To Tax or Not to Tax

 I supported Andrew Yang for president in now what seems decades ago, because he was the only candidate who recognized a fundamental economic problem we face: a declining rate of workers coupled with an increasing number of aged. His solution, outlined in the NYT in an Op-Ed is worth rereading: 

 https://www.nytimes.com/2019/11/14/opinion/andrew-yang-jobs.html

As with any important social issue, there are competing views and ways to interpret data. I have links to several of them below. Note that another component of Yang's plan was a guaranteed annual income, a solution first proposed by the darling of Libertarians, Friederich Hayek, who argued it would give workers more freedom as they would no longer be tied to job and location. 

https://www.niskanencenter.org/hayek-republican-freedom-and-the-universal-basic-income/

Some additional reading:

https://www.brookings.edu/articles/tax-not-the-robots/

https://hai.stanford.edu/news/radical-proposal-universal-basic-income-offset-job-losses-due-automation

https://www.futureofworkhub.info/comment/2019/12/4/robot-tax-the-pros-and-cons-of-taxing-robotic-technology-in-the-workplace

Review: In Pharoah's Army by Tobias Wolff

 In this extraordinary memoir of Wolff’s Vietnam  experience, there is a haunting scene that  reveals the major cultural differences between  the American soldiers and Vietnamese  culture. Wolff was a first lieutenant (he was  a special forces member) assigned as an adviser  to a South Vietnamese unit. He had spent a  year at language school in the United States  and was fluent in Vietnamese. He and some  ARVN (Army of the Republic of Vietnam) soldiers  are hanging out when two of the ARVN  find a small puppy wandering around. Wolff  watches, annoyed, as one of the soldiers swings  the puppy by a leg around his head and then  ties it to a tree. Wolff wanders over and asks  what they intend to name the dog. The Vietnamese  laugh bemusedly at this remark, but when Wolff persists, they laugh maliciously and  reply, “dog stew.” The sergeant grabs the dog  and, knowing it will drive Wolff nuts, swings the  puppy slowly over the fire. Wolff tries to get  them to stop, knowing they are playing with his  mind, but the cultural reality and his whiteness  prevent his interference. 

 
Racial issues pervade the story. Wolff was  attacked by a group of Vietnamese outside a  bar. He keeps yelling he must be the “wrong  man,” but they continue until another American  steps out of the bar and the attackers realize  they have the wrong person. Wolff realizes that to them all white people look the same. When  he tries to explain it to his black sergeant, the  sergeant understands him immediately and simply  says, “You nigger.” The analogy to his experience  in the United States is unmistakable.  

Wolff's analysis of the Tet offensive is striking.  "As a military project Tet failed; as a lesson it  succeeded. The VC came into My Tho and all  the other towns knowing what would happen.  They knew that once they were among the people  we would abandon our pretense of distinguishing  between them. We would kill them all to get at one. [Iraq come to mind, anyone?:] In this way they taught the people  that we did not love them and would not protect  them; that for all our talk of partnership and  brotherhood we disliked and mistrusted them,  and that we would kill every last one of them to  save our own skins. . . .They taught that lesson  to the people, and also to us. At least to me."

Review: Killing Zone: How and Why Pilots Die by Paul A. Craig (2nd edition)

 I am not a pilot, but I’m interested in aviation and especially in risk and how we measure and apply risk evaluations to normal activities. This book was recommended as the best comprehensive examination of risk in general aviation flying. Flying, in general, has become safer, although as Craig points out, the common trope that the most dangerous part of flying is the drive to the airport, is true only for commercial aviation;  it is definitely not true for general aviation. An analysis of comparative data reveals that general aviation is far more dangerous than driving.

 

Craig exams the problems with training, unintended consequences of otherwise valuable laws and regulations (e.g., the 1500 hr. minimum to be hired with the regionals placed emphasis on quantity rather than quality and meant that pilots would “bore holes in the sky” rather than seek experience with unusual conditions.) Changes in business practices can also have unintended effects. When it became possible to send digital copies of checks rather than the physical checks themselves, hundreds of pilot jobs were eliminated.  Those jobs had provided important experience flying in adverse weather conditions and circumstances that were now much less available as a training experience. Craig points out that military pilots were flying combat missions with less than 400 hours, but were very successful because of the type of scenario training they had received.

