Archives: 03/2012

The Trayvon Martin Shooting: Just the Facts

Americans use guns to thwart a lot of crime, very often without having to fire the weapon. When citizens do use deadly force, the legal system will adjudicate whether that force was lawful or unlawful. With respect to the Trayvon Martin case, our  focus thus far has been on Florida’s Stand Your Ground law and what role, if any, it has played in that case. I have concluded that there is no connection between that law and the Martin shooting at all. The Stand Your Ground law  simply does not apply—so other legal principles will govern the legality of George Zimmerman’s conduct. My legal analysis will be published in an article next week. Walter Olson has related thoughts here.

With new developments in the case coming to light almost every day, it is difficult for outside observers to do anything but speculate. To take but one example, initially it seemed as if the Stanford police did a cursory investigation the night of the shooting. It seemed as if they simply accepted Zimmerman’s claim of self-defense and let him go. That would have been inexcusable. Yesterday, however, there was a report that Zimmerman was handcuffed, taken to the station, and questioned for about five hours. And the police questioned him again at the scene the following day. This is not to say that that was the best way to handle the matter; it is just to point out how we are getting new pieces of information each day. Today the  Associated Press has this helpful article that cuts through the charges and counter-charges and  simply summarizes what we know so far.

The central point to keep in mind is that deadly force is serious business. George Zimmerman took a life. Intense scrutiny into what happened is warranted.

Arms Reduction: Just Do It

In his lively and engaging speech to South Korean students earlier this week, President Barack Obama disclosed that a “comprehensive study of our nuclear forces” was underway and that he could “already say with confidence that we have more nuclear weapons than we need.” Accordingly, he was planning to meet with the Russians in the hope that “working together, we can continue to make progress and reduce our nuclear stockpiles.”

Defense Secretary Leon Panetta, with no apparent sense of irony, quickly assured the press and Congress that we would never reduce the number of our unnecessary nuclear trinkets—which cost several billion dollars a year to maintain—unless we do so under the auspices of bilateral negotiations with the Russians.

Thus, the need to have agreement in order to reduce unneeded weapons is the only reason for keeping them around. It is a bizarre situation.

Arms control is essentially a form of centralized regulation and carries with it the usual defects of that approach. Participants will volunteer for such regulation only with great caution, because once under its control they are often unable to adjust subtly to unanticipated changes.

Arms deals can also generate perverse incentives: the strategic arms agreement of 1972 limited the number of missiles each side could have, but it allowed them to embroider their missiles with multiple warheads and to improve missile accuracy, thereby encouraging them to develop a potentially dangerous first-strike capability.

And, as in the present case, talks can actually hamper arms limitations: in 1973 a proposal for a unilateral reduction of U.S. troops in West Europe failed in the Senate because many felt that it would undercut upcoming arms control negotiations—which then ran on unproductively for years.

The Cold War arms buildup, after all, was not accomplished through written agreement; instead, there was a sort of market process in which each side, keeping a wary eye on the other, sought security by purchasing varying amounts of weapons and troops. As requirements and perspectives changed, so did the force structure of each side.

The same process can work in reverse: as tensions decline, so can the arms that are their consequence. It would likely to be chaotic, halting, ambiguous, self-interested, and potentially reversible, but arms can be significantly reduced.

There is a notable precedent. After decades of cold war, tensions between the US and British Canada relaxed in the 1870s, and the ships, forts, and installations they had built to confront each other were gradually removed or allowed to rot away over time without any talks or formal agreements. In present times, France has retired most of its nuclear arsenal unilaterally and without discussing it with pretty much anybody.

Under relaxed tensions, reductions will happen best if arms negotiators keep out of the way, and they will proceed most expeditiously if each side feels free to reverse any reduction it later comes to regret. Formal disarmament agreements are likely simply to slow and clutter the process.

Cross-posted from the Skeptics at the National Interest.

Argentina Bans Book Imports due to ‘Human Health Concerns’

The Argentine government has severely restricted the importation of books due to “human health concerns” [in Spanish]. That’s right. According to the government, it can be dangerous to “page through” a book that has high lead quantities in its ink. “If you put you finger in your mouth after paging through a book, that can be dangerous,” said Juan Carlos Sacco, the vice-president of an industrialist organization that supports the measure.

The government claims that this is not a ban. However, since each buyer has to demonstrate at the airport’s customs office that the ink in the purchased book has lead quantities no higher than 0.006% in its chemical composition, the result is that all book imports into the country are stalled.

