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Saturday, June 25, 2011

Is States' Rights in the E.U. Racist?

Thousands of Romania’s Roma people (also known as Gypsies) headed for the wealthier Western E.U. states, setting off a clash within the European Union over just how open its “open borders” really are. Migration within the 27 states of the E.U. became a combustible issue during the economic downturn. The Union’s expansion that brought in the relatively poor states of Romania and Bulgaria in 2007 renewed concern that the poor, traveling far from home in search of work, would become a burden on the state governments of the wealthier states. The migration of the Roma also raised questions about the obligations of Romania and Bulgaria to fulfill promises their governments had made when they joined the Union. Romania, for instance, mapped out a strategy for helping the Roma, but financed little of it.

The full essay is at "States' Rights in the E.U."

The European Union: Dissolution or Consolidation?

In its 1993 Maastricht decision, the German Constitutional Court ruled that national authorities are not bound to respect and apply Community law to the extent that it exceeds the outer boundaries of Germany’s transfer of sovereignty to the E.U.  The Court also ruled that no transfer of sovereignty is valid to the extent that it results in a violation of the fundamental individual rights guaranteed in the German Constitution.  Nevertheless, the Court’s latest ruling on this subject indicates a willingness to rely on the European Court of Justice (ECJ) for the vindication of those fundamental rights.

The complete essay is at Essays on Two Federal Empires.

Friday, June 24, 2011

A Professional Misnomer: Self-Proclaimed Professionals

By the turn of the twenty-first century, the term, "professional" had become such a cherished word in the American lexicon that every American had decided that he or she is one. Evincing the Lake Wobegon effect—the tendency of most people to describe themselves or their abilities as above average—nearly everyone is wont to say, “I am a professional.” On housing listings on Craigslist, for example, people routinely use the word to signify that they are not students. In fact, even some students characterize themselves as professionals (though not as professional students!). Such common usage belies the term's claim to having a specific meaning. Moreover, the tendency of non-professions to deem themselves as professions nonetheless may evince one of the downsides of democracy—namely, its proclivity to excess in terms of self-entitlement. This is particularly likely to ensue from a citizenry that is lacking in self-discipline, virtue and knowledge. 

The full essay is at "A Professional Misnomer."

The European Council: Head of State of the E.U.

Concerning the European Council and the Council of the E.U., it can reasonably be asked whether such similar nomenclature is really necessary. It can be quite confusing. For example, I didn't realize that the European Council does not legislate; I had assumed that the Council of Ministers (a.k.a. the Council of the E.U.) handled the technical aspects of E.U. legislation while the European Council votes on broad and highly significant legislation.  Instead, the European Council "sets the EU's goals and the course for achieving them. It provides the impetus for the EU's main policy initiatives and resolves issues that cannot be settled at the ministerial level. It does not legislate." In contrast, the Council of the EU (aka the Council of Ministers) "adopts EU laws, a responsibility it shares with the European Parliament in most policy areas."  The Council of the E.U. also "concludes international agreements between the EU and other countries . . . ; plays a key role in the development of the EU's Common Foreign and Security Policy (CFSP), based on guidelines set by the European Council." It is the Council of the E.U., rather than the European Council, that corresponds to the U.S. Senate. Beyond both bodies representing state governments, the unique foreign policy role is shared by both “upper chambers.” An implication is that cabinet secretaries in the American state governments could replace U.S. Senators (and, conversely, the people of the European states could elect delegates or senators to represent their states in the Council of the E.U.).  In my view, the use of state cabinet secretaries (and having the governor’s association set the U.S. agenda) would be an improvement on senators (and the U.S. President in setting the Union’s agenda).  Such a change would reinvigorate American federalism against continued consolidation.

The complete essay is at Essays on Two Federal Empires.

Thursday, June 23, 2011

On the Belgium Stalemate: The E.U. to the Rescue?

