October 19, 2006 11:36AM

Lemon Lawsuits

Sunkist Growers, the wholesome name you probably associate with that morning swig of orange juice, has stolen a page from the playbooks of its more traditionally protectionist agricultural brethren. 


Last month Sunkist filed an anti‐​dumping petition alleging that Argentine and Mexican producers are selling lemon juice in the U.S. market at “unfairly low prices.” Heavens! The petition alleges dumping margins in excess of 100 percent, which means that Sunkist believes the U.S. prices of lemon juice from Argentina and Mexico should be more than double what they are today. (Maybe the U.S. prices of U.S. lemon producers would be half as much if our restrictive immigration policies didn’t drive up the cost of labor at harvest time.)


In a carefully crafted petition designed to minimize damage to Sunkist’s public image, only lemon juice used as an ingredient in the production of other products (i.e., not concentrated lemon juice or lemonade purchased directly by consumers) is subject to the anti‐​dumping investigation. 


Sunkist notes in a press release that: “The anti‐​dumping duty, if assessed, will not result in increased prices to consumers.” Obviously, that’s a lie. What Sunkist really means is that consumers won’t be able to attribute to Sunkist’s litigation the higher prices they will have to pay for the dozens of everyday food items that contain lemon juice. The prices of soda, fruit juice, ice cream, cake mix, seasonings, salad dressings, microwave dinners, frozen vegetables, hair coloring, candy, chewing gum, cough syrup, and many other items will be affected by any prospective anti‐​dumping duties. 


And, as has been the case in the sugar‐​using industries, lemon juice‐​consuming industries will have greater incentive to move their operations to Canada or Mexico or any number of other countries where the price of lemon juice is market‐​based. Whenever the supply of upstream products is choked off by protectionist measures, jobs, revenues, and profits in downstream industries suffer. And contrary to Sunkist’s feeble rationalization, consumers flip the bill.

October 19, 2006 10:41AM

Why the Controversy Will Continue

Good op‐​ed in today’s Washington Post entitled “The Unlearned Lessons of Abu Ghraib.” The author, Christopher Graveline, was an Army JAG officer who participated in the prosecution of 10 soldiers for detainee abuse at the Abu Ghraib prison. Graveline writes: 

President Bush has signed into law Congress’s latest attempt to clarify our country’s position on proper treatment of detainees and the boundaries of legitimate interrogation techniques. Unfortunately, this legislation demonstrates that both the administration and Congress have failed to learn important lessons from what Bush described as the “biggest mistake that’s happened so far” in Iraq: the detainee abuses at Abu Ghraib.


By dissociating potential criminal responsibility from overly aggressive interrogation practices that could be classified as “minor” breaches of the Geneva Conventions, and setting up a situation in which different interrogation practices can be used by our military and the CIA, our national leadership has ensured more abuse scandals. …


The new law grants too much latitude in an area where precision and oversight are critical. If confusion reigned in Washington during the past several weeks over whether waterboarding or other, “harsher” techniques would be permissible under the legislation, imagine the results when our agents and service members are faced with the same question halfway around the world and years removed from this debate — especially if the threat of criminal responsibility is gone.

To illustrate that point, compare Scenario A with Scenario B below.


Scenario A: This is a random misdeed by U.S. personnel and it is illegal.

Media Name: iraqprisoner3.jpg

In this scenario, the man under the hood is a prisoner in U.S. custody. But this is a rogue operation against the prisoner that was not authorized by the president. Incidents like this will be investigated – and whoever did this will face prosecution.


Scenario B: This is Long‐​time standing and it is permissible.

Media Name: iraqprisoner3.jpg

In this scenario, the man under the hood is also a prisoner in U.S. custody. Long‐​time standing is an interrogation technique reportedly used by the CIA. And President Bush says the Military Commission Act will revive the CIA program. Thus, if this tactic was indeed authorized by the president, there is no need for any investigation in this scenario. The American interrogators were just doing their job.


This Washington Post editorial sums it up well. President Bush alludes to “tough tactics,” but he will not publicly identify what will be done. Bottom line: tough tactics will be used – and then there will be more media reports of torture, and then, in response, the administration will restate its opposition to torture. The Military Commission Act has done little to clarify the rules and to settle the controversy surrounding the treatment of prisoners in U.S. custody.

October 18, 2006 3:34PM

A Debate on the Romney Health Care Plan

National Journal has just made available the transcript of its September forum on Massachusetts Governor Mitt Romney’s health care plan. 


