Plan B, Part III

Last time we checked in with our foreign policy experts, our State Department was assuring Iran that we wouldn't be stopping any shipments of arms to Iran's allies in Yemen, the Houthi rebels.  Sure, we're nearing the end of a capitulation, er, negotiation on Iran's nuclear program that might give someone second thoughts about the value of any deal.  And sure, there was a UN resolution we'd pushed for that prohibited arming the Houthis.  And sure, we were moving warships (including an aircraft carrier!) toward a convoy of Iranian vessels thought to be carrying a shipment of arms destined for Yemen, but our State Department wanted to make sure everyone understood that we're all bark and no bite.  As Spokeswoman Marie Harf explained:  I want to be very clear just so that no one has the wrong impression. They are not there to intercept Iranian ships."  Oh.  Why are they there then?  "The purpose of moving them is only to ensure that the shipping lanes remain open and safe."

Today's blog won't rehash the many ways in which this is both depressing and hilarious.  (But click here if you'd like to.)  In any event, it appears that the Iranians didn't believe the stated commerce-protecting purpose of warships.  Perhaps they believed the much less pacific message from the Pentagon instead.  The Iranian ships turned around and headed for home.  If the Iranians did in fact turn around because of the US Navy, it's despite our State Department's behavior, not because of it.  But let's move on to see how we're doing with our stated goal of protecting the shipping lanes.

On Friday, (one day after the Iranian arms shipments turned around for home), Iran's navy intercepted a US-flagged cargo ship in the Strait of Hormuz, the Maersk Kensington.  After encircling and following for a time, the Iranians dispersed.  Yesterday, Iranian navy fired on and seized another cargo ship, the Maersk Tigris.  That ship is headed to port under Iranian escort.

Iran had not been in the habit of using its navy to block shipping lanes until immediately after our President and State Department made a point of saying we'd protect the shipping lanes.  I don't pretend to know if it's immediately possible to protect the cargo ships intercepted over the past 5 days, and I'd guess that Iran chose targets a little removed from the center of US naval presence in the region.  But it's as if Iran is making a point, no?

Which brings us back to Plan B theory.  Our President has publicly stated that he has no alternative to a deal with Iran.  He has no Plan B.  Iran will get what it wants in terms of nuclear militarization development because our lead negotiator, the President of the United States, believes there is no alternative.  He has said so, publicly.  His determination to get a deal at any cost, despite missed deadlines by Iran, despite Twitter (!) accusations by his counterpart of lying, cheating and general infidelitude, despite intentional military provocations during negotiations, confirms his desperation.  

If you get your opponent on the ropes, keep punching hard until he's down.

Here We Go Again

Today the Supreme Court is hearing arguments on whether the Constitution allows individual states to decide whether they will allow same sex marriage, or whether every state must allow same sex marriage.  Forgive the lengthy quote, but NPR sums up the background of today's arguments in Obergefell v. Hodges at the Supreme Court better than I could:

"While no single narrative explains the shift in public consciousness, it is clear that increasingly, Americans came to believe that, at least in some cases, gay marriage ought to be permitted. The elite reaches of the legal profession began to advocate reform of marriage laws. . . . By the end of the decade, 12 state legislatures would relax their . . . prohibitions . . . . Four other states — three by legislation and one by public referendum —would act by the end of 2014 to eliminate all or nearly all restrictions on gay marriage. 

Organized religion responded to these signs of change in different ways. Some denominations supported the cause of change, and liberal members of the clergy formed a network to perform gay marriage ceremonies. Other Protestant denominations sat on the sidelines. The Catholic Church, however, alarmed by the spread of new mores . . . began to focus on marriage. By the decade's end, as forces mobilized in support of liberalizing marriage laws, the Church began to make increasingly visible and organized efforts to block reform — first speaking in religious registers and then shifting to secular and nondenominational grounds for opposing gay marriage. Catholic legal scholars began calling on secular sources of law from which to argue for maintaining traditional marriage.  Even as the Church was beginning to organize the right-to-life movement, support for liberalizing marriage was emerging from sources that would fatefully change marriage's social meaning and expression."

