UCSD School of Law?

>> Saturday, January 30, 2010

The rumors of a merger between ucsd and cal western are not new. This has been talked about literally for decades. The story has surfaced again here.

The University of California San Diego has revived a decades-old plan to establish a law school through a partnership with California Western School of Law.

Discussions are preliminary, but the arrangement could range from a strengthened affiliation between the downtown San Diego private law school and the La Jolla public university to a full merger.

This month, faculty and administrators from both campuses formed a committee to explore the concept. Leaders of the two institutions emphasize that if a UCSD school of law were established it would be self-supporting and not involve any state or UCSD campus funds, at least initially.

The reason that UCSD keeps looking at this is that it is really about increasing its prestige as a national university. Having a law school is another avenue to promote your name and brand. The over top tier UC's also have prestigious law schools. Having a top law school is considered by most as an important factor in your prestige levels. UCSD is on a crusade to make itself not only the top UC but a nationally recognized university on par with the stanford, harvard, yale, mits of the world.

I happen to believe that UCSD would make cal western a very good law school in the near future. UCSD would not allow the school to languish in the lower tiers of the rankings. Any one who believes otherwise is kidding themselves. Look at what UCSD has done with their business program and their other academic programs. They do not do lower tier. So any association between the two is going to see UCSD heavily involved in future faculty decisions. There is no way that Cal Western can refrain from being totally absorbed once they start down this path.

From the perspective of Cal Western, they would see a rapid rise in credibility. simply attaching the UC moniker to your school would be a boost. Even UCI with their new school is not viewed as a terrible school. Cal Western would see improvements in the quality of applicant and the faculty. Not Much would remain of the current school a few years down the road besides the facilities.

The losers in this deal are the current professors, USD, and Thomas Jefferson. UCSD wouldnt settle for having the second best law school in san diego and that would mean USD and cal western would be engaged in a more intense rivalry. currently usd sees itself as the clear top dawg and its position as the best school in sd is one of its important assets in the all important after school job placement. Competition for students and faculty not currently an issue for usd would become one in the future.

The current professors lose because UCSD would look to bring in the best possible people. Focus on research and publication would increase. That is just how uc's and other top law schools work. so those without tenure would not be in a good position if taken over by the uc system.

Cal Western would disappear if merged with UCSD but the students would probably see the value of their degree increased and the quality of the southern california legal market would probably improve if only slightly. after all southern cal has usd, usc, peperdine, loyola, ucla, uci, as well as some others competing for students.


Perennial War Warps Our Country.

>> Friday, January 8, 2010

I know its a shocking concept but our country has "been at war with terror" since the invasion of Afghanistan in 2001. Been at war is in quotes if only because the type of war the US has engaged in is not at all the traditional idea of war. The home front has remained mostly in a state of normality. Certainly there have been some changes like the security theater employed at airports but for the most part Americans go through their every day lives without feeling the war or seeing it on tv. Yet our country is straining to accommodate both of these attitudes. How do we reconcile American values with perennial war?

Republicans in our country live in Hobbes' state of nature. They cower in fear demanding an absolute security that can never be achieved. That fear has lead us to lock up some people accused of terror related activities around the world. We lock them in dark forbidding places afraid that they might get out again under any conditions. We have done this in contradiction with the American system of justice. Thus we face dilemmas like this one.

An appeals court expressed uneasiness Thursday with the ramifications of allowing some detainees at a U.S. military prison in Afghanistan to challenge their imprisonment in federal court.

The three judges of the U.S. Court of Appeals for the D.C. Circuit voiced their apprehension during oral arguments in the government's appeal of a lower court ruling that granted three detainees at Bagram Air Base the right to contest their confinement under habeas corpus, a centuries-old legal doctrine. The judges seemed concerned that upholding the decision might extend such rights to other detainees abroad.

The Justice Department has argued that U.S. District Judge John D. Bates erred in granting the three detainees, two Yemenis and a Tunisian, the right to contest their confinements in federal court. The detainees claim that they were captured outside Afghanistan and brought to the U.S. prison at Bagram Air Base, northeast of the capital of Kabul. They have been held for at least six years, their attorneys say.

The entire idea surrounding the concept of enemy combatants is that the united States may be in a war where we dont have the time or the resources to transport, collect evidence or to pursue the traditional methods of justice. Its a protection that in case we captured someone on the battle field we could hold them until we could try them. The argument and the foundation for it takes on a new light when we understand that the United States is always at war.

The adventure in Afghanistan may come to an end in a few years or it may not. If we are dedicated to building a liberal democracy there then it must certainly go on for another decade. In any case the time when trying the people at Bagram will pose no inconvenience and will be easy will never come. The alleged diplomatic issues will always exist. The nature of the conflict and the attitude we have taken ensure that there will always be reasons not to try these people if we allow it. It is easier to let them rot where they are. out of sight out of mind.

