<?xml version="1.0" encoding="UTF-8"?> <rss version="2.0" xmlns:content="http://purl.org/rss/1.0/modules/content/" xmlns:wfw="http://wellformedweb.org/CommentAPI/" xmlns:dc="http://purl.org/dc/elements/1.1/" xmlns:atom="http://www.w3.org/2005/Atom" xmlns:sy="http://purl.org/rss/1.0/modules/syndication/" xmlns:slash="http://purl.org/rss/1.0/modules/slash/" ><channel><title>OpenMarket.org &#187; Personal Liberty</title> <atom:link href="http://www.openmarket.org/category/personal-liberty/feed/" rel="self" type="application/rss+xml" /><link>http://www.openmarket.org</link> <description>The Competitive Enterprise Institute Blog</description> <lastBuildDate>Mon, 13 Feb 2012 17:21:44 +0000</lastBuildDate> <language>en</language> <sy:updatePeriod>hourly</sy:updatePeriod> <sy:updateFrequency>1</sy:updateFrequency> <generator>http://wordpress.org/?v=</generator> <item><title>Principles of Law: Simplicity is Beautiful</title><link>http://www.openmarket.org/2012/02/10/principles-of-law-simplicity-is-beautiful/</link> <comments>http://www.openmarket.org/2012/02/10/principles-of-law-simplicity-is-beautiful/#comments</comments> <pubDate>Fri, 10 Feb 2012 05:24:39 +0000</pubDate> <dc:creator>Ryan Young</dc:creator> <category><![CDATA[Legal]]></category> <category><![CDATA[Personal Liberty]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=51176</guid> <description><![CDATA[Transitioning democratic countries regularly used the U.S. Constitution as a model when drafting their own Constitutions. But that’s happening less and less, according to a thought-provoking Investor’s Business Daily editorial.]]></description> <content:encoded><![CDATA[<p></p><p>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.</p><p>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 &#8212; how the executive, legislative, and judicial branches are composed, what their powers are (and aren’t!), and a few rules of procedure.</p><p>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.</p><p>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.</p><p>The thinking goes, “How can something so simple be effective when the modern world is such a complicated place? The 21<span style="font-size: 11px;">st</span> century is very different from the 18<span style="font-size: 11px;">th</span> century.”</p><p>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.</p><p><span id="more-51176"></span></p><p>Transitioning democratic countries regularly used the U.S. Constitution as a model when drafting their own constitutions. But that’s happening less and less, according to a <a href="http://news.investors.com/Article/600448/201202071903/constitution-best-that-history-offers.htm">thought-provoking <em>Investor’s Business Daily</em> editorial</a>.</p><p>The reason is a shift in the intellectual climate. Negative rights are out of fashion now. Positive rights are all the rage. Negative rights are the kind that pervade the U.S. Constitution: don’t hit other people, don’t take their stuff, don’t break your contracts. Don’t, don’t don’t.</p><p>Positive rights are much less dour. And they are all over most new constitutions. You have the right to health care, or a job with six weeks vacation, and so on. People think of new positive rights all the time, too. There is a push in some countries to give people the legal right to Internet access. Sounds great. Who could be against that?</p><p>I can. Positive rights do sound nice, but in practice they are profoundly illiberal. That is because positive rights often contradict each other. If I break a bone and my doctor has a legal right to be on vacation, one of us has to have our positive rights violated. That means someone has to decide. Someone with a lot of power. Life and death, in some cases. A government with the power to make those kinds of decisions is very powerful indeed. Positive rights systems require large, powerful governments. Rights violations are both frequent and arbitary.</p><p>Negative rights have no such conflicts. That’s a big reason why the U.S. Constitution is so simply constructed. In fact, most of it isn’t even about granting this power or that to government. Most of that is contained in Article I, Section 8. The majority of the document is about placing strict limits on those powers. When the people are left alone, they largely prosper. Let them build from the bottom up. The view from the top on down is too distant to catch the necessary details.</p><p>In the law, as in so many other areas, simplicity is beautiful. As democracy continues to march across the globe, newly forming governments should keep that in mind.</p> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/02/10/principles-of-law-simplicity-is-beautiful/feed/</wfw:commentRss> <slash:comments>0</slash:comments> </item> <item><title>Massive Anti-Bullying Law and Bullying Initiatives Were Based on Misleading Publicity</title><link>http://www.openmarket.org/2012/02/09/massive-anti-bullying-law-and-bullying-initiatives-were-based-on-misleading-publicity/</link> <comments>http://www.openmarket.org/2012/02/09/massive-anti-bullying-law-and-bullying-initiatives-were-based-on-misleading-publicity/#comments</comments> <pubDate>Thu, 09 Feb 2012 19:20:10 +0000</pubDate> <dc:creator>Hans Bader</dc:creator> <category><![CDATA[Legal]]></category> <category><![CDATA[Personal Liberty]]></category> <category><![CDATA[Politics as Usual]]></category> <category><![CDATA[Sanctimony]]></category> <category><![CDATA[Zeitgeist]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=51118</guid> <description><![CDATA[&#8220;It launched a hundred &#8216;anti-bullying&#8217; initiatives at all levels of government, but much of what you think you know about&#8221; the Tyler Clementi case &#8220;is probably wrong,&#8221; notes legal commentator Walter Olson at Overlawyered, the world&#8217;s oldest law blog. Andrew Sullivan discusses this as well, linking to Ian Parker&#8217;s article in The New Yorker. We [...]]]></description> <content:encoded><![CDATA[<p></p><p>&#8220;It launched a hundred &#8216;anti-bullying&#8217; initiatives at all levels of government, but much of what you think you know about&#8221; the Tyler Clementi case &#8220;is probably wrong,&#8221; <a href="http://overlawyered.com/2012/02/tyler-clementi-suicide-case/">notes legal commentator Walter Olson</a> at Overlawyered, the world&#8217;s oldest law blog. <a href="http://andrewsullivan.thedailybeast.com/2012/02/the-anatomy-of-a-suicide.html">Andrew Sullivan</a> discusses this as well, linking to <a href="http://www.newyorker.com/reporting/2012/02/06/120206fa_fact_parker?currentPage=all">Ian Parker&#8217;s article in <em>The New Yorker</em></a>.</p><p>We wrote earlier about how the <a href="http://www.examiner.com/scotus-in-washington-dc/obama-administration-promotes-panic-over-bullying-despite-fall-bullying">current panic over bullying</a> is leading to <a href="http://www.openmarket.org/2011/11/15/obama-administration-promotes-panic-over-bullying-to-incite-attacks-on-students-rights-and-well-being/">attacks</a> on <a href="http://radio.foxnews.com/toddstarnes/top-stories/atty-says-school-threatened-punished-boy-who-opposed-gay-adoption.html">free speech</a>, <a href="http://www.openmarket.org/2012/01/20/the-ever-expanding-concept-of-bullying-casts-an-ominous-shadow-over-free-speech/">political debate</a>, and <a href="http://www.openmarket.org/2011/08/10/schools-use-bullying-as-a-pretext-to-violate-students-rights-to-free-association-and-freedom-of-speech/">free association</a> in the schools; <a href="http://www.openmarket.org/2011/03/24/free-speech-privacy-and-federalism-are-casualties-as-obama-administration-exploits-bullying-issue/">political pandering</a>; dishonest <a href="http://www.mindingthecampus.com/originals/2011/03/_by_hans_bader_theres.html">stretching of existing federal laws</a> by federal officials; and <a href="http://www.mindingthecampus.com/originals/2011/03/_by_hans_bader_theres.html">violations</a> of basic principles of <a href="http://www.openmarket.org/2011/03/24/free-speech-privacy-and-federalism-are-casualties-as-obama-administration-exploits-bullying-issue/">federalism</a>.</p><p><em>Reason</em>’s Jacob Sullum <a href="http://reason.com/blog/2012/02/02/now-that-new-jersey-legislators-have-to">writes</a> about New Jersey&#8217;s massively-long &#8220;Anti-Bullying Bill of Rights,&#8221; enacted after Clementi&#8217;s suicide at New Jersey&#8217;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 <a href="http://www.joannejacobs.com/2011/09/anti-bullying-law-stresses-nj-schools/">18 pages of &#8220;required components</a>,&#8221; that gave a huge boost to a burgeoning &#8220;anti-bullying&#8221; industry that seeks to define bullying as broadly as possible (to include things like &#8220;<a href="http://www.examiner.com/scotus-in-washington-dc/obama-administration-promotes-panic-over-bullying-despite-fall-bullying">eye-rolling,</a>&#8221; or always associating with the same group of friends) in order to create demand for its services. Hundreds of New Jersey schools “<a href="http://www.nytimes.com/2011/08/31/nyregion/bullying-law-puts-new-jersey-schools-on-spot.html" rel="nofollow">snapped up</a> a $1,295 package put together by a consulting firm that includes a <a href="http://www.nytimes.com/2011/08/31/nyregion/bullying-law-puts-new-jersey-schools-on-spot.html" rel="nofollow">100-page manual</a>.”</p><p><span id="more-51118"></span></p><p>Rod Dreher <a href="http://www.theamericanconservative.com/dreher/2012/01/30/liberal-moral-panic-rutgers-tyler-clementi/">sees</a> a lesson from the Clementi case about jumping to conclusions:</p><blockquote><p>I too thought that Clementi had been outed after Ravi filmed him having sex. As Parker shows, Clementi was not closeted, and he wasn’t filmed having sex. And yes, Dharun Ravi [who is being prosecuted for hate crimes over the filming that allegedly caused Clementi's suicide] is an ass. But he is not facing criminal trial for being an ass. This is what moral panic does. . .It is <em>hard</em> for me to be fair [to the defendant] in these particular cases, but it is necessary to fight against my own instincts in this case and in every case. You too.