OK, I cheated a little with this.  This is actually a description of the background to the Roe v. Wade decision in 1973, with "abortion" replaced by variations on "marriage" and a couple of dates changed.  Two days after Roe, a New York Times editorial hoped that the Roe decision would "bring to an end the emotional and divisive public argument over what always should have been an intensely private and personal matter."  All that had to happen for the argument to end, of course, was for the abortion opponents to conclude that they'd been wrong to oppose abortion.

Nothing like that occurred, of course.  Despite the pre-Roe movement in public opinion described above, and the incredibly high barrier to change created by the Roe, the "emotional and divisive public argument" continued.  For quite some time--20 years--public opinion as measured by Gallup continued to move against the pro-life position.  But current trends continue only until they change.  Over the next 20 years up to today, the position that abortion should be legal in every circumstance has declined, while the directly opposing position that abortion should be illegal in every circumstance has increased by roughly the same amount. Even more striking, self-identification as either pro-choice or pro-life has moved from a solid majority identifying as pro-choice versus a 33% minority identifying as pro-life, to equal proportions identifying as pro-choice and pro-life today.

Far from ending the debate, Roe disguised fashionable political preferences as a Constitutional requirement, and froze those fashions in place.  The same temptation has returned in Obergefell.

Support for gay marriage has been increasing rapidly.  Only a few short years ago, Barack Obama stated he was against gay marriage for religious reasons.  Since that statement in 2004, support and opposition to gay marriage have swapped places in the Gallup poll, moving from 55% opposition and 42% support, to 55% support and 42% opposition.  Staying just behind the curve, President Obama has also swapped his opposition for support.

Current trends will continue until they change.  There was no reason to think that the steady shift towards "pro-choice" had peaked in 1996.  But it had.  Over the past few years, and despite the constraints imposed by Roe, many states have voted for and implemented a raft of new restrictions on abortion.  There's no reason to think that current support for gay marriage is more enduring.  There may be reasons to think that it's actually less enduring--of the 37 states currently allowing same sex marriage, more than two thirds are doing so due to judicial decisions, not democratic process. 

Whether or not current trends change soon, or far in the future, the Court should not repeat its mistake of 1973.  If there really is to be a consensus that gay marriage is a good thing, it will be reflected in state laws.  But if there is to be no consensus, the Court should not impose one.

I Have Time for Things I Want To Do

Early in my career as a lawyer, probably during the first couple of months, I remember a senior associate telling me that "work expands to fill available time."  I tend to forget most of what I hear, but I remember this well--because it's very, very true.  I have learned since that this is known as Parkinson's law, first stated in an article published in The Economist in the 1950s.

I mentioned in my first blog post that I'm in a career transition.  There are some good things happening there, but I remain unemployed for now.  However, I still can't find the time to do everything that I think I ought to do.  Before my last day on the job, I expected to have so much free time that I would be making up things to do.  Of course, I did have a list of things in my head that I thought I ought to get to right away:  reorganize the garage and the attic, arrange a home office, build an outdoor fire pit, and handle basic set up at the new mountain cabin.  I've done some, but not all of that list.  I expected to have it done long ago.

There are so many other things I have been doing at the same time:  triathlon training is not as rushed and has expanded some; I'm glad that I can give more help around the house (the 2 year old is a handful; and I can run errands during the day); I've committed to writing everyday, which I've almost kept to; I've said yes to requests for help at church that I would have said no to before; and on and on.

I think there may be a Hicks corollary to Parkinson's law.  Or if not a corollary, at least a related rule:  

I have time for things I want to do.

If I compare the list of things that I've actually done with the list of things that I thought I'd get to but haven't yet, it's clear that the first list is the list of things that I really want to do.  The second list is of things I ought to do at some point, but am not so excited about actually doing.

