Jan 6, 2014

Water Abstains From Colorado River

Or, the actual headline, “Colorado River Drought Forces a Painful Reckoning for States.” #FedCourtPuns

Read More
Jan 6, 2014

Paris Shrugged

Newsweek has a feature of how “Sky-high taxes and overprotective labor laws are driving out [France’s] best and brightest.”

Since the arrival of Socialist President François Hollande in 2012, income tax and social security contributions in France have skyrocketed. The top tax rate is 75 percent, and a great many pay in excess of 70 percent.

As a result, there has been a frantic bolt for the border by the very people who create economic growth – business leaders, innovators, creative thinkers, and top executives. They are all leaving France to develop their talents elsewhere. …

Granted, there is much to be grateful for in France. An economy that boasts successful infrastructure such as its high-speed rail service, the TGV, and Airbus, as well as international businesses like the luxury goods conglomerate LMVH, all of which define French excellence. It has the best agricultural industry in Europe. Its tourism industry is one of the best in the world.

But the past two years have seen a steady, noticeable decline in France. There is a grayness that the heavy hand of socialism casts. It is increasingly difficult to start a small business when you cannot fire useless employees and hire fresh new talent. Like the Huguenots, young graduates see no future and plan their escape to London.

The official unemployment figure is more than 3 million; unofficially it’s more like 5 million. The cost of everyday living is astronomical. Paris now beats London as one of the world’s most expensive cities. A half liter of milk in Paris, for instance, costs nearly $4 – the price of a gallon in an American store.

Interestingly enough, the piece is written by someone who likes socialized medicine and other largesse, but is tired of the high taxes combined with the “pure waste” that has left the state “bankrupt.”

I did not mind, initially, paying higher taxes than in Britain in exchange for excellent health care, and for masterful state-subsidized schools like the one my son attends (L’Ecole Alsacienne – founded by some of the few remaining Huguenots at the end of the 19th century).

As a new mother, I was surprised at the many state benefits to be had if you filled out all the forms: Diapers were free; nannies were tax-deductible; free nurseries existed in every neighborhood. State social workers arrived at my door to help me “organize my nursery.” My son’s school lunch consists of three courses, plus a cheese plate.

But some of it is pure waste. The French state also paid for all new mothers, including me, to see a physical therapist twice a week to get our stomachs toned again. Essentially it was seen as a baby-making opportunity (your husband is not going to touch you if you still have your baby fat – how very French!) after World War I, when so many young men were killed in the trenches.

When I began to look around, I saw people taking wild advantage of the system. I had friends who belonged to trade unions, which allowed them to take entire summers off and collect 55 percent unemployment pay. From the time he was an able-bodied 30-year-old, a cameraman friend worked five months a year and spent the remaining seven months collecting state subsidies from the comfort of his house in the south of France.

Another banker friend spent her three-month paid maternity leave sailing around Guadeloupe – as it is part of France, she continued to receive all the benefits.

Yet another banker friend got fired, then took off nearly three years to find a new job, because the state was paying her so long as she had no job. “Why not? I deserve it,” she said when I questioned her. “I paid my benefits into the system.” Hers is an attitude widely shared.

When you retire, you are well cared for. There are 36 special retirement regimes – which means, for example, a female hospital worker or a train driver can retire earlier than those in the private sector because of their “harsh working conditions,” even though they can never be fired.

But all this handing out of money left the state bankrupt.

So the producers shrug.

The most brilliant minds of France are escaping to London, Brussels, and New York rather than stultify at home. Walk down a street in South Kensington – the new Sixth Arrondissement of London – and try not to hear French spoken. The French lyceethere has a long waiting list for French children whose families have emigrated.

I grimly listen to my French friends on this topic.

From a senior United Nations official who is now based in Africa: “The best thinkers in France have left the country. What is now left is mediocrity.”

Coming soon to the United States.

Read More
Jan 6, 2014

What is the status of gay marriages performed in Utah before the stay?

