Tuesday, June 30, 2015

Greece Defaults on IMF Loan Payment

Greece, the cradle of Western Civilization, is a sunny, happy place, but they have problems. They've been profligate and have enjoyed their Mediterranean lifestyle too much. Today they defaulted on a $1.7 billion loan re-payment to the International Monetary Fund. The IMF provided emergency funding in 2010; and the understanding is that when the IMF provides you emergency funding you will repay them first. To stiff the IMF is bad for your national fiscal outlook. It has seriously put Greece’s credit at risk, forced Greece to impose a six-day bank holiday in order to stave off a bank-run, and some people say it may presage a Greek exit from the common European currency, the Euro, and from the EU itself.

This would be a disaster for Greece and the European Union both. 

Eleven million people live in Greece. Their economy measured a GDP of $242.2 billion in 2013, and the CIA factbook reports they have a national debt of ~$568 billion. Government debt to GDP is alternatively reported at 177% (don't ask me how these get reconciled).

Greece's national debt, though large compared to its economy, is not a big deal for the EU as a whole to digest with its $17 trillion economy—if only they wanted to.  As a result, it sure seems like there is more family drama involved here than necessary….

Nearly a decade ago, … [the] probability of a Grexit, or any Otherexit, I confidently asserted, was vanishingly small…. So where did this prediction go wrong? My analysis was based on a comparison of economic costs and benefits of a country exiting the euro. The costs, I concluded, would be severe and heavily front-loaded. Raising the possibility, however remote, of exit from the euro would ignite a bank run in said country. The authorities would be forced to shutter the financial system. Economic activity would grind to a halt. Losing access to not just their savings but also imported petrol, medicines and foodstuffs, angry citizens would take to the streets. Not only would any subsequent benefits, by comparison, be delayed, but they would be disappointingly small. With the government printing money to finance its spending, inflation would accelerate, and any improvement in export competitiveness due to depreciation of the newly reintroduced national currency would prove ephemeral.

In Greece’s case, moreover, there is the problem that the country’s leading export, refined petroleum, is priced in dollars and relies on imported oil, which is also priced in dollars. So much for the advantages of a depreciated currency. Agricultural exports for their part will take several harvests to ramp up. And attracting more tourists won’t be easy against a drumbeat of political unrest.

In other words, Eichengreen thinks the current Greek government is foolish indeed to be flirting with default and an early exit from the EU. But the miscalculations of the European Commission, the ECB, and the IMF, he says, are worse:

The three institutions opposed debt restructuring in 2010 when the crisis still could have been resolved at low cost. They continued to resist it in 2015, when a debt write-down was the obvious concession to Mr Tsipras & Company. The cost would have been small. Pretending instead that Greece’s debts could be repaid hardly enhanced their credibility. Instead, the creditors first calculated the size of the primary budget surpluses that Greece would have to run in order to hypothetically repay its debt. They then required the government to raise taxes and cut spending sufficiently to produce those surpluses.

They ignored the fact that, in so doing, they consigned the country to an even deeper depression. By privileging their own balance sheets, they got the Greek government and the outcome they deserved.

Anil Kashyap at the University of Chicago School of Business has published a useful guide to the crisis, A Primer on the Greek Crisis. He agrees that one of the problems is that, in connection with bailouts in 2010 and 2012, the European Commission, the ECB, and the IMF forced Greece to adopt stringent austerity measures: reducing government spending, laying-off workers, reducing pensions, and increasing taxation. These austerity measures resulted in 25% unemployment (56% among youth), and a severely depressed economy.

Here is an interesting chart from Matt Yglesias (at Vox) to explain how Greeks and Northern Europeans see the current crisis differently:

"The magenta line is more or less how things look to Greek people. Since 2008 or so, under the watchful eye of European Union elites (the central bank, the European Commission, the International Monetary Fund, the government of Germany, etc.), the Greek economy has completely collapsed. And the Greek population has been thrown into a state of dire immiseration.

"The yellow line reflects more how things look to European officialdom. Greece is about on track for where you would expect it to be if you extrapolated forward from the pre-euro era. The prosperity of seven years ago was a bubble, driven by imprudent lending and dodgy government finances. Meanwhile, though Greece is a lot poorer than it was it's not actually a poor country in the global sense. As a supplicant looking for charity, Greece is a lot less compelling than India or Guatemala or any number of sub-Saharan African countries."

Greeks may be care-free profligates to the hard-working and thrifty Germans, and less deserving of charity than sub-Saharan Africans, but then sub-Saharan African countries don’t threaten a break-up of the Euro and the European Union. An EU break-up would have far reaching consequences.

