Thought experiment: what if Kagan is a professional?

President Obama's nominee for the Supreme Court, Elena Kagan, has undergone a lot of criticism for her lack of experience. One particular variant of this criticism is the fact--noted by Paul Campos in this article--that she has hardly made known her political views on hot button political/legal issues, such as campaign finance reform, to name only one. She apparently has held her cards close in her (apparently very sparse) publications and even in her conversations with colleagues. Campos writes

Her thin sheaf of academic writings addresses only a handful of very narrow technical legal issues in an especially cautious and non-revelatory fashion. She has never published a word not intended for an academic audience. Her work as a lawyer—that is, as someone who is professionally obligated to advocate the positions of her employer, whether she agrees with them or not—tells us nothing about her own views.

He goes on to say

Over the past two months, I’ve spoken to nine of Kagan’s former colleagues at the two law schools where she has taught. All of these people, some of whom support Kagan’s nomination and some who oppose it, insist they know nothing about Kagan’s views on any significant legal or political issue—and I believe them.

One (mostly unspoken) insinuation here is that Kagan might have, for a long time, been seeking the Supreme Court nomination and carefully crafted her writings and even conversations to avoid controversy. Another possibility is that she lacks intellectual curiosity, or that she has a too mechanistic (and therefore somewhat unrealistic) view of the American legal system and how it is supposed to work. All these points are at least plausible given what we now know about her, and if they have any validity, it is a cause for concern.

But there is another possibility. Maybe Kagan adheres to a standard of professionalism that commands one not to wear one's political views on one's sleeve. Much of her academic career, as I understand it, was as a college administrator (I believe she was president Harvard Law School, but stand to be corrected). In that position, one's political views are not always relevant or of first importance.

None of this necessarily vitiates Mr. Campos's argument. One of his biggest beefs about the Supreme Court nomination process is that nominees rarely, if ever, can honestly articulate their political views, even though the post to which they are nominated is overtly political. Indeed, part of his criticism of Kagan is that she once wrote about the process as a vapid exercise and now is engaging in the same vapidity.

I think I am cynical realistic enough to know that paucity of information on Kagan's political orientation is at the very least suspiciously convenient and that as long as the culture of selecting judges remains what it is now, we are to expect nominees with similarly sparse and uncontroversial histories. I also realize the difficulty of being "non-political" as an academic or even as an administrator (the "personal is political" and "the death of objectivity," and all that). And if Kagan really was a conscientiously minded professional who did her job as "neutrally" as possible because it was her job, then maybe we don't necessarily want that type of person on the court. (The culture of professionalism isn't all it's cracked up to be, and it's not necessarily a good thing: witness the way academic departments knowingly tolerate professors who have long since given up on even their most basic duties and who are simply going through the motions because they have tenure.)

Still, what if?

What I'd like to know about interchange fees

There is much ado about whether or how much or in what way the government should regulate what are known as "interchange fees." These are the fees a merchant pays every time he or she charges a customer's credit card. So, to take some made up numbers, if a customer uses a credit card to pay for something that costs $10, the credit card company (or the bank with which the merchant has the credit card processing account) charges the merchant, say, 2%, or 20 cents, if my math is correct.

The controversy is that some merchants, presumably smaller merchants who operate on close profit margins, claim that the fees are so high that they often cut into the merchants' profits, especially when credit cards are used for purchases of small dollar prices. The contention, I presume, is that x% of a $1 pack of gum--or at least x$ on several single purchases of $1 packs of gum--takes away the merchant's entire profit margin. According to some merchants, credit card services require that merchants accept credit cards for all transactions. Therefore, some claim, smaller business owners get the short end of the stick. There are other arguments advanced for a more robust regulation of interchange fees: the price of the fees get passed along to consumers, even those who pay cash, in order to subsidize those who pay with credit cards; some credit cards allegedly command higher interchange fees than others, so there is a sense of arbitrariness and unpredictability of costs; the two dominant credit card companies--which I'll call Misa and VasterCard so as not to single anyone out--allegedly operate as near monopolists and unfairly negotiate with smaller merchants who individually lack bargaining power.

