Wednesday, December 31, 2003

The War: What's wrong with this picture?

Here's a New Year's Resolution: Rather then witness the image of the Statue of Liberty under the barrel of a machine gun, we ought to endeavor to give the capitals of Iran, Syria, North Korea, and Saudi Arabia the benefit of such a sight.

This picture concretizes the failure of the Bush Administration's policy of "homeland defense" in no uncertain terms. Rather than pacify the governments that make terrorism against the US possible, rather then pacify their skies, the Bush Administration is pacifying our skies.

Yet can such a strategy hope to work? For example, could a policy of securing American borders and searching every container ship as it enters American harbors stop an attempt to smuggle a nuclear bomb into America better then destroying the facilities capable of producing such a bomb? I doubt it.

If there are enemies who aim to attack us, every effort ought to be placed on destroying them before they can even think about approaching our borders. I wonder though, even after the horror of 9/11, if the US has the stomach to truly fight all its enemies.

Tuesday, December 30, 2003

Antitrust News: The Atlantic Divide

Earlier this month the European Court of First Instance—the rough equivalent of the U.S. Court of Appeals for the D.C. Circuit—upheld a $8.4 million fine imposed in 1999 against British Airways. The European Commission found the airline guilty of antitrust violations, specifically that the company “abused its dominant position” by offering rebates to travel agents that sold the most British Airways tickets. Under European antitrust theory, such rebates are illegal because it’s just too darn hard for other airlines to compete against the dominant firm.

This case exposes a key difference between European and American antitrust theory. In the U.S., regulators focus on short-term consumer prices. If a particular action doesn’t substantially raise prices, the FTC and DOJ will usually let a company be. Europe, in contrast, considers any dominant firm to be inherently suspect, and thus any action they take to assert their economic dominance—regardless of impact on prices—is an antitrust violation. Put another way, U.S. regulators consider their mission to protect the competitive process, while European officials want to protect specific competitors from dominant firms. That’s precisely what happened to British Airways, as the case against them was brought by rival Virgin Atlantic.

The European antitrust view will become more problematic for the U.S., as American firms are targeted with greater frequency by Brussels. Microsoft is one such target. Another is Coca-Cola, which runs a rebate program similar to the one that got British Airways in trouble. The Bush administration has made a priority of increasing international antitrust cooperation. But will this cooperation force U.S. officials to adopt the more rigid, anti-capitalist stance of European antitrust regulators? Recent history suggests it will. The White House has allowed its own antitrust regulators to expand their scope and authority without oversight, and there is little indication the administration will stand up against European aggression in this area.

The Culture: All Children Left Behind

Yesterday’s Wall Street Journal reported that the “No Child Left Behind” law has had an interesting (and for my money, predictable) consequence: States are cutting back on funds for gifted and talented programs to focus on making all students “proficient” in basic skills. NCLB doesn’t reward students for excelling, only for minimum competence. And because it’s a federal mandate, NCLB leaves little room for local variation or experimentation.

Now, the cuts to gifted and talented programs should not alarm or upset anyone. Such programs are inherently incompatible with public education, which must emphasize collective mediocrity over individual achievement in order to survive. Now if that concept upsets you, then you shouldn’t support government-run schools. But you can’t have it both ways: Demanding excellent achievement for some children while allowing others to languish. Government schools are about egalitarianism. Or, put another way, they’re about “socialization”.

The fundamental error in education policy is the confusion between socialization and education. The two are not coterminous. When men interact in a society, it is for two primary reasons: knowledge and trade. There are of course other purposes, such as friendship and love, but knowledge and trade form the foundation of social relationships. Young children, however, have not yet developed intellectually to the point where they can fully grasp those concepts.

The educators will tell you “socialization” helps children learn in a group setting. But this is a false identification. Nobody learns “in” a group. They can learn from a group, particularly those individual members with existing knowledge. But there is no group consciousness that can substitute for the work of an individual mind.