The Greek debt and economic crisis is a problem that the EU must solve. It’s complicated because if debt is forgiven for the Greeks, and the European Commission, ECB, and IMF, endeavor to stimulate the Greek economy--as opposed to asking for more austerity--Italy, Greece, Portugal, Ireland, and others with future financial problems will expect similar treatment. That's not necessarily bad, however.  Isn't that what a united Europe is all about?  It’s also complicated by the fact that Northern Europeans don’t trust the Greeks to follow through on their commitments. But then Greeks have a sunny disposition and a very beautiful country to visit. 

It all seems like a lot of drama. Greece may be a profligate family member, but they’re part of the family. Europeans, if they are going to be a united Europe must find a way to sort it out.  I trust they will.  

Sunday, June 28, 2015

Jack Balkin Explains Legal Reasoning of Marriage Equality Cases.

In Obergefell v. Hodges Justice Kennedy's majority opinion declared that marriage is a fundamental right and that prohibiting same-sex marriage violates both the Due Process Clause and the Equal Protection Clause of the 14th Amendment to our Constitution (No state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")  Notably he did this without following the standard paths of due process and equal protection analysis (i.e. the way we might analyze the problem on a bar exam).  

So what did Justice Kennedy do?  

Here's Yale law professor, Jack Balkin (numbered headings mine):

1. Kennedy Outlines "Significant equality ideas:"
... Kennedy's argument ... has many significant equality ideas. He states that "[t]here is no difference between same- and opposite sex couples with respect to" marriage's usefulness in grounding the social order. He argues that excluding same-sex couples "teaches that gays and lesbians are unequal in important respects," and that "[i]t demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society." He adds that "laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter." 
... [T]he language of stigma and demeaning sounds in civil equality, and the anti-subordination principle [subordinating one group to others]. Indeed, later in the opinion, Kennedy says: "the challenged laws abridge central precepts of equality. . . . [They are] essentially unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial . . . works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." 
... Kennedy is carefully laying the groundwork for arguing that gays and lesbians have suffered a long history of discrimination, and that they are excluded from important opportunities for reasons that have nothing to do with their contribution to society. Add to that the point that they are a minority without significant representation in "the Nation's decision-making councils," and you have a pretty good argument for treating sexual orientation as a suspect classification. ...  Nevertheless, having set up virtually all of the elements for this conclusion, Kennedy does not go there. 
2.  ... but Kennedy views "equality" and "liberty" as two sides of a coin:
Instead [of viewing gays and lesbians as a suspect classification], Kennedy's equal protection argument seems to be that equality and liberty are two sides of a coin-- that they are two different perspectives on a problem that shine light on each other: "Each concept-- liberty and equality-- leads to a stronger understanding of the other." Hence selective denials of fundamental rights deny equal dignity. ....
3.  Kennedy reinterprets the 1970's sex equality cases...
[In] an extremely interesting passage, [Justice Kennedy] reinterprets the sex equality cases of the 1970s as protecting the equal dignity of men and women in the right to marry (slip op. at 20-21).
4.  Kennedy alludes to "fundamental rights" and "equal citizenship" doctrines ...
Kennedy's account of equality is perhaps closest to two ideas in previous jurisprudence...., ideas of liberty as equal citizenship status .... and the "fundamental rights" strand of equal protection doctrine. 
(A)  The government violates equal protection when it discriminates against or selectively burdens the exercise of a fundamental right or interest. We could read Obergefell as part of this line of cases. Because marriage is a fundamental right (or more correctly, a fundamental interest, as I discuss below), the state cannot deny the right to marry arbitrarily to a group of citizens without a compelling interest. Here the state does not even have a reasonable justification, so, a fortiori, the discrimination is unconstitutional.

(B)  .... [W]hen the state fails to accord people the equal concern and respect that they deserve [citizenship status]... this violates the Equal Protection Clause of the Constitution. Recognizing and respecting dignity is not the same thing as creating dignity or being the source of dignity, any more than respecting religious freedom is the same thing as creating religion. ... [T]he point of the Equal Protection Clause is to require the state to show equal concern and respect toward human beings. This requires the state to recognize the equal dignity of all persons who are subject to its jurisdiction.  The ... state has an obligation to respect and recognize the inherent dignity of the people who live within its borders. The state violates this obligation when it fails to accord people equal respect and concern. One way that states might do this is to arbitrarily deny a host of rights and benefits that come with marriage to a class of its citizens. Although the state may not have to provide those rights and benefits in the first place, once it has given them out, it may not make arbitrary distinctions in who receives them.
... [S]ome fundamental rights are necessary to protect human liberty from democratic majorities ..... [The question is] simply about what those liberties are and whether they can be found in the Constitution. [Although] there is no "Dignity Clause" in the Constitution(,) (n)evertheless, "equal protection," like "freedom of speech," actually does appear in the Constitution's text. ....

