Topic: Regulatory Studies

On the Interstate Shipment of Green Beer

Today being St. Patrick’s Day, it seems appropriate to revisit the unlikely juxtaposition of two of my favorite legal policy topics: alcohol and the Commerce Clause.  (Listen to my podcast on the subject or read its transcript.)  The point of all this is that alcohol is no different from any other commodity in that states cannot erect arbitrary regulations that privilege in-state interests (be they retailers, wholesalers, or producers) ahead of their out-of-state counterparts.

But St. Paddy’s Day is not the only reason the issue is topical.  Last week, the Supreme Court declined to review the Fifth Circuit’s indefensible decision in Wine Country Gift v. Steen. It did so despite the Fifth Circuit’s upholding of a Texas law designed to protect Texas’s in-state liquor retailers from out-of-state competition, a holding that disregarded recent high-court precedent.

In Granholm v. Heald (2005), decided together with the Institute for Justice’s Swedenberg v. Kelly, the Supreme Court struck down a similar protectionist law. Both cases challenged laws that permitted in-state wine producers to sell directly to consumers while prohibiting similar sales from out-of-state producers. The Court held that, notwithstanding a provision in the 21st Amendment (which repealed prohibition) that allows states to regulate their own liquor industries, the Commerce Clause prohibits states from disrupting free trade by discriminating against out-of-state businesses in favor of in-state businesses. This interpretation of the Commerce Clause grew out of the common-sense understanding that, if left unchecked, state governments have strong incentives to protect in-state businesses (who are voters) at the expense of their (non-voting) out-of-state competitors. Without constitutional checks, such laws could eviscerate Congress’s constitutionally enumerated power to “regulate [make regular] commerce … among the several States.”  

Nevertheless, the Fifth Circuit decided to limit Granholm to wine producers. As is evident by the name, however, the Wine Country Gift case concerns a wine retailer. Yet Granholm explicitly said that states “may not enact laws that burden out-of-state producers or shippers simply to give a competitive advantage to in-state businesses.” It is dismaying that the Supreme Court didn’t care about the Fifth Circuit’s neglect of this language.

Granholm was an important blow against the heavily protectionist and cartelized liquor industry. As was documented in a pre-Granholm article in Cato’s Regulation magazine, the prohibition on direct shipment has been used to strangle small wineries as they struggle to access larger markets without having to go through the state-controlled distribution networks. Despite an explosion of wine-drinking and -making in this country in the last 30 years – with consumption increasing by nearly 50% between 1991-2001 and wineries quadrupling between 1974-2002 – the small winery still fights against an old-boy network of producers and distributors. In 2003, the top 30 wine companies still provided 90% of U.S. wine although they were less than 1% of the producers.

This is, of course, exactly how the top 30 wine companies want it.

Granholm dismantled some of this network. Unfortunately, Wine Country Gift will allow this unconstitutional infringement of the right to earn an honest living (see Timothy Sandefur’s excellent book of the same name) to persist in some states.

But Americans, like most of the world, appreciate their booze. During prohibition, Americans endured Tommy-guns, corruption, gangsters, and speakeasies just for a drink. If the government made it illegal to drink responsibly, many Americans were willing to thwart the law and drink irresponsibly.

The negative effects of prohibition were too visible to deny and, after 13 years of waging war on a non-compliant population, prohibition ended. In its wake, however, prohibition left another war, an 80-year “on-going, low-level trade war” (in the words of Granholm) between states and their three-tiered monopolies over the production, distribution, and sale of alcohol. And so, 21st Amendment or not, prohibition lives on – though the  colorful characters in spats carrying Tommy-guns have been replaced by iPad-wielding lobbyists and politicians who do their bidding.

Thanks to Trevor Burrus for his help with this blog post.

March Madness: Eminent Domain Abuse Goes Coast-to-Coast

This is a big week for private property rights.  Two epic eminent domain struggles are playing out on opposite sides of the country. 