The justifications for unregulated/less regulated interchange fees range from arguments that robust regulation would be price fixing and government is generally less than competent to do price fixing, to more practical considerations, such as the assertion that individual merchants could, if they wanted to, negotiate with credit card companies to pass the fees on to customers or use one of the other credit card companies (which I'll call US Express and Uncover); the assertion that having a credit card is to mean anything, it means being able to buy anything at a merchant that accepts a card; and the assertion that interchange fees represent real costs to the authorizing banks and that handling cash and/or checks carries its own costs (the risk of checks bouncing, robberies, counterfeit currency).

I'm not sure where I fall exactly. And before I make up my mind, there are some things I'd like to know the answers to. Some are factual items--I just don't know a lot--and some are hypothetical (the "what would really happen if we did x, y, or z?"). I've heard assertions one way or another on a lot of these points. I assume they can't all be true, or at least not categorically true:

• Are merchants currently forbidden by credit card agreements from allowing discounts to cash only customers? I heard assertions both ways and imagine it might depend on the context. (One would also have to look at the merchant's incentive to offer the cash-only discount. I probably wouldn't base decision to purchase a $2 cup of coffee on a difference of, say 5 cents.)
• Do antitrust laws prevent merchants from organizing collectively to gain a credit card contract more to their liking?
• What would happen if merchants were allowed outright to charge higher prices for credit card holders? Would they simply raise all their prices by x percent and charge cash-only customers what they charge now?
• What would regulation of interchange fees look like? Would they simply be tacked on to the customer's credit card bill? Would there be a set percentage that merchants could charge? Would the government simply declare a "fair" fee? I know that Sen. Durbin has advanced an amendment to the currently pending finance bill that would do a variant of this latter scheme in respect to interchange fees on debit cards: in short, the Federal Reserve would set the rate. But I wonder if "price fixing," as the opponents label attempts to regulate interchange fees, is the only way to go about ending this practice.
  
• How are interchange fees regulated or enabled by currently existing regulation? (Sometimes opponents of "new" regulations, especially those who benefit from the status quo, do not realize or fail to acknowledge the ways in which current regulations play an active role in buttressing their current interests.
  

As someone who uses cash for most purchases--even to the point of being willing to pay the fees charged by out-of-network ATM's instead of using my debit or credit card--my interest in interchange fees is more academic than not. I'm just outlining some of the things I'd need to know before making a decision on the matter.

Thoughts on Walmart and local merchants

In Chicago for the last 6 years or so--perhaps longer--a debate has raged over whether to allow Walmart to build stores in the city limits. One of the many arguments against allowing Walmart an entree into the Chicago market is the claim that it chokes off smaller business that is locally owned and operated. The argument for Walmart hinges, at least in part, on the claim that the economy of many of the targeted neighborhoods in Chicago is so bereft of local merchants and the goods, services, and jobs they are supposed to supply that a Walmart would be a welcome addition.

I have heretofore expressed some reservations about the we-need-to-ban-Walmart-to-protect-local-businesses argument (see my post here, and a comment I made on a post at the Volokh Conspiracy here). In short,

The China syndrome

My undergraduate adviser in history (I had one for French, too), was a specialist in East Asian history, particularly 20th century Chinese history, with an emphasis on China's nationalities policy.* In some ways, this professor was one of the best I ever had. He introduced me to Chinese history (he taught all periods of Chinese history, not merely the 20th century) and his writing assignments were quite challenging and forced me to hone my thoughts.

In other ways, however, his teaching left something to be desired. His lectures at times, but only occasionally, contained apologias for some truly questionable practices that were done in Chinese history, such as the practice of footbinding, which resulted in the mutilation of countless numbers of women, and the Great Leap Forward and Cultural Revolution, which resulted in the deaths of millions. Given this, it is perhaps not surprising that he gainsaid the Tiananmin Square massacre, in which "only" hundreds of people were killed.

His goal wasn't malicious, and in some ways he was only trying to introduce us to seeing things from the perspective of those in power and those in the Chinese culture, on the very plausible assumption that someone growing up in that culture might have different conceptions of the state and human rights from those that Westerners might have. He also aimed at challenging some of the snobbery that, allegedly, has for a long time been inherent in Western scholarship on China.

Yet, he elided some serious problems. I now realize that he was a committed Marxist, although I wasn't quite aware of that at the time. Surely, Marxism had evolved by the mid-1990s to include serious discussions of "counter-hegemonic" cultural practices by the lower classes. What I mean is, even if Chinese culture encourages people to have a deferential attitude toward the state, that does not mean they do not "resist" this power in some ways.

