Why I Respect Eugene Volokh

Background: There's been back and forth on the web over some legal proposals from the 1970's in which Justice Ginsburg was involved. The issue is whether the proposal intended to lower the federal age of consent from 16 to 12 or something else. Eugene Volokh has taken the first position in the past but now changes his mind:

"It Looks Like Justice Ginsburg Likely Was the Victim of a Drafting Error after all; and it looks like I erroneously failed to recognize just how likely this was to be an error."

I think I'd rate bloggers according to the following criteria:

1 How predictable are the person's opinions
2 Does the person come up with information or issues not found in other sites
3 Does the person respect his/her adversaries
4 Does the person admit errors

Professor Volokh rates high on these items and raise The Volokh Conspiracy above the ruck.

Lessons of the Hurricanes for Liberals

Some liberals have gloated after Katrina, saying in effect that the disaster proves how much we need government. I agree, but if disaster reveals some truths, there's also a lesson for liberals. Unfortunately, it's not one that conservatives are likely to highlight. The lesson: government, emergency government, is an open feast for the big shots, the influence peddlers and gladhanders. It reminds me of Madison's wisdom in Federalist No 51, commenting on the need for separation of powers:

"Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no governme nt would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. [The fact that Madison viewed government in terms of "control" shows the changes between 1789 and now]"

The evidence for the pigs at the trough is everywhere, but see Steven Pearlstein in yesterday's Post and the related on-line discussion.

Do Institutions Make a Difference?

In the MSNBC blog, the major in Iraq praised the captain who reported abuse of prisoners (Fishback?) as an exemplar of what's good in the Army. The major's fiance wrote questioning the praise, including this bit:

"Forgive me if I am being too cynical, but I b elieve the Army is only as good as the individuals that make it up. As with any institution - indeed any group of human beings. I think you'd agree. I know you believe the men and woman of our Army are the finest to have ever walked the earth as soldiers (I do not say that with sarcasm)... yet this belief brings us to the question:

Is it the individual natures of those men and women that make them the most humane (might we say?) Armed Force ever? Or is it the laws, guidelines, institutional infrastructure and ways of enforcing ethics that make them what they are?"

I'm sure she is an admirable person, but I have to come down on the side of laws and institutions. I remember reading in the late 50's in the National Review an article, perhaps by Buckley, who argued against the pending Civil Rights Act on the basis that laws could not change what's in human hearts. He made a good argument. But we learned different. Laws, and the Airborne's bayonets, could change human behavior and behavior changed human hearts. To maintain the opposite we'd have to say that Hitler was simply a representative German, reflecting the evil in the hearts of his countrymen.

Power Line Praises Bureaucrats

I suspect this is a one off, from Power Line:

"After I spent several decades working in the private sector, in constant contact with the public sector, I realized that both politicians and civil servants are much more capable than I had assumed--fully equal to leaders in the private sector, and sometimes superior. "

REMF and Nam

Full disclosure: I've read and liked several of Tracy Kidder's books. Like Mr. Kidder I graduated from a good university and ended up in Vietnam in a non-combat role (EM generator operator, while he was an orifice in the Army Security Agency (related to NSA)). It's quite possible his new book, My Detachment, reviewed in the Times today is poor. But Ms. Kakutani is in error when she says the following:

"It's hard to sympathize with the young, self-aggrandizing Mr. Kidder, and the older Mr. Kidder makes matters worse by trying to draw gross generalizations from his own experiences. Extrapolating from his own uneventful tour and the fictionalized stories he concocted, he writes: 'Of the roughly three million Americans who went to the war dressed as soldiers, only a small minority returned with Combat Infantryman's Badges, certain proof of a terrible experience.' He later adds: 'I thought a good monograph might be written about the debasement of medals during the Vietnam War. In ASA' - the Army Security Agency - 'anyway, virtually every officer got one, just for showing up.'"

I share this generalizations and firmly believe they are true. I've had difficulty tracking down authoritative sources on line. For REMF's the best I can come up with is this table:

As of 1 January 1968

Force	Total Strength	Support	Combat Arms
US Forces	409,111	346,260	62,850

So only 15 percent of the troops in Nam would have been eligible for the CIB, at most (since some combat arms aren't infantry).

It's interesting to speculate--is Ms. Kakutani succumbing to the glorification of soldiers and war that appears always to set in. If so, an ironic turn of the circle for the NY Times.

Lessons of the Hurricanes

Today's Wash Post Outlook section has two articles drawing lessons from the response to the hurricanes:

A doctor who traveled to Louisiana to help opines:

Good Samaritan Overload: "First, I don't think there's any doubt that there will be an intense medical response to any tragedy that strikes this country. Our doctors and other medical personnel, like people from scores of other fields, will react with an outpouring of time and effort to help their fellow citizens in any way they can.

