In yesterday’s Brazilian daily, O Globo, Pedro Abramovay, the drug czar of the new Brazilian administration, said that Portugal’s experience with drug decriminalization should be considered as an alternative to Brazil’s current anti-narcotics policy. This comes on top of Rio Governor Sergio Cabral’s call for drug legalization and of former President Fernando Henrique Cardoso’s criticism, along with other prominent Latin Americans, of drug prohibition. By officially weighing in on the side of harm reduction, Latin America’s giant can have a significant effect on the debate over this hemisphere’s drug war.

The United States is facing a gigantic debt problem, as we all know. Governments at all levels have simply been spending too much, which most Republicans and Democrats now seem willing to concede. But don’t expect to hear the following from many members of either party: We need to stop spending taxpayer money on sending so many people to college! Indeed, President Obama has already said he’ll support spending cuts but not to education, and few Republicans have ever shown the willingness to flatly declare student aid a costly waste. And maybe they’re right. After all, doesn’t more college education necessarily translate into more productivity and prosperity?

Nope. As I’ve pointed out repeatedly, lots of people never finish the education they start, and colleges just raise tuition to eat up aid increases. What I haven’t discussed as much is the problem of college-grad underemployment: college graduates taking jobs that don’t require college degrees. Well it’s a huge inefficiency, as the good folks at the Center for College Affordability and Productivity point out in a timely new study. And it could become an even bigger problem as President Obama pushes to have the United States lead the world in the percentage of the population with a college degree. As CCAP reports:

Evidence shows that currently more than one-third of college graduates hold jobs that governmental employment experts tell us require less than a college degree. That proportion of underemployed college graduates has tripled over the past four decades.

From an economic standpoint, that’s obviously a lot of waste. So why do our policymakers persist in simplistically asserting that more college education is always a good thing? I can’t read minds, but I’m inclined to agree with the CCAP authors:

[T]he notion of President Obama and many higher education leaders that our nation’s future depends on higher numbers of college graduates is fundamentally flawed. It is based more on assumptions, and perhaps almost an ideological attachment to colleges and universities, than on labor market realities.

Many people, it seems, do just assume that more education — without ever looking at what actually goes on in higher ed — is always a good thing, while others believe that government should constantly funnel money to our precious ivory towers no matter how little of concrete value taxpayers get for their dough. But whatever the reason, the facts almost all point in one direction: We need to spend much less taxpayer money on higher education, not much more.

Conservatives often talk about the modern world in terms of decline. Old traditions fall victim to market dynamism, integration, and globalization, and our society is the poorer for it. Newer isn’t better — it’s more superficial, less rooted, and less secure.

Those who make this type of argument are frequently tempted toward the creation of group rights or privileged statuses for traditional identities, behaviors, or social norms. Oddly, the left has at times agreed on just this critique, and on just these sorts of privileges in response. The authentic past, the authentic identity must be preserved, even at the cost of classical liberal ideas of rights. Marxist critiques of capitalist culture have long made just this point. As Marx himself famously said, industrialism means that “all that is solid melts into air.” To many, stopping it from doing so seems possibly a good idea.

In this month’s lead essay, political theorist Russell Arben Fox sounds a cautionary note. Traditions have always evolved, he argues; there is no pristine, fully authentic past out there to be found. In a sense, for a tradition to be authentic at all is for it to be flexible and subject to change. The way to honor the past, he suggests, is to be conscious of it, yes, but also of the world in which we live, today. Both straightforward traditionalism and the Marxist-inspired critique of it commit the same error. They both seem to believe that the truest, most unvarnished past is out there, waiting to be found, somewhere. (Somewhen?)

Is he right? Obviously, we are dealing with questions that involve culture as much as politics. To help sort them out, we have invited journalist and blogger Eve Tushnet, historian John Fea, and doctoral candidate in government James Poulos, known for his extensive freelance journalism and blogging, notably at Postmodern Conservative and Ric​o​chet​.com.

