage workers are employed in what he calls non-tradable industries -- industries that can't move to China. He says that there are few mechanization opportunities where minimum-wage workers are employed -- for example, fast-food restaurants, hotels, etc. That being the case, he contends, seeing as there aren't good substitutes for minimum-wage workers, they won't suffer unemployment from increases in the minimum wage. In other words, the law of demand doesn't apply to them.Let's look at some of the history of some of Krugman's non-tradable industries. During the 1940s and '50s, there were very few self-serve gasoline stations. There were also theater ushers to show patrons to their seats. In 1900, 41 percent of the U.S. labor force was employed in agriculture. Now most gas stations are self-serve. Theater ushers disappeared. And only 2 percent of today's labor force works in agricultural jobs. There are many other examples of buyers of labor services seeking and ultimately finding substitutes when labor prices rise. It's economic malpractice for economists to suggest that they don't.
Monday, October 20, 2014
If Minimum Wage Is So Great, Why Cite Bogus Study? - Larry Elder
If Minimum Wage Is So Great, Why Cite Bogus Study? - Larry Elder
The head of a Los Angeles-based nonprofit "sustainable economy" association calls for a higher minimum wage. No surprise there. But he cites a major pro-minimum wage study that responsible academics long ago abandoned.Daniel Flaming of the Economic Roundtable, in a recent Los Angeles Times op-ed, said: "The conclusion that wage fairness is not a zero-sum game was established by a landmark study comparing neighboring counties in New Jersey and Pennsylvania, after New Jersey increased the minimum wage but Pennsylvania did not. It found that after the wage hike, employment in the fast-food industry increased more in New Jersey counties than in neighboring Pennsylvania counties."Well, actually, no. This now infamous study by David Card and Alan Krueger did not prove such an outlandish thing. Here's what happened.New Jersey raised its minimum wage. Pennsylvania did not. What will happen to the fast-food industry in these adjacent states? Good test case, right? If New Jersey fast-food workers suffered, it proves what most economists believe -- that minimum wage harms workers, particularly unskilled men, women and minorities, the kind of folks the left claims they care about. If, on the other hand, New Jersey's new wage law had no effect -- or even helped -- so much for the "artificially increase the cost of labor and you decrease the demand for it" argument.Surprisingly, researchers discovered that New Jersey fast-food restaurants saw an (SET ITAL) increase (END ITAL) in employment relative to Pennsylvania. The study flew around the liberal world faster than a Sarah Palin joke. President Bill Clinton cited it. But a funny thing happened when the study was peer reviewed.Researchers seeking to replicate the results obtained actual payroll records -- rather than simply phoning and asking hiring personnel whether they hired people during the period studied. Turns out, payroll records did not corroborate the verbal assertions made by employers. New Jersey actually suffered a (SET ITAL) decline (END ITAL) in employment relative to Pennsylvania -- just as traditional economic theory would have anticipated.So why is this bogus study still cited? I put that question to Ohio University economist Lowell Gallaway, who has written critically about the study. Gallaway said: "The Card-Krueger study is still cited because it is useful politically. ... It still has legs because the minimum-wage notion is an idea that just will not die. You cannot put it to rest by any amount of evidence demonstrating its problems. Whenever people want to believe something strongly enough, any study that supports that belief -- no matter how bad it is -- will be accepted."Vice President Joe Biden recently met with Los Angeles Mayor Eric Garcetti to support the mayor's plan to raise the minimum wage in Los Angeles to $13.25 an hour. Days before that, the L.A. City Council approved another Garcetti plan to increase minimum wage for workers in large hotels to $15.37 per hour. Now back in 2008, the L.A. City Council passed a "living wage ordinance" for hotel workers in the L.A. airport area.As with the minimum wage study of New Jersey and Pennsylvania, this, too, presented us with a real-world test case. What happened?Beacon Economics, chosen by both management and labor to give an objective, nonpartisan report on the effect of a $15.37 hourly minimum wage, concluded that the effect of this 2008 wage hike was devastating. Beacon's founding partner, economist Christopher Thornberg, said: "The data clearly show that hotels around the airport have seen a sharp decline in employment relative to hotels in Los Angeles County overall. Some 12 percent more people are employed at hotels in the county than in 2007. ... But in the airport hotels covered by the law, hotel employment has