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Friday, November 2, 2012

E.U. Directives: Applicability to American Federalism

Far from having gone off the court to an easy retirement in the Bahamas, U.S. Supreme Court justice John Paul Stevens found a calling in advocating the addition of four words to the U.S. constitution, here put in italics: “The laws of the United States . . . shall be the supreme law of the land; and the judges and other public officials in every state shall be bound thereby.” While the proposal seems innocent enough, and even a matter of progress after the fashion of the E.U. Stevens’ rationale befits the more general shift at the time from federalism to consolidation in American governance.

The complete essay is at Essays on Two Federal Empires.

Thursday, November 1, 2012

Florida Ballot 2012: Legalese Disenfranchising Voters

In elections, popular sovereignty is exercised by an electorate. Such sovereignty is above that of governments (i.e., governmental sovereignty). Typically, popular sovereignty (i.e., the will of the people) is limited to filling public offices from candidates or write-ins. In the last few decades of the twentieth century, California effectively expanded the power of popular sovereignty by adding a number of referendum questions to the ballots. Even though the popular sovereign (i.e., the direct will of the people) can make mistakes—such as requiring a 2/3 legislative majority to pass a tax increase in California—the expansion from merely filling public offices to actually making policy and even law is from a democratic perspective a good thing. The problem, it seems to me, lies in how the questions are written. In particular, they must be written in such a way that they are understandable to the typical voter. Writing a question, whether on policy, law, or a constitutional amendment, in legalize circumvents popular sovereignty. Such an approach defies common sense itself, and yet it was done in spades (and impunity) by the Florida legislature in 2012, placing the Florida electorate in a nearly-impossible position as the popular sovereign.

