ProfessorBainbridge.com

The Polish people preferred a "cowboy" to the Communists

Lech Walesa's Opinion Journal column begins:

When talking about Ronald Reagan, I have to be personal. We in Poland took him so personally. Why? Because we owe him our liberty. This can't be said often enough by people who lived under oppression for half a century, until communism fell in 1989.

Wow. Please go read the whole thing.

Reagan's War on Liberalism

Daniel Henninger's Opinion Journal column on Reagan's crusade against liberalism concludes:

Did Ronald Reagan succeed? He had more measurable success against the Soviet Union. It's gone. Much of the Great Society endures, no longer exciting the brilliant young, and smoking with inefficiencies. But the basic tenet of Reaganism, "the individual genius of man," now has a moral claim in our politics at least equal to the Democrats' distributive justice. The Reagan wars persist in our time because his professed heir, George W. Bush, also cut taxes. Tax revenue is the holy water of liberalism--what they use, they believe, to work social miracles. Ronald Reagan said individuals are the source of miracles, not the government. Those were fighting words. Ronald Reagan departs, a victor.

Great stuff. Yet, Reagan won a series of battles, not the war. So please go read the rest of it!

Putin on the Democrats on Iraq

Very interesting (via Drudge):

Russian President Vladimir Putin stepped into the U.S. political campaign on Thursday, saying the Democrats had "no moral right" to criticize President Bush over Iraq.

The Kremlin leader, answering a reporter's question in Sea Island, Georgia, suggested that the Democrats were two-faced in criticizing Bush on Iraq since it had been the Clinton administration that authorized the 1999 bombing of Yugoslavia by U.S. and NATO forces.

Rights of corporations

My friend and colleague Eugene Volokh blogged on the rights of corporations, which reminds me of something I wrote in my answer to Crescat Sententia's 20 questions:

When you ask “what rights does a corporation have,” you are reifying the corporation – you are treating the firm as an entity separate from its various constituents. The prevailing law and economics account of the corporation, by way of contrast, views the firm not as an entity, but as an aggregate of various inputs acting together to produce goods or services. Employees provide labor. Creditors provide debt capital. Shareholders initially provide equity capital and subsequently bear the risk of losses and monitor the performance of management. Management monitors the performance of employees and coordinates the activities of all the firm's inputs. The firm is simply a legal fiction representing the complex set of contractual relationships between these inputs. In other words, the firm is not a thing, but rather a nexus or web of explicit and implicit contracts establishing rights and obligations among the various inputs making up the firm.

From this perspective, the correct question to ask is whether this set of stakeholders acting collectively through the board of directors and top managers should be able to exercise the same rights they could exercise individually. So phrased, it seems to me, the problem reduces to one of agency costs – the directors and top managers may use their control of the corporation to cause it to exercise rights in ways of which less powerful constituencies would disapprove. Depriving the corporation of the right to speak thus really is a way of limiting the perceived divergence of interest between top management and other stakeholders. Because the agency cost problem in fact is subject to a wide array of constraints (fiduciary duties to shareholders, markets for management services, and so on), I’m inclined to think that prohibiting corporate speech cannot be justified on this ground.

Eugene's got lots more good stuff, so go read his post ASAP.

Letter to the Economist

The Economist's online edition published a letter to the editor from yours truly. Go here and scroll down almost all the way to the bottom (thanks to an alert reader who spotted it):

SIR - Your article on Ronald Reagan ("The first post-Enlightenment president?," Economist.com, June 7th) does him a couple of very serious disservices. You say that: “The dramatic tax cuts of his first year did not bring the swift soaring of production, and therefore of revenues, that he had been let to expect: instead, it was the budget and trade deficits that soared...” In an even worse slap in the face you then give him credit for making “safe the way for Bill Clinton”.

Stuff and nonsense. Yes, the deficit went up on Reagan's watch and that was (probably) a bad thing. Yet consider what Reagan accomplished: he presided over what was then the longest peacetime expansion in American history; he set in motion the free-trade talks that led to NAFTA; he oversaw a real reduction in the rate of annual growth in federal spending from 4% to 2.5%, while manufacturing productivity soared; and he introduced a fairer and flatter tax system. Perhaps all that doesn't qualify as a revolution; but, as someone who lived through it, I wouldn't mind repeating it.

