Hedge Funds Finance 80% of US Trade Deficit
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January 23rd, 2006Swedish Hedge Fund Nominated For Awards
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January 23rd, 2006UK Manager Tries It Out With New Long/Short Japan Fund
January 23rd, 2006New India Focused Fund Offered
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January 23rd, 2006Banks Luring in Hedge Fund Lucrative Trading Business
January 23rd, 2006Cerberus Files $100 mil Libel Suit
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January 23rd, 2006January 23rd, 2006
Bartlett sells people skills along with investment advice Cincinnati Enquirer, OH - Jan 7, 2006 By shedding the brokerage and back-office operations that parent Legg Mason assumed, Bartlett was able to concentrate on the investment advisory services that
Professional investment advice is key Daily News & Analysis, India - Dec 27, 2005 Also, the financial markets and investment climate have become very complex, making it attractive for private banking players to offer professional services
January 23rd, 2006
Buying stocks can be costly Dailyrecord.com, NJ - 13 hours ago I sent her a list of financial planners in the area and a copy of this article. Anyway, that is the essence of my investment advice for beginners.
Wall Street cleans up its act on investment advice Australian, Australia - Jan 13, 2006 If the analyst providing you with research and investment recommendations worked for a firm that earned hundreds of millions of dollars in investment banking
January 23rd, 2006
Cautious funds keep long-term rates low Times Online, UK - 15 minutes ago Since Mr King’s job is not to offer investment advice, he was quite content to end his analysis without reaching any clear conclusions on which of the two
Classic Investment Scams Are Always In Style Hartford Courant, United States - 14 hours ago In the slimy world of investment scams, just about anything can be hawked as The My advice is, skip the detective game and simply ignore all these offers in
Buying stocks can be costly Dailyrecord.com, NJ - 13 hours ago I sent her a list of financial planners in the area and a copy of this article. Anyway, that is the essence of my investment advice for beginners.
January 23rd, 2006
Glittering future for diamonds: Jewellery expert gives investment TMCnet - Dec 23, 2005 "Diamonds are basically a very good investment. Consumers tend to have the fallacy that diamond jewellery, when compared to gold
The Citigroup Private Bank’s five major investment views for 2006 AME Info, United Arab Emirates - 9 hours ago ‘The investment advice and capabilities that we are able to offer our clients highlight the intellectual leadership in our wealth management proposition.
NAB creates team to aid farmers Ninemsn, Australia - 16 hours ago "You can’t offer a farmer investment advice unless you know his core investment performance - his rural property - and the return it generates, which depends
January 23rd, 2006
In a quandary Indian Express, India - 17 hours ago another regulatory first by issuing ‘cease and desist’ orders against Mathew Easow, a stock market expert who offers investment advice to viewers of a
Invest Place Offers Advice on Making Smart Choices Investing PR Web (press release), WA - 8 hours ago The different types of investment fraud seen online mirror the frauds perpetrated Securities and Exchange Commission (SEC) offers some sound advice for those
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Could One State Outlaw Abortions in Another State?
January 23rd, 2006Consider the following hypothetical: New York State, in furtherance of some otherwise constitutional state interest (e.g., to fight compulsive gambling), makes it a crime, an actual criminal offense, to leave the state for the purpose of gambling. So, for example, my trip last week to Foxwoods would have been illegal.
Unrealistic? Unfair? Un-American? Unconstitutional?
Yes, yes, yes and yes.
Yet supposed law school prodigy Will Baude thinks exactly such a scenario could arise if Roe v. Wade, 410 U.S. 113 (1973) (really Planned Parenthood v. Casey, 505 U.S. 833 (1992)) were overturned:States could make it illegal to cross state lines in order to abort a fetus… While the Supreme Court has recognized a constitutional right to travel across state lines, it has also recognized exceptions.
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Just as Utah could make it a crime for a resident to go to Rhode Island for an abortion, Rhode Island could forbid Utah’s law-enforcement officials from interfering with her decision to get one.
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The precedents are muddy, the standards unclear, and so it is almost impossible to know how a future Supreme Court would resolve the matter. This is, of course, utter nonsense. It’s not just wrong, it’s flunk-the-bar-exam wrong.
There are at least two reasons why Baude’s doomsday scenario could never arise in a post-Roe world:
1. All state police power is local. End of discussion. A state can only criminalize conduct within its borders. There are, contrary to Baude, no exceptions. Ever. Baude’s examples of “long-arm jurisdiction” are completely misplaced. “Long-arm jurisdiction” is exactly that — a matter of jurisdiction, the ability to reach an out-of-state defendant and bring him back into the state to prosecute him for local crimes. Long-arm jurisdiction does not equal the ability to rewrite another state’s penal code. (In fact, long-arm jurisdiction is primarily a civil litigation concept with little bearing on criminal prosecutions.) In any event, as my Conflict of Laws professor put it: “One state cannot simply throw its laws into another state.” New York cannot make it a crime to gamble in Atlantic City, Virginia cannot make it a crime to pay for sex with a prostitute in Nevada, and Utah could not make it a crime to have an abortion in a post-Roe Rhode Island.
2. Article IV Privileges and Immunities. Baude acknowledges that there is a “fundamental right to travel.” Let’s go to the source:The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.So what are “privileges and immunities”?Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the Government must justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State…”–Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3,230) (1823); accord, U.S. v. Wheeler, 254 U.S. 281 (1920).
What part of “otherwise” is unclear? Is Baude suggesting that overturning Roe/Casey also includes, just for flavor, overturning Corfield and every Supreme Court case that has embraced it? Yeah, right, good luck with that.
