Electoral reform is an ever more polarized topic these days, but the reform known as ranked‐​choice voting, which has been making inroads lately, deserves the attention it’s been getting across party lines. New York City voters will use RCV in the upcoming mayoral election — candidate Andrew Yang, for one, has sung its praises — while the Virginia GOP will use the method this weekend in picking candidates for statewide office. Utah Republicans, who’ve done the same in the past, have a good explainer here on how it works. Together with many large cities, the states of Maine and more recently Alaska have adopted the reform — it was in use in this past November’s Maine Senate race, in which incumbent Sen. Susan Collins (R) breezed to re‐​election by an unexpectedly wide margin.

For those just tuning in, RCV allows you the voter to mark not only your first choice among candidates, as now, but a second, third choice and so on. Once votes are cast candidates are eliminated beginning with the least popular and their supporters redistributed per their ranked choices to remaining candidates. This continues until one candidate exceeds 50 percent of the active ballots. While novel in America, the practice is familiar and of long standing in countries like Australia and Ireland.

Economists have long tended to appreciate ranked‐​choice voting because it offers a way to capture and integrate into decision‐​making much richer information about voter preferences. Importantly, it reduces the chance that a candidate with a committed base but who lacks appeal to most voters will slip through in a crowded field. And it reduces if not eliminates the role of “spoiler” candidates, often encountered in today’s first‐​past‐​the‐​post system.

It also should hold a lot of attraction, I believe, for those of us with libertarian views. It allows casting a conscience vote for the long‐​shot candidate who is genuinely best without throwing away the chance to influence the ultimate decision. Moreover, libertarians tend to be aware that the so‐​called political spectrum does a poor job of capturing important facts about candidates; the ones we recognize as best (or worst) on matters of liberty and the rule of law do not necessarily line up neatly along a party spectrum. For libertarians, as for other groups, RCV respects and incorporates the complexity of actual voter preferences.

Local election administrators and campaigners can also find practical advantages in the reform. Often called “instant runoff voting,” RCV offers a streamlined, speedier alternative to the cumbersome and expensive scheduling of a runoff election weeks later, as was seen lately in the twin Georgia Senate races.

For all these reasons I’ve recently joined the advisory board of Rank the Vote, a nonpartisan group that aims to stir interest and discussion in this method of voting. I expect to post more in the future on some of the other effects RCV may have, such as changing the manner in which candidates campaign, and altering the role third parties may play in the electoral system.

The Washington Post recently reported on a congressional hearing about the system that procures and delivers organs for human transplantation in the United States. Organ procurement organizations (OPOs) have government contracts that make them monopoly providers of such services. No OPO has ever lost its contract regardless of performance.

Regulation has published several book reviews and articles that analyze and critique the current organ procurement system. Alvin Roth is a Nobel‐​prize winning economist whose work helped design the current organ matching system. Phil Murray explains that work in this review. Roth understands that hospitals, because they earn revenue on transplants, have an incentive to keep their “easy‐​to‐​match” pairs outside the official organ matching system and refer the “hard‐​to‐​match” pairs to the system. The problem, of course, is that when transplant centers withhold easy‐​to‐​match pairs the number of people nationwide who can be matched is reduced. The problem can be fixed by rewarding hospitals with more matches based on the number of easy matches they refer to the system. But Roth recognizes this is not likely to happen because hospitals would have to admit that they are “strategic players in competition with one another,” which would contradict the non‐​profit ethos of the current system.

Another anomaly in the existing system is described by Ike Brannon. Some transplant candidates get to bypass the kidney list: those who need transplant livers. Patients with an impaired liver usually have impaired kidney function, but that typically is the result of the failing liver; a liver transplant usually restores the patient’s original kidneys to health. Almost 10,000 people die each year waiting for a kidney. The shortage is exacerbated by taking another 2,000 kidneys out of the system and giving them to liver transplant recipients, many of whom benefit little from the kidney. Bypassing of the kidney transplant list by liver patients is questionable policy.

Why not explicit markets for kidneys rather than non‐​profit procurement centers? Many people harbor animosity toward the sale of human organs. Jason Brennan and Peter Jaworski, in their book Markets without Limits, provide an overwhelming case against this animosity. They argue that if you may do something for free, then you should be allowed to do it for money. “There are legitimate moral worries about how we buy, trade, and sell,” they write, “but no legitimate worries about what we buy, trade, and sell.” Adding money to a transaction never turns an otherwise moral exchange into an immoral one.

”If We Pay Football Players, Why Not Kidney Donors?” makes the same case as Brennan and Jaworski using football as an example. Ethicists who oppose compensating kidney donors claim they do so because kidney donation is risky for the donor’s health, donors may not appreciate the risks, and donors may come from disadvantaged groups and thus could be exploited. But few object to paying largely minority professional football players who face much greater health risks than kidney donors and have much less counseling and screening concerning that risk. If we ban compensated organ donation, then we should ban professional football as well.