The measure has a lot to do with the increasing efforts of the Argentine government to stop the flight of dollars out of the country. Capital flight in 2011 reached $21.5 billion, and it accelerated after the reelection of Cristina Fernandez de Kirchner in October. Facing increasing fiscal pressures, and after seizing private pension funds and raiding the Central Bank’s reserves, many people expect the government to go after their bank savings.

The government has reacted with increasingly ridiculous measures. Sniffing dogs are being deployed at airports and border check points to detect the ink used to print U.S. bills, so Argentines cannot take out of the country more than $10,000 without declaring it to the government. The Fernandez administration is also requiring major importers such as automakers to match the price of their imports with that of goods they must now export. As a result, Porsche is exporting Malbec wine and Mitsubishi is now selling peanuts.

This is the economy that Paul Krugman defended as a “serious country.”

The government’s proliferation of capital and import controls is now clearly threatening freedom of speech. The restriction on foreign books is a measure consistent with the Fernandez administration recent push against independent newspapers and its growing authoritarian tendencies. As an Argentine friend told me last night, “I’m pretty confident that they’ll come after the Internet any time soon.”

Now Online: The Complete Libertarian Review

Thanks to the good folks at Unz.org, we’ve filled out our archive of the late, great libertarian magazine Libertarian Review. The magazine was published from 1972 to 1981, first as a newsletter of book reviews and then as a glossy monthly magazine edited by Roy A. Childs, Jr. It made quite a splash during those years, and Childs became one of the most visible and controversial libertarian intellectuals. After the magazine folded, as so many intellectual magazines do, he spent almost a decade as editorial director and chief book reviewer for Laissez Faire Books. He had read everything, and he knew everyone in the libertarian movement. He got lots of prominent people — including Murray Rothbard, John Hospers, Thomas Szasz, Roger Lea MacBride, and Charles Koch — to write for the magazine. And he discovered and nurtured plenty of younger writers.

Libertarian Review featured

  • news coverage and analysis of inflation, the energy crisis, economic reform in China, the 1979 Libertarian Party convention and the subsequent Clark for President campaign, the Proposition 13 tax-slashing victory (at right), the rise of the religious right, the emergence of Solidarity, Jerry Brown, Three Mile Island, and the return of draft registration.
  • classic essays like Jeff Riggenbach on “The Politics of Aquarius” and “In Praise of Decadence,” Joan Kennedy Taylor on Betty Friedan, Rothbard on “Carter’s Energy Fascism.”
  • interviews with F. A. Hayek, Howard Jarvis, Paul Gann, Henry Hazlitt, John Holt, and Robert Nozick.
  • and especially Roy Childs: on William Simon’s A Time for Truth, on Irving Kristol, on the rise of Reagan, on drugs and crime, on the hot spots of Iran, Afghanistan, and El Salvador.

As Tom G. Palmer put it in a letter published in The New Republic of August 3, 1992, just after Roy died, “Roy Childs was one of the finer members of a generation of radical thinkers who worked successfully to revive the tradition of classical liberalism — or libertarianism — after its long dormancy, and who dared to launch a frontal challenge to the twentieth-century welfare state. An autodidact who knew more about the subjects on which he wrote than most so-called ‘experts’, his writings exercised a powerful influence on a generation of young classical liberal thinkers.”

Check it out.

When the Senate Was Great, and It Conspired against the People

Politico has a gushing story about The Last Great Senate, a book by a veteran Democratic congressional aide, Ira Shapiro, about “a golden era of modern American political history — a period where giants in both parties worked together to produce sweeping legislative achievements.”

Besides passing expansive, expensive laws, the other great thing about the Senate back in the golden days of the 60s and 70s was how senators from both parties worked together – to get reelected and to secretly do the opposite of what they were telling their constituents. For instance:

In the book, he recalls a night in 1963 when a stunned Sen. Birch Bayh, an Indiana Democrat in his first year in office, found himself aboard the presidential yacht Sequoia listening to Senate GOP Leader Everett Dirksen talk to him for an hour about how to get re-elected.

And my favorite part:

Shapiro tells how in 1979, Eagleton was chairman of the District of Columbia subcommittee and therefore a key player in deciding whether the newly-created Washington-area Metro system would receive the needed federal funds to expand.

“His staff advised him that it would be politically disastrous to find the money for the Washington, D.C., Metro at a time when federal funds for bus service in St. Louis and Kansas City were being slashed,” Shapiro writes. “Eagleton was torn, agreeing with their political judgment, but knowing how much the full Metro system would mean to the Washington region.”

