In Which I Admire Millions of Tiny German Lawsuits And Annihilate Several Canards About the Law

The U.S. is famous in Germany for its 'runaway' juries which hand down zillion-dollar lawsuits against poor defenseless companies. Yet, as I told my dumbfounded students, Germany is a far more litigious society than the USA. In fact, according to a book-length 1998 study, Germany is the most lawsuit-happy country on earth:

Country Cases per 1,000 Population

• Germany 123.2
• Sweden 111.2
• Israel 96.8
• Austria 95.9
• U.S.A. 74.5
• UK/England & Wales 64.4
• Denmark 62.5
• Hungary 52.4
• Portugal 40.7
• France 40.3

My German students were dumbfounded by this fact. Most of them got their image of the world from the mainstream press. And, as usual, German journalists tended to obsess over the real or imagined failings of other countries, while remaining ignorant of what was going on in their backyard.

But aside from the good clean fun of this tu quoque response, it's interesting to think about why Germany is so litigious. I think there are 4 main reasons:

  • Legal insurance (Rechtschutzversicherung). Millions of Germans have legal insurance policies that pay for lawyers both to file claims and defend against them. This insurance is affordable because litigation costs in Germany are low. Legal insurance is actually an excellent idea, every country in the world could benefit from widespread legal insurance. What it means in Germany, though, is that if you have a policy, you don't have to think twice about filing a lawsuit. Granted, the lawyer is not supposed to file if you don't have a claim, but many do anyway. Legal insurance also provides a lifeline for many small-time lawyers -- they can patch together a decent livelihood by having a constant docket of 40-50 small time cases going on at any time. None of these cases will generate a huge verdict, but a steady stream of small payments is enough.
  • Lawsuits are a fact of life. Nobody really takes them seriously. If your landlord hikes your rent, you use your legal-insurance lawyer to fight it. The landlord uses their legal-insurance lawyer to defend. After all, if you don't sue, you'll certainly have to pay the extra 10% in rent. If you do sue, you might end up with a discount. The landlord would probably do the same thing in your position, and knows this.
  • Close neighbors make bad blood. Germany is a small country packed with people. Everything you do in public is going to have some effect on your neighbors. If a potted plant falls off your city balcony, it's going to hit someone or something below. If your cat likes to relieve themselves on your neighbor's lawn, they're going to notice. And might just take lethal action. Your barbecue smoke is going to trigger someone's asthma 5 houses down. The list goes on and on. Every German state has a long, complex "neighbor law" (here's the one (g) for my state), and many lawyers do nothing else. And once again, these petty squabbles are going to end up in court because it's so easy to go to court because of legal insurance. 

And finally, no lawsuit is too tiny. As Wagner once said, a German is someone who will always do something for its own sake. Which means Germans will file a suit over anything. Why, here's a story (g) from the excellent criminal-defense blog lawblog. Two retirees went fishing for deposit bottles in Munich, a favorite pastime of poor Germans, or just ones who need some way to fill their days in the fresh air.*

They approached a large man-sized glass-recycling container, whipped out their grabbers, and started fishing around inside the container. Recycling containers are supposed to be reserved for bottles which don't have a deposit on them, like wine bottles. But many people don't care or don't know how to tell a deposit from a non-deposit bottle, and just toss everything in.

Sure enough, our two hunters found 15 deposit bottles with a total value of € 1.44. Two other Germans, who were certainly feeling very German that day, called the police and reported the bottle-fishers for theft. Wait, what? Two people minding their own business, helping recycle glass, augmenting their puny incomes, harming nobody, and their fellow Germans report them to the cops? Welcome to Deutschland, my friends.

Now German prosecutors are obliged to investigate every credible accusation of crime that comes to their attention, the famous "Principle of Legality"**. This they did. The first thing they had to determine was what the value of the theft was. Technically, this was a theft -- once you throw a glass bottle into a recycling bin, it becomes the property of the recycling company. So you might think that the amount of the theft was the deposit value of the bottles. But no! It turns out that the recycling company does not separate out deposit bottles from other ones. Scandalous, I know. So all the bottles just get melted down. The prosecutor asked the recycling firm how much value the bottles would have as recycling material, and the firm said: basically, it's too small to even put a number on.

At this time, the prosecutor chose to halt the proceedings (einstellen) based on the idea that there was no public interest in prosecuting the offenders. The writer at lawblog thinks this was the wrong reason to stop the prosecution -- he thinks a better theory is to deny the people had any attempt to commit theft, because they had no intent to take possession of the bottles -- their ultimate goal was simply to transfer them to a different owner. 

Be that as it may, the main thing to notice here is that several different government employees spent hours of their time and used considerable resources to investigate an accusation of a crime which, at the very most, involved the lordly sum of € 1.44. It's probably only a slight exaggeration to say that the German state spent 1000 times more money investigating the theft than it was actually worth in the first place.

Now, am I going to snigger about this? Of course I am, and so are you. But at the same time, I'm not going to go too far. The most important thing to keep in mind about high numbers of lawsuits is that they are an important sign of social health. In the vast majority of societies, lawsuits are prohibitively expensive and courts are woefully underfunded and corrupt, so nobody trusts them. Germans and Americans trust courts to usually resolve legal disputes in a fair and equitable manner, otherwise they wouldn't seek them out so often. They're right to do so; both the USA and Germany have exceptionally fair and efficient legal systems, despite their imperfections. A fair, professional, and generally non-corrupt legal system is one of humanity's most important achievements, full stop. Most countries don't yet have one. If you happen to live in a country which does, take a moment and thank your lucky stars. 

Continue reading "In Which I Admire Millions of Tiny German Lawsuits And Annihilate Several Canards About the Law" »


The Notary, Our Noble Master

Gardeavue

Watched this classic again last night. Lino Ventura plays a detective who subjects a wealthy local lawyer -- suspect in the rape and murder of two young girls -- to an hours-long interrogation in police headquarters. Lino Ventura intensely watchable as always with his Easter Island head and ludicrously gigantic hands. And Michel Serrault is perfectly cast as the clever, oleaginous yet despairing suspect. Romy Schneider, as his wife, is just plain Romy. She never really becomes anyone else no matter what role she plays, but you won't hear me complaining.