In a group, children do not form a society based on the exchange of knowledge and trade; they form a society based on peer pressure and force, such as bullying. William Alford, a student at George Mason University, recently offered these insights into this subject:
Children, Dr. Graham tells us, if left to devise their own society, would most likely come up with something resembling William Golding’s The Lord of the Flies. In other words, an 11-year-old’s social milieu is “crude… stupid… [and] savage.” Given the similar authority figure-to-inmate ratio and the detachment, it also resembles prison. G. Gordon Liddy, having spent five years in federal ‘correctional institutions,’ often says on his radio program that the prisons are actually run by the prisoners.

Children are not intrinsically this way, Dr. [Paul] Graham argues. Mongol teenagers or Renaissance apprentices probably did not engage in such bullying behavior because they were busy. Suburban teens are, he continues, instead warehoused in schools mostly for baby-sitting and being drilled information that is perceivably less and less relevant to anything applicable in the real world. Now that children are not working alongside adults as they learn their crafts, they have little identification with [or respect for] the adult world and thus devise their own:
“Since the group has no real purpose, there is no natural measure of performance for status to depend on. Instead of depending on some real test, one's rank ends up depending mostly on one’s ability to increase one's rank. It’s like the court of Louis XIV. There is no external opponent, so the kids become one another's opponents in an inexorable zero-sum competition.”
It is important to point out that the child specialists [in the cited and other researched materials] do not consider bullying to be ‘normal’ -- and certainly not acceptable. They almost universally characterize it as destructive unnecessary behavior that must be actively curbed – some even naming it as a disorder. Although the professional literature certainly demonstrates a clear grasp of what causes bullying, solutions are not as definitive. There are vague recommendations to mobilize parents and teachers to combat the problem. There is little evidence offered of any effective answers.
Bullying, like much of the drug abuse problem among teenagers, can be traced directly to the existence of government schools. This is an admission no government official will ever make. Even a Republican president like George Bush has no political interest in challenging the system’s fundamental premises. Instead he focuses on isolated concretes like raising test scores, themselves a somewhat arbitrary measure.

The biggest threat to the government education establishment is not any politician, but the people who’ve rejected the system—the home educators (I personally dislike the word “homeschooler,” since education and schooling are distinct concepts). Students taught at home by committed parents aren’t “left behind”; quite the contrary, they’re far ahead of their government-institutionalized peers. This is why in many states the establishment is trying to pass new laws to stunt the growth and success of home education. Again, we’re told these laws are necessary to ensure “socialization”. But as William Alford notes, both socialization and education prosper outside of the government’s watchful eye:
In this writer’s not-so-humble opinion, child socialization and education are in many ways incompatible, especially for juveniles. These should therefore be separate experiences, wherein the child is individually educated according to his/her abilities. Socialization should be carefully supervised, with the parents and other concerned adults deciding which children will be interacting with each other and under what circumstances -- not a government-run institution staffed by the likes of NEA members.
(Thanks to Daryl Cobranchi, a proud home educator, for pointing me to the Alford article.)

Monday, December 29, 2003

Capitalism & Law: The Highest Court in the Land

The Supreme Court’s workload has been decreasing for years under Chief Justice William Rehnquist. Steve Chapman, writing in Saturday’s Washington Times, notes that lawyers have started to complain about the Court’s lack of production:
Philip Allen Lacovara, [h]as argued numerous cases before the court. Writing in the December issue of the American Lawyer, he notes that in 1976-77, a typical year for that era, the court issued decisions after hearing oral arguments in 176 cases. In its 2002-03 term, by contrast, the number was 73, which is about the norm these days.

It's not that the court is strapped for the resources it needs to handle its caseload. Each justice now has four law clerks to provide assistance, up from one or two a few decades ago. Petitions to the court that used to be read by actual justices now are often left to clerks. It takes about $86 million a year to produce those 73 decisions.
Chapman and Lacovara both argue the Court ignores too many important cases worthy of attention. Most notably, the Court “has come to disdain cases that involve economic regulation.” That’s completely true. One example that comes to my mind is the Three O Realty case, which the Court declined to review. In that case, New York State blatantly abused its eminent domain power by falsely claiming “blight” as an excuse to take private property and give it to another private owner—the New York Times, as it turns out. This case screamed for review, yet like almost all eminent domain abuse cases, the justices couldn’t be bothered.