Eagleton sought a meeting with Maryland Sen. Mac Mathias, a moderate Republican and the ranking member of the D.C. subcommittee with an intense interest in the capital region’s new subway. Both senators had been elected in 1968 and had worked together on D.C. home rule.

At the meeting in Eagleton’s office, the Democrat informed his GOP colleague he would oppose the Metro funding.

“Then it’s dead,” Mathias replied.

“’No Mac,’ Eagleton said hastily, ‘We’ve got a plan.’”

As Shapiro recounts, Eagleton said he’d lend his staff director to Mathias and Paul Sarbanes, the other Maryland senator, and enlist Michigan freshman Carl Levin to manage the bill. For public consumption, Eagleton subsequently criticized Metro as a “gold-plated subway system” and even gave his home state Republican Senate colleague John Danforth a heads-up so that their votes were aligned. But with Eagleton’s behind-the-scenes support, the others senators on the committee passed the legislation and found the money for Metro.

And the poor dumb schmucks in Missouri were none the wiser.

Hoover’s Mission Imponderable?

The mission statement of the Hoover Institution reads, in part, as follows:

This Institution supports the Constitution of the United States, its Bill of Rights and its method of representative government. Both our social and economic systems are based on private enterprise from which springs initiative and ingenuity…. the Federal Government should undertake no governmental, social or economic action, except where local government, or the people, cannot undertake it for themselves….

Hoover’s Koret Task Force on Education has just released a report calling for various changes to federal K-12 policy, but nonetheless preserving a significant role.

I have great respect for many of the members of this task force, and agree with their stated goals, but the U.S. Constitution delegates no education policy powers to the federal government, and the 10th Amendment reserves such unmentioned powers to the states and the people. So in keeping with its mission statement, no Hoover task force should be recommending a continued federal role in education policy.

No loophole is provided by the exception for cases where “local government, or the people, cannot undertake” the given actions for themselves. There are at least 15 states that are already moving in the direction of private school choice that the task force is suggesting. Clearly states can undertake such actions.

Of course Hoover is not alone in making recommendations unmoored from its stated mission and from the sound constitutional principles that mission embraces. But given its many brilliant and capable members, perhaps it is one of the few that can recognize it is adrift and still see the light of its principles on the horizon.

That’s Not a Limiting Principle, Noah Feldman Edition

Harvard law professor Noah Feldman opines that U.S. Solicitor General Don Verrilli ”faltered” yesterday when Supreme Court justices asked whether the Obama administration’s claim that the Constitution empowers Congress to force people to purchase health insurance contains any limiting principle. Put differently, if the power “To regulate commerce…among the several States” allows the government to force you to buy health insurance, can the government also force you to buy broccoli?

Feldman laments that Verrilli’s “failure to offer a sharp distinction could be disastrous for the government’s case,” but assures us, “There is a good, sharp answer to this wholly reasonable question.” Here is the preface to Feldman’s answer:

[W]hen it comes to the strange and unusual case of health insurance, inaction causes the whole market to break down. By not buying health insurance, the healthiest person is depriving everyone of a public good. By sitting on their hands – and acting rationally – people who do not purchase insurance are unintentionally causing the market to fail.

One problem here is that if Congress can compel you to buy something whenever not buying it would deprive someone else of a public good, then Congress can also force you to purchase – not just tax and provide to you, but force you to purchase – tanks, fighter jets, and military bases; lighthouses; software; fireworks displays; e-books; comparative-effectiveness research (or really any type of research); a subscription to Consumer Reports; landscaping services; parks; rare and endangered species; street lights; et cetera ad nauseam. That isn’t much of a limiting principle.

Another problem is that economists use the term ”market failure” to describe a situation where one or more features of a free market cause that market to fall short of the efficiency-maximizing outcome. Feldman misuses it to mean, “This market isn’t doing what I want.” That is not market failure. Nor is it much of a limiting principle. If the Commerce Clause empowered Congress to force people to buy things to correct every perceived shortcoming in every market, Congress’ powers would be without limit. Even worse, Feldman doesn’t even bother identify whether the outcome he deplores is caused by some feature of a free market or government intervention (see below).

But that was just preface to Feldman’s supposed limiting principle. Here’s the meat of it:

The government can penalize inaction only when that inaction deprives everyone else of a public good…There must be an asymmetry of information about the relevant facts governing insurance – like the difference between my knowledge of how healthy I am and the insurance company’s ability to suss it out. And the market must be one in which that information asymmetry leads to adverse selection.

