Personal Liberty

Principles of Law: Simplicity is Beautiful

by Ryan Young on February 10, 2012 · 0 comments

in Legal, Personal Liberty

Countries across the world have turned to democracy in recent decades. There are still a few monarchies here and there, and plenty of dictatorships. Cuba and North Korea are even keeping the last dying embers of communism alight. But more and more, democracy is seen as the way to go.

One of the first things a new democracy needs is a constitution. One of a constitution’s jobs is to establish the government’s structure — how the executive, legislative, and judicial branches are composed, what their powers are (and aren’t!), and a few rules of procedure.

The U.S. Constitution is a model of simplicity. You can read the whole thing in under a half hour. And that is the secret of its success. It doesn’t need to outline the specifics of agricultural or trade policy. That’s Congress’ job.

The EU’s de facto constitution runs well over 200 pages. Where the U.S. Constitution paints with a broad brush, the European Union fills in every last detail. Most countries, including the U.S., are turning to this top-down model and rejecting the Constitution’s more bottom-up approach.

The thinking goes, “How can something so simple be effective when the modern world is such a complicated place? The 21st century is very different from the 18th century.”

Good question. The answer is that those extra layers of complexity are precisely why a bottom-up approach is more important than ever. Top-down governance is hard enough even in a simple agrarian economy. It is impossible in a world like ours. Too many variables. The more rules there are, the easier they are to subvert.

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Massive Anti-Bullying Law and Bullying Initiatives Were Based on Misleading Publicity

by Hans Bader on February 9, 2012 · 1 comment

in Legal, Personal Liberty, Politics as Usual, Sanctimony, Zeitgeist

“It launched a hundred ‘anti-bullying’ initiatives at all levels of government, but much of what you think you know about” the Tyler Clementi case “is probably wrong,” notes legal commentator Walter Olson at Overlawyered, the world’s oldest law blog. Andrew Sullivan discusses this as well, linking to Ian Parker’s article in The New Yorker.

We wrote earlier about how the current panic over bullying is leading to attacks on free speech, political debate, and free association in the schools; political pandering; dishonest stretching of existing federal laws by federal officials; and violations of basic principles of federalism.

Reason’s Jacob Sullum writes about New Jersey’s massively-long “Anti-Bullying Bill of Rights,” enacted after Clementi’s suicide at New Jersey’s Rutgers University, and how it infringes on free speech and imposes illegal unfunded mandates. When New Jersey passed this incredibly complicated anti-bullying law, which contains 18 pages of “required components,” that gave a huge boost to a burgeoning “anti-bullying” industry that seeks to define bullying as broadly as possible (to include things like “eye-rolling,” or always associating with the same group of friends) in order to create demand for its services. Hundreds of New Jersey schools “snapped up a $1,295 package put together by a consulting firm that includes a 100-page manual.”

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Utah Doubles Down on Gambling Prohibition

by Michelle Minton on February 6, 2012 · 0 comments

in Deregulate to Stimulate, Features, Nanny State, Personal Liberty

Post image for Utah Doubles Down on Gambling Prohibition

It’s not news that regulators in Utah are often uncomfortable allowing residents to make their own decisions about how, when, or if they engage in morally questionable behavior. The Beehive State has a well-known bee in its bonnet when it comes to alcohol, but what many non-Utahans may not know is that it is just as strict, if not more so, when it comes to preventing residents from gambling — even if they are in their own home. As federal lawmakers and many states edge toward legalizing, regulating, and taxing online wagering, some Utah legislators want to clarify the letter of their state law to make it absolutely clear that their residents don’t have a choice: gambling in Utah is illegal, whether it’s at a business, in your home, or on your smart phone.

As Eric Bianchi over at CalvinAyre.com reported last week, Utah state Rep. Stephen Sandstrom introduced legislation (HB 108) that would make it illegal for residents of the state to gambling over the Internet and on handheld devices. This is the second measure meant to address the increasing ease with which Utah residents are skirting the state’s strict gambling laws. Last month, the Utah House passed a bill (HB 40) that eliminated “vague working in the state law” that Internet cafes had reportedly been exploiting to allow online gaming — or as the bill’s sponsor Rep. Don Ipson charmingly put it, made them “havens for criminal activity.”

Utah is only one of two states in the nation that doesn’t have any form of legalized gambling, such as a casino or lottery (Hawaii is the other). But that doesn’t mean that residents aren’t doing plenty of gambling anyway.