Baude’s last-gasp argument — that a state could place a fetus into “protective custody” — does not require a jurisprudential response; common sense alone is required to dismiss it wholesale. But if you want a jurisprudential response, then see the Fourteenth Amendment:All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.Life may begin at conception, but the Fourteenth Amendment does not.
—
Switching from the legal to the political, Baude makes another absurd assertion:It’s unlikely that Congress would pass a comprehensive federal ban on or right to abortion.Oh really?
I hope Baude is referring to the prospect of a Democratic filibuster of such a bill, which is the only plausible justification for such a statement (and which is anything but certain in future sessions of Congress).
Does anyone seriously doubt that, if Roe/Casey were overturned, then the conservatives in Congress would, within a matter of hours, introduce a “Federal Right to Life Act”? After all, these are the same conservatives who are perfectly willing to perpetually consume congressional time and resources on a Federal Marriage Amendment, which is infinitely more futile than a mere anti-abortion statute would ever be. How’s the saying go — “it deserves an up-or-down vote”?
Radley Balko, another non-lawyer who spewed much the same gobbledygook a while ago, anticipated this point and observed that, to truly “leave abortion to the states,” the Supreme Court would not only have to overturn Roe/Casey, but would also, in a totally unprecedented (and impossible) example of (true) judicial activism, have to proscribe Congress from passing such legislation. (For more, see here.)
I guess that’s the difference between a D- and an F.
More thoughts on the Baude op-ed piece at De Novo, Running Scared. more…
The Ten Worst Supreme Court Cases
January 23rd, 2006I recently posited a quick litmus test for determining whether someone is a libertarian.
Well, here’s a test to see whether someone is a libertarian or a conservative: Review this Human Events list of the supposed “Top 10 Supreme Court Decisions That Should Be Reversed” and see how many you agree with. A conservative would agree with all or most of them; a libertarian would scratch his head at many of the choices (not all, but most).
Speaking of litmus tests, I suppose that, to be a proper (i.e., dogmatic) conservative, it’s mandatory that Roe v. Wade top any such list. Ditto probably for Lawrence v. Texas being an automatic Number Two.
In any case, here is my list (in descending order) of the ten worst Supreme Court decisions that are still good law. See if you can sense a pattern. And if you like my list more than the Human Events list, then congratulations — you’re a libertarian and not a conservative.
1. McCulloch v. Maryland, 17 U.S. 316 (1819)
–Rendered the Necessary and Proper Clause an expansion of, rather than a limitation on, Congressional power and laid the groundwork for changing the default standard of judicial review from strict scrutiny to mere rationality.
2. The Slaughterhouse Cases, 83 U.S. 36 (1872)
–Rendered the Fourteenth Amendment Privileges or Immunities Clause a nullity and delayed the incorporation of the Bill of Rights to apply to the states and not just to the federal government.
3. Wickard v. Filburn, 317 U.S. 111 (1942)
–Rendered the Commerce Clause a nullity (or, worse, a monstrosity) and initiated the entire federal regulatory leviathan.
4. University of California Regents v. Bakke, 438 U.S. 265 (1978) and progeny, especially Grutter v. Bollinger, 539 U.S. 306 (2003)
–Rendered the Equal Protection Clause a nullity in the context of higher education by permitting reverse discrimination in college admissions in the name of creating “diverse” environments.
5. Kelo v. New London, No. 04-108 (2005)
–Rendered the “public use” clause of Fifth Amendment eminent domain a nullity.
6. Buckley v. Valeo, 424 U.S. 1 (1976) and progeny, especially McConnell v. Federal Election Commission, 540 U.S. 93 (2003)
–Rendered the First Amendment less than absolute in the context of campaign advertising and financing.
7. Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980)
–Reinforced the rendering of the First Amendment less than absolute in the context of truthful commercial advertising.
8. The Supreme Court’s Entire Fourth Amendment Jurisprudence
–Almost every search-and-seizure case the Court hears results in a new exception to the Fourth Amendment. Exceptions become the rule, and the rule becomes the exception. The Fourth Amendment may not yet be a nullity, but it is essentially a “Swiss Cheese” amendment, since it is now so full of holes.
9. Korematsu v. U.S., 323 U.S. 214 (1944)
–Elevated the War Power of Congress and the Commander-in-Chief Power of the Executive above the Fifth Amendment Due Process Clause in the context of national security. Note that Korematsu is, technically, still good law; it was never expressly overturned. That is not to say that we are likely to bring back internment camps any time soon. On the other hand, given the current Administration’s cavalier attitude toward civil liberties in a time of threats to national security (i.e., war), the legacy of Korematsu must not be forgotten. (See also this post.)
10. Baker v. Nelson, 409 U.S. 810 (1972)
–A non-case by the Court, technically a “dismissal for want of a substantial federal question.” This non-ruling, issued shortly after Loving v. Virginia, 388 U.S. 1 (1967), is occasionally used, incorrectly, to assert that the Supreme Court has expressly held that there is no constitutional right to same-sex marriage. That is patently false; for details, see my previous post. This non-ruling has been rendered a nullity by other Supreme Court cases that have clarified and expanded upon Loving, especially Zablocki v. Redhail, 434 U.S. 374 (1978), but still gives anti-gay bigots a tool, albeit a blunt one, when attempting to confuse the issue.
