A Stitch in Haste

The core lesson of the Broken Window Fallacy is that benefits are often more visible than costs.

But when the costs aren't particularly invisible, then whom do you blame for your failure to comprehend?

Airline passengers willing to put up with aggressive new airport security measures are enjoying the unexpected serenity that comes from boarding flights with considerably less carry-on luggage.

Travelers and flight crew report faster boarding, less competition for overhead storage and frictionless deplaning in the seven weeks since a foiled terror plot in Britain prompted the U.S. government to crack down on carry-on items.

Many travelers responded by checking all their bags. ... The result has been that 20 percent more bags are checked and boarding times are five to 10 minutes faster[.]

This is, of course, utter nonsense.

Serenity? A flight with no infants is serenity. Enough space to open my laptop and play a DVD is serenity. Pretzels instead of trail mix is serenity. Diet Dr. Pepper on the beverage cart is serenity.

Five fewer minutes of boarding time is not serenity.

And besides, that's just the visible benefit — what about the (equally visible) cost?

[D]elays during boarding have moved to baggage claim and check-in. "It's taken the stress to a different section of the travel experience," [a flight attendant] said.

My experience is that baggage claim adds a minimum of 20 minutes to the total travel time; at a major airport like JFK 30-40 minutes is more typical. And it comes at the absolute worst point of the trip — the end, when all you want is to get to your hotel, or home. And baggage claim is the closest law-abiding equivalent to prison: no amenities, no civilities, usually no seats, typically no vending machines, often no restrooms — and no escape, until your sentence has been served.

Five minutes less boarding time in exchange for that? No thanks.

And by the way, how long do you think the (unionized) baggage handlers are going to tolerate this increase in workload without a corresponding increase in their wages? Which, of course, will be passed on to flyers (since most airlines have no profits to eat into)? That cost will become all too visible all too soon.

Buh-Bye.

Here's a quick summary of the Military Commissions Bill, a/k/a the Alien and Sedition Act of 2006:

Included in the bill ... are unique rules that bar terrorism suspects from challenging their detention or treatment through traditional habeas corpus petitions. They allow prosecutors, under certain conditions, to use evidence collected through hearsay or coercion to seek criminal convictions.

The bill rejects the right to a speedy trial and limits the traditional right to self-representation by requiring that defendants accept military defense attorneys. Panels of military officers need not reach unanimous agreement to win convictions, except in death penalty cases, and appeals must go through a second military panel before reaching a federal civilian court.

By writing into law for the first time the definition of an "unlawful enemy combatant," the bill empowers the executive branch to detain indefinitely anyone it determines to have "purposefully and materially" supported anti-U.S. hostilities. Only foreign nationals among those detainees can be tried by the military commissions, as they are known, and sentenced to decades in jail or put to death.
...
Under the new procedures, trials are supposed to be open, but can be closed to protect the security of individuals or information expected to harm national security.

A few hasty stitches:

--"Detain indefinitely anyone" is generally thought to include American citizens on American soil. And although only foreign nationals can be tried by the military commissions, keep in mind that there need never be a trial at all. It is conceivable, if unlikely, that American citizens on American soil could start "disappearing" they way they did in the Soviet Union (a/k/a "The Evil Empire").

--If you are a textualist (like me), then the bill's revocation of habeas corpus is patently unconstitutional:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.

--Do the Members of Congree even understand what they have done...

Jay Rockefeller ... complained that the White House has concealed all information about the program and that the Intelligence Committee members (including him) know nothing about this interrogation program. ... He then proceeded to vote for the underlying bill anyway.

...and do they care?

During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus protections. Then he voted for it.

Now it's up to the "activist judges" to restore sanity.

--In case you think you can still reason with the apologists of this Administration and this bill, then try to imagine reasoning with someone who gives this description of Guantanamo Bay:

They were being treated very lavishly, as you know, to Ramadan, and we [ate] the meal that ... when I was down there, that the detainees eat, and very proudly, we were told, as they served up this fantastic meal[.]
...
These guys have fantastic facilities, certainly better facilities than anyone in any previous war has ever enjoyed.

That's Bush-worshipper Mark Steyn, who also notes, in passing, that some of the detainees have been there for four and a half years. "Fantastic" indeed.

Stay tuned...

"London has a 26.4 per cent share of the global IPOs in which $1 billion or more was raised this year. New York has only 6.5 per cent. In 2001, the year before the Sarbanes-Oxley Act was passed, London had 8.7 per cent to New York’s 59.1 per cent, according to Thomson Financial. ... Many non-US chief executives have balked at the rules, which require them to take full responsibility for their accounts and can take thousands of hours and cost tens of millions of pounds to comply with."
--Times of London, 28 September 2006

It became necessary to destroy Wall Street in order to save it?

But have no fear — Bloomberg is here!

Michael Bloomberg, the Mayor of New York, is so concerned about the Big Apple ceding its status as the world’s financial centre to London that he has appointed consultants to look at the problem.

Mr Bloomberg's Economic Development Corporation, which is paying $600,000 for the project, may take a range of measures after the two-month investigation by McKinsey, the management consultancy. The measures could include putting together a committee of heavyweight Wall Street bankers to fight New York’s corner and lobbying to change some of America’s financial regulations, a corporation spokesman said.

Yeah right, good luck with that (especially considering that it's my tax dollars that are underwriting it).

Here we see the failure of hack politicians at all levels and across all time periods. Washington, in a binge of the Politics of the Warm Fuzzy Feeling, passed an insane law that is causing global firms not to list their securities here, and local firms to do the same (i.e., via a frenzy of management- and investor-led buyouts). When oh when will Congress repeal the Law of Unintended Consequences?

