Topic: Law and Civil Liberties

Enviros Embrace “Free Market Environmentalism”!

We don’t need no stinkin’ environmental regulations to save the earth – all we need are well functioning property rights for environmental resources and common law courts to protect that property against trespass. Pollution is simply a neighbor’s garbage dumped in your backyard without permission. If we simply recognize and enforce property rights for nature, the need for most environmental regulation goes away.

That’s the libertarian pitch anyway, and it goes by the moniker “Free Market Environmentalism,” or “FME” to its acolytes.  FME was given a firm theoretical foundation by Ronald Coase, embellished and blessed by libertarian economist Murray Rothbard, given academic life by the Political Economy Research Center and the Foundation for Research on Economics and the Environment, popularized in Washington by the Competitive Enterprise Institute, and even pitched by yours truly to the Board of Trustees of the Natural Resources Defense Council about nine years ago.

Alas, there has never been much evidence to suggest that libertarians were making much headway with these arguments and I have come to believe that they have less promise than I had once imagined. But what do you know? FME is now all the rage amongst environmentalists who have discovered that suing polluters for tresspass is easier than passing satisfactory laws against the same.

Think I’m pulling your leg? Read this from Darren Samuelsohn in today’s issue of Greenwire (subscription required):

Efforts to force a stronger U.S. global warming policy through the courtroom came under sharp scrutiny yesterday as eight states, New York City and conservation groups pressed for reduced greenhouse gas emissions from the nation’s five largest electric utilities.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals pressed plaintiffs over why their case was necessary when other avenues exist for addressing global warming – from Capitol Hill to state courts. “My basic question is should we be invoking this doctrine in this very unusual case when there are many other remedies available?” asked Judge Sonia Sotomayor, the lone Democratic appointee on the 2nd Circuit’s panel.

Connecticut Attorney General Richard Blumenthal (D) replied that the utilities’ emissions violate federal common law by harming residents in multiple states. The utilities’ emissions are creating a public nuisance and must be reduced to counteract a variety of global warming effects, including California’s diminished snow pack and more intense heat waves.

Addressing Sotomayor’s question, Blumenthal said his case is not unusual compared with other seminal common law challenges upheld by the Supreme Court, including suits over Illinois sewer water running into Lake Michigan and air pollution from two Tennessee smelters.

“We’re dealing with a developing area of science where federal common law provides a remedy under the doctrines that exist,” Blumenthal said.

Plaintiffs singled out the five companies and their subsidiaries for litigation almost two years ago because they are the largest emitters of carbon dioxide from the power sector in the United States.

… The electric utilities’ defense covered some of the same ground offered successfully last summer before a federal district court, which dismissed the case on the grounds it raised political questions better left to the other two government branches. Both current and former sessions of Congress and presidents have not adopted such an aggressive climate change policy, argued Washington-based industry attorney Joseph Guerra.

Guerra also insisted federal common law has not been applied to an issue of such sweeping scale. Of the Supreme Court precedents Blumenthal cited, Guerra replied, “None of those cases could have possibly affected the entire U.S. economy.”

Pushing another line of the industry’s defense, Guerra cautioned the litigation would be a precursor to more global-warming nuisance claims – with no end in sight as plaintiffs tick through other sources of greenhouse gas emissions.

But Sotomayor, who asked the bulk of the questions during the hearing, took issue with the line of industry defense. “That’s the nature of every tort action,” she told the utility attorney.

Sotomayor also said she had a problem with dismissing the case just because potential remedies were so large.

OK, I’ll grant that enviros are going the common law route less out of conviction than out of necessity.  But so what?  What was once a fringe argument has now migrated into the political and legal mainstream with a vengeance.  Good news for libertarians, right?

Well, if libertarians and fellow-travelling conservatives are popping champagne bottles, it has escaped my attention.  FME blogs are dead silent. Conservatives are taking the corporate line that common law is an inappropriate venue for all of this with no dissenters that I can tell.  In short, FME’ers either aren’t paying attention or aren’t willing to back their doctrines when they are employed by the Left.

Sure, one can argue that the plaintiffs don’t have proper standing, that there is really no nuisance here to begin with, that the tort system is so messed up that employing it in such cases is problematic, etc.  But nonetheless, this is a growing trend and libertarians seem surprisingly ambivalent about it.

Marriage Amendment Failure

Supporters of the Marriage Protection Amendment say that even though it failed in the Senate on Wednesday, they are pleased that it did better than two years earlier. But let’s do the math. In 2004 supporters lost a cloture vote 48-50, with two opponents not voting. So their strength on moving the amendment to a floor vote was 48-52. This year the vote was 49-48, far short of the 60 needed to invoke cloture or the 67 for a constitutional amendment. If all senators had voted, the vote would likely have been 50-50. So maybe that’s a pickup of two votes for amendment supporters.