</p></blockquote><p>The Obama administration&#8217;s StopBullying.gov website defines bullying incredibly broadly in ways that conflict with freedom of speech and common sense. It defines “<a href="http://www.stopbullying.gov/topics/what_is_bullying/index.html" rel="nofollow">teasing</a>” as a form of “<a href="http://www.stopbullying.gov/topics/what_is_bullying/index.html" rel="nofollow">bullying</a>,” and “<a href="http://www.stopbullying.gov/topics/cyberbullying/" rel="nofollow">rude</a>” or “<a href="http://www.stopbullying.gov/topics/cyberbullying/" rel="nofollow">hurtful</a>” “<a href="http://www.stopbullying.gov/topics/cyberbullying/" rel="nofollow">text messages</a>” as “<a href="http://www.stopbullying.gov/topics/cyberbullying/" rel="nofollow">cyberbullying</a>.” Since “creating web sites” that “make fun of others” also is deemed “cyberbullying,” conservative websites that poke fun at the president are presumably guilty of cyberbullying under this strange definition. (Law professors like UCLA’s Eugene Volokh have <a href="http://volokh.com/posts/1241122059.shtml" rel="nofollow">criticized</a> bills by liberal lawmakers like Congresswoman <a href="http://foolocracy.com/2009/05/cyberbullying-act-puts-a-chill-on-free-speech/" rel="nofollow">Linda Sanchez</a> (D-Calif.) that would ban some criticism of politicians as <a href="http://foolocracy.com/2009/05/cyberbullying-act-puts-a-chill-on-free-speech/" rel="nofollow">cyberbullying</a>.)</p><p>Anti-bullying regulations can backfire and have <a href="http://www.nj.com/times-opinion/index.ssf/2011/11/opinion_njs_new_anti-bullying.html" rel="nofollow">bad consequences</a> for child development. As a school official <a href="http://www.nj.com/times-opinion/index.ssf/2011/11/opinion_njs_new_anti-bullying.html" rel="nofollow">noted</a> after passage of New Jersey’s sweeping anti-bullying law, “The anti-bullying law also may not be appropriate for our youngest students, such as kindergartners who are just learning how to socialize with their peers. Previously, name-calling or shoving on the playground could be handled on the spot as a teachable moment, with the teacher reinforcing the appropriate behavior. That’s no longer the case. Now it has to be documented, reviewed and resolved by everyone from the teacher to the anti-bullying specialist, principal, superintendent and local board of education.”</p> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/02/09/massive-anti-bullying-law-and-bullying-initiatives-were-based-on-misleading-publicity/feed/</wfw:commentRss> <slash:comments>2</slash:comments> </item> <item><title>Utah Doubles Down on Gambling Prohibition</title><link>http://www.openmarket.org/2012/02/06/utah-doubles-down-on-gambling-prohibition/</link> <comments>http://www.openmarket.org/2012/02/06/utah-doubles-down-on-gambling-prohibition/#comments</comments> <pubDate>Mon, 06 Feb 2012 20:50:04 +0000</pubDate> <dc:creator>Michelle Minton</dc:creator> <category><![CDATA[Deregulate to Stimulate]]></category> <category><![CDATA[Features]]></category> <category><![CDATA[Nanny State]]></category> <category><![CDATA[Personal Liberty]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=51012</guid> <description><![CDATA[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 [...]]]></description> <content:encoded><![CDATA[<p><a class="post_image_link" href="http://www.openmarket.org/2012/02/06/utah-doubles-down-on-gambling-prohibition/" title="Permanent link to Utah Doubles Down on Gambling Prohibition"><img class="post_image alignright" src="http://www.openmarket.org/wp-content/uploads/2012/02/utah-state-seal.jpg" width="300" height="300" alt="Post image for Utah Doubles Down on Gambling Prohibition" /></a></p><p>It’s not news that regulators in Utah are often <a href="http://www.politico.com/news/stories/1111/67428.html">uncomfortable</a> 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 &#8212; 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.</p><p>As <a href="http://calvinayre.com/2012/02/01/poker/utah-the-party-poo-pah/">Eric Bianchi over at CalvinAyre.com</a> reported last week, Utah state Rep. Stephen Sandstrom introduced legislation (<a href="http://le.utah.gov/%7E2012/bills/hbillint/hb0108.htm">HB 108</a>) 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. <a href="http://www.deseretnews.com/article/705398485/Briefly-at-the-Utah-Legislature.html">Last month, the Utah House</a> passed a bill (HB 40) that eliminated “vague working in the state law” that <a href="http://www.sltrib.com/sltrib/home/51248417-76/gambling-cyber-law-sweepstakes.html.csp?page=2">Internet cafes</a> had reportedly been exploiting to allow online gaming &#8212; or as the bill’s sponsor Rep. Don Ipson charmingly put it, made them “havens for criminal activity.”</p><p>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 <a href="http://www.math.byu.edu/%7Ejarvis/gambling/utah-gambling.html">doing plenty of gambling anyway</a>.</p><p>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 <a href="http://www.nytimes.com/2012/01/18/us/more-states-look-to-legalize-online-gambling.html">move toward legalizing</a> 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.</p> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/02/06/utah-doubles-down-on-gambling-prohibition/feed/</wfw:commentRss> <slash:comments>0</slash:comments> </item> <item><title>Liberal Justices Complain About American Law Being Too Protective of Civil Liberties and Colorblindness</title><link>http://www.openmarket.org/2012/02/06/liberal-justices-complain-about-american-law-being-too-protective-of-civil-liberties-and-colorblindness/</link> <comments>http://www.openmarket.org/2012/02/06/liberal-justices-complain-about-american-law-being-too-protective-of-civil-liberties-and-colorblindness/#comments</comments> <pubDate>Mon, 06 Feb 2012 17:08:36 +0000</pubDate> <dc:creator>Hans Bader</dc:creator> <category><![CDATA[International]]></category> <category><![CDATA[Legal]]></category> <category><![CDATA[Personal Liberty]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=50986</guid> <description><![CDATA[Recently retired Justice John Paul Stevens, who became the leader of the Supreme Court&#8217;s liberal bloc in his later years on the Court, complained recently about the 1964 Civil Rights Act, which he claimed was &#8220;poorly-considered&#8221; because its text literally forbids all racial discrimination &#8212; including against white people &#8212; and contains no exceptions. Justice [...]]]></description> <content:encoded><![CDATA[<p></p><p>Recently retired Justice John Paul Stevens, who became the leader of the Supreme Court&#8217;s liberal bloc in his later years on the Court, complained recently about the 1964 Civil Rights Act, which he claimed was &#8220;<a href="http://www.mindingthecampus.com/originals/2012/01/an_ex-justice_on_the_poorly_co.html">poorly-considered</a>&#8221; because its text literally forbids all racial discrimination &#8212; including against white people &#8212; and contains no exceptions. Justice Ruth Bader Ginsburg, a sitting Supreme Court Justice appointed by Bill Clinton, recently advised Egypt <a href="http://www.lc.org/index.cfm?PID=14100&amp;PRID=1151">not to model its constitution on the U.S. Constitution, but rather</a> on documents like the <a href="http://dailycaller.com/2012/02/06/justice-ginsburg-causes-storm-dissing-the-constitution-while-abroad/">South African</a> 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,” <a href="http://dailycaller.com/2012/02/06/justice-ginsburg-causes-storm-dissing-the-constitution-while-abroad/" rel="nofollow">she said</a>.</p><p>Justice Stevens&#8217; 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 <a href="http://supreme.justia.com/cases/federal/us/427/273/"><em>McDonald</em> case</a>, 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<em> <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&amp;vol=443&amp;invol=193">Weber</a></em><a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&amp;vol=443&amp;invol=193"> decision</a>, 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 &#8220;diversity,&#8221; rejecting legal challenges under both the Constitution and the Civil Rights Act (in the <a href="http://www.law.cornell.edu/supct/html/02-241.ZS.html"><em>Grutter</em> case</a>). However, over Justice Stevens&#8217; objections, it struck down another college admissions policy that the Court viewed as using race too much and too mechanically (in the <a href="http://www.law.cornell.edu/supct/html/02-516.ZS.html"><em>Gratz</em> case</a>), and it also invalidated racial discrimination against whites in voting, once again over Justice Stevens&#8217; objections (in <a href="http://www.law.cornell.edu/supct/html/98-818.ZS.html"><em>Rice v. Cayetano</em></a>).</p><p><span id="more-50986"></span></p><p>Although liberal scholars, like former Civil Rights Commissioner Mary Frances Berry, have recently argued that the civil-rights laws were not intended to protect white people, the courts have held that the Civil Rights Act was indeed intended to prohibit racial discrimination even against whites, and thus, whites who experience racial harassment or abuse are able to sue under the Civil Rights Act, as cases like <a href="http://caselaw.findlaw.com/us-5th-circuit/1097623.html"><em>Huckabay v. Moore</em></a> and <a href="http://www.ca8.uscourts.gov/opndir/02/12/013999P.pdf"><em>Bowen v. Missouri Department of Social Services</em></a> illustrate. (Affirmative action is viewed as merely a limited exception to the ban on racial discrimination in areas such as hiring and promotion, and thus not a license for an employer to fire or racially harass its white employees.)