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Justice Scalia and the Nondelegation DoctrineMike Rappaport

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This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine.  While I have only skimmed the piece, it appears to tell a story similar to the one that I would.

Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies.  One was his concurring opinion in Mistretta v. United States.  In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional.  While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission.  Unlike other agencies, it did nothing else besides promulgating these guidelines.  Thus, it was a junior varsity Congress.

By contrast, Scalia’s argument would not condemn other agencies, because they also did other things, which were executive.  So the EPA both enforces the environmental laws and passes regulations under those laws. Thus, it avoids Scalia’s condemnation of the Sentencing Commission as a junior varsity Congress.  Every year, my students are confused by Scalia’s opinion.  They think he is tough on delegations to agencies.  But he is not.  Every other agency delegation passes the test.

What about the fact that Congress might be conferring broad discretion to an agency to write regulations?  Scalia addressed this by saying the distinction between excessive discretion and constrained discretion could not be drawn.  It was a distinction of degree, not of kind.  Thus, he would not enforce it, leaving it to constitutional structure as a kind of political question.

The second Scalia opinion was Whitman v. American Trucking.  Unlike Mistretta, Scalia was writing for the entire Court this time, and so his opinion was different.  This time Scalia appeared to apply the precedents, claiming that these delegation precedents allowed ample discretion to be conferred on agencies.  And he was correct – they did allow ample discretion – although Scalia wrote the opinion in a way that appeared to embrace the ampleness of the allowable discretion, rather than to discourage it.

Scalia never addressed the original meaning on this subject, and thus his opinions are open to serious criticism.  Perhaps Scalia would have found the precedents overrode the original meaning, but he never addressed the argument.  And one gets the impression, from Scalia’s Mistretta opinion, that he liked the precedents.  They allowed him to avoid the difficult task of distinguishing between permissible and impermissible delegations, something that would have required judges to draw unclear lines.  Scalia hated having judges engage in such a task.

Contrast Scalia here with Justice Thomas.  In American Trucking, Justice Thomas concurred, noting that he doubted the precedents were consistent with the original meaning and that he was willing to reexamine the constitutionality of the lenient nondelegation doctrine in a suitable case.

Some years later, in Department Of Transportation. v. Association Of American Railroads, Justice Thomas wrote a long opinion for himself articulating what he believed the proper approach to nondelegation was.  It is hard to imagine Justice Scalia joining this opinion, which would hold many current delegations to be unconstitutional. Unfortunately, though, Justice Thomas does not really solve or even seriously address the problem that so troubled Justice Scalia – distinguishing between permissible and impermissible delegations in a principled way.

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christophersw
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[Ilya Somin] How political ignorance strengthens the case for libertarianism

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My chapter in the Routledge Handbook of Libertarianism explains how widespread political ignorance strengthens the case for limiting and decentralizing government power. The perils of voter ignorance are exacerbated by the knowledge limitations of political elites, and vice versa.

I. The Problem of Political Ignorance.

Decades of survey data shows that the public is often ignorant even of very basic facts about government and public policy, such as which officials are responsible for which issues, or which party is in control of which branch of government. Just before the 2014 congressional election, for example, polls showed that only 38 percent of Americans knew which party controlled the Senate before the election, and the same number knew which one controlled the House of Representatives. Such ignorance is not confined to the United States. It is also common in other democracies.

Widespread voter ignorance is not primarily the result of stupidity, lack of education, or lack of information. If it were, political knowledge levels should have increased substantially over the last few decades, as IQ scores, education levels, and the ready availability of information all went up. In reality, most political ignorance is probably the result of rational behavior by individual citizens. It makes little sense to spend a lot of time studying political issues when the chance that your vote will make a difference is infinitesimally small.

In addition to having little incentive to acquire political information in the first place, most voters also have little or no motivation to evaluate what they do learn in an unbiased way. Careful evaluation of evidence takes time and cognitive effort, and most of us have little reason do it when it comes to sifting political information.

