Saturday, September 29, 2007

What's Happened to Our Public Law Schools

The University of California Board of Regents on Thursday, September 20 ratified a radical change in the purpose of public higher education in California. They approved such dramatic changes in tuition and fees for the professional schools that the state has essentially repudiated its 150 year old commitment to higher education for all residents. By raising tuition 52% at Boalt Hall to almost $41,000 for state residents, and a slightly lower 47% at UCLA to slightly under $40,000, the effect is to further accentuate the rise of the affluent student in today’s colleges and professional schools, and the decline of the economically disadvantaged and recent immigrants.

The nation has long supported public higher education, starting with the Northwest Ordinance of 1787, accelerated with the enactment in 1862 of the Morrill Act, creating the public land grant universities, of which the University of California is one. The GI Bill in 1944 paved the way for the children of the depression, of all races, ethnicities and income levels, to attend college. Even Harvard was initially founded in 1636 with a grant by the Massachusetts Bay Colony General Court.

The great public universities of the Midwest, followed by California, represented the rise of democracy, the prairie populism antipathy to the east, the opportunity for the waves on immigrants who settled America in the aftermath of the Civil, and opening the doors of higher education to all classes rather than a narrow, privileged class. Indeed, the University of California was founded in 1868, and in 1869 the Regents voted that the University would be open to coeds on an equal basis with males – a pioneering concept for the time. The public universities led the way in integration.

A social compact developed between the state and its citizens – a quality education would be offered to all qualified state residents at nominal tuition. Indeed, the University of California did not impose tuition until 1967, although campuses charged fees.

Public universities became the prime engine of upper mobility in America such that today 80% of all college and 60% of all graduate and professional students attend public universities and colleges.

Californians were proud in 1964 when Berkeley was rated the “best balanced distinguished university in America,” and thus the world. They are equally proud as the other UC’s, led by UCLA, have similarly risen to academic excellence.

And yet all these social gains are at risk because of a seismic shift in public finances from discretionary funding to mandates, led by Medi-Cal. California now spends more on Medi-Cal than it does on the UC’s, state colleges, and community colleges. Higher education is often the largest discretionary item in state budgets, and is most at risk when mandates expand. The national budget for Medicaid was only $1.9 billion in 1967. Medi-Cal, California’s version, is about $37.4 billion in the current year, compared to the state’s appropriation to the University of California of $3.27 billion.

Legislators have little flexibility, absent draconian budget cuts or astronomical tax increases. The cuts are passed on to university regents, presidents, chancellors, provosts, deans. At the same time, the fiscal pressures are compounded for the professional schools, especially business and law.

The Universities of Michigan and Virginia paved the way by privatizing these schools, demonstrating to the rest of the flagship public universities that these professional schools can successfully charge private tuition. In-state tuition at Michigan Law School this year is $38,760 with non-resident tuition an additional $3,000. Virginia’s resident tuition is $33,500 and non-residents pay $5,000 more Thus, universities in turn shift as much of the state budget cuts as they can onto the professional schools. For example, Virginia’s Law School receives zero funding from the state and Michigan only 2%. Both in turn pay the university large overheads fees, thereby further subsidizing the other academic programs.

The UC law schools started down this path half a decade ago. In-state tuition at Boalt was $5,000 in 1984. It rose to $20,669 by 2004, a 447% increase. It is now scheduled to double by 2010.

The two great public law schools of Michigan and Virginia are deceptive models for the UC’s because they possess two substantial assets lacked by all other public law schools: large endowments and generous alumni. Both have endowment of over $300 million. Michigan received $11 ½ million from its endowment last year. Virginia’s alumni give over $8 million to the annual fund and Michigan almost $4 million. These funds are in the dean’s discretion, and can be used to supplement faculty salaries, research and development expenses, scholarships, fellowships, grants, and student loans, and loan forgiveness for graduates entering public service.

The UC plan is to use the tuition revenues to achieve these aims, thereby relying in fact on a large pool of affluent students able to pay full tuition to subsidize a smaller number of less affluent. That is not the purpose, but it is the economic reality, as repeatedly shown by private universities. For example, Yale College has relied for decades upon roughly 60% of its students to pay full tuition to cover the discounted tuition of others.

Boalt’s endowment is estimated to be $80 million. UCLA has been very successful in fund raising, but all UC law schools have a long way to go to educate their alumni on the need to donate, both for endowments and in annual giving.

An additional caveat is that Michigan and Virginia have abandoned their historic favoritism for state residents. They are now truly national law schools. Michigan’s student body is 75% non-resident and only 25% resident. Virginia reserves only 40% of its entering class for Virginia residents.