On June 22, 2011, Philip Claeys, a representative in the E.U. Parliament, once again repeated his demand for Flemish independence, calling for the "orderly break-up" of Belgium. His call came as Belgium was entering its second year without a viable state government. It is no wonder, therefore, that a E.U. legislator would get involved. Repeated attempts had been made in Belgium during the previous year to resolve the political disagreements between Flanders and Wallonia—getting nowhere.



The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

Wednesday, June 22, 2011

Burn Baby Burn: Moral Hazard & Fairness

On a call with another of the company’s traders when a wildfire in California was putting some electric wires at risk, an energy-desk trader at Enron quipped, “Burn Baby Burn!”  The loss of the electricity wires would have decreased supply, thus jacking up the price of electricity, which Enron was only too glad to provide.  Similarly, “Burn Baby Burn!” can be put in the mouth of any one of the firefighters of the South Fulton fire department in Tennessee who watched Gene Cranick’s home burn to the ground because he had not paid the $75 annual fee that residents outside of city limits had to pay in order to receive the “service.”  When Cranick called 911 as his house was on fire, he was essentially told, “I’m sorry, sir, but you are not on the list for that service. Have a nice day.” 

The full essay is in The full essay is in Cases of Unethical Business: A Malignant Mentality of Mendacity, available in print and as an ebook at Amazon.com.

Monday, June 20, 2011

The Flemish and Walloons: Worlds Apart?

 I contend that the cultural differences between the Flemish and Walloons within Belgium have been exaggerated to such an extent that the state government of Belgium has been paralyzed and solutions have eluded the Belgians. Reducing the fear-induced swelling of the admittedly real differences within Belgium may therefore facilitate relief from the paralysis. In other words, the added perspective from viewing the cultural differences as less traumatic can help the Flemish and Walloons to either live together or, ironically, be able to separate. That’s right—a more realistic assessment of the differences can actually facilitate the separation of Belgium into two (or three) E.U. states (or Flanders joining the Netherlands and Wallonia joining France—and the German-speaking area joining Germany). Exaggerating differences can snuff out consideration of such alternatives and enable continued paralysis.

To be sure, distinctions can indeed be made between the Flemish and Walloons; we can’t simply assume that the overall Belgian (or European) identity relegates the regional distinctions. "I am Flemish first, Belgian second," says Pascal Francois of Aalst.  Another Flemish man says, “it’s a toss-up when I’m in Belgium.” Even though I am a citizen of the U.S. rather than the E.U., I can relate.

I regard myself as a Midwesterner first, Illinoisan second. Being a Midwesterner essentially means to me having imbued the intrinsic down-to-earth culture of my native region of Illinois, which, as mostly rural with only a medium-sized city as its de facto capital, is distinct from Chicagoland (which is less Midwestern than the other regions). To be sure, “the Midwest” is a broad area in mid North America that transcends political categories. The label goes far beyond geographic connotation, for “the Midwest” stands for a certain “home-grown” (rather than foreign) culture wherein honesty (and bluntness), prudence, populism, and humility (and stubbornism) are particularly valued. The Midwest is known as “the heartland” because of these ethical virtues. In Illinois at least, being a Midwesterner can be readily identified with one's specific region because the cultural values are more immediate than the political identification associated with being an Illinoisan. So being a Midwesterner is to being Flemish as being an Illinoisan is to being Belgian. So too, being an American is as being a European, even if the emphasis differs. Ideally, a federal system proffers political expression to each of these respective identities. Unfortunately, fear and the related intransigence (or stubbornness) can block full expression of one or more of the levels of cultural identification.

In the case of giving political expression to regional identification in Illinois, fear of change has gotten in the way. For example, the Illinois Senate could represent the regions (i.e., clusters of four or five counties), hence facilitating their expression. Given how much the regions differ, the result has been a deficit in political identification within Illinois. Because the republic is quite heterogeneous (including linguistically, which, by the way, by no means exhausts the ways in which cultures can differ), I did not grow up identifying myself as an Illinoisan. In fact, the regions in Southern Illinois have more than once attempted to secede from Illinois due to economic, political and cultural differences—mainly from Chicago (whose culture is foreign even from the vantage-point of the two other regions in Northern Illinois). In my late twenties, I visited Southern Illinois once from the North. Even though I am not from the Chicago region, I felt at the time how strange it was that the place was “Illinois.” You’re not Illinois, I thought to myself, this place is different and far away. The people talk differently. Unfortunately, I did not have a regional political identity on which to rest this intuitive reaction of semi-foreignness. Perhaps the Walloons feel a semi-foreignness when they are visiting Flanders (and so too, the Flemish, when visiting Wallonia), though in their case, unlike mine, regional political identification can fortify the regional cultural bases of “home.”