declined 10 percent."Even the editorial board of the Los Angeles Times, a supporter of the minimum wage, warned of the negative impact if surrounding cities failed to follow suit: "It's important that Los Angeles not go it alone. ... This is important to keep the city from becoming an island of high wages and to keep businesses from fleeing to cheaper locations outside L.A.'s borders." In other words, if Los Angeles acts stupidly, we hope and expect everybody else to do so as well.More? How about the respected and widely cited leftwing think tank, the Brookings Institution? Brookings economist Gary Burtless, who specializes in labor, also says a $15-an-hour wage goes too far. While supportive of Obama's call for a $10.10 minimum wage, Burtless objected to Seattle's newly enacted $15 minimum wage: "Consider a business that mainly sells low-cost, fast-food meals. If it must pay $15 an hour to its low-wage employees, while its competitors less than a mile away are only required to pay $10 an hour, the companies outside Seattle can charge lower prices to their customers for shakes, burgers and fries, and yet still make a profit." Well, duh.Why the madness despite its clear job-killing stupidity? L.A. City Councilman Mitch O'Farrell, a Democrat who represents the Hollywood area, said he understood the anti-minimum-wage Beacon report. But, said O'Farrell, "At the end of the day, between the intellect and the heart, the heart wins out."Now go find a job.
Mother Jones Claims the Rate of Mass Shootings Has Tripled Since 2011. Is That True? - Hit & Run : Reason.com
Mother Jones Claims the Rate of Mass Shootings Has Tripled Since 2011. Is That True? - Hit & Run : Reason.com
The best critique I've seen of the original Mother Jones article was written by Michael Siegel. You should read the whole thing, but this is the key passage:
It is a truism of science that the more narrowly you define your sample and the more you shrink the number of data points, the less reliable your conclusions will be. If you were to analyze all gun shootings and violence over the last thirty years, you'd have hundreds of thousands of data points to base your conclusions on. You could, as I like to say, achieve Victory Through Sheer Data Volume. But when you start parsing the data down further and further, you become more prone to random variation and even bias.The new analysis looks at the intervals between each incident rather than the annual numbers of crimes and victims. But aside from the fact that the list has been updated through 2014, this is the same data as the original article, with all the problems that Siegel and others pointed out before.
Even if we take Mother Jones' data at face value, we can see we're dealing with less than 120 victims every year and frequently less than 20. That's an awfully small number to be drawing conclusions from. To illustrate why, take the Virginia Tech killings. 56 people were killed or wounded. That is more than all but five entire years in their database. Something like that is simply going to swamp the statistics.
But we shouldn't even take Mother Jones' data at face value because it is highly suspect. First, it seems to be based on media coverage, which is not exactly an objective source and almost certainly leaves shootings out....Everywhere, they make arbitrary cuts to exclude murders that may not fit their conclusions. They limit the sample to lone shooters, but make exceptions for Columbine and Westside. They exclude gang activity and other crimes but include the Fort Hood Shootings, which were an act of terrorism....They arbitrarily throw in a few spree killings.
This is simply not a representative sample. It's cherry-picked to fit a definition, but leaves huge gaping biases all over the place. Mother Jones doesn't even acknowledge this.
All this would be fine if you wanted to create an illustrative or representative sample. This is even fine if you want to draw some broad and overwhelming conclusions such as that most spree killers get their guns legally. But the low numbers and the biases blow up in your face when you try to do a more rigorous analysis....They've narrowed the sample so far down that they are essentially looking at noise.
The best alternative measurement that I'm aware of comes from Grant Duwe, a criminologist at the Minnesota Department of Corrections. His definition of mass publicshootings does not make the various one-time exceptions and other jerry-riggings that Siegel criticizes in the Mother Jones list; he simply keeps track of mass shootings that took place in public and were not a byproduct of some other crime, such as a robbery. And rather than beginning with a search of news accounts, with all the gaps and distortions that entails, he starts with the FBI's Supplementary Homicide Reports to find out when and where mass killings happened, then looks for news reports to fill in the details. According to Duwe, the annual number of mass public shootings declined from 1999 to 2011, spiked in 2012, then regressed to the mean.