In reducing access to state residents, Michigan and Virginia have the advantage that their states offer residents quality legal education at other public law schools in the state at substantial lower tuition. That will not be the case with the UC's.

The UC tuition increases will affect all law students in California. No longer will the private law schools be competitively restrained by the low tuition charged by their public rivals. Watch their tuitions rise substantially in lockstep with the 4, soon to be 5, UC’s.

The University of California faces the same dilemma of most public flagship universities: how to maintain its academic excellence when the legislature, driven by mandates, is no longer capable of maintaining its past support. It has chosen to privatize the professional schools. They will perforce become more elitist and national, as they essentially echo their private competitors, and lose the ethos of public universities.

Too many of our great public law schools have now become private law schools in all but name.

Monday, September 17, 2007

Whither Global warming

Hollywood and the media tell us that global warming is a scientific certainty, caused by human activity, especially the emission of greenhouse gases into the atmosphere. We must therefore substantially reduce our carbon footprint before it is too late, if it is not already.

As we ask a few, basic questions, we understand that what seems so obvious may not be the case, scientific or otherwise. These are the questions:

1) Does global warming exist?

2) If so, when did it start?

3) What are the causes:



We’re not quite sure?

All of the above?

4) What are the effects?

5) What can we do about it?

The first question is the easiest to answer. Yes, global warming exists, both globally and locally, but that doesn’t tell us much. Glaciers are melting and median temperatures rising, but that’s happened often in the past. Global warming is not a new experience for Planet Earth or even Homo Sapiens.

New York City provides an example of regional global warming. I flew one evening between Chicago and Hartford. As we were over Buffalo, the pilot pointed to an orange glow in the distance – the glow of the heat sink, better known as the New York Metropolitan area. The buildings, concrete, asphalt, lighting, power plants, auto exhaust, electric dryers, air conditioners, compressors, jack hammers, and everything else we do in such a large, urbanized area, had raised the temperature of the area by about 3 degrees. Now, I understand it’s up seven degrees.

The effects are partially theorized and partly known. For example, weather cycles, such as hurricanes and droughts, are attributed to global warming. Yet, so far all we are seeing are normal, cyclical fluctuations. Hurricanes were much more common in the early part of last century, and then became relatively quiescent in the last third of the Twentieth Century. Only now are they beginning to return to more normal levels. It’s been 70 years since a major hurricane struck the Northeast. A calamity worst than Katrina may result when the next one occurs.

Similarly, while California and parts of the Rockies are in drought conditions, history and science point to much longer, more severe droughts in the past.

Unless we know the causes, then we are simply treating the symptoms as blindly as doctors for centuries treated patients by bleeding them. If you have a cold and take an aspirin, you will recover as quickly as if you didn’t take the aspirin.

Yet, proposals are pending that will radically restructure the American lifestyle.

The reason we do not know the cause of the current global warming is that our scientific base is too small. We know, for example, that ice ages are cyclical, but not why they begin or end. Theories, Yes, but consensus, No!

Thus, when did global warming start?

Was it the end of the Huronian Ice Age 2.7-2.3 billion years ago?

Or was it after the ice age of 850-630 million years ago?

How about the Andean-Saharan Ice Age of 460-430 million years ago, or the more recent Karoo Ice Age of 350-260 million years ago?

Was it the ice age that ended about 10,000 years ago – the one that, as the glaciers retreated, left a flattened Midwest and cut off the land bridge that allowed the ancestors of America’s indigenous populations to cross the Bering Sound from Siberia to Alaska 20,000 -30,000 years ago?

Let us not forget the Little Ice Age that ran from the middle of the Thirteenth Century to around 1850.

The seven decades from about 1645 to 1715 were especially brutal with the temperatures dropping about 3 degrees Fahrenheit. This period, characterized by the munger minimum, was probably, possibly caused (once again, science is uncertain) by reduced sun spot activity on the sun.

The Fourteenth Century witnessed the end of the Vikings on Greenland, doomed by global freezing. It was devastating to Europe, destroying the existing agricultural economy. Famine and revolution followed. Napoleon’s Grand Army of 600,000 invaded Russia, and was destroyed by starvation and General Winter. Less than 10,000 returned to France.

Or did global warming begin in the spring of 1997, after the brutal winters of 1994 (“The Winter From Hell”) and 1996 on the eastern seaboard? 1996 was the winter that drove us from Massachusetts to California. (Thank you President Doti and Chapman University for starting a new Law School where it never snows.).