Though Feldman begins by stating government can force you to purchase any public good – another economic concept he seems to misunderstand – by the end of the paragraph he narrows his limiting principle to situations where asymmetric information causes market failures in insurance. Sorry, but that’s still not much of a limiting principle. For one thing, it would enable Congress to force Americans to purchase basically any type of insurance.

Asymmetries of information, in the absence of regulation, lead to adverse selection in all insurance markets. Insurers typically remedy this problem by adjusting premiums to reflect the risk posed by the purchaser, but there will always be situations where some purchasers know they pose a greater risk of filing claims than carriers realize. Fortunately, the risk-aversion of other purchasers acts as a counterweight and prevents those markets from collapsing.  But since all adverse selection causes at least some mutually beneficial insurance purchases not to occur – the sort of welfare loss that constitutes an actual market failure – Feldman’s so-called limiting principle would allow Congress to force you to buy any type of insurance it wants, so long as Congress finds even a sliver of adverse selection. That opens to door for Congress to mandate that everyone purchase life, auto, disability, flood, mortgage, renter’s, terrorism, earthquake, deposit, pet, earthquake, divorce, and long-term care insurance. Congress could even require you to purchase reinsurance – i.e., insurance against the that risk that your other insurance policies won’t pay. No doubt adverse selection prevents some unfortunate professional athletes and performers from insuring against the failure of their hair, legs, hands, teeth, vocal chords, fingers, ankles, tongues, and entire bodies. Ditto the threat of a paternity suit. If so, then Feldman’s “limiting principle” would let Congress mandate that everyone purchase those insurance policies, too.

Feldman’s limiting principle would even allow Congress to force Americans to purchase types of insurance that currently don’t exist. What if adverse selection so bedevils the markets for BAC-level insurance, positive-drug-test insurance, short-term-suicide insurance, overgrown-grass insurance, and oversleeping insurance that no carriers even offer such policies? Under Feldman’s rule, Congress could fix that by forcing carriers to offer such insurance and forcing you to buy it.

And that’s only what Congress could do in the presence of whatever scant adverse selection exists in unregulated insurance markets. But regulation typically encourages adverse selection–a point that Feldman elides, as if the catastrophic adverse selection that ObamaCare’s “community rating” price controls will cause were the market’s fault rather than Congress’. So what Feldman is actually saying is that Congress can force you to purchase insurance even if Congress itself caused the adverse selection. Which brings us back to broccoli.

Remember broccoli? Feldman writes, “If I choose not to buy broccoli, others can still buy it at a market price.” Perhaps that is true today. But let’s assume Feldman subscribes to the Obama administration’s argument that the Commerce Power enables Congress to regulate the timing and method of payment for a good that moves in interstate commerce. That would mean that Feldman believes Congress could pass a law stating that all broccoli purchasers must henceforth purchase it through a new method of payment called “broccoli insurance,” where all purchasers pay broccoli insurers a flat fee based on average broccoli consumption within the insurer’s pool of customers, regardless of how much broccoli an individual customer may consume. What would happen if Congress did that?

Well, those who consume the most broccoli would be thrilled. They could eat as much broccoli as they want – they could even stucco or decorate their houses with it – while paying much less than they did before. Those who rarely buy broccoli, on the other hand, would see their broccoli bills skyrocket. They may decide not to buy broccoli at all. When they leave the broccoli market, average consumption by those in the market will rise, as will broccoli premiums. That will cause more low-end broccoli consumers to leave the market, and the cycle will repeat itself.

Feldman will recognize this process as – you guessed it – adverse selection caused by asymmetric information. Which, under his limiting principle, means that Congress can swoop down and mandate that Americans purchase broccoli insurance. After all, those people choosing not to buy broccoli are “depriving everyone of [what Feldman calls] a public good.” In sum, Feldman’s limiting principle would allow Congress to force all Americans to buy broccoli. Which is to say, it’s not a limiting principle at all.

Like every other so-called limiting principle offered by ObamaCare’s defenders, Feldman’s has no basis in the Constitution or any other law. It is a post hoc rationalization, made by people who are shocked to find themselves before the Supreme Court, defending the constitutionality of their desire to bully others into submission.

Lord only knows where these guys get all their self-assuredness. Maybe it’s part of Harvard’s employee benefits package.

Update: Prof. Feldman commits another error that I did not initially catch, and therefore perpetuated. It is not asymmetric information that leads to adverse selection in the markets for health/broccoli insurance and causes those markets to collapse. It is the fact that the government’s “community rating” price controls prevent insurance carriers from using information they possess to set premiums in a way that prevents adverse selection. HT: Me.