That "problem," which I have undoubtedly oversimplified and only roughly explained, is only theoretical. There were specific items that in retrospect are questionable. On the subject of footbinding, the professor insisted that we ought not judge another culture by Western standards. After all, didn't the social norms of Victorian England virtually require upper-class and upper-bourgeoisie women to wear body-damaging corsets? In this case, he didn't particularly note the irony of comparing Chinese culture with Western culture in order to argue that we shouldn't compare Chinese culture with Western culture.

To this professor's credit, he did assign two textbooks from different perspectives. One was by Jacques Gernet (who, I believe, was a Marxist); the other was by John King Fairbank (who, I wager, could be considered an American liberal academic who had once been more left-leaning). The professor, however, made very clear which historian he agreed with. He derided Fairbank as an "elderly man" (indeed, Fairbank had written that book shortly before his death), as if the professor would have agreed with Fairbank if he had been younger. (My guess is that Gernet, in the 1990s, was no spring chicken either.)

Fairbank's crime? In a chapter section on footbinding, he criticized the tendency of mostly Western, non-Chinese historians (my professor was French) to adopt a "second nationalism" and write about China as if it could do no wrong. As an example, Fairbank humbly cited an article he himself had written decades earlier, in which he contended that the Glorious Revolution was one of the greatest things that ever happened to China.

I took four classes with the professor in question. I confess that I, too, developed a sort of second nationalism toward Chinese history, but on a more modest scale than my adviser had. In short, I ignored what should have been my better intellectual judgment and refused to challenge what even then I should have seen as holes in his statements.

This post is not meant as a diatribe against China or against my adviser. Perhaps my adviser's teaching style was defensible in many ways. It just gives me pause.





*China is approximately 90% ethnically "Han" Chinese, but the other 10%, while present in almost every province, are concentrated in strategic, sparsely populated areas that China would like to control, such as Tibet, northwestern China (the Xingjiang-Uighur Autonomous Region) and the land north central border (the Mongolian Autonomous Region.) China therefore had to develop a "nationalities" policy to prevent these people from revolting. Authoritarian regimes, no matter how brutal, cannot live on force alone.

Personalized business, or where to buy junk food

Sometimes, I prefer to patronize local businesses in part because I feel something tending toward a "moral" obligation that I want to support locally owned businesses. For example, there is a convenience store near where I live that appears to be owned by a family who, I assume, live in the neighborhood. Right across the street, a corporate gas-station/convenience store has opened up as well. The main difference between the two is that the latter offers gasoline and can induce a greater number of customers with slightly cheaper prices and loss leaders. Whenever, on rare occasions, I wish to patronize a local convenience store, I try to use the locally owned one (I don't have a car, so gasoline is a moot point). The reason: they're always nice to me and I don't want to see them lose their business.

Now, nothing I buy there is important, and there is a grocery store

A world without children

I have pretty much firmly decided that I do not want to raise children. I won't go into all, or any, the reasons, but I have thought long and hard about it, and I believe them to be good reasons. Still, I suspect that there is something lost in opting for this course. There is something gained, too, but also something lost.

What that "something lost" is, is to a large degree unknown by me, as someone who has never had children or played a significant role in raising children (I'm the youngest in my family and played no big role in my nieces' and nephews' upbringings). To a large, perhaps extravagant, degree, I don't know what I'm missing. As D. A. Ridgley said in a blog post on parenthood (click here to read; in fact, I recommend reading his entire blog; even though, to my knowledge he does not contribute to it anymore, I find it enjoyable reading):

The parent / child relationship is asymmetrical: you cannot understand what it is to be a parent merely by having been a child. I want all my children to be healthy and happy and harmless people who are loved and share love freely. Beyond that I am mostly indifferent about the particulars of how they choose to spend their lives and even less concerned about how they make a living.

And much of what I hear from parents is that they find being a parent, to paraphrase what a friend of mine once said, "both easier and harder than you can imagine."

