More On Kathryn Johnston

Radley Balco has the latest on Kathryn Johnston, the 92 year-old woman who was shot to death by Atlanta police in a botched drug raid late last year. (More commentary from Balco here.)

Apparently an an investigation into a "culture of misconduct" is underway in the Atlanta PD. This is, as Balco points out, bad news for those of us who are concerned with overtly militaristic policing and an ineffective War on Drugs. When these tragedies are blamed on corruption and the misconduct of individuals we lose sight of the overarching problems within the system itself. The War on Drugs creates the negative incentives which allow corruption to fester in narcotics enforcement. And worse yet, militaristic raids on the homes of non-violent individuals drastically increase the possibilities of violence. SWAT-style raids are appropriate in known hostile and violent situations, but they are inappropriate as a means of executing warrants on non-violent offenders. Just think about what it means to have a SWAT-team knocking down your door on a no-knock raid. Even if they do knock, or announce themselves as police, there's no guarantee you'll here them. All you may be faced with is armed men storming into your house- given that situation, many of us might respond with deadly force if we had the option.

In the case of Mrs. Johnston, the officers involved in her death are guilty of some pretty heinous activities. But as Radley Balco points out, her death would still be a tragedy if this had been a properly executed, but factually incorrect warrant. And in reality, this would still have been a tragedy if she had been selling drugs. The question that I keep asking, and I'll repeat time and time again, is whether this is really the sort of world you want to live in.

Campaign Finance Reform

Today's New York Times reports on the latest campaign finance reform case before the Supreme Court. Meanwhile, the Times editorialized yesterday in favor of protecting all the current campaign finance restrictions under McCain-Feingold.

I've never blogged much about campaign finance reform because it's such a legally sticky issue- and as a law student, it's hard to touch on these topics without delving into the substantive law. Nonetheless, I'm highly motivated to blog today, not so much from a legal standpoint as from a philosophical one. Before I get any further, I want you to ask yourself why it is that big media is so gung ho about campaign finance reform- the more restrictions the better seems to be the motto of the Times and plenty of other media outlets as well.

While you ponder that, let's take a look at what the law is, on a very very very basic level. Today, we basically have a situation where campaign expenditures can not be limited, but campaign contributions can be limited. In other words, candidates are free to spend whatever money they have without limitation, but the rest of us can be limited as far as what we give to candidates. This basic rule has been set in stone by the Supreme Court since the 70's. The recent flurry of campaign finance reform (highlighted by McCain-Feingold) was an effort to close off supposed loopholes in the old system. And of course, the reformers will tell you that money in politics remains a problem and even more strict controls are needed. The problem is- from my point of view- that every single one of these campaign finance restrictions limits our basic freedom of speech and expression.

Many will make the simple argument that money is not speech, and technically, they'd be right. But at the same time, books, pamphlets, and the internet are not necessarily speech either- just like money, these are tools for speech, the tools you need to have your speech heard. If no one hears your speech, particularly your political speech, your effect on the democratic process is negligible. So, while money may not be speech, it is a tool that is absolutely necessary to circulate your political messages.

Given the fact that money is absolutely necessary, it seems odd that we've come to accept a system that allows individuals to spend millions of dollars of their own money, but restricts the amount of money you can give to a political candidate with views similar to your own. If you're Bill Gates, you can run for president without having to raise a dime, but if you're Bill Gates best friend who happens to be a politician, you can't count on Bill Gates to give you very much money. It just doesn't make a whole lot of sense and seems to favor the wealthy over the poor.

Some campaign finance reformers argue for a system of purely public financing for campaigns. The problem with this sort of a system is that in institutionalizes party politics. You can't simply give money to every lunatic who wishes to run for office, so it becomes the function of government to decide which candidates can receive campaign funding. But, the problem is, providing campaign money to certain political ideologies and not to others seems to be a violation of the spirit of the First Amendment, if not a violation of the letter of the law.

Perhaps the worst form of campaign finance limitations are those placed on third parties- precisely the sort discussed by the Times and at issue before the Supreme Court. Under our current system, a great number of restrictions are placed on the ability of third parties (such as unions and corporations) to run advertisements that specifically support candidates for office within a specified time frame of an election. In my mind, this is a direct violation of the most important principles of free speech- the right to argue for political change.

Now let's go back to my question about the media supporting campaign finance reform. Think for a minute about who is not bound by campaign finance restrictions- the media. The New York Times and every other newspaper (and political commentators for that matter) is free to editorialize and support any and all candidates they like, with no restrictions. This is the real result of campaign finance reform- the media is free and political candidates for office are restricted in their abilities to respond to the media. And this is why I feel so strongly about the issue- for all the talk about money and corruption and politics, most campaign finance reforms tend to solidify those already in power- incumbents, big media, and the party elites.