In short, I can understand why a Belgian might identify as Flemish or a Walloon first and want to give political expression to it, given the cultural diversity within Belgium. Such identification is not a bad thing in itself. Of course, whereas there are regional dialects (and some unique vocabularies) in Illinois, Flanders and Wallonia enjoy different languages—indeed it can even be said that these regions enjoy standing for Dutch and French, respectively. Even as language is a major point of difference between the two regions, this basis can indeed be exaggerated, playing on the generalized fear by emphasizing the standing for over simple enjoyment. Il est facile de craindre.

For example, The Telegraph reported in 2010 that “Pascal Smet, the schools minister for Flanders, has horrified [the Walloons] by suggesting that Flemish children, who are Dutch speakers, should learn English as their second language, rather than the French spoken by two fifths of their countrymen in Wallonia.” While being horrified constitutes an over-reaction, Pascal Smet must have known in 2010 that he had “picked a broader fight” under the reasonable rationale that English should be learned because it is becoming the common language of the E.U. "I note that the engine of European integration is sputtering. One reason is that we do not speak the same tongue, hence my plea for a common European language," he said according to The Telegraph.

Of course, Smet could have satisfied his purpose by proposing that English and French be taught to the Flemish kids. His needless insensitivity alone can be seen to have inexorably fomented an exaggerated response. According to The Telegraph, “Smets proposal that children in Flanders can dispense with French [has] deeply angered Belgian Walloons already fearful over their fate and Belgium's future after Flemish separatists won the largest share of the vote in elections.” In other words, even sensible proposals involving the languages can escalate, fueled by the more generalized fear in the context of mistrust.

In short, already-stark differences existing between the Flemish and Walloons are easily exaggerated, creating a self-fulfilling prophesy of separateness wherein people have a knee-jerk tendency to over-react. This can be seen as well where the Flemish and Walloons come into close contact. At least in the short run, integration can provoke flash-points.

According to the BBC, “Flemish defensiveness is at its sharpest near Brussels. The capital, which used to have a Dutch-speaking majority until the early 20th Century, is now overwhelmingly francophone. Its population is spreading outward in search of greenery and cheaper homes - a move that many in the Flemish suburbs find threatening. Liederkerke, a traditionally working-class town 15 miles (25km) west of Brussels, is one of many suburbs that have seen an influx of both rich expatriates and African immigrants.” It is strange that Walloons from the south of the state would be compared to expats and African immigrants.

The cultural differences within Belgium should not be construed as though they were a microcosm of cultural differences within the E.U. or even internationally. For example, the BBC avers that the “cultural divide between Europe's Germanic north and Latin south has run through the middle of Belgium since the Roman Empire.” However, Flanders is not exactly Bavaria, nor is Wallonia populated by Spaniards and Sicilians. That is to say, perspective ought to be maintained in assessing the extent of the cultural differences within a small E.U. state. Let’s not get carried away.


Of course, as I suggest above, cultural differences do indeed exist between the Flemish and Walloons. Among the relevant factors, economic differences have fueled the continued salience of the regional identities—indeed, in exaggerating them as well. Luc De Bruyckere, chairman of the Ghent-based food group Ter Beke and vice-president of FEB, Belgium's main employers' federation, for example, “points out that Flanders has a very tight labour market, while Wallonia is suffering from 17% unemployment.” Remi Vermeiren, a former chairman of the banking giant KBC, contends that Flemish people "believe more in a market economy" than Walloons. However, I have met Flemish who have stressed the European socio-political virtue of solidarity (which is virtually absent from the American political lexicon).