In many ways the reticence of the court should bring apprehension for people who value civil liberties. The judicial branch, even with a right leaning Court, seems like the last best hope. The last bulwark against the rising tide of neocon national security. The legislative and executive branches have decided its better to go with the flow than fight the tide. Obama's civil liberties credentials were not particularly string after the Fisa flop but there was hope based on his rhetoric that real positive action might be coming from his administration. One year in its not looking good as Adam Serwer writes in a tapped article Has Obama Abandoned The Obama Doctrine?,

This is irreconcilable with an administration that has pursued indefinite detention, a two-tiered legal system for trying suspected terrorists, and now an ethnic profiling system for Muslim travelers that will do little more than strengthen al-Qaeda's narrative of a clash of civilizations between Islam and the West, and alienate Muslims the president claims he wants to "engage on the basis of mutual interest and mutual respect." His administration, while outlawing torture, is studiously protecting its legal architecture, so that it might rise like a corpse in a George Romero film the next time the GOP takes the White House. What are these, if not policy positions driven entirely by the kind of fear the Obama Doctrine was created to disperse?

The president has not abandoned the high-minded rhetoric of the Obama Doctrine. But he has abandoned virtually all the substantive policy positions it was created to defend, leaving the administration with a shrinking patch of ground perpetually under siege from Republicans who want to turn the United States into a country that tortures people suspected of crimes and denies them any semblance of due process. It's impossible for me to see how the president isn't on the verge of squandering the "new beginning" with Muslims communities he claims is vital to preserving American security.

All of these actions regarding national security and our justice system are warping our country towards the bunker security state. There is a line in Hunt for Red October where the two defecting Russians talk about how in America they let you go from state to state with no papers. Our liberties and freedoms are at the core of America. The longer we try and maintain war as normal life the worse off our country will be. I believe that the Appeals Court should grant the habeas right as a step toward reconciling with our tradition of justice and as a step away from the perennial state of war.

We cannot continue to make the normal life one with the mindset of war.


Obama's Fault Or Not?

>> Monday, December 14, 2009

Matt Taibbi's polemic article about the selection of economic advisors and the general economic policy that has come about has spawned a large debate in the blogosphere. The core of the attacks against Taibi are not the factual charges which seem to be largely a distraction. Instead the substantive critique is that the executive branch advisors arent the problem and that removing them and replacing them with the most progressive ones you could find wouldnt change a thing. This critique is based on the legislature central view of policy. Essentially these critics of Taibi are saying that until lieberman, nelson, bayh are gone there simply cant be better, more progressive policy.

Chief among the substantive critics is Ezra Klein.

Simple as it may be, it manages to be false both conceptually and specifically. The financial system made Michael Froman rich, and Rubin, too, but neither is working on financial regulation. You can argue that Larry Summers skimmed a few million off the top, but he's spent a lot of time in academia and government for someone so concerned with money. But Orszag? Furman? Geithner? Christina Romer? They may represent intellectual capture, but that's not the same thing as what Taibbi is implying.

Worse than being unfair, though, it actively misses the point. What unites not only Obama's economic team, but his whole White House, is not its emphasis on rich people. It's the emphasis on people accustomed to dealing with Congress. You've got a former Treasury secretary, CBO director, DCCC chairman, chief of staff to the Senate majority leader, chief of staff to the chairman of the Energy and Commerce Committee, chief of staff to the chairman of the Senate Finance Committee, and on it goes. It's rather difficult to say what these people do and don't believe, as their whole world is finding 218 in the House and 60 in the Senate, and every word, action and policy brief is squarely aimed at that goal.

That leaves two questions worth asking about them: First, are they more or less liberal than the 218th most liberal congressman and the 60th most liberal senator? Second, are they good at their jobs? That is to say, are they good at bringing 218 congressmen and 60 senators into line behind reasonably good policy?

Ezra's critique is picked up by Yglesias. Klein's point is clear. Policy and law is made by congress. Until Congress is more progressive more progressive legislation will not pass. The blame heaped upon Obama is misplaced according to Klein.

To some extent though Klein and Taibbi are talking past each other. Taibbi is blasting Obama because the people he chooses represent the type of policy that will not only be portrayed as feasible but also as desirable. These people tell Obama not only what the most likely alternative is but also what the best and worst alternatives are. Any negotiation begins with these in mind. Formulating a strategy for negotiation with congress involves formulating an opening position based on the most desirable outcome and the most likely. By picking the people he does the President is helping to decide where he starts and where he wants to go. That doesnt involve congress at all.

Most people criticizing Obama take the route Taibi does. He starts from the wrong position with the wrong end goal in mind. That would be Obama's fault. But what about Klein's assertion that policy will only be as good as Lieberman et al will allow?