I first saw this movie years ago, before I was even a lawyer, in the U.S. Part of a Romy Schneider film festival. As I watched it again, a few memories of my earlier reaction to the movie came back. First of all, I remember being surprised when the detective tells the suspect that he can call a lawyer, but the lawyer is not entitled to meet him. "Whoa," I thought back then, "that's totally unconstitutional!" Which it would have been, in America.

The second cultural misunderstanding comes from the fact that everyone keeps mentioning that the suspect, Jérôme Martinaud, is a "notary". As an American, I said: "Who cares?" Yet this fact is mentioned several times, and the script calls attention to when and whether characters refer to the suspect as Master (Maître, the official designation for French lawyers and some other professionals). 

In fact, at the time I saw the movie, I was a notary, even though I didn't even have a college degree. In the U.S., the only function of a "notary public" is to put a stamp on official sworn documents. You just ask someone if the document is accurate, get them to sign it, and stamp it. Anyone over 18 who doesn't have a serious criminal record can be a notary. Anyone. You just fill out a form, pay a small fee, and bingo! you're in.

The situation is vastly different in Continental Europe, where notaries must be lawyers. Not only that, they benefit from an ancient privilege system that (1) requires dozens of different kinds of documents to be notarized, and (2) limits the overall number of notaries. This grants most notaries a regional monopoly, reducing competition and driving up costs. The Economist describes the cultural divide:

Notaries are important gatekeepers in many economies, in particular when it comes to establishing property rights—the bedrock of markets. At best, notaries are facilitators who, for instance, verify the identity of the signatories of contracts and the veracity of their statements. At worst, they are overpaid bureaucrats who delay the passage of simple transactions and bloat their cost.

By contrast, notaries are unknown in many common-law countries, such as Britain and its former empire, which take a more freewheeling approach to contracts. America is the odd country out: although its legal system is based on common law, it boasts 4.8m notaries, many part-time. Yet these exist mainly to satisfy America’s maddening appetite for stamps and seals, and have little in common with their highly qualified European namesakes. “They are butchers, bakers and candlestick-makers,” scoffs a European notary.

Both traditions have their drawbacks. In Europe notaries’ highly regulated work has made them the most prosperous of lawyers. Tax returns suggest that Italian notaries are paid better than any other professionals (though perhaps they are most honest about their earnings). A report in 2004 found that notaries made up 22 of Slovenia’s 100 highest earners. French ones are the most privileged of all, says Gisela Shaw, an expert on the profession. They can compete with solicitors to provide legal services. They may sell their practice when they retire.

A website on French property law notes:

With about 5,000 offices, 7,500 notaires and 40,000 assistants, the notarial profession has representation all over France and has an effective monopoly. The Notaire is the public official responsible for receiving all the "actes" and contracts to which the parties wish to confer the seal of authenticity, to assure their date, to hold them in trust and to deliver authentic copies of them.

The Notaire is under the authority of the Minister of Justice (Ministère de la Justice) and is appointed by decree. The Notaire's office (Etude) depends geographically on the area in which he lives.

So the status Jérôme enjoys result from the fact that he is a member of perhaps the most privileged group in French society: lawyers who have gained a coveted notary position. One of Jérôme's first lines of defense is that people are always starting rumors about him because they envy his wealth and social status, which explains why people are circulating unfounded rumors about his involvement in the murders.

It doesn't happen often, but there you have it: an instance in which comparative-law knowledge deepens your understanding of art!


Low-Skill Immigration is a Policy Disaster

A point I've made here a few times is that we can't really judge the effect of the huge migrant influx of 2015-2016 (which is still ongoing on a smaller scale) until all those migrants enter the workforce in Germany and begin competing against Germans.

Of course, they won't be competing against managers, engineers, or journalists. If they find jobs at all, they'll be dumped into the low-skill section of the German economy, to compete against the million of German workers who only have a low-level high school education or vocational training.

The results will be ugly. We know this because this has already been happening in the US for years now. Economists are generally right-wing libertarian open-borders types, and argue in favor of immigration based on what they claim are the positive overall effects on the economy. They rarely pay attention to the effects immigration has on working-class types, because, you know, who cares about those people? 

Harvard economist George Borjas, however, has studied this aspect of immigration -- mass immigration by low-skilled workers -- in the US for decades. He describes the results for American workers and the American economy: 

Over the past 30 years, a large fraction of immigrants, nearly a third, were high school dropouts, so the incumbent low-skill work force formed the core group of Americans who paid the price for the influx of millions of workers. Their wages fell as much as 6 percent. Those low-skill Americans included many native-born blacks and Hispanics, as well as earlier waves of immigrants.

But somebody’s lower wage is somebody else’s higher profit. The increase in the profitability of many employers enlarged the economic pie accruing to the entire native population by about $50 billion. So, as proponents of more immigration point out, immigration can increase the aggregate wealth of Americans. But they don’t point out the trade-off involved: Workers in jobs sought by immigrants lose out.

They also don’t point out that low-skill immigration has a side effect that reduces that $50 billion increase in wealth. The National Academy of Sciences recently estimated the impact of immigration on government budgets. On a year-to-year basis, immigrant families, mostly because of their relatively low incomes and higher frequency of participating in government programs like subsidized health care, are a fiscal burden. A comparison of taxes paid and government spending on these families showed that immigrants created an annual fiscal shortfall of $43 billion to $299 billion.

Even the most conservative estimate of the fiscal shortfall wipes out much of the $50 billion increase in native wealth. Remarkably, the size of the native economic pie did not change much after immigration increased the number of workers by more than 15 percent. But the split of the pie certainly changed, giving far less to workers and much more to employers.

The immigration debate will also have to address the long-term impact on American society, raising the freighted issue of immigrant assimilation. In recent decades, there has been a noticeable slowdown in the rate at which the economic status of immigrants improves over time. In the 1970s, the typical immigrant could expect a substantial improvement relative to natives over his or her lifetime. Today, the economic progress of the typical immigrant is much more stagnant.

Part of the slowdown is related to the growth of ethnic enclaves. New immigrants who find few ethnic compatriots get value from acquiring skills that allow more social and economic exchanges, such as becoming proficient in English. But new immigrants who find a large and welcoming community of their countrymen have less need to acquire those skills; they already have a large audience that values whatever they brought with them. Put bluntly, mass migration discourages assimilation.

The trade-offs become even more difficult when we think about the long-term integration of the children and grandchildren of today’s immigrants. Many look back at the melting pot in 20th-century America and assume that history will repeat itself. That’s probably wishful thinking. That melting pot operated in a particular economic, social and political context, and it is doubtful that those conditions can be reproduced today.

