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Saturday, January 24, 2004::

Rights & Reason: Treating Cancer by Killing the Market 

My colleague Daryl Cobranchi points out this particularly irrational proposal from Delaware Governor Ruth Ann Minner's state of the state address:
Let me turn now to the opportunity we have to combat one of the most serious health issues facing Delawareans: cancer...We now know, thanks to research completed this year, that cancer victims without health insurance receive less than 60 percent of the health care that cancer patients with health insurance get. This means that health insurance for cancer victims can be the difference between life and death...I am asking the General Assembly to make Delaware the first state in the country to guarantee health insurance for every person in the state diagnosed with cancer. Some will say, “no other state has done it.” To them I say, it’s about time that someone did, and Delaware will lead the way.
Daryl points out that "singling out a single class of diseases is the obvious first step to universal health coverage." But there's another danger: If a state government makes insuring cancer patients a government policy, than the state will also seek to reduce its insurance costs—i.e. risks—by targeting any behavior that may cause cancer. We've already seen this happen with tobacco. State governments justified their extortion of cigarette makers by pointing to the large "public health" expenditures treating illnesses with some connection to smoking. This same strategy is now being pursued by trial lawyers against food companies—fattening foods increase the risk of heart disease and diabetes.

Of course, advocates of state power never stop to consider the idea that ending state subsidies for risky behaviors (such as overeating and smoking) via health insurance would cause individuals to take more responsibility for their own behaviors. Personal responsibility, however, is an anathema to the regulatory crowd, since it implies people can act to affect their own lives without state intervention.

And yes, I realize that many cancer patients do not engage in an identifiable risk behavior that causes their cancer. But the personal responsibility principle still applies. A man's need does not create a right to demand others help him. But when a disease affects a wide section of the population, a market will arise for financing research and treatment. Indeed, one of the consequences of government-directed healthcare research is that diseases are prioritized according to political pull rather than objective need. Rarely will you hear a politician propose a cut in AIDS research to fund research on prostate cancer, even though the former is fully preventable in most cases.

::: posted by Skip at 1:22 PM | donate | link | |

Friday, January 23, 2004::

Sports: A Bronx Cheer for Brooklyn 

The owners of the New Jersey Nets agreed today to sell the team to a group headed by Brooklyn developer Bruce Ratner, who will move the team to an arena yet-to-be-built in Brooklyn. My response to the return of professional sports to Brooklyn? Moral condemnation. I have nothing against the borough, but no city deserves a franchise when they trample on private property rights to get it:
The arena is merely one part of an ambitious development plan crafted by Ratner. The well-known developer built the MetroTech Center in Brooklyn, home to the city's fire department headquarters, along with banking and other offices.

The 19,000-seat arena would sit amid thousands of apartments, hundreds of thousands of square feet of shopping space and more than 2 million square feet of offices. Most of the $2.5 billion project would sit atop a Long Island Railroad yard owned by the Metropolitan Transportation Authority, a state agency controlled by Pataki.

From the state, Ratner needs both air rights and a condemnation power to take nearby homes and businesses. The developer estimates about 150 homes would be affected, although neighbors fear the number would be higher.

Residents of the upscale neighborhood of Prospect Heights, which adjoins the site, have promised to sue to block what they said would be an unconstitutional use of the government's eminent domain power for private rather than public benefit.

An MTA official said Ratner had yet to formally approach the agency and it was far from certain that the agency would sell him the air rights, let alone provide them at less than market price.

The state's role could allow Ratner to avoid much of the city's lengthy and stringent land-use approval process. Opponents charge that's one of a number of advantages bestowed on Ratner because of his political connections.

Ratner has held high-level positions in two mayoral administrations, and was once appointed by Pataki to study the possibility of luring the Dodgers back to Brooklyn.
The MTA official is either dumb or lying. New York State routinely seizes private land for resale to favored private interests at below-market value. Many of us are still smarting over the state's seizure of private buildings to construct the New York Times' new headquarters. If Ratner doesn't get his way, it will only be because he didn't curry enough favor with the right officials. But I suspect Governor Pataki and Mayor Bloomberg will roll-over without much resistance.