The local hack politicians of New York City, meanwhile, have for years — decades, generations — been content to lazily suck at the teat (leech at the blood?) of Wall Street to finance their limitless need for fiscal recklessness.

But City Hall is not more powerful than Capitol Hill, and Gracie Mansion is not more powerful than the White House. The whining of Mayor Bloomberg and his hired mouthpieces will not get Sarbanes-Oxley repealed — not even Wall Street itself has been able to achieve that.

What may, someday, force Congress' hand on Sarbanes-Oxley will not be New York City's increasingly tax-deprived fiscal woes, but a different, near-Randian phenomenon: the disappearance of corporate directors. It is now in some ways an irrational act to become a non-management director of a publicly-traded company. The pay is unexciting, stock options aren't what they used to be. Oh, and you can go to jail if anyone, anywhere, in the company screws up the books, intentionally or even accidentally. Would you agree to that deal? I wouldn't.

(Via Samizdata.)

I rarely comment on symbolic bills that only make their way through one chamber of Congress (usually the House) and have no chance whatsoever of actually being enacted.

But this one is just too enraging:

The House passed a bill yesterday that would bar judges from awarding legal fees to the American Civil Liberties Union and similar groups that sue municipalities for violating the Constitution's ban on government establishment of religion.

Though the bill would prevent plaintiffs from recovering legal costs in any lawsuit based on the Establishment Clause, House Republicans said during a floor debate that it was particularly aimed at organizations that force the removal of Nativity scenes and Ten Commandments monuments from public property.

Keep in mind that this applies even when the plaintiffs win — when a government body indeed violates the First Amendment. Even then, under this obnoxious bill, no legal fees could be awarded. Justice may be blind, but it better not be broke too.

Of course, one might argue that such a law would itself violate the Establishment Clause. And I don't see "regulate legal fees" anywhere among the enumerated powers of Congress ("establishing federal courts" is not the same as micro-managing them or selectively denying legal remedies to a subset of litigants).

What possible legal justification could there be for such a sweeping, context-dropping law? None, of course. But political justification? Plenty:

Caroline Fredrickson, director of the ACLU's Washington legislative office, said the measure is "election-year red meat for the Christian right, because they've been complaining they haven't gotten enough from this Congress."

On the other hand, if tertiary tinker-around-the-edges stupidities such as this are the best that the Red State Redneck members of Congress can come up with, then they must really be getting desperate. Good.

And remind me again why judges should feel compelled to defer to hack politicians like these?

The bill is the Public Expressions of Religion Protection Act, H.R. 2679. The corresponding Senate version is S. 3696 and is, fortunately, stalled in committee.

(Via How Appealing. See also here.)

You might want to take a moment's break from debating "Blu-Ray v. HD-DVD" to note that DVDs are now essentially considered contraband:

An alliance of film industry groups that includes the Motion Picture Association of America and the Federation Against Copyright Theft has announced the world's first dogs specially trained to detect CDs and DVDs in bags and packages. The idea is that the dogs may be able to alert police to large stashes of pirated movies.

The MPAA says there are currently two DVD-sniffing dogs in the world. They are Labradors named Lucky and Flo working at Stansted Airport in the United Kingdom. The canines have been taught to recognize the unique smell of a compact disc.

Of course, there is no way for a dog to distinguish between a perfectly legal original DVD, a perfectly legal copied DVD, or an illegally pirated DVD:

Customs officials in the U.K. hope one day the dogs will only signal when there are large collections of discs, which would more likely include illegally copied movies. For the time being, Lucky and Flo are working at a FedEx shipping center at Stansted Airport where they are sniffing packages that are shipped around the world. Trainers say the dogs have been notifying customs agents of packages with discs in them. The packages have been opened but so far no pirated movies have been found.

Details, details.

Assume that, someday, the dogs can be trained to alert only for large quantities of discs. So what? Does even that rise to the level of probable cause to conduct a search? Or is the presumption that you automatically consent to a search whenever you ship a box?

More on "when legal becomes contraband" here. More on the fallibility of dog sniffs here.

At least the dogs are cute:


(Via Fark.)

The more things change...

Amtrak's new president said Thursday that the U.S. should embrace rail travel at a time of growing transportation needs and high oil prices, but he gave no details of his plans for fixing the indebted passenger service.

Speaking publicly for the first time since he began his job Sept. 12, Alexander Kummant said two of his goals were finding the most effective and efficient ways to run long-distance routes and beefing up the infrastructure of the heavily used Northeast Corridor.

But Kummant did not say how he would do those things, to the frustration of some lawmakers.

...the more they stay the same:

Amtrak has debt of more than $3.5 billion and its operating loss for 2005 topped $550 million. It has never made a profit in its 35 years of operation.
...
Under a Senate bill, Amtrak would see its federal subsidy increased by 8 percent to $1.4 billion for the budget year beginning Oct. 1. Amtrak received a $1.3 billion subsidy for the current year.

Of course, the best way of "finding the most effective and efficient ways to run long-distance routes" would be to run trains where there is a demand for trains, and not to run trains where there is no demand for trains. But Amtrak has never -- never -- been about being "effective and efficient." Its locomotive has always been the Politics of the Warm Fuzzy Feeling (with the Politics of Pull for a dining car).

Similarly, "beefing up the infrastructure of the heavily used Northeast Corridor" would be trivial if a market-clearing price were charged for its "heavy use" and if the revenue from it were not diverted to other less-used (i.e., unwanted) lines. Every true businessperson understands this -- too bad Amtrak is not a true business.

As for the subsidies, we have a Republican president and a Republican Congress, so of course the subsidies are going to increase -- All aboard!

The more things change...