...

Europe is already confronting the difficulties produced by the presence of unassimilated populations. If nothing else, the European experience shows that there is no universal law that guarantees integration even after a few generations. We, too, will need to confront the trade-off between short-term economic gains and the long-term costs of a large, unassimilated minority.

Identifying the trade-offs is only a first step toward a more sensible immigration policy. We also need some general principles, combining common sense and compassion.

First and foremost, we must reduce illegal immigration. It has had a corrosive impact, paralyzing discussion on all aspects of immigration reform. A wall along the Mexican border may signal that we are getting serious, but many undocumented immigrants enter the country legally and then overstay their visas. A national electronic system (such as E-Verify) mandating that employers certify new hires, along with fines and criminal penalties for lawbreaking businesses, might go a long way toward stemming the flow.

But what about the 11-million-plus undocumented immigrants already here? A vast majority have led peaceful lives and established deep roots in our communities. Their sudden deportation would not represent the compassionate America that many of us envision.

Perhaps it’s time for some benign neglect. Many will eventually qualify for visas because they have married American citizens or have native-born children. Rather than fight over a politically impossible amnesty, we could accelerate the granting of family-preference visas to that population.

We will also need to decide how many immigrants to admit. Economists seldom confess their ignorance, but we truly have no clue about what that number should be. About one million legal immigrants a year entered the country in the past two decades. The political climate suggests that many Americans view that number as too high. History shows that when voters get fed up with immigration, there is no reluctance to cut off the flow altogether. Back in the 1990s, Barbara Jordan’s immigration commission recommended an annual target of about 550,000 immigrants. Such a cut would be significant, but it may be preferable to the alternative, which, in this political climate, could mean shutting off the flow.

Finally, we need to choose between highly skilled and less-skilled applicants. High-skill immigrants, who pay higher taxes and receive fewer services and can potentially expand the frontier of knowledge, are more profitable for us. But giving an opportunity to the huddled masses is part of what makes our country exceptional.

...

Many of my colleagues in the academic community — and many of the elite opinion-makers in the news media — recoil when they hear that immigration should serve the interests of Americans. Their reaction is to label such thinking as racist and xenophobic, and to marginalize anyone who agrees.

But those accusations of racism reflect their effort to avoid a serious discussion of the trade-offs. The coming debate would be far more honest and politically transparent if we demanded a simple answer from those who disagree with “America First” proposals: Who are you rooting for?

So, mass low-skilled immigration increases the welfare rolls, drives down the wages of the most vulnerable workers, increases the gap between rich and poor, and fuels social tension. Why does anyone think this is a progressive policy?


Melania Wasn't "Sad", She was Slavic

During Donald Trump's inauguration, his Slovene wife Melania looked sober and serious most of the time. This has led Americans to believe she was sad, depressed, horrified, anguished, perhaps even trapped in an abusive relationship.

What these slightly fatuous Americans don't understand is that the European conception of personal dignity and institutional respect demands that public figures taking part in official ceremonies look serious at all times. In Europe, there is no penalty for looking stiff, even scowling, during official ceremonies; that's expected. There can be a significant penalty for a smile, or for any sign of levity. So everyone plays it safe and refrains from all except fleeting smiles.

Let me make my point with pictures of Supreme Courts. First, the American:

US Supreme Court

By my count, we have a whopping six smiles: the entire back row (Sotomayor, Breyer, Alito, Kagan) and two in the front (Roberts and Kennedy). Justice Scalia, the balding Italian man sitting next to the black guy, is wearing a sort of half-smile. Justice Thomas, the black guy, is wearing an angry scowl, his resting face, which seems out of place in this photograph, but would be perfectly normal in Europe.

Justice Ruth Bader Ginsburg, on the far right, seems to be cringing in terror. In fact, she seems to be looking at the same thing which has attracted Justice Thomas' attention. Maybe this photo was taken just seconds after the naked knife-wielding maniac broke into the photo studio screaming about CIA mind control: so far, only Thomas and Ginsburg notice him. Fortunately, he was tased by security before he could reach the Legal Minds.

Anyhoo, where was I? Oh right, facial expressions. Since Melania is Slovene, here's the Slovenian Supreme Constitutional Court:

Slovene

The first thing you notice about this official picture from the Court's website is how shitty it is. It's only 71 KB in size, and 60% of that is the surroundings. The picture is so crappy that if you zoom in to try to see whether any of the Justices are smiling, their faces devolve into pixelblurs. You get the definite impression that the Justices probably thought the entire idea of having their picture taken is a ridiculous waste of time, and tried to make it as unrevealing as possible. Nevertheless, I think we can still safely say: no open-mouthed smiles, possibly a mild expression of amusement on the woman in the center's face. That's all.

Bundesverfassungsgericht-senat_2

Here's the Second Senate of the German Federal Constitutional Court. Two open-mouthed smiles, the rest tight-lipped neutral expressions. Here's the First Senate:

Bvg_senat_1_2010

One open-mouthed grin. I can't even find a decent group photo of the French Court de Cassation (which has 85 members divided into a bunch of different groups), but the individual photos of the group leaders here (f) feature no open-mouthed smiles I can find.

And just to round things out, the European Court of Justice:

RTEmagicC_European-Court-of-Justice-Members-2013.jpg

A few smiles, a few scowls, but mostly neutral, purposeful expressions.

And in this particular respect, Slavs seem to be even more serious and scowly than Western Europeans. Here's the Polish Constitutional Tribunal:

Members-of-Polands-Supreme-Court

Being a Slav, as they say, is serious business.

So Melania wasn't "sad", you chirpy, fleering American flibbertygibberts. She was just showing respect by adopting a serious Slavic scowl.


Many Anti-Trump Arguments Are Hysteria

Trump is many things, and has said many things, but he's not a fascist, he's not deeply racist (although he has made racist statements), he's clearly no anti-Semite, and his views on immigration aren't far out of the mainstream.

Those of you getting your news from the German media may well be doing spit-take after spit-take, but this thorough and well-documented post from Slate Star Codex checks out all the most extreme claims about Trump and finds most of them overblown. You should read the entire thing, but here are some generous excerpts:

3. Is Trump getting a lot of his support from people who wouldn’t join white nationalist groups, aren’t in the online alt-right, but still privately hold some kind of white supremacist position?