This is not groundbreaking, I know, but it's something I've been thinking about for the past couple of years.  Now that my time is even more flexible, it's even more clear--when I start to say "I don't have time" for this or that, what I really mean is that I don't want to do it.  Period.

Of course, it's also now true that when someone else says "I don't have time," what I hear is "I don't want to."  There's some social value in the little white lie of blaming time for a refusal, rather than just saying "I don't want to."  Who can argue with time?  

But in my own internal conversations, removing "time" as a reason I give myself for not doing something and focussing on what my priorities actually are has helped me clarify (or even modify) my priorities on occasion.  

I've spent as much time as I want to on this.  Time to go do something else.

Plan B, cont.

Iran's march to regional domination is in the news again, as it will be for the foreseeable future. 

Yemen's government crumbled and dissolved into nothingness in January, four months after President Obama touted Yemen as an example of the success of his foreign policy.  Yemen has been in a Hobbesian state of war of all against all since then.

The Yemeni government was reasonably friendly to the US.  Not satisfied with the removal of US influence, Iran is attempting to ensure that Yemen becomes an Iranian puppet state.  A shipment of Iranian arms destined for the Houthis (Iran's allies in Yemen) is on its way.

A prior post examined the disaster that has resulted from having no Plan B in the negotiations with Iran over Iran's nuclear weapons program.  We still have no Plan B there, so even though Iran is actively pursuing military options against US interests in the Middle East (we've been assisting the Saudis in their military actions against Iran's Yemeni allies), we're not even going to pause negotiations.  White House spokesman Josh Earnest:  Iran's intervention "is not a reason to break up those negotiations — in fact, it is a very strong incentive for those negotiations to succeed."  Most experienced negotiators do not take threats, violence or other bad behavior as a reason to come to agreement.  The proper response to someone pounding the table across from you is not to agree with him in the hope that he'll stop the scary noises.  The proper response is to call his bluff.  But our negotiators seem invincible to experience.

On Sunday, the US diverted warships to the Yemeni coast.  Maybe we did learn how to call a bluff?  No.  Since Sunday, there have been a series of statements from the Obama administration, including Obama himself, that could not be better crafted to communicate confusion, weakness and irrelevance.

After his Press Secretary told reporters that the United States "is serious about the Iranians not providing weapons to the Houthis," President Obama said these words to Chris Mathews in an interview on MSNBC:

"Right now their ships are in international waters.  There’s a reason why we keep some of our ships in the Persian Gulf region and that is to make sure we maintain freedom of navigation. And what we’ve said to them is if there are weapons delivered to factions within Yemen that could threaten navigation, that’s a problem."

Let that sink in.  There's a UN resolution prohibiting anyone from arming the Houthis.  The White House Press Secretary has reiterated that we're serious about preventing Iran from arming the Houthis.  So to ensure that everyone understand our intentions, President Obama says that we're concerned with the shipping lanes.  If Mathews wasn't distracted by his tingling leg, perhaps he would have thought to ask what problem a weapons shipment could possibly create for maritime navigation.

Mr. President, there is no problem with the shipping lanes.  None.  The idea that weapons being delivered to Yemen could "threaten navigation" is intentional idiocy.  The weapons are to be used in Yemen, against our allies.  It's as if the FBI set up armed surveillance of a gun trafficking operation in a Walmart parking lot, for the sole purpose of ensuring that the traffickers didn't use any of the handicapped parking spaces.

For its part, the State Department wants to make sure we all understand that US warships aren't going to do anything, you know, warlike.  Spokeswoman Marie Harf:  "I want to be very clear just so that no one has the wrong impression. They are not there to intercept Iranian ships.  The purpose of moving them is only to ensure that the shipping lanes remain open and safe."

This is impossible to parody.  We're sending our warships toward an Iranian shipment of weapons, not to intercept those weapons, but to make sure they reach their destination safely. 