Next Week On Dallas SWAT

I meant to link to this last week but forgot- better late than never- Radley Balco publishes an e-mail from a man who was at a poker game which was raided by a SWAT-team being filmed for the A&E show Dallas SWAT. Take the time to read it and ask yourself the same question that Balco has been asking for the past several years- Is this militarization of our police forces doing anyone any good? Are we really making ourselves safer by sending heavily armed officers into non-violent situations?

The problem with blaming all weather on man-made climate change

This story from the Independent: Australia's Epic Drought: The Situation Is Grim. Obviously, climate change is to blame. Before climate change, severe droughts were noticeably absent from human history. Not only that, but prior to man-made climate change, there wasn't even such a thing as climate change!

The food police, they all seemed so nice - All they wanted was to give some advice

Carousing the internet I ran into this post from a blog called the Ethicurean (with the clever tagline, "chew the right thing"). The post complained about a recent ad campaign from my beloved Center For Consumer Freedom, in which the notion of suing "big food" over obesity related issues is ridiculed. I didn't want to really talk about the ads - I just wanted to highlight a couple paragraphs from the post of this health dude who wants us to "chew the right thing."

Let me be clear. I don’t think lawsuits are the best way to accomplish the goal of getting people to eat healthier food in this country. I smoked for 10 years, and I didn’t manage to quit last year because of the taxes, or because the state of California sued the tobacco companies and won. I quit because finally, I just couldn’t give those companies one more cent.

As anyone who reads the Wall Street Journal occasionally — or has seen the creepy docu-prop movie The Corporation — knows, corporations exist to maximize profits. And corporations that have built their businesses on selling cheap, unhealthy food can’t raise prices; they can only increase profits by getting consumers to eat more of their junk calories.

These are really the sorts of people that this world needs more of - People who have the goal of "getting people to eat healthier food" and people who criticize corporations for selling inexpensive products that everyone can actually afford. Regular readers will know how these sorts of discussions end on this blog.

Future Cartman: Haha, it's me, Cartman! You from the future. I came back to tell you that this is the day you turn it all around. You stop eating junk food and you start studying harder, you stay away from drugs and alcohol and you become CEO of your own time-travel company!

Cartman: [sets the box of cookies down] Oh wow, really? That's so awesome! Now I'll really work to be successful!

Future Cartman: Right on!

Cartman: Go have sex with yourself, asshole! I'm not that stupid! Just for that, I'm gonna spend my whole childhood eating what I waunt, and doin' drugs when I waunt! Whatevuh! I'll do what I waunt!

This is why I'm NOT hot

This comes courtesy of the future Mrs. lonely libertarian: "Why I'm Hot" - A graphical dissertation on the number one song in America.

What hath we wrought?

Save The College Kids. Save The World

Found this story while trolling the Internet this morning about a woman in Detroit who became a soldier in the war against global warming after growing tired of explaining to her daughter why there wasn't any snow. Now, thanks to Margaret Hetherman there are billboards all over the Detroit area proclaiming, "Take back the weather."

It's an interesting choice of words that almost implies that somehow we once did control the weather and now we just want to take that control back. Of course, if you think about weather in a historical context, it's weather which has driven a great many historical events - but remember, this highlights man's powerlessness when it comes to the weather. The interesting thing about climate change and the demand for action in response to climate change is that it underscores a belief that we can control and harness our environment. (Or in other words, that we can do something to make it snow again.) Now, obviously we can exert control over our environment, but that control is brute force, not technical precision. It's a new sort of environmentalism that is just as concerned with what man can do as it is with "nature."

I was thinking about this in regards to the Virginia Tech discussion I had last week and thought that maybe the reaction to global warming is not so different from many of the reactions to the Virginia Tech shootings. We have this strong desire to exert control over our lives and over our environment and become almost fearful when situations arise that we have no control over. We'd rather believe there was something that could have been done about a lone, crazed gunmen and we'd rather believe that there is something we can do about climate change and natural disasters (think Hurricane Katrina). And really, this coincides with the political desires of most people in the civilized world today- we'd like to think that we can solve every problem through law making- everything from violent outbursts to violent storms.

Brief, Non-Political Virginia Tech Thoughts

To be honest, I've found all the media coverage, and all the overt and not-so-overt political discussions about the tragedy at Virginia Tech to be more than a bit distasteful. Let the friends and families of the victims grieve in peace.

Additionally obscene are all the Monday morning quarterback comments second guessing the school's response and even the response of the students trapped in the building under siege. In particular I just wanted to mention the throwback references back to Columbine and the questions of why something wasn't done before the tragedy happened. The thing is, there are hundreds of thousands (maybe more?) of disturbed, depressed, and emotionally fragile young people out there- most of them don't become mass murderers. If you think back to high school I'm sure most of you can remember some of these kids- outcasts, kids angry with the popular cliques, angry with girls, angry with the world. Hell, maybe you even were one. Lots of young people entertain violent fantasies, but obviously most people don't start shooting people. It's just asinine to think that this Cho Seung-Hui should have been not just identified as a violent threat, but somehow contained as well, merely because of his writings and his personality.