This development really shouldn't be surprising to anyone:

On the shaded streets of Coram and Gordon Heights [in Long Island, New York], 39 convicted sex offenders live within a half-square-mile area. Fifteen reside on one block alone, and 11 properties house multiple offenders.
...
It's no accident that so many sex offenders ended up in this small area, according to experts, politicians and offenders themselves. Newsday's analysis shows that this cluster came about for a variety of reasons, including the low cost of rentals, their location more than a quarter-mile from schools or playgrounds, which is required by law, and the willingness of some landlords to accept sex offenders.

It's quite simple really: If you red-line sex offenders out of one neighborhood, then they will simply move to another neighborhood. If you red-line most of a city, then the registrants will form clusters in those few areas that somehow aren't proscribed.

Now, if you want to rehabilitate a criminal, isn't the best way to achieve that by holding out hope of an alternative life -- a mainstream life? Don't you want to try to coax offenders into wanting to be part of the (law-abiding) community? How does banishing them to a low-income, high-crime ghetto accomplish that?

Or is it instead that rehabilitation is not a goal? Could it be that advocates of registries and red-lining simply want banishment for the sake of banishment -- the relentless quest to make it "somebody else's problem"?

Consider the next proposed step to quash even these outposts of legal residency:

[L]egislation introduced last week by Suffolk Legis. Kate Browning (WFP-Shirley) would make placement of offenders more difficult by banning county agencies that provide services to sex offenders from putting more than one offender in the same house.

If I'm not mistaken, "WFP" means "Working Families Party," a socialist fringe outfit based here in the New York area. Workers of the world unite -- to kick out the sex offenders!

The fundamental and obvious question with respect to red-lining is both critical and unanswered: Where do you, um, draw the line? Obviously we can't red-line the entire country. Does it not violate due process to red-line an entire city? Given that most sex offenders are not violent and do not pose a recidivist threat (contrary to the hysteria of those who insist otherwise), do registries and red-lining even satisfy rational basis review, especially when the red-lining includes objective absurdities such as "bus stops" and "skating rinks"?

We see it over and over and over: When it comes to the Others Who Are Ruining America™, too much is never enough, no restriction is too extreme, no inequity or injustice need be addressed. Even for the socialists!

(Via CrimProf.)

"Most Americans believe their phone records are theirs. I'm still waiting for someone to explain to me how you get, short of a subpoena issued by a Court or Congress, someone's phone records without their permission."
--Representative Joe Barton (R-Texas), Chairman of the House Energy Committee

What a wonderful reiteration of the core principles underlying "the American way of life" that we are trying to defend against the terrorists!

Too bad he wasn't talking about the NSA warrantless wiretapping or phone record scandals, but rather the (uninteresting to me) Hewlett-Packard "pretexting" scandal — which is strictly a criminal matter over which Congress should be expending exactly zero effort.

Oh well...

(Via 27B Stroke 6. See also here.)

Brazil is undertaking a program to convey private property rights to residents of its shantytowns:

Without title, residents cannot finance home repairs, get credit or mail, or sell their property. They can also be evicted without legal recourse — a real fear in a city where entire slums — known as favelas — have been removed to make way for commercial developments.

Since 2003, 272,000 families nationwide have received titles to property in favelas and another 450,000 families are in the process of getting them, [Minister of Cities Marcio] Almeida said.

"A right to property is like a right to citizenship," he told a ceremony inaugurating the program in a humble white church in the heart of Rocinha.
...
Today, about a fifth of Rio de Janeiro's 6 million residents live in the favelas. Many have been there for generations.

So while the United States reinvents property rights downward, less developed countries reinvent them upward. Go figure.

There is of course no difference between the favelas and, say, pharmaceutical research: why invest if you can't reap the rewards? Now these residents can reap the rewards, so they will indeed invest (or sell to those who will invest). And the favelas and their residents will inevitably benefit from that.

Meanwhile, any proposal in, say, New York City to offer property rights to occupants of public housing, to give them an opportunity to invest in and thereby improve their homes, would bring only hysterical laughter (or vitriolic rage) from the so-called "housing activists." Go figure. Indeed, I would not be surprised to see some opposition to the Brazil plan from anti-capitalists on the grounds that the "greedy real estate developers" will simply buy up all the land in the favelas and turn them into condos. Or worse, they would bemoan the end of a "way of life" — even if was a life of poverty and squalor.

Nope, wrong Kip:

Yesterday, while discussing the new rules a fellow Flyertalker suggested we write [TSA Director] "Kip Hawley is an Idiot" on the outside of our clear plastic quart bags. So I did just that.
...
The TSA guy ...went strait [sic] to the TSA Supervisor on duty and boy did he come marching over to the checkpoint with fire in his eyes!

He grabbed the baggie as it came out of the X-ray and asked if it was mine. After responding yes, he pointed at my comment and demanded to know "What is this supposed to mean?" "It could me a lot of things, it happens to be an opinion [of] mine." "You can't write things like this" he said, "You mean my First Amendment right to freedom of speech doesn't apply here?" "Out there (pointing pass the id checkers) not while in here (pointing down) was his response."

I had avoided this story given that it is strictly anecdotal (I had seen it on Fark), but Boing-Boing and Wired have picked it up too, and one part of the alleged exchange caught my eye:

I then repeated that the TSA Supervisor stated my First Amendment rights didn't apply at the TSA check point and I asked if he (the deputy) agreed that was the case. He responded by saying "You can't yell fire in a crowed theater, there are limits to your rights."

Have you ever watched daytime small claims television shows and hear a litigant insist that "the police told me..." only to have the judge snap back, "The police are not lawyers!" Same principle. A little knowledge is a dangerous thing, and a little knowledge by a TSA agent is downright, um, explosive.