::: posted by Skip at 3:39 PM | donate | link | |

Antitrust News: Andrx on the Clock 

Today the Supreme Court's justices are privately conferring to decide the fate of several petitions for certiorari, including the one in Andrx Pharmaceuticals v. Kroger Co. et al. CAC previously filed an amicus brief in support of Andrx's petition, which seeks to overturn a Sixth Circuit ruling requiring settlements in patent litigation to be subject to a "per se" antitrust rule. This means a settlement between private parties automatically violates antitrust law if third-party consumers object. The Sixth Circuit's ruling has already been disputed by the Eleventh Circuit, which ruled patent litigation settlements are subject to the (allegedly) lower "rule of reason" standard in antitrust challenges.

The Court is expected to issue an orders list on Monday at 10 a.m., at which time we should learn the fate of Andrx's petition.

::: posted by Skip at 2:32 PM | donate | link | |

Philosophy, Culture & Politics: The Philosophic State of the Union 

Skip Oliva takes a philosophic look at President Bush's State of the Union speech today at Initium.

::: posted by Nicholas Provenzo at 11:34 AM | donate | link | |

Rights & Reason: Bush Lies on Health Care 

John Kerry’s stump speech focuses on the “right” to health care—just eliminate the “creed of greed” and the profits of HMOs and drug companies, and everyone can have all the health care they’re entitled to. Ted Kennedy, in support of his man Kerry, wants to force private businesses to fully subsidize their employees’ health costs. It’s nice to see the left never learns and never apologizes for its ways.

It’s hard to get too upset over this. Democrats are Democrats, after all. What does annoy me, however, is this passage from the president’s State of the Union address:
A government-run health care system is the wrong prescription. By keeping costs under control, expanding access, and helping more Americans afford coverage, we will preserve the system of private medicine that makes America’s heath care the best in the world.
This statement is a complete lie. America already has a “government-run health care system.” It’s called Medicare. And managed care firms are not capitalist entities. They’re byproducts of the government’s efforts to forcibly control health care prices. The president’s prescription drug program will eventually lead to similar price controls on pharmaceuticals.

Bush is only quibbling with the system’s form, not its substance. His administration prosecutes any physician that tries to independently negotiate prices with HMOs as an antitrust offender. He accepts the government’s basic role in “expanding access” and controlling costs. And he’s promised to veto any substantial changes to the prescription drug benefit. Where exactly is the free market in all of this?

Bush’s apologists will point to the health savings accounts provision of the prescription drug bill. That’s a trinket, nothing more. The HSA is a symbol of this administration’s approach to health care: The government will allow you to keep some of your money to pay for your own healthcare expenses. How thoughtful. But if the president was genuinely committed to “private medicine,” he would, at a minimum, allow all healthcare expenses to be deductible from an individual’s income tax. He would also permit individuals to opt-out of paying for or using the Medicare system. But don’t hold your breath waiting for that to happen. You’re more likely to see free market reforms from John Kerry than George Bush.

::: posted by Skip at 12:37 AM | donate | link | |

Thursday, January 22, 2004::

Rights & Reason: Gay Marriage, Inc. 

I’ve just completed a lengthy review of the State of the Union, which will be posted at Initium later tonight. But while this topic is fresh in my mind, I wanted to comment here on President Bush’s opposition to gay marriage. As in the past, Bush’s policy is to “defend the sanctity of marriage” from any institutional change, even if that means amending the Constitution. The conservative argument has always been based on the principle that marriage is the single indispensable building block of society, and that permitting homosexuals to marry one another would destroy the institution’s fundamental value.

Bush uses the term “sanctity” for good reason. Like most conservatives, he views marriage as a God-based institution, a product of Biblical command and tradition. But in truth, marriage is a man-made institution. This shouldn’t come as a shock to anyone, yet this objective fact is always ignored by gay marriage opponents. Indeed, different societies structure marriage differently. Islamic societies permit polygamy. Many societies promote arranged, non-consensual marriages. Even some western European countries forbade divorce until recently. In the United States, the differences in marriage among states is generally cosmetic—Nevada has no waiting period, for example—but still the institution itself remains a product of man’s creation and control.