This is true. As long as the massive procedural hurdles of the senate remain in place those people matter. a lot. The criticism of obama has been that he doesnt play the game with these people properly. their arent any sticks. Ezra would say that the sticks dont exist except maybe for lieberman who has a nice chairmanship that might get accidentally dead. shame if that were to happen. Obama has tended to try very hard to work with and massage congress people. he seems to be very nice to them, just as he is nice to the bankers. he urges them to make credit freer. thats nice. Obama could certainly be harsher and more demanding in his rhetoric or proposals. that risks a greater loss but also greater gain.

Ultimately Obama is only in control of how he chooses to try and coerce/convince nelson, bayh, and crew to go along with his policies. SO far he hasnt really called them out or really attacked their intransigence. He probably doesnt believe that this will work. The point is that he does not try. Its not that he hasnt succeeded, failing would suck but the biggest problem is that we havent tried according to most people unhappy with the president. Ezra is right that congress is ultimately in control of what gets passed but Taibbi is also correct that Obama's strategy doesnt seem to be the most effective.


Getting Out of Afghanistan and The Defense Problem

>> Monday, November 30, 2009

With our President prepared to send 40,000 more soldiers into Afghanistan a serious discussion has arisen about the future of our commitment there. I have written before about the time and material required for nation building. Back then i was much more willing to devote what was needed to the long struggle of fixing Afghanistan. The nature of the mission has changed and so has my support for sending more resources, more men and women, to that country. Unfortunately the United States has a real problem with our orientation towards the military.

Matt Yglesias posted today on the personnel expenditures for the US armed forces. By his estimates it came to about $300 Billion. The fact that people related expenses make up about 50% of the money that the United States spends on defense has implications related not only to the idea of balancing the budget but our foriegn policy itself. Has Yglesias notes

In policy terms, Arkedis makes the point that this means you can’t make any really large reductions in the defense budget purely by going after the interests of the contractors who make weapons systems. The soldiers themselves are the military’s most important weapons, and also the most expensive ones. And the only way to reduce these costs is to either have fewer soldiers, or else to over time accept a lower quality of recruits. And that in turn would mean giving them either fewer missions, less ambitious missions, or some combination of the two.

This is worth thinking about not only in terms of Afghanistan, but also in broader strategic terms. Over time as technology advances and wages and health care costs rise, most organizations seek to do their work in a less labor-intensive manner. But the rise of counterinsurgency doctrine in the military implies a shift in the direction of a more labor-intensive strategic concept. There are some good reasons for this turn, but it has a lot of underdiscussed and underdebated budgetary implications.

The cost of supporting the soldiers in the military is going to be higher as the congress appropriates more money for mental health services and greater veterans benefits. President Obama has discussed increasing the size of the military. From all appearances our military spending is going to increase in the future and not decrease. A shift to counter insurgency wars would guarantee the increase.

The United States seems to have locked itself into a position where we depend on our military strength. Much our power seems to revolve around the strength of our military and our ability to provide a defense guarantee to our allies. This is a powerful if inflexible tool. This means that our allies are free to defy us and our interests without a real fear that we will pull back our defense umbrella on anything but the most essential of issues. Our military has assumed a position of paramount importance.

At the same time some in the senate, such as Evan Bayh, have become deficit obsessed. They are pushing for a commission that would reduce the structural deficit. What this ultimately is is a means of gutting any liberal agenda and gutting social security and Medicare. There is no chance that at this point in time with a shift towards counter insurgency, increased commitment to Afghanistan, the central importance of American military power, and the structure of military expenses that the Congress would touch defense expenditures.

President Obama's decision to escalate in Afghanistan rather than wind down the adventure means that the chances for eliminating the deficit with anything other than cuts in the social safety net are far fetched. It increases the role of the military and foreign adventure in American society. Given the economic problems that we currently suffer from it makes much more sense to pull back from foriegn adventures to fix our domestic problems. This is not what we are doing.


Institutional Power and Congressional Sheep

>> Wednesday, November 25, 2009

As a general rule members of Congress wish to be reelected. That is not too shocking of a proposition because being a member of Congress is a prestigious job with good benefits. As a result of this interest congress people, senators especially, like to do things that will keep them in office. One of the things that helps keep someone in Congress is taking credit while avoiding responsibility. By taking this approach Congress has managed to alter the balance of power vis-a-vis the Presidency. A case in point is the filibuster.

Reading Ezra Klein's post on Congress' voice should make it clear that the system of government in our country could use some reform.

More to the point, it's important for Congress to begin thinking that way again. For the filibuster to end, Congress is going to have to rediscover its institutional voice. Democrats hate the filibuster when they're in power, and Republicans loathe it when they're in power, but it won't end until Congress decides it an enemy of Congress, rather than of whichever party happens to be in the majority at that moment.