Special Bonus Case:
11. Bush v. Gore, 531 U.S. 98 (2000)
–I include Bush v. Gore not because I believe it was incorrectly decided, but rather because in my view the Court should have declined, on political question grounds, to hear the case at all. Taking the case seriously damaged the Court’s reputation, especially in the eyes of those who were upset that the Court prevented fraudulent Gore voters from stealing the election. Had the Court sidestepped the issue, the election would still have gone (correctly) to Bush, since the Florida legislature (or, if necessary, the House of Representatives) would have sided with Bush anyway. The Court should not have sullied itself by involving itself with that unfortunate incident.
Hat tip to Rossputin — but be sure to read my response to his view that the famous “Footnote 4″ of U.S. v. Carolene Products, 304 U.S. 144 (1938) is the worst Supreme Court decision of all time. more…
Anti-Gay Bigotry Roundup
January 23rd, 2006Here are three totally unrelated examples of creative anti-gay bigotry to show how subtle, or not so subtle, it can sometimes be.
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ITEM: How do you measure a life? Or a death?Rejecting an emotional videotaped plea from a lesbian police lieutenant on the verge of death, Ocean County [New Jersey] freeholders declined once again on Wednesday to approve a resolution that would let county employees pass on their pension benefits to domestic partners.
For more than a year, the freeholders have repeatedly refused to consider the resolution, and their opposition has become increasingly controversial over the past few months.
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Freeholder John C. Bartlett Jr. said the cost would be too high. Freeholder John P. Kelly, denying that Lieutenant Hester’s sexual orientation was an issue — over shouts of derision from the audience — said the domestic partnership law was unfair because it did not let siblings or other relatives not married to each other share benefits when they lived together. But members of the crowd, holding signs declaring “Don’t Let Laurel Hester Die Like This,” seemed to find the argument disingenuous; several people chanted, “You have the power, you have the power.”MY TAKE: They may have the power, but power corrupts. And bigotry corrupts absolutely. I don’t know which is worse, the idea that “it costs too much” and “a lifelong same-sex partner is more like a sibling than a heterosexual spouse” are considered legitimate arguments, or the alternative explanation — that the freeholders are simply insulting our intelligence. Shame on them regardless.
UPDATE: The public outrage seems to have worked and the freeholders now appear set to grant benefits to same-sex domestic partners.
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ITEM: What is the message of Brokeback Mountain?If Brokeback Mountain had really been a love story between two gay men, it would have been much shorter. Both the cowboys, after discovering their sexual attraction to each other, would have simply come out of the closet, moved to San Francisco, opened a boutique that specialized in boots and stirrups and other leather gear, and would have lived happily ever after. The poignancy of their story lies precisely in the fact that neither of the two heroes can escape by this route. It is completely shut off for them. That is the reason Brokeback Mountain looms so expressively throughout the movie — it is the only place where they can love each other and still remain men in their own eyes.MY TAKE: That is way too much overthinking — the mountain is more than “the only place where they can love each other and still remain men in their own eyes.” It is the only place where they can love each other and stay alive. Brokeback Mountain is set in Wyoming. Gays were being slaughtered in Wyoming long after the pre-gay-rights period covered by BBM. In Wyoming, then and even now, to stay in the closet and being forced into a sham straight life is often not merely a matter of staying macho, it’s sometimes a matter of life and death.
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ITEM: Nothing brings out the “gay lifestyle” better than the “prison lifestyle” –A bitterly disputed, government-sponsored study has concluded that rape and sexual assault behind bars may be rampant in movies and books but are rare in real life.
When inmates have sex, it is usually by choice, and often engaged in as a way to win protection or privileges, said Mark Fleisher, a cultural anthropologist who specializes in prisons and crime at Case Western Reserve University in Cleveland.
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“Prison rape worldview doesn’t interpret sexual pressure as coercion,” he wrote. “Rather, sexual pressure ushers, guides or shepherds the process of sexual awakening.”MY TAKE: In other words, men who have sex with men in prison must of course be repressed gays — not violent heterosexual sociopaths — since straight males, even violent straight males, would never rape other male prisoners. Right? Normal (i.e., heterosexual) men only rape women; male-on-male rape is just another form of homosexual conduct (i.e., homosexual deviancy). Right? (Via CrimProf Blog.)
(Cross-posted at Spectrum Bloggers.) more…
Externalities — A Case Study
January 23rd, 2006New York City is in the process of reviewing proposals to wire its 277 subway stations for cell phone service.
Which invites the question: are subway cars next?
Some people hope not:”We are losing our peace and quiet,” said Miguel Velasquez, 34, of Fresh Meadows, Queens. “It’s yet another intrusion on our daily commute. What’s next, loud commercials on the PA system?”
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[O]fficials yesterday assured riders that the public would be involved in any decision to expand into the tunnels. “That would be different,” MTA spokesman Tom Kelly said. “We’d have to gauge what the interest is.”
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None of the companies would discuss the details of the proposals, but at least some are believed to address how to expand service into the trains at a later date.
For a taste of what’s to come, longtime riders on the commuter rails say one need only take a trip on the Long Island Rail Road or Metro-North, which have become involuntary party lines despite a decade-long campaign to improve passengers’ cellphone etiquette. “It used to be you could read a book or cop some Zs,” said Gary Wilson, 36, who commutes from Norwalk, Conn. “The subway would be worse, because you’re absolutely on top of each other.”There it is — a classic problem of negative externalities. The use of cell phones in cramped quarters imposes a cost on those who do not receive a benefit. Hence, as any sophomore economics student could (hopefully) tell you, the result will be “overconsumption” of the good (i.e., too much talking).
But since all utility is subjective, there is no easy way to balance the benefits to cell phone users against the costs to non-users. How much does Person A want to talk on a subway car? How much does Person B want not to have to listen to Person A’s cell phone conversation (or, my pet peeve, retarded ringtones)? How do you measure such wants and compare them against each other?