One thing I've learned from reading C. S. Lewis, even though I'm not sure he phrased it in exactly these terms, is that almost everything, except perhaps, for him, the grace of God, comes with its corresponding dangers and corresponding virtues. Deciding not to have children comes with certain "virtues"--if one may call them that--but it also comes with the danger of being locked increasingly into oneself, making oneself as a God, or as an island entire unto itself. Raising children can, I imagine, be a strong antidote to that.

I imagine that deciding to raise children entails potential dangers that, like the virtues, I cannot, perhaps, fully imagine or appreciate, although in the news we see frequent (although perhaps anomalous?) instances of parents neglecting their children or abusing them. And my reasons for not wanting to have children relate, at least partially, to fears that these dangers would be realized; however, I promised not to go into my reasons.

But I should say that in most of the parents I know, I see loving people who have given, and who continue to give, love and nurturing to another being that, at least at first, is completely dependent on them. Perhaps such a role, for the parent, is heartbreaking. A friend of mine once said that you never love your parents as much as they love you. I don't know if that's true, but she had children and could at least speak from experience.

Now that Mother's day has passed and that Father's day is approaching, I guess I'd just like to give a shout-out to my friends who are parents.

Why support the Green Party?

For the by-elections in Illinois, I am endorsing the Green Party ticket. (Right now, I expect to hear a collective *sigh* of apathy from my readers, who number perhaps in the high single digits and who probably don't depend on me to tell them how to vote.) Any endorsement of the Green Party, or any third party, comes up with some very commonsense and reasonable exceptions:

1. Third parties have a notoriously hard time actually winning elections. This is true historically, even at the state and local levels. Even apparent examples of "successful" third parties are either not really that successful or not that "third": the Republicans, in the 1850s, might arguably be thought to have been a "third party" of sorts, but in actuality, the prior third party system (Whigs versus Democrats) was falling apart, and the new Republican party was taking on some of the trappings of the Whigs and Free Soil Democrats; the Progressive Party of Theodore Roosevelt was somewhat "successful" (TR placed second in electoral votes to Woodrow Wilson), but to the degree it enjoyed any success was due to that fact that it represented one wing of the Republican party that had broken off from the alleged "Old Guard"; the Populist Party, for a time, enjoyed some electoral success at the state level, but it, too, fell by the wayside.
   
2. This is also true structurally: our "first past the post" system of voting for "single member districts" (basically: only one person can serve as representative for a geographically bound territory, and that person needs to get at least one more vote than her or his competitors) militates against a victory from someone who does not belong to one of the two parties.
3. This is also true in terms of hardball politics. Frankly, third parties almost never have money or legal resources to deal with the inevitable challenges (more often than not, from the Democratic Party) to their right to be on the ballot.
   
4. Third party campaigns usually hurt the electoral chances of the candidate who is most likely to represent the interests of those who vote for the third party. It is probably too trite to say, for example, that Nader voters in 2000 all would have voted for Al Gore if Nader hadn't been on the ticket (I, for one, would have probably voted for another third party, and I really do think some others might have voted for Bush), but it seems pretty clear that Green voters probably played the critical role in battleground states like Florida and that Gore would have been much more friendly to the types of policies espoused by the Greenites than Bush was on most issues.
   

Given these objections, why on earth would I support the Green Party? Here are a few reasons, and I confess that they do not answer all the above objections completely:

1. At the state level, and especially at the local level (by which I mean, Cook County), the Greens have a marginally better chance at winning than they do at national-level elections. I stress that this chance is, indeed, only marginally better. But it is better.
2. The stakes, at the local level, are not necessarily as stark as at the statewide and national levels. The Greens are running someone for Cook County President, and the Democrats, who dominate the board, are so corrupt, that it might be hard to distinguish much from the Republicans. (There is a danger that a tax-lowering Republican base might dismantle county health aid and other forms of public assistance, so I don't claim that the partisan differences mean nothing.)
3. The Democratic party in Illinois, and especially in Chicago and Cook County, is so institutionalized and so unabashedly dictatorial that almost any change seems better. I even briefly considered supporting local Republicans, until I went to the GOP's Illinois website and found, on its opening page, a big advertisement against the "Obama/Pelosi Takeover of Healthcare." Now, there are very good reasons to oppose the new health insurance reform bill, but such rhetoric does nothing except to foster open discussion of the issues. (Not that the Democrats are any better; that's one of the reasons I do not wish to support them.)
   

Oh yeah, I also agree with much of the Green Party platform