But the Republicans picked up four Senate seats in the 2004 election. So relative to the number of Republicans in the Senate, support for the amendment actually slipped by two votes. Supporters picked up no Democrats, and they lost two Republicans. Judiciary Committee chairman Arlen Specter voted for cloture in 2004, though he would have voted against the amendment itself; this year he voted against cloture and quoted two Cato publications in his Senate speech. Judd Gregg joined his New Hampshire colleague John Sununu in voting for federalism over centralism after realizing that the 2003 Massachusetts court ruling for marriage equality in that state is not being replicated nationwide. Given that younger voters are much more supportive of same-sex marriage than older voters, it seems unlikely that support for an amendment will grow in future years.

Liberaltarianism

I’ll add my two cents to the Kos post Gene Healy and Will Wilkinson address below.

I too find myself sympathizing more with the left these days than the right, but I suspect that’s merely because the right happens to be in power at the moment. I’ve always thought libertarians’ best bet is to forge alliances on an issue-by-issue basis.

Even that is proving difficult. I cover a lot of issues for which there ought to be some common ground with the left. But I can count on one hand the number of Democrats in Congress who care much about the effects of drug prohibition, for example, or how the DEA is hampering the treatment of pain. So any wholesale casting of lots with either side doesn’t seem all that productive to me.

Like Will, I’m also curious as to what issues Moulitsas might offer up for “libertarianization.” Recent events offer plenty of room for skepticism:

  • The left generally supported the Supreme Court’s decision in Raich (the five most liberal justices plus Scalia formed the majority in that case). There were a few exceptions. But by and large, the left approved. (Moulitsas himself took a more middling position). The reasoning I read from leftist pundits was that opposing it would have opened the door just a hair more for the short-lived Rehnquist federalism revolution. In other words, a ruling for Angel Raich would have put the slightest of curbs on federal power. And that was too much. In this case, the left couldn’t even bring itself to support a decision allowing sick people to get access to the medication they needed, because it might have hampered the ability of the federal government to enforce hiring quotas, or the EPA’s ability to save endangered, cave-dwelling toads in Texas (the latter argument was actually made by the Washington Post editorial board). It’s hard to take in the left’s reaction to Raich and believe modern American liberalism stands for much of anything anymore, save for raw, unfettered government power.
  • Same goes for the Kelo decision (again decided largely by the Court’s left). Some on the left at the time seemed to sympathize with the fifth-generation homeowner who loses his house to, say, Wal-Mart or General Motors, yet still couldn’t get too worked up over a decision that, after all, (1) struck a blow to demon “property rights” advocates, and (2) once again, gave more power to government.
  • How about the broader drug war? It’s true that a few of Kos’s diarists have been eloquent opponents of drug prohibition. Bully to them.

What Would You Do?

You know you haven’t done anything wrong, so you have always assumed that you have nothing to worry about from police officers and prosecutors. Maybe a remote chance of a misunderstanding, but nothing that couldn’t be quickly cleared up. After all, why would the police bother you when you do not break any laws?

Now consider the nightmare case of James Calvin Tillman.

The police arrest Tillman for rape. He asserts his innocence, but the victim says she is sure that he is the culprit. Prosecutors offer Tillman a plea bargain. If Tillman will agree to waive his right to a trial and plead guilty, the state will agree to a 8 year prison sentence. However, if Tillman declines the deal and exercises his right to a trial, the state promises to seek the maximum penalty: 45 years imprisonment.

Questions:

What do you think a guilty man would do in such circumstances?

What would you have done in those circumstances?

What do you think Tillman did?

Tillman went to trial and was found guilty. After serving 18 years in prison for doing nothing wrong, he was just released on the basis of a recent DNA test.

It is always curious how the Governor, the Mayor, the Warden, the District Attorney, and the Police Chief never seem to be on the scene when the wrongly convicted person is released from jail. Maybe they just happened to be out of town on more important business!

Anyway, some people hold the view that it is not realistic to expect perfection. They say, “What’s important here is that a tragic mistake was discovered and corrected. The system worked.” Well, yes, but does it not make sense to see how that mistake was discovered and to consider ways in which such mistakes can be avoided in the future?

If we assume that the police and prosecutors are correct 95 percent of the time, then there are 100,000 innocent people in prison. On top of that, thousands and thousands more may not be locked up, but they have acquired criminal records because they got swept up in a police investigation and no one in the government believed their story.

At the risk of sounding unsophisticated, one way to minimize the mistakes is to actually have more trials, so that an impartial jury can weigh evidence. We really don’t have trials anymore. The cases that you hear about on the news—Scott Peterson, Michael Jackson, Martha Stewart, Enron CEOs—are part of the paltry 4 percent of cases that go to trial. Our courthouses are mostly gigantic plea bargaining centers. And plea bargaining rests upon the legal fiction that the government does not retaliate against a person for exercising his constitutional right to a trial.

When a judge accepts a plea deal, he’ll ask whether the accused is pleading guilty “voluntarily.” This is a staged ceremony. No one is supposed to mention the prosecutorial threats (we’ll throw the book at you!) that will be carried out if the accused insists upon a trial.