 

The revolution of “glass cockpits” that replaced the old mechanical instruments made flying safer, but counter-intuitively, also more dangerous as pilots needed to become information managers more than “stick and rudder” pilots.  There was the danger of thinking you are safer because of all the safety equipment and information overload that impinged on making the right decision. Was a pilot more likely to take off with a lower ceiling knowing he had auto-pilot and instruments that would have navigate through the weather. A very recent accident I learned about * involved a very experienced pilot (17,700 hours), in a very sophisticated airplane (pressurized Centurion) who mixed bad weather with night flying and poor cockpit management (fuel exhaustion) and got himself killed.

 

Craig examines the major types of GA accidents and analyzes them for lessons that can be learned from each. Ultimately, however, it will be the individual pilot’s decision-making skill, knowing when not to fly, and what circumstances to avoid, that will make more of a difference, I suspect. One of the biggest killers is “get-thereitis” and one NTSB investigator remarked that you should only fly if you have time to spare.  Craig adds to that the admonition that in addition to their pilot’s license and logbook, pilots should be required to have an active account with a car rental company.

 

 

*https://aviation-safety.net/wikibase/348006

Update: Court issues a "Code of Conduct."

 

Update:  Court issues a "Code of Conduct."

https://www.scotusblog.com/2023/11/justices-issue-official-code-of-conduct/

Too little, too late. Aside from the issue of no enforcement, the idea that SCOTUS is different from lower courts, hence recusal has a more significant impact, is precisely why justices need to refuse gratutities, free vacations, jet trips, etc. from anyone, regardless of whether they might have future business before the Court. Alito presents exactly the problem. The free, horribly expensive, trips he was given by someone whose hedge fund had business before the Court, should have forced recusal by Alito.  Obviously if he did, it might disadvantage the gift-giver, but that's precisely why no such trips should ever be accepted. When you accept the position of Supreme Court Justice you give up some benefits like travel gifts. Tough. Not giving them up just means you are willing to be bought and paid for.

See https://www.blogger.com/blog/post/edit/6846404/1045073406008253283

Some Musing on Judicial Review

 Th ability of the Supreme Court to overturn the will of a democratic majority has always been challenged by those in power.  Thomas Jefferson was extremely frustrated with a court that had been populated by the Federalists, and I’m sure judicial review gave him fits. FDR’s legislative agenda was so badly mauled by an oppositional court that he tried to appoint additional justices who would see his way. Felix Frankfurter disappointed many who had hoped his pre-Court activism would carry over to the Court. Instead he became a proponent of judicial restraint; because the Court was not answerable to anyone democratically, it should refrain from creating policy. His thinking was that  the courts can frustrate the majority by striking down legislative enactments. They do so on the basis of their "own," possibly idiosyncratic,interpretation of the Constitution while remaining insulated from the "democratic," i.e., electoral, process. Hence the judiciary's review power, not being genuinely democratic, should be severely limited.

That tenuous balance between restraint and activism has been the subject of numerous articles and books all using the power of judicial review as their springboard. Alexander Bickel’s The Least Dangerous Branch (echoing Alexander Hamilton’s view of the Court’s role) was the first book I ran across years ago questioning the wisdom of judicial review. I have discovered a veritable flood of books since then. Bickel’s thesis was that judicial review was counter-majoritarian in a democratic society. Of course, a major danger of any democratic system is that it’s counter-minoritarian, i.e. that the majority will trump all over minority rights. (I won’t even try to discuss the evil effects of slavery on our system as it relates to judicial review, except to say that it was a case where minority white power used judicial review to maintain and enhance minority white control of an ever increasing black population.)

There exists a popular myth that any case will be heard by the Supreme Court if it has merit. This erroneous view ignores the huge number of cases actually submitted to the Court.  These are usually read by the Justices’ clerks who then make preliminary decisions and out of perhaps 9,000 submissions, only about 70 are heard each year.That they get to do that kind of winnowing (available only since 1925 when Congress told them they no longer had to hear ALL the cases)1 is already a form of policy-making and an accretion of power never intended by the Framers.

The syllogistic debate over “originalism”, “textualism”, and “living constitutionalism” is merely a way of rationalizing judicial review and its inherent power. Each of those interpretations represents an explanation for the reasoning done by judges to come to a decision, a way of articulating how they came to that decision.  All of those rationale’s are intended to counter the proposition of Judge Learned Hand that judicial review should be curtailed because it has no textual basis in the Constitution.(2) Depending on your political persuasion and wealth, judicial review could be a good or bad thing. Whether the Court should follow the winds of political change is another matter entirely. Just look at Roe and Dobbs.