It may be better to call marriage a fundamental interest than a fundamental right. The difference is that the state does not have to provide a fundamental interest at all, but once it does, it must bestow and protect it equally among the members of the political community. Thus, the state does not have to have a bundle of rights called marriage. ... Nevertheless, once the state creates a bundle of legal rights and calls it "marriage," it cannot arbitrarily decide who can enjoy that bundle of rights.
5.  Some reasons Kennedy may not have used existing features of equal protection law:  
Why did Kennedy not use the existing features of equal protection law? There are many possible reasons. First, as a libertarian, Kennedy may simply be more comfortable talking about liberty. Second, Kennedy might not want to take on all of the legal consequences of creating a new suspect classification-- the first since the 1970s--without more consideration about the consequences for legal doctrine in a host of different areas. Third, Kennedy may not be particularly enamored of the formalism of existing equal protection categories, which in many cases tend to obscure the real issues at stake.
Finally, perhaps Kennedy did not want to employ the "rational basis with a bite" or "animus" lines of cases because he did not think that he could easily show that all of these state laws defining marriage in terms of opposite-sex couples were passed because of malice or irrational prejudice against gays and lesbians. If he declared that all of them were based in animus, he would be declaring all of the people who voted for them had bad intentions or were prejudiced, or both. Instead, he simply states that whatever their motivations, the laws they produced had the effect of demeaning and subordinating gays and lesbians. ...
6.  What next?
When we examine it closely, Kennedy's opinion does have a lot of equality ideas in it. But it does not offer a very clear account of where doctrine is supposed to go from here. That may be deliberate. But it will mean that the lower courts will have to spend a lot of time puzzling out how best to apply Kennedy's arguments to a host of other issues, including, for example, state discrimination in adoption, family formation, employment, housing, and education. Those are the next stages in the struggle for equality for sexual orientation minorities.
Read the whole thing here.

Saturday, June 27, 2015

Obergefell v. Hodges: The Constitution Lives!

Hark! Love is love, and 
love is love is love is love. 
It is so ordered.

(McSweeney Haiku characterizing Gay marriage ruling)

As Chief Justice Roberts points out in his bitter dissent in Obergefell v. Hodges, our U.S. Constitution says nothing about marriage. The right to marry, let alone the right of same-sex couples to marry, is not spelled out in the Constitution.  It raises the question: where does the "fundamental right to marry" identified by justice Kennedy come from?

The dissenters are correct that this fundamental right to marry comes from the judgment and declaration of the majority (i.e. Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan). They are wrong to suggest that this constitutes an abuse of power by the majority, or that the problem raised is somehow new or novel. As Jack Balkin notes
The arguments of the dissenters in Obergefell for judicial restraint and respect for democratic deliberation would sound a lot more convincing if they hadn't all joined the opinion in Shelby County v. Holder. Shelby County is truly made up out of whole cloth, and it strikes down key parts of an important civil rights statute passed by overwhelming majorities in Congress. Indeed, at oral argument in Shelby County Justice Scalia suggested that the very fact that the Voting Rights Act was passed by such overwhelming margins is a reason that the courts needed to strike it down. Talk about five lawyers undermining democracy and imposing their ideological convictions on the rest of the country.
And, of course, it's not just Shelby County. By its terms, the constitution does not apply the Bill of Rights to the states.  The constitution does not say that the states may not infringe freedom of speech, take property without compensation, deny the right to cross-examination in criminal trials, or deny the right to bear arms...., yet the Supreme Court has held that each of these rights are fundamental and implicit in the due process clause of the 14th Amendment (No State shall “deprive any person of life, liberty, or property, without due process of law"). As recently as 2010, justice Alito used this "substantive due process" analysis to judge and declare a fundamental right to bear arms for self-defense. This right was not written in the constitution--it was put there by Alito, Roberts, Scalia, Thomas, and Kennedy.

For a discussion of how Chief Justice Roberts is off-base with his Lochner reasoning see this discussion by David Bernstein. For a discussion how the majority opinion falls short in its reasoning based on traditional substantive due process analysis, and equal protection analysis, see Bernstein here, and Ilyia Somin here. 