Are those marriages valid? Would the couples be able to file a joint federal tax return, or avail themselves of federal employment benefits? Would another state have to recognize that marriage? Would another state be able to grant the couple a divorce? Could one of the partners marry someone else, and not be charged with bigamy?

And if the Court finds that the District Court erred, is there a California-esque case that denying those who were granted interim marriages would be unconstitutional?

Oh the questions.

Update: Lyle has this report. Apparently, some who obtained marriage licenses were never actually married. Are those licenses valid now for an officiant to use?

State officials said on Monday that they are evaluating the legal fate of Utah same-sex couples who already have been married.  A total of 950 marriage licenses have been issued in the state to gay and lesbian couples, but it is unknown how many of them actually got married before the Supreme Court acted on Monday morning.

Update 2: More from WSJ Law Blog:

In a statement issued Monday, the Utah attorney general’s office said it’s “carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally.”

When similar situations have come up in other states, gay couples have remained legally married even when other gay couples were prevented from joining them. The two best-known examples are cases in New Mexico and California.

In 2004, dozens of gay and lesbian got married in New Mexico’s Sandoval County in a single day. The county clerk at the time, Victoria Dunlap, quickly got orders from the state’s then-attorney general to stop issuing licenses. The courts never got around to deciding whether the marriages were valid, so the couples remained legally married. At least one pair got divorced.

About 18,000 gay couples in California got married in the months in 2008 between the time when the state’s highest court allowed gay marriage and when voters passed Proposition 8 banning gay marriage in the state.

In 2009, the California Supreme Court upheld Prop. 8, but preserved the thousands of marriages that were recognized before the ballot proposition was passed. Ultimately, federal courts would later rule Prop. 8 unconstitutional, making same-sex marriage in California legal.

Read More
Jan 6, 2014

So does any other judge striking down a ban on SSM now have to stay their ruling?

I mean, the Court didn’t say so explicitly, but it seems clear that the Justices want this issue to be fully briefed and percolated in the lower courts before marriage license are issued. I expect any future district court judges who find state bans on SSM unconstitutional to stay their rulings. Or, it is likely the Supreme Court will stay it eventually, as they did in Utah.

Read More
Jan 6, 2014

Obamacare Unravels on Meet the Press

I am in the process of working on the proposal for the sequel to Unprecedented, tentatively titled “Unraveled.” On further reflection, I think this title works either way. If Obamacare does in fact unravel, it’s a good title. And, if the challenge to Obamacare unravels, it’s a good title. I have no idea where we will end up, but probably somewhere in the middle.

In the meantime, David Gregory accidentally plugged my book on Meet the Press.

GREGORY: Thank you both for helping us get beyond the debates about Obamacare. I’d love to have you back and as this thing un– unravels over the course of the year– not unravels in a bad way– but continues to roll out over the course of this year…

H/T Althouse


Read More
Jan 6, 2014

Unprecedented: “One of the top 2 or 3 books I’ve ever read.”

I was floored by this review of Unprecedented on Amazon.

What a remarkable job Blackman did in relating what can only be described as a remarkable journey of health care in America. As impossible as it may seem that a non-ficitonal book, where the outcome is known, can be an exciting, almost suspenseful read, this one is. Having finished the book, I’m still in awe of what went I learned. I simply can not say enough good things about this book. I would strongly encourage anyone at all interested in Obamacare read this book. I feel confident in saying that as you learn the details, at times you will be shocked.

In short, one of the top 2 or 3 books I’ve ever read.

Thank you!

Read More
Jan 6, 2014

Forbes 30 Under 30 For Law and Policy

I am honored to have been selected by Forbes Magazine as one of the top 30 people under the age of 30 in the field of law and policy. I just made the cut, as I’m a senior on the list at the ripe old age of 29. I’m especially flattered because the Judges were Professor Bill Eskridge, Greta Van Susteren, and Ronan Farrow.