Unfortunately, the dastards edited out the best line. In my original submission, the bolded sentence read as follows:

Yet consider what Reagan accomplished, while Bill Clinton was still chasing skirts through Arkansas trailer parks.

I liked my version much better.

Dear Eugene: Do You Have a Right to a Job?

Eugene:

The positive/negative rights meme started by your response to my TCS column has wandered far afield and dragged in a surprisingly large number of folks. In light of your most recent post, however, I would like to go back to where I started and ground the discussion in a concrete example. I suspect that doing so may show we are not all that far apart.

I locate the term "positive rights" in the context in which it was typically used in Cold War debates between Western democracies and the Socialist bloc. The latter typically defended their abysmal human rights records by saying that their system provide certain positive (a.k.a. economic a.k.a. security) rights that the Western system did not. Hence, for example, I understand the term "positive right" to refer to a specific type of claim, such as:

"You have a right to a job. If you cannot find one, the state will use its taxing and spending powers to create a public works job for you or its regulatory powers to induce some private actor to hire you."

As the always useful Wikipedia explains:

Many positive rights are economic in nature: they involve the rights-holder being assured of the provision of some economic good such as housing, a job, a pension, or medicine. Under most systems of social democracy, these are provided under some manner of public welfare system, in which public funds are used to establish public housing, works programs, social security, and the like.

So defined, it seems that part of our disagreement is semantic. As I understand your definition of positive rights, you are using that term in a far broader way than the I am.

In the Slate column that started the ball rolling, William Saletan criticized Ronald Reagan for allegedly having too narrow a conception of liberty. In doing so, Saletan defined liberty to include positive rights as I have defined the term:

If liberty is the right to make a decent living or attend a good school, then getting government out of the way will suffice. But if liberty is the ability to make a decent living or attend a good school, then getting government out of the way isn't enough. In fact, government expansion, in the form of student loans or job training, may be necessary. ...

I still can't accept [Reagan's] narrow understanding of freedom. For too many Americans, captivity is the inability to pay bills, save money, or go to college. For too many, the local tyrant is a company or religious majority. Government can impose worse captivity or become a greater tyrant, but not with the predictability of a law of physics. Liberty doesn't necessarily contract as government expands. Sometimes, you need more government to get more liberty.

In my TCS column, I took issue with Saletan. I argued that:

You cannot achieve positive rights of the sort Saletan likes without infringing on someone's negative rights to private property and/or freedom of contract. As a result, achieving a system of positive rights comes at a very high cost not only to individuals but also to society as a whole.

I asserted that Reagan understood this point very well. After all, this was the man who famously said: "The most terrifying words in the English language are: I'm from the government and I'm here to help."

At this point, you stepped in with an argument that the positive/negative rights dichotomy is flawed. As I understand your argument, it has two main claims: (1) Enforcement of negative rights has a positive component, in the sense that the government's enforcement of such rights confers a benefit on the claimant of said right. (2) Enforcement of negative liberties can constrain the liberties of others. Some of the more radical libertarians around the blogosphere took issue with you on that one, but I am prepared to concede both points. Indeed, I already conceded at least the first point in my earlier posts (albeit somewhat begrudgingly).

Accordingly, I do not deny that both the Constitution and the larger legal system confer some positive rights in the broad sense you have defined them. I still maintain, however, that many of those positive rights are procedural or process-oriented (such as the right to vote). Others involve the use of government power to facilitate private ordering. Still others entail government provision of public goods.

In any event, the key issue for me is whether the validity of positive rights as I have defined them follows from your argument. In other words, does the fact that the government provides some positive benefits mean that government also must (or, at least, should) provide the positive rights William Saletan posited? Do you have a right for the government to use its taxing, spending, and/or regulatory powers to confer upon you a private good? Do you have a positive right to a job?

In an earlier post, I quoted two leading judicial decisions rejecting claims of such positive rights as being foreign to the American system of liberty. For the benefit of those coming in late, I'll quote from one of them: "the Constitution is a charter of negative rather than positive liberties. ... The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them." Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (Posner, C.J.). [Posner was a Reagan appointee, of course.]

This is the sense in which Reagan understood the concept of liberty. It is also the conception of liberty that I set out to defend in my TCS column. And, my friend, I suspect it is a conception of liberty that you find congenial as well.