The United States is urged to join Europe in ratifying the Kyoto Agreement, which will result in a unilateral economic disarmament of the American economy. Kyoto will be a non-starter once the public feels the economic consequences.

Interestingly enough, in spite of their rhetoric, Europe is rapidly sliding away from implementing it. Kyoto will result in a substantial decline in the American economy while the two emerging economic powers, China and India, have not ratified Kyoto and will not implement any global warming initiatives that might thwart their rise to economic success. Just wait until the automobile is in widespread use in those countries. As it is now, China has one of the world’s worse pollution records and is only concerned because the summer Olympics will be in Beijing next year.

California, under the leadership of Governor Schwarzenegger, had adopted a global warming policy, but it will not in fact go into effect for years. The goal is a 25% reduction in global warming pollution by 2020, but so far, it’s smoke and mirrors.

A feel good response is carbon offsets. For example, rather than reduce a $500-1,000 electric bill by conservation, the consumer pays someone to plant trees in Siberia (or wherever), build wind turbines in Alaska, or windmills in Minnesota, or mine methane farms (cow manure) in Pennsylvania. Trees and forests are good, but all too often the planting of trees does not create a bio-diverse forest, but simply a tree farm, a mono-culture which consumes scarce water resources, reduces streamflow, and gobbles up fertilizer, insecticides and herbicides.

The reality is that if these alternatives are not otherwise economically feasible, only substantial tax credits will make them viable.

The notion of carbon offsets harkens back to the medieval days when the Catholic Church sold indulgences, whereby a “sinner” could pay the Church for absolution.

Another response being urged today is to enact carbon taxes, such as on power plants and gasoline consumption. We all know that taxes reduce or redirect consumption. Thus, a meaningful carbon tax should reduce to an unknown extent American consumption of carbon based fuels.

However, the real reason behind a carbon tax is to raise revenue that government can spend on other purposes. The carbon tax will neither reduce other taxes equally nor result in a substantial investment by government, as compared to the private sector, in non-carbon alternatives.

Alternative energy sources should be encouraged. Indeed, if global warming is a reality, then solar energy seems even more attractive. Wind is good, unless you are affluent and live on Martha’s Vineyard, in which case “good old Nimbyism” kicks in.

Driving a Prius seems like a green solution to reducing carbon fuels, but a recent study shows that the manufacture of a Prius actually consumes more energy that will be saved by its use.

The quickest way to substantially reduce the emission of methane gases would be to eliminate all cattle, and related species, but I don’t believe even vegans are advocating eliminating all hoofed animals around the world..

Several coastlines of America are at risk. To the extent that history provides lessons, then we will fill out and build up in selected affluent or historically significant coastal areas. Islands in Micronesia may disappear beneath the Pacific, but Manhattan will survive.

Nature, in a very perverse and often tragic way, has often lowered the global temperature through a series of catastrophic volcanic eruptions. The eruption of Tambora in Sumartra (Indonesia) in 1815 was 100 times greater than that of Mt. St. Helens in 1980. Volcanic eruptions send vast quantities of sulphur gasses, water vapor, particles and carbon dioxide into the atmosphere where it meets with water vapor and reflects the sun’s radiation back into space. 1816 became known as the “Year Without a Summer.” The famous Krakatoa eruption in 1883 was not as great, but still dimmed the temperature of the earth.

It’s also possible, again to an unknown extent, that the oceans will continue to serve as a carbon dioxide collector with the additional waters from the melting glaciers absorbing even more carbon dioxide. No one knows!

Part of the hubris of the human race is that we believe we can control the forces of nature and their consequences. To some extent we can, but we are extremely limited by our scientific knowledge, physical capabilities, engineering expertise, economic resources, and design limits. For example, even if Katrina had not leveled New Orleans, some other Category 5, or even 4, level hurricane would have. If “The Big One” strikes San Francisco or Los Angeles, the effects will be catastrophic.

Global warming is a reality, but a rush to judgment is no solution.

Friday, September 14, 2007

It's Still Great to be a Wolverine

Bo Beat Woody in 1969. I promptly became a Wolverine fan and earned two graduate degrees in the early 1970’s from Michigan. I love Michigan.

However, several propositions became clear in the early 70’s.

1) Bo was a great coach;

2) The Michigan teams were always prepared and in great physical condition;

3) In spite of 1 and 2, Michigan would lose the last game of the season, either to Ohio State or in the Rose Bowl (often to USC). We would start the year with great expectations, and then Lucy would pull the football out from Charlie Brown.