                                                                                                                             Flag of Florida 

Concerning the 2012 election in Florida, The Florida Times-Union in Jacksonville wrote, much “of what’s on the ballot is legalese and difficult-to-understand wording associated with the amendments.” The newspaper advises Florida’s citizens, “To save time, it will help to know what each amendment does, how you want to vote, and if a “Yes” or “No” achieves that desired vote. In short, be prepared.” Much too much is assumed in this advice concerning the wherewithal of the typical citizen to make sense of the technical legal words, and even to research each question before voting in order to understand what the  technical language means (assuming that the typical voter is going to wade through even the newspaper’s own deciphering).  In general, assuming too much of an electorate reflects negatively not on the electorate, but, rather, on the legislators who crafted and approved the ballot’s language.
For example, the matter of the third proposed amendment on the Florida ballot was put to the voter in the following words (from the ballot): “This proposed amendment to the State Constitution replaces the existing state revenue limitation based on Florida personal income growth with a new state revenue limitation based on inflation and population changes. Under the amendment, state revenues, as defined in the amendment, must be deposited into the budget stabilization fund until the fund reaches its maximum balance, and thereafter shall be used for the support and maintenance of public schools by reducing the minimum financial effort required from school districts for participation in a state-funded education finance program, or, if the minimum financial effort is no longer required, returned to the taxpayers.” Besides the basic, rather obvious point that the typical voter could not possibly be expected to understand this language (and yet someone approved it nevertheless!), the language assumes that the voter knows what goes into the existing revenue limitation (and can thus compare it with basing a limitation on inflation and population changes). Furthermore, the voter is assumed to be familiar with what a budget stabilization fund is, and able to assess its dynamic (e.g., maximum balance, etc.). The proposal is so specific, moreover, it may be misplaced as basic or constitutional law rather than as a mere statute. Indeed, the decision on the question is more along the lines of governmental than popular sovereignty (i.e., the elected representatives, who write laws and thus either understand the legalese or have a staff that does).
Supposing perhaps that the typical voter has a real estate brokerage license, the fourth proposed amendment on the ballot states in part: “In certain circumstances, the law requires the assessed value of homestead and specified nonhomestead property to increase when the just value of the property decreases. Therefore, this amendment provides that the Legislature may, by general law, provide that the assessment of homestead and specified nonhomestead property may not increase if the just value of that property is less than the just value of the property on the preceding January 1, subject to any adjustment in the assessed value due to changes, additions, reductions, or improvements to such property which are assessed as provided for by general law.” The legislators erred, in my view, in projecting their own language onto the general public, and, moreover, in conflating what is actually a statute with constitutional language, which is (or at least should be) much broader.
Another proposed “amendment” would provide “an exemption from ad valorem taxes levied by counties, municipalities, school districts, and other local governments on tangible personal property if the assessed value of an owner’s tangible personal property is greater than $25,000 but less than $50,000.” Besides the latin term and legal jargon, the specification of the dollar figures is clearly statute-level rather than constitution. I have a bachelor’s degree in Accounting and I would have trouble with defining “ad valorem taxes.” I cannot imagine a person, especially if elderly, who has not worked in business being able to make sense of the proposal.
As a final example, one might wonder how the following proposed “amendment” is at all constitutional, not to mention being of sufficient importance that the legislators—the agents of the popular sovereign—could not be entrusted with making the decision. The proposed “amendment” would “replace the president of the Florida Student Association with the chair of the council of state university student body presidents as the student member of the Board of Governors of the State University System.” The typical voter might legitimately wonder, what is the council of state university student body presidents, and is it really much different than the Florida Student Association? Moreover, why am I being asked to decide this?
The truly unfortunate thing about Florida’s bastardization of popular sovereignty is that sensible proposals to expand popular sovereignty could face rejection based on experiences such as Florida's attempt in 2012. So many reasons go into why voters elect a person to an office that it is impossible to say that the voters have expressed a will on a given policy by electing a particular candidate. Whereas the typical voter does not have a basis in real-estate, accounting and law (i.e, all three!), he or she could be expected to reflect on and give an answer to questions such as, should abortion be illegal, should the U.S. give aid to Israel, should military spending be cut, should Florida provide subsidized health insurance to residents unable to afford it, and should property taxes be cut to reduce the deficit or raised to add funding to roads and education? A legislature could even add some non-legal terms to such questions to clarify them without losing the typical voter, and testing such questions by using focus groups could add confidence that the legislators have not unwantedly projected too much of their own world into the wording. Additional specificity could be handled by the agents (i.e., the legislators), as per the nature of principal-agent relationships.
In short, expecting too much from the electorate is not only utterly unfair to the voters, it also risks undercutting real progress on popular sovereignty, an electorate being fully capable of deciding general policy and even law, with the legislative agents then being tasked with writing the expressed general will into legal language.
Concerning proposed constitutional amendments, the legalese could be provided below a description that voters can understand without any assumed expertise beyond a high-school reading level, as if to say, this is how the amendment would look in the constitution. In fact, statute language could be provided under general policy language on questions regarding policy or an important statute. Because popular sovereignty is superior to governmental sovereignty, that which a legislature puts to the electorate to decide must reach a certain threshold of importance. Deciding on contending student representatives so obviously does not meet this test that one might wonder whether the Florida legislature is fit even to legislate, much less address matters to the agents’ principal—the voters as a group.
Lastly, to the extent that legislatures have been confusing statute from constitutional levels in terms of breadth, legislators would be wise to assign to a committee the task of distinguishing what is properly constitutional from what is of such specificity to be statute law. I suspect that state constitutions in the U.S. would have to be redrawn to correct for decades of category mistakes. Although Florida’s approach to popular sovereignty in 2012 was particularly, well, stupid (to state it bluntly), I suspect that other state legislatures are fully capable of making similar mistakes, particularly in trivializing their constitutions into a way to add statutes as though they were amendments. One might wonder whether the legislators knew much at all about their respective constituents.
Ironically, the legislative decision in Florida to ask the electorate to decide questions on the basis of technical language that could not possibly be understood by the general public is in itself a good reason to expand popular sovereignty at the expense of governmental sovereignty. However, this must not be done so as to put the voters in an impossible situation—that of being asked to decide matters by reading language that they cannot possibly understand. This is not rocket science, folks, even in the state where rockets had been launched for decades.


Matt Dixon, “Florida Constitutional Amendments: Voter’s Guide,” The Florida Times-Union, October 13, 2012.

Read more at Jacksonville.com: http://jacksonville.com/news/metro/2012-10-13/story/florida-constitutional-amendments-voters-guide#ixzz2Azfj6zDL