First, National City, California, is ground zero for eminent domain abuse.  City officials declared several hundred properties blighted even before conducting a blight study that was riddled with problems. The city wants to seize and bulldoze a youth community center (CYAC) that has transformed the lives of hundreds of low-income kids, so a wealthy developer can build high-rise luxury condos:

CYAC has numerous volunteers, including local law enforcement officers, providing free mentoring in boxing as well as academics.  The gym is famous for getting kids off the street and back into school.  As Rick Reilly explained in a feature in Sports Illustrated (boy, how I miss his inside-back-page column):

You know what, Mayor? National City doesn’t need more luxury condos. It needs good men like the Barragans teaching kids respect for neighbors and property, manners you could use a little of yourself.

And if you kick the Barragans out so some slick in Armani can buy a bigger yacht, I hope your car stereo gets jacked—weekly—by a kid who would’ve otherwise been lovingly coached on their jabs and their math and their lives.

Question: Can you declare politicians blighted?

This week, the gym’s battle is in trial before the Superior Court of California.  Represented by the Institute for Justice (who else?), a victory will help protect private property far beyond National City and clarify the use and misuse of blight designations.

Second, moving to the other side of the country, we go to Mount Holly, New Jersey:

Mount Holly is another classic case of “Robin Hood-in-Reverse.”  Officials have been dismantling a close-knit community known as the Gardens for the last decade so a Philadelphia developer can bulldoze the area and build more expensive residential properties.

Homeowners in the Gardens are primarily minorities and the elderly.  The row-style houses are being torn down while still attached to occupied homes, and officials refuse to offer the remaining homeowners replacement housing in the new redevelopment.  Further, owners are being offered less than half the amount it would cost to buy a similar home blocks away.

Here, IJ just launched a billboard campaign and did a study that concludes the eminent domain abuse project may result in a loss of a million taxpayer dollars a year, or one-tenth of the Township’s budget.

I previously wrote about eminent domain shenanigans here and you can read more from Cato on property rights here.

What if We Ran a Public School System… and No-One Came?

The New Jersey Office of Legislative Services, which estimates the budgetary impact of proposed laws, has just released its analysis of a private school choice bill called the “Opportunity Scholarship Act.” The most remarkable thing about its report is the amount of money it assumes that districts would save for each student they no longer have to teach: $0.

On that assumption, if every student were to leave for the private sector tomorrow, districts would keep right on spending exactly the same amount they spend today. Inefficient though it is, not even state-run monopoly schooling is that bad.

The OLS report does not explain why it assumes that the per pupil savings for students leaving public schools (the “marginal cost”) would be $0. It states that this figure is “indeterminate,” but by not counting it at all is effectively treating it as zero.

In fact, the marginal cost of public schooling is not “indeterminate” at all. Economists “determine” it all the time, and it’s quite easy to do. You simply observe how district spending actually rises and falls with enrollment, using a time-series regression, as I did in 2009 to calculate the marginal cost of public schooling in Nevada (see Appendix A).

Even if the NJ OLS does not conduct a marginal cost estimate specific to New Jersey, they could have done–and should still do–the next best thing: take the marginal cost estimates for other states as a rough guide and estimate the NJ district savings from them. I estimated that Nevada district spending falls by 85% of average per-pupil spending when a student leaves, and Grecu and Lindsay, a couple of years earlier, estimated the figure at 80% for South Carolina.

If they want to be conservative, the NJ OLS could use the lower of these figures, and perhaps also run the numbers for estimates 10% higher and 10% lower.

Any of the above options is preferable to the logical impossibility of their current analysis, which effectively treats the marginal cost of public schooling as $0.

Book ‘Em, Danno

I hope you’ve got your NCAA bracket in by now. The NCAA estimates that 35 million Americans will do so. But keep in mind: As the Washington Post notes, you’re breaking the law:

Office pools, despite the warnings of law enforcement officials, are among the country’s most popular illegal activities. The FBI estimates that roughly $2.5 billion is gambled on the NCAA tournament, and only $80 million is bet legally through Nevada sports books. A good portion of the rest takes the form of $5 or $10 entry fees to participate in a bracket-pick NCAA tournament pool.