4) Funny things happened in the Rose Bowl, such as a heart attack by Bo or a phantom touchdown by Marcus Allen of USC.

5) Bo’s play calling was more imaginative than people thought. He used reverses, counters, screen passes, swing passes, draw plays, multiple running backs, and options.

6) His teams always had a mobile quarterback. Some were running quarterbacks, and others were primarily passers, but all could do both.

We realized Michigan would not win every game, but they were always competitive. We also recognized that Michigan often had a problem with the kicking game. Field goals were not Bo’s forte.

That brings us to Coach Lloyd Carr. Lloyd is a very good coach, a decent gentleman, and wonderful ambassador of good will for the University. He’s had no recruiting violations or scandals in the football program (as compared to the basketball program). He emphasizes education to the players, who mostly graduate and then lead productive lives in society. The off-field criminal activities by some players are unwelcome, but not excessive for college football programs. He handles discipline internally rather than publicly excoriating a player. Lloyd is a coach of whom we can be proud.

His first eight years of coaching were among the best in the country. He won five of six bowl games, beating Washington State, Arkansas, Alabama, Auburn, and Florida. His teams consistently beat Ohio State. His 1997 team went undefeated, winning the National Championship and Charles Woodson the Heisman – the only primarily defensive player ever to be so honored.

His teams have won 74.8% of their games – quite a feat, which slightly exceeds the cumulative Michigan win percentage of 74.3%.

Unfortunately for him, Michigan, the players, and fans, the game has passed him by.

He has lost four of the past five games to Ohio State, primarily because Ohio State has a better coach. He has lost the last four bowl games, and indeed the last four games, because the other teams were quicker and better prepared.

The lost to Appalachian State was not an upset. Those of us in the stands recognized early in the first quarter that the better team that day would probably win, and that team was Appalachian State. Michigan was out-coached, out-prepared, out-conditioned, out-played, and out-hustled. Aside from that, Michigan looked good. They had two field goals blocked in the last two minutes. Michigan only had ten players on the field twice in the fourth quarter. The offense had a number of false starts and inability to get the snap off in time. The defense was consistently out of position, trying to figure out where to be, even as the ball was snapped. The quarterback played as if he needed his eyes examined.

My friend and I were able to call almost all of Michigan’s offensive plays. Michigan’s offense has become boringly predictable in recent years - few draws, screens, counters, reverses, or option plays. Indeed, a major part of Michigan’s problems has been the limited play calling, necessitated by the two quarterbacks over the past 7 ½ years as being 6’5”, 230 lb. blocks of granite with a rifle arm and all the mobility of a dead tortoise. The last, great quarterback Michigan was Tom Brady, and the coaches did not appreciate his abilities, just as Notre Dame never knew what to make of Joe Montana. All they did was win!

The defense has been unable to defend against mobile quarterbacks and spread offenses for a decade, partially because they do not defend against them daily in practice. While other teams have gotten quicker, Michigan is slower. We recognize that even great programs experience down cycles. We understand this, and even forgave Bo once for a 6-6 season in 1984, losing the bowl game to BYU. But we cannot forgive or forget being out-coached. Today’s game has passed Lloyd Carr by.

The kicking game remains an adventure.

The fans are increasingly restive. A popular web site two years ago was It was closed last year when Michigan won its first 11 games. A new site this year is Season ticket holders were irate two years ago when Michigan imposed a seat license fee in addition to the cost of the tickets. They want value received for value paid.

Each home game is worth about $5 million in revenue to the Athletic Department and a windfall to the restaurants, hotels, and merchants in the Ann Arbor Area. They are suffering.

Lloyd Carr has earned the respect of the University community. The consensus was that he deserves to retire on his terms, presumably at the end of this season. That may no longer be the case, and he has lost the power to name his successor.

While many fans would like to see him retire, preferable sooner rather than later, especially if Michigan goes 0-3, the problem is who do you appoint as the interim coach? Certainly not the Offensive Coordinator! Clearly not the Defensive Coordinator after the past four games! Obviously not the Special Teams Coach! Then again, Michigan doesn’t have a Special Teams Coach - a small part of the problem.

The great state of Michigan is hurting. Plants are closing, and employees being laid off right and left. Kmart self-destructed, GM, Ford, and Chrysler are hemorrhaging, companies are leaving the state, and the Lions have been pathetic for decades.

Football is a sport, and thus entertainment. With or without basketball, UCLA and Duke are great universities. Notre Dame and USC do not need football to achieve their academic excellence. With or without football, Michigan is one of the world’s great universities. But it is not the same.