But to quote Randy Marsh (who, at the time, was responding to his son Stan's question about helping the people victimized by the flood in Beaverton),

That's not important right now, son. What's important is figuring out whose fault this is.

Free Trade?

Another interesting article from the Nation, this one questioning the basic tenets of free trade. No this isn't typical liberal nonsense, but coverage of a well thought out response from a former free trader.

The notion is that America is losing high tech jobs to the developing world, in part because American companies have chosen to move these jobs to countries where the workers can be paid less. I don't have a real good response to the claim that the departure of high tech jobs from America is going to hurt us. However, I've been somewhat addicted to Milton Friedman's Free To Choose series as of late (which can be streamed via that link courtesy of ideachannel.tv), and I'm sure if Dr. Friedman was still with us he would have an appropriate answer for this Martin Luther of the anti-globalization movement, Ralph Gomory.

My knowledge of economics is very basic and mostly self-taught, but it still seems as though protectionism, even when it comes to "high tech" jobs, is not the way to go. In the 70's there was much consternation over the loss of manufacturing jobs- but contrary to some of the beliefs at the time, our economy did not collapse. I think such snap-shot looks at the economy tend to neglect the big picture and ignore the fact that the economy is dynamic and constantly evolving- and the more open that economy is, the more it can evolve and grow.

One thing that never fails to amaze me is the constant fear that we're somehow on the verge of an economic catastrophe. Unemployment is at an all-time low and if you ask people how they're doing economically, they'll probably tell you they're doing just fine. Yet we want to believe disaster is just around the corner- sort of like global warming I suppose.

Dr. James Hansen, Scientist

In case you were wondering he's not a historian. (See Dr. Hansen's piece in the Nation about "Why We Can't Wait" when it comes to global warming.) According to Dr. Hansen (who has been outspoken in his criticism of the Bush administration's policies regarding climate science),

I don't think the Framers of the Constitution expected that when a government employee--a technical government employee--reports to Congress, his testimony would have to be approved and edited by the White House first. But that is the way it works now.

Actually Dr. Hansen, I don't think the Framers of the Constitution expected to have scientists on the federal payroll in the first place.

Funny Item Of The Day

This is a letter published in today's USA Today: Bigotry in humor is far from comic icons.

Rick Schreiner - San Marino, Calif.

Radio talk host Don Imus' blatant, degrading rant about Rutgers University's female basketball team has awakened America's conscience. Bigotry has no place in American humor ("Outrage over Imus shows societal shift," Life, Friday).

Comic icons such as Will Rogers, Bob Hope, Jack Benny, Milton Berle and Martha Raye made us laugh during our nation's darkest days. They never used sexism, racism or off-color rants to get laughs. They were professional, honorable comics who made us feel good. When America needed a good knee-slapping laugh, they were always there. Does Imus have any shame? His bigoted jokes are not funny, and no one is laughing.


Is it just me or does this sound like a Grandpa Simpson letter?

Just For Fun

I'm not going to comment on the Virginia Tech story other than it's a tragedy- I'm not going to get political nor is it appropriate- and that includes all the talk about what "others" may or may not be saying.

Rather than be political, I figured I'd post these clips I found on YouTube, just for fun.

The first is the theme to "The Office" - Battlestar Galactica style.



And the next is the theme to "Battlestar Galactica" - The Office style

Coulter On Imus (Use Your Imagination)

I'm usually no fan of Ann Coulter, but her comments on the Don Imus controversy have given me reason to pause. (Also, check out what Coulter apparently said on Hannity and Colmes: Apologize to the Rutgers Girls- No One Else.

Yes, I'm sick to death of this Imus story, but it's just plain hard to read through any paper or blog and avoid it at this point. The Coulter thing just stuck out in my mind because it seemed like such an odd place to find some sanity. I've heard numerous commentators distinguish Imus from say Howard Stern, Dave Chapelle, or Sara Silverman because Imus intended to be taken seriously as a media figure- after all, Imus routinely entertained politicians and members of the mainstream media on his radio show. Stern, Chapelle, Silverman, and others can be distinguished because they're acting in a satiric or comedic vein.

Of course, this all fails to explain the success of Ann Coulter, who continues to persevere despite several firings and numerous controversies over some of the things she's said. (Most recent was the controversy over her having called Democratic presidential hopeful John Edwards a "faggot.") Of course, like Stern, Chapelle, and Silverman, Coulter has never gone on the defensive and never bowed down to the will of the PC police. In the course of making her political points and attempting to be funny, she's said plenty of offensive things, and she's continued to do that. And like Howard Stern, plenty of people may hate her, but she's got numerous faithful followers who will buy her books, read her columns, and watch her tv appearances.

