Temple Law Faculty Blog Posts

A Conference on the Role of Opinio Juris in Customary International Law

Duncan Hollis — Wed, 19 Jun 2013 15:53:25 +0000

by Duncan Hollis

I usually defer to An and Jessica’s (excellent!) work in flagging international law-related conferences and events. But, I wanted to call particular attention to a conference I just learned about that Duke Law School is co-hosting with the University of Geneva next month at the Duke-Geneva Institute of Transnational Law on the Role of Opinio Juris in Customary International Law. The event is well located (and timed) given the International Law Commission’s current project on customary international law. But unlike many conferences, where all those not in attendance can see is a schedule of attendees and/or paper topics, the Duke-Geneva schedule generously includes links to the papers themselves. I’m working my way through them for my own research on the functions interpretation serves in international law. And although I’d note they seem to be mostly of the short, discussion paper variety, if the first one by Curt Bradley is anything to go by (he identifies and critiques existing paradoxes in definitions of opinio juris and offers a new descriptive and normative thesis for identifying CIL based on state preferences), these papers will be well worth reading. I’m also interested to here from anyone who attends the conference itself what reception these papers receive, and in particular, what the various ILC members who will be commenting on several of them have to say about customary international law itself.

And Onto More Important Matters . . .

David Post — Wed, 19 Jun 2013 15:31:07 +0000

(David Post)

My fears that we were facing a summer without top-class futbol have proven unfounded. The Confederations Cup tournament, now underway in Brazil, has been a nice reminder that in just over a year or so, there will come a moment when 30 or 40 percent of the world’s population will be simultaneously engaged in the same activity – watching the World Cup final. (And you heard it here first: Spain v. Argentina.) If there is a wisdom of crowds, surely this is telling us something about the species, no?

The Confederations Cup is a weird and interesting tournament. It’s held every 4 years, one year prior to the World Cup, in the host country – it serves as a kind of tuneup for the Big Show, both in terms of seeing whether the logistics (tickets, transport, field conditions, etc.) are all working well, and also to give the national team a first-class workout.

[This is a strange feature of the World Cup qualifying process. The host team -- Brazil, in this case - gets the home field advantage in the tournament, of course, which, in soccer, appears to be an even-more-prevalent phenomenon than in other major sports. But they suffer a serious disadvantage as well: Because they don't have to qualify for the tournament (they're given an automatic spot as the host), they don't have to go through a hard-fought qualifying campaign, a grueling series of high-pressure games that all of the rest of the world's countries are now going through. It can make it very, very difficult to forge a team -- or even to figure out who should be on the team -- when it hasn't played in any tough matches with the pressure turned up. So the Confederations Cup is designed to alleviate that problem a bit.]

It’s the host country plus the winners of the individual continent-wide national team tournaments: first and second place from Europe (Spain and Italy), plus the winners of N. America/Caribbean (Mexico), S. America (Uruguay), Africa (Nigeria), Asia (Japan), and Oceania (Tahiti — Tahiti!!).

It sets up, this year, some pretty tasty matchups. Sometimes, the teams that show up for tournaments like this are sub-par –a coach unwilling to risk injury to players in a tournament that doesn’t, after all, really “mean” anything (unlike the WC qualifiers, which matter a lot). But for various reasons, that didn’t happen this year – Brazil, Italy, Mexico, Uruguay, and Japan defiinitely have their first teams on hand, and from the action thus far (the first-round games are still available, I think, at ESPN3.com) it looks like they’re all playing as though they mean it. The Brazilians have a lot to prove, too – they’re in a bit of a transition at the moment from old to young, and the pressure on them to perform well before the home crowds is beyond imagining.

And then there’s Spain. What Spain has been doing to world football over the past six years or so is truly breathtaking. They have not only won the last 3 major international tournaments — the Euro Championship in 2008, the 2010 World Cup, and the Euros again in 2012 — they have done so by obliterating their opponents, outscoring them 32-6 (!!) over the three tournaments, a ridiculous goal differential that has never been equaled at this level (not to mention humiliating Italy in the Euro 2012 final 4-0, the largest margin of victory in a major international final for over 75 years). They’ve brought a top-flight squad to Brazil this year – Spain has the luxury of being able to leave at home world-class talent (David Villa, Xabi Alonso) and still have world-class talent on the bench (Javi Martinez, Santi Cazorla, Fernando Torres) while fielding a fabulous team that goes out and demolishes a decent Uruguay squad. If you want to see what all the fuss over Spain and Spanish soccer is about, watch the replay of the Spain-Uruguay match – the words “utter domination” do not do it justice. Spain is completely transforming the way the game is played around the globe, in much the way that the Dutch did in the 70s and the Brazilians in the 50s and 60s, and it’s a joy to behold.