The Wolverine Nation is hurting.

Thursday, September 13, 2007

Erwin Chemerinsky & The O.C.

Yesterday came the announcement that UCI terminated the contract of Duke Law Professor Erwin Chemerinsky, who had recently been announced as the founding dean of the new UCI Law School.

First is a disclaimer. I teach at Chapman Law School, located about 12 miles from the UCI campus. Chapman may be severely impacted by the opening of UCI. I should therefore be excited, but I’m sad.

Similarly, as a conservative I should be pleased to see a liberal denied a deanship, but I’m sad.

As to the creation of the new law school at UCI, its presence will serve as a competitive impetus to further improve Chapman. The goal is to have a Boalt-Stanford, UCLA-USC, Chapman-UCI rivalry which benefits both institutions. Our strengths and their projected emphases will serve to complement each other to the benefit of the Bar, Orange County, and California. We need UCI to succeed so that we can succeed. This County of 3,000,000 people is big enough to support both law schools.

The report that Erwin was too liberal for the County hopefully is not true. Conservatives understand that political litmus tests in the Academy will disadvantage them in appointments, promotions, and tenure. McCarthyism ruled the 1950’s with great universities such as Berkeley, Michigan, Washington, and some of the Ivy’s firing liberal professors. Academic Freedom and tenure did not exist then. We worry about the left-wing equivalent of McCarthyism today.

Liberalism rules the Academy. Most law schools have no more than one or two registered Republicans on their faculties. Very few law schools publicly project a conservative image. Even liberals may be insufficiently liberal on some campuses, as Harvard’s President Lawrence Summers discovered.

Quality should govern – not politics. Deans and faculty should be judged by their teachings, scholarship, and service – no more, no less.

I also worry about the image of Orange County if the reports are true, or even widely believed. Once upon a time, not so long ago, Orange County was widely known to be the conservative heartland of California. Senator Berry Goldwater’s 1964 Presidential Campaign received its impetus in Orange County. Both Nixon and Reagan based their California elections on the conservative Orange County vote. The County even acquired the nickname of “The Orange Curtain.”

Just as Hollywood funnels millions in campaign contributions to Democrats, Orange County entrepreneurs return the favor with Republican candidates. Many of these self-made millionaires are on the Chapman University Board of Trustees and have no relationship with UCI, other than being proud of its presence in the County. These entrepreneurs are the product of, and believers in, the free market and competition. Chapman itself does not have a litmus test for Trustees. For example, Wylie Aitken, one of the nation’s great trial attorneys and former chair of the Orange County Democratic Party, is an honored member of the Board.

The demographics of the County have changed dramatically in the past 15 years. While still Republican, it is hardly politically monolithic as it once was. We elect Democrats to Congress, the legislature, and county government.

The younger generation knows little of the County’s political image as recent years have brought us “The O.C.,” Laguna Beach, Arrested Development, and the Real Housewives of Orange County. Even if these TV shows do not depict the lifestyles of most of us in the County, they served as a pleasant diversion and as an advertisement for the tourist industry.

And now we risk reacquiring the old image.

Wednesday, September 12, 2007

Lessons From Iraq

The two days of testimony by General Petraeus leave no doubt that, absent exigent circumstances, the United States will start a drawdown in Iraq and that the Democrats will be unable, at least until the 2008 election results, to pull the United States out of Iraq. Rather or not the war with Iraq was justified, the fact remains that we are in Iraq for the foreseeable future.

Several lessons are apparent from the Iraq conflict.

First, that roughly 2½ augmented American and one British division could conquer a nation the size of Iraq in only three weeks is one for the military record books. Nothing of that magnitude has ever been accomplished in so short a time and with such a small casualty rate. The Pentagon planned, trained and executed well.

Second, there is no substitute for “boots on the ground.” The U.S. military simply lacked the capacity to fight the war and secure the peace.

Third, the planning for the peace is just as critical as for the war.

The problem the Pentagon faced, both in Afghanistan and Iraq, is The Peace Dividend. The end of the Cold War resulted, as with every major war in our country’s history, in a large demobilization of the armed forces. It started with President George H.W. Bush, escalated with President Clinton, and was initially reaffirmed by President George W. Bush.

The military shrank in size from 2,174,214 in 1987 to 1,406,830 men and women in 1998. The Army had 18 active divisions in 1990, but only 10 in 2003. The Navy had shrunk from 580 ships to 306 in the same period while the Air Force was reduced to 91 air wings from 165. President Clinton used the Peace Dividend to balance the federal budget.