When the setting is a private one, the decision is (or should be) up to the property owner. This is the travesty of smoking bans for bars — there is no such thing as “smokers rights,” nor is there such a thing as “non-smokers rights.” There are only property rights. When property rights are respected, externalities become moot.
But a subway car is not a bar and is of course not private property. So the externalities become an issue. And no matter how this issue plays out, someone’s preferences will be frustrated. Someone’s preferences will be arbitrarily deemed superior to someone else’s preferences. Someone will be arbitrarily deemed more important than someone else.
Such is the nature of public goods. And bureaucracies. And politics. And that is why their presence should always be kept to the barest possible minimum.
(As for my own subjective preferences, it seems to me that if you are important enough to require perpetual cell phone access, then you are also important enough to take a cab. But that’s just me.) more…
Haley Barbour’s War on the Poor
January 23rd, 2006The best way to help the poor is by not taxing them.
I’ve made this point repeatedly in the context of Social Security reform — the lower half of households by income pay no federal income tax, but they do pay Social Security tax (and Medicare tax) on every single penny they earn. No exemptions, no deductions.
Meanwhile, it is often argued that sales taxes are also unfair to the poor, since they are supposedly regressive — the poor spend a greater fraction of their income than the rich, hence a tax on spending hits them disproportionately.
To address the phenomenon, most states exempt groceries from their sales tax. Many also exempt clothing and other “necessities.”
Mississippi — which has lots of poor people — is, for some reason, one of the few states that does not exempt groceries from its sales tax. In fact, it has the highest state sales tax in the nation — seven percent. Go figure. Mississippi also has one of the lowest cigarette taxes in the nation.
So, one might think that, if you were a politician in Mississippi who cared about the poor, you would consider swapping lower grocery taxes for higher cigarette taxes.
Or not:Gov. Haley Barbour vetoed a bill Wednesday that would phase out a state sales tax on groceries and increase the tax on cigarettes.
“It’s irresponsible to cut Mississippi’s budget revenue while we’re trying to recover from Hurricane Katrina,” the Republican said.
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The bill, which zipped through the Senate and House at the start of the 2006 session, would eliminate the 7 percent grocery tax by 2014.
Officials say Mississippi has the highest state grocery tax in the nation — but one of the lowest cigarette excise taxes, 18 cents a pack. The bill also would increase the cigarette excise tax to 75 cents a pack this July 1 and $1 a pack a year later.One might wonder why Barbour would veto this tax revision.
Or not:Barbour, a former Washington lobbyist for tobacco companies, called the proposal “ill-conceived, barely researched, poorly timed and passed in great haste.”So much for the democratic process and the “will of the majority.”
Stated differently: be careful whom you vote for — you might elect him. more…
Osama’s Curious Timing
January 23rd, 2006I’m not a tin foil hat type, but if I were, I’d sure be uppity about the timing of the audio message purportedly from Osama Bin Laden assuring America and the world that more attacks are in the works but that they could be averted via some sort of “truce.”
Just when the outrage (and the criticism by legal analysts) over the warrantless wiretapping scandal is gaining momentum, and just when Vice President Cheney is issuing statements insisting that the program is “vital,” voila: here’s a recording — open-ended, nebulous and undated — of the Terrorist-in-Chief saying exactly, exactly, what an apologist for the NSA program would want him to say, exactly when he would want him to say it.
How convenient.
So too with the “truce” gobbledygook — “See, they’re only offering a truce because we’re winning. The program works. We need to continue it. You don’t want another 9/11, do you?”
How convenient.
But like I said, I’m not a tin foil hat type. The Occam’s Razor answer is not that this is a vast White House conspiracy, but simply a narrow al Qaeda conspiracy. The timing isn’t just good for the Administration, it’s also good for the terrorists. Remember, the goal of the Islamofascists is not really to destroy us — they can’t and they know it. The simply want to destroy our way of life.
And, considering the nature of the NSA scandal and the other collateral damage to our civil liberties resulting from the PATRIOT Act and the other prongs of the War on Terror, some might argue that the terrorists are succeeding.
—
Meanwhile, Attorney General Alberto Gonzales has issued a 42-page, single-space document attempting to defend the legality of the NSA warrantless wiretap program. Of course, when the story first broke, we were told that the President’s authority in the area was “inherent.” So “inherent” that a major independently prepared report for Congress has said otherwise, and so “inherent” that a 42-page, single-space document is needed to clarify the “inherent” authority. Go figure. (PDF available here.) more…
Sniff Dogs in Subways Not Effective
January 23rd, 2006The warrantless wiretap scandal has pushed another Fourth Amendment issue off the radar screen, namely New York City’s random suspicionless searches at subway entrances and on buses.
Any argument that those searches are permissible presumes that they are in fact effective — a ludicrous presumption of course given the way the program is structured. A useless search can never be reasonable — and can therefore never be constitutional.
Keep that in mind when reading this:Dogs are acclaimed for detecting minuscule amounts of myriad compounds. Their noses are 100 times to 10,000 times more sensitive than human noses, depending on the scent. And they can identify particular odors within a complex mixture — which should be useful for detecting explosives, since many are a potpourri of scents.