What's really interesting is Coulter's defense of a crude public discourse. She tells us that it would be fair game to call her a "ho" or to call Al Sharpton "nappy-headed" but it was wrong of Imus to use those words to refer to the girls at Rutgers who aren't public figures. And maybe this is an idea that just makes sense. There is a line to be drawn, but that line shouldn't be about PC language but personal attacks on those who are not part of the public discourse- and this makes sense whether you're talking about news or comedy or both.

Like I said, I'm not usually a Coulter fan, but this was a real thought provoker. And see, according to Coulter, the joke of a headline I have would be both perfectly acceptable, yet absolutely tasteless.

The New Way To Do Science: Ignore Opposing Points Of View

This from the Hartford Courant's coverage of the First National Day of Climate Action, which took place yesterday in Bushnell Park:

Speakers talked of their own efforts to minimize their polluting ways, and offered suggestions on how others could do the same. Jessica Tanner of Manchester told the crowd to support the expansion of the bottle bill, and to ignore those who say global warming isn't happening.

Bad, Bad, Bad Laws

Via the Agitator comes this news of California's plan to require everyone in the state to have health insurance. People whom the state tracks down who are not enrolled in a health insurance plan would be forced to enroll and face fines.

Before anyone tells me that they think this is a good law, or a good idea, I'd like to hear that you'd be perfectly comfortable if somebody went to jail over the violation of a law like this. The thing is, laws are serious business. When people break laws, punishment for willful violations is absolutely essential to the integrity of our criminal justice system. What if someone were to ignore this mandate- and what if, after they were caught, they were to refuse to the pay the fines and refuse to pay a dime for health insurance. At some point, individuals who violate the law and violate orders to obey the law need to be put in jail. So I ask again, is there anyone out there who would be happy putting someone in jail for refusing to get health insurance.

To continue with our theme of "feel goodism," it seems to me as though we've become inundated in recent years with laws that may be well intentioned, but that ultimately make us a bit to squeamish to actually throw people in jail over their violation. Health insurance is a big boy, but generally we see these sorts of laws in more minor veins. What about plans to ban incandescent light bulbs- Or the already passed bans on trans fats in several major cities? There may be those among us who would like the government to be more active in regulating our lifestyle in the name of public health and the environment, but anyone who takes such a position has to reconcile the fact that you could be putting the baker, the old lady who likes her old fashioned light bulbs, and the guy who doesn't want health insurance behind bars.

This Is Exactly What Is Wrong With Modern "Conservatism"

I caught some of Sean Hannity's radio show late last night, when it's replayed by my local news station. I don't have a transcript or the audio play back of a specific phone call that I heard Sean Hannity take, but it stuck in my mind and I wanted to take the time to repeat it here in my blog.

A caller called in and thanked Hannity for raising his conservative awareness or something all warm and fuzzy along those lines. The caller then went on to tell the story of how he had seen some hippie anti-war protester outside the post office and how incensed he was that no one had done anything about it. First the caller complained that the workers in the post office had just snickered at him when he mentioned the anti-war protester. The caller was also upset that neither the workers or the people on the street said anything to this anti-war protester. And finally, the caller wondered why the government couldn't do something about this protester, seeing as he was protesting government policy on government property. (Now again, this is not verbatim, but I remember the "government property" language- it stood out in my mind.)

Hannity, after making sure this caller did care about the basic concept of free speech, sort of left the audience hanging as to this other point about "government property."

Allow me to explain what's wrong with this picture. The very essence of free speech is the right to protest government policy and that right would mean very little if it couldn't be exercised on public property. And that's right, I said public property, not government property. What the hell is this government property nonsense? Is the area outside the post office some sort of special area were not allowed to go? Or should the mere fact that it's owned by the government cut off any and all rights to free speech?

I think it's frightening that so many modern conservatives have raised "the state" (or the government if you will) to such an exalted level. The whole war on terror and war in Iraq thing has seemed to make many of them just plain crazy. I find it hard to believe they'd be upset about people protesting Bill Clinton's policies on "government property."

Updated 4/14/2007 @ 11:24 AM: For those of you who may wonder why I'm making such a big deal about language, it's because the words we use really mean something. "Public property" has a democratic connotation, while "government property" has a very authoritarian connotation.

Kurt Vonnegut

R.I.P. Kurt Vonnegut. I just wanted to recognize Vonnegut here, seeing as I give many of his novels (along with the band Rage Against the Machine) credit for getting me interested in politics and the world around me. Ironically enough, I've ended up in a very different place, but I give credit where credit is due.

Maybe the best brief scientific take on Mass. v. E.P.A. (The global warming decision.)