Therefore, I suspect that the economic ideological differences between the Flemish and Walloons are overstated. It is not as though the Flemish have adopted Sarah Palin’s view of capitalism while the Walloons have adopted a command-and-control economy akin to that of the defunct Soviet Union.

Furthermore, economic disparities have fomented prejudice, which has the effect of exaggerating cultural differences and inhibiting viable solutions. According to the BBC, “Flanders indeed has wealth, a hard-working population, and beautiful, world-famous cities - like Bruges, Ghent and Antwerp. Many there are asking why their taxes should prop up what they regard as a lagging, mismanaged region.” Are the Walloons really not “hard-working” and not able to manage themselves? Such assumptions do not necessarily follow from economic differences. More likely, regions differ economically because their dominant industries are different and perform differently. Even so, Roger Vandervoorde, 65, a retired sales director, for example, told the BBC, “Walloons should be responsible for what they do.” Prejudice drips off this statement, reflecting more on his state of mind than any lack of responsibility among the Walloons. Besides exaggerating cultural differences, such prejudice can impact political recommendations and reactions, which have in turn have exaggerated the differences.

According to the BBC, “resurgent Flemish pride is based on much deeper forces than just material wealth.” Specifically, “The sense of Flemish identity is all the more acute as it was suppressed by the French-speaking elites that ran Belgium after the 1830 revolution. The constitution was written in French. A Dutch version, written a century later, was not given equal legal force until 1967. As the Dutch-speaking majority demanded recognition, it was mainly pressing claims against the Belgian state.” Accordingly, “a wide majority in Flanders reject Flemish separatism. Most people just want more autonomy within the Belgian state.” This autonomy can be read as a reaction from having felt oppressed (or a fear of potential oppression in the future).

The generalized fear interlarding the Flemish is evident in the following observation from the BBC: “Wallonia may be poorer, but it is part of the 200m-strong francophone community. The Flemish are not standing on the shoulders of a friendly giant next door - and can be irked by Walloon cultural self-assurance.” Lest such fear be given too much leeway, the Flemish might recognize that Flemish conservatives have been dominating the Belgian state government of late and that both Belgium and France are states in the European Union. The ECJ, for example, is fully capable of restraining an imperialistic France intervening in Belgium on behalf of the Walloons.

Similarly, a generalized fear has interlarded the Walloons too. This can be seen in the Walloons’ reaction to Vandervoorde’s claim (perhaps made on the basis of his prejudice), “The best would be a confederation, with each part responsible for itself and only a few small matters handled federally.” Perhaps reacting subconsciously to the prejudice in addition to the proposal itself, “the Walloons are digging in their heels. They regard confederation as secession in all but name, and insist on keeping tax and welfare policies at federal level." The Walloons’ political reaction, in other words, may not simply be a desire for continued redistribution. At root, the fear might be that of being rejected. Such emotional/political fear need not exaggerate the perception of cultural differences or natural reactions to them.

Federalism, and even separation, can be natural reactions to real cultural differences. De Bruykere has a point in urging, “We have to organise ourselves in such a way that the different problems can be answered. One size fits all is not a solution.” While this dictum pertains especially to empire-scale unions such as the E.U. and U.S., it can also apply to heterogeneous states such as Belgium and Illinois. Just as the Chicago region ought not dominate the other regions of Illinois, Flanders ought not dominate Wallonia. That the two republics are themselves states in empire-level federal systems can be expected to relegate the “shock” thought to ensue from the partitioning of either Belgium or Illinois.

Even as prejudice can exaggerate the salience of extant cultural differences, being in an overarching federal system can be an asset in dealing with them. Belgium being a state in the E.U. can take some of the pressure off the Belgian government by having a more activist E.U. presence in the state (e.g., dealing directly with Flanders and Wallonia). Alternatively, the E.U. can facilitate Belgium in reconfiguring into two states or in splitting off into the Netherlands and France. Accordingly, Belgians, whether Flemish or Walloon, can afford to take a breath and gain sufficient perspective to stop clutching in fear to what has been at the very least a rather uncomfortable status quo.