There are surprisingly few polls that just straight out ask a representative sample of the population “Are you white supremacist?”.

I can find a couple of polls that sort of get at this question in useful ways.

This poll from Gallup asks white Americans their support for school segregation and whether they would move out if a black family moved in next door. It declines from about 50% in 1960 to an amount too small to measure in the 1990s, maybe 1-2%, where it presumably remains today.

(this graph also seems relevant to the stories of how Trump’s father would try to keep blacks out of his majority-white real estate developments in the late 60s/early 70s – note that at that time 33% of white families would move out if a black person moved in next door)

Here’s a CBS News poll from 2014 asking Americans their opinion on the Civil Rights Act that legally prohibited discrimination. Once again, the number of whites who think it was a bad thing is too small to measure meaningfully, but looks like maybe 1-2%. Of note, whites were more convinced the Civil Rights Act was good than blacks were, though I guess it depends on the margin of error.

Another Gallup graph here, with the percent of people who would vs. wouldn’t vote for an otherwise-qualified black candidate for President. It goes from 54% in 1968 to 5% in 1999; later polls that aren’t included on the graph give numbers from 4% to 7%, which sounds probably within the margin of error.

This is a Vox poll asking how many people had favorable vs. unfavorable views of different groups. 11% admit to “somewhat unfavorable” or “very unfavorable” views of blacks, which sounds bad, except that 7% of people admit to unfavorable views of heterosexuals by the same definition. This makes me think “have an unfavorable view about this group” is not a very high bar. If we restrict true “white supremacists” to those who have only “very unfavorable” views of blacks, this is 3%, well in line with our other sources.

(of note, 1% of respondents had “never heard of” blacks. Um…)

Maybe a better way of looking for racists: David Duke ran for Senate in Louisiana this year. He came in seventh with 58,000 votes (3%). Multiplied over 50 states, that would suggest 2.5 million people who would vote for a leading white supremacist. On the other hand, Louisiana is one of the most racist states (for example, Slate’s investigation found that it led the US in percent of racist tweets) and one expects Duke would have had more trouble in eg Vermont. Adjusting for racism level as measured in tweets, it looks like there would be about 1 million Duke voters in a nationwide contest. That’s a little less than 1% of voters.

So our different ways of defining “open white supremacist”, even for definitions of “open” so vague they include admitting it on anonymous surveys, suggest maybe 1-2%, 1-2%, 4-7%, 3-11%, and 1-3%.

But doesn’t this still mean there are some white supremacists? Isn’t this still really important?

I mean, kind of. But remember that 4% of Americans believe that lizardmen control all major governments. And 5% of Obama voters believe that Obama is the Antichrist. The white supremacist vote is about the same as the lizardmen-control-everything vote, or the Obama-is-the-Antichrist-but-I-support-him-anyway vote.

(and most of these people are in Solid South red states and don’t matter in the electoral calculus anyway.)

...

This gets back to my doubts about “dog whistles”. Dog whistling seems to be the theory that if you want to know what someone really believes, you have to throw away decades of consistent statements supporting the side of an issue that everyone else in the world supports, and instead pay attention only to one weird out-of-character non-statement which implies he supports a totally taboo position which is perhaps literally the most unpopular thing it is possible to think.

And then you have to imagine some of the most brilliant rhetoricians and persuaders in the world are calculating that it’s worth risking exposure this taboo belief in order to win support from a tiny group with five-digit membership whose support nobody wants, by sending a secret message, which inevitably every single media outlet in the world instantly picks up on and makes the focus of all their coverage for the rest of the election.

Finally, no, none of this suggests that Donald Trump is courting the white supremacist vote. Anybody can endorse anybody with or without their consent. Did you know that the head of the US Communist Party endorsed Hillary, and Hillary never (as far as I know) “renounced” their endorsement? Does that mean Hillary is a Communist? Did you know that a leader of a murderous black supremacist cult supported Donald Trump and Trump said that he “loved” him? Does that mean Trump is a black supremacist? The only time this weird “X endorsed Y, that means Y must support X” thing is brought out, is in favor of the media narrative painting Trump to be a racist.

This, to me, is another form of crying wolf. One day you might have a candidate who openly courts the KKK, in the sense of having a campaign platform saying “I like the KKK and value their support”, speaking at Klan meetings, et cetera. And instead, you’ve wasted the phrase “openly courts the KKK” on somebody with a twenty year history of loudly condemning the KKK, plus one weird interview where he said he didn’t know anything about it, then changed his mind the next day and said he hates them.

...

6. What about Trump’s “drugs and crime” speech about Mexicans?

Trump said that:

When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.

Note how totally non-racist this statement is. I’m serious. It’s anti-illegal-immigrant. But in terms of race, it’s saying Latinos (like every race) include both good and bad people, and the bad people are the ones coming over here. It suggests a picture of Mexicans as including some of the best people – but those generally aren’t the ones who are coming illegally.

Compare to eg Bill Clinton’s 1996 platform (all emphasis mine):

We cannot tolerate illegal immigration and we must stop it. For years before Bill Clinton became President, Washington talked tough but failed to act. In 1992, our borders might as well not have existed. The border was under-patrolled, and what patrols there were, were under-equipped. Drugs flowed freely. Illegal immigration was rampant. Criminal immigrants, deported after committing crimes in America, returned the very next day to commit crimes again. President Clinton is making our border a place where the law is respected and drugs and illegal immigrants are turned away.

Or John McCain in 2008:

Border security is essential to national security. In an age of terrorism, drug cartels, and criminalgangs, allowing millions of unidentified persons to enter and remain in this country poses grave risks to the sovereignty of the United States and the security of its people.

Trump’s platform contains similar language – and, like all past platforms, also contains language praising legal immigrants:

Just as immigrant labor helped build our country in the past, today’s legal immigrants are making vital contributions in every aspect of national life. Their industry and commitment to American values strengthens our economy, enriches our culture, and enables us to better understand and more effectively compete with the rest of the world.

We are particularly grateful to the thousands of new legal immigrants, many of them not yet citizens, who are serving in the Armed Forces and among first responders. Their patriotism should encourage all to embrace the newcomers legally among us, assist their journey to full citizenship, and help their communities avoid isolation from the mainstream of society. We are also thankful for the many legal immigrants who continue to contribute to American society.