</p><p>Justice Ginsburg says that American courts should look more to <a href="http://volokh.com/posts/1239605727.shtml">foreign court rulings</a> and other countries&#8217; laws in interpreting our own Constitution. But she herself does so only <a href="http://www.openmarket.org/2009/04/13/supreme-hypocrisy-on-citing-foreign-law/">when it is ideologically convenient, ignoring</a> foreign court rulings that limit lawsuits and punitive damages, and allow governments to restrict late-term abortions.</p><p>Moreover, for the Supreme Court to rely on &#8220;international opinion&#8221; to decide cases &#8212; as liberal Justices <a href="http://www.openmarket.org/2011/12/09/will-international-norms-override-civil-liberties-and-protections-against-violent-crime/">do when it is convenient</a> &#8212; could set a dangerous precedent for civil liberties, since foreign legal systems and international lawyers are often <a href="http://www.examiner.com/x-7812-DC-SCOTUS-Examiner%7Ey2010m5d17-Supreme-Court-blocks-life-sentences-without-parole-for-violent-teens-citing-international-opinion">hostile to free speech, religious freedom</a>, and other basic civil liberties, and the <a href="http://www.bookwormroom.com/2010/01/09/britain-outlaws-a-homeowners-self-defense-against-intruders/">right of homeowners to defend themselves</a> against criminals by <a href="http://www.bookwormroom.com/2010/01/09/britain-outlaws-a-homeowners-self-defense-against-intruders/">wielding a knife</a> or gun in self-defense. The U.N. Human Rights Council says there is <a href="http://volokh.com/2007/04/30/the-human-right-of-self-defense/">no human right to self-defense</a>, and that, quite the contrary, international human rights norms require “<a href="http://volokh.com/2007/04/30/the-human-right-of-self-defense/">very severe gun control</a>.”</p> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/02/06/liberal-justices-complain-about-american-law-being-too-protective-of-civil-liberties-and-colorblindness/feed/</wfw:commentRss> <slash:comments>4</slash:comments> </item> <item><title>The STOCK Act&#8217;s Muzzle &#8212; How &#8220;Insider Trading&#8221; Bill Could Shut Down Grassroots Communication</title><link>http://www.openmarket.org/2012/02/06/the-stock-acts-muzzle-how-insider-trading-bill-could-shut-down-grassroots-communication/</link> <comments>http://www.openmarket.org/2012/02/06/the-stock-acts-muzzle-how-insider-trading-bill-could-shut-down-grassroots-communication/#comments</comments> <pubDate>Mon, 06 Feb 2012 15:21:56 +0000</pubDate> <dc:creator>John Berlau</dc:creator> <category><![CDATA[Legal]]></category> <category><![CDATA[Nanny State]]></category> <category><![CDATA[Personal Liberty]]></category> <category><![CDATA[Sanctimony]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=50977</guid> <description><![CDATA[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 [...]]]></description> <content:encoded><![CDATA[<p></p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.”</p><p><span id="more-50977"></span></p><p>Such a scenario is almost certain if the House enacts anything similar to the STOCK Act that passed the Senate last week by a whopping 96-3 vote. House Majority Whip Eric Cantor <a href="http://www.foxnews.com/us/2012/02/03/house-ready-to-consider-insider-trading-ban/">told reporters</a> on Friday that the House plans to vote on a similar measure next week, saying only that “we intend to strengthen” the Senate bill.</p><p>The bill gained steam after a series of revelations in conservative author Peter Schweizer’s best-selling book, <em><a href="http://www.amazon.com/Throw-Them-All-Peter-Schweizer/dp/0547573146/ref=sr_1_1?ie=UTF8&amp;qid=1328451954&amp;sr=8-1">Throw Them All Out</a></em>, that pointed out that many members of Congress routinely trade individual stocks and options, sometimes after receiving sensitive information. (Though how “privileged” and “nonpublic” the economic data they had received actually was has been a <a href="http://online.wsj.com/article/SB10001424052970204190504577039834018364566.html">subject</a> of <a href="http://blog.al.com/birmingham-news-commentary/2012/01/my_view_congressman_spencer_ba.html">debate</a>.) A &#8220;60 Minutes” report based on some of Schweizer’s findings propelled the issue into the spotlight, with President Obama calling on Congress in the State of the Union to ban “insider trading” among its members and staff.</p><p>But lost in the justifiable outrage about politicians’ perks is discussion about how provisions in the Senate bill would actually work. Like the <a href="http://cei.org/coalition-letters/coalition-letter-urges-house-judiciary-committee-consider-implications-sopa">Stop Online Piracy Act</a> (SOPA), another bipartisan bill with aims that nearly everyone agreed on, the proverbial devil is in the details of the legislative language. In fact, if the STOCK Act were in effect, the campaign against SOPA might have failed, because communication between Congress and outside groups would have been severely curbed.</p><p>Among the most important things to know about the STOCK Act is that  by specifically applying &#8220;material, nonpublic information&#8221; rules that govern officers and directors of a corporation to Congress, the  bill would bar in many instances the disclosure of such information as well as trading on it. In a press release describing the House version of the STOCK Act they sponsored, House Rules Committee Ranking Member Louise Slaughter (D-N.Y.) and Rep. Tim Walz (D-Minn.) <a href="http://www.tmcnet.com/usubmit/2012/01/31/6087042.htm">declare</a> that the bill “amends House ethics rules to prohibit Members and their employees from <strong>disclosing</strong> any non-public information about any pending or prospective legislative action for investment purposes.” [emphasis added]</p><p>But members and staffers have no practical way of assuring that those to whom they spread information won’t use it “for investment purposes.” As a result, communication about important matters with outside groups may decrease markedly, and the very aim of transparency in government that was an impetus for this bill would be undermined. Slaughter, already a champion of curbing grassroots speech through <a href="http://blogs.buffalonews.com/politics_now/2008/06/rep-slaughter-c.html">her call</a> for restoration of the Fairness Doctrine, has actually implied that cutting off communication could be one the results of the law.</p><p>In a “<a href="http://www.louise.house.gov/index.php?option=com_content&amp;task=view&amp;id=433&amp;Itemid=106">fact check</a>” she released on an earlier version of her bill, Slaughter conceded a fact that is often misreported – that there is no congressional exemption from insider trading laws. “Just as anyone else, Members of Congress and staffers are subject to current insider trading laws,” she wrote, giving an example of a CEO telling a member about a product recall that has yet to be announced. If it can be proven that the member sold his or her stock based on this info<strong>, </strong>this action would be “illegal under current insider trading laws.”</p><p>The problem, Slaughter argued, is that “current insider trading laws do not apply to nonpublic information about current or upcoming congressional activity.” A big part of the reason for this, Slaughter acknowledged, is that “insider trading” prohibitions stem from the “duty of confidentiality” in securities laws imposed on executives, directors, and others who deal with information regarding a publicly traded company.</p><p>By contrast, she noted, “The work of Congress depends on open lines of communication between Members and constituents and organizations.” Therefore, she concluded, ”we must create a broader prohibition that does not require a duty of confidentiality.”</p><p>Yet the Senate bill (S. 2038) would specifically impose a “duty of confidentiality” on members of Congress and their staffs. Section 4(g) of the Senate bill states that &#8220;each Member of Congress or employee of Congress owes a duty arising from a relationship of trust and <strong>confidence</strong> to the Congress, the United States Government, and the citizens of the United States with respect to material, nonpublic information.&#8221; [emphasis added]</p><p>The term &#8220;confidence&#8221; in the context of securities law does not mean faith in a particular institution &#8212; indeed it would be difficult to legislate confidence in Congress or any branch of government &#8212; but rather keeping matters in confidence. And under the “duty of confidentiality” imposed with regard to publicly-traded companies, many have been prosecuted for sharing information as well as trading on it.</p><p>A so-called “tipper,” <a href="http://www.ebaughlaw.com/publications/TJBL_article.pdf">wrote</a> attorney Nelson Ebaugh in the <em>Texas Journal of Business Law,</em> “is exposed to insider trading liability for simply communicating material, nonpublic information even if he did not personally use the information to trade in the company’s securities.” Ebaugh added that courts are split on whether a “personal benefit” is even required for guilt.</p><p>Ebaugh and other experts have argued that insider trading rules have been applied so broadly to such “tippers” of corporate information that they inhibit disclosure about corporate wrongdoing. If these rules were applied to information about upcoming congressional action, it would have serious, if not more severe, effects in muzzling whistleblowers.</p><p>In addition to the e-mail to activists from the beginning of this article, conference calls and off-the-record meetings with ideological activists, such as the famed “Wednesday meeting” created by Grover Norquist, could also be curtailed. In the corporate word, the Securities and Exchange Commission has cracked down on what it calls “selective disclosure” to analysts. As a result, under Regulation Full Disclosure, most public companies put information about conference calls on their web site and/or post the recorded call for all to hear.