The second lesson, though, is that this response should be coordinated and stratified. There should be a pre-set list of first, second, third and fourth responders ready to be activated and sent to a disaster area as needed by a central command. "

A science writer, observing reports from the scene, says:

"Overruled.

But preparation -- even when it hews closely to the "game plan" -- only gets you so far. In the coming days, people with varying levels of authority all along the Gulf Coast will likely have to make many decisions. Often they'll have to make them quickly, alone, and without experience to guide them. Let's hope they have learned one more thing from Katrina: Sometimes you need to break the rules to avert greater disaster."

So, one asks for more bureaucracy, more coordination, more rules; the other says we need to break the rules. Which is it?

As usual, I think "Both". There's an absence of coordination among different bureaucracies. There's a report that the military has learned to apply a standard grid to the landscape, as they do in military operations, just to coordinate rescue flights from different organizations. And there's the danger of a bureaucracy following ordinary rules in an extraordinary situation. (I remember in the aftermath of the 1991 hurricane that devastated Dade county, we had to bypass our normal validity checks so that data could be quickly loaded.)

Mr. Brown cites liability issues and tunnel vision issues. We need to come up with a list of Good Samaritan waivers--I believe that doctors in some states who pull over to treat an emergency patient on the road are given immunity from liability. And we need to encourage initiative. But the public also needs to recognize the tradeoffs. There's a report today that the bus involved in the fire in Texas that killed 24 people was operating under a waiver granted by the governor of Texas. Bureaucratic rules often have a valid purpose, and bypassing them carries risks that we must recognize up front.

The Safety of Crowds

I've often thought but never posted that our (ordinary citizen) safety in the US is that of being in a crowd. But this post, via Volokh shows that others can feel safety in a crowd:

"The Volokh Conspiracy - -: "AP reports on some incidents, and quotes Houston Police Capt. Dwayne Ready, who makes a good point — in a way obvious, but perhaps not entirely clear to every one:

“I think the key element in looting is the fact that those who would not otherwise engage themselves in criminal activity (join in) and believe they will be able to hide in the crowd,” Ready said. “It’s the difference between an unlawful assembly and a riot. Essentially (looting) is theft but I think its when the crowd believes they can hide against the anonymity of a large crowd engaged in the same kind of conduct.”"

New York Times Is NOT PC

From yesterday's Times comes this:

The Case of the Servant With the Fur Collar - New York Times:

"Why was she wearing fur?

That was one of the first questions experts asked when they began studying a 17th-century portrait of a woman who had the unmistakably stolid face of a servant but was decked out in a sumptuous fur collar. And why did the light on her face appear to be reflected off the dark surface of that collar when it should be absorbed by it?"

Do the editors of the Times really believe you can identify who is a servant by looking at faces? (It's possible the reporter was simply transmitting the views of one or more art experts.) I'm sure they don't, so this is just an example of how easy it is for people to slip into stereotypes.

Have Americans Usually Supported Their Wars?

I was surprised by the part of this article describing the contemporaneous WWII Gallup polls. My faint memories include saving tin cans and gas (my grandfather's big yellow car parked in our garage for the duration) and clothing made from flour sacks. Even so, the questioning of the war was more evident than I would have thought. Of course, Feb. 44 was before D-Day. The allies were bogged down in Italian mud and MacArthur was a long way from returning.

Have Americans Usually Supported Their Wars?: "In the twentieth century, as Hazel Erskine demonstrated in her widely cited 1970 article, 'Was War a Mistake?' (Public Opinion Quarterly), 'the American public has never been sold on the validity of any war but World War II.' She noted that as of 1969--a year after the Tet Offensive and the brief invasion of the American embassy in Saigon--'in spite of the current anti-war fervor, dissent against Vietnam has not yet reached the peaks of dissatisfaction attained by either World War I or the Korean War.'"

Bureaucrats Vindicated?

The Washington Post Federal Page reports on some research here: "It turns out that the career managers, on average, do a better job of running federal agencies than the political appointees do. So says a 41-page study by political scientist David E. Lewis of the Woodrow Wilson School of Public and International Affairs."

It compares OMB's ratings of programs run by career bureaucrats versus those run by political appointees and finds the former do better. (Trigger the fireworks, let's celebrate.)

However, as an ever-cautious bureaucrat, some skepticism is in order--Dr. Lewis may be comparing apples and oranges. For example, in USDA circa 1970, the Soil Conservation Service was run by careerists, Farmers Home administration was run by politicos. But the programs were different--SCS was more "scientific" and less controversial than the loan-making functions of FmHA. I'd guess that there's a high correlation between "careerist" managers and "scientific" (i.e., not politically controversial) programs. That raises the issue of whether it's easier in some sense to run a program where the outcomes are more knowable and can be judged by clearer criteria. The question answers itself.

Political appointees run agencies that the public as a whole does not trust. The decline of trust in government over the past 40 years has been paralleled by an increase in the number of politically led agencies.

So while the work of Dr. Lewis is welcome, I'm going to save my fireworks.