When Democrats and Republicans alike over the last twenty years say that we are a nation of immigrants but that illegal immigrants threaten our security, or may be criminals or drug pushers, they’re met with yawns. When Trump says exactly the same thing, he’s Literally the KKK.

7. What about the border wall? Doesn’t that mean Trump must hate Mexicans?

As multiple sources point out, both Hillary and Obama voted for the Secure Fence Act of 2006, which put up a 700 mile fence along the US-Mexican border. Politifact says that Hillary and Obama wanted a 700 mile fence but Trump wants a 1000 mile wall, so these are totally different. But really? Support a 700 mile fence, and you’re the champion of diversity and all that is right in the world; support a 1000 mile wall and there’s no possible explanation besides white nationalism?

...

10. Isn’t Trump anti-Semitic?

I feel like an attempt to avoid crying wolf might reserve that term for people who didn’t win an Israeli poll on what candidate would best represent Israel’s interests, or doesn’t have a child who converted to Judaism, or hasn’t won various awards from the American Jewish community for his contributions to Israel and American Judaism, or wasn’t the grand marshal of a Salute To Israel Parade, or…

...

14. Haven’t there been hundreds of incidents of Trump-related hate crimes?

This isn’t a criticism of Trump per se (he’s demanded that his supporters avoid hate crimes), but it seems relevant to the general tenor of the campaign.

SPLC said they have 300 such hate incidents, although their definition of “hate incident” includes things like “someone overheard a racist comment in someone else’s private conversation, then challenged them about it and got laughed at”. Let’s take that number at face value (though see here)

If 47% of America supports Trump (= the percent of vote he got extrapolated to assume non-voters feel the same way), there are 150,000,000 Trump supporters. That means there has been one hate incident per 500,000 Trump supporters.

But aren’t there probably lots of incidents that haven’t been reported to SLPC? Maybe. Maybe there’s two unreported attacks for every reported one, which means that the total is one per 150,000 Trump supporters. Or maybe there are ten unreported attacks for every reported one, which means that the total is one per 45,000 Trump supporters. Since nobody has any idea about this, it seems weird to draw conclusions from it.

Oh, also, I looked on right-wing sites to see if there are complaints of harassment and attacks by Hillary supporters, and there are. Among the stories I was able to confirm on moderately trustworthy news sites that had investigated them somewhat (a higher standard than the SLPC holds their reports to) are ones about how Hillary supporters have beaten up people for wearing Trump hats, screamed encouragement as a mob beat up a man who they thought voted Trump, knocked over elderly people, beaten up a high school girl for supporting Trump on Instagram, defaced monuments with graffiti saying “DIE WHITES DIE”, advocated raping Melania Trump, kicked a black homeless woman who was holding a Trump sign, attacked a pregnant woman stuck in her car, with a baseball bat, screamed at children who vote Trump in a mock school election, etc, etc, etc.

But please, keep talking about how somebody finding a swastika scrawled in a school bathroom means that every single Trump supporter is scum and Trump’s whole campaign was based on hatred.

...

Whatever bizarre, divisive, ill-advised, and revolting thing you’re about to mention, the answer is probably yes.

This is equally true on race-related and non-race-related issues. People ask “How could Trump believe the wacky conspiracy theory that Obama was born in Kenya, if he wasn’t racist?” I don’t know. How could Trump believe the wacky conspiracy theory that vaccines cause autism? How could Trump believe the wacky conspiracy theory that the Clintons killed Vince Foster? How could Trump believe the wacky conspiracy theory that Ted Cruz’s father shot JFK?

Trump will apparently believe anything for any reason, especially about his political opponents. If Clinton had been black but Obama white, we’d be hearing that the Vince Foster conspiracy theory proves Trump’s bigotry, and the birtherism was just harmless wackiness.

Likewise, how could Trump insult a Mexican judge just for being Mexican? I don’t know. How could Trump insult a disabled reporter just for being disabled? How could Trump insult John McCain just for being a beloved war hero? Every single person who’s opposed him, Trump has insulted in various offensive ways, including 140 separate incidents of him calling someone “dopey” or “dummy” on Twitter, and you expect him to hold his mouth just because the guy is a Mexican?

I don’t think people appreciate how weird this guy is. His weird way of speaking. His catchphrases like “haters and losers!” or “Sad!”. His tendency to avoid perfectly reasonable questions in favor of meandering tangents about Mar-a-Lago. The ability to bait him into saying basically anything just by telling him people who don’t like him think he shouldn’t.

If you insist that Trump would have to be racist to say or do whatever awful thing he just said or did, you are giving him too much credit. Trump is just randomly and bizarrely terrible. Sometimes his random and bizarre terribleness is about white people, and then we laugh it off. Sometimes it’s about minorities, and then we interpret it as racism.

...

Why am I harping on this?

I work in mental health. So far I have had two patients express Trump-related suicidal ideation. One of them ended up in the emergency room, although luckily both of them are now safe and well. I have heard secondhand of several more.

Like Snopes, I am not sure if the reports of eight transgender people committing suicide due to the election results are true or false. But if they’re true, it seems really relevant that Trump denounced North Carolina’s anti-transgender bathroom law, and proudly proclaimed he would let Caitlyn Jenner use whatever bathroom she wanted in Trump Tower, making him by far the most pro-transgender Republican president in history.

I notice news articles like Vox: Donald Trump’s Win Tells People Of Color They Aren’t Welcome In America. Or Salon’s If Trump Wins, Say Goodbye To Your Black Friends. MSN: Women Fear For Their Lives After Trump Victory.

Vox writes about the five-year-old child who asks “Is Donald Trump a bad person? Because I heard that if he becomes president, all the black and brown people have to leave and we’re going to become slaves.” The Star writes about a therapist called in for emergency counseling to help Muslim kids who think Trump is going to kill them. I have patients who are afraid to leave their homes.

Listen. Trump is going to be approximately as racist as every other American president. Maybe I’m wrong and he’ll be a bit more. Maybe he’ll surprise us and be a bit less. But most likely he’ll be about as racist as Ronald Reagan, who employed Holocaust denier Pat Buchanan as a senior advisor. Or about as racist as George Bush with his famous Willie Horton ad. Or about as racist as Bill “superpredator” Clinton, who took a photo op in front of a group of chained black men in the birthplace of the KKK. Or about as racist as Bush “doesn’t care about black people!” 43. He’ll have some scandals, people who want to see them as racist will see them as racist, people who don’t will dismiss them as meaningless, and nobody will end up in death camps.