Is this the most popular illegal activity in America? Well, the Office of National Drug Control Policy says that 104 million Americans have used marijuana, 28.5 million in the past year.

Does it make sense to criminalize peaceful activity that tens of millions of Americans enjoy? Discuss.

ADA Service Animals: The Silence of the Goats

As I note in a New York Post opinion piece published on Sunday, today marks an unusual milestone: the executive branch of the U.S. government is actually rolling back a significant burden imposed on business owners and others under the Americans with Disabilities Act (ADA). Because the subject matter is an unusually colorful one – the widespread misclassification of household pets, including such exotic species as iguanas, goats, and boa constrictors, as “service animals” under the ADA – you’d think there’d be major press coverage. And yet with scattered exceptions here and there, public attention has been muted. And there’s a story in that too.

In the early years of the law (as I observe in the Post piece) the ADA’s mandate that businesses admit service animals caused little stir because dogs trained to help persons with blindness, deafness and some other disabilities are skillfully trained to stay on task while ignoring such distractions as food, strangers and the presence of other animals. But given the law’s lack of definitions, combined with lopsided penalties should a defendant guess wrong – $10,000 is possible for a first violation – shop owners began seeing more and more rambunctious spaniels and irritable purse dogs, to say nothing of rabbits, rats, ferrets, lizards and critters of many other sorts. Doctors obligingly wrote notes testifying that the animals were helpful for mood support or to fend off depression; you can buy “therapy dog” vests online with no questions asked.

The new rules toughen things up. With a minor exception for miniature horses, service animals will now have to be dogs; they’ll have to be trained to perform a service; and while that service can relate to an “invisible” disability, including one of a psychiatric nature, it cannot be based simply on mood support or similar goals. Also, they’ll need to be on-leash unless their service requires otherwise.

In revising the rule, the Obama administration was heeding the wishes not of frazzled retailers but of disabled-rights advocates themselves. As press coverage recounts, persons who employ well-trained service animals suffer not only from public backlash but also from more tangible setbacks such as disturbances that can arise when other, less well-trained animals challenge their dog in an indoor setting. If the new change counts as deregulation, it’s a sort of accidental and tactical deregulation not arising from any notion that it’s better to leave private owners free to set their own rules.

And that helps explain the absence of fanfare, not to say stealth, with which the Obama administration is letting the new rule go into effect. Knowing that the change will be unpopular with some of its own constituents, it seems happy to forgo credit with constituencies that might favor deregulation – notwithstanding the public fuss a few weeks ago about the President’s newfound interest in reducing regulatory burdens. That interest remains, to say the least, untested.

Pielke’s Problem

I generally admire the work of Roger Pielke Jr., a political scientist in the University of Colorado-Boulder’s Center for Science and Technology Policy Research. His new book on climate change is refreshingly honest and non-ideological, if a bit overly technophilic. His broader work offers the important insight that science alone cannot direct public policy, but rather it can only lay out possible results of different policy choices.

Given the quality of his work, I was disappointed by Pielke’s op-ed in today’s NYT defending Congress’s legislated obsolescence of the incandescent light bulb. He argues that government standard-setting is an important contribution to human welfare, and the light bulb standard is just part of that standard-setting (though he does suggest some minor policy tweaks to allow limited future availability of incandescents). 

To justify his argument, Pielke points out the great benefit of government-established standard measures, as well as quality standards:

Indeed, [in the United States of the late 19th century] the lack of standards for everything from weights and measures to electricity — even the gallon, for example, had eight definitions — threatened to overwhelm industry and consumers with a confusing array of incompatible choices.

This wasn’t the case everywhere. Germany’s standards agency, established in 1887, was busy setting rules for everything from the content of dyes to the process for making porcelain; other European countries soon followed suit. Higher-quality products, in turn, helped the growth in Germany’s trade exceed that of the United States in the 1890s.

America finally got its act together in 1894, when Congress standardized the meaning of what are today common scientific measures, including the ohm, the volt, the watt and the henry, in line with international metrics. And, in 1901, the United States became the last major economic power to establish an agency to set technological standards.