Nick and I were discussing this question last night, and the analogy we developed was that of a corporation. The corporation is a fundamental institution of capitalism—it provides a stable mechanism for raising capital and organizing individuals into large groups—but this does not make the corporation a sacred or infallible institution. The same is true of marriage. It is a man-made institution that provides a stable mechanism for raising children and organizing individuals into families. This does not, however, mean that permitting new marital structures will endanger existing ones. Gay marriage is no more a threat to existing marriage than LLCs are to publicly-traded corporations, even though the LLC is a relatively new invention of law.

::: posted by Skip at 2:50 PM | donate | link | |

Rights and Reason: The right to bear arms 

A proper government receives its power from the people; governments are delegated the individual's right to retaliatory force and the government places that right under the rule of law. The better a society is able to place the right to retaliatory force under the rule of law, the better and more efficiently men are able to resolve their disputes peaceably.

There is one element to the right to retaliatory force that can never be delegated, and that is the right to take immediate deadly action against an immediate deadly threat. Yet this obvious expression of the individual's right life is inconsistantly protected, both in terms of whether the individual is legally permitted to carry a firearm, and what kind of firearm he may carry.

I hold that an individual ought to be able to legally carry weaponry sufficient to protect himself from any individual in his immediate view. I hold that any man-portable direct fire weapon with a range within the bounds of unaided human sight should be available to the citizen. I see no reason to draw a distinction between semi-automatic fire and automatic fire, or the caliber and shape of the weapon. An individual has a fundamental right to protect himself from another individual within his sight.

I hold the right to respond to any other threat is the province of government. Threats of a larger nature are properly 'nationalized' and placed under objective rules and controls. No man, for example, may a man own a tank; such weaponry is beyond what one needs to respond to an immediate threat and there is no legitimate justification for an individual to own such a weapon. Nor may a man own a flamethrower, which is an indiscriminate weapon inappropriate for self-defense. Nor may a man own a nuclear bomb; such weapons are devices used by nation-states against other nation-states, and their control must be placed under strict guidelines and limited to only certain uses.

Now consider governments that place an outright bans on the legal possession of firearms, such as the District of Columbia. When the law banning firearm ownership in the District was first enacted, a suit was brought against the police department for failing to provide immediate policing on the level that would be available to an individual if he was permitted to be armed in self-defense. Amazingly, the courts ruled that the government was under no such obligation to provide immediate protection to its citizens. There, citizens are left literally naked against immediate threats against their life and property, and the deplorable crime rate in the District is the telling consequence of such a view.

Frankly, I find it appalling that such misguided logic is allowed to stand. Those of us who choose to arm ourselves do so because we value our lives. Accordingly, I say this: we must give equal vigor to defending the freedom of action necessary to sustain our lives as well. And just as we would not hesitate to confront an attacker, we must not hesitate to confront our leaders when they fail to defend our rights. The tools may be different, but the intent must always remain the same.

::: posted by Nicholas Provenzo at 1:34 PM | donate | link | |

Antitrust News: Cato on Antitrust 

Next Thursday the Cato Institute is holding a policy forum entitled "Antitrust in the High-Tech Marketplace: The Real Irrational Exuberance?" Here's Cato's description of the event:
The Department of Justice's Antitrust Division appears prepared to block Oracle's proposed $7.3 billion merger with PeopleSoft on the grounds of monopoly power in "business enterprise software." Similarly, a merger between EchoStar and DirecTV was halted. State attorneys general and even the European Union are increasingly scrutinizing mergers in the technology sector. Clearly, the Microsoft settlement did not end antitrust activism.

If Washington policymakers conclude that the technology marketplace is incapable of policing itself and that corporate breakup or aggressive market-definition policies qualify as sensible public policy, then what government intervention in the technology sector markets is off limits? Many economists object to such intervention in new business models—especially when the theories behind intervention are themselves highly questionable.