An Urgent Appeal to Americans About the US Election

AN URGENT APPEAR TO AMERICAN VOTERS FROM A US CITIZEN LIVING ABROAD

This is no ordinary election. After a troubling campaign unique in American history, the United States now faces the most momentous election of any of our lifetimes. The specter of Doom, as the Firesign Theatre once said, is raising its shrouded head -- in agony! As I know, living abroad as I do, the whole world is watching.

Ordinarily, I would never presume to tell my fellow citizens how to vote, but this year I feel I have no choice. I implore you -- I beg you -- to vote for whomever you want, or not at all.

You have concerns different from my own. Many of you probably don't care how the US is perceived abroad, because it makes zero difference to your everyday lives. There is no reason you should pay any attention to the opinion of one guy somewhere. You have your own reasons for voting the way
you did, or will. Most studies have shown that attempts to persuade people about things they already know about and have made up their mind about are useless, and often counterproductive. Besides, given the segregated filter-bubbles we all seem to live in now, there are probably only a tiny few people in my online circle who aren't voting the way I did.

So to grab you by the collar and harangue you would be nothing more than virtue signalling on my part: and attempt to loudly broadcast to the world not only that I Am Right and that I Know More than You,
but also that I Care About the Fate of Humanity. That I stay awake at night, tormented by anguished compassion, taking the burdens of the world, Atlas-like, upon my all-too-puny shoulders.

Meh. Vote if ya feel like it. You probably should vote, I guess, but if you don't feel like it, I'm not gonna jump down your throat. After all, your vote probably won't make a difference.

No matter who wins, government policy won't change much. The government will be gridlocked, Presidential power is still limited, and bureaucratic inertia has always been a force thousands of times stronger than politics. And that's a good thing, too.

Have a fun election day, America!


Germans Ignore Dying Man in Bank Despite Law Telling them to Help

Inore

The police in Essen reported (g) on a case in which an 82-year-old man collapsed to the floor of a branch bank in Essen, Germany in early October. At least four people were seen on security cam footage simply walking over his body without offering help or calling an ambulance. The man was eventually taken to a hospital, where he later died. The police are now investigating these persons for failure to render assistance, which is a crime under German law. Section 323c of the Penal Code:

Whosoever does not render assistance during accidents or a common danger or emergency although it is necessary and can be expected of him under the circumstances, particularly if it is possible without substantial danger to himself and without violation of other important duties shall be liable to imprisonment not exceeding one year or a fine.

In common-law countries such as the United States, the law imposes no duty to rescue strangers. As long as you didn't cause the emergency and the bear no special duty to the victim (as a guest or relative, etc.), the law will not punish you for ignoring him. There are a number of justifications for this doctrine, both theoretical (you can't be held responsible for injuries you didn't cause), and moral (the state should trust its citizens to do the right thing uncoerced).

This is one of the most obvious differences between common-law systems and civil-law systems such as the ones in most European countries. When I was teaching, many of my German students professed to find the common-law doctrine shocking or cold-hearted. It's not hard to detect the attitude behind this: the still, small voice in every German's head which whispers: "Despite the recent unpleasantness, Germany is a more decent, moral, caring and sensitive society than all others in the world, except maybe Sweden, but at any rate definitely more caring and 'social' than the selfish, dog-eat-dog United States."

Am deutschen Wesen...*

The students assumed that the existence of a law requiring help made Germany a more caring place, and that it affected Germans' behavior toward one another. This is another typical German attitude -- the notion that once a law has been passed to address a problem, the problem no longer exists.

Alas, I had to shatter their precious smugness idealism.

Studies show that 'duty to rescue' laws have no effect on whether people rescue their fellow humans in need. In the United States, where the law says you don't have to try to rescue people, a huge majority does exactly that, often risking their own lives:

As Table 3 reflects, there are approximately 1003 non-risky rescues (cell 2) and 263 risky rescues (cell 4) per year in the United States. Thus, verifiable rescues outnumber non-rescues by almost 800:1. If one loosens the standard for rescue only slightly, to encompass instances of rescue that were reported in a newspaper but did not pass initial screening by the Carnegie Hero Trust Commission, the ratio increases to approximately 1400:1.

Approximately 100 Americans lose their lives every year as a result of attempting to rescue someone else. Thus, even in the absence of a duty to rescue, deaths among rescuers outnumber deaths attributable to non-rescue by approximately 60:1 every year. Stated differently, there are six times as many rescuer deaths every year as there are deaths attributable to non-rescue in the past ten years combined.

Finally, injury is common among rescuers. Aggregate figures are unavailable, since most of the data sources did not separately track injury, but in those that did and as detailed below, a substantial percentage of risky-rescuers and a significant number of non-risky rescuers were injured – sometimes quite severely.

This isn't to say that Germans are more cold-hearted than Americans. Why, just five days ago, a staff member on a German Rhine cruise ship jumped into the cold water to rescue a woman who had fallen off a bridge into the Rhine (g).

The point is first, that law on the books, as usual, has little to do with what happens in the real world. Second, that laws drafted by tiny commissions staffed by elites (such as law professors) and then passed word-for-word by the national legislature do not necessarily reflect "the values of our civilization".

Points worth remembering!

Continue reading "Germans Ignore Dying Man in Bank Despite Law Telling them to Help" »


America: Politically Correct, and Politically Free

FT_16.10.15_Freedom-of-Expression

Pew research looks at the level of support for free speech across the globe and finds that it's highest (according to their measure) in the U.S.:

Enshrined in the Bill of Rights, free expression is a bedrock American principle, and Americans tend to express stronger support for free expression than many others around the world. A 38-nation Pew Research Center survey conducted in 2015 found that Americans were among the most supportive of free speech, freedom of the press and the right to use the internet without government censorship.

Moreover, Americans are much more tolerant of offensive speech than people in other nations. For instance, 77% in the U.S. support the right of others to make statements that are offensive to their own religious beliefs, the highest percentage among the nations in the study. Fully 67% think people should be allowed to make public statements that are offensive to minority groups, again the highest percentage in the poll. And the U.S. was one of only three nations where at least half endorse the right to sexually explicit speech. Americans don’t necessarily like offensive speech more than others, but they are much less inclined to outlaw it.