</p><p>Following this precedent, if the STOCK Act is passed, the SEC may require meetings and calls in which Congress members and staffers participate to be open to the public or not occur at all. The result would be less outflow of information from Congress and a less-informed public.</p><p>The exposes of Schweizer and others raise serious issues that about power and privilege need to be addressed. Sensible measures, such as prohibiting members and their spouses from participating in initial public offering (which is not in the STOCK Act) as well as more rapid disclosure of stock trades (which is), should be enacted. Unfortunately, the bulk of the STOCK Act bills currently before the House and Senate would muzzle much of the communication necessary for sunlight and reform.</p> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/02/06/the-stock-acts-muzzle-how-insider-trading-bill-could-shut-down-grassroots-communication/feed/</wfw:commentRss> <slash:comments>3</slash:comments> </item> <item><title>Retaliation Charges Pose Growing Threat to Free Speech</title><link>http://www.openmarket.org/2012/02/05/retaliation-charges-pose-growing-threat-to-free-speech/</link> <comments>http://www.openmarket.org/2012/02/05/retaliation-charges-pose-growing-threat-to-free-speech/#comments</comments> <pubDate>Sun, 05 Feb 2012 15:27:58 +0000</pubDate> <dc:creator>Hans Bader</dc:creator> <category><![CDATA[Legal]]></category> <category><![CDATA[Nanny State]]></category> <category><![CDATA[Personal Liberty]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=50924</guid> <description><![CDATA[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&#8221; 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 [...]]]></description> <content:encoded><![CDATA[<p></p><p>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&#8221; based on your classroom speech. Civil-liberties advocates, like the Foundation for Individual Rights in Education, <a href="http://www.newhampshire.com/article/20111125/OPINION02/711259983&amp;template=mobileart">rely heavily on adverse publicity</a> to save wrongly accused professors from being disciplined and fired by campus disciplinary bodies. They put to good use Justice Brandeis&#8217;s insight that publicity deters wrongdoing and helps cure social evils. As Brandeis <a href="http://www.law.louisville.edu/library/collections/brandeis/node/196">once noted</a>, &#8220;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.&#8221;</p><p>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 &#8220;retaliation&#8221; against them, even when harassment charge is baseless. Connell was convicted of &#8220;retaliation&#8221; because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat <a href="http://books.google.com/books?id=Tv6WNrLbr8gC&amp;pg=PA125&amp;lpg=PA125&amp;dq=Osborn++Mesabi+retaliation&amp;source=bl&amp;ots=jQm7ynMAhx&amp;sig=Zi_8YUXs8f9bagTKNm6XhFaXYVo&amp;hl=en&amp;sa=X&amp;ei=N9b9Tp_bHojh0QHkz73OAg&amp;ved=0CCEQ6AEwAQ">to academic freedom</a>, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal &#8220;retaliation.&#8221;</p><div><div><p>Professor Connell was <a href="http://volokh.com/2011/02/16/criminal-law-professor-suspended-for-classroom-hypotheticals/">charged</a> with racial harassment and removed from Widener&#8217;s campus <a href="http://volokh.com/2011/02/16/criminal-law-professor-suspended-for-classroom-hypotheticals/">because</a> he discussed hypothetical crimes in his criminal law class, including the <a href="http://www.delawareonline.com/article/20110214/NEWS/102140339/Imagery-puts-Widener-law-professor-under-fire">imaginary killing</a> of the law school dean, Linda Ammons, who happens to be black. (He was also accused of harassment because he &#8220;<a href="http://www.scribd.com/doc/61745003/In-Re-Connell-Report-of-Formal-Hearing-Committee">expressed</a> his philosophical concerns about the fairness and utility of hate crime&#8221; laws.)</p><p>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 &#8220;racial harassment&#8221; unless they target a victim <a href="http://www.garlands-digest.com/cs/3d/2000s/05/030805ca.html">based on her race</a>, and are severe and pervasive, according to <a href="http://www.garlands-digest.com/cases/3d/2000s/05/030805ca.pdf"><em>Caver v. City of Trenton</em></a>, a ruling by the Third Circuit Court of Appeals, which has jurisdiction over Widener<span style="font-family: TimesNewRoman, serif">.</span>) Far from being a racist, Connell had <a href="http://articles.philly.com/2011-02-16/news/28538645_1_official-charges-vice-dean-classroom">spent 15 years successfully working to save the life</a> of a black man who had been sentenced to die after he was convicted of murder by an all-white jury.</p><p><span id="more-50924"></span></p><p>Leading law professors filed <a href="http://www.nas.org/userfiles/file/EX%20G%20ExpertAffidavit_ProfKerr%20%283%29.pdf">affidavits</a> in support of Connell pointing out that discussing hypothetical crimes against law deans was standard practice for law professors who teach criminal law. George Washington University&#8217;s Orin Kerr <a href="http://volokh.com/2011/02/16/criminal-law-professor-suspended-for-classroom-hypotheticals/">noted that</a> &#8221;one of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. . . . students just love it. If you teach first-year criminal law,&#8221; &#8220;that means you spend a lot of time imagining your colleagues meeting horrible fates.&#8221; In <a href="http://www.law.com/regionals/ca/opinions/aug/9956964.shtml"><em>Bauer v. Sampson</em></a>, a court ruled that depicting a college official&#8217;s imaginary death was protected by the First Amendment.</p><p>After Professor Connell was exonerated by a <a href="http://www.mindingthecampus.com/originals/2011/08/the_mess_at_widener_law_school.html">committee of law professors</a>, the charges against him were <a href="http://www.mindingthecampus.com/originals/2011/08/the_mess_at_widener_law_school.html">resubmitted</a>, in Kafkaesque fashion, to a disciplinary panel including Dean Ammons herself, another Widener administrator, and a professor hand-picked by Ammons.</p><p>While even this new panel was forced to concede the obvious &#8212; that Connell had not committed racial harassment &#8211; it found him <a href="http://www.scribd.com/doc/61745003/In-Re-Connell-Report-of-Formal-Hearing-Committee">guilty</a> of two acts of &#8220;retaliation&#8221;: the first was an e-mail protesting his innocence after he was suspended and banned from campus, and the second was his lawyer&#8217;s public statement that he was preparing to sue over the unfounded allegations. The e-mail <a href="http://www.scribd.com/doc/61745003/In-Re-Connell-Report-of-Formal-Hearing-Committee">called</a> the accusations against him &#8220;preposterous&#8221; and said that they were made by &#8220;two unnamed students from my Criminal Law class of spring 2010&#8243; who &#8220;falsely&#8221; quoted and took &#8220;out of context&#8221; his classroom &#8220;remarks.&#8221; The panel deemed the email to be illegal retaliation, even though the e-mail <a href="http://www.mindingthecampus.com/originals/2011/08/the_mess_at_widener_law_school.html">did not even name</a> the accusers, because the e-mail supposedly had the &#8220;foreseeable effect of identifying the complainants.&#8221; (The e-mail led to students speculating about who the complainants were, and a complainant suspected that others &#8220;believed that she was one of the complaining students.&#8221;) Connell was then <a href="http://legalinsurrection.com/2011/08/widener-law-school-goes-soviet-demands-law-professor-undergo-psychiatric-evaluation/">suspended</a> for a year without pay. As a <a href="http://legalinsurrection.com/2011/08/widener-law-school-goes-soviet-demands-law-professor-undergo-psychiatric-evaluation/">condition of reinstatement</a>, he must undergo psychiatric treatment, and be deemed sufficiently &#8220;cured&#8221; before he is allowed to return to his classroom.</p><p>Connell&#8217;s e-mail did not legally constitute &#8220;retaliation&#8221; under controlling court rulings and precedents. But Widener was able to claim otherwise with a straight face, by cherry-picking language from court rulings it selectively cited. First, it recited the vague, broad definition of retaliation from the Supreme Court&#8217;s decision in <em><a href="http://www.law.cornell.edu/supct/html/05-259.ZO.html">Burlington Northern v. White</a> </em>(2006): conduct that &#8220;could well dissuade a reasonable worker from making or supporting a charge of discrimination.&#8221; The e-mail, it suggested, could dissuade complaints by making complainants uncomfortable or inciting ostracism against them.</p><p>But Widener ignored language in that Supreme Court ruling saying that mild expressions of hostility in response to a complaint do not rise to the level of &#8220;retaliation.&#8221; The Supreme Court declared that &#8220;snubbing by supervisors or co-workers&#8221; or &#8220;petty slights&#8221; in response to a complaint do not rise to the level of retaliation, since they would not be &#8220;material&#8221; enough to dissuade a &#8220;reasonable&#8221; person from complaining. If actual snubbing is not retaliation, Connell&#8217;s e-mail can&#8217;t qualify based on Widener&#8217;s <em>speculation </em>that it could lead to snubbing. The Supreme Court also said that only &#8220;significant&#8221; rather than &#8220;trivial harms&#8221; constitute retaliation, and that &#8220;sporadic&#8221; &#8220;abusive language&#8221; or &#8220;occasional teasing&#8221; does not qualify.</p><p>Second, Widener cited a ruling from a Midwestern appeals court in another part of the country (the Sixth Circuit, which has no jurisdiction over Widener), that rejected a challenge to a professor&#8217;s discipline for publicly criticizing a harassment complaint. That disturbing ruling,<em> <a href="http://caselaw.findlaw.com/us-6th-circuit/1453576.html">Bonnell v. Lorenzo</a>, </em>essentially held that bans on &#8220;retaliation&#8221; trump the First Amendment, menacing academic freedom.