If all goes according to my plan, the semifinals will see Italy v Spain and Brazil v Uruguay, and a Spain-Brazil final — bring it on!

NSA leaks by Edward Snowden threaten constitutional self-government

Jan C. Ting — Tue, 18 Jun 2013 19:52:31 +0000

Since its earliest days, the United States of America has been a great experiment testing whether a free people are capable of governing themselves through law without a king or dictator. King George III of England was the first of a long line of skeptics extending to this day, a line which includes the secessionists who triggered the American Civil War, and most recently Edward Snowden, the NSA leaker.

As all Americans are supposed to learn in school, we exercise our right to self-government through our Constitution which establishes the three branches of our government: executive, legislative, and judicial. Many difficult political questions must be resolved within that system of government. And if we are personally unhappy with any result, we always have a remedy, electing different leaders to the executive and legislative branches who appoint and confirm the members of the judicial branch.

The most difficult political question for 19th century Americans was the future of slavery. Because a minority of Americans were unhappy with the results of the 1860 presidential election of Abraham Lincoln, secessionists joined the ranks of those believing self-government under the American Constitution to be impossible. Americans still believing in self-government under the Constitution were forced, at enormous personal cost, to deal with those secessionists.

One of the most difficult political questions for 21st century Americans is the proper balance between liberty and national security. With the 1978 enactment of the Foreign Intelligence Surveillance Act, and the frequent amendments to that act, including the USA PATRIOT Act of 2001, and later amendments to that act, Congress has authorized the President to act to protect national security through covert action, but where the rights of United States persons are concerned, only with the authorization of the Foreign Intelligence Surveillance Court.

That court has been described as a "secret" court because as authorized by law, its proceedings are not public, and its rulings, with a few exceptions, are not published. But all its past and present members have been and are named and sitting Article III federal judges, appointed like all federal judges by the President, and confirmed for life like all federal judges by the U.S. Senate.

So whatever rulings have been issued by that court, upon the request of the executive branch, have the institutional support and authorization of all three branches of our federal government. When former National Security Agency technician Edward Snowden leaks secret orders from that court, he's declaring that a 29-year old high school dropout lacks belief in the capability of the American people to govern themselves through the Constitution and law.

Perhaps if he had completed his high school education, Snowden might have learned about the checks and balances inherent in our three branches of government and the history of our continuing effort to govern ourselves and decide difficult political questions under the Constitution. A better educated person with his concerns might have discussed and shared them with the members and staff of the congressional intelligence committees, who have the same obligation to protect classified information as employees of the National Security Agency.

But by his act of unilateral grandiosity in publicizing classified information, Snowden is declaring his disbelief in our ability to govern ourselves under the Constitution and law. Those of us who still believe in our ability to govern ourselves under the Constitution and law will have to deal with Mr. Snowden.

I'm gratified to see that in every poll the American people continue to have faith that we are properly engaged in self-government under the Constitution and law on this admittedly difficult issue of liberty and national security.

Overdose Prevention Marches On

Scott Burris — Fri, 14 Jun 2013 17:52:00 +0000

By Scott Burris Training lay people to reverse opiate overdose with naloxone continues to gain steam in the evidence base, popular media and legislatures. Here’s a great blog post the covers recent developments and links to a new film. The … Continue reading →

The Humble Justice Scalia

Dave Hoffman — Thu, 13 Jun 2013 14:41:13 +0000

Justice Scalia isn’t often justly lauded for his humility. Today’s opinion in Molecular Pathology v. Myriad (the gene patenting case) provides an opportunity. His concurrence reads, in its entirety:

“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am un-able to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is [...]

Sherlock and the Law

Dave Hoffman — Tue, 11 Jun 2013 15:45:27 +0000

Like many, I’ve been watching the BBC’s Sherlock, a modern re-telling of Arthur Conan Doyle’s detective series. I’m only mostly finished the first series, but thus far it has been striking how little role law (and its constraints) play in the narrative. Basically, although Sherlock is a “consulting detective” (and under US rules, certainly an agent of the State), he routinely behaves in unlawful ways. He often breaks into dwellings (and cellphones, and cars) to get information; he is resistant to writing up his methods (and consequently, a defense attorney would not be able to effectively examine them); he browbeats suspects and witnesses; etc. In the States, quite obviously, all of the confessions produced by his methods would be thrown out as poisoned fruit.