I too learned "You can't shout 'Fire!" in a crowded theater." Of course, I learned it in high school, not law school. What I learned in law school was that this famous First Amendment observation by Justice Holmes in Schenck v. United States, 249 U.S. 47 (1919), while good analogizing, is not good law. Schenk was revised (and I would argue improved) by Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) and the "imminent lawlessness" test: speech is protected unless --

such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

So, the burden is clearly on the TSA to demonstrate how "Kip Hawley is an Idiot" written on a plastic bag is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Of course, such a burden could never be met.

Another good test in such circumstances is that of Cohen v. California, 403 U.S. 15 (1971): If there is a First Amendment right (and there is) to wear, in a courthouse, a jacket with "Fuck the Draft!" on the back, then anything less disruptive must also be protected speech. Think anyone at the TSA can make the case that "Kip Hawley is an Idiot" is worse than "Fuck the Draft!"?

I don't know whether Kip Hawley is an idiot. But if this story is accurately portrayed, then the TSA agents were certainly idiots for pretending that they know First Amendment law when they don't. And I suppose that in turn might make Kip Hawley an idiot for not crafting better guidelines for their agents to follow.

MAJOR UPDATE: The TSA has issued a statement acknowledging that their agents have no authority to act upon messages on toiletry bags. Follow-up commentary from the flyer here.

Let's check in on some of the Red State Rednecks' favorite elected representatives.

ITEM: I am of course late to the party regarding the recent developments concerning Senator George "Macaca" Allen. But as John Kerry might say, I was early before I was late, so cut me some slack.

On the question of how he could not have known, or even suspected, that he might have Jewish ancestors, even though he repeatedly noted that his grandfather was sent to a Nazi concentration camp: Talk about "not connecting the dots." As for the question of whether his ancestry matters: of course it does, for a very simple reason. Allen has, throughout his political career, worn his Christianity on his sleeve, and has pandered, relentlessly, to the evangelical Christian (i.e., Jesusland) base. And given the Jesuslanders' penchant for playing fast and loose on "the Jewish question" — what I have called the "Judeo-Gotcha" — the topic is unquestionably fair game, as is Allen's truthfulness on this (or any other subject).

On the accusations that he used racial epithets in his youth, and the counter-accusations that he is being "Swiftboated": the credibility of witnesses is a question to be left to the triers of fact (i.e., you and me). Allen has cause to lie, and a circumstantial record of having appeared to have lied in the past. These former teammates are not "partisan political operatives" (remember that term?) and are respected professionals. Others, meanwhile, have stepped up to defend Allen. We report, you decide.

This much is certain: Allen will either win or lose re-election to the Senate this November. But it is unequivocal that he is no longer a viable presidential candidate in 2008. "Long live the prince, the prince is dead!"

More thoughts from Pam's House Blend.

---

ITEM: Now that Allen is damaged goods, the Jesuslanders need a new princely heir --

The question hung in the air of this past weekend's Family Research Council summit in Washington: Who will that candidate be for the GOP's powerful social conservative base?
...
Surprisingly, it was Massachusetts' Gov. Mitt Romney, a Mormon with a Harvard M.B.A who governs the nation's most liberal state. The 1,800 delegates applauded him frequently during his Friday speech and gave him a standing ovation afterward. Mr. Romney detailed his efforts to block court-imposed same-sex marriage in the Bay State and noted that the liberal Legislature has failed to place a citizen-initiated referendum on the ballot. He excoriated liberals for supporting democracy only when they think that the outcome is a foregone conclusion that favors their views. He certainly picked up fans at the summit. "I believe Mitt Romney may be the only hope social conservatives have in 2008," says Maggie Gallagher, author of a book defending traditional marriage.

Of course, the fascinating thing about Romney's appeal to the Jesuslanders is that he is not one of them — he's a Mormon. To the evangelicals, Mormons are a lot like Jews — in public, the Christians treat these "not quite Christians" as just another voice in the church choir. But in private, amongst themselves, it's "All Jesus All the Time" — Moses and Moroni are simply not part of the equation; they merely get paid some occasional lip service each election season.

In any case, if no less noteworthy a Jesuslander than professional bigot Maggie Gallagher concludes that a Mormon is "the only hope" for social conservatives, then that invites the question: are there no candidates to defend "traditional Christian values" who are, um, traditional Christians? This is somehow indicative of a movement that is supposedly "showing momentum"? Go figure.

POST SCRIPT: Incidentally, Romney is pro-choice. Even more evidence of how pathetic the Jesuslanders must be if he's the best they can come up with.

---

ITEM: Going back to the November elections, it looks increasingly certain that Pennsylvania Senator Rick "Man on Dog" Santorum is headed toward a clear and perhaps humiliating defeat. Couldn't have happened to a more deserving bigot.

Still, Santorum — the number three leader of Senate Republicans — is simply too useful in Jesusland politics to go quietly into the night. I rarely make political predictions (and when I do, I am never right), but I would not be surprised if, once his term expires, a high-profile Cabinet position promptly became available for Santorum. Or, going out on a limb, we might see Bush and Rove oust party leader "Closet Ken" Mehlman so Santorum could become RNC Chairman.

Rick Santorum versus Howard Dean — that could make a libertarian's head explode.

---

ITEM: Let's end with a little humor. A forthcoming Comedy Central animated series, "Freak Show," will feature bizarre and dysfunctional deviants and mutants as bumbling superheroes. I would not normally watch such a show, but given that one of the freaks is "Log Cabin Republican" — a spindly suit-and-tie type who morphs into a Hulk/Thing-styled alter-ego named "Burly Bear" — I may have to give the show a screening.