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There’s nothing wrong with using dogs to walk the subways to deter crime and make people feel better. But their noses can’t be relied on there. “I wouldn’t want to be the one who put it out to the public that the emperor has no clothes,” the head of a large urban bomb squad told me. But “dogs do not function in the way everyone thinks.” It is, quite simply, “bullshit,” he says, to think that dogs can walk through subway cars, or sniff people entering turnstiles, and detect whether they’ve brought explosives along for the ride.In other words, every single penny being spent on training dogs and dog handlers to patol public transportation — the TSA alone is spending $2.7 million per year — is being wasted.
Unless, of course, you subscribe (as the author of the piece does) to the same doctrine of “it is better to feel safe than to be safe” that the apologists for New York City’s worthless and intrusive bag search program try to invoke.
“Who cares whether the sniff dogs actually work? So what — at least we’ll feel safe.”
“Who cares whether random bag searches will actually thwart a terrorist plot? So what — at least we’ll feel safe.”
“Who cares whether there’s yet another erosion of the Fourth Amendment? So what — at least we’ll feel safe.”
Well, some of us still care. more…
Governmental Google Grab
January 23rd, 2006Three hasty stitches regarding the Justice Department’s subpoena of Google’s search records:
–Google has not been accused of any crime whatsoever; neither have those whose searches would be turned over to the government.
–The purpose of the subpoena is related to a law that the Supreme Court has already found unconstitutional.
–If the federal government wants to know what sites (e.g., pornography) come up from web searches, they could, um, try searching Google themselves.
I suppose the next step is for the White House to argue that it has “plenary” Article II authority to fight the War on Pornography.
Heaven help us.
More thoughts at Modulator, Hammer of Truth, Concurring Opinions, Truck and Barter. more…
More on Whether the West Virginia Miner Families Can Sue
January 23rd, 2006A while back I asked whether, in the case of the West Virginia mining tragedy, “wrongful good news” could constitute the tort of negligent infliction of emotional distress. I answered in the affirmative.
Well it turns out that a law professor has asked the same question and reached the same conclusion:An influential modern articulation of the elements of the tort of negligent infliction of emotional distress, as asserted by bystanders, comes from New Jersey, in a case called Portee v. Jaffee [84 N.J. 88 (1980)]: The knowledge that loved ones are safe and whole is the deepest wellspring of emotional welfare … No loss is greater than the loss of a loved one, and no tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure. The law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed.But despite its sympathy for distressed victims, the New Jersey court did set some limits: It made sure the relationship between the claimant and the source of the emotional distress was sufficiently close: “It is the presence of deep, intimate, familial ties between the plaintiff and the physically injured person that makes the harm to emotional tranquility so serious and compelling.” Indeed, the court explicitly held that a close familial relationship is necessary for a claim of emotional distress for being a “bystander,” witnessing a death or injury of a loved one. Third cousins once removed, it seems, need not apply.There’s actually nothing new or controversial in requiring that there be a close familial relationship — it’s just a variation on the longstanding tort doctrine of proximate cause. (Sidebar: The ability of gays to sue for emotional distress based on harm to a partner is a whole other blogpost.)
Of course, a New Jersey case is not binding on West Virginia courts. But Portee v. Jaffee is an influential case, read by most law school students at some point. In any event, Professor Leib surveys the current case law in West Virginia and concludes that it is amenable to this kind of emotional distress case, for those who are interested. more…
New York Parent Sues for Florida-Style Vouchers
January 23rd, 2006The travesty in Florida in which that state’s supreme court struck down a voucher program designed to rescue kids from chronically failing schools was, fortunately, based solely on the Florida constitution and has little impact on other states.
Fortunately:Fed up with the foot-dragging on a court order to infuse billions of dollars more into city schools, a single mom from Queens has asked a judge to grant her up to $26,000 in taxpayer money so she can send her two kids to private school.
Dianne Payne, a retired correction officer, filed papers in state Supreme Court in Manhattan yesterday, arguing that she could give her son and daughter a better education with the roughly $13,000 the state spends per pupil each year.
“My children can’t wait,” said Payne, a mother of five adopted children. “To assure that my kids get a good education and a fair chance in life, they need to attend a private school.”Now of course I am not a big fan of courts ordering state or local bureaucracies to spend specific minimum amounts on public education. It’s generally a rather flagrant example of judicial activism a violation of separation of powers. It also appears that Ms. Payne is attempting to short-circuit established channels for assigning children to adequate schools and will likely fail even to get a hearing on the merits (i.e., this is a publicity stunt).
On the other hand, the dismal state of our public schools needs all the publicity it can get, especially in the wake of the disgraceful Florida voucher ruling. more…
“Sex Offender Mania” — New York Admits Recidivism Not the Issue
January 23rd, 2006To review: The original justification for sex offender registries was the (unsubstantiated) assertion that sex offenders have an extremely high recidivism rate and therefore posed an abnormally high risk to residents in communities where such ex-convicts live and work.
That argument is increasingly giving way to an alternative justification: brazen vigilantism. New York State, for example, is being surprisingly honest about it:Gov. Pataki yesterday signed into law a bill that will keep thousands of sex offenders from disappearing off a state monitoring list.
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“This new legislation will ensure that all sex offenders remain on the registry, most for life, and continue to give every parent and family the right to know exactly where sex offenders live,” Pataki said.
[T]he new law will require offenders who are deemed at moderate risk of committing another sex crime to register for life.There you have it — “moderate” risk. Not high risk, not even serious risk, but “moderate” risk.
Of course, what constitutes “moderate” is unclear. But it certainly doesn’t sound like a high hurdle.
Meanwhile, this reasoning opens the door for other ex-convict registries. Don’t violent criminals in general have a “moderate” risk of repeat offenses? Drunk drivers? Drug dealers? Check kiters? Tax cheats? The unemployed twenty-something who misses a student loan payment?