One might say, “Tillman got a trial and look what happened to him.” True enough, but I suspect many, many more errors are buried in the plea bargaining statistics.

Let’s reduce the dishonesty and wrongful prosecutions in our system by abolishing plea bargaining.

The FDA and Your Dinner Plate

Two years ago, Time asked me to write one half of a short point-counterpoint on the obesity debate for a special issue of the magazine entirely devoted to how government should intervene to prevent the fattening of America.

My job was to defend the notion of personal responsibility (my meager 350 words were the only such defense the entire issue). I remember squabbling with one of the magazine’s editors over one contention I made in the article – that it was only a matter of time before public health activists and the federal government would attempt to regulate the portion sizes of food served in restaurants. Seemed like a logical prediction of where things were headed. The editor accused me of hyperbole, and nixed the prediction from the piece.

Last week, this story hit the wires:

Those heaping portions at restaurants – and doggie bags for the leftovers – may be a thing of the past, if health officials get their way.

The government is trying to enlist the nation’s eateries in the fight against obesity.

The report, funded by the Food and Drug Administration, lays out ways to help people manage their intake of calories from the growing number of meals prepared away from home, including at the nation’s nearly 900,000 restaurants and other establishments that serve food. One of the first things on the list: cutting portion sizes.

“We must take a serious look at the impact these foods are having on our waistlines,” said Penelope Royall, director of the health promotion office at the Department of Health and Human Services.

The recommendations are voluntary.

For now.

More Temperance Tomfoolery

This morning on the radio, I heard the Washington Post’s Richard Morin express alarm at the latest study from the Center on Addiction and Substance Abuse regarding underage drinking. This year’s study — like previous studies from CASA — declares underage drinking a monumental problem, and concludes that the alcohol industry is not only to blame, but that the industry’s bottom line is dependent on continued consumption by minors.

Morin is an ideas guy. He should know better than to buy into what a baldly neoprohibitionist group like CASA puts in its press release without a bit of skepticism. Unfortunately, he’s not alone — this short NY Times piece bites on the study, too.

CASA has an unfortunate history of fudging data in pursuit of an anti-alcohol agenda. The group had to apologize and retract a 2002 study just hours after its release when critics pointed out massive errors in methodology.

The invaluable Statistical Assessment Service at George Mason University (STATS) takes a crack at this year’s study and, once again, finds it lacking:

Here are a few numbers that don’t make sense: according to their estimate, over 20 billion drinks are consumed by underage drinkers. STATS was unable to reconstruct this number. According to their own analysis, 47.1 percent of kids age 12-20 are “drinkers”, that is, they consume at least one drink per month. According to the 2000 U.S. Census, there are 35.8 million people in the United States in this age range; of these, just under 17 million drank in the past month. The average number of drinks/month, according to the data given in this article, is 35.2 per person per month– or about 422 per year. This amounts to about 422 times 17 million, or just under 7.2 billion drinks per year, far from the 20 billion reported in their table, and used for their analysis. For these same kids to consume 20 billion drinks, each teen would have to consume over 1,000 drinks per year, or almost three drinks a day!

STATS runs through CASA’s other hysterical claims, debunks them, then concludes:

The upshot of all this: the number of drinks consumed by youth under 21 is overestimated, the cost per drink is overestimated, the amount of drink attributed to abuse and dependence is overestimated, and the benefit to the industry of youth drinking and alcohol abuse and dependence is overestimated.

Alcohol industry giant Diageo has started a blog to debunk neoprohibition nonsense. Regarding the CASA study, Diageo also points out that nearly all statistical data indicate a sharp decline in underage drinking over the last 15 years, as well as sharp declines in the social problems one might associate with alcohol abuse — drunk driving fatalities, for example. (While Diageo is an alcohol manufacturer, the data it cites come from the federal government.)

Two other points to consider in all of this:

  • This type of data manipulation is alarmingly common among anti-alcohol activists. Just a couple of months ago, the American Medical Association (which has adopted an odd, militant temperance philosophy of late) was caught passing off an Internet poll on spring break and alcohol consumption as scientific, complete with a made-up margin of error. That story was all over the media before any reporter or editor thought to look at its methodology. And it’s unlikely that the millions who saw the original story on the Today Show or read about it in USA Today saw the handful of follow-up stories showing the poll to be little more than anti-alcohol propaganda.
  • There’s no question that underage drinking is common, and much of it is unhealthy (though I don’t buy into the notion that each time a glass of alcohol touches a 19-year-old’s lips qualifies as an incident of “abuse”). But it’s not nearly as widespread as the neoprohibition crowd would have you believe.  Nor is putting bans or severe limitations on alcohol marketing the proper way to address it.   

Unfortunately, neither CASA and its comrades in temperance nor the alcohol industry will consider what I think is a far more sensible approach: Abolish the federal drinking age and, at the state level, adopt a more realistic minimum age — 18 or 19 for purchase, with no minimum for consumption under parental supervision.

Prohibitions on intoxicants have never worked, and never will. They encourage binging and “underground” consumption.