ACS Blog recently ran a series of four posts in which University of Chicago Law School colleagues Geoffrey R. Stone and Richard Posner debate "Civil Liberties in Wartime." You may recall that I have been chronicling Judge Posner's increasingly bizarre views on warrantless wiretapping, data mining and the "trade-off" between liberty and security in the War on Terror. Posner is becoming increasingly lexicographical in his preference for the latter over the former (i.e., he is approaching a worldview in which, for all intents and purposes, no price, including emasculating the Bill of Rights, is too high to win the War on Terror).

Here are some verbatim excerpts from Posner's posts that illustrate his increasingly fringe position:

--I do not think that "restrictions of liberties should be a last resort."

--Civil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration.

--I am not prepared to die at the hands of terrorists in order to defend the Miranda rule ... or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.

--Since the American public has already surrendered much of its communicative privacy by its profligate use of analog cell-phones, employers’ email services, and Web services such as Amazon.com and Google which create essentially indelible records of customers’ preferences, including political and sexual, I do not think the public would blanche at giving up a bit more to enable the government to monitor terrorist communications.

--What I think national security requires is a two-stage process. In the first, computer search programs search the world’s entire daily electronic traffic (to the extent feasible) for messages that are suspicious because of names or word clusters in the message, social security numbers or other personal identifying information besides names, the origin or destination of the message, and other suspicious characteristics. These messages, a minute fraction of all those screened by the search programs, would be listened to or read (as the case may be) by (human) intelligence officers.

--Computer screening is not a search, because a computer is not sentient.

I think that can all be summed up nicely in one word: scary.

What Posner, who essentially invented the field of "law and economics," so unforgivably forgets is that much of his position is based on wholly subjective preferences and not on objective standards. Perhaps he is not willing to die to defend the Miranda rule, but what if I am? Who is he, even as credentialed as he is, to insist that no one else demand "quasi-religious veneration" of the Bill of Rights? It cannot be shown, objectively, that his preferences are "right" and anyone else's are "wrong." And given that it is the Bill of Rights and basic civil liberties, should our competing preferences really be subject to a majority vote to see whose views win?

What is "the American way of life" that we are so desperate to defend, if not respect for the Constitution and for civil liberties? One wonders whether Posner, who is so insistent about not dying, would a generation ago have embraced the saying, "Better Red than Dead"?

There are ways, safe and effective ways, to prosecute the War on Terror without turning it into a war on the Constitution. One would have hoped that our preeminent legal scholars would understand this.

The Supreme Court has resumed the process of deciding which cases it will hear in its next term, which begins October 2. Nine new cases were announced today.

One of those nine caught my eye:

Justices accepted an appeal from the state of Washington that involves fees paid to the Washington Education Association by teachers who decline to join the union.

Those workers still can be charged dues by the union to help pay for labor negotiations that affect them. But they can't be forced to pay for the union's political activism, under a string of Supreme Court rulings that reach back nearly 30 years.

At issue is whether the union needs teachers to say "yes" before the fees can be used for political causes or whether teachers must specifically object to having a portion of their fees spent for that purpose.

When did that go up for grabs?

It's bad enough that employers are required, by government coercion, to collectively bargain with labor unions against their wishes. It's outrageous enough that workers are required, by government coercion, to pay union dues against their wishes. It's scandalous enough that labor unions are allowed to make political contributions at all — how is that in any way their proper function?

None of that is enough. The unions also want to force their (compulsory) dues-paying non-members to have to do the work of opting out of having their (compulsory) dues used for politicking. All the workers want is for the unions to have to — gasp! — ask first (i.e., an opt-in system).

The unions' rationale, meanwhile, is — get this — that their (organizational) First Amendment rights (sic!) somehow trump the (individual) First Amendment rights of the (compulsory) dues-paying non-members who are actually footing the bill of the unions' "free speech."

Madness. Sheer madness.

The Washington State Supreme Court's pro-union decision requiring "opt-out" instead of "opt-in" was so wholly against the great weight of precedent — most recently Communications Workers of America v. Beck, 487 U.S. 735 (1988) — and so antithetical to every notion of common sense and fair play, that one simply must assume that the Supreme Court took the case to smack it down.

Stay tuned...

The case is Washington v. Washington Education Association, No. 05-1657. The petition for certiorari can be found here (PDF - 35 pages). More thoughts from Election Law, Balkinization.

I have added three new categories in order to get the posts a bit more organized:

--Frivolous Lawsuits

--Nanny State

--Terror v. Civil Liberties

I intend to start relying more on categories and less on post chains (some of which have grown quite long and cumbersome) going forward.

Of course, you may use the Search feature in the sidebar (powered by Google) to seek out specific posts.

Enjoy.

Chicago now has some competition in the race to be the worst nanny-state city in America:

The New York City Board of Health today endorsed a proposal that would prohibit the city's 20,000 restaurants from serving food that contains trans fats, the chemically modified ingredients considered by doctors and nutritionists to increase the risk of heart disease.
...
The proposal met immediate resistance among restaurant owners, who said banning trans fats would raise their costs and change the taste of some menu items.
...
"Like lead paint, artificial trans fat in food is invisible and dangerous, and it can be replaced," [Health Commissioner Thomas R. Frieden] said. "No one will miss it when it is gone."

Of course, it's possible that restaurant owners might — just might — know a little bit more about their businesses, and their customers, than New York's central planner bureaucrats.

And the lead paint analogy is wholly inappropriate, because unlike lead paint, there are simply no externalities generated by trans-fat foods other than those artificially created by the government itself through socialized medicine.

Finally, one must ask where this greasy slope will take us. If banning trans fat transactions between competent, consenting adults is a proper function of government based solely on some vague, vacuous claims of "public health," then could the Board of Health, as a matter of law, also ban refined sugar? After all, it contributes to obesity and "can be replaced." What about whole milk? Salted peanuts? All peanuts?