Fourth, the military did not have, and still lacks, the boots to place on the ground. It lacked the resources to surround Tora Bora and capture Bin Laden in Afghanistan. It lacked the resources to secure the arms caches and museums in the fall of Baghdad. It currently lacks the soldiers to seal the Iraqi borders with both Iran and Syria.

Therefore, if you are going to fight a war, have a military sufficient in size to successfully wage the war. Secretary of Defense Rumsfeld gambled that a small, mobile force accompanied by air power could win the war. This gamble succeeded.

He also gambled unsuccessfully that an even smaller army could win the peace.

Fifth, the American public will not support an interminable war with no visible progress. This premise is not limited to the anti-war doves of the Democratic Party. Korea, Vietnam, and now Iraq fit this pattern. Indeed, President Lincoln was facing defeat in his reelection bid in 1864, but was saved by a timely victory by General Sherman. The Democratic platform of 1864 declared the war a failure.

Sixth, the President must work with Congress in formulating the goals and means of achieving victory. After 9/11 President Bush should have worked with Congress in seeking not just a Congressional declaration about Al Qaeda and Afghanistan, but also the treatment of prisoners, Gitmo, the prosecution of terrorists, and the means of intelligence gathering. Instead of co-opting Congress, the President decided to unilaterally initiate these measures, opening the Administration up to substantial criticism and judicial attack later. Congress would not have refused the President when Ground Zero was still smoldering.

We would also have several more great quotes, such as “I voted for the bill first, and then voted against it,” (Senator Kerry), and “I never read the War Resolution before voting for it” (Senator Clinton).

Seventh, as if we needed any reminder from history, the Mideast is a cauldron of ancient feuds, religious extremism, and tribal loyalty. That a people could still view and treat the Crusades of a millennium ago as current event is not one based on rational or realistic thinking.

During this same millennium Western Europe and Christianity suffered through a thousand years of bloody warfare, pestilence, starvation, Crusades, genocide, regicide and the French and Russian Revolutions. Christians killed Christians, as well as Muslims and Jews. History gives us Peter the Great and Ivan the Terrible, Frederick the Great, Cromwell, Napoleon, Hitler, Stalin, The Renaissance, Reformation, and Restoration, the War of the Roses, The Seven Year Way, The Thirty Year War, The Hundred Year War, The French and Indian War, the War of Spanish Succession, the Franco-German War and World Wars I and II, which finally left an exhausted Europe hungry (or perhaps dying) for peace.

Eighth, peacetime generals should not fight wars. American Military History repeatedly tells us that officers who rise to high rank in a peacetime possess great diplomatic skills, but only the test of battle will show who has leadership qualities for war. The lesson is always expensive and paid for with the blood of our young soldiers. In addition, the generals from the last war are often not good at fighting a new, different kind of warfare.

Ninth, nation building is messy. The United States went through a revolution, the Articles of Confederation, the Constitution, and the horrific Civil War before becoming unified. Only the naïve can expect a country in name only, such as Iraq, to achieve the same stability overnight. Iraq was a pressure cooker with the lid brutally held down by Saddam Hussein. With him removed it blew, and how it will end up is unclear. Vengeance has not yet been fulfilled.

Tenth, the downtrodden of the world are not clamoring for democracy. Their wants are food, water, shelter, electricity, jobs, peace and security. They will support whoever can deliver these needs to them. When in doubt, they will vote by ethnicity or religion. They will gladly trade one dictator for another if it helps them secure their daily needs. Give then their needs, peace, and security, and democracy will follow.

Finally, jobs and hope are preferable to guns for the idle youth. Otherwise idle youth will resort to violence. The idle youth in America’s barrios and ghettos form gangs. In the Mideast they become suicide bombers.

Tuesday, September 11, 2007

Don't Blame Detroit on the Unions

It’s quite fashionable today to blame the unions for many of America’s economic woes. However, the unions did not bankrupt United Airlines, Delta, Continental, Northwest, TWA, or US Air. Nor did they cause the collapse of Pan Am, Eastern, or Braniff. Southwest, the most profitable airline, is highly unionized while Delta is the least unionized of the major airlines. Labor also did not bankrupt K-Mart or close Home Base and The Good Guys. Blame competition and the failure of management.

Don’t fault the UAW for the recent 30,000 job cuts and 12 plant closings by GM. Nor is it responsible for the 75,000 GM layoffs and 21 shuttered facilities in 1997. The union also did not hand out 75,000 pink slips and close 11 factories in 1986. No, the auto workers are not responsible for the 40 year decline in GM.

