The Influence of Government Defenders on Affirmative Civil Rights Enforcement

The focus of this brief Article will be on a conundrum, particularly in the area of civil rights enforcement: the federal government—in particular the DOJ—can be one of the most efficient and powerful vindicators of civil rights, while at the same time one of the most effective advocates for imposing barriers to affirmative civil rights enforcement. At the same time that the DOJ’s Civil Rights Division (CRD) is entering federal court to “vindicat[e] rights and remedy[] inequities,” attorneys in the Civil Division (either from Main Justice or in any number of U.S. Attorney’s offices) are appearing in court to prevent the same. No doubt the same observation applies to certain state governments that have active affirmative civil rights enforcement bodies while also maintaining well-resourced defensive litigation bureaus. For my purposes, this observation has important consequences. It might bear on the professional obligations of the government attorney who appears in a defensive posture, a topic that Bruce Green and others have addressed in many thoughtful articles. I will address some potential ethical implications toward the end of this Article, but it is not my principal focus because I am not convinced that that is where the solution lies. Instead, I want to concentrate on what the observation means for executive branch law enforcement priorities, how the dynamic impacts broad access-to-justice concerns, and the implications for institutional design. I am going to try to do so in four parts. First, this Article contrasts agenda setting in defensive bureaus with agenda setting in the affirmative posture. Part I compares the defensive positions taken in two extremely similar cases—Ashcroft v. Iqbal and Ziglar v. Abbasi—that were litigated by the DOJ across two different presidential administrations. This is to help illustrate (admittedly by anecdote) that, even while affirmative enforcement priorities can change significantly from one administration to the other, defensive litigating positions can remain remarkably stable. Parts II and III turn to showing what consequences this has in the context of civil rights enforcement. Part II starts with the DOJ’s affirmative bureaus themselves, with a focus on the CRD. The goal is to show that the defensive bureaus impact the work of the CRD in at least two ways: (1) by channeling enforcement priorities into areas that will not conflict with defensive litigating positions and (2) by making affirmative enforcement priorities more difficult to secure through the spread of transsubstantive doctrine that suppresses rights enforcement, even in the areas in which there are no conflicts with defensive positions. Part III moves beyond the direct impact on CRD because defensive litigation positions taken by the DOJ can also suppress affirmative rights enforcement by “private attorneys general,” enforcement that nonetheless is consistent with the affirmative priorities of Main Justice. Finally, Part IV offers some thoughts on what lessons we might draw from these observations. For the most part, I devote my attention to how institutional design might ameliorate the tensions I identify in this Article

Bounds for the normal approximation of the maximum likelihood estimator

While the asymptotic normality of the maximum likelihood estimator under regularity conditions is long established, this paper derives explicit bounds for the bounded Wasserstein distance between the distribution of the maximum likelihood estimator (MLE) and the normal distribution. For this task, we employ Stein's method. We focus on independent and identically distributed random variables, covering both discrete and continuous distributions as well as exponential and non-exponential families. In particular, a closed form expression of the MLE is not required. We also use a perturbation method to treat cases where the MLE has positive probability of being on the boundary of the parameter space.Comment: Published at http://dx.doi.org/10.3150/15-BEJ741 in the Bernoulli (http://isi.cbs.nl/bernoulli/) by the International Statistical Institute/Bernoulli Society (http://isi.cbs.nl/BS/bshome.htm

Darwin and the Body Politic: Schaffle, Veblen, and the Shift of Biological Metaphor in Economics

A long tradition of thought in Western political philosophy compares the body of man to the political body. This traditional cosmological frame of reference was, with the publication of Darwin’s Origin of Species, overcome by the emergence of evolutionary social systems. Albert Schäffle [1831-1903] can fruitfully be considered the last major representative of the old trajectory of thought, and Thorstein Veblen [1853-1929] the first of the new. By comparing and contrasting their uses of biological metaphors and the places these occupied in their larger visions of society and the economy, the author explores some of the tensions generated in late nineteenth century political philosophy by the dramatic change in biological paradigm—in other words by Darwin’s first encounter with the body politic.

Development and Social Goals: Balancing Aid and Development to Prevent ‘Welfare Colonialism’

The current development policy focus on poverty reduction is erroneous. Historically, successful development policy—from the late fifteenth century until the beginning of the twenty-first—has achieved structural change away from dependence on raw materials and agriculture, adding specialized manufacturing and services subject to increasing returns with a complex division of labour. In contrast, the Millennium Development Goals are heavily biased in favour of palliative economics: alleviating the symptoms of poverty, rather than attacking its real causes. This creates a system of ‘welfare colonialism’ increasing the dependence of poor countries, thereby hindering, rather than promoting, long-term structural change.Millennium Development Goals, economic development, palliative economics, welfare colonialism

Capitalist Dynamics: A Technical Note

Carl Menger, the founder of the Austrian School of Economics, had the ambition that economics should be a .map of the forces at workÿ. Standard textbook economics (.neo-classical economicsÿ) takes as its starting point a metaphor of .equilibriumÿ based on the state of the physics profession in the 1880s. This force towards equilibrium is, however, only one of many forces at work. The most fundamental feature of capitalism is change, and this change is only poorly reflected in standard economics. Financial crises are just one of the many things that happen in real life, but cannot happen in standard textbook economics. From the standpoint of Joseph Alois Schumpeter (1883-1950), Austrian economist and Harvard economics professor who spent much time at Harvard Business School, .equilibriumÿ is the opposite of economic development. Equilibrium theory therefore fails to reflect many of the mechanisms of industrial and economic dynamics that create economic welfare. This note attempts to outline some of these forces.

A Precision Search for WIMPs with Charged Cosmic Rays

AMS-02 has reached the sensitivity to probe canonical thermal WIMPs by their annihilation into antiprotons. Due to the high precision of the data, uncertainties in the astrophysical background have become the most limiting factor for indirect dark matter detection. In this work we systematically quantify and -- where possible -- reduce uncertainties in the antiproton background. We constrain the propagation of charged cosmic rays through the combination of antiproton, B/C and positron data. Cross section uncertainties are determined from a wide collection of accelerator data and are -- for the first time ever -- fully taken into account. This allows us to robustly constrain even subdominant dark matter signals through their spectral properties. For a standard NFW dark matter profile we are able to exclude thermal WIMPs with masses up to 570 GeV which annihilate into bottom quarks. While we confirm a reported excess compatible with dark matter of mass around 80 GeV, its local (global) significance only reaches 2.2 sigma (1.1 sigma) in our analysis.Comment: 38 pages + references, 14 figure

Development and Social Goals: Balancing Aid and Development to Prevent ‘Welfare Colonialism’

In the paper the author tries to explain why the Millennium Goals, with which the world community is approaching the social problems in the poor countries, cannot be considered as good social policy in the long run. The key insight of the author is that having an inefficient manufacturing sector produces a higher standard of living than having no manufacturing sector at all.

Zeitgeist in Transition: An Update to How rich countries got rich and why poor countries stay poor

This article is a forward to French translation of How rich countries got rich and why poor countries stay poor.