What does the future hold for technology companies and the competitive environment? Join us as our panelists analyze and debate the broader role of antitrust policy in the high-tech economy and a possible reform agenda.
The FTC has been particularly aggressive during the Bush administration in pursuing technology companies based on questionable market definitions. This is not surprising, given that the FTC's antitrust chief was, in the private sector, one of the lawyers behind the original Microsoft case. And if you think the White House considers aggressive antitrust enforcement to be in conflict with their call (reiterated in Tuesday's State of the Union address) for reduced business regulation, than you don't understand conservatives. In the minds of "free market" conservatives like FTC chairman Tim Muris, antitrust is the alternative to regulation, since it acts on a case-by-case basis without articulating any hard-and-fast principles.

::: posted by Skip at 9:41 AM | donate | link | |

Wednesday, January 21, 2004::

Rights and Reason: Virginia's concealed carry law 

I don't write much about local issues, but ROR reader Mike Walker passed this story on to me and I could not resist.

In the 1990's, the Virginia legislature guaranteed the recognition of its citizens' right to self-defense via its Concealed Handgun Permit law. That law guarantees a Concealed Handgun Permit to citizens who have not otherwise forfeited their rights to gun-ownership and who have proven their ability to effectively use a handgun with certified training.

Since the enactment of the Concealed Handgun Permit system, over 100,000 permits have been issued in Virginia. In that time, permit holding Virginians’ have been spared from violence and death at the hands of thugs, murderers and rapists because they were armed. The vast majority of these acts of self-defense do not involve even a single shot fired; the mere fact that victims were able to show that they were capable of defending themselves was enough to deter an attacker. And contrary to the predictions of the opponents of concealed carry, Virginia has not turned into the "Wild West" after adopting Concealed Handgun Permits—it has turned into a place were lawful citizens can live their lives with the ability to protect themselves from violence and criminals.

Yet despite all the success of the Virginia Concealed Handgun Permit law, there is a flaw in the law that threatens the safety and security of permit holders. The current law denies the permit holder the means to defend himself on his way to, at, and coming from, restaurants serving alcohol. The current law also encourages the leaving of handguns in cars while their owners enjoy a good dinner, leaving lethal weapons vulnerable to theft.

The premise that the current law prevents persons from carrying concealed weapons in alcohol-serving establishments is true only insofar-as it prevents law-abiding citizens from doing so. Criminals have been, and will keep violating this law now and in the future, and by their nature, they will not be caught nor punished.

The fact is that one’s right to use a firearm in defense against a deadly threat does not disappear just because one has entered a restaurant. If the legislature wishes to protect the people from permit holders using firearms under the influence of alcohol, it ought to prohibit the specific conduct of the permit holder, and not his mere location.

Using a firearm in self-defense ought not to be subject to arbitrary restrictions. The prohibition against alcohol and guns is common sense. The prohibition against guns and restaurants is not.

Virginia Senate Bill SB579 would correct this deficiency, and I urge Virginia ROR readers to support it.

::: posted by Nicholas Provenzo at 5:48 PM | donate | link | |

Politics: Sacking Tom Brady 

I will post a lengthy analysis of the State of the Union on Wednesday afternoon. I'm going off the written copy published by the White House, since I make a habit of not watching these speeches on television. But several people who watched the broadcast mentioned the camera cut to New England Patriots quarterback Tom Brady, sitting in the first lady's box, when the president called on professional sports leagues to "get tough" on steroid use. If I'm Patriots owner Bob Kraft or NFL Commissioner Paul Tagliabue, I'm on the phone right now screaming at the top of my lungs at the White House communications office. This was a total setup. They invited Brady to attend the speech, and they knew that the minute steroids were mentioned the camera would find their honored guest. Of course Brady has never done anything to cause anyone to doubt his physicial and personal integrity, but that matters little when the White House needs to score cheap political points by "getting tough" with those evil professional sports leagues. I never realized the axis of evil included the New England Patriots. (Well, it does if you live in Oakland, but that's another story...)