The Obama administration is showing interest in reforming the U.S. corporate income tax. That’s good news because a lower corporate rate would boost domestic investment, which in turn would generate more jobs and higher wages and incomes.

A lower corporate rate would also attract more inflows of direct investment from abroad—foreign-based businesses expanding their plants and building new plants in the United States.

I updated this chart from our book, Global Tax Revolution. It shows that during the 1980s, the United States enjoyed higher inflows of foreign direct investment (FDI) than outflows. But since then, the pattern has reversed—our companies are now investing more abroad than foreign-based companies are investing in the United States. (Data is from the BEA).

There are numerous factors that affect these flows, but there is no doubt that taxation plays an important role. If we cut our corporate tax rate, we would attract more investment (move the black bar upwards), which would be good for the U.S. economy.

There is an important caveat with the data, however. A large portion of FDI involves mergers and acquisitions. If a foreign company takes over a U.S. company, that’s an investment inflow. If such a takeover is a market-driven event that increases efficiency, that’s fine with me. However, there is evidence that foreign companies are taking over U.S. companies because we have anti-competitive “worldwide” corporate tax rules.

So the solution is to move to a “territorial” corporate tax system and substantially reduce the federal corporate tax rate. That way, we wouldn’t artificially encourage the takeover of U.S. firms, while also attracting larger inflows of job-generating greenfield investments.

A final note on the chart: it clearly shows that U.S. international investment has exploded in magnitude over the last couple of decades. That explosion has greatly increased the importance of having a competitive corporate tax code. So good for the Obama administration for looking into possible reforms.

There is a very bizarre race happening in Illinois. The Governor and the leaders of the State Senate and General Assembly are trying to figure out how to ram through a massive tax increase, but they’re trying to make it happen before new state lawmakers take office tomorrow. The Democrats will still control the state legislature, but their scheme to fleece taxpayers would face much steeper odds because of GOP gains in last November’s elections.

As a result, the Illinois version of a lame-duck session has become a nightmare, sort of a feeding frenzy of tax-crazed politicians. Here’s the Chicago Tribune’s description of the massive tax hike being sought by the Democrats.

The 3 percent rate now paid by individuals and families would rise to 5 percent in one of the largest state tax increases in Illinois history. …Also part of the plan is a 46 percent business tax increase. The 4.8 percent corporate tax rate would climb to 7 percent… In addition, lawmakers are looking at a $1‑a-pack increase in the state’s current 98-cent tax on cigarettes. …Democrats will still control the new General Assembly that gets sworn in Wednesday, their numbers were eroded by Republicans in the November election. With virtually no Republican support for higher taxes, Democratic leaders contend it will be easier to gain support for a tax hike in a legislature with some retiring members no longer worried about facing the voters.

If Governor Quinn and Democratic leaders win their race to impose a massive tax hike, that will then trigger another race. Only this time, it will be a contest to see how many productive people “go Galt” and leave the state. John Kass, a columnist for the Tribune, points out that the Democrats’ plan won’t work unless politicians figure out how to enslave taxpayers so they can’t escape the kleptocracy known as Illinois.

The warlords of Madiganistan — that bankrupt Midwestern state once known as Illinois — are hungry to feed on our flesh once again. This time the ruling Democrats are planning a…state income tax increase, with more job-killing taxes on corporations… A few tamed Republicans also want to join in and support a tax deal, demonstrating their eagerness to play the eunuch in the court of the pasha. And though they’ve been quite ingenious, waiting for the end of a lame-duck legislative session to do their dirty work, they forgot something important. They forgot to earmark some extra funds for that great, big wall. You know, that wall they’re going to need, 60 feet high, the one with razor wire on top and guard towers, equipped with police dogs and surrounded by an acid-filled moat. The wall they’re going to have to build around the entire state, to keep desperate taxpayers from fleeing to Indiana, Wisconsin and other places that want jobs and businesses and people who work hard for a living. …With the state billions upon billions in debt, and the political leaders raising taxes, borrowing billions more and not making any substantive spending cuts, we’ve reached a certain point in our history. The tipping point. Taxes grow. Employers run. The jobs leave. High-end wage earners have the mobility to escape. What’s left are the low-end workers who are stuck here. …the Democrats aren’t about to disappoint their true constituents. So they don’t cut, they tax. Because the true constituents of the Democratic warlords are the public service unions and the special interests that benefit from all that spending. Why should politicians make cuts and anger the people that give them power, the power that allows them access to treasure? …we reach another tipping point: The point at which those who are tied to government, either through contracts or employment, actually outnumber those who are not tied to government. Do the math on Election Day.