But the dissenters are shedding crocodile tears. They make no effort to explain why, for example, the declaration of a right as implicit in the constitution is perfectly fine when it comes to the right to bear arms for self defense, and not when it comes to a right to marry. [The exception is Thomas who is an outlier and does not believe in substantive due process] The difference between the majority and minority in Obergefell does not come from a difference in judicial temperament or approach: it comes down to the fact that the majority is moved by the right to marry and discrimination inherent in denying marriage to same sex couples; and the dissenters are unmoved by this. The opposite was true in McDonald with the right to bear arms. This is not a question of judicial restraint or abuse of discretion: it is a difference in judgment as to what's really important--what should be recognized as a fundamental right through substantive due process.

So what accounts for all the nastiness and venom in the dissents?

When I studied the constitution in law school, it was half a decade before the advent of the Rehnquist court, which marked a sustained rightward drift of the court. We used Lawrence Tribes' American Constitutional Law textbook (1978 ed.), which has long been overtaken by events.  It hailed from an era where the concept of a "living constitution" ruled supreme--the idea that the constitution should be viewed as dynamic and adaptable to developing social conditions.

In 1982 a conservative group of lawyers and law professors founded the Federalist Society. For the last 30 years, as Steven Calabresi has noted "the Society and many of its members have promoted originalism as the correct philosophy to use interpreting the Constitution." They have successfully  framed the debate in constitutional law and this has caused movement conservatives to be optimistic about their chances of making "originalism" the dominant approach to constitutional interpretation.

Here is Calabresi in 2007:
"President George W. Bush's recent appointment of Reagan administration alumni John Roberts to be Chief Justice of the United States and of Samuel Alito to be an Associate Justice have led many Federalists to hope that there may now be four justices sympathetic to originalism on the Supreme Court. Six of the nine current justices are over the age of sixty-five, which used to be the mandatory retirement age in private business. ... This book addresses the question of what judicial philosophy we should look for in picking new members of the Supreme Court."
In large measure, I believe the animus in the Obergefell dissents is driven by the fact that Kennedy's opinion reaffirms the Supreme Court's commitment to the tradition of a "living Constitution" and calls "bullshit" on the whole Federalist Society project. 

Here is Kennedy (majority opinion, pp. 10-11)(emphasis added): 
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimen- sions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a re- ceived legal stricture, a claim to liberty must be addressed.
 Alito rightfully identifies this as a threat to the originalist enterprise. 

Here is justice Alito in his dissent (Alito dissent, pp. 7-8) :
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that
preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
But an affirmation that the Constitution will continue to have relevance and evolve in light of society's changing conditions, and recognizing that judges have an enduring duty to interpret fundamental rights, and to protect them, is not an abuse of discretion. It's what justice Alito and the majority did in McDonald, it's what justice Kennedy and the majority did in Obergefell. The fact that reasonable minds can differ on such questions is the reason we have nine justices on the Supreme Court, and not one.

We are left with the verity that such judicial intervention must be tackled with great discretion and wisdom, and the problem that we must trust individual judges to embody those qualities. The question of what constrains judges interpreting a living Constitution is and will always be with us.

Here is Tribe in my law school text book (American Constitutional Law, 1978 ed) at p. 12:
Louis Hartz has suggested that the task of defending judicial review becomes more difficult as fundamental beliefs and values cease to be widely shared: 'When half of a nation believes in Locke and half in Filmer or Marx, the result is not law but philosophy. Inter arma leges silent (in times of war the law falls silent) .......
That seems to be the main point of Chief Justice Robert's dissent.  As with abortion, he suggests, a large part of the population (half the states) are not on board with same sex marriage. Like the dissenters in this case, they have strong feelings. Roberts suggests that in such cases, the better part of discretion is for judges to leave the issue to the political process

Tribe continues:
[H]owever, the difficulty with such conventional wisdom about the political limits of constitutional law is that it undervalues the place of constitutional discourse and decision in political dialogue. By debating our deepest differences in shared language of constitutional rights and responsibilities, we create the possibility of persuasion and even moral education in our national life. 
By my reading, Kennedy makes his case in Obergefell explaining why marriage should be recognized as a fundamental right, and why now is the correct time to do so. I also believe Kennedy is correct in his judgment that the country as a whole is more ready for this than Chief Justice Roberts recognizes.

Wednesday, June 24, 2015

Likud Deputy Minister to Palestinian Members of Knesset: "We Are Doing You People a Favor by Even Allowing You to Be Seated Here."