If the standard is a mere “moderate” risk of repeat offenses, then any and every kind of ex-convict registry is permissible. And inevitable.
The argument that “it’s all about the children” should not trump the argument that “it’s all about common sense.” more…
CSPI Sues to Censor Junk Food Ads
January 23rd, 2006The Center for Science in the Public Interest, among the most obnoxious of the nanny-state activist groups, is using a state consumer protection law to — what else — quash yet another entirely legal product:Parents and advocacy groups today announced their intent to file suit against Viacom and Kellogg to stop them from marketing junk food to young children. The plaintiffs contend that these two companies are directly harming kids’ health since the overwhelming majority of food products they market to children are high in sugar, saturated and trans fat, or salt, or almost devoid of nutrients. They will ask a Massachusetts court to enjoin the companies from marketing junk foods to audiences where 15 percent or more of the audience is under age eight, and to cease marketing junk foods through web sites, toy giveaways, contests, and other techniques aimed at that age group.Some hasty stitches:
–Should one state have the ability to censor broadcast advertising for the other 49? Wait a minute — make that “Should government be able to censor, ever?”
–We already require standardized nutritional labels on our food. Some of the more radical libertarians may not like that law, but look on the bright side: it should provide a safe harbor (i.e., an absolute defense) to claims that labeling of food is somehow “incomplete.”
–Consider this quote by one CSPI shill plaintiff parent:”As a parent, I do my best to get my kids to eat healthy foods,” said Sherri Carlson, a plaintiff and mother of three. “But then they turn on Nickelodeon and see all those enticing junk-food ads. Adding insult to injury, we enter the grocery store and see our beloved Nick characters plastered on all those junky snacks and cereals. This irresponsible marketing to young children undermines my efforts as a parent and must be stopped.”I thought it was the kids who were supposed to be the whining brats, not the parents. In any case, show me a fat kid and I’ll show you fat parents. Either that, or at the very least lazy or incompetent parents. Ms. Carlson can easily control her kids’ caloric intake (not to mention which channels her family watches). And even if for some unnamed reason she can’t — too bad so sad. That is not my problem, or yours, or Kellogg’s or Nickelodeon’s.
Food is not tobacco; underage overeating is not underage drinking. Food — even junk food — is a legal product. It is, when consumed responsibly, a source of utility. It is, when consumed responsibly, harmless. The companies that make it have a right to advertise it.
Ms. Carlson, meanwhile, may have the right to be the benevolent dictator of her minor children. But she does not have the right to be the benevolent dictator of the rest of us.
Hat tip to Hit & Run. More thoughts at Where the Dolphins Play, Cake or Death, Junk Science. more…
Kinder, Kueche, Utah
January 23rd, 2006Another fine example of the legislative process in action:After unanimously endorsing a conservative think tank’s resolution supporting the “natural family,” Kanab’s City Council is coming under fire — naturally.
Gay-rights advocates and even some residents are scolding city leaders for embracing a nonbinding proposal that:
–Labels marriage between a man and a woman as “ordained of God.”
–Sees homes as “open to a full quiver of children.”
–Envisions young women “growing into wives, homemakers and mothers and . . . young men growing into husbands, home builders and fathers.”
…
[Resolution author Paul] Mero calls the resolution an affirmation of marriage and family. He also maintains that, contrary to what critics say, the document is meant to keep government out of crafting moral standards for a community.So a resolution invoking marital discrimination in God’s name and calling for Twenty-First Century women to remain barefoot and pregnant in the kitchen has nothing whatsoever to do with “crafting moral standards for a community”? I wonder what he would consider “crafting moral standards.”
Perhaps the saddest part is that the Sutherland Institute, the think tank pushing this neanderthal resolution uses (deceptively, of course) a great deal of libertarian rhetoric — invoking goals of “limited government” and “fiscal responsibility” and even quoting Milton Friedman. You can’t easily tell from their website, unless you dig a bit, that they’re just another petty bigot brigade.
Meanwhile, in the spirit of full disclosure, let the record reflect that other Utah towns are rejecting this silly resolution right and left. Good for them!
(Via Fark.) more…
The Ninth Amendment Case Against Libertarianism?
January 23rd, 2006The easiest litmus test for whether someone is a libertarian or a governmentalist, at least in the U.S., is to simply ask whether they believe that our government is one of enumerated powers and unenumerated rights. If so, then they’re a libertarian; if not, then not. Most of the rest is either mere ballast or Talmudic nitpicking.
Anti-libertarians usually try, for the obvious reasons, to tip-toe around such a framework — it’s too embarrassing for them. The current favorite among those who wish to avoid acknowledging their anti-constitutional worldview is the “will of the majority” gobbledygook — despite the fact that individual rights are, by definition, not subject to majority vote. Or sometimes it’s consequentialism (e.g., “You don’t want another 9/11, do you?”) — but again it’s individuals who face consequences (i.e., the erosion of their rights), so this line of reasoning is also invalid.
The closest you usually get to an honest anti-libertarian position is “I don’t see a right to X in the Constitution,” with X usually equaling “privacy” but sometimes referring to abortion or gay marriage or physician-assisted suicide or whatever. Of course, the only reason they don’t see such rights in the Constitution is because they’re not looking for them — but that’s another blogpost chain.
So when an anti-libertarian proves himself perfectly willing to step forward and acknowledge what typically goes unacknowledged: to profess his unrepentant governmentalism and to “call the libertarian’s hand,” it actually becomes almost refreshing.