Illinois is America’s worst state, based on what it costs to insure state debt. The greedy politicians in Springfield think a tax hike will give them enough money to pay bondholders and reward special-interest groups. But that short-sighted approach is based on the assumption that people and businesses will cheerfully bend over and utter the line made famous by Animal House: “Thank you, sir! May I have another?”

Moving across state lines is generally not something that happens overnight. But this giant tax hike is sure to be the tipping point for a few investors, entrepreneurs, rich people, and employers. Each year, more and more of them will decide they can be more successful and more profitable by re-domiciling in low-tax states. When that happens, Illinois politicians will get a lesson about the Laffer Curve, just as happened in Maryland, Oregon, and New York.

In Britain, the coalition government of David Cameron hopes to stimulate much-needed hiring by reducing state interference with private employers’ right to choose their own workforces. Per the Telegraph, Cameron “hopes that relaxed employment laws will help to boost the private sector and encourage firms to take on thousands of new workers.”

For all the high hopes, the changes are in fact quite modest. Newly hired workers will wait two years, rather than one, before obtaining the power to challenge later firings before official tribunals. To discourage doomed or trivial claims, disgruntled workers will be charged a fee for resorting to a tribunal. The smallest employers will be exempted from some portions of the law, and so forth.

Judged by the “employment at will” principle that best exemplifies liberty of individual contract, Britain’s job market will remain far too highly regulated. But the direction of change is interesting. Despite the frequent impression that “Eurosclerosis” (and its equivalents elsewhere) puts the patient on a one-way course of decline, nations around the globe have repeatedly sought to shake off economic malaise by pulling back from labor regulation toward liberty of contract. Often these steps have stimulated exactly the economic expansions hoped for, as with Margaret Thatcher’s reforms in Britain in the 1980s and with New Zealand’s less famous yet more radical 1991 reforms. Alas, in both Britain and New Zealand, later Labour governments reimposed some (not all) of the previous types of regulation in deference to their union and Left constituencies.

What of the United States? For the most part, we’ve resisted the worst Euro labor-market practices — which has required us to ignore prevailing opinion among labor and employment specialists in our law schools, most of whom (as I’ve argued at book length in the past, and mention again in my forthcoming book on the influence of law schools) tend to support a great many bad proposals to restrict private employers’ liberty to hire and fire. Yet in our own distinctive way — which owes more to lawsuits and less to administrative tribunals — we keep edging toward European-style notions of workplace tenure. Newly released numbers show that federal complaints of employment bias surged to record levels last year, up 7 percent, led by a 17 percent spike in disability-discrimination claims, which now represent one-quarter of the nearly 100,000 total.

The newly activist posture of the Obama Equal Employment Opportunity Commission may have contributed to the trend a bit, and so may the state of the economy: laid-off workers may be more willing to pursue lawsuits when job prospects are bleak. But the main responsibility goes to the ADA Amendments Act passed by Congress in 2008 and signed by none other than Republican President George W. Bush, in this respect continuing his father’s tradition of uncritically endorsing almost any measure labeled as a matter of disabled rights. Among its other provisions, the 2008 ADA Amendments Act reversed a series of U.S. Supreme Court decisions that had tended to limit the scope of coverage of the ADA to persons with more severe disabilities. It also bestowed new rights to sue on persons “regarded as” disabled whether or not their actual medical condition so qualifies. The overall effect of the changes is to make it hard if not impossible to argue that a disability is too minor to deserve accommodation: “Challenging the employee’s ‘disability’ status is a waste of time with the new expanded definition of ‘disability’,” per one employer advisor. Karen Harned and Katelynn McBride have much more on the amendments in a new article in the Federalist Society publication “Engage.”