Health police are merely a specialized form of central planner. And all central planners have a desperate and perpetual need to find ever more plans to centralize. Where real issues do not exist, they have to be invented. Do not expect trans-fat to be the last intrusion upon private transactions among private persons in the name of "public" health.

More thoughts from Rolling Doughnut, Push Liberty.

UPDATE: Overlawyered reminds me to point out that the claim that trans fat can be replaced with no loss of flavor or texture is simply false — an example here.

Just a quick update to note that the California Legislature has passed the absurd and likely unconstitutional "interstate electoral compact" under which participating states would, somehow, cast their Electoral College votes for whoever won the popular vote, thereby doing an end-run around the Electoral College itself. I gave the proposal thumbs-down in this post.

Not much is new, but I wanted to focus on this bizarre statement:

California is a key fundraising state for presidential candidates but often is absent from the general campaign itinerary because it is considered safely Democratic. "Candidates don't come to California," said Assemblyman Rick Keene, R-Chico. "We are currently disenfranchised in the electoral process."

Perhaps, but the same result would be achieved, without any constitutional difficulties, by simply switching to the District Method of allocating Electoral College votes. The ability to win contested districts throughout California would certainly "bring candidates back to California" and would serve as a powerful incentive to increase voter turnout. Everyone -- including the Electoral College and the Constitution -- wins.

(Via ACS Blog.)

"I pledge allegiance to the Christian Flag and to the Savior for whose Kingdom it stands. One Savior, crucified, risen, and coming again with life and liberty to all who believe."
--Pledge to the Christian Flag

Elmer Gantry meets Lord of the Flies:


What's the word I'm looking for?

Oh yeah — madrasah.

(Via Republic of T.)

Two entirely unrelated stories, except that they concern two of my favorite delicacies:

ITEM: Pizza delivery guys have, for the first time, won the "right" to unionize. Because, apparently, your local pizza parlor is an oppressive monopoly than must be reined in by our antediluvian collective bargaining laws. And because just quitting a job that pays too little for you is never a reasonable expectation — coercion under color of law is always preferable, right? (Via defcon:blog.)

ITEM: A coffee vendor in Seattle (I suppose the location is unsurprising) is suing Starbucks for negotiating exclusivity clauses in buildings where it leases space. The frivolous lawsuit (seeking class action status, of course) is couched in antitrust law: the plaintiff insists that Starbucks is a "monopoly" with its "73% market share." Funny, I always thought "monopoly" meant 100% market share. And besides, if you define the "market" properly (i.e., of all coffee consumed), then Starbucks' "monopoly" market share is more like 8%. Oh, and the way Starbucks was able to obtain these clauses in their leases was by overpaying for rent. Having to overpay is now a sign of "market power"? Go figure. (Via Truth on the Market.)

It's difficult to convey just how insane is the ruling by federal District Court Judge Jack Weinstein* granting class action status in the latest persecution of Big Tobacco — suing them for calling light cigarettes, um, "light" --

The ruling opens the door for millions, if not tens of millions, of Americans to join the lawsuit as plaintiffs. In his ruling, Judge Jack Weinstein of the Eastern District of New York, essentially said that any United States resident who has ever purchased a cigarette labeled "light" is part of the class represented in the suit.

It's possibly even more insane than suing cigarette manufacturers under strict liability theory (i.e., insisting that cigarettes — which function precisely the way they are designed to function — are somehow "defective").

I was never big on mnemonics in law school — I always thought it was wiser to actually learn the law rather than memorize acronyms. But one from civil procedure did stick in my head: "SCANT" --

--Superiority
--Commonality
--Adequacy
--Numerosity
--Typicality

Those are the requirements for certifying a class action under Federal Rule of Civil Procedure 23.

I won't define each prong; instead I'll cut to the chase. Quite often, especially with so-called "toxic torts" such as asbestos and tobacco, the highest hurdle of those five prerequisites is "Commonality" — the requirement that "there are questions of law or fact common to the class" (i.e., the members of the class must share enough attributes for the class as a whole to make sense as a "single litigant").

Does "the class of all people who ever smoked any 'light' cigarettes, of any brand, in any quantity, for any length of time, with any (or no) health effects" sound sufficiently "common" to you to warrant certification as a single plaintiff class (i.e., serve as a single litigant)?

If not, then congratulations — you're a better judge than Jack Weinstein.

The defendants are appealing the certification. Hopefully the Second Circuit will overturn Judge Weinstein's preposterous ruling.

(*Judge Weinstein serves on the Eastern District of New York — i.e., Brooklyn. Having gone to Brooklyn Law School, and having "majored" in torts, I know Judge Weinstein's history of inventing "innovative" solutions to mass tort claims all too well.)

More thoughts at Point of Law Forum.

Today's frivolous lawsuit:

Family members of three people slain by a 14-year-old on newsman Sam Donaldson's New Mexico ranch sued the makers of the video game "Grand Theft Auto: Vice City" on Monday, claiming the crimes would not have occurred had the teenager never played the violent game.
...
The plaintiffs accuse the corporate defendants ... of a "civil conspiracy," saying they should have foreseen their entertainment "would spawn such copycat violence."

This is, of course, utter nonsense.

First off, regarding "civil conspiracy": Conspiracy is not a true tort — it's closer to a form of vicarious liability (see Alec's comment below). And "conspiracy" to commit what?

Of course, the lawsuit will likely be framed as a negligence action — foreseeability is generally only relevant in negligence. And the plaintiff's emphasis on causation is also key in any negligence action.

As is duty. A plaintiff cannot prevail in a negligence lawsuit if the defendant owed him no duty.

So what, precisely, is the duty that the makers of GTA owe to the victims? Blank out.