Ironically, studies show that effective evaluation of political information may be particularly challenging for the minority of voters who have a genuine interest in it, and therefore learn far more than most of their fellow citizens. Most such people acquire their relatively extensive knowledge for reasons other than making better choices at the ballot box. After all, being a good voter is a very weak incentive, easily swamped by stronger motives, such as the joy of cheering on your favorite political “team.”

Just as sports fans enjoy learning about their favorite teams and cheering them on against the opposition irrespective of whether they can influence the outcome of games, so “political fans” enjoy learning about their preferred ideologies, candidates, and parties regardless of whether they can influence electoral results. Unfortunately, people who acquire political information for the purpose of enhancing their fan experience often process new data in a highly biased away, overvaluing any evidence that supports their preexisting views and undervaluing or ignoring anything that cuts the other way.

II. Why Not Just Leave it to the Experts?

Some supporters of a strong activist state recognize that voter ignorance is a serious problem,  and argue that more power should be concentrated in the hands of expert government planners and bureaucrats, who should be at least partly isolated from political pressure.  But even the most expert officials have serious knowledge problems of their own.  While they are rarely ignorant of  basic information of the sort that often eludes voters, they generally lack the kind of knowledge needed to determine whether various regulatory tradeoffs are actually worth their cost or not.

While experts often have an extensive understanding of the scientific and technical aspects of the issues they regulate, they often cannot assess the costs and benefits that individuals derive from various activities, especially in the many situations where preferences are diverse. For example, an expert on public health probably has extensive information on the health risks created by drinking or smoking. But he or she cannot readily determine how much a particular individual enjoys these activities, and whether the costs for her outweigh the benefits. Thus, the decision to keep smoking might well be rational, despite the health risks, if the individual who makes it enjoys smoking greatly, is highly risk-acceptant, or both.

The problem facing expert bureaucrats is closely related to issues first canvassed in the “socialist calculation debate” of the 1930s and 1940s. Early socialists were confident that expert government planners could make good resource allocation decisions. But critics led by economists F.A. Hayek and Ludwig von Mises pointed out that socialist planners had no means of assessing resource tradeoffs in the absence of market prices. A market price for, say, a ton of iron, summarizes the demand for that item from a variety of competing uses, as well as the willingness of producers to supply it. By contrast, in the absence of such prices, a socialist planner could not determine how much iron should be produced, or what it should be used for.

The socialist calculation debate may seem outdated in a world where full-blown socialism no longer commands significant support in affluent democratic societies. But although few today favor central planning of the entire economy, many people across the political spectrum favor government control of large parts of the economy and society.

When it comes to health care, education, and other major parts of the economy largely controlled by the state, today’s liberal democratic planners face many of the same knowledge problems as do their socialist counterparts. Government expenditures on health care and education in the United States, for example, are larger than the total GDPs of many nations. And the health care and education sectors are both extraordinary complex, necessitating many difficult resource tradeoffs.

Voter ignorance and elite ignorance are serious problems in their own right.  But their simultaneous presence makes both dangers even more severe than they would be in isolation. Ignorant voters incentivize politicians and bureaucrats to pursue flawed policies, and even to be relatively ignorant themselves. One reason why Congress tends to be filled with politicians who know far more about electioneering than policy is that voters lack the knowledge to effectively screen candidates for policymaking skills.  Donald Trump is a particularly notorious example of a political leader entrusted with vast power despite his own profound ignorance. But he differs from more conventional office-holders more in degree than in kind.

Meanwhile, political elites often have opportunities to exacerbate and exploit voter ignorance. Here too, Trump has merely taken to an extreme tactics routinely used by more conventional politicians, including his predecessor in the White House.

Information problems do not doom every form of government action. Some political issues are so clear and obvious that even very ignorant and biased voters can assess them effectively.  It is likely no accident that modern democracies have almost completely avoided mass famines on their territory, even though famines (including ones deliberately engineered by the government) are common in authoritarian regimes. The existence of such a large-scale tragedy will be evident even to otherwise inattentive voters, and they will severely punish incumbents for it at the polls. But famines and similar situations are the exception rather than the rule. Most political decisions are far more complicated and feature far less obvious tradeoffs.