Until you realize it’s a federal appellate court judge:The right of privacy is not one of the rights enumerated in the Constitution, and consequently, the Ninth Amendment gives us two instructions: first, we are not “to deny or disparage” the existence of a right of privacy simply because it is not enumerated in the Constitution; and second, we are required to recognize that any such right of privacy is “retained by the people.” Clearly, a right of privacy exists at some level, but it has not been made subject to the Constitution unless and until the people act to make it so.There you have it: There is no constitutional right to privacy even though “clearly, a right of privacy exists at some level,” and you, as an individual are not “the people” and have no unenumerated rights until “the people” (i.e., not you) decide that you have them.
This is anti-libertarianism at its core, its ultimate expression, its most absurd: The assertion that the Ninth Amendment is not only not a nullity but is actually a justification for denying you your rights.
If you are not a libertarian, then this is the kind of logic you are, in some manifestation or variation, embracing as your own. Stated differently, if the jackboot fits, then don’t be surprised when it kicks you in the face.
—
One quick footnote: This judge, who professes to be a strict textualist (if not a strict denotationalist), calls in the same piece for a national referendum on whether there is a right to privacy. The fact that the Constitutional nowhere provides for voter referenda is, of course, of no concern to him. Go figure.
Hat tip to Crime & Federalism. More thoughts at Prawfsblawg. more…
Remember the “Crying Indian” PSA?
January 23rd, 2006Well, he’s got another 152 million reasons to cry:The federal government spent $152 million over a 30-month period to cajole Americans into paying their taxes, taking their medicine and staying in school. Agencies involved in public service announcements insist it is money well spent.
…
The Treasury Department, source of the electronic filing ads and a $24 million campaign on the new color of money, spent the most, followed by the Defense Department, at $37 million, and Health and Human Services at $33 million.
…
Those agencies commenting on their campaigns invariably said they were successful, although there has been criticism that such campaigns are too expensive or tend to be ineffective.I suppose informational campaigns for new programs such as those touting e-filing have some justification as legitimate government expenditures. But PSAs that remind us to wash behind our ears or that “friends don’t let friends drive drunk” or “this is your brain on drugs” really aren’t justifiable uses of our tax dollars. That some hack bureaucrat believes that it’s a “good use of my money” should not supersede my belief to the contrary — especially to the tune of $152 million.
POST SCRIPT: For those of you too young to remember the Crying Indian PSA. I remember him, but not “Suzy Spotless.” more…
You’ll Never Get Copper, Coppers!
January 23rd, 2006You know you’ve succeeded as an economics teacher when you can ask the following question on a final exam with no fear of receiving nothing but blank answer sheets:
Explain why the world will never run out of oil.
People do in fact generally posit that question in terms of oil, for the obvious geopolitical reasons.
But it doesn’t just apply to oil:Copper is used in everything from automobiles to ordnance. Copper allows electricity to be generated, transported and conducted to the various outlets in a modern home. Copper is also relatively scarce compared to other metals like iron or aluminum that make up a good portion of the earth itself. So copper serves as an excellent metallic bellwether for potential future resource scarcity, according to a group of researchers who compiled data on its extraction, use, recycling and discard to estimate whether there is enough copper available to make a developed standard of living available to all the world’s people. The short answer is: no.
…
[R]esidents of Canada, Mexico and the U.S. required an average of 170 kilograms of copper per person. Multiply that by overall population estimates of 10 billion people by 2100 and the world will require 1.7 billion metric tons of copper by that date — more than even the most generous estimate of available resources.
This is, of course, utter nonsense.
It’s quite simple really: Yes the world supply of copper is “fixed,” in the sense that there’s only so much copper ore in the ground. So what? The laws of supply and demand still apply — even more so, arguably, in the context of a finite resource. If the available supply continues to decrease with demand staying fixed, then the price will merely rise over time. And as the price of copper rises, eventually the global economy will adjust accordingly (i.e., it will no longer be the case that “copper is used in everything from automobiles to ordnance”).
Copper pipe too expensive for residential plumbing? Switch to plastic pipe. Copper wire too expensive for electrical wire? Switch to another conductive metal — or to fiber-optics. Unless there is a vital use of copper for which there is no substitute (not just no perfect substitute, but no substitute of any kind) would there need be any worry about depleting the finite resource.
And, of course, high prices work in both directions. A major reason that “the Bronx was burning” in the 1970s was because the only material value of the empty buildings there was the copper plumbing, which could be sold for scrap after the building was demolished. Copper is recyclable and reclaimable, so if it becomes scarce enough, then people will start looking for it — and will start finding it. (Also consider another analogy — people having their gold fillings removed when the price of that metal skyrocketed during the Great Stagflation.)
Meanwhile, with higher copper prices, perhaps new methods of extracting ore will be developed, or chemical processes that will be able to extract copper from other compounds.
The real lament behind “dwindling resources” is not that “we’ll run out of copper,” but rather that poor nations won’t be able to afford it. That’s not the same thing and does not warrant the same policy response from the developed world. “Too bad so sad” may not be the correct response, but neither is panic, or rationing, or any other market-disrupting program. Copper is a private good that is (or should be) mined by private companies from private land. That’s hardly is a mandate for global interventionism.
For Discussion: I have, on the other hand, essentially argued the exact opposite regarding the world supply of gold, insisting that it would be impossible to tie, as some more radical libertarians would like, the entire global economy to the extremely limited stock of gold that is available. Am I being inconsistent? Why or why not?
Fun Fact: The word “cop” derives from the old practice of issuing copper badges to police officers. Perhaps they became too expensive…
Suggested Reading:
more…
What is “Poverty”?