The major problem as I see it is the lack of clarity in the Constitution itself which forces the creation of a mechanism for interpreting it in light of changing economic and cultural environments. That we have had three Constitutions is clear: the first being the Articles of Confederation that left virtually no power in the hands of a united government; the Constitution of 1789  rectified that impotence and created a more supreme federal government; and finally the Constitution of 1868 that included the 13th, 14th and 15th Amendments which corrected several of the pro-slave deficiencies of the 1789 document and gave more administrative power to the federal government, power that the Supreme Court proceeded to take away in bits and pieces during the latter 19th century until the middle of the twentieth century when it was gradually returned. The current court is shifting the balance once again,but this time moving the power to the corporate world in opposition to the democratically elected federal world.

Sylvia Snowiss argues in her book (3) that Marshall revolutionized the understanding of judicial review which heretofore had been used exclusively to correct violations of “fundamental law” rather than “ordinary law.”  Those violations “could be rectified only "by electoral or other political action," or wanting these, by "revolution or the threat of revolution."  After Marshall, Judicial review was no longer a last-ditch "revolutionary defense" but part of the regular business of the federal courts. The Constitution had been "legalized."  That the idea of judicial review was well understood, she argues, was clear, and that Marshall knew and understood it, but his purpose was to embolden and empower the Court. She fails to spend much time however, on Section 25 of the Judiciary Act of 1789, which delivered the authority of review to the new Supreme Court, so an argument can be made that Marshall was simply implementing that charter.

Anti-court movements, of which the attacks on judicial review are merely a side effect, are nothing new.  They arise whenever the court does something that irritates one side or another, so much of it should be taken with that in mind. Nevertheless, the discussion bears on our relationship to democracy and the structure of our odd form of government. Keep in mind that I am not an attorney, that these reflections are based on parochial and incomplete reading of books and other sources, inspired by what I believe to be an overreach of the current court into the realm of policy-making. I come from a position of support for the Court that evolved during the sixties when it was seen as a bastion and bulwark of freedom for the oppressed rather than a haven for the rich and powerful.

There are ways to bring a Court to heel. Barry Friedman (4) discusses at length how political pressure was used during Reconstruction by changing the size of the court to alter its political makeup. That option would seem to be a non-starter today.  Whether current corruption on the court, obvious in the actions of Justices Alito and Thomas, in particular, and calls for ethics reform will have any effect, remains to be seen.

1, The Judiciary Act of 1925 provided the justices with the sole discretion to determine their caseload. In order to issue a writ of certiorari, which grants a court hearing to a case, at least four justices must agree (the “Rule of Four”). https://www.britannica.com/topic/Judiciary-Act

2. “The Historical Significance of Judge Learned Hand:  What Endures and Why” by EdwardA. Purcell, Jr. New York Law School, 2018 https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=2209&context=fac_articles_chapters

Hand gave the prestigious Holmes Lectures at the Harvard Law School which were immediately published under the title The Bill of Rights. There, Hand issued sweeping constitutional prescriptions calling for extreme limitations on the power of judicial review.

The book embraced majoritarian principles, affirmed the policy-making supremacy of the political branches, denied that judicial review had any constitutional foundation, and warned incessantly of the dangers of judicial subjectivity in construing vague constitutional provisions, particularly the Bill of Rights and the Fourteenth Amendment. Pg 862

 

3. JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION. By Sylvia Snowiss.• New Haven, Conn.: Yale University Press. 1990. Pp. vii, 228. Cloth, $25.00.

 

4. Friedman, B. (1998). The history of the Countermajoritarian difficulty, part one: The road to judicial supremacy. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.60449  and Friedman, B. (2002). Reconstruction's political court: The history of the Countermajoritarian difficulty, part two. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.312023

Review: On a Wing and a Prayer by Harry Crosby

Crosby was one of the most experienced and best navigator’s in WW II. This is his extraordinary memoir. He reveals all his self-doubts in a most humble fashion. His superior navigating (he often ascribed it to luck, got him promoted to Group Navigator. At one point he was just one mission shy of the twenty-five needed to get sent home, when, ironically, because the horrendous loss rate had begun to decline, the number needed was raised to thirty. The rationale for doing so was truly monstrously evil. The assumption was that given the loss rates approaching 100% over 25 missions, when loss rates dropped, the logistics of supply changed:

“Until then, 8AF losses were about four percent per mission. Theoretically, by the time we had flown twenty-five missions, we were KIA or POW, and we had to be replaced. If we bucked the odds, we got to go home. Since the Eighth couldn’t plan on our being there we might as well not be taking up bunks and rations. Now, losses declined a little, down to about three percent, and our human logistics changed. We had to fly thirty missions”.