</p><p>In doing so, Widener chose to ignore other First Amendment rulings that limited the definition of &#8220;retaliation&#8221; based on the freedoms of speech and petition. For example, the Supreme Court&#8217;s 2002 ruling in <em><a href="http://www.law.cornell.edu/supct/html/01-518.ZO.html">BE&amp;K Construction Co. v. NLRB</a></em> held that an employer&#8217;s reasonable, but unsuccessful, lawsuit was protected by the First Amendment&#8217;s petition clause even if it had a &#8220;retaliatory motive.&#8221; In <a href="http://www.sorehands.com/injdir/bains.htm"><em>Bain v. City of Springfield</em></a> (1997), the Massachusetts Supreme Court ruled that a mayor was entitled to publicly denounce a sexual harassment complaint against him, even if that could dissuade the filing of harassment charges, since retaliation prohibitions are limited by &#8220;constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.&#8221; Similarly, in <a href="http://law.justia.com/cases/federal/appellate-courts/F3/229/917/577480/"><em>Brooks v. City of San Mateo</em></a> (2000), the federal Ninth Circuit Court of Appeals held that &#8220;retaliation&#8221; could not be found based on &#8220;mere ostracism&#8221; or employees&#8217; refusal to associate with an employee after she brought an unsuccessful harassment complaint, citing a potential clash with the &#8220;First Amendment freedom of association.&#8221;</p><p>In short, contrary to what a Florida trial judge recently <a href="http://volokh.com/2011/11/10/publicly-criticize-discrimination-lawsuit-against-you-risk-a-retaliation-lawsuit-based-on-your-speech/">suggested</a> in <em>Booth v. Pasco County</em>, there is no blanket exception to the First Amendment for speech that is &#8220;discriminatory&#8221; or &#8220;retaliatory.&#8221; For example, in <a href="http://scholar.google.com/scholar_case?case=11228923807186121497&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr%20%20"><em>DeJohn v. Temple University</em></a> (2008), the Third Circuit, the federal appeals court with jurisdiction over Widener, invalidated a college sexual-harassment policy that restricted academic speech, noting that &#8220;there is no &#8216;harassment exception&#8217; to the First Amendment&#8217;s Free Speech Clause,&#8221; and &#8220;no categorical rule . . . divests `harassing&#8217; speech as defined by federal anti-discrimination statutes, of First Amendment protection.&#8221; Similarly, <em><a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&amp;case=/data2/circs/9th/9915098.html">White v. Lee</a> </em>(2000)<em> </em>rejected liability for speech that allegedly incited discrimination, holding that the anti-discrimination provisions contained in the Fair Housing Act <a href="http://www.cir-usa.org/cases/white_v_lee.html">did not</a> override free speech protections. That ruling by the Ninth Circuit Court of Appeals held that citizens could not be investigated under the Fair Housing Act, even if their speech was bigoted, and the speech directly led to a city blocking a housing project for the disabled. If the First Amendment protects speech that incites actual discrimination, it certainly protects speech that merely unintentionally incites snubbing of a discrimination complainant. Similarly, in <a href="http://www.gtleblog.com/uploads/file/rodriguez.pdf"><em>Rodriguez v. Maricopa County Community College</em></a> (2010), the Ninth Circuit, citing the First Amendment, <a href="http://volokh.com/2010/05/20/freedom-of-speech-vs-workplace-harassment-law-a-big-free-speech-win-in-the-ninth-circuit/">dismissed a racial harassment lawsuit</a> against a white professor over his <a href="http://www.firstamendmentcoalition.org/2010/05/federal-court-rules-professors-racially-offensive-e-mails-protected-by-first-amendment/%20">racially-charged anti-immigration emails</a>.</p><p>While Widener&#8217;s claim that Connell&#8217;s email was &#8220;retaliation&#8221; was a tortured and pretextual reading of the law, it reflected what retaliation <em>ought </em>to mean to some left-leaning lawyers who counsel universities. (Other academics, <a href="http://books.google.com/books?id=Tv6WNrLbr8gC&amp;pg=PA125&amp;lpg=PA125&amp;dq=Osborn++Mesabi+retaliation&amp;source=bl&amp;ots=jQm7ynMAhx&amp;sig=Zi_8YUXs8f9bagTKNm6XhFaXYVo&amp;hl=en&amp;sa=X&amp;ei=N9b9Tp_bHojh0QHkz73OAg&amp;ved=0CCEQ6AEwAQ">like Richard Osborne</a> at Mesabi Community College, have also been punished for &#8220;retaliation&#8221; for speaking out vigorously in their own defense; Osborne&#8217;s punishment was <a href="http://books.google.com/books?id=Tv6WNrLbr8gC&amp;pg=PA125&amp;lpg=PA125&amp;dq=Osborn++Mesabi+retaliation&amp;source=bl&amp;ots=jQm7ynMAhx&amp;sig=Zi_8YUXs8f9bagTKNm6XhFaXYVo&amp;hl=en&amp;sa=X&amp;ei=N9b9Tp_bHojh0QHkz73OAg&amp;ved=0CCEQ6AEwAQ">rescinded</a> only after he brought a free-speech lawsuit.) To these lawyers, current legal norms and notions of academic freedom privilege white male faculty at the expense of minority complainants, giving them insufficient protection.</p><p>When law professors at the Volokh Conspiracy law blog <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">condemned</a> Widener&#8217;s treatment of Connell, most of its lawyer readers disagreed with Widener&#8217;s &#8220;retaliation&#8221; finding in the comment thread. But a liberal employment lawyer who <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">represents</a> universities disagreed, arguing that Widener was not only permitted but legally &#8220;<a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">compelled to punish</a>&#8221; Connell for &#8220;retaliation.&#8221; Brushing aside the <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">arguments</a> of <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">many</a> other <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">lawyers</a> <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">pointing</a> <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">out</a> that Connell&#8217;s e-mail <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">did</a> <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">not legally amount</a> to &#8220;retaliation,&#8221; that commenter, who <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">represents</a> <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/"><em>employers</em></a>, argued that simply proclaiming your innocence without even mentioning the name of your accuser can be retaliation. He claimed that Connell, who had received high marks for his teaching (and successfully handled high-profile cases in court), was a &#8220;<a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">warped</a>,&#8221; &#8220;underachieving <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">white male</a>&#8221; who should have been fired. People wrongly accused of harassment, he said, should just keep their &#8220;<a href="http://volokh.com/2011/07/21/criminal-law-professor-mostly-exonerated-in-widener-law-disciplinary-case/">mouth shut</a> and let the process&#8221; work, &#8220;<a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">not contact</a>&#8221; potentially helpful witnesses, and &#8220;<a href="http://volokh.com/2011/07/21/criminal-law-professor-mostly-exonerated-in-widener-law-disciplinary-case/">say nothing to anyone</a>.&#8221; He <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">argued</a>, &#8220;when you are accused of race and sex discrimination, it is best to be silent . . . And you should keep silent unless and until you have been exonerated.&#8221; (That is a prescription for disaster in dealing with a campus kangaroo court, or in getting sympathetic witnesses to come forward to rebut a claim that a professor&#8217;s classroom remarks created a racially-harassing &#8220;classroom climate.&#8221;) Exuding racial grievance against whites, he depicted those who disagreed with him as racists, and called the conservative Connell an &#8220;<a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">anti-black bigot</a>,&#8221; citing the <a href="http://volokh.com/2011/02/18/interview-with-lawrence-connell-the-criminal-law-professor-suspended-for-his-hypotheticals/">alleged existence</a> of &#8220;OBVIOUS historical antipathy between conservatives (especially white male ones) and minorities&#8221; &#8212; even as he claimed that jurors were legally &#8220;<a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">required</a>&#8221; to find O.J. Simpson <em>not </em>guilty. As a commenter observed in response, <a href="http://volokh.com/2011/08/06/wideners-dean-linda-ammons-doubles-down/">lawyers like this</a> are &#8220;part of the whole victimhood industry . . . &#8216;advising&#8217; clients to genuflect before the gods of political correctness, lest they be harmed.&#8221;</p><p>Lawyers who practice employment and discrimination law &#8211; including those who represent management &#8212; are a lopsidedly liberal lot. In my employment-law class at Harvard Law School, my classmates were overwhelmingly hostile to employers in harassment and retaliation cases. Ironically, some of those classmates now have jobs representing employers and advising them on their legal responsibilities. Their advice may well be colored by their ideology, and may lead to their clients firing innocent employees as &#8220;harassers&#8221; or &#8220;retaliators.&#8221; Moreover, broad legal definitions of &#8220;harassment&#8221; and &#8220;retaliation&#8221; create more lawsuits, and thus more demand for these lawyers&#8217; services, benefiting them financially. Both plaintiffs&#8217; lawyers and lawyers for colleges and universities benefit financially from more &#8220;retaliation&#8221; and harassment lawsuits being brought against educational institutions.</p><p>There is an additional, alternative reason why Widener&#8217;s finding that Connell engaged in illegal retaliation was erroneous: the complainants&#8217; allegations were legally unreasonable and thus not protected against &#8220;retaliation.