III. The Foot Voting Alternative.

The vicious circle of mutually reinforcing voter ignorance and elite ignorance is difficult to overcome. But its harmful effects can be partly alleviated by limiting and decentralizing the power of government, thereby enabling people to make more of their decisions by voting with their feet, and fewer by traditional ballot box voting.

People can vote with their feet in multiple ways. The most obvious is by choosing which of several jurisdictions to live under in a federal system, thereby selecting the public policies they prefer. But we can also vote with our feet in the private sector, by choosing what products to consume in the market, or what groups to associate with in civil society.

Foot voters face information problems just like ballot box voters do. But they usually handle them better. Most people probably devote greater time and effort to seeking out information when they choose which car or television set to buy, than when they decide who to vote for in even the most important election. The reason is simple: the decision you make about the car or TV set is likely to make an actual difference to the outcome, whereas the chance that a ballot box voting decision will ever do so is infinitesimally small. Both historical and experimental evidence suggest that foot voters both acquire more information than ballot box voters and evaluate it in a less biased way.

Just as foot voting can help diminish the harm caused by voter ignorance, it can also alleviate the dangers of planner ignorance. Unlike government planners, foot voters can take advantage of market prices to make decisions, thereby availing themselves of the information about resource trade-offs contained in them. In addition, they, unlike the planners, have what Hayek called “local knowledge” of their own preferences. Thus, they are in a better position to judge whether, for example, a particular risk is worth taking, given those preferences.

The more government power is limited and decentralized, the more issues can be decided by foot voting rather than at the ballot box. It is easier  to vote with your feet for a different city or state than to leave the country entirely, and easier still to foot vote in the private sector.

The dangers of voter ignorance and planner ignorance are far from the only considerations that must be weighed in determining the appropriate size and scope of government. They do not, by themselves, provide a comprehensive justification for libertarianism. But they do greatly strengthen the case for limiting and decentralizing government power –  thus moving in the direction that  libertarians advocate. In addition to its many other virtues, liberty helps us make smarter decisions.

 

 

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christophersw
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Get Rid of Equifax

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christophersw
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I have a natural aversion to any suggestion to make public a task that can be completed to satisfaction by the private free market. This is, as I see it,a striking example of when an exception to that general philosophy is warranted. In an age of algorithms and an in economy that is completely dependent on easy transfer of credit, we cannot allow the central banking activity of credit scoring to reside in private institutions, outside the public guarantees of equal protection and due process. The difference between a 780 and 350 credit score could mean the difference in housing, employment, auto-mobile and cell phone ownership. Essential functions of life now depend on a number that can be, and is, determined outside of any reasonable appeal process.

It should come a no shock then that,
"In at least 40 other countries — including Belgium, France, Germany, Italy and Spain — credit reporting can be done by a public credit registry. It is usually operated by a central bank that already oversees the financial institutions that feed information into the reports. These reports tend to be more accurate because the operators have a legal right to demand data from banks as well as a mandate to ensure it’s correct and that errors are fixed. Data on late payments and defaults are erased once a consumer has settled up."

The current American system is not serving liberty, it is not serving the economy efficiently (as the inaccuracy of the report attests), and it is time to demand it be overhauled.
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Experian Site Can Give Anyone Your Credit Freeze PIN

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[John Thrasher] Libertarianism and contractarianism

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Liberalism (in the classical sense) and its more austere cousin libertarianism, are fundamentally doctrines that put personal and political freedom at the heart of things. Liberalism is committed to the freedom and equality of all people, but for the classical liberal and the libertarian, this is typically understood as freedom from government and social interference so that one can exercise one’s freedom to live the life of one’s choosing. Equality is crucial in securing freedom insofar as we understand equality as equality of fundamental rights to non-interference. In this way, so-called “classical” liberalism is a species of liberalism that emphasizes the importance of freedom and focuses on equality of rights rather than, for instance, equality of outcomes.