There’s nothing [...]

Where is Paul Krugman on immigration?

Jan C. Ting — Tue, 11 Jun 2013 04:20:13 +0000

Paul Krugman is a Nobel-prize winning economist and a prolific writer, both on economic theory and as a public intellectual. Through his regular column in the New York Times and in his blog which he calls "The Conscience of a Liberal", he has become the most widely read, respected, and dismissed commentator in the United States, and perhaps in the world.

In his column and blog, he has condemned the rise of inequality in the United States and championed the health insurance reforms of the Affordable Care Act as imperfect but necessary and fixable. He has called for government intervention, both in the United States and in Europe, to stimulate economies in recession and to provide jobs for the unemployed. He has repeatedly condemned as needless the continuing unemployment crisis in the United States, and the disinterest of U.S. policy makers in doing anything about it.

In his most recent column, he noted the latest report that two million fewer Americans are employed now than six years ago, even though the population has continued to grow, that the rate of unemployment in May remained high at 7.6% , and that four million Americans have been unemployed now for more than six months. Nonetheless most political insiders considered it "a pretty good jobs report."

Given his concerns, I think it curious that Krugman has not offered his views on the biggest political issue of the summer, the proposed immigration reform that would roughly triple immigration into the U.S. over the next decade, while providing amnesty and entry into the legal U.S. labor market for 11 million illegal immigrants.

Here's what I think Paul Krugman thinks about the immigration expansion and amnesty: Krugman has to believe and recognize that allowing more poor immigrants into the U.S. will increase economic inequality. He has to believe and recognize that allowing so many more immigrants into the legal U.S. labor market will make the plight of unemployed and underemployed Americans even worse than it is now. And he has to believe and recognize that the amnesty will attract more illegal immigration into the U.S. in the future, as was the case after the 1986 amnesty giving rise to the current "immigration crisis".

He also has to believe and recognize that tripling the amount of future immigration and legalizing the millions of illegal immigrants while so many Americans are unemployed will doom the Affordable Care Act to failure and financial collapse.

If Krugman believes these things about the proposed immigration expansion and amnesty bill, why doesn't he say what he thinks in his column? I think he's afraid of venturing outside the liberal intellectual and cultural bubble in which he lives and prospers. What would all his admirers at the New York Times think? Actually weighing in on the most controversial political fight of the summer seems riskier than again condemning the deficit hawks and "Very Serious People" who care nothing for the tragedy of the unemployed.

Does that sound about right, Paul? If I've misrepresented your thinking in any way, you have the means to make your actual views clear, and I hope you will.

NSA leaker Edward Snowden is a criminal, not a hero, and should be extradited and prosecuted.

Jan C. Ting — Mon, 10 Jun 2013 03:11:54 +0000

Edward Snowden, a 29-year old high school dropout and employee of a contractor working for the National Security Agency, has claimed credit for releasing secret and classified documents, including a court order authorizing the collection of telephone records, and the revelation of a program called Prism to collect internet data on foreigners from service providers like Facebook and Google. He has fled to Hong Kong, now a semi-autonomous part of China, from which he has granted interviews.

No government action disclosed by Snowden's leaks appears to be illegal. Government efforts to prevent terrorism after the 9/11 terrorist attacks by monitoring "chatter" were widely but only generally known. Snowden's disclosure reveals the details of the U.S. government's efforts, wasting enormous amounts of taxpayer dollars and human effort in trying to create a system for gathering information. By allowing terrorists to know such details, the disclosure will enable them to make informed efforts at avoiding such surveillance.

The fact of a federal court order authorizing surveillance practices is evidence of government efforts to comply with the requirements of the Foreign Intelligence Surveillance Act of 1978, which predated the 9/11 attacks by nearly a quarter century. Trying to strike a balance between liberty and security was the reason for the 1978 act which created the Foreign Intelligence Surveillance Court which issued the secret but now leaked order. All judges who serve on that court are regular Article 3 federal judges appointed by the President and confirmed by the Senate.

Congress has often amended the FISA statute to fine-tune whether, when, and how the U.S. government can engage in surveillance to try to protect Americans from foreign threats. Federal judges make that determination on a case by case basis, not individual leakers in the federal bureaucracy.