Finally, a note on why this matters. Violent crime rates have been moving downward for decades now, and mass shootings—by any definition—are a very rare phenomenon. I've heard arguments from one direction that say there's no point in putting such a small risk under a microscope when the most pressing threats to people's lives lie elsewhere. I've heard arguments from another direction that say even one crime this horrible is too many, and that the effect of noting how infrequently it happens is just to discourage people from trying to prevent it.
To the first set of arguments, I say that when the press and politicians present a problem like this as a rising crisis, it's worthwhile to see whether it is indeed rising. To the second set of arguments, I say that absolutely nothing I've said here means we shouldn't try to prevent future mass murders. Plane crashes are extremely rare, but airlines still look for ways to make them even less likely. If a measure genuinely makes people safer without creating an intolerable trade-off, I'm for it.
Such measures are most likely to be incremental changes adopted at particular places (such as schools) and then imitated elsewhere, not big anti-crime bills rushed into law by national politicians eager to be seen Doing Something. But there may well be ways federal or state officials can make that experimentation and imitation easier. Good ideas are good—and bad ideas are bad—whether or not mass shootings are getting more common.
Sunday, October 19, 2014
Instapundit » Blog Archive » ASHE SCHOW: ‘Yes means yes’ laws also hurt women. “Studies have shown that men are far less likely…
Instapundit » ASHE SCHOW: ‘Yes means yes’ laws also hurt women. “Studies have shown that men are far less likely…
It may be time to herd college-age (and soon, high-school and grade-school age?) men into "consciousness raising" sessions where they will learn to file accusations against women who touch them without their consent.
ASHE SCHOW: ‘Yes means yes’ laws also hurt women. “Studies have shown that men are far less likely to report sexual assault than women, but with a law like this, where the choice could be between seeing their futures ruined by an accusation or coming forward with an accusation — young men would likely choose the latter option. If the law remains as it is written, then women would become just as disadvantaged. If, as opponents predict, the law leads to an increase of accusations, anyone accused — man or woman — would be hurt by the lack of basic due process rights.” Since in our culture, women generally feel privileged to touch men without prior consent, one would actually expect more women to be guilty.
It may be time to herd college-age (and soon, high-school and grade-school age?) men into "consciousness raising" sessions where they will learn to file accusations against women who touch them without their consent.
FIRE shreds Ezra Klein and denial of due process to college men
FIRE shreds Ezra Klein and denial of due process to college men
So I’m sympathetic to the case against Yes Means Yes. But as I read more about the bill, talked to more lawyers about it, talked to more of the women in my life about it, and particularly after I read Amanda Taub’s piece outlining the broader benefits for an affirmative consent culture, I changed my mind. In part, I initially misunderstood what the Yes Means Yes law does, and doesn’t, do. But I also approached the law with too much status quo bias. It was too easy for me to see the disruptions and dangers embedded in the change and too hard for me to see the rolling catastrophe of the status quo.
Actually, Klein did not misunderstand what the law does, as discussed above. But here you see the key reason he supports it anyway: He firmly (and presumably sincerely) believes that there should be a cultural shift on how sex takes place on campus and maybe even in the larger society. And calling for a cultural shift is fine; indeed, there are plenty of other folks who have ideas how the culture on campus should be.
But a core difference between them and supporters of the California law like Klein is that the latter are comfortable with enforcing their desired culture shift not just through the power of the state but by using that power to degrade the rights of the accused. As blogger Fredrik deBoer put it: “As long as we’re making an omelet, am I right?”
Klein and others need to have some awareness that this is not simply a tweaking of the concept of consent; it’s another battle in America’s seemingly unending culture war. That’s why the debate around California’s law has gotten so ugly so quickly.
=============
FIRE’s main concern, of course, is due process, which Klein addresses under the heading “Yes Means Yes and due process.” He begins:
The idea of “due process” kept coming up in replies.
Fancy that.
Jonathan Chait, for instance, worries that colleges are “trampling due process,” and links to this Judith Shulevitz piece, which isn’t about the Yes Means Yes law. One charming e-mailer wrote, “No due process? Really? I’m a lawyer and now you’re on my hit list.” This is either a deep misunderstanding of the Yes Means Yes law, of how colleges enforce their rules, or both.