At the event, 2008 White House aspirant Romney was on hand to give an overview of his plan, which requires that all residents of Massachusetts purchase health insurance.


After Romney’s talk, Cato’s Mike Tanner provided the lone voice for limited government as he squared off with supporters of the plan, including a scholar from the Heritage Foundation and one of the Governor’s advisors.


Noting the government’s inability to ensure that all residents of Massachusetts have purchased health insurance, Tanner quipped, “The governor suggests that people are going to have to put on your tax return that you had insurance. You can’t even get all the members of the state legislature to file their returns.”


For more information on the shortcomings of the Romney plan, click here.

October 18, 2006 2:25PM

Lemon Laws

My dad once told me that, when buying a car, check three boxes: (1) Do you need the car? (2) Is the car too expensive? (3) Does the car work?


This paternal wisdom is generally applicable not just to cars, but to all sorts of things – like the Virginia Marriage Amendment. The Arnold and Porter memo that David linked to yesterday demonstrated that the vaguely worded amendment is destined to generate a great deal of costly litigation and may possibly surprise voters by curtailing contract and property rights of unmarried gay and straight couples. As such, it’s a bit like an overpriced, poorly maintained 1966 Mustang – overly expensive, liable to break down, with a not‐​insignificant‐​risk it will explode on impact.


Here’s one more reason to oppose it, even if you are a committed foe of gay marriage: There’s absolutely no need for it. Opponents of gay marriage suggest the amendment is needed to defend against “out‐​of‐​control” state judges, who might impose gay marriage on the Virginia electorate from the bench, like the Massachusetts Supreme Judicial Court did (so the standard conservative story goes) in Goodridge v. Department of Public Health.


Yet, there’s virtually no risk that will happen in Virginia. One, Virginia judges are elected by the reliably conservative state General Assembly, guaranteeing they will not stray very far from current enactable preferences of Virginia’s staunchly red‐​state voters. Two, the Virginia Supreme Court has consistently interpreted the Virginia Constitution’s narrowly worded anti‐​discrimination provisions (I say narrowly, because the Virginia constitution does not include a general equal protection clause at all. See Boyd v. Bulala, 647 F. Supp. 781, 786 (W.D. Va. 1986) (“The Virginia Equal Protection Clause contains no equal protection clause as such”)) to provide “no more” protection than has been recognized by the U.S. Supreme Court under the U.S. Constitution’s Equal Protection Clause. Wilkins v. West, 264 Va. 447, 467 (2002); Archer v. Mayes, 213 Va. 633, 638 (1973).


In this, Virginia’s constitutional precedents differ markedly from those of Massachusetts, where, prior to Goodridge, courts had long recognized that the broadly worded Massachusetts Constitution provides more protection for individual liberty than the federal Constitution. That means that if gay marriage is ever recognized in Virginia, it will be the U.S. Supreme Court and federal constitutional law that drive its recognition. Under the Supremacy Clause, no state constitutional amendment can defend against that.


As a result, the Virginia Marriage Amendment can’t plausibly be justified as a defensive amendment. To put it in my dad’s terms: its too expensive, it’s at risk of breaking down, and there’s no conceivable need for it. A lemon all around.

October 18, 2006 2:20PM

Watch Your Libertarian Language

Colleges often have to decide what their rules are about language that offends people. Is a professor’s criticism of affirmative action offensive to black students? Is a gay‐​rights group’s advocacy offensive to Christian or morally conservative students? And people can debate how to weigh free speech versus a nurturing atmosphere in a particular college.


But Marquette University seems to have reached new heights, or depths, in what it considers offensive. A graduate student there posted on his office door a pithy quotation from humorist Dave Barry:

“As Americans we must always remember that we all have a common enemy, an enemy that is dangerous, powerful, and relentless. I refer, of course, to the federal government.”

A strong opinion, to be sure. One that I’d bet is shared by many but certainly not all Americans. Apparently Barry’s sentiment is not shared by the chairman of Marquette’s philosophy department, who took it upon himself to take down the quotation and sent a department email declaring it “patently offensive.”


Offensive to whom? Surely not to any of the usual identity groups, ethnic or religious or sexual‐​orientation or gender or whatever. Nor does it use the four‐​letter words that might be inappropriate for a public space. Perhaps it’s offensive to employees of the federal government, or to those who have a great deal of respect and admiration for the federal government. But one would think that at a university it falls within the parameters of debate. And while Dave Barry writes more effectively and memorably than most philosophers, his statement still qualifies as humor or political commentary or both.