Here are all of the winners (myself included):

  1. Nate Levine, 22, Founder, OpenGov
  2. Josh Blackman, 29, Assistant professor of law, South Texas College of Law, Houston
  3. Amanda Brown, 28, National political director, Rock the Vote
  4. Adam Chandler, 29, Attorney, Department of Justice
  5. Leif Dautch, 28, Deputy attorney general, California Department of Justice
  6. David Demirbilek, 28, Minority counsel, Homeland Security and Governmental Affairs Committee
  7. Audrey Gelman, 26, Vice president, SKDKnickerbocker
  8. Jake Heller, 29 Cofounder, Casetext
  9. Solomon Hsiang, 29, Assistant professor of public policy, University of California, Berkeley
  10. Tim Hwang, 27 Partner, Robot, Robot & Hwang
  11. Cristina Jimenez, 29 Managing director, United We Dream
  12. Noorain Khan, 29 Associate, Wachtell, Lipton, Rosen & Katz
  13. Derek Khanna, 25 Tech policy scholar, Activist
  14. Eric King, 24 Head of research, Privacy International
  15. Aaron Letzeiser, 24 Founder, Medical Amnesty Initiative
  16. Yihong “Julie” Mao, 27 Attorney, New Orleans Workers’ Center for Racial Justice
  17. Blake Masters, 27 Cofounder, Judicata
  18. Jonathan Mayer, 26 Cybersecurity fellow, Center for International Security and Cooperation
  19. Teryn Norris, 25 Commercialization & manufacturing specialist, U.S. Department of Energy
  20. Corey Owens, 29 Head of public policy, Uber
  21. Jonathan Fantini Porter, 29 Chief of staff, Department of Homeland Security
  22. Jessica Schumer, 29 Chief of staff, Council of Economic Advisers, Executive Office of the President
  23. Amie Stepanovich, 28 Director, domestic surveillance project, Electronic Privacy Information Center
  24. Nabiha Syed, 28 Attorney, Levine Sullivan Koch & Schulz
  25. Trevor Timm, 29 Executive director, Freedom of the Press Foundation
  26. Rebecca Vallas, 29 Deputy director of government affairs, National Organization of Social Security Claimants’ Representatives
  27. Heather West, 29 Policy analyst, Google
  28. Cody R. Wilson, 25 Founder, Defense Distributed
  29. Lauren Wilson, 26 Policy counsel, Free Press
  30. Daniel Zolnikov, 26 State representative, Montana House District 47

Congratulations to all!

Read More
Jan 6, 2014

New Article: “The Shooting Cycle”

The pattern is a painfully familiar one. News breaks that an unknown number of victims were killed by gunfire at a school, store, or other public place. The perpetrator wantonly takes the lives of innocent people. After the police arrive, the perpetrator is soon captured or killed, often by suicide. Sadness for the losses soon gives way to an emotional fervor for change. Different proposals for gun control are advanced—some ideas that were proposed earlier, but never obtained popular support, and other ideas that are developed in response to the recent tragedy. Politicians and advocates are optimistic for reform. However, as time elapses, support for these laws fades. Perhaps some laws are adopted, but nothing close to what the immediate emotional tugging after the killing would have predicted. As more time elapses, the memories of the dead, though never truly forgotten, fade from our collective minds, and things return to business as usual. This is the shooting cycle.

I have uploaded to SSRN a new article, titled The Shooting Cycle, co-authored by Shelby Baird (Yale University, B.A. in political science, 2014.) This contribution to a symposium issue of the Connecticut Law Review on the Second Amendment peels back much of the rhetoric surrounding gun violence, and, distant from the passions, explores how the government and people react to these tragedies. This article offers a sober look at what we label the shooting cycle, and assesses how people and governments respond to mass killings. This article does not offer any normative judgment on whether gun regulations hinder or contribute to gun violence, or the influence that lobby groups on both side of the debate exert, or the constitutional arguments regarding the Second Amendment. Rather, we aim to describe this phenomenon, offer observations about how governments and people react, or do not respond, to these tragedies, and draw conclusion on how this cycle change be changed.