Is it? Do tell.
The Yes Means Yes law just doesn’t have much to do with procedural due process. Due process guarantees certain rights around most legal proceedings, like the right to a public trial and an impartial jury. But the Yes Means Yes law isn’t about legal proceedings. It’s about college hearings. It doesn’t change criminal proceedings at all.
Klein’s flip reminder that college tribunals are not “legal proceedings” is a glib way of patting concerned citizens on the head and telling us we shouldn’t care if colleges have set up kangaroo courts. Due process is the normative idea that a disciplinary system must work fairly, consistently, and impartially to arrive at just results. It’s not confined solely to the legal sphere—at least, it shouldn’t be, if we as a society care about fundamental fairness and prefer justice to arbitrary and capricious decision-making.
As the Supreme Court wrote in Goss v. Lopez, a case about high school students in Ohio who had been suspended for up to 10 days with virtually no due process,
the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. 419 U.S. 565, 576 (1975).
Expulsion from a public college and a finding that a person committed sexual assault is surely a much more “serious event” than a sub-10-day suspension from high school and implicates the “liberty interest in reputation” exponentially more than a high school suspension.
Here’s a thought experiment that may illuminate the issue: If Ezra Klein were deemed a rapist by his college and expelled from school with that on his transcript, would he have been been hired and paid to blog by The Washington Post, become famous doing so, drawn profiles in major magazines complete with photo shoots, and used that fame to springboard himself to co-founder of a well-known website? To ask that question is to answer it, but I see no sign that Klein has asked.
Further, we really need to dispense with the idea that college tribunals are not miniature justice systems, even if they’re not courts of law.
Generally speaking, they involve an allegation, an investigation, a hearing, the presentation of evidence (however defined), fact-finding, the possibility of a sentence that can change the course of the accused’s life (in severe ways), and an appeals process. And when the allegations concern sexual assault, college tribunals just happen to be deciding whether someone committed conduct that constitutes a felony crime. Due process is most certainly a legitimate concern.
Klein continues:
The issue here goes far beyond Yes Means Yes, and into a harder question: what process should colleges uses for sexual harassment hearings? College hearings do not carry the full guarantee of due process that, say, criminal legal proceedings do. This is, for the record, something the courts have looked at: there were some very basic due process protections laid down in Goss v. Lopez, but, since then, courts have judged whether a student’s rights were violated on a case-by-case basis, and they have notably refused to say that all universities, or even all public universities, need to give students the full due process rights that the criminal or civil systems offer. This is why, for instance, students aren’t guaranteed legal representation in plagiarism hearings.
Klein is unwittingly making the case against colleges handling felony crimes like rape here. College disciplinary systems came into being precisely to handle academic infractions like plagiarism or cheating. Indeed, they are exactly the right institutions to handle those kinds of allegations, as they have the specialized expertise.
==========
When it comes to rape, however, college tribunals are terrifyingly out of their depth and have displayed what can only be called “anti-expertise.” The Wall Street Journal’s James Taranto recounted an example of how this worked in one case at Auburn University. Actual kangaroos could not have done a worse job of adjudicating that case.
But Klein seems to think that the law will help that process rather than hurt it:
There’s a related, and serious, concern here that the process by which colleges manage sexual assault cases is a mess. In many cases, the accused lack very basic protections (the Harvard Law School’s faculty just published an open lettercondemning Harvard’s new sexual assault policies on these grounds). The Yes Means Yes law interacts with these processes a bit, but mostly by telling colleges to clarify them, which will, in many cases, be an improvement.
It will? California’s law effectively places the onus on the accused to prove to a college panel or a single administrator that they received continuous consent to any and every sexual act in question. If a student can’t produce that proof, he or she is a rapist.
It doesn’t matter whether the accuser did want the sexual act to happen, it only matters whether the accused can convince the school that they indicated as much. If he or she can’t, they’re a rapist. It’s hard to see how this can be described as fair, even if the procedures are scrupulously followed.