Yes, the auto workers are overpaid, have Cadillac class medical coverage (even for retirees), and retirement plans most of us can only dream of. And yes, we caution ourselves against buying cars manufactured on Mondays, Fridays, the opening day of hunting season, and even the first year of production.

However, the real onus is on management, the highly overpaid executives, for creating and tolerating these practices, and more critically, for not producing cars Americans want to buy.

There is nothing wrong with GM that selling more cars wouldn’t solve, but GM does not produce the cars we wish to buy. One-quarter of the vehicles sold in California are Toyotas.

Cars are sold on design, price, quality, mileage, safety, and functionality. When is the last time GM produced a “must-have” car that we rushed to buy? Decades of high-priced, low quality, and poorly designed GM vehicles have no cachet in the marketplace. Ford had the Mustang, Taurus, and Explorer while Chrysler markets the 300. GM gave us the Aztek, Catera, Chevette, Cimarron, Citation, Corvair, Nova, and Vega,

Those of us who are children of the 60”s remember the teachings of John Kenneth Galbraith and Charles Reich that the great American corporations were immune to competition, could administer prices, and ignore consumers. The Japanese, Germans and Koreans did not read their books.

GM captured over 60% of the domestic market at its peak in the 1960’s and had highly profitable operations in Australia, Canada, Europe and Mexico. Today, its domestic share is down to 26% and it is hemorrhaging money overseas. No, the UAW has not killed Detroit. It took four decades of colossal mismanagement to blow a near monopoly. Only gross incompetence could turn Cadillac, the standard of luxury cars, into an also-run behind Lexus, Mercedes and BMW. Only gross mismanagement could shut down Oldsmobile, a brand which was the third largest selling brand with over a million vehicles sold in 1986.

Once GM became a near monopoly, it created a massive bureaucracy stifling innovation. It became, and remains, a follower rather than a leader. Three major vehicles types were created in the past 60 years: SUV’s (Willys Jeep), Pony cars (Ford Mustang), and minivans (Chrysler). Both the Mustang and minivan were creations of Lee Iaccoca. The New Millenium has witnessed hybrids by Honda and Toyota. GM lagged in developing front wheel drive vehicles. It never caught up in minivans, and no longer produces cars to compete with the Mustang.

GM introduced a revolutionary new car, the Saturn, to great acclaim two decades ago, and then proceeded to starve it of new products. Saturn has consistently lost money for GM as the brand has languished in the marketplace.

Charles E. Wilson, the President of GM, stated to the Senate fifty years ago that “What’s good for the country is good for General Motors, and what’s good for General Motors is good for the country.” GM has adhered to the second half of the quote in the face of revolutionary changes in the auto industry, two Arab oil embargoes in the 1970’s, and the onslaught of Japanese cars. Pollution control, safety, and fuel mileage became major concerns. GM did not, could not, change; it stubbornly clinger to the flawed business model that said it knew best what was best for America. It never learnt how to build well designed, quality small cars, and surrendered the mid-size market to Accords and Camrys.

Indeed, fifteen years ago GM quietly disinvested in automobiles to concentrate on large trucks and SUV’s – truly a Faustian bargain. At some point the Japanese would build full size pickups and large SUV’s while the price of gas was certain to rise, thereby imperiling GM’s cash flow. It also squandered billions of its scarce capital in Fiat and Saab. (Of course, Ford has poured $10 billion into Jaguar, but that’s another story.) GM has relied on rebates and fleet sales to car rental companies to sell cars. The rebate costs per vehicle exceed its medical expenses per car sold.

The greatest edge GM had was economies of scale. Whatever its added costs for medical and retirement were more than offset by production efficiencies. Its per vehicle costs for advertising, tools and dyes, and overhead gave it a profit margin greater than any competitor. Only four decades of poor management could squander this cost advantage by producing cars Americans did not want to buy.

Monday, September 10, 2007

Bush's Legacy

This will be the blog of a conservative law professsor. My first offering is on the legacy of Bush


The defeat of the Immigration Reform Plan couples with the assumed stalemate in Iraq has resulted in pundits widely proclaiming the failed presidency of the Bush Administration. George W. Bush, R.I.P.

A little history will throw cold water on this instant analysis. Almost every President since FDR has similarly “failed.”