One of the provisions of President Biden’s American Jobs Plan is to spend $100 billion bringing broadband internet services to “more than 30 million Americans” who live in rural “areas where there is no broadband infrastructure that provides minimally acceptable speeds.” That’s $3,333 per person or about $8,800 per household.

Rural home in desperate need of high-speed internet.

Who are these people who deserve such a big subsidy? Well, I’m one of them. Here in rural central Oregon, DSL speeds are barely faster than dial-up. The alternative is satellite, which is pretty fast but I don’t like the idea of paying by the gigabyte. That’s just me; some of my neighbors have it and it works pretty well for them. Satellite is available everywhere, so it’s not like any rural Americans are physically denied access to high-speed internet.

My main point, however, is that Biden either thinks, or wants us to think, that rural people are all dirt-poor farmers deprived of the benefits they could get from watching Netflix on cold winter nights. I’m sure you can find some of those, but they are far from a majority of rural residents.

The Media Research Center published my observations about a recent New York Times article regarding tax rates on high earners. The Times article presented data purporting to show “just how far taxes on the wealthy have fallen over the past 70 years.” And the piece claimed, “For most of the past quarter‐​century, taxes on the affluent have continued falling, including the rates on corporate profits, personal income, stock dividends, stock holdings and inheritances.”

I pointed out to MRC reporter Joseph Vazquez that is not what authoritative data from the Congressional Budget Office show. The chart below is from the most recent CBO analysis of household income and taxes (page 18). The tax rates in the chart include federal individual income, corporate income, payroll, and excise taxes. They are average effective tax rates, meaning total tax payments divided by the CBO measure of income.

You can see that the average tax rate for the top 1 percent of earners is roughly as high as during the 1980s, although with some ups and downs along the way. The big change is that the average tax rate on the bottom fifth of households has plunged to near zero. The average tax rate on the middle three‐​fifths of households has also fallen.

Recently, a few journalists and (unsurprisingly) the U.S. lumber industry have downplayed U.S. "trade remedy" duties' potential contribution to skyrocketing domestic lumber prices, noting that current duty rates stand at "only" 9 percent for most imports from Canada - the largest foreign supplier and longstanding target of U.S. trade restrictions. Surely, many factors (most obviously pandemic-induced shocks to supply and demand and a beetle infestation in Canada) are causing the current situation, which is roiling the housing market, but discounting the duties' effects just because the current rate is relatively low ignores how these duties are actually applied and how both the U.S.-Canada lumber dispute and our trade remedies system more broadly inject significant uncertainty into the North American lumber market and discourage production and cross-border trade.

The bilateral lumber dispute dates back to 1982, with some form of trade restriction - trade remedy (antidumping and countervailing duty) measures or "voluntary" restraints subject to bilateral "Softwood Lumber Agreements" - applied to Canadian lumber imports for most of that time. As detailed in the above link, however, these restrictions changed regularly according to the whims of the governments, the frequently-changing demands of the U.S. lumber industry, and the increasingly-creative methodologies employed by the U.S. Commerce Department's International Trade Administration (ITA) to calculate the duties. This uncertainly, experts have found, has had long-term effects on investment in new lumber capacity in both countries. For example, Simon Fraser University's Roger Hayter and colleagues in 2015 surveyed several sawmills in British Columbia and found that "the costs and uncertainties of the trade dispute basically constitute a ‘discount factor’ discouraging long term investments and, equally important, provide strong disincentives for long-term thinking with respect to adding value, product innovation and skill formation." They further found that the dispute encouraged producers to diversify away from the U.S. market and to buy up American sawmills to avoid the aforementioned costs and uncertainties. As a result, the surveyed producers had little financial incentive to oppose trade restrictions in the future - not exactly ideal for U.S. lumber consumers.

Then there is the substantial uncertainty caused by the U.S. trade remedies system itself. In particular, the United States is the only country in the world that uses a "retrospective" system to calculate final duty amounts paid by U.S. importers of goods subject to AD/CVD orders:

A forthcoming law review article from Professor Katherine Crocker of William and Mary Law School endorses eliminating qualified immunity, which protects individual public officials from lawsuits alleging a violation of constitutional rights (§1983 claims). But it also suggests going one step further: eliminate the Monell doctrine and expand § 1983 to let people sue government entities as well.

The current mechanisms for constitutional tort claims against government entities are complicated. In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court ruled that municipal government entities could be sued under §1983. But these claims must survive a difficult test known as the Monell doctrine, which usually requires the plaintiff prove that the constitutional violation was part of an agency “custom or practice.” Courts have set the bar for this threshold particularly high, which means the Monell doctrine is often as daunting for plaintiffs attempting to sue local governments as qualified immunity is for plaintiffs attempting to sue individual public officials.

But Monell doesn’t apply to state governments or federal government entities, because both are protected by sovereign immunity—which protects these entities from being sued at all. The author notes that the iron wall of sovereign immunity is, like qualified immunity, a barrier of the court’s creation. Historically, government actors subject to tort claims could raise as a defense that their conduct was legally authorized as part of their government work. But the existence of a constitutional violation overcame this defense.

