LAW FROM THE CENTER

This morning, I appeared by telephone on the NPR Show, Michael Feldman's Whad'ya Know? Click here for the audio archive. I played the Whad'ya Know quiz, based loosely on current events, and won a tour guide book of Wisconsin and a couple of CD's. UCLA School of Law in da house... Note: I appear about half way through the audio clip. The show appears locally on KPCC 89.3 FM in Los Angeles from 12pm to 2pm on Saturdays; check your local listings for other locations.

George Will, in today's Washington Post (subscription), writes about the flap over President Bush's economic advisor, Gregory Mankiw, saying publicly that it's a good thing for the economy to ship mid-level paying service jobs overseas. He blames both the Speaker of the House and the two front-running Democrat presidential nominees for conducting a witch hunt against a statement Will endorses:

It is difficult to say something perfectly, precisely false. But House Speaker Dennis Hastert did when participating in the bipartisan piling-on against the president's economic adviser, who imprudently said something sensible.

John Kerry and John Edwards, who are not speaking under oath and who know that economic illiteracy has never been a disqualification for high office, have led the scrum against the chairman of the president's Council of Economic Advisers, N. Gregory Mankiw, who said the arguments for free trade apply to trade in services as well as manufactured goods. But the prize for the pithiest nonsense went to Hastert: "An economy suffers when jobs disappear."

So the economy suffered when automobiles caused the disappearance of the jobs of most blacksmiths, buggy makers, operators of livery stables, etc.? The economy did not seem to be suffering in 1999, when 33 million jobs were wiped out -- by an economic dynamism that created 35.7 million jobs. How many of the 4,500 U.S. jobs that IBM is planning to create this year will be made possible by sending 3,000 jobs overseas?

Hastert's ideal economy, where jobs do not disappear, existed almost everywhere for almost everyone through almost all of human history. In, say, 12th-century France, the ox behind which a man plowed a field changed, but otherwise the plowman was doing what generations of his ancestors had done and what generations of his descendants were to do. Those were the good old days, before economic growth.

Yeah, yeah George, we get your point: jobs in areas we have a comparative advantage in are good, while jobs in areas we don't have a comparative advantage in are bad. Anyone taking Economics 101 knows that Georgie Boy.

But Will completely misses the point about the current debate. It's one thing to pontificate behind closed doors that the loss of some jobs, while tragic, may lead to even more jobs down the line. It's another thing for the President's chief economic advisor to publicly proclaim that the wholesale exporting of jobs to other countries is "good." It shows a callous insensitivity for those who have lost jobs, and a general disregard for the inherent worth of employment. What would happen if Chairman Greenspan went to Capitol Hill and, during testimony, told Congress that the fact that the current wholesale export of jobs to other countries was a "good thing?" We don't know, because it wouldn't happen. He may think it, but he would never say it. Greenspan likes his job too much. It's obvious Mankiw doesn't, so it's time for Bush to revoke that job if he wants to retain any credibility on economics and jobs. This is the kind of political blunder someone running for dog catcher wouldn't make, much less the top economic advisor in the nation.

Professor Eugene Volokh gives a reserved defense to Mayor Newsom's defiant order to issue marriage licenses to gay couples in violation of California law. The mayor's position

is that California's male-female-only marriage law -- which is only a statute, albeit one that was implemented by a voter initiative -- violates the California Constitution. If he's right, then refusing to marry same-sex couples (thus complying with the invalid state statute) would be violating the law, because it would be denying people the equal treatment that the constitution allows them; agreeing to marry same-sex couples (thus violating the invalid state statute) would be upholding the law, because it would be complying with the constitutional command.

I fully disagree. If the Mayor is truly justified in his interpretation of the Constitution, then the most law-abiding course of action would not be to issue gay licenses, but to STOP ISSUING MARRIAGE LICENSES altogether. You can't protest a method of issuing licenses by making your own one up. If you want to stop discriminating, then stop discriminating. Shut down the license office until the legislature makes a change you're happy with. But don't encourage lawlessness in the highest levels of government.

Right now, all over the world, military justice systems are under attack, with a culture of change unseen since the institution of the Uniform Code of Military Justice (UCMJ) after World War II. Today, General Cosgrove of the Australian Defence Forces fights for the autonomy of his country's court-martial system under extreme pressure from Parliament to civilianize the system. In Britain, news comes today of the first civilian naval criminal trial in the history of the British Navy, mandated after the EU Court of Human Rights declared the British court-martial system illegal. The EU Court found that the system did not constitute a "fair and impartial tribunal" as required by the European Declaration of Human Rights, since commanders were able to pick panel (jury) members, choose charges, and decide on pretrial matters. Five years later, the changes are being implemented.

According to Eugene R. Fidell, today's news is part of a larger turn-of-the-millenium

period of ferment that is both rare and broad. In country after country, dramatic change either has occurred in the recent past or is under active consideration. Nothing like this has happened since the years just after World War II.

He cites dramatic changes that have been implemented in the UK, Canada, South Africa, India, and Mexico, as part of a global movement for change in military justice systems modeled on the British Articles of War (which includes, with substantial reforms, the US system). He concludes that military leaders need to carefully study international systems of military justice in order to better understand our own. Eugene R. Fidell, A Worldwide Perspective of Change in Military Justice, 48 A. F. L. REV. 195.

Why does this matter? The same supposed flaws that exist or existed in the military justice systems of Australia, Canada, Britain, etc.--lack of prosecutorial discretion by trained legal personnel, the picking of panel members by commanders, lack of tenure for trial judges--all can be found in the system based on our Uniform Code of Military Justice. Fidell seems to think that our Armed Forces are immune from this culture of change. He notes the fact that the Supreme Court has written about the importance of an independent military justice system because our military is a "specialized society separate from civilian society." Parker v. Levy, 417 US 733, 743 (1974), in Fidell. However, our Uniform Code of Military Justice is statutory; just because it is constitutional does not mean that it is immune from Congressional tinkering. After every major conflict this nation has engaged in, the soldiers who have come home have demanded reforms of varying levels in the court martial system. As more and more people serve in the active and reserve components, and more troops become subject to the UCMJ, echoes from this global culture of change may work their way into the congressional halls. Indeed, in five to ten years, we may find a system of military justice that looks more like Law & Order than JAG.

- I'm back. Things have been hectic lately, but I'm back. I've been working on an Amicus Brief for the FAIR v. Rumsfeld case, challenging the constitutionality of the Solomon Amendment. Also busy with the law respew. Back to daily blogging soon.