Upon expiration of the British-mandate Israel used force and intimidation to expand the territory allotted to a Jewish state by the United Nations, and to decrease the Arab population living there. Since then Israel has practiced a discriminatory immigration policy that encourages Jewish immigration to Israel and that makes it very difficult for anyone else to move to Israel. This policy is embodied in the Israeli Law of Return which grants every Jew and their spouse (Jewish or not) citizenship immediately upon moving to Israel; and in a Citizenship Law that makes it very difficult for anyone else to obtain residency or citizenship status in Israel—especially Palestinians who lived there in 1948 but were driven out by war.

In 2003, in the midst of the second Intifada, Israel amended its Citizenship and Entry into Israel Law to preclude family unification between Israeli citizens and their West Bank or Gaza spouse (the anti-family-unification law).  Under this law, an Israeli citizen or resident who falls in love with a Palestinian from Gaza or the West Bank cannot marry and live with this person in Israel. At the same time, an Israeli resident who opts to live with his or her Palestinian spouse elsewhere—because the state won’t allow them to live in Israel—risks that their residency status will be revoked.  The Israeli rights of a child from such a union are precarious and at risk.

In 2006 the Israeli Supreme Court denied a petition challenging the law, but suggested that it was in violation of the Basic Law (the closest thing Israel has to a constitution).  In response the Knesset expanded the reach of the law to also preclude family unification for spouses hailing from Iran, Syria, Lebanon, and other (unspecified) countries adverse to Israel, and made minor concessions for short-term renewable family unification permits for older couples, but otherwise reaffirmed the law. In 2012 the Supreme Court upheld this discriminatory law as amended. 

The anti-family-unification law was first introduced as an emergency measure, subject to annual renewal.  But a decade later this has nothing to do with security; it seems very much like a permanent feature of Israeli law. The Knesset once again renewed the law on June 15, 2015, although the Zionist Union (the formal opposition) was able to extract a commitment that the law would be looked at more closely at the next renewal. 

On Wednesday, June 24, 2015, the Knesset held a “debate” on a request by the Joint Arab list (13 MK's headed by Ayman Odeh) to revoke the anti-family-unification provision in the Citizenship Law. The result was not pretty. 

From Haaretz: 
During the debate, Deputy Interior Minister Yaron Mazuz of Likud … called on Arab lawmakers to return their Israeli identity cards. Addressing the Arab Joint List's MK Haneen Zoabi, Mazuz said: "Mrs. [Haneen] Zoabi, you are the first who ought to return your ID. We are doing you people a favor by even allowing you to be seated here – terrorists won't be allowed to sit here. You people are in a democratic state, so respect the state. Whoever acts against the State of Israel using terror – has no right to be here. It's unthinkable that from this abode, people will go out and participate in terror flotillas against the State of Israel."
The deputy interior minister is referring to Hanan Zoabi’s participation five years ago as a passenger on the MV Mavi Marmara, a ferry boat that was part of a “freedom flotilla” which attempted to breach Israel’s blockade of Gaza in order to deliver humanitarian aid. Israeli forces killed nine activists in a raid on the flotilla. MK Zoabi was never charged with any wrongdoing. 

Here is what this all looks like [Hebrew only, but body language tells all].

Netanyahu seems amused. He took to the stand to defend his deputy minister. He’ll undoubtedly characterize this as an example of Israel’s “robust” democracy. But the government’s response to the Joint Arab List’s request ("We are doing you people a favor by even allowing you to be seated here") appears less like an example of a lovable rollicking democracy than an ethnocratic state in a destructive nationalist spiral. 

The deputy minister’s threat that “your residency status will be revoked” is not so idle when you keep in mind that paragraph 11 of the Citizenship law states: “…(b) The Minister of the Interior may terminate the Israel nationality of a person who has done an act constituting a breach of allegiance to the State of Israel.” Thus far, the Palestinian members of Knesset are not cowed. The Supreme Court has repeatedly backed Zoabi against attempts by representatives of the "Jewish state" to disqualify her from office. It seems that, for now, the Palestinian members of the Knesset can have their say, even if their efforts for a more just society are ridiculed and are met with derision and threats.

No defender of Israel should be secure in a belief that this "democracy" is in a healthy state. 

UPDATE:  I should mention that, as of this writing, there is a new "freedom flotilla" headed for Gaza.  Member of Knesset Basel Ghattas (Joint Arab List) is planning to join in Athens.  He wrote a letter to Prime Minister Netanyahu, stating in part: “The civilian flotilla aimed at breaking the siege is peaceful. Its goal is drawing international public attention to the state of the 1.8 million Palestinians living in jail-like conditions as a result of the blockade imposed by Israel – which is a form of collective punishment and constitutes an infringement on humanitarian law.”