The Russian Orthodox Church as a Political-Moral Force

While visiting the Pskovo-Pechersky Monastery in northwestern Russia in 2000, Vladimir Putin wrote in the guest book, “The revival of Russia and growth of its might are unthinkable without the strengthening of society’s moral foundations. The role and significance of the Russian Orthodox Church are huge. May God protect you.” This statement is revealing concerning what has perhaps fueled the Russian president’s vision, at least ideally.
First, Putin may have a historical perspective, meaning that he did not come into office merely to gain power by enriching his connections (i.e., the oligarchs) and make use of Soviet authoritarian tools he had learned while working at the KGB. Rather, I suspect he looked back at the Czars who had made Russia into an empire well before the Soviets came on the scene.  
Second, Putin’s habit of being a road-block on the UN Security Council may extend beyond his embrace of the absolute or unfettered national sovereignty doctrine to exercising (or announcing) Russia’s might as one empire alongside the E.U., U.S. and China. That is to say, using the veto can effectively demonstrate might without the cost of a military show of force.
Third, Putin wanted to send a signal of his support for the Russian Orthodox Church. Not unexpectedly, the New York Times reported in 2012 on the continuance of the ascent of the Church as a political force in Russia. At the time Archimandrite Tikhon Shevkunov stood “at the center of a swirling argument about the church’s power and its possible influence on [Putin].” Shevkunov’s claim that Putin had saved Russia from “vulgar liberals” who nearly destroyed Russia in the 1990s  must have been music to the sitting president’s ears. Interestingly, however, when the cleric is said to have referred to modern Russian women to “a drunk girl standing by the bus stop,” Putin reportedly replied, “Father, you have gone too far.” Nevertheless, to have such a traditionalist Church on such a sort of power trip in the earthly realm can be dangerous to society in terms of what I would call moral dogmatism.
                                                             Archimandrite Tikhon Shevkunov, head of the Sretensky Monastery in Moscow    NYT
Putin’s identification of the Church with the “strengthening of society’s moral foundations” could lead to those foundations being narrower than simply that which is moral. In other words, a particular view of what counts as moral could delimit the contours of the moral foundation of the society. Such an approach would be dogmatic in the sense of being arbitrary because equally valid moral standpoints differing from the Church’s position would be excluded even though they are moral.
Moreover, to conflate religion and morals as being one and the same ignores the fact that there are many immoral acts lauded in the Bible. More abstractly still, human moral systems, unlike theological claims, are not transcendent in that moral theories are based in our domain. To be sure, religions such as the Abrahamic faiths include moral strictures among the divine commands, but even here the moral commandments are second to the theological ones (or are derived from them and stated very broadly, as in “love your neighbor”). Put another way, were specific moral claims or principles on the same level as the theological, the Book of Job would not make sense. Job was morally not at all blameworthy and yet the theological point of God’s omnipotence (all-powerful) means that the theological cannot (by definition) be limited by what we think is moral. For us to say that Job does not deserve to suffer cannot trump God’s power, as if God were limited by our moral judgments. Do Russian Orthodox lay persons really believe that God likens Russian women to drunk sluts at a bus stop just because Shevkunov happens to hold that opinion?  I doubt it. Moreover, I doubt that God would have “vulgar liberals” inserted into the Bible. For one thing, some of the more sexually “immoral” (by modern standards!) acts by some of the heroes in the text would have to be expunged.
Sanctioning particular moral views by theological claims and then using political influence such that those views become the cement walls of society’s moral foundations unfairly excludes other moral views from being part of the moral foundation. This is particularly relevant in the case of an empire because it is by definition heterogeneous (i.e., diverse). Different cultures had been brought into Russia at least by the death of Peter the Great. Unless there are moral universals that extend to particular applications, one can expect (as fully legitimate) there to be a bricollage of moral values interlaid in the foundation.  To identify the foundation itself with a particular institution—and one that is not primarily oriented to the moral dimension—is to ask for trouble, as the moral perspectives that are dogmatically excluded must surely in their very legitimacy press their case, either formally or as mounting pressure politically.


Sophia Kishkovsky, “Russians See Church and State Come Closer,” The New York Times, November 1, 2012.