&#8221; Retaliation against a harassment complainant is not legally prohibited if the complaint was based only on trivially offensive speech, as the Supreme Court made clear in <a href="http://supreme.justia.com/us/532/268/case.html"><em>Clark County School District v. Breeden</em></a> (2001). Thus, a harassment complaint based on a single racist utterance was <a href="http://www.garlands-digest.com/cs/4th/2000s/06/040806jo.html">not protected</a> against retaliation by the civil-rights laws, according to an appeals court in <a href="http://www.garlands-digest.com/cases/4th/2000s/06/040806jo.pdf"><em>Jordan v. Alternative Resources</em></a>, because that utterance could not reasonably be perceived as illegal harassment. No reasonable person would think that Connell&#8217;s perfectly defensible classroom remarks were illegal racial harassment. (Note that while such unreasonable harassment charges are <em>not</em> statutorily protected against retaliation if made to an <em>employer or college</em>, they <em>are</em> protected if made to a <em>civil-rights agency</em>; agency complaints, unlike in-house complaints, are generally protected <em>even if false, malicious, and deceitful</em>.)</p><p><em>This article is an adaptation of an essay that I published earlier at <a href="http://www.mindingthecampus.com">Minding the Campus</a>.</em></p></div></div> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/02/05/retaliation-charges-pose-growing-threat-to-free-speech/feed/</wfw:commentRss> <slash:comments>1</slash:comments> </item> <item><title>More Criticism for Obama State of the Union Proposal on Schools</title><link>http://www.openmarket.org/2012/02/03/more-criticism-for-obama-state-of-the-union-proposal-on-schools/</link> <comments>http://www.openmarket.org/2012/02/03/more-criticism-for-obama-state-of-the-union-proposal-on-schools/#comments</comments> <pubDate>Fri, 03 Feb 2012 19:35:20 +0000</pubDate> <dc:creator>Hans Bader</dc:creator> <category><![CDATA[Legal]]></category> <category><![CDATA[Nanny State]]></category> <category><![CDATA[Personal Liberty]]></category> <category><![CDATA[Politics as Usual]]></category> <category><![CDATA[Zeitgeist]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=50900</guid> <description><![CDATA[Syndicated columnist Steve Chapman is criticizing President Obama&#8217;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 [...]]]></description> <content:encoded><![CDATA[<p></p><p>Syndicated columnist Steve Chapman is <a href="http://reason.com/archives/2012/01/30/obama-brings-big-government-to-high-scho">criticizing</a> President Obama&#8217;s proposal in the State of the Union address to require students to <a href="http://reason.com/archives/2012/01/30/obama-brings-big-government-to-high-scho">attend high school longer</a> before being allowed to leave. As I <a href="http://www.openmarket.org/2012/01/25/obama-proposal-in-sotu-could-increase-school-violence-and-disorder-and-harm-parents-students-and-teachers/">noted</a> 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, <a href="http://overlawyered.com/2012/01/obama-proposal-no-leaving-school-until-age-18-or-graduation/">wants to require students</a> to stay in school <a href="http://www.openmarket.org/2012/01/25/obama-proposal-in-sotu-could-increase-school-violence-and-disorder-and-harm-parents-students-and-teachers/">until age 21</a>.</p><p>As Chapman <a href="http://reason.com/archives/2012/01/30/obama-brings-big-government-to-high-scho">notes</a>, &#8220;Most states now allow students to drop out at 16 or 17.&#8221; The reason for this is that while most students benefit greatly from staying in high school, &#8220;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&#8217;t learn much from being [in] a classroom—for two extra years.&#8221; As Chapman <a href="http://reason.com/archives/2012/01/30/obama-brings-big-government-to-high-scho">points out</a>, experts are skeptical of Obama&#8217;s proposal (skepticism echoed by <a href="http://washingtonexaminer.com/local/dc/2012/01/analysts-higher-dropout-age-wont-fix-schools/2135136">analysts</a> quoted in the <em>Washington Examiner</em>):</p><blockquote><p>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, &#8220;The returns to people who are not very able or not very motivated are typically quite low.&#8221; 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 &#8220;it&#8217;s a weak reed to lean on.&#8221;</p><p>Let&#8217;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?</p><p>It might be argued that even if there is no benefit from keeping these students around till they turn 18, there can&#8217;t be any harm. But think again.</p><p>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.</p><p>It&#8217;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. . .</p><p>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.</p><p>A private company—or a private school—whose customers are fleeing has to come up with ways to keep them around. In Obama&#8217;s public sector, there is a quicker solution: Lock the exits.</p></blockquote><p><span id="more-50900"></span></p><p>As I noted earlier, requiring schools to warehouse increasing numbers of would-be dropouts could <a href="http://www.openmarket.org/2012/01/25/obama-proposal-in-sotu-could-increase-school-violence-and-disorder-and-harm-parents-students-and-teachers/">harm school discipline</a>, and result in increased <a href="http://www.openmarket.org/2012/01/25/obama-proposal-in-sotu-could-increase-school-violence-and-disorder-and-harm-parents-students-and-teachers/">disorder and violence</a> in inner-city schools with high crime and dropout rates. (The Obama administration has also <a href="http://www.openmarket.org/2012/01/25/obama-proposal-in-sotu-could-increase-school-violence-and-disorder-and-harm-parents-students-and-teachers/">undermined</a> school discipline in some school systems by interfering with their ability to discipline even violent students; it has investigated school districts, and threatened them with lawsuits and the cut-off of federal funds, because their suspension rates did not satisfy a racial quota.  Former educator Edmund Janko <a href="http://www.city-journal.org/html/16_3_diarist.html">explains here</a> how he used to discipline white students more than black students in order to avoid a discrimination investigation by the Education Department’s Office for Civil Rights (where I used to work.) Janko would suspend whites for offenses that earned black students only a reprimand. That way, he could meet an informal racial quota in school suspensions. The Seventh Circuit Court of Appeals says <a href="http://law.justia.com/cases/federal/appellate-courts/F3/111/528/630634/">such racial quotas are unconstitutional</a>. As I<a href="http://www.openmarket.org/2012/01/25/obama-proposal-in-sotu-could-increase-school-violence-and-disorder-and-harm-parents-students-and-teachers/"> explained</a>, the Obama administration is relying on an interpretation of federal civil-rights laws that appears to conflict with the Supreme Court’s <a href="http://www.law.cornell.edu/supct/html/99-1908.ZS.html"><em>Alexander </em>v.<em> Sandoval</em></a> decision.)</p><p>In his State of the Union address, the president also decried skyrocketing college tuition. But as I explained earlier, Obama administration policies, and recent Education Department rules, have helped <a href="http://www.openmarket.org/2012/01/27/obama-fosters-the-skyrocketing-tuition-he-criticized-in-his-state-of-the-union-address/">drive up college tuition</a> and accelerate cost increases at previously-inexpensive colleges. Thus, Obama <a href="http://www.openmarket.org/2012/01/27/obama-fosters-the-skyrocketing-tuition-he-criticized-in-his-state-of-the-union-address/">helped cause</a> the very college tuition increases that he complained about in his speech.</p> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/02/03/more-criticism-for-obama-state-of-the-union-proposal-on-schools/feed/</wfw:commentRss> <slash:comments>2</slash:comments> </item> <item><title>Alcohol Regulation Roundup: January 30, 2012</title><link>http://www.openmarket.org/2012/01/30/alcohol-regulation-roundup-january-30-2012/</link> <comments>http://www.openmarket.org/2012/01/30/alcohol-regulation-roundup-january-30-2012/#comments</comments> <pubDate>Mon, 30 Jan 2012 21:57:39 +0000</pubDate> <dc:creator>Michelle Minton</dc:creator> <category><![CDATA[Nanny State]]></category> <category><![CDATA[Personal Liberty]]></category> <category><![CDATA[Regulation]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=50774</guid> <description><![CDATA[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 [...]]]></description> <content:encoded><![CDATA[<p></p><p><strong>In national news:</strong> Congressman Kurt Schrader of Oregon announced last week that he is <a href="http://community.statesmanjournal.com/blogs/editorialblog/2012/01/17/rep-schrader-switches-position-on-alcohol-regulation-legislation">withdrawing his support</a> of the CARE Act, the piece of legislation that will likely make it <a href="http://www.washingtontimes.com/news/2011/oct/19/wholesale-deception/">more difficult</a> 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.</p><p><strong>Also in national news</strong>: The <a href="http://www.newsobserver.com/2012/01/13/1774020/miller-gets-brewers-views.html/">Small BREW Act</a> 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 &#8220;small.&#8221; 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.</p><p><strong><a href="http://azdailysun.com/news/local/state-and-regional/ballot-initiative-proposes-new-taxes-on-alcohol/article_d110f648-dcd7-56b3-b7da-26f24225cd5b.html">Arizona</a>:</strong> 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 <a href="http://www.taxfoundation.org/publications/show/245.html">alcohol taxes that Arizona already has</a>. 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 <a href="http://www.medicalnewstoday.com/releases/3968.php">health benefits</a> of moderate alcohol consumption.