Haaretz reports that:  the Knesset House Committee is recommending to the Ethics Committee that it suspend Ghattas from the day he joins the flotilla and it will consider withdrawing his rights.

In the meantime, on Sunday, the Knesset is scheduled to vote on a bill that would require candidates for Knesset to prove that they have never made public expressions of support for “illegal activity against the State of Israel," which is aimed directly at actions like Zoabi's participation in the "freedom flotilla" in 2010, and Ghattas' participation in the current "freedom flotilla."

Sunday, June 21, 2015

Cliff Zukin Explains How Voter Polling has Become Less Reliable

This is interesting.

Social media companies, marketers, the phone companies, Google, etc. are tracking our every move and finding out more and more about us.  Our life is an open book. So it seems counter-intuitive that pollsters should be having a harder and harder time predicting our voting behaviors. Yet, as we know, many pollsters have fared badly in predicting the results of recent elections, both here an abroad. Why would that be?

Cliff Zukin, professor of public research at Rutgers, explains why in a New York Times article. It turns out it's not just that pollsters are blinded by partisan interests: it turns out that the internet and ubiquitous use of cellphones is making scientific polling harder and more expensive to do.

Up until 10 years ago statistical sampling for voter polls was done by randomly calling selected landline telephone numbers. On the whole, people contacted for questioning in this manner were more receptive to cooperate with pollsters. This allowed statisticians to apply solid statistical models.

But over the last ten years most of us have abandoned landlines in favor of cellphones. Sixty percent of us primarily use cell-phones for communication. This poses a problem for pollsters because cell-phone numbers are not listed in phone books the way landlines used to be, and the FCC has interpreted recent consumer protection laws to prohibit automatic calling to cell phone numbers for hand-off to interviewers only after the phone is answered.  This makes polling much more expensive: "Dialing manually for cellphones takes a great deal of paid interviewer time, and pollsters also compensate cellphone respondents with as much as $10 for their lost minutes," says Zukin.

We're also getting tired of opinion researchers:

When I first started doing telephone surveys in New Jersey in the late 1970s, we considered an 80 percent response rate acceptable, and even then we worried if the 20 percent we missed were different in attitudes and behaviors than the 80 percent we got. Enter answering machines and other technologies. By 1997, Pew’s response rate was 36 percent, and the decline has accelerated. By 2014 the response rate had fallen to 8 percent. As Nate Silver of fivethirtyeight.com recently observed, “The problem is simple but daunting. The foundation of opinion research has historically been the ability to draw a random sample of the population. That’s become much harder to do.”
As a result of these challenges many pollsters have resorted to the internet. But that is not nearly as reliable as the old methods. First, there is an inverse relationship between voters and internet use.  Whereas 97 percent of 18-29 year olds use the internet, they tend not to vote; older people are much more likely to vote, but only 40 percent of those over 65 years of age use the internet.

And it's all less scientific:
Almost all online election polling is done with nonprobability samples. These are largely unproven methodologically, and as a task force of the American Association for Public Opinion Research has pointed out, it is impossible to calculate a margin of error on such surveys. What they have going for them is that they are very inexpensive to do, and this has attracted a number of new survey firms to the game. We saw a lot more of them in the midterm congressional election in 2014, in Israel and in Britain, where they were heavily relied on. We will see them more still in 2016.
And there is no immediate solution:
So what’s the solution for election polling? There isn’t one. Our old paradigm has broken down, and we haven’t figured out how to replace it. Political polling has gotten less accurate as a result, and it’s not going to be fixed in time for 2016. We’ll have to go through a period of experimentation to see what works, and how to better hit a moving target. .... We are less sure how to conduct good survey research now than we were four years ago, and much less than eight years ago. And don’t look for too much help in what the polling aggregation sites may be offering. They, too, have been falling further off the track of late. It’s not their fault. They are only as good as the raw material they have to work with.
For the time being, campaigns and pollsters will use more and more internet polling and big data mining, which--because it is not scientific--will invariably be colored by partisan politics and less reliable.

Read the whole thing here.

Friday, June 12, 2015

The Adalah Database of Discriminatory Laws in Israel

Advocates for a “Jewish and democratic” state admit that even if the occupation of the Palestinian territories ended and there emerged a separate independent Palestinian state alongside Israel, a “Jewish and democratic” state would still necessarily privilege Jewish (75%) over non-Jewish (25%) citizens of the state of Israel: in its symbols (national flag and anthem), in its national holidays, and, above all, in its immigration policy.