Volumes could be written to defend this conception of liberty as against the version set out by Saletan. (And have.) As for me, I shall simply repeat what I said in my TCS column for the benefit of those who came in late:

Contrary to Saletan's argument, positive rights cannot be achieved without limiting the liberty of individuals. During the Cold War, for example, totalitarian regimes justified their (egregiously bad) humans rights records by stressing how they achieved positive rights the West left to the vagaries of the market place. Yet, they did so through totalitarian regimes characterized by central planning that proscribed both freedom of contract and private property.

Modern defenders of positive rights, as the following discussion makes clear, claim that such rights can be achieved without a police state:

"Defenders of positive liberty say that there is no need for it to have such totalitarian undertones. ... For example, if the state asks the citizens what they want instead of making that decision for them, positive liberty can be guaranteed without any hint of totalitarianism."

Yet, notice that even here we see the potential for the tyranny of the majority. If the majority thinks all employees should be paid a living wage, the freedom of individual employees to take a lower wage and of individual employers to offer a lower wage is circumscribed. Again, we often see the same sort of disregard for private property and freedom of contract in nominal democracies as in totalitarian regimes. (For a recent and perhaps trivial example, see the kerfuffle in Santa Monica, California -- often known as the "People's Republic of Santa Monica" -- over hedge height restrictions.)

I confess to finding myself utterly unable to understand the left-liberal mindset exemplified by Saletan; Reagan's philosophy seems so self-evidently correct. If memory serves, however, Russell Kirk observed somewhere in his vast writings that conservatives are born, not made; presumably the same is true of liberals.

Yet, let me take a quick stab at persuasion. As the analysis thus far suggests, private property and freedom of contract are at the center of the debate over positive and negative rights. You cannot achieve positive rights of the sort Saletan likes without infringing on someone's negative rights to private property and/or freedom of contract. As a result, achieving a system of positive rights comes at a very high cost not only to individuals but also to society as a whole.

As societal decision making norms, private property and freedom of contract do more than just promote economic growth. These economic liberties have almost always gone hand in hand with other personal liberties. Private property and freedom of contract, moreover, have been a major factor in destroying arbitrary class distinctions by enhancing personal and social mobility. When we infringe on private property and freedom of contract in the name of creating positive rights, we thus infringe on the very engine of democracy. As Russell Kirk observed, "freedom and property are closely linked: separate property from private possession, and Leviathan becomes master of all." Ronald Reagan surely agreed.

Cheers, Steve

Fielding 14 - Soda Springs 0

In response to my post on Gordon v. Doty, Ed Hess found that Soda Springs lost 14-0. As Ed put it in his email:

Not a good weekend for Soda, the team loses the big game, the coach is killed in a car wreck and the booster (in addition to getting her car wrecked) gets sued. Ouch.

Yep. Thanks Ed! You're the man!

I wish I'd said that

A buddy of mine explaining to a college newspaper reporter why he wouldn't talk to the reporter: "Kid, I've been misquoted by real reporters."

The function of transactional lawyering

From my forthcoming agency and partnership treatise: "much transactional lawyering consists of building a paper record so that a dubious position later can be defended with a straight face." I liked that so much I decided to share it with you.

The Lord of the Peeps

I just noticed that Chapter 9 of this epic fantasy is finally up. Although their progress remains glacial, fans will be pleased.

A Better Version of Titanic

Can be found here. (Via Andrew Sullivan)

Labor-Controlled Corporations and the Larger Problem of Employee Participation in Corporate Governance

A very interesting new paper was just posted to SSRN: When Labor Has a Voice in Corporate Governance. The authors find:

Labor has a large contractual claim on a firm's cash flow. Labor equity ownership gives employees both a fractional stake in the firm's residual cash flows and a voice in corporate governance. Relative to otherwise similar firms, labor-controlled publicly traded firms invest less, take fewer risks, grow more slowly, create fewer new jobs, have worse free cash flow problems, and exhibit lower labor and total factor productivity. We therefore propose that labor uses its corporate governance voice to maximize the combined value of its contractual and residual claims, and that this often pushes corporate policies away from, rather than towards, shareholder value maximization.

This finding strongly supports my own work on employee participation in corporate governance.