Of course, that’s always the problem with prohibition, isn’t it? Bans never actually stop people from engaging in a behavior, it simply makes them a criminal if they do. If Utah’s Internet gambling ban is approved, especially as other states move toward legalizing the activity, Utahans will continue to gambling on and offline. Utah will lose tax revenue to neighboring states and residents will not have the protections of their government if their rights are violated while engaging in online gambling. Apparently, Utah regulators would rather try to protect the purity of the souls of their constituents rather than doing the job they are charged with which is to protect their right to life, liberty, and the pursuit of happiness.

Liberal Justices Complain About American Law Being Too Protective of Civil Liberties and Colorblindness

by Hans Bader on February 6, 2012 · 4 comments

in International, Legal, Personal Liberty

Recently retired Justice John Paul Stevens, who became the leader of the Supreme Court’s liberal bloc in his later years on the Court, complained recently about the 1964 Civil Rights Act, which he claimed was “poorly-considered” because its text literally forbids all racial discrimination — including against white people — and contains no exceptions. Justice Ruth Bader Ginsburg, a sitting Supreme Court Justice appointed by Bill Clinton, recently advised Egypt not to model its constitution on the U.S. Constitution, but rather on documents like the South African Constitution that provide less protection for free speech and civil liberties. “I would not look to the US Constitution if I were drafting a Constitution in the year 2012,” she said.

Justice Stevens’ remarks reflect his discontent with the fact that whites occasionally win racial discrimination cases under the Constitution and civil-rights laws. The Supreme Court initially held that racial discrimination of all kinds was prohibited by the 1964 Civil Rights Act in its unanimous 1976 decision in the McDonald case, which ruled in favor of whites who had been fired; but later on, the Court judicially created an exception to the statute in order to allow some discrimination against whites in its Weber decision, which admitted that creating such an exception contradicted the plain language of the Civil Rights Act, but claimed that doing so would lead to a more egalitarian society. Later, the Supreme Court extended this exception to uphold a college admissions policy that discriminated against both whites and Asians in the name of “diversity,” rejecting legal challenges under both the Constitution and the Civil Rights Act (in the Grutter case). However, over Justice Stevens’ objections, it struck down another college admissions policy that the Court viewed as using race too much and too mechanically (in the Gratz case), and it also invalidated racial discrimination against whites in voting, once again over Justice Stevens’ objections (in Rice v. Cayetano).

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The STOCK Act’s Muzzle — How “Insider Trading” Bill Could Shut Down Grassroots Communication

by John Berlau on February 6, 2012 · 3 comments

in Legal, Nanny State, Personal Liberty, Sanctimony

It’s April 2012. You are a conscientious congressional staffer who still takes seriously the need to be a steward of taxpayers’ money. (Yes, I know for a fact, there are more than a few of these folks around on Capitol Hill.) You are watching closely events surrounding an “omnibus” or “minibus” spending bill deemed even by conservative Republican members as “must-pass” because it funds the military as well as other parts of government.

Suddenly, you hear about an outrageous earmark about to be slipped into the bill that would enrich a Fortune 500 company. You know how these things work; once the bill hits the floor, it’s very hard to excise one provision. So you decide to alert a network of fiscal watchdogs you’ve met with over the years to wage an instant campaign against this piece of corporate welfare.

You have all the information in the e-mail and are about to hit “send.” But then you remember something from a briefing you attended a couple days ago. The subject was the STOCK (Stop Trading on Congressional Knowledge) Act – aimed at stopping “insider trading” by members and employees of Congress – that your boss and nearly every other member of Congress voted into law in February.

At the time, you didn’t think the law would affect you since the only trading you do is indirect, through your mutual funds and pension. You were surprised to learn, however, that you now have a broad “duty of confidentiality” that encompasses not just trading on “material, nonpublic information,” but disclosing information to those who might.

You sit back and think, “It is indeed possible that someone I send this to could buy stock in the company, or could short the company based on the coming outrage.” You stare at the computer screen wondering how virtually no one noticed how this law could have potentially criminalized an act of whistleblowing as abetting “insider trading.”