“On this mission, one crew, piloted by Glenn Dye, flew their twenty-fifth. They were done. They could go home. They were the only original crew of the 100th’s original thirty-five who finished a tour. One out of thirty-five made it through a tour. And even on Dye’s crew, one gunner was killed. None of the original crew all made it. That did not encourage us much.”

Navigators were crucial to the success, and return, of a mission.  In his scrapbook* on the Smithsonian website, Crosby flatly states, “From a good pilot all I expected was a good truck driver. I wanted him to shut up, drive the plane, and stay out of things and as the navigator and the bombardier took care of the mission.”   They had to rely on dead reckoning and radios for navigation; all the celestial navigation skills they had been taught as school were basically useless, and their octants soon piled up in the trash.

 

Lots of interesting tidbits.  My favorite was why he decided not to bomb Bonn and picked another target. It’s in the scrapbook, if you don’t want to read the memoir. Crosby suffered from severe airsickness, common among navigators, as they spent considerable time watching the ground from low altitudes where it was always more turbulent. On one mission, they spun out of control, the pilot recovering with just two functioning engines.  The plane had 1200 shell holes, 1 dead crewman, and five injured. They just made it back to England, landing on a “dummy” airfield.

 

Harmony between the Brits and Americans was problematic. So many British men were overseas, leaving the country to American males. Crosby was sent to attend a conference to discuss inter-ally  relations.  He found it enlightening. “All during the conference, no matter what the announced subject for discussion, we always kept returning to two knotty problems, disharmony among the Allies and too much harmony between the genders.”

The B-17 was known for being a tough old bird.  There was always competition between B-24 and B-17 pilots on which was the better aircraft. “You can still start an argument with a WWII Air Corps veteran as to which was better, the B-24 or the B-17. Because of its highly efficient Davis wing, the B-24 carried a heavier load and flew faster. However, because of that same slim, narrow wing, the Lib was vulnerable. Hit that wing and down went the plane. A B-17 could get its crew back on one engine. Even with half its tail torn off or with a huge, gaping hole in the wings, fuselage, or nose, a good pilot could get his Fort and his crew back to the base.”

Regardless, the 100th was notorious for its high losses. “We had too much combat exhaustion, which was what they called it when a crew member was afraid to fly and quit. We had too many midair crashes of our own planes. We had too many cases of our airmen getting into fights at the local pubs."

Losses were horrendus. Crews had a 1 in 35 chance of making it back alive.

A truly fascinating and humble look at what it was like to fly missions in a B-17 over Europe.

 

*https://timeandnavigation.si.edu/navigating-air/navigation-at-war/wartime-navigator/harry-crosby

Letter to Justice Roberts (Updated 11/14/23)

 

May 7, 2023

Chief Justice John Roberts

United States Supreme Court

1 First Street, NE 

Washington, DC 20543

 

Dear Justice Roberts:

For the past seven decades, I have revered the Court as one of the few places where civil discourse prevailed and decisions were made based on different but philosophical legal interpretations of the law; wildly disparate, perhaps, but free from non-legal influence.

Recent revelations concerning Justice Thomas’s substantial financial links to a man with multiple reasons to want influence over Court decisions, Justice Alito’s cozy relationship with rich influencers who want certain Court precedent overturned, not to mention your wife’s business dealings and huge income from firms who regularly appear before the Court, have challenged that naive perception.

It’s not enough to pay lip service to judicial ethical standards.  The appearance of impropriety is often more damaging than actual violation of principles, as the latter is easily discovered and punishable. As you well know, ABA Model Code of Judicial Conduct tells us that the judge must avoid such appearances.

I fully understand and appreciate your wish for the Court to remain an independent branch of our government; that’s crucial to our system, but unless the Court adopts its own set of rigid ethical standards and enforces those standards, Congress will be forced to act from a political if not moral position.

It’s not enough to simply write a letter to Congress reiterating the importance of judicial independence.  It’s not enough to leave it up to individual justices as to when to recuse themselves.  It’s not enough to expect justices to complete reporting forms properly listing their financial dealings. SCOTUS, under your leadership, must adopt a set of rigid ethical guidelines and include an enforcement mechanism. It’s the only course to avoid a constitutional crisis or a complete destruction of trust in the Court.