Marquette is a private university and is thus free under the First Amendment to regulate speech as it chooses. But if libertarian jests are “patently offensive” and subject to censorship at Marquette, it might want to note that in a new paragraph of its academic freedom guidelines and perhaps in the catalog provided to prospective students.

October 18, 2006 2:16PM

Google Office vs. Government “Request”

TechCrunch is a terrific blog covering new Internet products and companies. Edited by Michael Arrington, it’s a clearinghouse of information on “Web 2.0” — the agglomeration of innovations that could take online life and business through their next leaps forward.


In this recent post, TechCrunch briefly assessed some concerns with Google’s office strategy. Google has online offerings in the works that could substitute for the word processing and spreadsheet software on your computer — just like Gmail did with e‑mail.


And just like Gmail, documents and information would remain on Google’s servers so they can be accessed anywhere. This is a great convenience, but brings with it several problems, namely: 

The fact that unauthorized document access is a simple password guess or government “request” away already works against them. But the steady stream of minor security incidents we’ve seen (many very recently) can also hurt Google in the long run.

Arrington’s post goes on to highlight a series of small but significant security lapses at Google. If Google wants companies and individuals to store sensitive data on their servers, they have to be pretty near perfect — or better than perfect.


Then there is government “request.” Arrington makes appropriate use of quotation marks to indicate irony. Governments rarely “request” data in the true sense of that term. Rather, they require its disclosure various ways — by warrant or subpoena, for example, by issuing “national security letters,” or by making a technical “request” that is backed by the implicit threat of more direct action or regulatory sanctions.


On resisting government demands for data, Google has been better than most — an awfully low hurdle. It opposed a subpoena for data about users’ searches earlier this year. But Google has a long way to go if it wants people to believe that leaving data in their hands does not provide easy (and secret) access to the government. Indeed, thanks to the recently passed cybercrime treaty, doing so may well provide access to foreign governments, opening the door to corporate espionage and any number of other threats.


At a meeting of the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee in San Francisco last July, I asked Google Associate General Counsel Nicole Wong what the company is doing about its ability to protect information from government “request,” given the sorry state of Fourth Amendment law with respect to personal information held by third parties. Her answer, which I must summarize because the transcript is not yet online, amounted to “not much.” (Eventually, the transcript should be linked from here.)


Google has issued a “me too” about an effort to invite regulation of itself. That project is going nowhere, but if it did get off the ground, it would do nothing about government access to the information that Google holds for its customers. 


Government access to data is a big flaw in Google’s nascent effort to move into online productivity services.

October 18, 2006 11:42AM

Newsflash: Politician Does Right Thing (Twice)

At Cato, we often point out when politicians do something wrong — and who can blame us given the target‐​rich environment? But we should also salute the rare politician who does something right (more or less). So let’s give two tips of the hat to New York mayor Michael Bloomberg for choosing not to inflame two recent situations that could easily have been exploited for political gain.


Last July, parts of Queens lost electricity for more than a week because several of the borough’s feeder cables failed, leaving about 100,000 people without power. During and after the blackout, several NY politicos piled on Consolidated Edison, which is a tried‐​and‐​true political tradition in New York City. But Bloomberg broke with tradition, publicly refusing to bash the utility. Instead, he worked to lower the political temperature, and he urged others to do the same.


Now, Bloomberg is also declining to bash yesterday’s announced $5.4 billion sale of Stuyvesant Town and Peter Cooper Village, two massive middle‐​income apartment complexes in Manhattan. Together, the complexes comprise more than 11,000 units in 110 buildings covering some 80 acres of the most lucrative real estate on the planet. The sale is reported to be the largest real estate deal in American history.


As the impending sale became public, many New York politicians and political activists ripped the deal because of fears of “gentrification.” But Bloomberg, to his credit, said simply, “MetLife owns it, and they have a right to sell it.”


Of course, housing affordability is a legitimate public concern. But the much‐​ballyhooed policy prescriptions — e.g., rent control, affordable housing mandates, “inclusionary zoning” — are window dressing at best and counterproductive at worst.


Fortunately, there is a far‐​superior policy response that also is market‐​friendly: government need only remove the restrictions preventing the market from satisfying the demand for affordable housing. This is argued well by Harvard economist Ed Glaeser and Wharton School economist Joe Gyourko in the Fall 2002 issue of Regulation.


If Bloomberg really wants to make my day, he should read Glaeser and Gyourko’s article and allow developers to build as much housing as the New York market demands.