And going back to foreseeability for a moment: the general (and entirely reasonable) rule is that the criminal acts of third parties are never — never — considered foreseeable. The plaintiff's lawsuit would therefore appear invalid ex ante as a matter of law.

If these shakedown trial lawyers really wanted to be clever, then they would consider framing the issue not as a negligence lawsuit, but rather as a product liability action. Simply claim that GTA, by "causing" violent behavior in minors, is defectively designed — and that its manufacturers (and wholesalers and retailers) are strictly liable for any injuries proximately caused by the defect.

If it's good enough for cigarettes (i.e., the thesis that a product that does exactly what it is designed to do can somehow be "defective"), then why not for video games?

One last point:

Thompson also is the attorney in a $600 million Alabama lawsuit ... that blames "Grand Theft Auto" for the 2003 murders of two police officers and a dispatcher at a rural police department.

I guess the idea is that if you file enough frivolous lawsuits, eventually you'll strike pay dirt somewhere.

(Welcome Overlawyered readers.)

One of the more difficult economic concepts to convey to neophytes is that businesses simply do not pay taxes.

The first step is to phrase it differently: Businesses do not pay taxes — they merely collect taxes. Only individuals can pay taxes.

When a business "pays" a tax — whether an income tax, a property tax, a gross receipts tax (or that ultimate monstrosity — the "windfall profits tax"), those tax dollars are siphoned off from one or more of the constituent groups of individuals who deal with the business. Perhaps the firm "passes along" the tax in the form of higher prices — to individuals. Or perhaps the firm offers a lower wage — to individuals — than it otherwise would have but for the tax. Or perhaps the tax simply eats into the firm's profits — but all firms are, ultimately, owned by individuals.

So again: No business has ever paid a penny in tax. No business ever could. Only individuals pay taxes.

That's elementary economics. More advanced economics is analyzing how this tax collection by businesses is distributed among those three constituent groups — customers, employees and owners. Mostly the answer will derive from the respective supply and demand curves (specifically, their price- and cross-elasticities) of both the goods or services that the firm sells and the inputs (e.g., labor) that the firm employs.

So, let's bring in the more advanced economists:

Using panel data for 72 countries and 22 years, we explore the link between taxes and manufacturing wages. ... We find that wages are significantly responsive to corporate taxation, and that the responsiveness of wages to corporate taxation is larger in smaller countries. We also find that tax and wage characteristics of neighboring countries, whether geographic or economic, have a significant effect on domestic wages. These results are consistent with the frequently employed assumptions in the public finance literature that capital is highly mobile, but labor is not and inelastically supplied. Under these conditions labor will bear the burden of labor taxes, and bear or share the burden of capital taxes.

So, to review, the notion that business or corporate taxes "aren't paid by people," or even that they are paid by the "rich, greedy capitalists" is simply false. When the dust settles, it is the worker who pays the firm's taxes.

Something to keep in mind the next time you hear some gobbledygook about how "corporate America isn't taxed enough" (or, worse, that "firms make too much money").

(Via Government Bytes.)

For Discussion #1: Apologists for Social Security like to insist that, under the current FICA tax scheme, an employer "matches" the taxes paid by its employees. In light of this analysis, is that really true?

For Discussion #2: How does the axiom that "businesses do not pay taxes" relate to the Broken Window Fallacy?

"Eleven states are giving voters their first chance this fall to override [sic] last year's Supreme Court ruling that allows local governments seeking more tax revenue to seize private property and give it to developers."

"Override"? What does that mean? I've heard of overturning Supreme Court rulings, but how do states "override" decisions from the high court?

They don't, of course:

The Supreme Court said states can restrict the use of eminent domain under their own constitutions.

Well yes, that was true before Kelo and would have been true had Kelo been decided any differently. That was hardly the Supreme Court being charitable -- it was the Supreme Court being cowardly.

Bottom line: Sloppy reporting for a sloppy audience.

As for the ballot measures themselves, I see no cause for celebration. Rights should not be subject to majority vote, even when such votes actually occur. The majoritarian mob that can "guarantee" rights can just as easily trample them. Gays know this all too well.

Kelo was not only wrongly decided but moronically decided. And the fact that some people, sometimes, in some places, might not be its victims misses the point entirely.

In case you still have any doubt that the social conservatives currently in power believe in first- and second-class citizenship:

My Administration remains committed to strengthening American families. We are working to protect the institution of marriage, promote responsible fatherhood, encourage parents to be involved in the education of their children, and provide every child with the opportunity to learn. By helping America's families thrive, we can build a brighter future for our country and give our young people the foundation they need to make good choices and build lives of purpose.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim September 25, 2006, as Family Day.

Even in something as trivial, indeed as silly, as "Family Day," our (out-of-favor) President still feels a deep urge to pander to his (out-of-favor) "Red State Redneck" base. When it comes to bashing gays, to insisting that "they just don't count," no opportunity will be squandered. The message is as strong as ever: "You are not us. Your love for each other, and for your children, is a perversion. Your families are inferior to ours."

Happy Family Day.

---

POST SCRIPT: Um, "...by virtue of the authority vested in me by the Constitution..."? I would love to know whence that "authority" supposedly derives. Because I can't seem to find it. Go figure.

It's official:

A stark assessment of terrorism trends by American intelligence agencies has found that the American invasion and occupation of Iraq has helped spawn a new generation of Islamic radicalism and that the overall terrorist threat has grown since the Sept. 11 attacks.

The classified National Intelligence Estimate attributes a more direct role to the Iraq war in fueling radicalism than that presented either in recent White House documents or in a report released Wednesday by the House Intelligence Committee[.]
...
Titled "Trends in Global Terrorism: Implications for the United States," it asserts that Islamic radicalism, rather than being in retreat, has metastasized and spread across the globe.

Well that's just lovely.

