Tag: state

The Court Tackles a Hard Case: Implications for ObamaCare?

The Supreme Court hears oral argument today in an important pre-emption case, Bruesewitz v. Wyeth, which asks whether the National Vaccine Injury Compensation Act of 1986 pre-empts state law “design defect” suits brought against vaccine manufacturers. I’ve discussed this complex case more fully in an op-ed at the Daily Caller, but in a nutshell, Congress passed the Act to address the risks inherent in vaccinations through a federal no-fault ”Vaccine Court” rather than through the vagaries of state tort law. It did so because the inability to make vaccines entirely safe, plus uncertainty surrounding causation, coupled with the penchant of state juries to discount those issues in favor of sympathetic plaintiffs, had rendered most manufacturers unwilling to produce needed vaccines at reasonable costs.  

In drafting the statute, however, Congress left things unclear, to put it charitably. Thus, the Court will have to make sense of this language:

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine… if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.

Although the Act allows victims to sue over manufacturing defects, conduct that would subject a manufacturer to punitive damages, and a manufacturer’s failure to exercise due care, nowhere does it define “unavoidable”—and there’s the nub of the matter. In the case before the Court, a three-judge Third Circuit panel decided unanimously for Wyeth, as did the district court. But in another case five months earlier, a nine-member Georgia Supreme Court, facing similar facts, decided unanimously for the plaintiff.

And behind it all is the question whether Congress should have pre-empted state law in the first place. It probably should have here, but that’s a close call. And the implications for ObamaCare are not absent in this case, which could be a portent of the complex and uncertain litigation that lies ahead if the scheme is not repealed. As I say at the outset of my post, hard cases make bad law, but bad law too makes hard cases, and this is one. Does anyone think that ObamaCare is anything but bad law? We’ll know once we figure out “what’s in it,” as the lady said.

James C. Scott at Cato Unbound

This month at Cato Unbound, political scientist James C. Scott joins us in a discussion of his landmark book Seeing Like a State. His lead essay “The Trouble with the View from Above” gets readers up to speed and reviews some of the key themes of the book. Here’s an excerpt:

State naming practices and local, customary naming practices are strikingly different. Each set of practices is designed to make the human and physical landscape legible, by sharply identifying a unique individual, a household, or a singular geographic feature. Yet they are each devised by very distinct agents for whom the purposes of identification are radically different. Purely local, customary practices, as we shall see, achieve a level of precision and clarity—often with impressive economy—perfectly suited to the needs of knowledgeable locals. State naming practices are, by contrast, constructed to guide an official “stranger” in unambiguously identifying persons and places, not just in a single locality, but in many localities using standardized administrative techniques.

To follow the progress of state-making is, among other things, to trace the elaboration and application of novel systems which name and classify places, roads, people, and, above all, property. These state projects of legibility overlay, and often supersede, local practices. Where local practices persist, they are typically relevant to a narrower and narrower range of interaction within the confines of a face-to-face community.

Local knowledge both empowers and constrains – it allows and/or encourages some social practices, while making others more difficult. The progress of state power, meanwhile, depends on systematized, uniform knowledge of a wide area, with a loss of local particularity and the knowledge that goes with it. Seeing like a state has costs, in other words.

Over the next couple of weeks, we’ll be joined by discussants Donald Boudreaux, Brad DeLong, and Timothy Lee, each of whom will have a chance to ask Scott about his work, discuss its significance, and relate it to their own thinking about states, markets, and societies.

No One’s Property Is Safe in New York

Sad to say, but as expected, New York State’s highest court, the New York Court of Appeals, has just upheld yet another gross abuse of the state’s power of eminent domain, exercised by the Empire State Development Corporation on behalf of my undergraduate alma mater, Columbia University, against two small family-owned businesses, one of them owned by Indian immigrants. Details can be found in the press release just issued by the Institute for Justice, which filed an amicus brief in the case and has been in the forefront of those defending against such abuse across the country.

IJ has had success in obtaining eminent domain reform in over 40 states, but New York remains a backwater, where collusion between well-connected private entities and government is rampant, and the courts play handmaiden to the corruption by abdicating their responsibilities. Just one more example of why New York is an economic basket case, with a population that continues to flee to more hospitable climes. I’ve discussed the property rights issues more generally here.