It is strange, then, that classical liberalism and libertarianism are so often understood as being doctrines primarily concerned with defending property. This confusion is, as a historical matter, the result of monomaniacal focus on property rights by critics as well as defenders of the view. Of course, property rights will be included in any plausible list of fundamental rights. Property rights are really, after all, primarily non-interference rights over specific domains. Libertarians, for instance, often talk about “self-ownership,” but what they mean is a basic right of a person’s body against trespass and interference. These rights are especially important, but they do not exhaust the realm of rights.

It is a commonplace to argue, as Thomas Nagel did in an early review of Robert Nozick’s epoch-making Anarchy, State, and Utopia, that the libertarian and classical liberal focus on rights is “without foundations.” Although this criticism is fundamentally mistaken, it is an unsurprising allegation given the preferred intuitionistic method of many of the most important philosophical libertarians.

Rather than use intuitionism or consequentialism, I argue that libertarians and liberals should embrace a contractual method of justification for the core notions of freedom, equality, and rights that define the theory. The core rights that define the freedom and equality of members of a free society are or would be, on this view, the result of an agreement between rational individuals for the purpose of mutual benefit. Or, to use John Rawls’s evocative formulation, the contractual model of a free society envisions it as a “cooperative venture for mutual advantage.”

Understood this way, the social contract is a justificatory rather than explanatory tool. As many have noted, the state of nature and contractual consent are not accurate descriptions of the history of political organization. This criticism, however, misunderstands the basic idea behind social contract theory: to model how a genuinely voluntary and mutually beneficial society would be structured. If rational individuals have reason to endorse and comply with the rules in a contractual society, we can then use the contractual test to evaluate the rules and institutions of our own society. The social contract acts as a tool to evaluate existing and possible social rules and institutions.

Contractual theory, pursued this way, aims to bring the mutually beneficial power of market exchange to social governance. But simply substituting the market for social norms and political organization will not usually be enough. As David Gauthier notes in Morals by Agreement, “before Smith’s invisible hand can do its beneficent work, Hobbes’s war of every man against every man must first be exorcized” (85). Markets require a foundation in basic norms of trust and the assurance that one’s rights are secure. This requires, at least initially, credible enforcement and governance mechanisms. This governance can be achieved in any number of ways, however, not all of which require explicit political institutions. The making and enforcing of social norms does not always require the existence of a leviathan state. Because of this, contractarianism is not committed to statism in the customary sense. The test of mutual benefit is just as relevant to informal governance institutions and social norms as it is formal political institutions. Indeed, the long-term project of the libertarian contractarian should be to investigate how forms of genuine self-government can realize, in modern societies, the contractarian goals of voluntariness and mutual benefit.

There are good reasons for libertarians to also be contractarians and to justify libertarianism contractually. The contractual approach helps to solve two perennial problems in libertarian and liberal theory. The first is the foundational problem of whether to base libertarian conclusions on some deontological basis (e.g., natural rights) or to adopt a consequentialist justification. The second is how to square a strong presumption against coercion with any system of collective choice and governance, that is, how to adjudicate between the anarchist and minimal government strands in libertarian thought. Contractarianism provides an elegant solution to both of these problems.

Without going into too much detail, the contractual approach preserves a focus on the consequences of political institutions that many find appealing in consequentialist or utilitarian theory without relying on dubious value theories or ignoring either the separateness or individuality of persons. Similarly, the contractual method, based on rational agreement, provides a justification for rights that doesn’t rely on controversial foundations. This, as I argue more fully in “Social Contractarianism,” makes the contractual approach uniquely attractive to libertarians who have been traditionally locked into antimonious disputes between consequentialist and rights-based justifications of libertarianism.

I also argue that the contractual approach can dissolve another traditional dispute between classical liberals and libertarians; whether the implication the implication of their strong defense of freedom and non-interference makes government impossible. That is, whether libertarians are really committed to anarchism. I argue that contractarianism of the sort that I defend allows one to be both a philosophical anarchist, while still admitting that there might be a role for some (properly justified) political institutions. The contractual libertarian can admit that there is no moral obligation or duty to obey the state, but that in a free and open society with institutions that can meet the contractual test, there are good reasons to endorse the laws and social norms of such a society.