To get a summary measure of support for free expression around the world, we built an index based on five survey questions about free speech and three about free media. Using this measure, Americans emerge as the biggest supporters of free expression among the 38 nations studied. And unlike so many other issues in the U.S., wide open, free-ranging public debate has an appeal across party lines. There are relatively few differences between Democrats, Republicans and independents when it comes to free expression.

However, there are some important generational differences on this issue. For instance, 40% of U.S. Millennials think the government should be able to prevent people from making statements that are offensive to minority groups, compared with 27% of those in Generation X, 24% of Baby Boomers, and just 12% of Silent Generation Americans. Nonwhite respondents (38%) are also more likely to hold this view than whites (23%).

Apart from debates over whether offensive language should be legal, most Americans believe people are just too easily offended nowadays. In a 2016 Pew Research Center survey, 59% agreed with the statement “Too many people are easily offended these days over the language that others use,” while only 39% said “people need to be more careful about the language they use to avoid offending people with different backgrounds.”

Yet another stereotype of American society down the drain. Germans consider America to be the homeland of political correctness, the dastardly censorship of controversial views which is spreading like a virus into German society. This impression, like so many others, is created by selective German news coverage. Most Germans still unthinkingly rely on the mainstream media to decide what it's important to know about the United States.

Which they do, according to their own narrow, nearly-identical criteria, determined by the tastes and preferences of educated urban haute-bourgeois Germans. And they have decided, for reasons which would be interesting to know, that Americans are afflicted by the worst case of political correctness on the globe. Journos pounce on every story showing the excesses of politically-correct scolding in the United States. 

Yet what Pew shows us is that Americans likely have the highest tolerance for offensive speech of anyone in the world.

The problem here is one of definition. Political correctness as a tendency of private persons in civil society to denounce someone's remarks, or Halloween costume, or state flag as offensive. There is a lot of that sort of thing in the United States. And there is certainly some chilling effect on college campuses, which are full of people whose job is essentially to have opinions.

Yet in another way, America is much more free than all other nations on earth. The Constitution and American culture prevent the government from punishing offensive speech to a greater degree than anywhere else. In America, the government cannot pre-emptively stop a newspaper from printing offensive speech, or stolen secret documents. Publications generally cannot be seized after they're printed. Ordinary citizens may advocate violence, deny the Holocaust, use ethnic slurs, and espouse racism without fear of government intervention. (As long as these are words alone -- you can still be punished for actions such as workplace discrimination or bias-motivated hate crimes). You can neither be punished by the government nor sued for money by a private citizen for an insult, not matter how vicious or crude it is. You can protest at the funeral of a soldier with signs which insult "fags" and say "Thank God for Dead Soldiers".

God-hates-fags

In almost all other countries on earth, any one of these actions or statements could expose you to criminal prosecution by the government or an order to compensate victims with money damages in civil court. Not in the U.S. And, as the Pew survey shows, the majority of Americans approve of this state of affairs. Even millennials, the most PC group of them all, are not clamoring for restrictions on free speech.

So in the United States, if you say something quite rude and non-PC, you may be castigated on Twitter and denounced by your audience.

If you say the same thing in many other countries, you could be hit with a government-imposed fine or civil damages verdict. Perhaps even a prison sentence.

The amount of politically-correct scolding in a country has no relation to the level of genuine freedom of expression. After all, politically-correct scolding is freedom of expression. The U.S. is a hotbed both of political correctness and of free speech.


After Hillary Wins

For those of you interested in the current election, Kevin Drum maps out what will happen after Clinton wins in November, which is now all but a certainty:

  • The Republican Party will completely disown and repudiate Donald Trump....
  • With few other choices around, Paul Ryan becomes the undisputed leader of the Republican Party.
  • After the election Republicans will do their usual "autopsy," and it will say the usual thing: Demographic trends are working against them, and they have to reach out to non-white, non-male voters if they don't want to fade slowly into irrelevance. In the last 25 years, they've won two presidential elections by the barest hair's breadth and lost the other five—and this is only going to get worse in the future.
  • Hillary Clinton will remain the pragmatic dealmaker she is. And despite the current bucketloads of anti-Hillary red meat that Republicans are tossing around right now, most of them trust her to deal honestly when it comes to political bargains.

This means that the next four years depend entirely on Paul Ryan. So what will he do? I maintain that this is a very open, very interesting question.

I've gotten some pushback lately for a couple of posts where I've gone soft on Ryan. But here's the thing: when it comes to Ryan's budget policies, I have nothing but contempt for him. Here's a typical post of mine from a few years ago, and there are plenty more just like it. But it's foolish to insist that simply because someone disagrees with my politics they're either stupid or irredeemably evil. Ryan is neither.

So what will Ryan do? One possibility, of course, is that he'll take the simplest route: endless obstruction, just like 2009. Republicans may be a divided party, but one thing they all agree on is that they hate Hillary Clinton and they want to prevent her from doing anything.

But there's another possibility. Ryan is not a racial fearmonger. He's always been open to immigration reform. He's consistently shown genuine disgust for Donald Trump. He's been open to making low-key deals in the past. He's smart enough to know precisely the depth of the demographic hole Republicans are in. And despite being conservative himself, he may well realize that the GOP simply can't stay in thrall to the tea party caucus forever if it wants to survive....

It's also possible that he wants to run for president in 2020, and if that's the case he'll do better if he has some real accomplishments to show over the next four years. Running on a platform of scorched-earth obstruction might get the tea partiers excited, but that's not enough to win the presidency.

So maybe Ryan decides that now is the time to try to reform the Republican Party. Once he wins the speakership again, he makes clear to the tea partiers that they're finished as power brokers: he's going to pass bills even if it means depending on Democratic support to do it. He reaches out to women and minorities. He passes immigration reform. He makes sure that budgets get passed and we don't default on the national debt. He works behind the scenes with Hillary Clinton in standard horsetrading mode: she gets some things she wants, but only in return for some things conservatives want.

This could go a long way toward making him the next president of the United States. If he plays his cards right, Clinton might suffer with her base for selling them out on some of the deals she makes. Ryan will get the tea partiers under control and have some accomplishments to run on. He'll soften the nonwhite disgust with the party enough to pick up some minority votes. Maybe the economy helps him out by going soft in 2019. And he's already got good looks, youth, and an agreeable speaking style going for him.