Professor Crocker recommends cutting through both the Monell doctrine and sovereign immunity by expanding §1983 claims against individual public officials to also allow claims against the public official’s employing government entity under a theory of respondeat superior—the well‐​known legal test that says an employer may be held jointly and severally liable for the tortious acts of his employee when the latter is acting within the scope of their employment duties. Notably, Senator Tim Scott recently proposed holding police departments liable for rights violations committed by their working officers. But as Professor Crocker stresses in her upcoming article, individual liability would be a necessary component of any such reform.

Putting government entities on the line for constitutional torts committed by errant officials may seem like a major shift. In reality, though, evidence suggests government agencies already indemnify their employees in almost every constitutional tort action. And plaintiffs frequently sue government agencies through different vehicles anyway to get access to important information in discovery, like internal police department policy. But even the possibility of personal liability still has a major impact on the behavior of individual employees, as evidenced by the response to New York City’s recent qualified immunity reform. Crocker predicts that “the most likely consequence” of increasing entity liability “would be for governments to increase their insistence that individual officers help pay constitutional‐​tort costs in exceptionally egregious cases.”

Combining a repeal of qualified immunity with an expansion of §1983 that incorporates government employers through respondeat superior thus mirrors existing functional practice in a way that allows plaintiffs to enforce their constitutional rights without first swimming through labyrinthine immunity doctrines. This has a few distinct advantages. First, it prevents constitutional tort suits from getting mired in interlocutory appeals. Because the determination of whether immunity doctrines apply is a final judgment, government attorneys can (and do) grind §1983 cases to a halt by demanding an appellate court review whether some form of immunity should apply before the case goes forward. Now plaintiffs would not have to wait years for circuit courts to weigh in before taking the government to trial—or make distorted tactical decisions on who to sue based solely on who has a right to an interlocutory appeal.

Additionally, these reforms would make the government’s role indemnifying their employees more transparent. Government attorneys are fond of asserting, for strategic reasons, that indemnification is unlikely to occur and litigation can have ruinous effects on personal lives despite knowing full well that their agency committed to covering litigation costs in their employment contract. Holding the government entity liable upfront would make clear that the plaintiff can obtain a complete remedy without forcing an individual officer into bankruptcy while putting the government agency in control of the decision to seek remuneration from its employee or not. To help this consequence achieve its full effect, Professor Crocker recommends legislation preventing federal agents from settling constitutional tort claims against them as if they were made under the Federal Tort Claims Act. This is a common practice, because it allows the Department of Justice to indemnify the government agency and obscure who is responsible for committing rights violations when balance sheets are reviewed.

It’s important to note that while Professor Crocker believes these reforms should eventually encompass all constitutional torts, she recommends beginning with just Fourth Amendment excessive force claims. The goal of this limitation is purportedly to allow Congress more time to monitor the effects of these changes and, in the author’s words, realize that “there is less reason to fear entity liability than many may suppose.” But this approach risks squandering appetite for change at a time when local governments are already enacting more ambitious reform. New York City, for instance, recently established a cause of action for both excessive force claims and unlawful search or seizure claims. That reform also strips both police officers and their departments of immunity defenses, creating something similar to the joint and several liability the author endorses but covering a wider range of constitutional misconduct. And Colorado and New Mexico both go even further, with statutes that provide remedies for all constitutional violations.

The full article is available here.

The big trade policy news of today is that the Biden administration has reversed course and now supports a waiver from WTO intellectual property rules in the hopes of facilitating the production of COVID-19 vaccines. Two key points about this new policy are the following.

First, the Biden administration supports a waiver, but not necessarily the waiver currently on the table. As the administration’s press release states: “The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines. We will actively participate in text‐​based negotiations at the World Trade Organization (WTO) needed to make that happen. Those negotiations will take time given the consensus‐​based nature of the institution and the complexity of the issues involved.” So now we get some negotiations on the issue, which may or may not lead to a final agreement on the text of a waiver.

Second, and perhaps tied to the first, a final text on the waiver may not be the ultimate goal here. Two big supporters of the TRIPS waiver recently wrote the following: “A waiver would immediately increase government leverage over vaccine makers that refuse to license the technology.” What may be happening here, and it’s hard to know exactly what the administration is thinking (and different people in the administration may be thinking different things), is that they are trying to put pressure on the pharmaceutical industry to do more licensing of production to factories in developing countries (I discussed this possibility a bit in a recent blog post). Thus, the sudden U.S. support for a waiver may be part of its negotiating strategy with the pharmaceutical companies.

Some people may be using the issue of COVID‐​19‐​related patent waivers as an excuse to rethink intellectual property protection more broadly. Generally speaking, I am on board with an examination of whether the current system of protection is based on evidence. However, to deal with the problems of today (i.e. the pandemic), I am more interested in doing whatever we can to increase vaccine production. If we can get more factories producing safe and effective vaccines, we will reach the end of the pandemic sooner.