Although the desire for a Jewish state is understandable in a post-holocaust world, the use of ethnic discrimination that is necessary to achieve and maintain the dominance of a Jewish majority in the country over all others is problematic. In a 2010 interview, Peter Beinart—as liberal a Zionist as you’ll find—said: “I’m not even asking [Israel] to allow full, equal citizenship to Arab Israelis, since that would require Israel no longer being a Jewish state. I’m actually pretty willing to compromise my liberalism for Israel’s security and for its status as a Jewish state.”

What Peter Beinart would say is the “Jewish and democratic” state must take care to extend full and equal rights and privileges in all spheres of life—except to the extent necessary to maintain the state as a “Jewish state.” The problem is, however, once you accept unequal treatment of citizens based on ethnicity and religion in some respects, it becomes a slippery slope. Where do you draw the line?

In 2012, Adalah, the legal center for Arab minority rights in Israel, published a report, The Discriminatory Laws Database, which collected and analyzed more than 50 laws “enacted since 1948 that directly or indirectly discriminate against Palestinian citizens of Israel in all areas of life.” The database appears to be updated. 

Looking at this database, we should not get hung up on the number “50.” Many of the laws discussed are not discriminatory on their face, but were apparently passed with discriminatory intent, and have been administered in a discriminatory manner. There is no constitutional clause for equal protection under the law to appeal to in Israel. Still some of this can potentially be fixed. But some discrimination, as Beinart noted, is inherent in a state that defines itself based on ethnicity and cannot be fixed. 

Here is a review of some of the patently discriminatory laws that are identified in the Adalah Database

The most serious discriminations were established early and relate to land control and citizenship. First, the state took over and controlled approximately 93 percent of all lands within the 1949 cease fire lines, and the state has subsequently used this land preferentially for its Jewish majority by making land available to Jews for development, and denying building permits and the ability to develop land to Palestinians. Second, the state established discriminatory preferences about who could immigrate, return to, or stay—in short belong—in the land as a citizen.

1. 1950 law about confiscation of Absentee Landlord Property. This law defines persons who were expelled, fled, or who left the country after November 29, 1947 as “absentee.” Property belonging to “absentees” was placed under the control of the State of Israel with the Custodian for Absentees’ Property. The Absentee Property Law was the main legal instrument used by Israel to take possession of the land belonging to the internal and external Palestinian refugees, and Muslim Waqf properties across the state. This law continues to be used to this day by quasi-governmental agencies in Israel to take over Palestinian properties in East Jerusalem, for example.

2. 1950 Law of Return. This allows every Jewish person to immigrate to Israel and this extends to the children and grandchildren of Jews, as well as their spouses, and the spouses of their children and grandchildren. The flip side of this is that the rights of Palestinians and others to enter the state and become citizens, even if they were born in the area that is now the State of Israel, are extremely restrictive. This discrimination against the non-Jewish minority has been periodically reinforced. For example, the ban on family unification law of 2003 prohibits citizens of Israel from reuniting with Palestinian spouses living in the West Bank or Gaza.

3. In 1952 the state authorized the World Zionist Organization, the Jewish Agency, and other Zionist bodies founded at the turn of the 20th century to function in Israel as quasi-governmental entities in order to further advance the goals of the Zionist movement, to the detriment of minorities.

4. The Land Acquisition Law of 1953 transferred the land of 349 Arab towns and villages—approximately 1.2 million dunams in all (~468 square miles)—to the state to be used preferentially for the Jewish majority.

5. In 1953, the Knesset bestowed governmental authorities on the Jewish National Fund (JNF or Keren Kayemeth LeIsrael) to purchase land for exclusively Jewish use. The state granted financial advantages, including tax relief to facilitate such purchases.

6. In 1960, the state passed a law which stipulates that the ownership of “Israel lands”—namely the 93% of land under the control of the state, the Jewish National Fund, and the Development Authority—cannot be transferred in any manner.

Although most Palestinians that remained in 1949 were granted Israeli citizenship, they were subject to marshal law until 1966. Travel permits, curfews, administrative detentions, and expulsions were part of life until 1966. Once Palestinians were relieved from marshal law, laws were passed to clearly define the primacy of ethnically Jewish Israelis.

7. In 1969, the state passed a law that gave statutory recognition to cultural and educational institutions, and defined their aims, inter alia, as developing and fulfilling Zionist goals to promote Jewish culture and education at the expense of minority goals.

8. There is a law mandating that Knesset session must be opened with a reading of portions of Israel’s declaration of independence that emphasizes the exclusive connection of the state of Israel to the Jewish people.