What it doesn’t do is somehow rip rights away from the accused. You could have a hearing process that is very similar to the process used in civil trials within the context of the Yes Means Yes law, complete with guaranteed legal representation.
You could, but you don’t, and Klein knows it. Worse, the affirmative consent bill he supports could have fixed that problem, but it didn’t.
For instance, students are nearly always denied competent representation, except in North Carolina, and that exception is in large part due to FIRE’s advocacy. Judge Henry Friendly, in a famous (among lawyers) 1975 article, laid out the basics of what it means to have a fair process when it comes to government hearings. They are:
- An unbiased tribunal.
- Notice of the proposed action and the grounds asserted for it.
- Opportunity to present reasons why the proposed action should not be taken.
- The right to present evidence, including the right to call witnesses.
- The right to know opposing evidence.
- The right to cross-examine adverse witnesses.
- A decision based exclusively on the evidence presented.
- Opportunity to be represented by counsel.
- Requirement that the tribunal prepare a record of the evidence presented.
- Requirement that the tribunal prepare written findings of fact and reasons for its decision.
FIRE has seen colleges violate every one of these principles, and often many of them at once, in our 15 years of handling due process cases. The Harvard Law faculty members are concerned about these as well. This is not a fringe concern or one to be easily dismissed.
There’s no contradiction between a fair and clear process, real protections for the accused, and an affirmative consent standard — and there’s no reason one shouldn’t support all simultaneously, as I do.A somewhat separate issues that the Yes Means Yes law also directs California colleges to use the “preponderance of evidence” standard, which is what’s used in most civil trials. But that’s not much of a change: the federal government hasdirected colleges to use that standard back in 2011, though not all of them have complied.The preponderance of evidence standard is a lower standard than is used in criminal trials. But as the federal government argued in 2011, it’s the standard that the Supreme Court laid down for civil discrimination suits under the Civil Rights Act, and it’s the standard the Office of Civil Rights uses when looking into Title IX violations.
It’s hard to imagine that there are “real protections for the accused” when the law Klein’s supporting not only requires that you be able to prove you had consent at every stage of sexual activity or at some undefined interval, but also lowers the burden of proof so that a tribunal only 51 percent certain of your guilt has to find you guilty of rape anyway.
============
The reason the criminal standard is so tough to meet is that people go to jail in criminal trials, they get the death penalty in them, they become registered sex offenders through them. The worst a college can do is expel you.
Yes, they can expel you, deny you further education at any other state institution (in some cases, like Caleb Warner’s), and make sure your transcript and your records, which are accessible to schools, employers, and the government, say that you’re a rapist. And I assure you that those notifications do not elaborate on the many due process failures of the university in making those findings.
That’s why colleges have never had to meet the criminal standard when deciding whether to expel a student for plagiarism or vandalism — and yet people don’t seem overly exercised about those verdicts. Why is sexual assault different, given that the punishment is the same?
Is this question serious? It’s because you have been found guilty of rape, not plagiarism or vandalism! If the punishment for murder were reduced to one year in prison, people would still treat murderers worse than vandals who got a year in prison, even though the punishments are the same. Come on.
Are you sure you want make it impossible for colleges to expel potential rapists where the preponderance of evidence shows them to be responsible for repeated sexual assaults, but it can’t quite be proven beyond a reasonable doubt? That’s not a standard, for instance, that we think employers should meet.
First, colleges aren’t students’ employers. Students pay them, not vice versa. So this is a bogus equivalency. But expulsion is not the panacea so many advocates make it out to be.
The best case scenario is that the expelled rapist is free to victimize people (generally, women) off campus. And on many campuses, there’s nothing preventing those expelled from coming back onto campus long enough to victimize students again—it’s not like they’re wearing a tracking ankle bracelet or being shadowed 24/7 by campus cops.
That’s why colleges should be leaving matters of public safety and criminal justice to the criminal justice system, which actually has the power to get rapists off the streets.
Colleges can provide plenty of services, from counseling to escorts to accommodations in scheduling or living, to help rape victims. But they can’t put the rapist in jail. If there’s a problem with the criminal justice system’s ability to achieve justice in rape cases, then that’sthe system that needs reforming by legislators, not the campus justice system.
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