Continue reading "Labor-Controlled Corporations and the Larger Problem of Employee Participation in Corporate Governance"

SUVs

I'm no fan of either big government or the French, but I might make an exception in this case.

Ted Rall

Despite his protestations, Ted Rall is an evil guy. It cannot be said often enough.

The distinction between positive and negative rights in the law

My friend and UCLA colleague Eugene Volokh responded to the preceding post with a post denying the utility of a distinction between positive and negative rights. I find Eugene's position unpersuasive for the reasons set forth in the preceding post. I also find his position tremendously puzzling, given how basic the positive versus negative rights distinction is to our constitutional framework. Consider, for example, Chief Justice Rehnquist's statement in DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195 (1989), that:

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. *196 Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government "from abusing [its] power, or employing it as an instrument of oppression," [citations omitted]. Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.

Or what about Chief Judge Richard Posner's statement in Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983), that:

First, it could be argued that the liberties secured by the [due process] clause include not only the traditional negative liberties--the right to be let alone, in its various forms--but also certain positive liberties, including the right to receive the elementary protective services that the state routinely provides users of its highways. ... The problem with this argument is that the Constitution is a charter of negative rather than positive liberties. ... The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them basic governmental services. Of course, even in the laissez-faire era only anarchists thought the state should not provide the type of protective services at issue in this case. But no one thought federal constitutional guarantees or federal tort remedies necessary to prod the states to provide the services that everyone wanted provided.

Eugene's argument seems to gloss over this basic distinction. Eugene may be correct, in some hyper-technical sense, that judicial or police enforcement of someone's negative rights as against interference by some other private party has a positive component. But so what? There is a big difference between the government telling you to stop trespassing on my property and the government telling you to pay your employees a living wage. Why?

Eugene has failed distinguish between claims for positive rights and claims that the government should provide public goods, such as law enforcement, public roads, and defense. He says, for example, that the government protects "our property (for instance, by arresting trespassers)." Here, the government is providing the public good of law enforcement. He also says that the government should "enforce our contracts (for instance, by seizing the property of people who breached contracts and were held liable for damages)." Here, as I argued in my earlier post, the government is acting as a facilitator of private ordering, but it is doing so by providing the public good of a dispute resolution system whose judgments are backed by the power of law enforcement. The failure to distinguish between government provision of public goods and a positive right to government provision of private goods is especially well-illustrated in Eugene's comment that:

More broadly, I think even most conservatives would conclude that people have a positive right to police protection more broadly — even poor people should get it, even if they're too poor to pay for it via taxes. Some may say the same about fire protection, though some libertarians would part ways on that. But it's only the anarchists who just oppose all "positive liberty" claims, I think. In the view of others, there are certain benefits, such as police or fire protection, that a good government ought to provide to all people, even at the expense of taxpayers (whether the "ought" stems from some moral rights to government benefits, or from pragmatic concerns).

These are all public goods! There's not a single positive right, as the term is conventionally used, in the bunch.

To say that the government ought to provide public goods is not the same thing as saying that the government should provide positive rights to private goods (such as a job and, arguably, education). This is a distinction that welfare economics has long drawn.

It is precisely that distinction that is implicit in Rehnquist's and Posner's argument. Eugene's failure to acknowledge that difference thus blurs the distinction they draw between negative rights that protect against coercion by state government and positive rights that demand that the state use its powers to coerce some of its citizens to provide services to others.

My TCS Column on Reagan

In this column, I discuss Reagan's legacy as a defender of negative rights, and critique Reagan's critics as purveyors of a flawed vision of positive rights.

Update: I have a lot of respect for my friend and UCLA colleague Eugene Volokh, but I find Eugene's response to my TCS column on Reagan's legacy vis-a-vis negative rights unpersuasive. Eugene's basic point is that the "negative/positive rights distinction doesn't really do the work that most conservatives or even moderate libertarians would want it to do -- because private property and freedom of contract (as generally understood) themselves involve positive rights."

Obviously certain negative rights, such as private property, have a positive component. Yet, as I am sure Eugene knows, the positive v. negative rights dichotomy is an outgrowth of the Cold War debate over human rights. The positive rights dialectic, which is the tradition in which Saletan's column clearly falls, claims that government should create certain affirmative rights -- such as the "right" to a government-provided education or the "right" to a government-provided job. In contrast, the idea of negative rights is mainly a right to be left alone. A right to have government kept out of one's affairs. The first and highest purpose of a right to private property rights thus is a right against government takings of that property. The first and highest function of freedom of contract is preventing the government from interfering with bargains struck through private ordering.