The practice of obtaining the records, but not the content, of telephone calls pursuant to court order is standard practice not only in foreign intelligence surveillance, but also in domestic criminal prosecution. The internet presents new issues and challenges, but federal judges are the right persons to decide how existing legal principles apply to new facts and technology. Congress provides regular and informed oversight for all intelligence-gathering practices, and can amend the Foreign Intelligence Surveillance Act at any time.

By unilaterally revealing secret but legal surveillance practices, Edward Snowden has increased the likelihood that terrorists will be successful in avoiding surveillance and committing acts of terrorism. The blood of future American victims will be on his hands.

The United States must apprehend and prosecute the NSA leaker to demonstrate that we are still a nation of laws.

Jobs disaster continues, but Congress debates increasing immigration?

Jan C. Ting — Sat, 08 Jun 2013 04:15:01 +0000

The most underreported news story of the current year and of President Obama's second term is the continuing jobs crisis, and the determination of both the President and the Congress to ignore it in trying to enact big increases in future immigration and an amnesty of 11 million or more immigrants illegally present.

The official unemployment rate for May actually ticked upward to 7.6% from 7.5% in April. The employment/population ratio has been flat, around a low 58.5% through the recession.

That's officially 12 million of our fellow Americans still looking but unable to find a job, which doesn't include millions of other Americans either underemployed or who have given up trying to find a job after years of unemployment.

Meanwhile, the U.S. Senate is beginning debate on the Schumer-Rubio so-called immigration reform that will more than triple the number of legal immigrants over the next decade to 33 million from current legal immigration of about 1 million each year, and will also increase the numbers of temporary workers allowed to enter and work.

The proposed bill will invite future immigrants to violate U.S. immigration law by providing amnesty to the estimated 11 million illegal immigrants already in the U.S. A similar amnesty was enacted in 1986 which had that effect.

Why is Congress ignoring the interests of suffering unemployed and underemployed Americans? There are two reasons: money and politics. Employers and business interests want the largest possible pool of labor to drive down their labor costs. They are actively lobbying (and making campaign contributions to) members of Congress to support the legislation to expand the labor pool.

Elected officials hope that a pathway to citizenship for more immigrants will lead to more votes for them and their party in the future. Democrats are hoping that immigrants will reward their efforts with a permanent majority. Some Republicans have been persuaded that the permanent majority for Democrats is likely to happen unless they, too, fall in line and support the bill in the hope of attracting a fraction of the future immigrant vote for Republicans.

While immigrant voters as a group are as politically divided as everyone else, it is true that Hispanic and Asian voters have been skewing Democratic in recent elections, which is the basis for the hope for a permanent Democratic majority. There's enough truth to that possibility to wonder how Republicans could believe they help themselves by joining Democrats to enact the Schumer-Rubio bill.

It's also true that no one feels the impact of competing with new immigrant labor more than the immigrants who arrived earlier. So speculation on how new voters will vote is just that, speculation.

Meanwhile, Sherry Lockhart, 53, of Enumclaw, Washington, is having her jobless benefits slashed as a result of federal spending cuts. She tells the New York Times, "I just feel I've done my best over the years, and I feel like I haven't failed the system. The system has failed me, and millions more."

Three endangered words: illegal, alien, and amnesty

Jan C. Ting — Thu, 30 May 2013 05:07:48 +0000

On April 2, 2013, the Associated Press announced amendments to its style book effectively banning the use of the word "illegal" to describe a person, as in "an illegal immigrant." This announcement was followed by similar pronouncements from other news sources including the New York Times, the Los Angeles Times, and the Denver Post.

Why should a useful and descriptive word be banished? My Webster's dictionary defines "illegal" as "not according to or authorized by law" and also "not sanctioned by official rules". Black's Law Dictionary, which is commonly used by lawyers and law students, actually defines an "illegal alien" as "An alien who enters a country at the wrong time or place, eludes an examination by officials, obtains entry by fraud, or enters into a sham marriage to evade immigration laws."

I regard these actions to banish "illegal" as a concerted effort to blur the distinction between legal immigrants and illegal immigrants, as if their immigration status and U.S. immigration law shouldn't matter at all. I see these actions as in direct support of the on-going effort to enact an amnesty for the estimated 11 million illegal immigrants in the United States, and to prevent the application of current U.S immigration law to them.

Perhaps encouraged by the successful banishment of the word "illegal", immigration lawyer Careen Shannon says we should also stop using the word "alien" to describe foreigners because that term is now associated with extraterrestrial aliens in science fiction literature and movies. Like provincial Americans might actually think foreigners in the U.S. come from other planets?

