Law and Order

The Virginia Supreme Court “reined in police searches yesterday, overturning convictions in two 2005 drug cases in which the court said police had conducted searches based on vague suspicions.” L. Steven Emmert, a Virginia lawyer-blogger, told the Washington Post he wasn’t surprised: “While Virginia is still one of the law-and-order states, the Supreme Court is very respective of Bill of Rights types of cases.”

I think “while” is the wrong conjunction in that sentence. Maybe it should be “Because Virginia is still one of the law-and-order states, the Supreme Court is very respective of Bill of Rights types of cases.”

“Law and order” is a phrase often used to imply “tough on crime” policies, perhaps suggesting harsh legal penalties harshly applied. Wikipedia notes, “The expression also sometimes carries the implication of arbitrary or unnecessary law enforcement, or excessive use of police powers.”

But law and order are necessary for the flourishing of human life. Advocates of liberty and limited government should not concede the concept of “law and order” to those who engage in “excessive use of police powers.” Those who actually believe in law and order would hold police and prosecutors, as well as criminal suspects, to the rule of law; and that seems to be what the Virginia Supreme Court did. So here’s to justices who understand that “law and order” and “the Bill of Rights” are allies, not enemies.

McCain on Judges

Cato scholars have increasingly been evaluating the respective policies of John McCain, Hillary Clinton, and Barack Obama. The trade shop understandably prefers McCain (see my colleague Sallie James’s new paper), as does, cautiously, our director of health and welfare studies, Michael Tanner. The foreign policy shop, meanwhile, doesn’t like McCain because he is ”wedded to perpetual war” and generally given to neoconservative tendencies.

On judges, I’ll go with the trade and health care folks: While John McCain’s views on  the First Amendment are unacceptable to freedom-lovers of any stripe, he has at least promised to nominate Supreme Court justices in the mold of John Roberts and Sam Alito (who have ruled against campaign finance restrictions). Obama and Clinton, meanwhile, are in the John Paul Stevens camp of relying on empathy, international opinion, and “my own experience” as a basis for constitutional interpretation.

Indeed, while defending his vote against Chief Justice Roberts’s confirmation, Obama explained that his standard for a justice must be “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

As Jonah Goldberg says in a devastating column, “Now that is a pure expression of the principle of judicial fiat.”

Supreme Court justices take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.” Any contention that justices must tilt toward any particular type of party — the downtrodden (or privileged), the politically unpopular (or popular), the ethnic minority (or majority) — is an argument for judicial dictatorship instead of the rule of law.

As Roberts said when Senator Richard Durbin (D-IL) asked him whether he would be “for the little guy,” if the law says the little guy wins, then the little guy should win — and if the law says the big guy wins, then it would be a miscarriage of justice to rule for the little guy. And those who don’t like that result should complain to their elected officials and get the law changed.

Go Communists! Defend Freedom!

Responding to concerns over ultra-thin models in fashion magazines and advertisements, the French National Assembly has approved legislation that would make the promotion of extreme dieting a crime punishable by up to two years in jail.

France is not alone in its paternalist concern for young women lured into “unrealistic standards of beauty” by the fashion industry.

Spain has banned models with less than a specified body mass index. Last year, Italy barred girls under 16 from its runways and started requiring all models to present health certificates proving they do not suffer from eating disorders. New laws in Britain require models with anorexia or bulimia to prove they are being treated for the disorders before they can participate in London Fashion Week this September.

Some fashion editors objected to the bill. And there were a few opponents in the Assembly:

Most of the left-wing opposition deputies abstained on the vote, with some calling it repressive. “Criminalizing behaviour has no place in public health policy,” said Jacqueline Fraysse, a Communist Party lawmaker.

Vive la France, a country where the Communists denounce the un-libertarian policies of conservative President Nicolas Sarkozy, whose party voted unanimously for the bill.

Prosecutorial Power

Good editorial in the Wall Street Journal yesterday regarding the dismissal of Joseph P. Brandon. 

The piece notes how federal prosecutors are able to pressure CEOs like Warren Buffett to throw certain executives overboard in order to avoid a dubious federal indictment. Cato adjunct scholar John Hasnas is quoted in the piece, noting that companies will do almost anything to avoid the accusation that they are being “uncooperative.” Hasnas is the author of the Cato book Trapped, which shows how the government is increasingly coercing business executives to take unethical actions — such as discharging employees who have done nothing wrong.

More here.

El Salvador’s Private Pension System Turns 10

This week marks the 10-year anniversary of El Salvador’s adoption of a private social security system. Following the example of Chile 17 years earlier, El Salvador moved from a government-run (and bankrupt) pay-as-you-go system to one of individual accounts for workers administered by private operators. Salvadorians are free to choose who runs their pension accounts as well as the conditions of their own retirement.