So which Paul Ryan will we get in 2017? The movement conservative who breathes fire and insists that Hillary Clinton will never get one red cent for any of her satanic priorities? Or a conservative but realistic leader who's willing to make deals as a way of bringing the Republican Party back from the brink of destruction that Donald Trump has led them to?

The one thing Drum leaves out is that if Ryan takes the pragmatic approach, the Republican party could split into the Chamber of Commerce and Trump/Tea Party factions. The odds against this are still very heavy, since everyone knows that splinter parties quickly fade into irrelevance in America's two-party, first-past-the-post system.

But if each splinter party believes it has a genuine chance of winning (i.e., taking over a 'reconstituted' Republic Party after the civil war), they might just do it. And if that happens, all bets are off. There would surely be a push to change the American political system to make it more friendly to smaller parties.

However, this would be considered a radical change. Further, the American constitutional system would have to be changed to create a genuine Parliamentary system, and there's zero support for that. But the US system could easily be made more flexible right now, as 2004 candidate Howard Dean explained in a recent New York Times editorial:

It’s as easy as 1-2-3. Voters have the option to rank the candidates from first to last, and any candidate with a majority of first choices wins, just as in any other election. But if no candidate has a majority, you hold an “instant runoff” tally in order to compare the top two candidates head to head. Candidates in last place are eliminated, and their backers’ votes are counted for their next choice. When it’s down to two, the winner earns a majority of the vote.

.... Ranked-choice voting represents the latter — and better — approach. Voters can support their favorites while still voting effectively against their least favorite. Having more competition encourages better dialogue on issues. Civility is substantially improved. Needing to reach out to more voters leads candidates to reduce personal attacks and govern more inclusively.

Some critics suggest it’s a crutch for independents and minor parties because they can compete without being spoilers and may earn invitations to more debates. Others suggest it’s a trick to make it harder for third parties to win. But the reality is that everyone would need to accept the challenge of being responsive to more voters. That’s a challenge that many major party backers like me are eager to embrace.

This would enable a kind of strategic voting in American elections. It would also foster a sort of coalition-building process during the election, as candidates who can't get a majority of first-place votes reach out to other parties for second-place votes. Whether this would genuinely improve civility remains to be seen. I actually think it might, and would support it.


No, It Can't Happen Here: America's Political Institutions Are Much Stronger than Trump

 

This video is making the rounds recently, mostly accompanied by a sinister warning that 'it could happen here', i.e. in the U.S. The idea is that if Americans elect Donald Trump, it could set in motion a chain of events that could transform America into a dictatorship.

Breathe easy, world. It won't happen. If America elects Trump, it will simply have made a dim narcissist demagogue President. Nothing more, nothing less. Trump will not transform the structure of American democracy because he can't. No President can, no President ever has, and no President ever will. It's that simple.

The American style of Presidential democracy, in contrast to the parliamentary style which is much more popular world-wide, has a number of disadvantages. Elections only happen every two years. The President may, and often does, lose his support in the Congress, leading to political gridlock which stymies new policy initiatives. The first-past-the-post electoral system means there are only two viable political parties. Third parties come and go, but never get a lasting foothold.

But there are advantages to the system as well. The number one advantage, by far, is its phenomenal stability. The USA has had the same system of government for the past 230 years, placing it in an extremely tiny, rarefied group of countries which have ever, at any time in history, kept the same basic governing structure this long. Even the Civil War did not interrupt the consistent election of new Congresses every 2 years.

One of the reasons for this stability is separation of powers, which strictly limits what the President can do. Here are some of the things the American President cannot do which heads of states in other countries often can:

  1.     Dissolve Congress and call a snap election.
  2.     Unilaterally declare a state of emergency.
  3.     Fire or otherwise punish or sanction members of the Supreme Court.
  4.     Unilaterally change the number of judges on the Supreme Court.
  5.     Declare war without Congress' consent (although Congress has relinquished a lot of this authority).
  6.     Change the Constitution, even if he has the support of 70% of all members of Congress.
  7.     Interfere with areas in which individual US states have exclusive legislative competence, such as family law, contract law, tort law, and dozens of other areas.
  8.     Name or replace governors of states.
  9.     Remove anyone from any political party, including his own.

Democratically-elected leaders have sometimes been able to transform their countries into authoritarian systems, and sometimes into totalitarian ones. But all of those countries differed from the United States in several critical ways. First, they usually gave the head of state at least some of the 9 powers listed above, or they gave the head of state the means to acquire some of these 9 powers. 

But the differences go even deeper:

First, their political institutions in these countries were much less robust, popular, and well-anchored. No matter how unpopular an American Congress is, Americans have never, and will never, support abolishing the institution itself. The same goes for the Supreme Court and the Presidency, for that matter. A President who suggested abolishing any of these institutions "in the name of national solidarity during a time of crisis" would be laughed at, or declared insane.

Second, the political institutions are designed for stability. Stability is one of the side-effects of the 9 limits on Presidential power listed above. There is simply no way the President can ever stop the Supreme Court from reviewing laws and declaring them unconstitutional. Now, the President can direct the executive branch to consciously and openly decline to enforce certain Supreme Court rulings, and this has happened on occasion in American history. But it's considered a major and controversial breach of trust, and hasn't happened in decades. And believe me, the US Supreme Court has handed down some extremely unpopular rulings that have gone directly against the President's wishes, such as the 2010 ruling about corporate campaign contributions, which Obama criticized in front of members of the Court.

Third, federalism. The USA is among the top 2 or 3 most federalist countries in history. Individual US states have a huge amount of authority to determine their own policies. They can and do all have their own, individual governments, including a governor, state legislature, state constitution, and state supreme court. They have their own criminal laws, family laws, tort laws, tax laws, inheritance laws, contract laws, commercial codes, hunting and fishing regulations, road traffic laws, drug laws, environmental laws, workplace-safety laws -- the list goes on and on. There is a lot of federal government legislation in some of these areas, but states still get to have their own policies, and they use this privilege with gusto. States could and would certainly rebel against any attempt to use illegitimate powers to force the entire country to obey a single unified policy handed down by an authoritarian President run amok. The Second Amendment fans among you might also point out that if the President tried to crush resistance by military force, he would face a well-armed and no doubt rebellious population.

So breathe easy, World. A Trump Presidency would be most regrettable, but the US has already had one dim, reckless, foolish President this millennium. He did a lot of damage which we're all still living with, but he didn't usher in Armageddon or AmeriKKKa, and neither will Trump.