</p><p><strong><a href="http://blog.ctnews.com/connecticutpostings/2012/01/14/malloy-details-changes-to-liquor-laws-sunday-sales/">Connecticut</a>:</strong> Earlier this month, Connecticut Governor Malloy <a href="http://www.governor.ct.gov/malloy/lib/malloy/2012.01.14_modernizing_ct_liquor_laws.pdf">released details</a> 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.</p><p><span id="more-50774"></span></p><p><strong><a href="http://thestatehousefile.com/bill-would-promote-indiana-brewed-beer-other-provisions-would-call-for-sunday-sales/">Indiana</a></strong>: Bills pending in the House and Senate would allow consumers to buy cold Indiana-brewed beer in grocery, convenience, and drug stores. Currently, only liquor stores may sell cold beer. Even those who want cold beer in grocery stores are skeptical that the bill, which would not allow cold beer sales of beer made out-of-state would hold up against judicial scrutiny.</p><p><strong><a href="http://cjonline.com/news/2012-01-19/full-strength-liquor-battle-tap">Kansas</a>:</strong> Kansas lawmakers are considering changes in way alcohol is regulated throughout the state. The new laws would allow grocery stores to carry hard liquor, full-strength beer, and wine, while also allowing liquor stores to expand their product lines to non-alcoholic items. Another bill would also allow liquor stores to hold tastings.</p><p><strong><a href="At%20least%20one%20law%20maker%20is%20listening.%20Representative%20David%20Baria-%28D%29%20Bay%20St.%20Louis%20has%20put%20forth%20legislation%20that%20would%20raise%20the%20allowed%20alcohol%20content%20to%20eight%20percent.">Mississippi</a>:</strong> At least one lawmaker in Mississippi is trying to drag the state into the 21st century. Rep. David Baria introduced legislation that will raise the allowed limit of alcohol by weight on beer from 5 percent to 8 percent. It’s still not very high, considering the increasing number of craft beers with upwards of 10 percent alcohol by volume, but it’s a step forward.  The folks at the non-profit outfit <a href="http://raiseyourpints.com/">Raise Your Pints Mississippi</a> have been <a href="http://fuzzybrew.com/2012/01/beer-bills-headed-back-to-mississippi-state-legislature/">fighting for years</a> to remove the cap as well as officially decriminalizing home brewing in the state.</p><p><strong><a href="http://www.nyfb.org/resources/topic_detail.cfm?ID=462">New York</a></strong>: Senator David Valesky has introduced a bill that would grant brewing licenses to farmers if they get a “certain percentage” of the beer’s ingredients from New York farms. Notably, <a href="http://e-lobbyist.com/gaits/text/283111">the new license</a> lets farmer-brewers sell their product directly to retailers &#8212; skipping the costly middleman of the wholesaler or distributor. The new license will cost $320, which is just slightly less than the cost of a <a href="http://www.sla.ny.gov/fee-schedule">microbrewery license</a>.</p><p><strong><a href="http://www.middletownjournal.com/news/middletown-news/state-cuts-microbrewery-fees-to-help-build-craft-beer-industry-1314819.html">Ohio</a></strong>: A new law set to go into effect on May 22 will make it easier for start-up craft breweries and distillers in the state. House Bill 243, which was signed into law by Gov. John Kasich in December, will allow small-batch distillers to open in the state and operate tasting rooms as well as allowing small breweries to serve samples and sell beer from the tasting rooms without needing to purchase a $3,900 special permit to do so.</p><p><strong><a href="http://thetimes-tribune.com/news/retailers-lukewarm-on-newest-wine-sales-idea-1.1258157#ixzz1kyaNrBON">Pennsylvania</a></strong>: The Pennsylvania Liquor Control Board (PLCB) is still lobbying for any idea other than privatization that would satisfy residents who are sick and tired of the outdated and inconvenient laws. The latest proposal, which would allow over 1,000 beer distributors to sell wine and six-packs (currently they must sell by the case) received a lukewarm reception from all parties. The distributors say they <em>can </em>sell wine, but licensing fees need to be low enough so they can profit. Consumers on the other hand want more convenience and want the state out of the business of selling alcohol.</p><p><a href="http://www.citypaper.net/blogs/mealticket/City-Councilwoman-Blondell-Reynolds-Brown-Extended-Bar-Hours-for-Education-Bill.html">Also in PA</a>: A councilwoman in Philadelphia is catching grief for her proposal to keep Philly drinking for the kids! City Councilwoman Blondell Reynolds Brown introduced a measure that would extend bar hours from 2 a.m. to 3 a.m. in order to bring in more revenue to be put toward the school district. They estimate that the additional hour will bring in an additional $5 million in tax revenue. Not too shabby. (Hat tip to Ryan Lynch for the story.)</p><p><strong><a href="http://www.washingtonpost.com/blogs/virginia-politics/post/mcdonnell-may-abandon-his-proposal-to-privatize-liquor-stores/2012/01/08/gIQAWMrxvP_blog.html">Virginia</a></strong>: Drown your sadness in a beer because it doesn’t look like the expensive and onerous alcohol regulatory regime in the Old Dominion State is going away anytime soon. Governor Bob McDonald hinted that he isn’t going to take up the effort to privatize the state-run liquor store system in the next session. After his valiant, but utterly failed attempt last year, it’s hard to blame him.</p><p>He is, however, <a href="At%20the%20governor%E2%80%99s%20request,%20Del.%20Dave%20Albo,%20R-Fairfax%20County,%20submitted%20HB896,%20which%20would%20allow%20any%20of%20the%20state%E2%80%99s%20334%20ABC%20stores%20to%20open%20after%201%20p.m.%20on%20Sundays.%20The%20measure%20won%20the%20unanimous%20endorsement%20of%20a%20House%20of%20Delegates%20subcommittee%20Thursday.">taking baby steps</a> in the right direction. At his request, Delegate Dave Albo introduced legislation that would allow state-run stores to remain open on Sundays.</p><p><strong><a href="http://www.fdlreporter.com/article/20120123/FON0101/120122019/Home-brewers-support-bill-would-lift-restrictions">Wisconsin</a>: </strong>Considering that a big part of home brewing is really about showing off one&#8217;s skills to friends and competitors, Wisconsin’s ban on moving home-brew out of the home has placed a real burden on the activity since 2011. However, a bill (Bill LRB 3101) working its way through the legislature would allow hobby brewers to present their beer at meetings and fairs.<strong><br /> </strong></p> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/01/30/alcohol-regulation-roundup-january-30-2012/feed/</wfw:commentRss> <slash:comments>1</slash:comments> </item> <item><title>Obama Fosters the Skyrocketing Tuition He Criticized in His State of the Union Address</title><link>http://www.openmarket.org/2012/01/27/obama-fosters-the-skyrocketing-tuition-he-criticized-in-his-state-of-the-union-address/</link> <comments>http://www.openmarket.org/2012/01/27/obama-fosters-the-skyrocketing-tuition-he-criticized-in-his-state-of-the-union-address/#comments</comments> <pubDate>Fri, 27 Jan 2012 20:12:47 +0000</pubDate> <dc:creator>Hans Bader</dc:creator> <category><![CDATA[Legal]]></category> <category><![CDATA[Personal Liberty]]></category> <category><![CDATA[Politics as Usual]]></category> <category><![CDATA[Sanctimony]]></category> <category><![CDATA[Zeitgeist]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=50633</guid> <description><![CDATA[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 [...]]]></description> <content:encoded><![CDATA[<p></p><p>In his State of the Union address, President Obama <a href="http://www.nationalreview.com/phi-beta-cons/289344/obamas-stephen-colbert-moment-george-leef">decried skyrocketing college tuition</a>, attempting to take advantage of public anger over the <a href="http://www.mindingthecampus.com/forum/2011/12/how_federal_aid_drives_up_coll.html">steadily-worsening</a> <a href="http://www.openmarket.org/2010/12/03/the-college-debt-bubble-is-it-ready-to-explode/">college</a> <a href="http://www.openmarket.org/2011/08/10/higher-education-bubble-leads-to-sex-for-tuition-and-kidneys-for-cash-proposal-moodys-questions-value-of-liberal-arts-majors/">tuition</a> <a href="http://www.openmarket.org/2010/12/19/rip-off-college-tuition-bubble-and-debt-burdens-grow-worse/">bubble</a>. This was ironic, since his own administration has done much to foster rising college tuitions.</p><p>For example, it <a href="http://www.openmarket.org/2011/04/21/education-department-financial-aid-rules-backfire-harming-students/">imposed the 90-10 rule</a>, 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&#8217;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 <a href="http://www.thechronicle.info/article/90-10-Rule-a-Catch-22-for/127072/">raised tuition</a> to comply with the 90/10 rule. The <a href="http://www.thechronicle.info/article/90-10-Rule-a-Catch-22-for/127072/">net result</a> of the Obama Education Department&#8217;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 <a href="http://blog.jmls.edu/veterans/">85-15</a> rule, that would require low-cost institutions to further raise tuition so that at least 15 percent of education costs aren&#8217;t covered by financial aid. (With this kind of mentality, it is no wonder that college graduation rates have actually &#8220;<a href="http://www.nytimes.com/2009/09/09/business/economy/09leonhardt.html">fallen somewhat</a> since the 1970s&#8221; &#8220;among poor and working-class students.&#8221;)</p><p><span id="more-50633"></span>As George Leef of the Pope Center for Higher Education Policy <a href="http://www.nationalreview.com/phi-beta-cons/289344/obamas-stephen-colbert-moment-george-leef">notes</a>, &#8220;Obama’s talk about getting tough with colleges over tuition is pure political blather. One reason costs keep going up, thus necessitating tuition increases, is that schools keep adding administrative positions like Chief Diversity Officer. College spending is responsible for the jobs of a great many of Obama’s most zealous supporters. It’s easy to demagogue college costs, but this is nothing more than theatrics.