Hence, there is a significant difference between the government functioning as a facilitator of private ordering and as a regulator. To the extent negative rights have positive aspects, those positive aspects relate principally (if not solely) to the former function of government. In examples Eugene cites, for example, the government is acting - primarily through common law courts or criminal sanctions based on old common law principles - as an impartial arbitrator to facilitate achievement of a Coasean bargain in settings where high transaction costs preclude effective private ordering. In contrast, where the government seeks to create positive rights of the sort that Saletan invoked as being part of "liberty," the government almost always does so through regulation and legislation. In such cases, the government is rarely seeking to facilitate private ordering; to the contrary, creation of these sorts of positive rights requires government intervention to override existing regimes created by private ordering. (As Eugene's post suggests, government also has a role in providing public goods; although I don't think he can demonstrate that provision of basic public goods entails the same sort of positive rights that Saletan was seeking to defend.)

The distinction between government as facilitator and government as creator of new rights is basic to a system of ordered liberty (Russell Kirk talked about this, albeit not in economic terms, in The Roots of the American Order). Eugene's post thus: (1) fails to root his argument in the debate between Saletan and myself, but rather goes off in his own direction; (2) disregards the historical context of the debate between Saletan and myself; (3) fails to take into account the differentiation I've drawn here between the various roles of government.

Update 2: Be sure to also check out Jane Galt's post on Saletan.

Update 3: I've got a further response to Eugene in my post The distinction between positive and negative rights in the law.

Was Reagan Dumb?

Christopher Hitchens is his usual genial self:

The fox, as has been pointed out by more than one philosopher, knows many small things, whereas the hedgehog knows one big thing. Ronald Reagan was neither a fox nor a hedgehog. He was as dumb as a stump.

Nonsense. Nobody who has ever read Reagan, In His Own Hand could possibly make that assertion with a straight face:

A top advisor to Ronald Reagan once remarked of his boss: "He knows so little and accomplishes so much." Reagan, in His Own Hand will show that the 40th president knew far more than some people have given him credit for. It collects Reagan's recently discovered writings from the late 1970s, when he delivered more than a thousand radio addresses. He wrote about two-thirds of these himself, in longhand on yellow legal paper. "In writing these daily essays on almost every national policy issue during the 1970s, Reagan was acting as a one-man think tank," suggest the editors. This edition reproduces everything faithfully, right down to the spelling mistakes and crossed-out words. And it offers a compelling look at the ideas and principles that animated one of the most important Americans of the 20th century.

These texts reveal a thoughful visionary who had carefully planned many of the key events of his Presidency long in advance, including (as illustrated by the draft of a 1980 campaign speech), his strategy for defeating communism. Facts are inconvenient things; as usual, Christopher Hitchens does not allow them to get in his way. If you want to decide for yourself, buy the book.

The Economist Misrepresents Reagan's Economic Legacy

The usually reliable Economist magazine grossly misrepresents Reagan's legacy in the economic sphere:

The dramatic tax cuts of his first year did not bring the swift soaring of production, and therefore of revenues, that he had been led to expect; instead, it was the budget and trade deficits that soared—a trend that is once again fashionable under George W Bush. Reagan’s presidency ended with inflation down but public spending taking almost as big a share of GDP as eight years earlier. No Reagan revolution here, it seemed.

In an even worse slap in the face, the Economist then gives Reagan credit mainly for setting the stage for Bill Clinton:

Reagan persuaded his opponents that his goals should be their goals too—an economy wedded to enterprise, not corporatism, a flexible labour force, and a welfare policy the next generation would be able to afford. The revolution had come, after all, and had converted its enemies. Reagan made safe the way for Bill Clinton, just as in Britain Margaret Thatcher did for Tony Blair.