Advice to Tea Partiers

The Tea Party movement may endure, but its endurance will be a testament to its ability to understand that cutting government means having a long-term focus, says John Samples, author of the Cato book The Struggle to Limit Government.  In a new video, Samples outlines an assessment of what Tea Partiers should do if they want to sustain an effort to cut government.

He offers five pieces of advice for members of the Tea Party movement:

1. Republicans aren’t always your friends.

2. Some tea partiers like big government.

3. Democrats aren’t always your enemies.

4. Smaller government demands restraint abroad.

5. Leave social issues to the states.

This Is Sparta!

…Sparta, New Jersey that is. Like their fellow citizens in 54 percent of school districts across the state, the people of Sparta rejected their local district’s proposed budget yesterday. That’s the highest rate of school budget rejections since 1976, according to the New Jersey Star Ledger. Why? Taxpayers are tired of the relentlessly increasing per-pupil cost of public schooling at a time when their own household budgets are under pressure. It helped that popular new governor Chris Christie recommended that voters reject their districts’ budgets unless the teachers unions agreed to a one year salary freeze. [HT: Instapundit]

If this keeps up, voters might just decide to dump the government monopoly approach to schooling in favor of an education system that offers families far more choices while dramatically reducing costs.

Massachusetts Treasurer Blasts RomneyCare and, Equivalently, ObamaCare

Massachusetts state treasurer and recent Democrat Timothy Cahill has harsh words for the health plan foisted on his state and the identical plan that President Obama is trying to foist on the nation.  From The Boston Globe:

“If President Obama and the Democrats repeat the mistake of the health insurance reform here in Massachusetts on a national level, they will threaten to wipe out the American economy within four years,” Cahill said in a press conference in his office.

Echoing criticism leveled by congressional Republicans in recent weeks, Cahill said, “It is time for the president, the Democratic leadership, to go back to the drawing board and come up with a new plan that does not threaten to bankrupt this country.”

[T]he state’s health insurance law…Cahill said, “has nearly bankrupted the state.”

Cahill said the law is being sustained only with the help of federal aid, which he suggested that the Obama administration is funneling to Massachusetts to help the president make the case for a similar plan in Congress.

“The real problem is the sucking sound of money that has been going in to pay for this health care reform,” Cahill said. “And I would argue that we’re being propped up so that the federal government and the Obama administration can drive it through” Congress.

Commonwealth Connector, the independent state agency established to help residents find the health insurance, has “totally failed,” to create competition and connect people with affordable insurance, Cahill said, pointing out that 68 percent of the residents it serves receive subsidized care.

“We haven’t done anything about driving down costs,” Cahill said. “We haven’t helped small business. We haven’t changed the way we pay for health care and the way we deliver it.”…

Asked for solutions today, Cahill said he would seek to “level the playing field” between hospitals that charge different rates for similar procedures, seek to increase competition by allowing health insurance companies plans to sell plans across state lines, and would slash benefits mandated under state law.

For more on the Massachusetts health plan, see “The Massachusetts Health Plan: Much Pain, Little Gain.”

Federal Aid to States Is Too Popular

The Economist’s Free Exchange blog asks: “[W]hy isn’t federal aid to states more popular, and popular enough to get through Congress, given that nearly every American lives in one?”

I would ask the blog’s author: How much more popular would he like it to be? As the following charts show, federal aid to state and local governments has catapulted to record levels.

As I’ve discussed elsewhere, Medicaid has been driving the growth in federal subsidies to state and local governments. But other areas, such as education, income security, and transportation, have also seen substantial increases.

Subsidizing state and local government is quite popular with federal, state, and local policymakers and associated special interests. It’s doubtful the average citizen is aware that so much of their state’s spending is derived from their federal tax dollars. However, I suspect that most folks (who aren’t on the take) would frown upon the concept of sending money to Washington only to have politicians send it back to the states via the federal bureaucracy. While there may be popular support for many of the state programs funded with federal dollars, citizens need to understand that federal subsidization of state and local government has fueled unhealthy government growth at all levels.

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