"Alien" is another useful and descriptive word that we should not abandon in pursuit of political correctness. Black's Law Dictionary defines "alien" as "A person who is not a citizen of a given country; a person not owing allegiance to a particular nation."

The current immigration statute of the United States expressly defines "alien" as meaning "any person not a citizen or national of the United States." The statute contains hundreds of references to "alien", so banishing the term from our law would be a major undertaking. We can't just substitute "non-citizen" for "alien" because there are non-citizen nationals of the United States, like the residents of American Samoa, who are neither citizens nor aliens.

Careen Shannon concludes, "Let's just call them people." Hey, if we're all just people without distinctions, who needs immigration laws?

Finally, the supporters of amnesty for illegal aliens in the U.S., like Florida U.S. Senator Marco Rubio, insist that we shouldn't call his proposal "amnesty", because, "Amnesty is the forgiveness of something." His bill is instead "comprehensive immigration reform" and "a pathway to citizenship" for the illegal. Right.

The last time the U.S. enacted a big amnesty for illegal aliens in the U.S., in 1986, Senator Rubio was a teenager in high school. At that time, everyone including the sponsors called it what it was, an amnesty. Black's Law Dictionary actually gives as an example for "amnesty": "the 1986 Immigration Reform and Control Act provided amnesty for undocumented aliens already present in the country".

Because the 1986 amnesty encouraged much greater illegal immigration to the U.S., causing the current demand for an even bigger amnesty, the current sponsors would prefer to somehow distinguish their proposal from the 1986 amnesty. But the current proposal is substantively indistinguishable from the 1986 amnesty, and certainly does provide "forgiveness of something."

The proponents and supporters of amnesty and increased immigration to the U.S. are trying to prevent the use of common descriptive terms to describe the substance of their proposal. If the American people understand the substance of so-called "comprehensive immigration reform", they will prevent their representatives in Congress from enacting it into law.

Jobs for Americans or Immigrants?

Jan C. Ting — Thu, 23 May 2013 16:15:26 +0000

Temple University hosted its annual Neighborhood Job Fair on Thursday, May 23. Over 65 employers participated, including many federal, state, and city agencies, along with many private companies including CBS Radio, Independence Blue Cross, Sheraton Hotel, Sugarhouse Casino, Target Department Store, and Verizon Wireless.

Thousands of job seekers packed Mitten Hall. And thousands more waited patiently in a long line, dressed to impress, holding folders of resumes. The line stretched from the front of Mitten Hall north up Broad Street to Beasley's Walk, then east and as far south as the Performing Arts Center and Barrack and Wachman Halls. Later arrivals were understandably discouraged by the long line.

The length of that line was stark testimony to the persistence of unemployment, not only in Philadelphia, but throughout the U.S., where the national rate of unemployment continues to hover just below 8%, which doesn't include discouraged job seekers who have given up trying. That most of those in line were African-American attests to the depths of unemployment in that community, still in excess of 13% nationally.

With that kind of high and continuing unemployment, why is Congress trying to grant amnesty to 11 million illegal immigrants, plus their families, and increase significantly the numbers of future immigrants? Won't most of those immigrants compete with unemployed Americans in the search for good jobs? Isn't it enough that we admit around a million legal immigrants every year, that we issue more green cards for legal immigration and a clear path to full citizenship than all the rest of the nations of the world combined?

The reality I believe is that both political parties have written off long-term unemployed American workers. Automation, robotics, and computerization will continue to erode the numbers of American jobs. Many employers prefer to hire the lowest-wage workers they can find, and prefer the work ethic and desperation of new immigrants to that of unemployed Americans. Organized labor which has suffered from declining membership and dues collection, looks to new immigrant labor as potential members and dues-payors.

What's the future for long-term unemployed and underemployed American workers? Food stamps. Food stamp enrollment in the U.S. has surged 70% since 2008, with 48 million Americans now receiving them, about 15% of the population. The cost of our Supplemental Nutrition Assistance Program (SNAP) is now $75 billion annually, about twice what it was in 2008.

Illegal immigrants are not yet eligible for food stamps. But so-called "comprehensive immigration reform" will expand eligibility and insure that all those numbers continue to go up. We are headed for a dystopian future that some futurists have called, "Blade Runner with food stamps." (This refers to the 1982 Sci-Fi movie "Blade Runner" by Ridley Scott, starring Harrison Ford.)

The alternative is to re-focus attention on the priority of jobs for Americans, including if necessary federally-funded jobs as were created during the Great Depression by alphabet agencies like the CCC, the WPA, and the TVA. A good first step would be the defeat in Congress of so-called "comprehensive immigration reform."