We address this important issue in five parts. In Part I, we define the term “shooting,” and quantify how frequent they occur. Shootings, labeled “mass murders” by the FBI, are killings where the “four or more [murders] occur[] during the same incident, with no distinctive time period between the murders.” These statistics exclude the overwhelming majority of death-by-firearms, though they capture the most attention. More precisely, mass shootings represent roughly .1% of all homicides by gunfire. Contrary to public opinion, they aren’t nearly as common as the media may perceive them, and they aren’t occurring more frequently in recent years. Rather, the rate has remained roughly constant over the last five decades.

In Part II, we rely on heuristics and cognitive biases to explain why these rare, but horrible events, hold such a prevalent place in the American zeitgeist. The availability heuristic leads people to overweigh the prominence of events that are easily retrievable from memory. In addition, people tend to consider unfamiliar events that they cannot relate to as being more risky.  Further, those who have preexisting views on a certain topic are more likely to view harm in a way that gratifies their predisposition. These heuristics help to explain the media attention to, and political salience of mass shootings.

In Part III, we chronicle what we refer to as the shooting cycle. This painfully familiar pattern begins with a tragedy, as news breaks that a deranged gunman at some public place has inflicted mass casualties. The tragedy gives way to introspection as society attempts to make sense of what happened, and resolve to make sure it never happens again. With that resolve, society turns to action, as politicians, fueled by the emotions of the tragedy, offer solutions to stop not only mass shootings, but also are aimed at the broader problem of gun violence. Soon consensus for change is fractured by divergence, as the emotions from the tragedy fade, support dwindles for reform, and opposition grows. With time, the divergence brings us back to the status quo, as support for reform regresses to the mean, and returns to the pre-tragedy level.

In Part IV, we consider several concepts that help explain the changes during the shooting cycle. We begin by measuring the support for stricter gun control laws over the past two decades according to five polling firms. This graph shows an overall downward trend of support, with the exception of brief spikes in support following mass shootings at Columbine, Virginia Tech, and Newtown. After each spike, there is an even steeper decline, as support returns to the ex ante status quo. We explain the spikes as a result of emotional capture, where the emotions following the tragedy cause a heightened level of support for gun control. Politicians rely on this support to advance legislative agendas that would not have succeeded before the tragedy. But this support is short-lived. We explain the decline after the spike as an incidence of regression to the mean, whereby sentiments return to their pre-tragedy level as emotions fade. Our research also shows that the mean is in fact declining. In other words, after each spike subsides, support for gun control is even lower than it was before the shooting. These data explain, in part, why politicians seek to enact reforms quickly during the period of emotional capture before the passions fade.


Part V turns from theoretical to the experiential. We trace the sequence of events along the shooting cycle in the one-year from the horrific massacre at Sandy Hook Elementary in Newtown, Connecticut on December 14, 2012. This period begins with the tragedy, and the shock to our national conscience. From this tragedy, Americans became introspective, and with emotions high, the administration proposed a plan of action, that included several gun control reforms. Time was of the essence and supporters wanted to move as quickly as possible. Yet, following the trend of shootings before, emotional fervor weakened, causing a divergence in which support for gun control weakened, followed by the defeat of any new federal legislation. On the one-year anniversary of Newtown, society returned to the status quo.

This leaves us with a question we do not answer. Can this cycle be broken? In other words, is it possible for support of gun control laws among Americans to remain high enough, not just to pass something four months later, but to make Americans appreciate the law for years to come? Breaking the cycle will require a significant cultural shift. Only time will tell if this is possible.

We welcome any comments, though we ask that you not cite or quote from the article without asking first. It is still in draft form, and will likely change before publication.

Read More