So the Iraq War, which despite all protestations by the White House, had and has absolutely nothing to do with the War on Terror, has cost us:

--our credibility, and our goodwill, around the world

--$317 billion (and counting)

--2,700 American lives (and counting)

...and has hurt us in the War on Terror.

The War on Terror, meanwhile, has cost us:

--our minds (via the Administration's absurd theories of executive power)

--our hearts (via the eradication of our civil liberties)

--our souls (if we continue to engage in "torture-lite" and essentially withdraw from the Geneva Convention).

How could one President, one Administration and one party do so much damage in such a short time?

Madness. Sheer madness.

POST SCRIPT: I suppose the Bush apologists will now insist that the New York Times was "traitorous" for disclosing the contents of the classified report. If this be treason...

UPDATE: Regarding the White House's response to the stories, keep the following in mind:

--The phrase "not representative of the complete document" is not synonymous with "incorrect" or even with "taken out of context." In fact, "not representative of the complete document" means "indeed an accurate part of the document."

--Similarly, the phrases "only a small handful" and "a fraction of judgments" do not mean "wrong" or "misreported." Quite the opposite.

--Contrary to the rantings of the ever-unstable John Hinderaker, the National Intelligence Estimate is not produced solely by the CIA (which, we are now told, has been waging a "war against the Bush administration" — good grief). No, the NIE is a survey of 16 major intelligence agencies. And they, as a group, came to this conclusion.

Niall Ferguson:

The great category error of our time is to equate radical Islamism with fascism. If you actually read what Osama bin Laden says, it's clearly Lenin plus the Koran. It's internationalist, revolutionary, and anticapitalist — rhetoric far more of the left than of the right.

This is, of course, utter nonsense.

To me, one of the more important achievements of Ayn Rand was to sweep away the silly fiction of "rightist totalitarians" versus "leftist totalitarians." There are only totalitarians, and those who oppose them.

The faux distinction between "fascism" and "Marxism-Leninism-Socialism-Communism" is generally described as follows:

"Fascism" is supposedly nationalistic (or ethnic), or at least regional — fascists are supposedly more "inward-looking" in their command-and-control(-and-slaughter).

"Communism" on the other hand is, we are told, not only international but transnational, with little concern for national (or ethnic) unity. It is supposedly more "outward-looking."

A cute theory and a tidy distinction. Too bad it has absolutely no relation to either history or the current Islamo-whatevers.

Consider first the pre-eminent fascists of the past: Nazi Germany. Sure, at first Hitler used the excuse of "uniting" German-speaking peoples of Europe — the Sudetenland, Austria, Alsace-Lorraine. But what did that have to do with France, or Holland, or the rest of Czechoslovakia, or Poland, or Britain, or Russia? Moreover, if the Nazis were truly "nationalistic" and only concerned with "Greater Germany," then why deal with Mussolini, let alone Japan? It was conquest for the sake of conquest, dictatorship for the sake of dictatorship, slaughter for the sake of slaughter.

Now consider the far-left "antipode" in the Twenty-First Century: Communist China. Despite that monstrous regime's many, many, many sins, expansionism isn't really one of them. Yes, they conquered Tibet (with the world's permission, of course). But beyond that, modern Chinese Communists don't seem particularly interested in "exporting" their ideology beyond their (nationalistic) border. They seem to want to oppress only their own people, not all the peoples of the world.

So, under the Fergusonian worldview, who should be labeled "fascist" and who should be labeled "communist"?

As for the, um, "Islamototalitarians," their goal is to control and suppress as much of the world as they can. They oppose freedom, equality, diversity and modernity. Oh, and they kill innocent people.

That really should be the end of the discussion. To quibble over nonsense as to whether "fascism" is the correct term achieves nothing but to mock its victims.

(Via Greg Mankiw. See also William Safire.)

Yes, I know, you've been patiently waiting for me to blog about the situation regarding the President's proposed vacating rewriting "modernization" of the Geneva Conventions regarding torture, "torture-lite" [sic!] and other euphemisms.

Well, what would you have me say? If the "compromise" bill is enacted into law, then the United States — the "Shining City on a Hill" — will be the first non-dictatorial nation to knowingly withdraw from the single best thing the world, as a world, ever did...

...because we must "defend the American way of life"...

...like habeas corpus, or not...

...like having courts, rather than presidents, interpret laws and treaties, or not...

...like prosecuting war criminals, or not...

...like allowing accused persons to see the evidence against them, or not...

...like considering, or at least acknowledging, how our allies and other free nations address such issues, or not...

If you want to see the "compromise" bill, then you can find it here (PDF - 94 pages). If you want the highlights, then you can use the New York Times' convenient flow-chart. If you seek deep legal analysis, then Balkinization is your source: start here, and just keep reading all the posts since.

---

A person I have, in other contexts, very little patience with, economist and perennial central planning advocate Robert H. Frank, once wrote a paper, recently turned into a book, called "What Price the Moral High Ground?" In it, he shows, via game theory and behavioral economics, what most people already understand at some level: the concept of "doing well by doing good." See also, Matthew 16:26.

In this context, in our desperate quest to defend the Moral High Ground, upon which is built the Shining City on a Hill, is there no one — George W. Bush, John McCain, Michael V. Hayden, anyone — who will ask, honestly, "What price the moral high ground?"

This price — the end of the Geneva Convention (or at least of its legitimacy in this country) — is too high. How can anyone not see that?

May history forgive us.

Time to clean out the aggregator:

ITEM: Perhaps the single most universally acknowledged "dumb government idea" is the little checkbox on your tax form to authorize that $3 be added to the Presidential Election Campaign Fund. Few people check it, because few people are flaming idiots. So, unsurprisingly, some are now predicting that, f