Here's a good op-ed piece in the Hartford Courant from Dr. Robert Thorson on the Supreme Court's recent global warming decision. Dr. Thorson was my professor for environmental science at UCONN. (okay, okay- he was actually my professor for "Age of the Dinosaurs," but he was a good professor and a good guy.

The Poor Next Door

From the liberal website Alternet comes this story on Suburbia: Americans unseen poverty. I found this to be particularly interesting:

In fact, however, the gentrification of many urban neighborhoods, from Brooklyn to San Francisco to Washington, has forced many working-class residents out. In a reversal of the classic migration story, many of these displaced residents have fled to the suburbs, lured in part by the growing pool of mostly low-wage jobs there -- cleaning homes, mowing lawns, staffing restaurants, strip malls and office plazas. Alan Berube, co-author of the Brookings Institution study, says the "decentralization of low-wage employment" is one of the main factors driving suburban poverty rates up.

In other words, there is more poverty in the suburbs because more poor people are moving there- in part because of the movement of low-income jobs and in part because of government policies which has pushed them out.

Now let's keep in mind what this article and the reports it cites does not say: They do not say that poverty itself is on the rise, not by any significant margin. What it's saying is poverty is spreading out from it's stereotypical urban confines. One would think this might actually be a good thing, given the negatives associated with concentrations of urban poverty, but this story treats it as more of a looming problem.

Of course, if I'm allowed to go back to this week's theme of "feel-goodism," I wonder if the really uncomfortable fact is not the poverty itself, but the fact that people in suburbia are going to have to deal with it in their back yards. (Just like the town of Brookhaven, New York, where immigrants where evicted for having too many people live in their rented rooms.) This makes poverty more personal to some people, which makes them uncomfortable, but this is precisely the best way that real poverty and real hardship can be dealt with. It should be personal- it shouldn't just be about encouraging your Congressmen to vote for a job killing minimum wage, while blogging from the confines of your upper-class home.

Yes, there are some sad stories to be told here, but the human condition is one of sad stories. That doesn't mean there is a real problem here and that doesn't mean that for the vast majority of Americans our lives are improving year in and year out.

Local Support For Ending The War On Drugs

I missed this last week, but bravo to Republican Hartford city councilman Dr. Robert Painter, who took on the war on drugs in a Hartford Courant op-ed piece. In that piece, Painter advocates marijuana legalization and the decriminalization of other drugs. Let me just say, Dr. Painter has balls to even suggest these measures in a public forum.

Today, the Courant published this response from a retired Hartford police sergeant. What's interesting is how none of the points made by Dr. Painter (points which I've often made on this website, such as how prohibition itself creates crime and violence) are addressed in this response. Rather, the response focuses on the point that legalization will create more drug problems, without providing any evidence to back this point up. Also interesting is the former sergeant's concern with a permanent drug addicted underclass, as if such an underclass didn't already exist.

Don't forget my warnings about feel-goodism and the appeal of protecting those who can't protect themselves.

Race, Gender, and Discourse

I just had a brief thought on the whole Don Imus controversy. (For those of you who may not know, Imus has drawn criticism for his remarks calling members of the Rutgers women's basketball team "nappy-headed hos" on his morning radio program.)

Nearly all I've read and heard about this has focused on the racial aspect of the offensive remark and I think this speaks volumes about American culture and our media. I've always thought that "nappy-headed" was vaguely offensive, but not nearly as offensive as some other racial insults. (If I'm wrong, feel free to enlighten me.) What's interesting to me is the fact that the "ho" (or is it supposed to be "hoe"- I'm really not sure) aspect of the comment, which is certainly offensive to women, has received less attention than the racial aspect of the remark. Imus apparently went on Al Sharpton's radio show to apologize, and putting aside the question of whether that is a good medium to apologize to blacks, I'd seriously question whether that's the best medium to apologize to women.

There was an article I read sometime in the past week or so about the vulgarity and offensiveness of language directed at women on the internet, and for the life of me I can't remember where I read it. But anyhow, the point was that although verbal attacks and personal battles of words are quite common on the internet, the language directed at women (and not men) can be very sexualized and violent.

Now, my point here is only about the level of our discourse. I don't think we need to expunge the word "ho" from our vocabulary- nor do I think it's use, perhaps even in the Don Imus context, is strikingly offensive. But I would think the same thing about "nappy-headed" in certain contexts. Again, what's interesting here is the apology here and the outrage- the focus on race with little attention paid to gender.

Feel Goodism Part II

Allow me to expand a bit on my thoughts from this morning. Let's think a bit more about "sub-prime mortgages." As I mentioned before, the people who are going to be getting sub-prime mortgages are those who can't get a mortgage from a mainstream lender at a reasonable price- these are people with poor credit. Now let's think about these people for a minute and just divide them into the categories of the responsible and everyone else. (Not everyone who defaults on a loan is irresponsible, so we'll just refer to this second group as everyone else.) Responsible individuals will take advantage of these subprime loans to buy a home, build credit, and work towards a successful financial future. For other people, it might not work out so well, but this is like so many other financial risks in life.