Chapman also echoes my longheld belief that the Court suffers from opinion glut:
The court's shrunken caseload only proves idle hands are the devil's workshop. As the justices have fewer cases to resolve, they spend far more time on gratuitous hairsplitting. Many of them often act like pop divas in concert — less intent on harmonizing than on outdoing each other in showy solos.

One fairly simple Fifth Amendment case last term somehow split the court more ways than a shattered windshield, yielding six different opinions, with few of the justices able to agree on much of anything. The recent decision on the Bipartisan Campaign Reform Act of 2002 was a law student's worst nightmare, running nearly 300 pages and requiring 26 lines of small type just to score the votes. If these nine go out to dinner together, you can bet they insist on separate checks.

Deciding fewer cases doesn't seem to produce happier justices. Nasty sniping is far more common than in previous decades. Justice Antonin Scalia is particularly prone to spice his disagreements with insults. Last term, he said a verdict striking down sodomy laws "is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."
It’s almost like the Court has become a overpriced, underperforming NBA team—lots of star players who can’t come together as a team and win. The fact that the Court is now largely controlled by its star pragmatist, Sandra Day O’Connor, only makes things worse.

Thursday, December 25, 2003

Merry Christmas . . .

. . . and to men of goodwill, Peace!

Wednesday, December 24, 2003

Season's Greetings: Gone Fishin'

I'll be on hiatus until Monday, December 29. If anyone needs me, I'll be at an "undisclosed location". Ask Nick, he knows where it is. Merry Christmas to all and to all a good night...

Capitalism & Law: A Tale of Two Professions

The Major League Baseball Players Association has begun yet another investigation into whether baseball owners are "colluding" to illegally hold player salaries down. The average salary for all players is about $2.2 million per year. That's nearly double what it was just ten years ago.

Here's some perspective: Over the same ten year period, many of the nation's doctors have seen their managed care reimbursements cut or remain the same. When the doctors organize against this, they're nailed for antitrust violations. When millionaire baseball players do the same thing, it's legally protected union activity.

Rights & Reason: Campaign Finance in Practice

A point that is often overlooked when discussing campaign finance “reform” is the ultimate objective of the alleged reformers: government financing of all political campaigns. John Lott of the American Enterprise Institute points out some of the many problems with this concept:
Campaign finance reform will undoubtedly also survive recent scandals — even the revelation of a New York City Council candidate who was apparently the first to realize that you could use donations to get matching funds and then hire those same donors as political consultants with the government money. With New York City offering four dollars of matching funds for every dollar raised, few legal investments provide that kind of return.

Others have noted that if former Vermont Gov. Howard Dean, Mr. Kerry and President Bush hadn't opted out of the public finance system, the program would be out of money now. Taxpayers have simply been unwilling to even redirect some of the taxes that they have to pay anyway into the system. When you have the Federal Election Commission just announcing that Lyndon LaRouche, the perennial conspiracy theorist candidate, will soon get a check from the government for $840,000, taxpayer distaste for the system is quite understandable.
The New York City story interests me. The city’s campaign finance board not only enforces the law, but tirelessly lobbies for its expansion to force candidates that opt-out of the public financing system to play by the board’s rules. Fredrick Schwarz Jr., the board’s chairman, is unapologetic about his egalitarian mission:
The purposes of the law are, among other things, to maintain an even playing field among candidates as much as is reasonable, to give serious candidates who do not have access to sources of wealth an opportunity to compete in a meaningful way, to allow candidates to compete successfully without reliance on special interest money, to give the public meaningful and timely disclosure of campaign finances, and to inform the public about issues relating to New York City campaigns. At all times, of course, guarding the public fisc must be at the front of our concerns as we study the potential impact of reform generally and of candidates’ use of public funds in particular.

I believe that the items I will discuss today support these goals and are necessary and appropriate in the continuing evolution of the New York City Program, to maintain that Program as the premier model for similar reform efforts across the country. Indeed, the Council should pride itself that by considering the proposals before you today—many of which will tighten restrictions on the very elected officials who are being asked to adopt them—the Council is once again setting an example for the rest of the country.
Mr. Schwarz, it should be noted, is senior counsel for the Brennan Center for Justice at New York University. The Brennan Center, I previously blogged, is leading the charge to defend Santa Fe, New Mexico’s “living wage” law from businessmen who consider the labor price control a violation of their rights. This is exactly the type of guy you want running campaign finance in New York—a man who opposes property rights and views the government as an engine of redistribution of wealth.