::: posted by Skip at 12:14 AM | donate | link | |

Tuesday, January 20, 2004::

Idiotic Quote of the Day: John Kerry 

This from the mouth of John Kerry, the haughty, French-looking Senator (who by the way served in Vietnam) on CNN TV (as reported by The Command Post): "Healthcare is not a privilege for the wealthy and the powerful ... it is a right for all Americans, and we will make it available to all Americans."

Let's see here--I exist and I am an American, therefore, I deserve my health care to be provided for me. Yet the wealthy and powerful will not respect my rights. I shall vote for John Kerry and he will break them.

If John Kerry does in fact win the Democratic nomination and he goes on to defeat George Bush in the general election, with logic like that, I say the people will fully deserve his presidency.

::: posted by Nicholas Provenzo at 6:06 PM | donate | link | |

Rights & Reason: Popular Elitism 

Howard Dean offered this bizarre assessment of the nation’s education policy in today’s Wall Street Journal:
"Question: Do your children attend public or private schools?

"Answer: Public schools. Public school education in this country is excellent. I'm tired of right-wing politicians bashing the public school system whose failures are often due to lack of attention to early childhood education between the ages of zero and three."
Dean’s answer conveys two messages: First, parents are to blame for any failures of the public school system, because teachers are government employees, and therefore presumptively correct. Second, the public school system will never be completely successful until all children—starting at birth—are under government supervision. Both messages are consistent with a totalitarian philosophy. They also remove any veneer of “populism” from Dean’s candidacy. He is an elitist, pure and simple, who believes the true enemies are those who question the morality of the state’s intervention into the personal affairs of man. While Dean is not quite a Nazi, his use of the term “right-wing politicians” is synonymous with Hitler’s use of the Jews as a scapegoat.

Elitists like Dean seek power to impose their ideology on the public. Populists, by contrast, merely exploit the passions of the day to curry favor with the electorate. Populism qua populism is morally neutral; it can produce good or bad results depending on the ethics of the people. But political elitism is always dangerous, because it is only practiced by those who favor a form of government based on principles other than individual rights and capitalism.

::: posted by Skip at 3:38 PM | donate | link | |

Monday, January 19, 2004::

The Courts: Pickering & Parliamentary Law 

Conservatives have applauded President Bush’s recess appointment of Judge Charles Pickering Sr. to the U.S. Court of Appeals for the Fifth Circuit. Leftists, conversely, have condemned the White House’s end-run around the Senate filibuster that’s stalled Pickering’s nomination for nearly four years. I have to say, I can’t support the president’s decision here, not because I oppose Judge Pickering, but because this is a poor use of the recess appointment power.

A couple years ago, Howard Bashman and I got into a blog-debate over the constitutionality of recess appointing federal judges. Bashman argued that Article III judges must have life tenure, and that the recess appointment’s limited tenure creates an irreconcilable conflict with that requirement. I conceded the conflict, but argued the Framers clearly gave the president the ability to make any appointment via the recess clause, without regard to the other provisions of the Constitution. In the context of the early American government, this made perfect sense: Congress was generally in session only from December thru March, leaving as much as nine months between Senate sittings. Most federal district courts only had one judge in those days, making recess appointments a necessity to ensure a functional judiciary.

If the Fifth Circuit were in immediate need of a judge, then President Bush would be acting responsibly in making a recess appointment. But such an appointee should either be a temporary judge who will not be nominated for the permanent position, or a permanent nominee that the Senate is unlikely to oppose. Using recess appointments to exert political leverage over the Senate is irresponsible, albeit constitutional. Certainly this does nothing to mollify existing opposition to Judge Pickering.