January 23rd, 2006Perhaps the single greatest fallacy in modern liberal theory is the fiction of “the rich get richer while the poor get poorer.”
It is the basis for, among other things, the current push for local minimum living wages, since Congress has been (properly) uninterested in raising the archaic federal minimum wage for several years now.
Some hasty stitches about minimum living wages:
–Hardly anybody actually earns that little. Even the New York Times Magazine piece acknowledges that it might be, at most, three percent of the workforce.
–Even fewer, somewhere in the neighborhood of zero, people actually work full-time for minimum wage as their sole source of income. The minimum wage is mostly a phenomenon seen only among high school students and fresh-off-the-plane immigrants. This is, literally, much ado about nothing.
–It is better to be employed at the federal minimum wage than unemployed at a higher local “living wage.”
–The better policy question to ask is not “How can people be expected to survive on so little?” but rather “How bad a failure must our schools and job training programs be if they produce people who are so ultra-unskilled that they cannot command a higher wage?”
–”Poverty” is, at best, a relative concept:[N]early 13% of Americans have incomes that place them below the official poverty line. But what does that mean in terms of their daily lives? The fact that 95% of them may have a refrigerator tells only part of the story.
The Census report also compares, from 1992 through 1998, people’s perceptions of whether basic needs were being met. More than 92% of Americans below the poverty line said they had enough food, as of 1998. Some 86% said they had no unmet need for a doctor, 89% had no roof leaks, and 87% said they had no unpaid rent or mortgage.
…
Two-thirds of those in poverty had air conditioners in 1998, up from 50% in 1992. Personal computers have grown increasingly ubiquitous. Where fewer than 20% of homes had them in 1992, nearly 60% did in 2002 (more than own dishwashers).The minimum wage merely redistributes jobs (after destroying some in the process) among those whom the law is supposed to help. It violates the most basic laws of elementary economics, if not the most basic laws of politics.
Which is precisely why the two should be kept as far apart as possible. more…
Warrantless Wiretap Roundup
January 23rd, 2006Some quick updates:
–The ACLU is suing to stop the practice. Expect blind “everything the ACLU does is evil” partisan Bush apologists to play the “you don’t want another 9/11, do you?” card — the only card they have left to play. The lawsuit is not just by the ACLU, however, but a coalition of journalists, scholars and other advocacy groups.
–The “traitorous” whistleblower at NSA who was the source for the original New York Times expose turns out to be a lifelong Republican who voted for George W. Bush. On the other hand, he’s also a lifelong NSA agent who notes that NSA employees, even longtime employees, used to be reminded in sit-down briefings, twice a year, that, when it comes to spying on Americans, “we don’t do that.” But you don’t want another 9/11, do you?
–Most of the leads that the NSA are turning over to the FBI are worthless. But you don’t want another 9/11, do you?
–Al SomebodyOrOther is opposed to the program. Whatever. On the other hand, he invented the Internet, so I guess his views on monitoring emails might matter, sorta kinda. The interesting thing here is that the White House has responded to Gore by pointing out that the Clinton Administration authorized warrantless physical searches. Except that wiretaps aren’t physical searches — for better or worse it’s an entirely different jurisprudence. But you don’t want another 9/11, do you? more…
New Who (Finally) to Air in U.S
January 23rd, 2006“A man is nothing more than the sum of his memories.”
–The Fifth Doctor
Well, that took a little too long, but the new BBC Doctor Who series will air on SciFi on Friday nights. The series will be available on DVD in July.
I wonder how many of the “I love Jamie Bamber Battlestar Galactica” and “I love Nathan Gillion Firefly” types will give Christopher Eccleston David Tennant Doctor Who” a chance. The show — in its previous regenerations at least — is a vital part of the science fiction universe.
More thoughts at PoliBlog. more…
Happy Holiday
January 23rd, 2006No, not that one — this one:Our Founding Fathers knew the importance of freedom of religion to a stable democracy, and our Constitution protects individuals’ rights to worship as they choose. We reject religious discrimination in every form, and we continue our efforts to oppose prejudice and to counter any infringements on religious freedom.
…
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 January 16, 2006, as Religious Freedom Day.
I call on all Americans to reflect on the great blessing of religious liberty, endeavor to preserve this freedom for future generations, and commemorate this day with appropriate events and activities in their schools, places of worship, neighborhoods, and homes.Some hasty stitches:
–How sad, and hypocritical, that such a statement could not be intellectually honest enough to mention, even in passing, the notion of freedom from religion, the right not to be proselytized at — especially by government — and the right not to have religious bigotry serve as the illegitimate basis for discrimination of the form that this day truly warns us against.
–How ironic that this President, who depends so heavily on some of the most intolerant, bigoted and downright fascist “Christian” factions in this country would be the one to invoke “individuals’ rights to worship as they choose.” Is there any worse form of hypocrisy than religious hypocrisy?
–On the other hand, this “holiday” is not an innovation of this Administration; it’s an annual ritual that dates back to 1994 and the Pervert President. Which of course invites the question: why not just issue one “proclamation” and be done with it? The answer is, of course, rank political grandstanding. Does the President go through the motions of proclaiming each December 25 as Christmas Day?
–While we’re on the subject, where exactly does Article II of the Constitution say anything about the authority to declare holidays? Oh, right, I forgot: Article II power is now deemed “plenary,” at least by this Administration.
To hell with this worthless, grandstanding “proclamation.”
Meanwhile, happy MLK Day, everyone. more…
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Tips to keep your’ budget’ from pinching too hard
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