Indeed, the entire campaign finance board consists of lawyers, one of whom is also a rabbi. Until recently one of the board’s members was Pamela Jones Harbour, a former New York deputy attorney general who left the board to become a member of the Federal Trade Commission.

Rights & Reason: Driving Without Probable Cause

Blogger Charles Austin discusses his recent experience with a “mandatory sobriety checkpoint” in Northern Virginia. These have become common features of suburbia around the holiday season. They’re also patently unconstitutional, despite the Supreme Court’s willingness to tolerate them. If stopping drivers and forcing them to go through a battery of sobriety tests without any probable cause isn’t a warrantless search in violation of the Fourth Amendment, then banning organizations from running television ads just before an election doesn’t violate...oh, wait, nevermind.

Eric McErlain, commenting on Austin’s situation, points out that in Virginia, the cops aren’t just out for drunk drivers, but for social drinkers as well:
Unfortunately for those of us who live in the Reston-Herndon area of Fairfax County, the sobriety checkpoint isn't all. Last Holiday season, police officers in both municipalities began crusing [sic] through local bars to administer breath tests and charge bar patrons with public drunkeness. Mind you, individuals weren't targetted [sic] for arrest if there [sic] were disruptive out on the street, the police simply walked into local bars and hauled people off their stools to be tested -- something I found to be a bit extreme.
Radley Balko, Cato’s point man on neo-prohibitionism, adds that Mothers Against Drunk Driving, as prominent a lobby as they come, wants all social drinking and driving outlawed. Meaning one beer could get you arrested. In other words, MADD doesn’t want anyone drinking at all for any reason. This makes me wonder if MADD has become a “sleeper cell” in John Banzhaf’s terrorist organization.

Tuesday, December 23, 2003

Corporate Cowards: Dow AgroSciences

Rule of Reason readers will recall that last Monday CAC bestowed its "corporate coward" award on Dow AgroSciences. The Award was first in a new series designed to heap shame on businessmen when they fail to defend their rights in the face of injustice. Dow AgroSciences received our award for settling a plainly erroneous lawsuit brought against it by New York Attorney General Elliot Spitzer for advertising the safety of their pesticide products.

So guess what CAC received in its in-box today:

Nicholas Provenzo - I am the primary author of and contact for the press release that may have prompted your December 15 letter. I've been in the business of defending my company -- also my father's company, for that matter -- for 30 years, and for a variety of reasons derived from three decades of personal experience, I don't entirely share the philosophy or perspectives you've espoused. But, if you're willing, I would like two signed copies of that letter on your official letterhead instead of just a fax. I'd like to frame one and keep the other for my scrapbook. If you decide to send them, the address is:

Garry L. Hamlin
[Address omitted]

Merry Christmas.

P.S. This is a personal communication. I am not functioning in any official capacity on behalf of my company or any other organization and this communication should not be used to suggest or imply that I am.
Mr. Hamlin has respectfully asked me to send him a copy of the fax I sent his firm so he may frame it. Interesting, considering I called the executives of his company "sniveling bedwetters." And yet unfulfilling. I don't get the sense Mr. Hamlin grasped that CAC was accusing his company of a shameful crime against its own interests. Attorney General Spitzer's arguments against Dow AgroSciences were utterly bankrupt—literally legal nonsense on stilts. Yet by falling to defend its rights, Dow AgroSciences gave Spitzer's claims of false advertising (and the moral basis by which he made these claims) a legitimacy which they never could enjoy on their own. Mr. Hamlin's thirty years of experience and the pride he feels in following in his fathers footsteps does not negate that his firm that engaged in what Ayn Rand appropriately called "sanction of the victim." A victim's inaction only serves to aid injustice.

Businessmen are certainly within their rights to consider it more practical to settle a costly lawsuit then have their businesses endure a protected fight. Yet I can't help but think if the American founders used the same calculus as Dow AgroSciences did when it calculated the cost of fighting against Elliot Spitzer, we would be living in a much different and much darker world today. I will send Mr. Hamlin a signed copy of his firm's award. And for extra measure, I will be sending him a copy of Atlas Shrugged. If he won't read it, maybe his son will . . .