But what of the fact Pickering’s nomination has not come to a vote because of the Democratic minority’s filibuster? Republicans argue this is an unconstitutional act that justifies the recess appointment. I disagree. The Constitution directs each chamber of Congress to adopt its own rules of proceeding. The filibuster is permitted under Senate rules, subject to a three-fifths vote invoking cloture. By itself, this is not a bad rule. The Senate traditionally permits unlimited debate to ensure the minority’s voice is not stifled. In recent decades, however, the Senate has used the filibuster to prevent debate rather than to ensure it. Now the mere threat of a filibuster prevents consideration of a nominee or legislation. This practice violates good parliamentary practice, but it is still constitutional, because the Senate can end this practice whenever it wants. That the Senate has not done so is a testament to the lack of leadership from the Republican majority, which could exercise its majority prerogative to simply bring Pickering’s nomination to a vote.

This is what’s known in Washington circles as the “nuclear option”, because it means ignoring the Senate rules’ own provision that no rule can be amended without the consent of two-thirds. Many scholars, notably Douglas Kmiec, argue the two-thirds rule is actually unconstitutional, because it binds succeeding senates to existing rules without permitting a simple majority to change them. I agree with this reasoning. If a simple majority simply ignored the filibuster rule—on grounds that there’s no actual debate taking place over Pickering’s nomination, merely obstruction—this decision would be sound parliamentary and constitutional law. Yes, the Democrats would object, but the presiding officer (a Republican) would overrule that objection, and it only takes a majority to sustain the chair’s decision on appeal. This would end the deadlock over judicial nominations in an instant, and if the Democrats are unhappy, then they can take it to the voters and ask for a majority of the Senate and the White House back.

::: posted by Skip at 1:32 PM | donate | link | |

Sunday, January 18, 2004::

Politics: The Real Campaign 

Below I discussed what was likely to happen in the presidential race. The comments to that post focus on whether President Bush should be reelected. On this question, I am largely agnostic. After following the race for much of 2003, I’ve concluded the 2004 presidential campaign is largely an exercise in political theater without any major ideological battles.

The conventional view is that presidential elections are important. But history tells us this isn’t always the case. The 1984, 1988, and 1996 elections presented idea-free campaigns. The 1976 election was closely contested between two candidates of similar ideas, with only the residue of Watergate dividing popular loyalties. And of the three most recent elections where the White House changed parties—1980, 1992, and 2000—none resulted in much permanent change to the post-New Deal welfare state. The only clear change brought by these three elections was a temporary shift on the issue of taxes. In 1980 and 2000, Republican administrations made short-term tax cuts without cutting spending, and in 1992 a Democratic administration raised short-term taxes without cutting spending. The result is basically the same: A higher percentage of the U.S. economy goes to support government programs.

The most important election of the past 30 years came in 1994, when Republicans won control of Congress and a majority of state governorships. This victory had the potential to undo a great deal of the damage done by a century of statism. But the victory proved short-lived. Congressional Republicans abandoned much of their ideology after the government shutdowns of 1995, and Republican governors spent the budget surpluses of the 1990s to get themselves reelected.

The war in Iraq makes the 2004 election appear more important than it is. In truth, the Bush administration did little more there than cleanup the mess left by the past two administrations. Beyond the decision to go to war, which was correct, this president has shown little leadership in actually managing the postwar situation. George Bush is a checklist manager: He sets a limited agenda and sticks to it, with no understanding of the underlying principles or interrelated concepts affecting his agenda. This style of leadership rarely works in the long term.

But when you take Iraq off the table, you see the presidential race is nothing more than a beauty contest. Thus, I plan to cast a blank ballot for president this year (though I still plan to vote). Where our attention should be cast is rebuilding Congress. The Republicans will enjoy a majority in the House for some time, thanks largely to partisan redistricting. The challenge now is to upset the incumbent-protection racket that prevents genuine competition for most House seats. If we can put even a dozen pro-individual rights Republicans in the House, we can start to build a platform for a radical capitalist agenda. At an absolute minimum, a dozen good Republicans can prevent the corrupt Republicans from inflicting any more major damage, such as the Medicare bill or campaign finance “reform”.

The presidency is the show-pony of politics today. Congress is the substance. The sooner people understand this, the sooner we can get to work rebuilding America.

::: posted by Skip at 3:16 PM | donate | link | |


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