Tag: New York Times

Randy Barnett and the Health Care Overhaul

Cato senior fellow Randy Barnett is featured on the front page of today’s New York Times as the chief academic critic of the constitutionality of the 2010 health care law. He spoke at Cato on that topic last Friday; video here.

The article notes his longstanding interest in the Ninth Amendment, the subject of his book published by Cato and the George Mason University Press in 1989, The Rights Retained by the People: The History and Meaning of the Ninth Amendment.

Professor Barnett also cooperated with Cato on his most recent book, Restoring the Lost Constitution: The Presumption of Liberty.

A Do-It-Yourself Guide to Cutting the Military Budget

The New York Times has posted a handy tool for calculating savings from the Pentagon’s budget over the next ten years. I went through the exercise, and my plan resulted in cuts of $1.144 trillion over ten years. Had I checked all of the boxes in the Times’s calculator, it would have generated savings of up to $1.4 trillion.

Though I support reform of the the military retirement system, I think some of these proposals go too far (they would have saved up to $86.5 billion). We should continue to spend money recruiting the very best force, comprised of the most-qualified men and women ($5 billion), and we might find it hard to do that if/when the economy improves. Tuition assistance is a key factor driving recruitment, and I wouldn’t scale that back ($5 billion). (Full disclosure: I attended college on an NROTC scholarship.) We need the best possible services for families, and I could foresee problems with closing elementary and secondary schools on bases ($10 billion). And I have no particular quarrel with military bands ($0.2 billion). My ideal military will be smaller and more elite, but likely better compensated than today’s force. And retirees would continue to receive many benefits not enjoyed by their fellows who never served, but we should experiment with ways to control costs. The key take-away, and the one stressed in the accompanying story by Elisabeth Bumiller and Thom Shanker, is that it is possible to reduce military spending, and the resulting force will still be larger and more capable than any conceivable combination of rivals.

A few additional observations:

1) The Times’s calculator cites my and Ben Friedman’s contribution to the Sustainable Defense Task Force report, “Debts, Deficits, and Defense,” but the main part of the report was the work of the entire task force, and they deserve proper credit. I am particularly grateful to Carl Conetta and Charles Knight of the Project for Defense Alternatives.

2) Ben and I published a stand-alone report a few months later with some numbers drawn from the SDTF report, and with some additional detail surrounding our proposals that were not endorsed by all SDTF members. Our savings were calculated against the baseline from fiscal year 2010, and these numbers are now a bit dated.

3) When I hit the submit button comparing my choices with others who participated in the exercise, I discovered 80 percent of respondents supported the plan to reduce forces in Europe and Asia. That sort of systematic restructuring is necessary to ensure that we don’t impose undue burdens on what will necessarily be a smaller force. As I have said repeatedly, if we are going to spend less, we must expect our troops to do less, and expect other countries to do more.

Tuesday Agriculture Links

Some interesting links on agriculture in the news today.

First, a terrific front-page article in the New York Times, about what my friend Vince Smith so accurately calls the “bait-and-switch” farmers are proposing in their offer to give up direct payments (subsidies that flow to farmers regardless of prices or production) in exchange for a new revenue insurance program.  As Vince so rightly points out, because the new revenue targets will be based on today’s current record crop prices, “If farm prices move back towards what are widely viewed as more normal levels than their current levels, farmers will be compensated for going back to business as usual.”  Vince blogs here about the proposed new revenue assurance program, and how it could end up costing us just as much as the current set of programs.

Farmers and their congressional sponsors are still blathering about “proportionality,” essentially saying that they should not have to contribute any more to budget cuts than any other area of the federal government. Here, for example, is a corn farmer, towing the party line:

“We are very much aware of the budgetary constraints of the federal government,” said Garry Niemeyer, an Illinois farmer who is president of the National Corn Growers Association. “We want to do our part as corn growers to help resolve those issues, but we only want to do our proportional part. We don’t want to have everything taken out on us.” [emphasis added]

This is wrong-headed. I’ve said it before, I’ll say it again: “proportionality” implies that everything the federal government currently does is equally valid. That is nonsense.  Some programs are legitimate, some less so. Some—like farm subsidies—not at all. Spending cuts should be made on the basis of legitimacy, not by some abstract formula equally applied. We should be reshaping (in a downward direction) the federal government here, not trimming a topiary hedge.

Second, Bloomberg.com has a good overview on the current state of the negotiations between the Congressional agriculture committees and the deficit-reduction supercommittee regarding the cuts to farm programs. The leaders of the agriculture panels have written a letter to the supercommittee, saying that cuts to agriculture programs should be limited to $23 billion and those cuts ”should absolve the programs in our jurisdiction from any further reduction.” So there.