Liberalism, and especially libertarianism, is unique because it posits no social goal and claims no prerogative to decide how and why we should live our lives. The metaphor of a social contract is a radical and evocative image of this basic idea. To organize ourselves while preserving our freedom and equality, we must contract. Agreement is the only basis of a free society. These agreements must be voluntary and reflect our perceived interests. A society built on this model would be as close to a truly voluntary society as we could ever hope. The real benefit of contractarianism for the libertarian, who already embraces the vision of a voluntary society, is that it provides a framework for moving away from the traditional antinomies of libertarian thought into a progressive program for developing and analyzing the institutions and orders of a free and open society.

 

John Thrasher is currently a Lecturer in Philosophy at Monash University in Melbourne, Australia. In August 2018 He will join the Smith Institute for Political Economy and Philosophy at Chapman University in Orange County, California. He specializes in political philosophy, normative ethics, and decision theory, focusing on the relation of individual practical rationality to social rules, as well as the way those rules are organized into systems of norms and institutions. He is especially interested in how recent work in moral psychology and experimental economics can inform our understanding of how to improve our institutions of self-governance. His work has been published in Nature Communications, The American Journal of Political Science, Philosophical Studies, Synthese, The Journal of Moral Philosophy, Political Studies, Social Philosophy & Policy.

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How real is the need for speed?

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Carrier claims of network speeds that reach and even surpass a gigabit per second are popping up around the world. Right now these are just test results, but within a few months, customers in certain cities with specific smartphones may be able to experience 1 Gbps downlink speeds. Will they notice? Maybe not, according to a recent survey conducted by Boston Consulting Group.

The firm created a proprietary application that roughly 1,500 volunteers installed on their smartphones. The app measured latency and throughput, and it presented questions to users immediately after data sessions in order to measure satisfaction. The goal was to correlate satisfaction with actual network performance as recorded by the app.

“Speed actually doesn’t matter beyond a certain point,” BCG reported. “At about 1.5 Mbps, essentially additional speed didn’t really register for most users — they didn’t know that they were getting more speed and it didn’t improve satisfaction.”

The survey found that 1.5 Mbps was enough speed to satisfy users during most video sessions, but acknowledged that higher network speeds make a difference when users are streaming videos on large-screen devices.

BCG said the largest driver of customer satisfaction with mobile networks was latency, and that even that was nearing the boundaries of human perception in some cases.

“One you reached an acceptable latency, investing more on reducing latency actually had low returns,” the analysts wrote.

Investments in technologies that reduce latency and increase speed may not return higher levels of user satisfaction, but they can have big financial returns because they enable operators to deliver more data using the same spectrum. There is no escaping the escalating demand for data, so operators need to deploy more spectrum and simultaneously invest in technologies that make better use of their existing spectrum.

Technologies like carrier aggregation*, massive MIMO**, and 256 QAM*** make mobile networks faster, and that means the networks can deliver more data to more users every second.

“Speed is capacity so as we provide more speed that does give us capacity,” said Verizon’s Ed Donofrio, executive director for network support. “As we provide speed that provides capacity and that will hopefully reduce the cost per bit.”

In the near term, mobile network speeds may outpace our ability to appreciate that speed. But as users we will appreciate the fact that the networks keep performing even as we load them up with more and more data.

Longer term, superfast low latency networks will have an important role to play in the evolving internet of things by supporting use cases like autonomous driving and smart manufacturing.

*Carrier aggregation is the combination of more than one channel to increase transmission bandwidth. According to 3GPP, the bandwdidth of each component channel can have up to 20 MHz, and up to five channels can be aggregated, for a maximum bandwidth of 100 MHz.

**MIMO is multiple-input multiple-output and refers to the antennas on wireless transmitters and receivers. MIMO configurations use more than one antenna on the transmitter and on the receiver, boosting the number of potential data paths. 4×4 MIMO means four transmit antennas and four receiver antennas.</em>

***QAM is quadrature amplitude modulation, and 256 is the number of points in the modulation scheme. At 256 QAM, each point, or symbol, can transmit 8 bits. Each time the QAM coefficient doubles, the number of bits per point increases by one.

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The post How real is the need for speed? appeared first on RCR Wireless News.

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