Stuff and nonsense. Let's check the record. Yes, the deficit went up on Reagan's watch and that was (probably) a bad thing. Yet, consider what Reagan accomplished while Bill Clinton was still chasing skirts back in Arkansas trailer parks:

1. Presiding over what was then the longest peacetime expansion in US history.
2. Ending the long period of stagflation: inflation dropped from 10.4% to 4.2% on Reagan's watch, while unemployment dropped from 7% to 5.4%.
3. Setting into motion the free trade talks that led to NAFTA.
4. A real dollar reduction in the rate of annual growth in federal spending from 4.0% under Jimmy Carter to 2.5% under Reagan.
5. A fairer and flatter tax system.
6. A then-record annual increase of 3.8% in manufacturing productivity.

Perhaps all that doesn't qualify as a revolution; but, as someone who lived through it, I sure wouldn't mind repeating it.

Last Night's Sopranos & The President

Slate's "Mob Experts on the Sopranos" feature has been a real kick this season. In the last installment, however, two of the contributors (mob mouthpiece Jerry Shargel and Slate TV critic Dana Stevens) both equated Tony Soprano and President Bush. Somewhat surprisingly, at least to me, their fellow contributor Jeff Goldberg spanked them but good:

Are you equating a well-meant (and if you read Woodward, you'll see this is true) effort to liberate oppressed people (yes, most Iraqis actually wanted to be liberated from Saddam's regime), and to pre-empt a rogue dictator's attempts to re-acquire the sorts of weapons he already used to murder thousands, to Tony Soprano's desire to maintain control over the New Jersey strip-club industry? I'm like most of the rest of the pro-invasion crowd; I can't believe no one thought to plan for the day after, and I find the administration's arrogance disconcerting. But I don't think that George Bush needs to feel morally conflicted about liberating Iraq in the same way that Tony Soprano needs to feel moral doubt over, oh, murdering his cousin, for example.

I'm an ambivalent agnostic on the invasion, but I agree with Goldberg that there is a big moral difference between Tony and W. Unfortunately, the bulk of the left (both here and, especially, abroad) has come completely unhinged due to their inability to acknowledge that Bush has any moral legitimacy.

As for the show, I liked it a lot better than the Slate analysts did. I'm a big fan of David Chase's character-driven slice of life approach. It doesn't especially bother me when some plot lines peeter out without resolution (although, yes, I too wonder whatever happened to that Russian out in the woods). Instead, I relish tiny moments of wit and power. The scene in which Tony and Carmela come to grips with AJ's potential career in event planning, for example, was just priceless. Ditto the moment we thought the bear was coming back. Ditto Christopher's great line about Adrianna: "She was willing to rat me out because she couldn't do five years? I thought she loved me." Sure it was slow paced and the ending too contrived, but at the end of the hour I thought watching the show had been time very well spent. Other than World Poker Tour, there isn't much on TV these days about which I would say that.

Interesting Law Review Behavior

The Social Science Research Network has become an incredibly important part of legal scholarship. Hundreds (thousands?) of law professors publish working papers online at SSRN, which sends out email notices of new papers to subscribers and also offers a reasonably powerful search engine for exploring the archives. These days, much of my professional reading and research is done through SSRN rather than the traditional law reviews, in large part because the law review publication process is so slow (it can often take 6 months to a year between the time an article accepted and when it is published; shockingly, sometimes it can take even longer).

Law reviews are reacting in a couple of ways. Some are requiring authors to remove an article from SSRN when it is accepted; this phenomenon seems especially widespread among top tier journals. These journals have very lucrative contracts with Lexis and/or Westlaw, pursuant to which the final article, as published, is archived in their databases. Apparently Lexis and Westlaw perceive SSRN as a competitor and pressure the law reviews. Yet, as Dan Hunter showed in a widely-disseminated open letter to the California Law Review, this argument is bogus:

The subscribers to online legal databases are largely confined to law firms and law schools. Since law schools have free access to these services, then the only meaningful market for commercial legal databases is in law firms. The articles on SSRN are in pdf format and therefore not fulltext searchable, and moreover they are generally preliminary drafts. Your argument therefore is that practicing attorneys will spend hours searching through the SSRN database for unfinished articles in preference to the easily-searchable, published version on the commercial databases. Even given the ridiculous sums charged by these providers, it is entirely implausible that SSRN competes with Westlaw/Lexis/Hein in this market.