People occasionally let slip that the filibuster is one of the checks and balances written into the Constitution. It isn't, of course. And its centrality to the process is a symptom of the failure of the checks and balances envisioned in our founding document. Congress was supposed to be stronger than the executive branch, and in competition with it. As such, it was considered very important, and very obvious, that Congress would work diligently to maximize its own power and authority. Congress would never permit some loophole to render it an ineffective branch, dependent entirely on rare supermajorities and presidential momentum to pass legislation.

But in recent years, American politics has become entirely about the president. Congressional elections are referendums on the president. Republicans lost in 2006 because Bush was unpopular, not because Harry Reid was beloved. Democrats understand that their fortunes are lashed to Obama's success, and Republicans have been clear that their return to power runs through his failure. Congress defines itself in relation to the president. That makes the filibuster very important to whichever party isn't in charge of the White House. It means the minority party has a continual stake in Congress not really working, because that means the president can't really succeed.

Klein has a good point and is mostly correct. Where i think he misses the mark is that the President has been the center of American politics for much more than the recent past. FDR, Teddy Roosevelt, Lincoln were all strong executives who acted in the center of American Political life.

What is clear is that President's demand power. Both Democratic and Republican presidents seek to expand the power of the executive office. They cede power only after bloody political struggle. The reason for this is that Presidents can hardly avoid responsibility in the way that Congress manages to do. It is easy to identify who holds the presidency. Blame is easy to apportion to him when voters feel he deserves it. Under these circumstances what person would not want to gather the most control over his destiny as possible? Not to mention that the type of person who seeks the Presidency is one interested in power. There are no Cincinnatuses in modern American politics.

In contrast Congress appears to be more than happy to cede power to those willing to take the responsibility. Avoid making decisions, avoid pissing people off too much, get reelected. Nate Silver makes exactly this point in his post advising Blanche Lincoln. Silver's message is that the best advice is to stay out of the spotlight. Avoid being the one responsible and improve your chances of reelection. Massive gridlock helps individual legislators avoid taking the blame. The approve/disapprove numbers of your representative are better than congress as a whole. It is not there fault its everybody else. The filibuster provides an excuse for Democrats to blame Republican's and continue the policy of not rocking the boat.

As Klein points out the modern Congress is not in opposition to the President. The party system in our country means that there are incentives for the Congress to make the President look good. Those in the same party as the President are rewarded for going with the President. As an institution, Congress has decided that it is generally better to be the sheep than the shepherd. If enough members of Congress wanted it bad enough they could break any filibuster. The problem is that that would be...hard. Also, time consuming.

There's two pieces. One is the time of the chamber. They have other things to do. The modern Senate has more staff, deals with more interest groups. There's more legislation. More appropriations. The modern senator spends 1 percent of his or her time on the Senate floor. They have to take pictures with constituents. They have to fundraise and meet with constituency groups and lobbyists and deal with staff. To actually have a live filibuster would mean they have to give up all the other business.

And as individuals, they have other things to do. Air travel has opened up. In 2009, if you are the senator from Montana, it's perfectly reasonable for you to go home on the weekend and campaign for reelection. That wasn't possible in 1940. You came to Washington to do your work and you stayed until it was done. Now air travel has made it possible for you to fly away for the weekend. That makes your time more valuable.

They have better things to do. If they wanted it bad enough 50 democrats could break any filibuster. It would be an epic war of attrition and a media feeding frenzy for the ages.

The best example of this is the 1964 Civil Rights Act. It was the longest debate in the Senate's history. But the majority wasn't trying to wait out the Southerners. Instead, they just let them talk, and would send their guys down, and argue against them when they would, for instance, deny that lynchings happen in the South. This helped public opinion turn.

The benefit to the majority can be that public attention focuses. They know the bill is there and they know the Republicans are blocking it. That becomes the basis for news coverage. When will the bill be done? What's going on today? In that sense, you can win. The point is not that you exhaust the Republicans, but that you embarrass them. X number of people died today. I hope that whatever you had to say was more important.

And time can work on your side. In 1913, the second item on Woodrow Wilson's agenda was what we now know of as the Federal Reserve Act. The bill came up December 1st., and the Democrats said we'll stay here till the bill passes. If that means we don't get a Christmas break, we don't get a Christmas break. That focused people's attention.

Imagine the responsibility and blame that could be fed out here. Senators would have to really step up. They do not want to do that. They have excuses built into the system and no interest in expanding their power against the presidency and the judiciary.

The power of the presidency is going to continue to grow as will the power of the judiciary, the fed and other independent groups who are able to absolve Congress from responsibility for hard or unpopular decisions.


O-le,O-le, O-le, O-le! O-le, O-le!

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