Finally, here are Senators Mark Kirk (R-Ill.) and Sen. Jeanne Shaheen (D-N.H.)  on the wasteful and expensive sugar program.

Lawyers and Their Licenses

What do the New York Times, the Brookings Institution, and the Cato Institute have in common?  Turns out we agree on deregulating the legal profession. 

From a Times editorial:  “Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces. “

From a Brookings op-ed: “It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.”

From a Cato paper: “Every state except Arizona prohibits the unauthorized practice of law (UPL); a person must possess an attorney’s license to hold himself out as a lawyer. UPL prohibitions restrict the right to pursue a legitimate occupation and the right to contract with others. By imposing a costly barrier to entry, they distort the market for legal services. Consequently, consumers face higher prices and fewer choices.”

It’s unanimous.  Get going state lawmakers—deregulate the legal profession.

Even the New York Times Wants to Cut Medicaid

From their editorial the other day:

There is no doubt that Medicaid… has to be cut substantially in future decades to help curb federal deficits. For cash-strapped states, program cuts may be necessary right now. But in reducing spending, government needs to ensure any changes will not cause undue harm to millions.

How would the Times cut Medicaid spending? The magic of central planning!

The best route to savings — already embodied in the reform law — is to make the health care system more efficient over all so that costs are reduced for Medicaid, Medicare and private insurers as well. Various pilot programs to reduce costs might be speeded up….

And if government were smart, rather than stupid, that would work.

I’ve got a better idea for cutting Medicaid that meets the Times’s criterion of not causing undue harm to millions.

Individualism in Legal Process and the Wal-Mart Case

Monday’s high court decision in Wal-Mart v. Dukes has predictably drawn a strong reaction from legal academia, much of it critical of the Court. Of particular interest are the comments of Richard Primus (Michigan) at the New York Times’s “Room for Debate” and Alexandra Lahav (Connecticut) at Mass Tort Litigation Blog. According to Primus and Lahav, the decision is the latest sign that the current Supreme Court leans toward a principle of “individualism” in applying the rules of civil litigation. Lahav in particular appears to view this as a shame, since “a more collectivist view” would carry with it more “potential for social reform.”

What does a term like “individualism” mean in the context of litigation procedure? One of its implications is that legal rights to redress on the one hand, and legal responsibility or culpability on the other, are ordinarily things that appertain to individual litigants, and ought not (absent clear authorization by statute or Constitution) be submerged into group claims on the one hand or group guilt on the other. In particular, we should be wary of proposals to deprive litigants of the choice to obtain individualized consideration of their claims or defenses on the grounds that society can accomplish more if it processes litigation in batches while accepting, say, statistical as distinct from personalized proofs.

Lahav and other scholars such as Samuel Issacharoff offer as examples numerous cases in which the Court has insisted on individualized process, often thereby frustrating the advocates of social reform in one or another area. The Court’s scruples on this matter have run into much adverse comment in the academic literature, and that’s hardly a surprise; as I argue in my book Schools for Misrule, today’s legal academy is far more keen on things like group rights and social engineering (as some of us might call it) than is the wider society.

Let me offer a few observations in defense or at least explanation of the Court’s approach:

1) The individualist leaning is by no means confined to the “conservative” justices; all nine members of the current Court partake of it to varying extents, and it is one major reason why the Court’s liberal justices joined in to make the Wal-Mart decision unanimous on one of its most practically significant issues, relating to the handling of claims for back pay.

2) Like so many other aspects of the Court’s work, this one does not fit well into simplistic accounts from some quarters about the Court’s supposed “pro-business” stance. In many circumstances business defendants actually prefer some degree of collectivization of claims, because their main practical concern is to put an end to litigation, and group resolution can do that. In the Court’s landmark 1997 Amchem Products v. Windsor decision, six of eight voting justices (Breyer and Stevens dissenting in part) struck down a giant batch settlement of asbestos litigation that had been ardently pursued by many of the nation’s biggest businesses, as well as many plaintiff advocates, on the grounds that it improperly denied claimants their right to individualized justice.

3) If the question is one of faithfulness to the constitutional vision of law held by the Founders, there really isn’t much of a question: like other Anglo-Americans of Blackstone’s era those Founders saw the courts as dispensers of individualized justice if they were to be anything at all. Much else in American law has changed beyond recognition in the intervening two-plus centuries. Fortunately, as the result in Wal-Mart v. Dukes suggests, that hasn’t.

For more commentary on the Wal-Mart case, check out (e.g.) editorials at the Washington Post, New York Daily News and Omaha World Herald (favoring the court’s view), and the <a href=”New York Times and USA Today (opposing), as well as my contributions in the Philadelphia Inquirer and at Overlawyered.