Interestingly, law reviews at schools below the first tier recently have struck out in a different direction. On May 27th, I posted an article, Abloishing LLC Veil Piercing to SSRN. In the intervening two weeks, I have received two unsolicited offers of publication from good (albeit not top 30) law reviews. As it happens, this article already has found a home. Yet, I find it very interesting that at least some law reviews are now using SSRN as an early-warning system to find new articles. By then offering the author a bird in the hand, the journals may be able to induce risk averse academics (or those who need an immediate offer of publication for tenure or promotion purposes) to publish with them. It'll be interesting to see if it works. I'm doubtful that it will, since there is so much pressure on authors to at least try to land your article in a top 30 journal. Kudos to the law reviews involved, however, for some creative, out-of-the-box thinking.

Carnival of the Capitalists is Up

Window Manager did a great job. Lots of good posts. My contribution looks at how hard it is to pass down a family owned business using the Mondavi wine family as a case study.

The Great Communicator

If you want proof of Reagan's greatness as a communicator, you must read:

Speech at Pointe de Hoc, June 6, 1984

Behind me is a memorial that symbolizes the Ranger daggers that were thrust into the top of these cliffs. And before me are the men who put them there.

These are the boys of Pointe du Hoc. These are the men who took the cliffs. These are the champions who helped free a continent. These are the heroes who helped end a war.

Gentlemen, I look at you and I think of the words of Stephen Spender's poem. You are men who in your 'lives fought for life...and left the vivid air signed with your honor'... .

You all knew that some things are worth dying for. One's country is worth dying for, and democracy is worth dying for, because it's the most deeply honorable form of government ever devised by man. All of you loved liberty. All of you were willing to fight tyranny, and you knew the people of your countries were behind you.

Tear Down this Wall

Behind me stands a wall that encircles the free sectors of this city, part of a vast system of barriers that divides the entire continent of Europe. From the Baltic, south, those barriers cut across Germany in a gash of barbed wire, concrete, dog runs, and guard towers. Farther south, there may be no visible, no obvious wall. But there remain armed guards and checkpoints all the same--still a restriction on the right to travel, still an instrument to impose upon ordinary men and women the will of a totalitarian state. Yet it is here in Berlin where the wall emerges most clearly; here, cutting across your city, where the news photo and the television screen have imprinted this brutal division of a continent upon the mind of the world. Standing before the Brandenburg Gate, every man is a German, separated from his fellow men. Every man is a Berliner, forced to look upon a scar.

President von Weizsacker has said, "The German question is open as long as the Brandenburg Gate is closed." Today I say: As long as the gate is closed, as long as this scar of a wall is permitted to stand, it is not the German question alone that remains open, but the question of freedom for all mankind. Yet I do not come here to lament. For I find in Berlin a message of hope, even in the shadow of this wall, a message of triumph. ...

General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate! Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall!

Gorbachev Says What the New York Times Would Not

In today's NY Times, President Ronald Reagan's editorial obituary gives him grudging and only partial credit for ending the Cold War:

Mr. Reagan's stubborn refusal to accept the permanence of Communism helped end the cold war. He was fortunate to have as his counterpart Mikhail Gorbachev, a Soviet leader ready to acknowledge his society's failings and interested in reducing international tensions.

In contrast, said Mikhail Gorbachev is far less begrudging in his praise:

I don't know whether we would have been able to agree and to insist on the implementation of our agreements with a different person at the helm of American government. True, Reagan was a man of the right. But, while adhering to his convictions, with which one could agree or disagree, he was not dogmatic; he was looking for negotiations and cooperation. And this was the most important thing to me: he had the trust of the American people.

In other words, while the Times editorial board implies that it was Gorbachev's role that was the critical one, Gorbachev himself acknowledges that Reagan's role was equally - if not - more critical. Kudos to Gorbachev for being sufficiently self-effacing to say what the Times could not bring itself to acknowledge.

Further kudos to Gorbachev for his kind words in memory of the man who defeated communism:

I have just sent to Nancy Reagan a letter of condolence for the passing of Ronald Reagan. The 40th president of the United States was an extraordinary man who in his long life saw moments of triumph, who had his ups and downs and experienced the happiness of true love. ... The personal rapport that emerged between us over the years helped me to appreciate Ronald Reagan's human qualities. A true leader, a man of his word and an optimist, he traveled the journey of his life with dignity and faced courageously the cruel disease that darkened his final years. He has earned a place in history and in people's hearts.