Why the IRS scandal is both not as bad, and also much worse, than it seems.

Jan C. Ting — Mon, 20 May 2013 03:03:17 +0000

If an advertising agency gets money from clients to produce television ads touting the clients' products, the advertising agency has income on which income taxes must be paid. But if the advertising agency is a non-profit organization operated "for the promotion of social welfare", then it doesn't have to pay income taxes under Section 501(c)(4) of the Internal Revenue Code.

But what if the non-profit is producing television or internet ads taking political positions in the months preceding an election? Someone has to decide whether an organization like that is more political than for the promotion of social welfare, which would disqualify it for the tax exemption. That difficult task has fallen on the Internal Revenue Service, the least loved agency of our federal government.

The Internal Revenue Service has admitted doing a terrible job in executing that function. In a ham-handed attempt to cope with dramatic increases in applications for 501(c)(4) status following the 2010 Supreme Court decision recognizing political spending as the constitutional equivalent of free speech, the IRS branch in charge of tax-exempt organizations attempted to screen out those applications requiring closer scrutiny by singling out those with "Tea Party" or "Patriot" or other indicators of conservative political intent in their names.

Those singled out organizations received detailed requests for additional information, and experienced prolonged inaction by the IRS to their applications. That the IRS branch in charge was experiencing an increased workload with no increase in resources is irrelevant. The use of political indicators to screen out applications for delay and closer scrutiny was clearly improper, and should have been reversed by IRS managers. And the failure to report the problem as soon as it was discovered up the line of command was a blatant violation of the first rule of the federal bureaucracy, "No surprises."

Two IRS managers have already lost their jobs, and it seems likely that others will, too, as Congress conducts hearings to determine who's at fault, and who bears the political responsibility. But the criminal prosecutions that some members of Congress are calling for seem unlikely and farfetched. This scandal is about bureaucratic screw-ups and inefficiency, not political manipulation of the IRS, which the American public has reason to fear.

As a law student in the 1970's, I studied tax law under Stanley Surrey, a former Assistant Secretary for Tax Policy under President Kennedy. Like most tax law professors at the time, Professor Surrey taught that our tax system had three basic requirements: It had to be fair, however we wanted to define that. It had to be easy to administer. And it had to actually raise the revenue required by the government.

When I began practicing, and then teaching, tax law, I felt that our tax system met those minimum requirements, and I even perceived some nobility in our tax system as representing the price to be paid for living in a free society. But over the years, I've become increasingly alienated from our tax system as perceptions of unfairness have increased, along with a dramatic increase in the complexity of the tax laws, and deficits have increased as the tax system fails to produce the revenue to meet government requirements.

The IRS was once an agency with a single mission, collecting the tax revenue owed by taxpayers under the Internal Revenue Code. But the IRS has become burdened with other non-revenue responsibilities, like distinguishing between social welfare and political organizations under Section 501(c)(4). The IRS is expected to develop the expertise to distinguish between different kinds of non-profit organizations, to identify which are political and which are not. The current scandal suggests that perhaps the IRS is not the right agency to do that. Maybe political organizations should be identified by another agency, like the Federal Election Commission?

The IRS has also been assigned by Congress with responsibility for spending programs, in the form of targeted tax credits. Instead of direct government spending on desired programs (spending is bad!), Congress prefers to disguise its spending through targeted tax credits (because tax cuts are good!), even though they amount to the same expenditure of federal revenue.

But the IRS ends up holding the bag for administering spending programs like the Earned Income Tax Credit directed at low-income taxpayers with children. And the IRS gets the blame for unpopular rulings it makes in the course of distributing the credits. It gets the blame if credits are delayed, or if credits are paid out to fraudulent claimants, which we are discovering now is common. Isn't there another agency which could better administer an anti-poverty program, perhaps the Department of Health and Human Services?

And guess which agency has been designated to enforce the Affordable Care Act, also known as Obamacare? The IRS is expected to assess and collect tax penalties for failures to comply with the myriad requirements of the new statute, and will no doubt be blamed for any sins of omission or commission in trying to execute its new responsibilities. Again, political motives will be attributed to its actions. Couldn't some other agency than the IRS do this?

So the current scandal over classification of 501(c)(4) organizations is just the tip of the iceberg which is our overburdened Internal Revenue Service, tasked with missions beyond its primary expertise. While I do not expect the immediate scandal over exempt organizations to be a big one, just wait. More and bigger scandals and controversies involving the IRS are just around the corner!