Once again, both major political parties pave the way to excessive regulation. And that makes it harder politically for an equivalent of Cameron’s reforms to come along here.

While all the hot constitutional action of late, on issues ranging from Obamacare to gay marriage to immigration, has been in the lower courts — or even in Congress! — the Supreme Court still goes about its daily business. After last year’s blockbuster term, however, this term is pretty low-profile aside from a spate of First Amendment cases (funeral protests, violent video games, school choice tax credits, public financing of election campaigns, etc.). And so it was yesterday, when Supreme Court arguments over securities law and Western water rights were overshadowed by news of cases on which the Court decided not to rule:

• Without comment, the Court denied an unusual request — a petition for a writ of mandamus — in the Gulf Coast global warming lawsuit, Comer v. Murphy Oil. This is the case, you may recall, where the Fifth Circuit lost its quorum as it was about to hear the en banc (whole court) appeal of a panel ruling that allowed the suit to proceed, resulting in the odd situation of the appeal being dismissed altogether and the district court decision to dismiss the lawsuit being the law of the case. Those complicated procedural twists would’ve made for an ungainly case, but the Supreme Court will hear a different global warming–related case, which I also previously discussed and in which Cato filed a brief. 
• The Court declined to review the constitutionality of a federal ban on felons’ possession of body armor (e.g., a bulletproof vest) — in a challenge arguing that these are issues properly left to the states, there being no interstate commerce connection. In ruling for the government, the Ninth Circuit (always them!) had applied a precedent that antedated the seminal cases of Lopez (1995) and Morrison (2000), where — as you know if you’ve been paying attention to the Obamacare lawsuits — the Court struck down the federal Gun-Free School Zones and Violence Against Women Acts, respectively, as beyond Congress’s power to regulate interstate commerce. Notably, Justice Thomas, joined by Justice Scalia in all but one footnote, filed a trenchant dissent from this cert denial (starts on page 33 here), saying that, ” Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence.… [The lower court’s] logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States.” Perhaps more notably, neither the Chief Justice nor Justice Alito joined Thomas’s dissent. (H/T Josh Blackman)
• The Court also declined to review the constitutionality of criminal convictions by non-unanimous juries — which are only allowed in Oregon (the place where this case originates) and Louisiana — denying a cert petition filed by UCLA law professor Eugene Volokh. The interesting angle here is that it’s not at all clear whether (1) all the rights protected by the Bill of Rights — here the Sixth Amendment requirement that jury convictions be unanimous — are “incorporated” against the states and (2) whatever incorporation there is goes through the Due Process Clause or the Privileges or Immunities Clause (which is important for courts’ consideration of the scope of constitutional rights). Recall that in McDonald v. Chicago, the Court extended the right to keep and bear arms to the states but could not agree on the jurisprudential methodology for doing so — yet still hinted that it would be open to revisiting these issues in a case relating to unanimous jury verdicts… but apparently not yet.
• The Court took off its argument calendar a case regarding the sovereign immunity of Indian tribes, specifically whether that doctrine prevents the enforcement of property taxes against those legally peculiar entities. This is a huge issue for federalism, state revenues, and a host of other policy matters — and is quite complex legally — but New York’s Oneida tribe, perhaps fearing what would have been an epic loss at the Supreme Court, here decided to waive its immunity claim and thus moot the case.

After all this “active non-action” — which may be how the government next tries to characterize the non-purchase of health insurance in its next attempt to somehow find constitutional authority for the individual mandate — the Court did release one opinion of note today. The opinion itself, in a technical bankruptcy case regarding the compelling issue of whether a debtor can take a car-ownership deduction if she does not make loan or lease payments, is not particularly noteworthy, but the author — rookie Justice Elena Kagan — is. And so, with 18 dry pages and over a lone dissent by Justice Scalia, the Kagan era has begun.