Today, the combined value of the pension operators’ assets — that is, the savings of the Salvadorian workers — represents 21.5 percent of the country’s GDP.

An editorial yesterday in the local newspaper El Diario de Hoy lauds the success of the reform and credits Cato’s José Piñera as the father of the “pension revolution.”

Does Mandating Diabetes Coverage Lead to Moral Hazard?

Economists Jonathan Klick and Thomas Stratmann find that it does.  In the latest issue of the Journal of Law and Economics, they write:

In the face of rising rates of diabetes, many states have passed laws requiring health insurance plans to cover medical treatments for the disease. Although supporters of the mandates expect them to improve the health of diabetics, the mandates have the potential to generate a moral hazard to the extent that medical treatments might displace individual behavioral improvements. Another possibility is that the mandates do little to improve insurance coverage for most individuals, as previous research on benefit mandates has suggested that mandates often duplicate what plans already cover. To examine the effects of these mandates, we employ a triple-differences methodology comparing the change in the gap in body mass index (BMI) between diabetics and nondiabetics in mandate and nonmandate states. We find that mandates do generate a moral hazard problem, with diabetics exhibiting higher BMIs after the adoption of these mandates.

GAO Plan for Pakistan: Better Planning

Thursday the Government Accountability Office published a report that points out that the United States lacks a “comprehensive plan” that integrates “all elements of national power” to deal with problem of terrorism emanating from Pakistan’s Federally Administered Tribal Areas. The report exemplifies the cult of planning that enthralls U.S. foreign policy analysts — and not just because it uses the phrase “comprehensive plan” 47 times in 25 pages.

Democratic leaders can use the report to bash President Bush, which is presumably why they requested it. But most people will merely find it useless. It is, after all, the GAO’s shtick to issue bland reports like this one, which does little other than note a lack of coordinated planning and then recommend more coordinated planning. (The report does say, to be fair, that the United States has done too little to address the cause of terrorism in northwest Pakistan, which it identifies, with bizarre confidence, as a lack of economic development.) And no one, even at Cato, can really be against better planning and coordination of government agencies to combat terrorists. Seems harmless. So what’s the problem?

The report never considers the possibility that the great minds of Washington, D.C., however well coordinated, may not contain the solution to the problems in Pakistan’s northwest hinterlands. Planning, after all, isn’t power.

I have never been, I confess, to an inter-agency planning meeting, so I can’t rule out the possibility that they’re magic. Maybe the agency representatives perform coordinated rites that reveal the wisdom to solve any problem and the power to implement their insight.

Barring that, it might have been worth devoting a sentence or two in the report to the difficulty of planning the affairs of other people’s countries. The area in question, after all, is not only beyond the control of our government but beyond the control of Pakistan’s, which we also do not control. This is not an engineering problem, like a faulty bridge. This is a problem of Pakistani politics and geography. There is not a U.S. plan that can fix that, including an invasion plan.

Growing up in Boston, I annually developed plans to fix the Red Sox’s lineup. So did my brother. My father had his own ideas. The Red Sox management never implemented any of our plans. I’m confident that the GAO would have told us that our failure stemmed from a lack of coordinated planning and suggested that we draw up a comprehensive strategy to harness all elements of Friedman power.

I am not arguing that the United States should abandon efforts to deal with terrorism in Pakistan. I am arguing that we should recognize the limits of what our policy can do. A belief that we can solve problems that we can’t may lead to costly efforts to eradicate problems rather than practical steps to manage them.

One reason Harvey Sapolsky, Chris Preble, and I wrote a paper about the lessons of the war in Iraq was irritation at the tendency of defense analysts to cast the occupation there as a failure of planning and to generate policy recommendations from that claim. Observing that planning for the occupation was poor and that the occupation went badly, the analyst would assume that the former caused the latter, and instruct the U.S. government to reform the interagency process to better plan future occupations. We argue that the United States never had much power to control Iraq’s politics, despite 100,000 to 150,000 troops in-country and the billions we spend every week. Problems of planning and coordination distract from the more important policy changes the war suggests. But the fixation on planning in Iraq at least made some sense, being that we occupied it.

The GAO report is the sort of thing Aaron Wildavsky had in mind he wrote that, “if planning is everything, maybe it’s nothing.” Phase one in my plan to save U.S. foreign policy from the cult of planning is getting policymakers to read that essay. In phase two, they apply it to foreign policy. Phase three involves converting the resulting despair into realism. In phase four (Victory), we cease our efforts to control everything that concerns us abroad. I am confident that this plan will fail.