Monday, October 29, 2012

Wiley Punishing Resellers: Beyond Profits

Publishers sell English-language textbooks at lower rates in developing countries. Such “cut-rate foreign goods” are a staple on e-Bay. In late October 2012, the U.S. Supreme Court heard arguments on a case that pits the practice against the claims of publishers of copyright infringement. The case began when Wiley accused a USC doctoral student of copyright infringement and won a $600,000 judgment. The student not being able to afford the judgment, Wiley successfully urged the judge to take the student’s golf clubs and his computer after his graduation—as if sending the student to his room without dinner even though the vase is still broken. Clearly, the clubs and computer could not come even close to covering the judgment. Given the lack of publicity on the particulars, I doubt that the terms were even designed to be a deterrent. If I am correct, the motive comes from more of a “stick it to him” mentality. Whereas a legal analysis of the case is doubtless most typical, I want to try to uncover the sordid nature of this mentality behind the “clubs and computer” slap-down.
The publisher’s mentality, while perhaps quotidian in American business, might seem quite small, or even vindictive, to readers not familiar with American managerial culture. That culture can also be seen as distinct in that American cable and satellite companies stopped foreign public/cultural-affairs television networks such as Deutsche Welle and TV 5 Monde from broadcasting live on the internet in the United States. My understanding is that at least in the case of DW TV, the live feed is blocked “for legal reasons” only in the United States. “We will stop you from watching even if you would never buy from us” may be the underlying mentality, which I suspect is a rather unique (and unfortunate) feature of American business. Beyond greed, the mentality evinces a certain aggressiveness enabled by a sense of power. This goes beyond the control-fixation so encased in American management to resemble Nietzsche’s description of the new bird of prey, which seeks to dominate even though it is intrinsically weak rather than strong. In other words, the American manager might be of this species.
The behavior of Wiley’s executives in the case that reached the U.S. Supreme Court illustrates how the pathology goes beyond greed. Concerning greed first, by wanting to control copyright (and thus profit) beyond having profited already off the first sale of a textbook, Wiley was “prepared to milk every penny out of people they believe are infringing,” according to Kirtsaeng’s Supreme Court lawyer, Joshua Rosenkranz. Even graver than wanting to milk every penny, the publisher’s managers had wanted to derive a student of his golf clubs and his computer. In other words, the motive had moved beyond being merely financial in nature. It could even be said that as squalid as greed is (i.e., milking every penny), going on to non-financial infliction in business evinces a certain sort of pathology (not to mention category mistake) that I suspect has somehow been allowed to creep into the culture of American business. People around the world would simply respond by saying, “of course, we have known that for some time; you are just now noticing it?” For Americans such as myself, the matter is perhaps like the fish straining to become aware of the water itself, as water. Perhaps the joke has been on us, known only by others. Being wealthy does not make a society necessarily insightful or self-reflective.
                                                                                                     Perhaps Wiley's managers know the gig is up on paper books?     Source: lacrosselibrary.org

One might ask oneself: Is the operative mentality in American business one of not only greed (i.e., milking the last penny out of even a good customer—loyalty going only one way), but also passive aggression?  If so, does the aggression even bother to stay in line with even the profit-motive of the business? Applying Nietzsche’s theory, one would point to the aggression, or cruelty, as a motive oriented to the strong by the weak who nonetheless have an urge to dominate. In other words, managers may use their power (not strength!) in retaliation against stronger castes (e.g., doctoral students), even though the strong cannot but be so. In other words, the retaliation itself is misplaced, no doubt from the blindness of jealousy. That such blindness can be indifferent even to profit shows just how ill-fitting the sickness is in a business context.
In the case of Wiley, winning the case as a precedent was in the publisher’s financial interest even if extending copyright protection to re-sales by owners is not fair or just. Reading that Wiley managers asked the judge to take the graduate student’s golf clubs, did you even think in financial terms? I suspect that your reaction to the managers would be against them as persons—like, come on guys, grow up. Rather than teaching the student a lesson, the managers at Wiley were behaving like misbehaving schoolboys (and girls) in being such bad winners. In short, we do not even adopt a business mindset in evaluating the odd request, much less even think financially. We are human beings, after all, but so too are the managers at Wiley. Human, I would say, all too human.
I am reminded of a line in the Godfather movie: It’s not personal, Michael. The pathology at issue presumes to make it personal. For this reason, I suspect the dysfunction cares very little about the financial. In this respect alone, the pathology does not belong in a business meeting. That the infantile sickness (think of a boy enjoying squashing a bug) could be allowed to infect even the executive suite (e.g., Dick Fuld at Lehman Brothers is a great example) suggests that American business is justly viewed from (and kept at) a distance by people in other cultures. In this regard, it is interesting that when the U.S. Supreme Court was hearing his lawyer’s arguments, Supap Kirtsaeng was a professor of math at Silpakorn University in Bangkok.

Brent Kendall and Wilawan Watcharasakwet, “High Court Dives into Resale Trade,” The Wall Street Journal, October 29, 2012, pp. B1, B6.

German Conservatives Ease Up on Greece

During the summer of 2012, it was all too easy, especially for financial analysts (whose expertise is on finance rather than politics), to summarily conclude that the E.U. was not capable of keeping the states of Greece and Spain from default. Perhaps the human brain has an innate proclivity to think in bipolar terms in the sense that something (or someone) is presumed either “good” or “bad.” Empirically, social organization, which includes politics and finance, is typically more gray than “black and white.” This is undoubtedly the case concerning the political risk analysis that goes into assessments of systemic risk, especially where uncertainty is salient. In general terms, I would say that as of 2012 the anticipated demise of the euro (and even the E.U.) was much exaggerated. Somehow or other, European policy-makers were able to hold the federal ship-of-state together in spite of its vulnerabilities.
The full essay is at "Essays on the E.U. Political Economy," available at Amazon.