BBC News, “Rich Flanders Seeks More Autonomy,” September 30, 2008.

Bruno Waterfield, “Flemish-Speaking Belgian Minister Wants English To Be Europe’s ‘Common Language’,” The Telegraph, September 27, 2010.

Sunday, June 19, 2011

Mind-Games: On the Self-Regulatory Market

Two days after the LTCM bailout was agreed to in 1998, a worried Alan Greenspan, leaning toward raising rates at the time, cut the federal funds rate. It was not enough to calm the markets, and he cut it again three weeks later. . . . It was not the self-correcting powers of the markets but aggressive central bank intervention plus a new round of irrational speculation that provided a floor under the downward financial prices and the calamitous consequences of bad Wall Street decisions. It was not even the LTCM rescue alone by private banks that saved Wall Street” Madrick, p. 281).
“Alan Greenspan learned no lessons from these events about the inherent instability of a completely free market in finance. He still insisted markets regulate themselves” (Madrick, p. 282).
Milton Friedman believed that government regulation keeps markets from being efficient; he assumed that the market mechanism is capable of regulating itself. That increasing uncertainty and risk might reach a point that a market mechanism would freeze up, or collapse, rather than simply incorporate the increased volatility through pricing is a point extrinsic to the efficient market thesis. That theory submits that markets tend toward equilibrium, rather than spiraling out of control.
Testifying before Congress after the credit crisis of 2008, Alan Greenspan was asked by Henry Waxman (D-Calif) whether the government-averted credit-market collapse had prompted any revision of the retired Fed Chairman’s economic paradigm. Greenspan admitted to a flaw in the ointment of self-regulatory market theory. In spite of 40 years of evidence to the contrary, official Washington’s font of economic wisdom had drawn a blank.
Lest the human mind be left without an operative paradigm by which one can make sense of the world, by mid June 2011, Greenspan had mentally reduced the fly in the ointment to a mere footnote. Asked by Charlie Rose on The Charlie Rose Show what how the crisis had changed his understanding of the market mechanism and economics, Greenspan admitted his surprise that bank CEOs do not always operate their banks so as to keep them solvent. This is how the financial crisis of 2008 had changed his view of the market mechanism after all. Of course, such a fault could be attributed to distortive government regulation (e.g. regulation Q limiting deposit interest) rather than to some inherent weakness in the market mechanism being able to regulate itself.
Greenspan had backtracked; he had unlearned his lesson much like an alcoholic “forgets” that he or she has admitted to having a drinking problem.  Faced with a fundamental flaw in a paradigm on which it relies, the human mind can succumb to retreating to the safety of denial. In his Structure of Scientific Revolutions, Thomas Kuhn tells us that it can be a generation before the downfall of a reigning paradigm is finally recognized, after the current proselytizers have passed and the people to come, without a vested interest in the prevailing paradigm, have taken their place. Perhaps it is only the human mind writ large (i.e, intergenerational) that advances, or really learns.
Lest we have to wait for the dead to bury themselves, we can affirm and acknowledge right now that the market-mechanism is not inherently self-regulating, and that this flaw is not caused by government regulation. Instead, markets can collapse—just as a human being freezes up from fear when risk and uncertainty hit a certain threshold—only to be revived by governmental intervention.  

Jeff Madrick, Age of Greed: The Triumph of Finance and the Decline of America, 1970 to the Present (New York: Alfred A. Knoff, 2011).

Judicial Ethics: Friendship and Philanthropy

Harlan Crow is a Dallas real estate magnate and a major contributor to conservative causes. He has done many favors for his friend, Clarence Thomas, “helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for [Virginia] Thomas to start a Tea Party-related group.” The two friends have also spent time together at “gatherings of prominent Republicans and businesspeople at Crow’s Adirondacks estate and his camp in East Texas.” Crow also “stepped in at Thomas’ urging” to finance the multimillion-dollar purchase and restoration of the cannery that had employed the justice’s mother. Crow’s restoration “featured a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s. . . . While the nonprofit Pin Point museum is not intended to honor Justice Thomas, people involved in the project said his role in the community’s history would inevitably be part of it, and he participated in a documentary film that is to accompany the exhibits.”