You have a choice:  go down in history as a Chief who saved the Court, or a Chief who failed to act and permitted the destruction of the Court as the only remaining trustful branch of government,

 

Respectfully yours,

 

Eric C. Welch 

Freeport, IL 61032

Update:  Court issues a "Code of Conduct."

https://www.scotusblog.com/2023/11/justices-issue-official-code-of-conduct/

Too little, too late. Aside from the issue of no enforcement, the idea that SCOTUS is different from lower courts, hence recusal has a more significant impact, is precisely why justices need to refuse gratutities, free vacations, jet trips, etc. from anyone, regardless of whether they might have future business before the Court. Alito presents exactly the problem. The free, horribly expensive, trips he was given by someone whose hedge fund had business before the Court, should have forced recusal by Alito.  Obviously if he did, it might disadvantage the gift-giver, but that's precisely why no such trips should ever be accepted. When you accept the position of Supreme Court Justice you give up some benefits like travel gifts. Tough. Not giving them up just means you are willing to be bought and paid for.

Review: A Ball, a Dog, and a Monkey by Michael D'Antonio

The effect of Sputnik on the United States was electrifying.  I was about 10 at the time. As it happened, we were on the 2nd and last year of our sojourn in Germany where my father was researching at the University of Heidelberg. The effect there was minimal, but from what I’ve read since, everyone in the U.S. was horrified at the pity shown to the United States, now clearly in a distant 2nd place. There is no doubt it had a substantial impact on the presidential election in 1960 along with the non-existent missile gap.

The author begins with Soviet initiatives, but most of the book, which covers but a year up through 1958, is devoted to American political in-fighting and initiatives. It was former Nazi rocket scientists like Werner Von Braun(1) and his German colleagues who created their own little enclave near Huntsville, Alabama, that gave the U.S. an edge.

Aside from the interesting technical details, D’Antonio provides a broad picture of life in the fifties and especially the cultural changes that were wrought by enormous sums of money poured into places like Cape Canaveral and Huntsville;  places that had been mere backwaters exploded into rapidly expanding subdivisions with concomitant increases in real estate values. 

Sputnik had enormous policy and cultural implications and changes. Soon, in the guise of protecting America from the Red Menace, every group imaginable from the NEA and National Science Foundation, to politicians who wanted more money for their districts, to weapons manufacturers, to the Air Force and Army at loggerheads on which service was to control missiles, was clamoring for huge increases in the federal budget for their projects. Articles in the press naively drawing on PR the Soviets were putting out, talked about Russian nuclear trains, ships, airplanes and satellites.  So, not only was there a missile gap (ironically thanks to the U-2 Eisenhower knew this was a chimera)(2), but a science gap, and education gap, a you-name-it-gap, and anyone who suggested otherwise had to be a Commie. People who formerly had been unalterably opposed to federal support for local education, now changed their tune and bellied up to the trough. Eisenhower was in a touch position. He warned of the military-industrial symbiosis, but the political pressure from both sides was just too much.

In the meantime, rocket launches at Cape Canaveral were beset with all sorts of failures, some spectacularly public, others seemingly mundane.  In one case, because some special paper had been loaded backwards into the printer, the results appeared to be the opposite of what was good, and the missile was destroyed fearing it would go off course or explode uncontrollably.

PR became crucial in the battle between the Army, Air Force and later NASA for control of rocketry. Eisenhower was anxious to have civilian control of space, while the military and people like Edward Teller were anxious to dominate the Russians using military control of space. The perception was the Russians were ahead and they clearly had more powerful rockets, but that dominance vanished quickly. This was the time of Public Relations. Edward Bernays had revolutionized how we view control of consent and his book Crystallizing Public Opinion and Engineering Consent became bibles of the industry.  I will have to read them.

It’s astonishing today to see what they got away with in the fifties in the name of science.  Project Argos, for example, exploded low-yield high altitude nuclear weapons in space to determine the effect of radiation on all sorts of things, but the main objective was to study the Christofilos Effect hoping that it would be possible to protect against a Soviet nuclear attack by exploding nuclear bombs high over the Pacific.  The idea was to create a barrier of electrons that would fry the electronics of Soviet warheads and possibly also to blind Soviet radar to a U.S. counter-attack. I suppose one could argue the tests were a great success because we learned it wouldn't work. It was all terribly secret, of course.

A truly fascinating look into the culture and history of the U.S., and to some extent Soviet, space race.

(1) Hunt, Linda. Secret Agenda: The United States Government, Nazi Scientists, and Project Paperclip, 1945 to 1990. St Martins P, 1991.

(2) Beschloss, M. (2016). Mayday: Eisenhower, Khrushchev, and the U-2 affair. Open Road Media.

Jacobsen, Annie. Operation Paperclip: The Secret Intelligence Program that Brought Nazi Scientists to America. Little, Brown, 2014.