I Know You Are a Racist. Whoever You Are.

I see that Tyrus Byrd won an election for Mayor of Parma, Missouri.  This is the number one story trending in my Facebook feed as I write this.  Congratulations to Mayor-Elect Byrd.

Parma had 713 residents at the 2010 census.  It is surprising, I feel it's safe to say, for a mayoral election in a town with barely enough residents to fill a section at an NFL game to make national news.  There must be something extraordinary going on for our nation to be suddenly so intensely concerned with Parma.

I've searched far and wide for what that something extraordinary might be.  There are no facts available, apart from those included in the article linked above.  In its entirety:

Voters in Parma, Missouri voted in their first African-American female mayor.

Tyrus Byrd will be sworn in as mayor on Tuesday evening, April 14 at the Parma Community Building.

According to Mayor Randall Ramsey, five out of six police officers resigned this week, effectively immediately.

Mayor Ramsey said the city's attorney, the clerk and the waste water treatment plant supervisor also turned in resignation letters citing "safety concerns."

Mayor Elect, Tyrus, Byrd, said she was unaware of the situation and plans to ask questions about the "safety concerns" during Tuesday night's ceremony.

Mayor Randall Ramsey served the city of Parma for 37 years during two different terms.

He lost the election by 37 votes.

I did manage to figure out why this story is so exciting.  The headline writers have concluded that the Parma police and city officials are racist:

Missouri Police Officers & Officials Quit After Town Elects First Black ...
News One-4 hours ago

80 percent of police force resigns after Missouri town elects first ...
Raw Story-21 hours ago

Police, Officials Resign After Small Missouri Town Elects First Black ...
Highly Cited-Huffington Post-18 hours ago

Missouri police officers resign after black female mayor is elected
Highly Cited-New York Daily News-21 hours ago

And so on, and so forth.

(An aside, I think the "80%" of police force resigns headlines is my favorite--it manages to be mathematically incorrect while avoiding saying something less dramatic, like:  "5 police officers resign".)

Missouri.  Police.  Racism.  It feels so good to be better than those people, doesn't it?

We don't, of course, have any reason from the facts in the article to conclude that racism has anything to do with Parma's mayoral election, or the subsequent resignations.  Here are facts we don't know from reports:

• Is Byrd the first black mayor?  Is the outgoing Mayor black?  The reports say "first black female".  Does that mean there was a black male in the past?  For that matter, was there a female in the past?

• Are some or all of the cops who resigned black?  Are some or all of them female?  What about the other city officials?  Mayor-Elect Byrd herself was a black female city official prior to her election.

• What happened in the election campaign?  The incumbent was mayor for 37 years.  This must have been an unusual election--what were the issues and what happened?

• What was the relationship between the resignee cops and officials and the incumbent Mayor?  Any long term incumbent will have a long and complicated history with the people in his administration.  What reasons might they have to leave with him?

And so on and so forth.

I don't know if racism played any part in some or all of the resignations.  And neither do any of the rest of us, apart from a very small number of people in the town of Parma, Missouri.  But many of us are certain we know what's in the hearts and minds of these people--we're so certain of it we publicly assign motivations to them, even though we've never met them and know very little about them.  We don't even know their names in this case.  Or age.  Or race.  Or sex.

Almost everyone does this, reflexively, on some level.  I decide that I know why the customer service rep on the other end of the phone seems to want to move me off of the phone--he's lazy, I'm sure.  It could be that he has a mother dying in the hospital, is at the end of his shift, and can get to her as soon as he hangs up with me.  I don't know.

But there's a special communal harm in the sort of assumed racism that is generating our Parma headlines.  It makes us all distrust each other.  And we ought to stop jumping to conclusions based on desires to find the next available target of racial sins.