Why the Ken Burns documentary “The Central Park Five” finally turned me against the death ...

Jan C. Ting — Thu, 18 Apr 2013 18:28:19 +0000

I've been a holdout, declining to join the progressive movement to abolish the death penalty everywhere in the United States and the world. I've thought that in an open, democratic society with a fully developed modern legal system and lots of lawyers, there would be no risk of error in high stakes, high profile criminal cases.

The documentary "The Central Park Five", by Ken Burns, David McMahon and Sarah Burns, recently broadcast on PBS, has finally convinced me that I was wrong. Everyone should see this fine piece of filmmaking the next time it's broadcast or appears again in a theater, or if it becomes available on the internet.

The basic story is this: In 1989, a young, white, professional woman working on Wall Street went for a jog at night in New York City's Central Park. She was found the next morning brutally beaten and raped, just barely alive, with no expectation that she could survive.

I remember clearly and personally the anger and fear that this crime generated throughout the country but especially, obviously, in New York. Media coverage of the crime was non-stop. The pressure on the New York Police Department to apprehend the perpetrator was at maximum intensity.

The police proceeded to extract confessions to the crime from five black and Hispanic males between 14 and 16 years old. The media and politicians demanded maximum punishment for these depraved savages. One commentator in the film observes that the anger level was so high that, 50 years earlier, these young men might all have been lynched without a trial.

Prosecutors celebrated their victory in obtaining guilty verdicts against all the young men, tried as adults, based solely on their confessions, even though DNA evidence from the crime scene did not match any of them, and the defendants insisted their confessions had been coerced.

All the defendants served their full sentences of between 6 and 13 years before another man, a convicted rapist whose DNA had been in the possession of the NYPD, confessed to the attack on the Central Park jogger. There was a definitive DNA match to this confessed and convicted rapist, and the convictions of the Central Park Five were finally vacated in 2002. Oops!

Throughout their ordeal, the Central Park Five insisted on their innocence. At their parole hearings when asked, as a condition for parole, to admit to the crime for which they had been convicted, they refused to do so, and so had to serve out their full prison sentences.

So much for my theory about developed, modern legal systems with plenty of lawyers. I doubt that any place has a more developed legal system, or a greater concentration of lawyers, than New York City.

An unusual hero appears in the film. In addition to the defendants' families who stood by them and insisted on their innocence from beginning to end, a young and then very overweight Reverend Al Sharpton, who now hosts an evening talk show on MSNBC, appears in the film leading a noisy but seemingly hopeless demonstration at the time of their trial asserting the innocence of the Central Park Five.

Rutgers abuse cover-up continues. NJ taxpayers and students will pay. ...

Jan C. Ting — Tue, 09 Apr 2013 19:18:31 +0000

Rutgers men's basketball head coach Mike Rice was fired on April 3, after video of his physical and homophobic verbal abuse of his players was broadcast on ESPN, setting off a growing scandal over who knew what and when, that may yet result in additional removals and resignations.

Rice got a million dollar payoff from Rutgers, as did Athletic Director Tim Pernetti, who was asked to and did resign. The University General Counsel John Wolf resigned from his position, but may have negotiated remaining on the Rutgers payroll in another capacity. Assistant men's basketball coach Jimmy Martelli was implicated on the video in the abuse of players. He resigned, and if he didn't get paid off, too, he may be the only one who wasn't.

Rutgers University President Robert Barchi claimed not to have viewed the video until broadcast by ESPN, though it was in the possession of Athletic Director Pernetti as early as November 26, 2012. Instead of viewing the video himself, President Barchi authorized payment of $64,000 for a 50-page outside report which described the coaching methods of Mike Rice as "permissible training." Anyone think that was public money well spent?

Rutgers Board Chairman Ralph Izzo and New Jersey Governor Chris Christie have rallied around University President Robert Barchi, seeking to protect him in his job despite his admission of error in not regarding the matter are serious enough to view a video of alleged abuse of his students by their coach. But we know that members of the Rutgers board did view the video as early as last December, and apparently took no action. So in protecting President Barchi, and saying that no further dismissals are called for, the Rutgers board is also protecting its own members.

Meanwhile, the former assistant to Coach Mike Rice who released the video to Rutgers and ESPN, Eric Murdock, is suing Rutgers for damages for wrongful loss of his job. And Rutgers is bracing itself for possible lawsuits by the basketball players alleging abuse by Coach Rice as documented on the video.