I wish I'd said that

Lileks on Reagan:

I am reminded of the thrill I got when I heard the words “Mr. Gorbachev, tear down this wall.” Because you can sum up Reagan’s legacy by polling any random high-schooler and reading that line.

“What wall?” they’d probably ask.

The wall, kid. You know: The Wall. The fortified gash. The thin lethal line that stood between tyranny and freedom. I mean, we lived in a time when there was a literal wall between those concepts, and we still didn’t get it.

The Europeans Protesting Bush

As expected, segments of the European street are frothing at the mouth over President Bush's visit. Bush did a credible job of responding during an interview with Tom Brokaw. It reminded me of one of Ronald Reagan's old lines. In his famous "tear down this wall" speech, Reagan noted the protests against his visit to Europe and, in particular, Berlin:

I have read, and I have been questioned since I've been here about certain demonstrations against my coming. And I would like to say just one thing, and to those who demonstrate so. I wonder if they have ever asked themselves that if they should have the kind of government they apparently seek, no one would ever be able to do what they're doing again.

The Europeans apparently still are unwilling to ask themselves that hard question. Oh well. They were wrong about the cold war and they're wrong again about the war on terror. And Kudos to Bush for saying:

I'm not trying to be popular. What I'm trying to do is what I think is right. And what is right is to fight terror. And what is right is to spread freedom. And what is right, to stand on the the values that my country and our country upholds. And I will continue to do so.

Noonan on Reagan

Peggy Noonan was Ronald Reagan's greatest speechwriter and one of his abelest biographers, so it comes as no surprise that her op-ed remembering President Reagan is inspiring and even beautiful:

In his presidency he did this: He out-argued communism and refused to accept its claim of moral superiority; he rallied the West, rallied America and continued to make big gambles, including a defense-spending increase in a recession. He promised he'd place Pershings in Europe if the Soviets would not agree to arms reductions, and told Soviet leaders that they'd never be able to beat us in defense, that we'd spend them into the ground. They were suddenly reasonable.

Ronald Reagan told the truth to a world made weary by lies. He believed truth was the only platform on which a better future could be built. He shocked the world when he called the Soviet Union "evil," because it was, and an "empire," because it was that, too. He never stopped bringing his message to the people of the world, to Europe and China and in the end the Soviet Union. And when it was over, the Berlin Wall had been turned into a million concrete souvenirs, and Soviet communism had fallen. But of course it didn't fall. It was pushed. By Mr. Know Nothing Cowboy Gunslinger Dimwit. All presidents should be so stupid. ...

What an era his was. What a life he lived. He changed history for the better and was modest about it. He didn't bray about his accomplishments but saw them as the work of the American people. He did not see himself as entitled, never demanded respect, preferred talking to hotel doormen rather than State Department functionaries because he thought the doormen brighter and more interesting. When I pressed him once, a few years out of the presidency, to say what he thought the meaning of his presidency was, he answered, reluctantly, that it might be fairly said that he "advanced the boundaries of freedom in a world more at peace with itself." And so he did. And what could be bigger than that?

Go read the whole thing. Please.

I Guess I'm Just Chopped Liver

With respect to the Blankley kerfuffle, Mark Kleiman writes:

I'm still waiting for a non-Jewish conservative to agree, or a hint of complaint from the RNC or its allies.

And Kevin Drum writes:

Blankley's transparently racist imagery hasn't caused much of a ripple. Eugene Volokh has an extremely mild rebuke, but that's about it. Nada from Instapundit, Sullivan, The Corner, Den Beste, or LGF, despite the fact that anti-Semitism is part of their regular beat.

In my earlier post on the subject, which Kleiman linked for other reasons, I said "that Blankley's remarks were unfortunately phrased" and went on to agree with Eugene Volokh's statement that "it certainly hints at broader hostility to Jews." I guess it isn't enough for Kleiman and Drum that I think Blankley's comments were unacceptable and raised very troubling questions; I guess I'm also supposed to think Soros belongs in the same pantheon as Mother Theresa or something. (Ed.: Retracted.) Sorry, but I don't think the one follows from the other. In my view, it is possible to think that Blankley said some very suspect things, while also thinking that Soros is a bad dude with some very suspect opinions who is trying to buy this election.