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Retaliation Charges Pose Growing Threat to Free Speech

by Hans Bader on February 5, 2012 · 0 comments

in Legal, Nanny State, Personal Liberty

Keeping quiet can seal your fate if you are a professor facing a campus kangaroo court after being wrongly accused of racial or sexual “harassment” based on your classroom speech. Civil-liberties advocates, like the Foundation for Individual Rights in Education, rely heavily on adverse publicity to save wrongly accused professors from being disciplined and fired by campus disciplinary bodies. They put to good use Justice Brandeis’s insight that publicity deters wrongdoing and helps cure social evils. As Brandeis once noted, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

But as the plight of Lawrence Connell at Widener University School of Law illustrates, if an accused professor speaks up, resulting in possible adverse publicity for his accusers, he increasingly risks being punished for “retaliation” against them, even when harassment charge is baseless. Connell was convicted of “retaliation” because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat to academic freedom, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal “retaliation.”

Professor Connell was charged with racial harassment and removed from Widener’s campus because he discussed hypothetical crimes in his criminal law class, including the imaginary killing of the law school dean, Linda Ammons, who happens to be black. (He was also accused of harassment because he “expressed his philosophical concerns about the fairness and utility of hate crime” laws.)

But Connell did not select the dean for use in these hypotheticals because of her race, nor was there any evidence that he had a racist motive for doing so. (Comments are not “racial harassment” unless they target a victim based on her race, and are severe and pervasive, according to Caver v. City of Trenton, a ruling by the Third Circuit Court of Appeals, which has jurisdiction over Widener.) Far from being a racist, Connell had spent 15 years successfully working to save the life of a black man who had been sentenced to die after he was convicted of murder by an all-white jury.

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More Criticism for Obama State of the Union Proposal on Schools

by Hans Bader on February 3, 2012 · 2 comments

in Legal, Nanny State, Personal Liberty, Politics as Usual, Zeitgeist

Syndicated columnist Steve Chapman is criticizing President Obama’s proposal in the State of the Union address to require students to attend high school longer before being allowed to leave. As I noted earlier, the president would like to require students to attend school until they are at least 18, and the National Education Association, one of his biggest supporters, wants to require students to stay in school until age 21.

As Chapman notes, “Most states now allow students to drop out at 16 or 17.” The reason for this is that while most students benefit greatly from staying in high school, “the youngsters who are most likely to drop out are the ones who are least likely to learn if they stay. If they are 1) struggling to pass, 2) unwilling to apply themselves, 3) chronically tardy and absent, or 4) simply not very bright, they won’t learn much from being [in] a classroom—for two extra years.” As Chapman points out, experts are skeptical of Obama’s proposal (skepticism echoed by analysts quoted in the Washington Examiner):

James Heckman, a Nobel laureate economist at the University of Chicago who specializes in education, is skeptical of the proposal. At the college level, he told me, “The returns to people who are not very able or not very motivated are typically quite low.” There is evidence that kids may get some benefit from being required to stay in high school until 16 instead of 15, he says, but “it’s a weak reed to lean on.”

Let’s also not forget that the highest dropout rates are in the worst schools. Even the kids who want an education often graduate from these schools barely able to read. Where does Obama get the idea that the reluctant students, compelled to remain, will reap a rich harvest of learning?

It might be argued that even if there is no benefit from keeping these students around till they turn 18, there can’t be any harm. But think again.

The presence of disruptive, unmotivated kids in a class is a drain on teachers, a distraction to other students, and a daily obstacle to learning. One of the best things you can do for students who want to do the right thing is to remove those who would rather goof off or make trouble.

It’s not clear that laws like this will even work. A 2010 Johns Hopkins University study found that when six states raised the mandatory attendance age, three saw no increase in graduation rates—and one saw a decline. . .

If you want to keep unwilling students in school, you can spend money on truancy enforcement, which means taking money away from the willing students. It would be more rational to use the funds on education improvements so more kids will choose to stay.

A private company—or a private school—whose customers are fleeing has to come up with ways to keep them around. In Obama’s public sector, there is a quicker solution: Lock the exits.

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Alcohol Regulation Roundup: January 30, 2012

by Michelle Minton on January 30, 2012 · 1 comment

in Nanny State, Personal Liberty, Regulation

In national news: Congressman Kurt Schrader of Oregon announced last week that he is withdrawing his support of the CARE Act, the piece of legislation that will likely make it more difficult for small producers of wine, beer, and spirits to reach the market. In his statement, Rep. Schrader noted that after listening to the concerns of Oregon’s wine growers he now believes the legislation would be detrimental to their industry.