Groups like the Center For Responsible Lending really do mean well, but when they go beyond the realm of education and begin pushing for government solutions, I think they tend to forget or neglect the law of unintended consequences. For arguments sake, let's say that there are poor, uninformed people who are "victimized" by these practices. The problem with any law that restricts these sorts of loan practices is you're taking away opportunities from the people who were really benefiting from them in the first place.

Yes, if you eliminated or restricted these subprime lenders, you'd help out a lot of people who'd gotten involved in what ended up being bad deals. But you'd also put the people with poor credit who actually benefited from these subprime lenders out of luck. Problems to help "the poor" shouldn't wind up hurting the poor, but far too often, that's what many of these sorts of programs do.

As I was writing earlier I was remembering my American history, I was remembering the growth and industrialization of cities in the 19th century and the growth of slums and tenements that went along with that progress. There were plenty of do-gooders in the 19th century who wanted to clean up the slums and improve the living conditions of the working man. Remember, this is the precise background many of our immigrant ancestors came from. Well, the do-gooders back then ran into problems because you can't simply change the way people live because it doesn't measure up to your own standards. And this continues today- just because an immigrant is working 12 hour days and living in poor conditions does not mean that they are being exploited. They could be saving up to help their uber-poor families and choosing to live and work the way they do as a rational means of attaining their goal. Again, the problem with feel-good laws is that they never account for this initiative or any sort of responsibility on the part of the poor. Rather, the poor are taken as people who need the stern hand of a paternalistic government to tell them what to do. I'm a libertarian because I find such notions to be obscene and an insult to the dignity of everyone of us who are perfectly capable of making our own choices.

Feel Goodism

This from a New York Times editorial this morning: "Losing Homes and Neighborhoods," an editorial criticizing the practice of "subprime" home lending. This piqued my curiosity enough to look at the actual study from the Center For Responsible Lending.

Let me just say simply that this is the very sort of reason why I am a libertarian. I don't need to get into too many details, but it appears as though the Center for Responsible Lending basically rejects any form of credit- be it home loans, car loans, or even credit cards, that cater toward the lower end of the credit market. The "victims" are, of course, the poor, who are lured into these high interest, high fee, and dangerous schemes. And to quote Penn and Teller (or maybe just Penn) that is just plain bullshit.

People obtain "subprime" mortgages because they can't find anything better- there's simply no market for better loans for people who are more likely to be credit risks. The gall of groups like "Center For Responsible Lending" drives me nuts, because what they're pushing for is government enforced responsibility, not individual responsibility where people, poor and rich alike were allowed to make their own financial decisions. More on this later.

Maybe they shouldn't have been cross-marketing with Toucan Sam ...

I meant to link to this story the other day, which was all over the local news here in Connecticut: Anheuser-Busch criticized for drink critics say appeals to teens. God forbid someone over 21 might want a colorful, fruity, alcohol beverage. Although, according to the article, perhaps the market itself is dealing with the issue- apparently, not that many adults actually are buying these things. Still though, this kind of outrage is always a lot of fun.

More Regarding My Work On The Commerce Clause

This from last November's edition of the Yale Law Journal: Environmental Economics: A Market Failure Approach to the Commerce Clause, by Mollie Lee. I bring this up in my blog only because the conclusions here dispute the conclusions reached in my recent article on the Unconstitutionality of the Safe Drinking Water Act (SDWA).

(Warning: the following is a bit technical and is probably only meant for those with interest in Commerce Clause jurisprudence.

In my article, I argue that environmental and health statutes could be found to be Constitutional only if they are passed as part of a valid regulatory scheme of economic activity under the Commerce Clause. In addition to concluding that the SDWA is Unconstitutional, I also examined and rejected the arguments that the Endangered Species Act (ESA) was a permissible use of the Commerce Clause power. Mollie Lee agrees with my arguments, and the purpose of her piece is to find an alternative rationale by which to uphold the ESA. According to Ms. Lee, the ESA can be considered an economic statute (and therefore is permissible under the Commerce Clause) if one is to take a narrow market failure approach. That is, where market failures occur (at least as far as activities that are involved in interstate commerce), then the regulation can be seen in a sense as a market correction, even if the subject of the regulation is not specifically economic. (This is my own off the cuff summary, so please excuse any looseness of language.)

I disagree with this approach for the following reasons:

1st- Ms. Lee mentions my biggest concern, and that is the fact that a broad use of the market failure approach would permit nearly any activity to be considered economic. She contends that this can be resolved by taking a narrow approach, but I'm unsure how focusing only on activities that impact on interstate markets differ from traditional commerce clause analysis.