&#8221; There are now <a href="http://pajamasmedia.com/instapundit/124653/">more college administrators than faculty</a> at California State University, and colleges, partly to <a href="http://www.downsizinggovernment.org/education/higher-ed-subsidies">comply with</a> bureaucratic mandates, are <a href="http://www.openmarket.org/2012/01/17/self-esteem-fad-harms-students-and-education-system/">creating new positions</a> for liberal bureaucrats even as they raise student tuition to record levels:</p><blockquote><p>The University of California at San Diego, for example, is <a href="http://www-chancellor.ucsd.edu/2011_0504vc-edi.html" target="new">creating</a> a new full-time “vice chancellor for equity, diversity, and inclusion.” This position would augment UC San Diego’s already massive diversity apparatus, which includes the Chancellor’s Diversity Office, the associate vice chancellor for faculty equity, the assistant vice chancellor for diversity, the faculty equity advisors, the graduate diversity coordinators, the staff diversity liaison, the undergraduate student diversity liaison, the graduate student diversity liaison, the chief diversity officer, the director of development for diversity initiatives, the Office of Academic Diversity and Equal Opportunity, the Committee on Gender Identity and Sexual Orientation Issues, the Committee on the Status of Women, the Campus Council on Climate, Culture and Inclusion, the Diversity Council, and the directors of the Cross-Cultural Center, the Lesbian Gay Bisexual Transgender Resource Center, and the Women’s Center.</p></blockquote><p>Other colleges raised spending on administrators as much as <a href="../2011/03/20/america-doesnt-need-more-college-graduates-at-taxpayer-expense/">600 percent</a> in recent years.</p><p>As a result of increasing federal financial aid, colleges have been able to increase tuition faster than inflation, year after year, secure in the knowledge that they can rake in ever-rising government <a href="http://www.mackinac.org/14232">subsidies</a> and <a href="http://pajamasmedia.com/instapundit/109928/">skyrocketing</a> tuition. College students are learning <a href="http://washingtonexaminer.com/blogs/opinion-zone/2011/01/students-learn-less-education-spending-skyrockets-big-decline-reading-and">less and less</a> even as higher education spending <a href="http://washingtonexaminer.com/blogs/opinion-zone/2011/01/students-learn-less-education-spending-skyrockets-big-decline-reading-and">explodes</a>.</p><p>Students have little choice but to pay inflated tuition bills into the education industrial-complex, as they vie with each other for scarce entry-level jobs by acquiring ever more degrees that show their ability to jump through hoops and master difficult (but largely <a href="http://www.forbes.com/2011/02/22/education-college-subsidies-opinions-contributors-kyle-smith.html">useless</a>) skills. The net result is an educational arms race in which people compete to see who can acquire the most paper credentials. There are now <a href="http://libertysblog.com/2011/01/unrest-in-tunisia-symptom-of-an-education-bubble/">8,000 waiters</a> and <a href="http://chronicle.com/blogs/innovations/why-did-17-million-students-go-to-college/27634">5,057 janitors</a> with <a href="http://washingtonexaminer.com/blogs/opinion-zone/2011/04/blogs/opinion-zone/2011/03/blogs/opinion-zone/2011/01/students-learn-less-education-spending-skyrockets-big-decline-reading-and">PhD’s</a> or other advanced degrees, and millions of Americans have <a href="../2011/04/21/2010/12/09/17-million-unnecessary-college-degrees-obama-administration-seeks-to-increase-the-number/">useless</a> college degrees.</p><p>Obama&#8217;s State of the Union address also contained <a href="http://www.openmarket.org/2012/01/25/obamas-false-claims-about-outsourcing-and-corporate-taxes-in-the-state-of-the-union-address/">false claims about outsourcing and corporate taxes</a>, as well as a misguided proposal that could <a href="http://www.openmarket.org/2012/01/25/obama-proposal-in-sotu-could-increase-school-violence-and-disorder-and-harm-parents-students-and-teachers/">undermine discipline and order</a> in inner-city schools that have high drop-out rates, and another proposal that could <a href="http://www.openmarket.org/2012/01/26/obama-state-of-the-union-proposal-could-increase-mortgage-costs-shrink-americas-401ks/">shrink Americans&#8217; 401(k)s and increase the cost</a> of mortgage financing in the future.</p><p>The Education Department recently made college officials’ lives more difficult by trying to <a href="../2011/04/21/2011/04/11/education-department-changes-burden-of-proof-in-sexual-harassment-cases-under-title-ix/">alter the burden of proof</a> long used by many colleges in sexual harassment cases (despite the <a href="../2011/04/21/2011/04/11/education-department-changes-burden-of-proof-in-sexual-harassment-cases-under-title-ix/">lack</a> of any legal basis for doing so), and by seeking to <a href="../2011/04/21/2011/04/14/education-department-undermines-due-process-and-accuracy-in-campus-sexual-harassment-cases/">discourage procedures</a> such as cross-examination that safeguard accuracy and due process in campus disciplinary proceedings.</p> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/01/27/obama-fosters-the-skyrocketing-tuition-he-criticized-in-his-state-of-the-union-address/feed/</wfw:commentRss> <slash:comments>0</slash:comments> </item> <item><title>Buffett&#8217;s Secretary, Romney&#8217;s Return, and the Crushing Double Taxation on Investment Income</title><link>http://www.openmarket.org/2012/01/27/buffetts-secretary-romneys-return-and-the-crushing-double-taxation-on-investment-income/</link> <comments>http://www.openmarket.org/2012/01/27/buffetts-secretary-romneys-return-and-the-crushing-double-taxation-on-investment-income/#comments</comments> <pubDate>Fri, 27 Jan 2012 18:45:36 +0000</pubDate> <dc:creator>John Berlau</dc:creator> <category><![CDATA[Economy]]></category> <category><![CDATA[Employment]]></category> <category><![CDATA[Features]]></category> <category><![CDATA[Nanny State]]></category> <category><![CDATA[Personal Liberty]]></category> <category><![CDATA[Sanctimony]]></category><guid isPermaLink="false">http://www.openmarket.org/?p=50619</guid> <description><![CDATA[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 [...]]]></description> <content:encoded><![CDATA[<p><a class="post_image_link" href="http://www.openmarket.org/2012/01/27/buffetts-secretary-romneys-return-and-the-crushing-double-taxation-on-investment-income/" title="Permanent link to Buffett&#8217;s Secretary, Romney&#8217;s Return, and the Crushing Double Taxation on Investment Income"><img class="post_image alignright" src="http://www.openmarket.org/wp-content/uploads/2011/09/buffett-obama.jpg" width="300" height="205" alt="Post image for Buffett&#8217;s Secretary, Romney&#8217;s Return, and the Crushing Double Taxation on Investment Income" /></a></p><p>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.</p><div><div><p>But as my colleague Trey Kovacs and I pointed out in a <em>Wall Street Journal</em> <a href="http://cei.org/op-eds-articles/romney-and-burden-double-taxation">op-ed</a> 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.</p><p>As we note in the op-ed, “The most popular tax reforms—from the &#8220;9-9-9 plan&#8221; of former candidate Herman Cain to flat tax proposals—all have in common the reduction or elimination of double taxation on investment.”</p><p>My friend and mentor the late <a href="http://www.stltoday.com/news/article_81d35b3b-03f3-5922-80aa-2c99153623a4.html">Richard Nadler</a> <a href="http://www.cato.org/pub_display.php?pub_id=1218">found</a> 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.&#8221; New research seems to confirm this middle-class savers still retain these views even after the financial crisis.</p><p><span id="more-50619"></span></p><p>As for Buffett’s secretary, Debbie Bosanek, there has been some interesting speculation on what she actually pays and/or makes. A few months back on OpenMarket, I had <a href="http://www.openmarket.org/2011/09/19/warren-buffett-give-your-secretary-a-raise/">suggested</a> that if Buffett were really concerned about his secretary’s well-being, he could simply raise her salary. I noted that that the secretary of Jack Welch was reported to have made six figures while he was CEO at GE.</p><p>Well, now there has been some analysis arguing that if  Bosanek really paid the 35.8 percent rate she told <a href="http://abcnews.go.com/blogs/business/2012/01/warren-buffett-and-his-secretary-talk-taxes/">ABC News</a> she paid, she would indeed have to be making six figures. <em>Atlantic</em> magazine economics blogger Megan McArdle <a href="http://www.theatlantic.com/business/archive/2012/01/how-rich-is-warren-buffetts-secretary/252056/">noted</a> that even with income and payroll taxes combined, she would have to be making $110,000 a year to be taxed at this rate. Buffett, however, still insists Bosanek is paid $60,000, so the only way she could pay the 35.8 percent rate is if both the employee and employer side of the payroll taxes were counted, a calculation McArdle says is “beyond bizarre.”</p><p>So my revised advice to Buffett is give Bosanek a raise, help her build an investment portfolio, and then fight to lower &#8212; not raise &#8212; the double tax on his and his secretary’s investment income.</p></div></div> ]]></content:encoded> <wfw:commentRss>http://www.openmarket.org/2012/01/27/buffetts-secretary-romneys-return-and-the-crushing-double-taxation-on-investment-income/feed/</wfw:commentRss> <slash:comments>0</slash:comments> </item> </channel> </rss>
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