 Alas, this argument doesn’t support Pielke’s light bulb standard.

The weights-and-measures and product standards that he cites are examples of government response to market failures—instances where private action is unable to reach efficient results. Concerning weights and measures, a type of market failure known as the collective action problem can make it difficult to establish standard measures privately. Getting everyone to agree can be like herding cats, and there is ample incentive to secretly defect from that standard — e.g., a gas station would love to sell you a 120-ounce “gallon” that you assume is a standard 128 ounces. (OTOH, there are plenty of examples of private action overcoming this problem, such as the standardization of railroad track gauges in the late 19th century.) Likewise, quality standards can be understood as a response to a kind of market failure known as the information asymmetry problem— e.g., a producer of low-quality goods may knowingly try to pass them off as high-quality goods. (Again, there are plenty of examples of private action overcoming this problem.)

As libertarians, we recognize that there are market failures, and that government can sometimes mitigate them. (That’s why we’re not anarchists.) Also as libertarians, we recognize that government intervention can result in outcomes even less efficient than the original market failure. (That’s why we’re not run-of-the-mill Democrats or Republicans.)

But where is the market failure with incandescent bulbs? After nearly 125 years of use, people know the drawbacks and advantages of incandescents—that they use more electricity than other types of bulbs and have a shorter lifespan, but they cost very little and work much better in certain applications—from dimmer switches to Easy-Bake Ovens—than other bulbs. Besides, CFL bulbs were widely available before Congress’s 2007 legislation, and LED lights were already in the R&D pipeline.

Perhaps Pielke would argue that there is a market failure with incandescents: the negative externality of air pollution, including greenhouse gas emissions. But incandescent lighting is only one of many, many electricity-using devices, and electricity generation is just one of many, many sources of air pollution. So why the focus on just this one externality source instead of advocating a policy that broadly addresses emissions? And why devote his op-ed to discussing technology standards, and make no mention of air pollution?

Obligatory Charlie Sheen Post

Is this the last blog in America that hasn’t commented on the Charlie Sheen meltdown? There isn’t much of a public policy angle, of course. Oh sure, employment-law analysts are looking at whether Warner Bros. has the right to fire Charlie Sheen. John Stossel and Bill O’Reilly talked about that question Tuesday night. But I’ve got another contribution. If Sheen is gone, Warner Bros. is going to need another actor – and a new “situation” – to keep its hit show “Two and a Half Men” on the air. Here’s my treatment:

A womanizing actor (John Stamos) is delighted to buy a Malibu beach house at a fire-sale price when the owner (Charlie Sheen) suddenly leaves town. Then he’s shocked to discover that the brother and nephew of the previous owner are living in the house, not paying rent, and refusing to leave. He tells them to get out, but Stamos brings in a lawyer (Julianna Margulies) who tells him that under California lawyer-tenant law he can’t evict the people who are living there.

Warner Bros. might want to seek out the writer of  Pacific Heights, a 1990 thriller that is almost a documentary on the horrors of landlord-tenant law. A young couple (Matthew Modine and Melanie Griffith) buy a big house in San Francisco and then rent an apartment to a young man (Michael Keaton). He never pays them, and they can’t get him out, and then things get really scary. The lawyer lectures the couple – and the audience – on how “of course you’re right, but you’ll never win.” I just knew this happened to someone – maybe the screenwriter or someone he knew. Sure enough, when Cato published William Tucker’s book Rent Control, Zoning, and Affordable Housing, and I asked the director of Pacific Heights, the legendary John Schlesinger, for a jacket blurb, he readily agreed to say “If you thought Pacific Heights was fiction, you need to read this book”; and he told me that the screenwriter had a relative who had gone through a tenant nightmare.

Of course, Warner Bros. might prefer to hire that screenwriter for a movie about a company that hires a charming and handsome new employee (Charlie Sheen) who brings in lots of money but turns out to be a nightmare to work with. Can they fire him? Hilarity ensues.