2nd- Market failure itself is a troubling term, particularly when it comes to commerce clause analysis. For one thing, as I just mentioned above, the term can very elastic. And one person's market failure is another person's functional market. For all the different examples of market failure discussed by Ms. Lee, I think most come down to the tragedy of the commons. That is, air pollution, water pollution, and other similar issues are issues precisely because the air and the water is owned in common and not by any one individual or party. (We'll ignore the inconvenient fact that this is not really an example of market failure at all, but an example of the problem of public as opposed to private ownership.) And remember, when it comes to the ESA, we're talking about what people do with their own privately own land, not any publicly owned land.

The problem with considering the ESA a response to a market failure is that it is unclear why the loss of an endangered species on private land is any more of a market failure than any other sort of environmental impact on private land. The only real counter argument would involve the economic value of endangered species in the aggregate, but this is precisely the sort of logic I've rejected in my article and which Ms. Lee had previously rejected herself. Perhaps an argument can be made for species which have economic value, but many endangered species have no such value outside of a nebulous concept of biodiversity and the interconnectedness of life- and this is precisely the sort of argument I rejected in my article because with such an argument it is impossible to distinguish an endangered species from any other aspect of the environment.

3rd- Ms. Lee ignores the possibility of an as-applied challenge. In Raich, with marijuana, and even in Wickard, with wheat, the decisions rested on the fact that you could not separate the local intrastate activity (homegrown marijuana and homegrown wheat) from the larger regulation. In both cases the regulations in question regulated all aspects of the identified commodity. In the case of the ESA (similar to the SDWA) Congress has identified specifically what is to be regulated and local intrastate species can be distinguished from species which travel interstate. For instance, take the sand-loving fly or the cave insect species brought to light in past ESA challenges. One would have to show that these species were essential to the ESA as a whole in order to find them permissible subjects of regulation- and it's just hard to buy that the ESA would be useless if these intrastate species weren't included. One would have to make the argument that any single species extinction is harmful, which is exactly the proposition that the ESA does not stand for and not to mention is patently absurd on it's face- after all, new species evolve and old species go extinct and this is a cycle that has been going on since the beginning of time.

Finally, I'd just like to note that even if this market failure approach could prove applicable to the ESA, it would be difficult to apply it to the SDWA. A failure of a non-economic entity to ensure the safety of it's drinking water is no different than the failure of a non-economic entity to ensure the safety of it's buildings or anything else located on the premises. Following through such logic would permit the federal government to regulate building codes, zoning, and everything else which has traditionally been the realm of local government.

Some people may wonder why I dwell on the Commerce Clause- for me, the Commerce Clause is a powerful symbol of the lack of concern Congress shows for Constitutional constraints. If the Constitution is to have any real meaning, any real force, we can't pick and chose which provisions we like and which provisions we don't like. Those who think the regulatory reach of the federal government should extend beyond economic and commercial matter should pursue this goal the Constitutional way- through the amendment process. Stretching language and engaging in legal trickery does a disservice to the Constitution and the people of this country.

What The Response To Global Warming Says About Us

Hearing the responses to the Supreme Court's global warming decision this week from academics, media personalities, and fellow students has gotten the juices in my brain flowing yet again. But rather than focus on the Court's decision or any of the usual rigmarole, I wanted to comment on what proposed solutions to the "problem of global warming" says about us as a people.

Remember, the Supreme Court case was not about the regulation of all greenhouse gas emissions, only the emissions from new automobiles. Most of the regulation sought in regard to auto emissions are in regards to new cars, not cars that are already on the road. And when it comes to other sources of greenhouse gas emissions- such as coal fired power plants and other energy producers- proposed regulations are geared at the producers of energy, not the users. Now why is this important? Well notice where regulations designed to curb the effects of global warming are aimed- at industry and at energy producers. Regulations are not aimed at you and me- they are not aimed at individual Americans.

No one is proposing that the amount of driving we do be limited. No one is proposing the amount of energy we use in our homes be limited. And why not? Because even though such laws would actually be more effective and combating global warming, they are far too draconian to be politically feasible. Quite simply, we wouldn't put up with such constraints on our freedom.

So instead we look to regulate the auto industry and energy producers. These sorts of laws do take away our freedom, but they do so in a far more indirect way. Maybe the types of cars we use (or light bulbs for that matter) may be restricted, but our use of what we can still purchase is not restricted. Unfortunately, we seem more and more willing to accept limitations on our choices as consumers.

The fact that we are generally unwilling to accept limitations on our personal energy uses and behavior indicate how much the global warming hysteria and much environmentalism is more about feeling good than actually accomplishing anything. The fact of the matter is that man-made global warming is caused by human activity, and until better and cheaper technology can be developed, halting the spread of man-made global warming can only be achieved by a decrease in human activity. Older cars and older power plants tend to produce more greenhouse gas emissions than newer cars and newer plants. And who tends to have older cars? Poor people. Who tends to rely on older power plants for energy? Poor people and poor countries for that matter.