Of the 11 post-Roosevelt Presidents, only five (Ike, Nixon, Reagan, Clinton, and Bush II) were elected to two four year terms. All had second term malaise. Of these, Nixon resigned and Clinton was impeached. Neither Ike nor Clinton, as with LBJ, saw their Vice Presidents elected as their successor to the Presidency. Ike and Bush II both lost Republican Congresses, Clinton said goodbye to a Democratic Congress, and Reagan a Republican Senate.

Ford, Carter, and Bush I were defeated for reelection, while Truman and LBJ dropped their reelection bids. Just as Bush II is plagued by Iraq, Truman was hurt by Korea and LBJ and Nixon dragged down by Vietnam. The American public lacks patience with seemingly interminable wars without visible progress.

The difference between success and failure is often very thin. For example, had General Sherman not fortuitously won a major battle shortly before the 1864 election, President Lincoln would surely have lost reelection and probably gone down in history as a failure. The North, led by President McClellan, may have sued for peace. The platform of the Democratic Party declared the war a failure.

Nixon’s Watergate resignation was ultimately brought about by Deep Throat, the Deputy Director of the FBI, W. Mark Felt, who was upset about being passed over as J. Edgar Hoover’s successor. His revenge was to bring down a President, and unleash three decades of blind partisanship, special prosecutors, and calls for impeachment.

Truman (North Korea’s invasion of South Korea), Ike (Gary Francis Powers and the U2), JFK (Bay of Pigs), Carter (Soviet invasion of Afghanistan), Reagan (Iran-Contra), Bush I (Saddam Hussein invasion of Kuwait), Clinton (bombing a civilian factory) and Bush II (Hussein and WMD) all had intelligence/CIA failures. Carter, Reagan, Bush I, Clinton, and Bush II successively experienced the ferocity of Islamic fundamentalism.

Every President since Truman has had problems with Fidel Castro and Cuba. Elian Gonzalez probably elected Bush II President.

Ike, LBJ, Nixon, Ford, Carter, Reagan, Bush I and Bush II combated economic problems during their administrations, including recessions, inflation, and stagflation. No President has been able to control the ever burgeoning farm subsidies. Bush I and now Bush II have had major banking crises in their administrations.

Humans being human, scandals will occur. Truman, Ike, LBJ, Nixon, Carter, Reagan, Clinton, and Bush II all witnessed major scandals, some self-inflicted, in their administrations.

I’ve said little about JFK because he was not in office long enough to judge, and the charisma of Camelot still blinds us. JFK most likely would have been reelected, but Vietnam would have become the deciding point of his second term.

What history tells us is that every Presidency has successes and failures, legislative victories and defeats, and foreign policy accomplishments and disappointments. Every Presidency has its ups and downs, but only with the passage of time can we objectively assess historical figures.

Bush’s political failures in the second term were the result of willing to expend political capital on the difficult issues of social security and immigration. History will tell us in decades that Bush was right to tackle both. Neither status quo is sustainable for America. While social security reform failed, Bush successfully introduced measures to temper the rise in Medicaid.

Katrina was a collective failure of government at all levels. Since legally the initial response to a natural disaster is state and local, most onuses should fall on the Democratic Governor of Louisiana (who is not running for reelection) and the Democratic Mayor of New Orleans.

Iraq is a different story, but as with immigration reform, the effort is based upon a core set of beliefs rather than the polls. Bush’s legacy may well be defined by the outcome- not in Iraq- but in the Mideast, and that we will not know for decades.

The fundamental problem in Iraq is the Peace Dividend. The United States at the end of the Cold War, as it has after every major war, substantially downsized the military. The Pentagon lacks the troop size today to fight a long sustained ground war.

Conversely, the substantial military cutbacks initiated by Bush I and carried through by Clinton resulted in Clinton balancing the budget.

As we mull over his supposed failures, we forget the tremendous successes. First are the tax cuts which are fueling a solidly based economic boom. Second is the liberation of Afghanistan. Even if Iraq turns out unsuccessful, let us not forget that Libya gave up its WMD program. And it appears that North Korea is closing down its nuclear reactor. Faith based initiatives have survived challenges, and the Supreme Court has become conservative. “No Child Left Behind” has brought a degree of accountability to public education, and the Medicare Act of 2003 with its prescription drug coverage is resulting in lower prescription drug prices to an ageing population.

A similar list of successes exists for every President. For example, Truman, Ike, and LBJ all fostered tremendous civil rights progress for minorities – a fight which still continues.

Everything else will be moot if Bush’s missile defense program results in shooting down a nuclear tipped missile fired at the United States. Bush’s (and Reagan’s) legacy will be secured.