Also in national news: The Small BREW Act picked up a new cosponsor. Congressman Brad Miller of North Carolina signed onto the act that will reduce costs for small brewers and allow them to brew more while still being considered “small.” Currently, small brewers are defined as those making not more than 2 million barrels a year. The BREW Act would up that to 6 million barrels a year. The act also cuts the excise tax rate on the first 60,000 barrels for small brewers from $7 a barrel to $3.50 a barrel. The additional barrels after 60,000 and up to 2 million will be taxed at $16 a barrel.

Arizona: A ballot initiative is underway in Arizona that could give residents the chance to vote on whether or not they’d like a new tax on their alcohol. The tax would amount to 25 cents on every gallon of hard liquor and a dollar on every gallon on beer and wine. Like many other “sin taxes,” this will go to community programs and is sold as a remedy to the financial toll that alcohol abuse has on communities. Of course, this new tax would be in addition to the alcohol taxes that Arizona already has. Currently, the state of Arizona extracts $3 per gallon of spirits, 84 cents on every gallon of wine, and 16 cents on each gallon of beer. There are no plans to give money back to people for the scientifically proven health benefits of moderate alcohol consumption.

Connecticut: Earlier this month, Connecticut Governor Malloy released details of his plans to update the state’s alcohol laws. Among other things, Malloy hopes to legalize Sunday sales of alcohol, get rid of the holiday sales bans, and eliminate minimum pricing. If successful, the new laws will hopefully reduce costs for consumers and prevent residents from buying their booze in neighboring states.

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Obama Fosters the Skyrocketing Tuition He Criticized in His State of the Union Address

by Hans Bader on January 27, 2012 · 0 comments

in Legal, Personal Liberty, Politics as Usual, Sanctimony, Zeitgeist

In his State of the Union address, President Obama decried skyrocketing college tuition, attempting to take advantage of public anger over the steadily-worsening college tuition bubble. This was ironic, since his own administration has done much to foster rising college tuitions.

For example, it imposed the 90-10 rule, which forced low-cost educational institutions to raise their tuition to comply with a new federal regulation requiring them to charge enough over federal financial aid so that at least 10 percent of education costs don’t come from financial aid. For example, Corinthian College had diploma programs in health care and other fields that can be completed in a year or less. Until 2011, many of those programs had a total cost of about $15,000, which meant that federal grants and loans could cover nearly 100 percent of their cost. In response to the Education Department’s rule, the college raised tuition to comply with the 90/10 rule. The net result of the Obama Education Department’s rule was to “create a perverse, no-win ‘Catch-22’ that could prevent low-income students from attending college,” by encouraging such colleges to raise tuition to outstrip rising financial aid by more than ten percent. Administration allies like Senator Richard Durbin (D-Ill.) are now pushing a new rule, the 85-15 rule, that would require low-cost institutions to further raise tuition so that at least 15 percent of education costs aren’t covered by financial aid. (With this kind of mentality, it is no wonder that college graduation rates have actually “fallen somewhat since the 1970s” “among poor and working-class students.”)

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Buffett’s Secretary, Romney’s Return, and the Crushing Double Taxation on Investment Income

by John Berlau on January 27, 2012 · 0 comments

in Economy, Employment, Features, Nanny State, Personal Liberty, Sanctimony

Post image for Buffett’s Secretary, Romney’s Return, and the Crushing Double Taxation on Investment Income

There has been much waxing in the last few days about how unfair it supposedly is that Mitt Romney was taxed at around 15 percent. And that Warren Buffett supposedly pays a lower tax rate than his beleaguered secretary does.

But as my colleague Trey Kovacs and I pointed out in a Wall Street Journal op-ed this week, these “low” tax rates are a charade. This is because “our tax code layers taxation of dividends and capital gains on top of a top corporate tax rate of 35%—which even President Obama acknowledges [he, in fact, did so in the State of the Union] is one of the highest in the world … The law taxes corporations as if they were separate beings from the shareholders who own them and then levies a separate tax on shareholder payouts and gains. This double taxation brings the effective tax rate on investment income to as much as 44.75%.” In fact if you factor in the estate tax or “death tax,” the rate goes to 64 percent on this income. And that doesn’t even include state and local taxation.

As we note in the op-ed, “The most popular tax reforms—from the “9-9-9 plan” of former candidate Herman Cain to flat tax proposals—all have in common the reduction or elimination of double taxation on investment.”

My friend and mentor the late Richard Nadler found a few years back that polling showed that middle-class investors had “internalized their new role as capitalists” and “display favorable attitudes toward programs that reduce taxes on savings and investment.” New research seems to confirm this middle-class savers still retain these views even after the financial crisis.

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