For the global warming fanatics out there, what do you say to the billions of Chinese and Indians who may be able to afford cars in the next 50 years? What do you say to them when the only cars they are able to afford can't meet the emission standards we want here in the United States? Of course, this is why global warming rhetoric tends to focus on the developed world and not on people living in third-world or near third-world conditions.

As I mentioned, the interesting thing about proposed global warming laws are how divorced such laws are from individual energy consumption. People like the idea of "doing something" about global warming, yet the same people are loathe to consider jailing or even just fining those individuals who produce greenhouse gas emissions at "too great" a level. Some of us can deal with being told what light bulbs to buy, but the idea of taxing energy as to double or triple the cost as a means of encouraging conservation is frowned upon.

Following his Oscar win, Al Gore has made news win with the "carbon offsets" he has purchased in order to compensate for his use of energy. This is indicative of the response to global warming. The rich will always have the means to maintain their lifestyles, which means that either the brunt of global warming regulation will be felt by the poor, or global warming regulations will have no real effects.

The Supreme Court Has Global Warming Fever

The Supreme Court ruled yesterday in Massachusetts v. EPA, the big case this term about global warming.

I only finished reading the full opinion this morning, but I think my thoughts are very similar to Jonathan Adler's analysis. Just a few points that I'd add for the non-legal audience.

Much of the controversy in this case rested on the question of standing- that is, could Massachusetts and the other states involved actually petition the Courts to force the EPA to take action in regards to global warming. Standing doctrine is important because without it, any and all citizens would be able to clog the court system with lawsuits against the government simply because they are taxpayers. In essence, standing doctrine has always required that plaintiff be able to show a specific injury (as opposed to a generalized harm suffered by everyone) and an ability to redress that harm through the desired lawsuit.

I won't dwell on the Court's analysis that as states, the plaintiff's were entitled to special consideration in regards to the question of standing. Nor will I dwell on the fact that Massachusetts's specific claim of harm was coastal damage due to impending sea level rises caused by global warming. The really troublesome aspect of the decision is the fact that the Court could find that this specific injury could be remedied by EPA regulation- and not EPA regulation of all carbon emissions, but EPA regulation of emissions from new automobiles.

Think about this for a second- I believe the emissions of American cars accounts for somewhere in the range of 6% of all global carbon emissions. And we don't know the degree to which man is responsible for the current warming trend. In other words, setting limits on the emissions of new cars would result in a minuscule decrease in worldwide carbon emissions, if it would lead to any decrease at all.

Now to be fair, the Court is correct when they state that there is no requirement that injury be addressed in it's entirety, nor a requirement that a complete and comprehensive solution be undertaken. The case before the court is only the language of the Clean Air Act that the plaintiffs have raised, and the question of whether these plaintiffs can force the EPA to reconsider it's regulation of emissions from new autos. However, the problem in finding that this injury can be redressed is that there is no statistical or scientific basis to argue that such regulation would have any impact upon the quality of the Massachusetts coastline. Just think for a minute at how disconnected the regulation of new emission standards is from the Massachusetts coastline. We're talking about tiny percentages impacting upon centimeter rises in sea level, where we don't know how much they'd be rising without the actions of humans in the first place.

The notion that the possibility of future harm- involving activities that may be a minuscule percentage of that future harm- are enough to warrant standing is quite scary. When it comes to global warming and the Clean Air Act, plaintiffs now would have standing to force the EPA to consider carbon emissions in every context on the Clean Air Act- including as Jonathan Adler points out, urban air quality standards.

My concern here is more with the legal than the practical impact of the decision. I think the practical impact has been played up by the press a bit too much. Essentially, the decision is forcing the EPA to reconsider it's position- it must now chose to regulate carbon emissions as pollutants under the Clean Air Act, it must decide that carbon emissions are not air pollutants (which would likely throw the case back into court), or it must determine a rationale under the Clean Air Act for not regulating carbon emissions. Either way, this initial process could take weeks to months, possibly even years. And should the EPA decide to regulate, rule making procedures can take years, sometimes decades to accomplish. In reality, we'll probably see Congress and the President (whoever the President is after George Bush) come up with some sort of comprehensive global warming plan that would pre-empt anything the EPA has started. As I said, the legal consequences will be far more wide reaching than any of the practical consequences.

New York Times Fail English? That's Umpossible

This New York Times editorial caught my eye this morning. In particular, this bit at the end of the editorial:

Today’s preferential rate for capital gains is excessive, with no mechanism in the tax code to ensure that it is not overused. Excessively favoring one form of income over another encourages wasteful gamesmanship, creates inequity and crowds out other ways to foster risk-taking.

That's right, the 15% tax rate for capital gains is excessive because it is too low. Thanks New York Times, for such eloquent use of the English language.