In Defense of Insider Trading

I'm sitting in a Continuing Legal Education seminar today. The Commonwealth of Pennsylvania, in its wisdom, has decreed that I (and everyone else that wishes to remain a lawyer in Pennsylvania) must attend 12 hours of CLE every year. Maybe I'll write about the legal profession as a cartel in a future post. Anyway, so here I am.

This CLE deals with securities law. We have a whole panel of white collar defense lawyers, SEC enforcers, and one federal judge combing through the thicket of Supreme Court developments over the past year regarding insider trading. That is, how we know whether or not someone can be punished for knowing some piece of information during a trade of stock. 

The whole area of law is nonsense and should be scrapped. 

I might (and probably will) take more time later to write more carefully on this, but here's the preview summary:

The simple theory of insider trading law:  There's a market price for stocks. That price is based on what the market knows--that is, information publicly available regarding that company's stock. If someone sells or buys stocks based on information regarding that company not known to the market, then that person has an unfair advantage and should be sent to prison. Yes, prison. 

This is nonsense.

Let's say a company has a stock price of $10. There's a publicly unknown fact that would drop the company's price to $9. The insider (we'll call him Smarty) knows the fact, and sells all his stock before the fact is known. A buyer (we'll call him Ignoramus) buys it at $10, or if anything a little less, as Smarty's sale will create some downward pressure on the stock price. Then the fact becomes known and Ignoramus's stock is now worth $9. Unfair, we cry!  Poor Ignoramus!  Punish Smarty!

Alright. So what's the situation if Smarty doesn't sell before the info is publicly known?  Smarty's decision not to sell has no effect on Ignoramus--Ignoramus has no idea who Smarty is and doesn't care. So Ignoramus still buys at $10, and then the info becomes publicly known and Ignoramus's stock is then worth . . . $9. Same result (except that Ignoramus's losses may be marginally greater, because Smarty was prevented from creating the downward pressure on stock price noted above). 

Why do we punish Smarty?  I can't come up with a reason other than envy. Envy should never be the basis of any law.

One Man's Loophole Is Another Man's Targeted Tax Cut

One day of talking about taxes just isn't enough.  Yesterday, Rand Paul said he wants to get the IRS out of your life.  Who could oppose that?

As it turns out, almost everyone.

There is no inherent reason a tax code has to be complex.  I can write a fully functional tax code in one sentence:  

All sales of goods or services within the United States are subject to an 18% tax.  

Lots of people would like to make some modifications, clarifications, exceptions and other tweaks to that code, and if experience is any guide, they would succeed.  At last count, our federal income tax law, including the statute itself plus the regulations created by the IRS to implement the code was somewhere between 12,000 and 13,000 pages.  We've been succeeding like crazy.

Why are we so good at making what could be simple so complex that literally no single person can understand all of it?  Because it's so very tempting to use taxes to punish people for doing things we don't like (such as smoking, not having health insurance, or having a corporate headquarters in the US) and it's just as tempting to use taxes to benefit people for doing things we do like (such as borrowing money to buy a home, generating green energy or buying a Hummer and then destroying it).

Not everyone likes every exception that's written into the tax code.  Those who don't like a particular exception call it a loophole.  Those who do like a particular exception call it a targeted tax break.  There's no reason anyone to be consistent about it--you just have to switch from talking about loopholes to talking about targets depending on how you feel about the exception.  President Obama, for example, thinks that one particular rule that allows parents to leave money to their children without taxation is a "loophole".  But he's in favor of another particular rule that allows parents a "targeted tax break" if they happen to have children in college.  There's no logical reason for him to avoid saying that he'd like to create a loophole for parents with kids in college, or he's against the targeted tax break for inheritance.  But we somehow think of loopholes as an oversight or mistake, and a targeted tax cut as a wise and efficient use of our tax code.  Neither is true--no matter what we call them, exceptions are unwise, inefficient, and on purpose.

Rand Paul's flat tax is simpler, certainly, than the current system.  But he still leaves in very popular exceptions, like the mortgage interest deduction.  And if you can make one exception, why not another, and another . . .