9. There is a law that bans any political party that denies the existence of Israel as a “Jewish” state. In other words, a party that would advocate equal rights for all citizens of Israel irrespective of ethnicity would not be allowed to enter the Knesset.

10. There are laws that establish separate educational systems which are then unequally administered.

More recently, the Knesset has passed laws to defend against efforts to bring the Palestinian minority onto a more equal footing.

11. In 2011 the Knesset passed a law that empowers hundreds of local Jewish communities to exclude applicants based on ethnicity or religion. The Supreme Court upheld this law in September 2014. 

12. In 2011 the Knesset passed a law prohibiting anyone from calling for a boycott of Israel, it’s institutions, or any person because of their affiliation with Israel, including the settlements in the occupied territories. The law creates a private right of action for persons targeted by a boycott to sue for damages. As Noam Sheizaf puts it: “You can boycott anything in Israel except the occupation.” This vague law is blatantly aimed at Palestinians who are supportive of the BDS movement—while it allows people like Avigdor Lieberman to call for boycott of Arab owned businesses with impunity. The law was upheld by Israel’s Supreme Court on April 15, 2015.

As demonstrated by its decision upholding the boycott law, the Supreme Court of Israel has failed to stem the ever rightward tilt of the Israeli polity.

Kentucky: Are the Politics of Coal Changing?

At Crooked Timber John Quiggin has an interesting post suggesting that oil and gas industry representatives have been attacking coal--as in they want less coal production. They are doing this because they realize that in light of global warming, momentum is building for the world to impose an overall "carbon budget"--which means capping remaining CO2 emissions at levels intended to limit the global temperature rise over the balance of this century.  Oil and gas industries have tremendous investments in known and developed reserves and they want to use as much of this "carbon budget" as possible to bring their oil and gas reserves to market. This means it's in their interest that coal production (easily the dirtiest and most environmentally damaging energy source) be reduced.

Coal has a sizable constituency in the United States: coal mining occurs in 25 states, with total production (2010) of 1.1 billion tons. Mostly Red State country. It has an effect on politics.

Take Kentucky, the home of Senate Majority Leader, Mitch McConnell. In 2013, Kentucky was the third largest coal producer in the country (80.3 million tons). Coal production in Kentucky is equally divided between the Central Appalachian Basin of eastern Kentucky and richer, cheaper to access coal in the Illinois Basin in western Kentucky. Both of these areas have been mined for the past 220 years, but production in the eastern hills has fallen off 63% since the year 2000. 

After national financial and insurance interests, coal interests were the largest donors to Mitch McConnell's 2009-2014 fundraising cycle. During this period McConnell raised $30 million. It's a lot of money. By contrast, Diane Feinstein, Senator from California--which has a population nine times larger than Kentucky--raised just $11.8 million during the same period. It pays to be majority leader!

There are 4.4 million people living in Kentucky; the labor force is 1.9 million.  Coal exports (mostly to Southeast generators of electricity) account for as much as $3.5 billion in sales annually. Although sizable, this is less than 2% of Kentucky's GSP of $189 billion.

In fact, the coal industry in Kentucky employs fewer than 12,000 workers.  There are reports that, overall, the coal industry is a net drain on the state coffers. 

But coal has been a source of cheap energy in Kentucky and cheap energy has provided a competitive advantage for Kentucky in attracting diverse energy intensive manufacturing interests. Today, manufacturing accounts for 240,000 Kentucky jobs. Kentucky, for example, is one of the largest manufacturers of automobiles in the U.S. Legislators worry that any environmental measures that would make coal more expensive will remove this competitive advantage for Kentucky. 

This message is relentlessly marketed by lobbyists who fight against environmental legislation, and against programs like cap-and-trade. The coal industry, which employs just 0.6% of the state labor force, and which may be a net drain on state coffers, counts among McConnell's largest campaign contributors. McConnell has been a relentless booster of coal and he has fought tooth and nail against any regulations or restrictions on coal production. A year ago The Hill plausibly suggested that this is no coincidence:
"The coal industry has paid McConnell well for his service. According to OpenSecrets.org, during his years in office, McConnell has been by far the largest recipient of coal industry contributions of any member of Congress. He has raked in $748,899, compared to $640,825 for his nearest competitor, Republican Speaker of the House John Boehner (Ohio)."
It appears like the coal industry, which is causing great environmental problems, generating few jobs, and may be more trouble than it's worth overall, has an outsize influence on the Senate Majority leader.  I assume this pattern is repeated across the other 24 coal producing states. Having the oil and gas industry weigh in against coal can only help. 
Kentucky: Third Largest Coal Producer