News “of Mr. Crow’s largess [has] provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges. Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code.”

“The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them. . . . (T)he restriction on fund-raising is primarily meant to deter judges from using their position to pressure donors, as opposed to relying on ‘a rich friend’ like Mr. Crow, said Ronald D. Rotunda, who teaches legal ethics at Chapman University in California.” On the other side of the argument, Deborah L. Rhode, a Stanford University law instructor who has called for stricter ethics rules for Supreme Court justices, said Justice Thomas “should not be directly involved in fund-raising activities, no matter how worthy they are or whether he’s being centrally honored by the museum.”

Ethical Analysis:

Ethical analysis is hardly an objective science. Nietzsche’s view that a philosopher’s philosophy is merely a reflection of his or her most dominant instinct expressed via cognition seems particularly relevant. In other words, out of the tussle of one’s instincts one remains and it can be expressed as one’s thought. For instance, the thought that first came to my mind in reading the Times article was that exempting U.S. Supreme Court justices from the judicial ethics code violates the ethical principle of fairness. This “first find” ethically-speaking seems to me to be the most indubitable conclusion of the case, ethically-speaking. However, my perception as well as “the salience” of the principle of fairness may have more to do with which of my instincts is most dominant in my psyche than any objective determination of ethical outcome.

The principle-instinct of fairness could be so dominant for me because it was conditioned as such through my early years. Specifically, I have a brother who is 1.5 years younger than me, and the closeness in age meant that the principle of fairness was seldom far removed when we were kids. For instance, awhile after we moved to a house my parents had had built, they made split our large, shared bedroom into two. The question not far from the surface all around was “is the space equal?”—as if square feet would matter to two boys (we eye-balled it and concluded the rooms were “fair enough”).

What instinct and supporting personal experience lies behind the lawyer’s thou shalt not claim that justices should not be involved in fundraising PERIOD? Is there an ethical principle in that asseveration? Considering that the lawyer at Stanford does not have a graduate degree in ethics (or law, for that matter), her declaration is highly likely based on a dominant instinct that has an urge to express itself in the garb of ethical language.

The lawyer at Chapman is more discerning, pointing to the purpose in the ethical prohibition on fundraising: the point is to keep justices from using their influence to get rich people to donate. In the case of Justice Thomas, it appears that Harlan Crow has wanted to make his donations. This, unlike had Thomas used his influence to secure the gifts, is not ethically problematic. The ethical problem would arise should a matter of concern to Crow come before Thomas’ court; the justice would be ethically obliged to recuse himself to obviate his personal conflict of interest. Announcing such a conflict would not be sufficient, as the underlying temptation to lean in favor of the benefactor would still exist; it would simply be apt to be better camouflaged by legalese. Of course, should a justice choose not to know the sources of beneficial donations, recusals to avoid such conflicts of interest would be less likely.

Therefore, one way to play it ethically is to allow the particular justice to decide how much he or she wants to avoid having to recuse based on knowing the identity of a benefactor. Hardly objective, this ethical strategy is one of several that are possible. It reflects empowering individual justices to determine the extent to which they want to subject themselves to the possibility of having to recuse to avoid a conflict-of-interest. The principle of boyhood fairness insists that the strategy be applicable for any federal judge, without exception. 

Last but not least, the field of judicial ethics would be better served if American law schools would follow their European counterparts in hiring legal scholars (i.e., holders of the doctorate in law, the J.S.D.). Also, a scholar of judicial ethics should have at least one degree in philosophy (ethical theory)—preferably a masters or a joint Ph.D./J.S.D.


Mike McIntire, “Friendship of Justice and Magnate Puts Focus on Ethics,” The New York Times, June 18, 2011.