Good thing Rutgers is anticipating a financial windfall from joining the Big Ten athletic conference, which was announced right around the time last year when Rutgers became aware of the troublesome video. Good thing the video wasn't made public then, since that might have spoiled the party. Or was the party and joining the Big Ten, the reason it was covered up?

Does anyone think Rutgers will be anything but a doormat in the Big Ten in the wake of the current scandal? Why would quality athletes with other choices choose a college where abuse like that presented on the video is considered "permissible training"?

Who else is to blame for the situation at Rutgers? Or is no one else to blame, because Rutgers is merely experiencing the normal and typical pressures of a big-time athletics program?

Immigration amnesty is a formula for permanent dysfunction

Jan C. Ting — Sat, 06 Apr 2013 16:26:00 +0000

Our immigration system is not broken. We don't need, and Congress shouldn't enact, amnesty.

Both my parents were immigrants. All Americans are either immigrants or descendants of ancestors who came from somewhere else, including Native Americans. We should all respect and admire immigrants. But that's not the question.

The question is: how many? Specifically, should we enforce a numerical limit on immigration to the U.S., or alternatively, should we allow unlimited immigration, as we did for our first century?

It's a binary choice: an enforced limit or no limits. Our failure and inability to clearly choose is at the root of our dilemma over immigration policy. We keep searching for a third way, but there isn't one.

I respect those who openly advocate for unlimited immigration to the U.S. Open borders is an intellectually coherent, defensible position. Different arguments can be made for unlimited immigration including philosophical, religious, historical, utilitarian, libertarian, and social justice.

But it is neither intellectually coherent nor defensible to argue that we should retain legal limits on immigration, but we don't have to enforce them, and we can instead periodically amnesty immigration law violators whenever they attain a large number. If we're going to allow unlimited immigration anyway, why pay for the expensive window dressing of immigration enforcement?

The U.S. immigration system is the most generous in the world, providing each year more green cards for legal permanent residence with a clear path to full citizenship than all the rest of the nations of the world combined.

But to enforce the numerical limitation, U.S. immigration law provides that immigration violators can be removed from the U.S. after being found inadmissible or deportable. The enforcement provisions of U.S. immigration law are essential to maintaining the limit on immigration.

We are told our immigration system is broken, the main evidence for which is the presence of 11 million illegal immigrants. Actual causes include ineffective employer sanctions, the mistaken belief that the 1986 amnesty would "solve" our illegal immigration problem instead of attracting more illegal immigrants, and ineffective management and political interference in immigration enforcement.

Illegal immigrants make a rational choice when they choose to violate our immigration laws. A former Temple University colleague said, "The poor people of the world may be poor, but they are not stupid. They are as capable of doing cost-benefit analysis to determine their own self-interest as anyone in this room."

Those considering illegal immigration to the U.S. weigh costs, like the risks of getting caught, against benefits of a better life. To get more illegal immigration, we should lower costs, through discretionary prosecution of violators, and increase benefits, through amnesty. Conversely, to reduce the number of illegal immigrants, we should increase costs, through more effective enforcement, and lower benefits through more certain removal from the U.S.

Border enforcement alone will never suffice to enforce an immigration limit. Would-be law violators have to be deterred from making the attempt through proof that costs outweigh benefits.

Why is enforcing an immigration limit hard? First, there's a constant argument over what the limit should be. And within the limitation, are we admitting the right kind of immigrants or not? Do we need more high skill or low skill labor? That's a permanent, continuing fight.

The hardest thing about enforcing a limit on immigration is requiring us to say no to people who remind us of our ancestors, who are neither criminals nor national security threats, who just want to work hard for a better life. And if they come in violation of our limit, we have to deport them to raise the costs of illegal immigration and deter other would-be illegal immigrants.

Can we do that? If not, we should just declare the borders open to all hard-working immigrants like our ancestors. We can then save the billions in taxpayer dollars spent trying to enforce immigration limits.

What we can't do is keep the limits, but not enforce them against anyone but criminals and national security threats. We can't keep spending money on enforcement, but then give amnesty all who come illegally. That's a formula for permanent dysfunction.

The alternative to the false fix of "comprehensive immigration reform" is a series of smaller reforms, continuing review and adjustments to our immigration limits, and more certain enforcement of whatever limits on immigration we enact.

We must banish the illusion of a big, one-time "fix" of our immigration system, that we can get it off our plates once-and-for-all, and never have to deal with it again. We will be dealing with immigration forever. Get used to it!