The Culture: You'll know Objectivism is winning when . . .

I was visiting one of my favorite gift sources and I noticed they had explicitly made a motivational poster that they say is "perfect" for me and my fellow Objectivists.

Hehehe. Hey, I'm just happy we're on the radar. ;-)

Capitalism and the Law: China to Consider Changing Property Law

There are some interesting developments taking place in the People's Republic of China:

Millions of Chinese who have plunged into capitalism by starting businesses and investing in stocks and bonds will be guaranteed their right to private property for the first time since the 1949 revolution under a constitutional amendment proposed Monday by communist leaders.

The change would give an official status to the entrepreneurs who once were considered the enemy of communism but now drive China's economy, creating millions of jobs and dotting the skylines of Beijing and other cities with office towers and apartment blocks.

After months of debate, party leaders submitted the proposed amendment Monday to the National People's Congress, along with a proposal to enshrine in the constitution the theories of Jiang Zemin, the former leader who invited capitalists to join the party. Approval by the legislature should be a formality.

The changes reflect the party's decision to cast off leftist dogma in pursuit of prosperity and national status — and to embrace the forces driving change in order to stay in control.

"The Chinese leadership understands that the private sector will be the engine for economic growth," said Joseph Cheng, a political scientist at the City University of Hong Kong.

In part the change is symbolic, bringing the constitution up to date with China's market-driven reality. But it will also likely strengthen the rule of law in a business environment where many common transactions go on without legal structure or regulation. [AP]
I have not read the proposed amendment nor do I know how much force the Chinese constitution has on day-to-day political life in China. Yet if China is attempting bring the rule of law and respect for private property to its political institutions, even small changes are welcome news.

Monday, December 22, 2003

Capitalism & Law: Mountain Brief Filed

Today I filed my brief with the U.S. Court of Appeals for the Fourth Circuit in United States v. Mountain Health Care. For those of you new to the program, let me recap: Last December the Justice Department forced a group of 1,200 physicians and healthcare providers in North Carolina to disband. The DOJ said the group, Mountain Health Care, illegally adopted a common fee schedule for use in negotiating contracts with managed care purchasers. The DOJ considers any fee schedule illegal because when doctors agree to set their fees in concert, the DOJ claims it harms consumers. The government said Mountain’s fee schedule “artificially” raised prices and denied consumers the “benefits” of competition for physician services. The implication is clear: the government claims physicians have no real right to set their fees. Despite denying any wrongdoing, Mountain agreed to disband because they couldn’t afford the cost of fighting the DOJ.

During the public comment period on this “settlement,” I objected the to the total lack of factual context in the government’s complaint. Basically the DOJ argued Mountain raised prices, but no outside observer knew what those prices were or what the “correct” market prices were, because the DOJ wouldn’t release that information. When challenged, the DOJ said they had no obligation to provide any context, and that asking them to do so would unreasonably impair their ability to promptly settle antitrust cases. The district court overseeing the case couldn’t be bothered to deal with my objections, and the judge rubber stamped the settlement without comment.

Fortunately there’s a provision in the antitrust law that allows malcontents like me to intervene in the proceedings and ask for appellate review. This now brings us to the Fourth Circuit in Richmond. I’ve asked the Court to decide whether the DOJ must disclose Mountain’s allegedly “anticompetitive” fee schedule. Seeing as it’s the sole piece of evidence referred to in the DOJ’s complaint, the public (and the district court) should have a chance to examine it. The antitrust laws require disclosure of any “materials or documents which the United States considered determinative” in an antitrust settlement case. The DOJ always argues that provision doesn’t really mean anything. Now the Fourth Circuit will decide if that’s really the case. The DOJ will file its reply to my brief in January. I can’t wait to see what distortions and lies they come up with.

News: Uniting Commerce and Education

Stephen Joel Trachtenberg, the president of George Washington University (which Nick Provenzo and I both attended), is the new chairman of the District of Columbia Chamber of Commerce. It’s interesting that the head of a nonprofit organization would be elected to this position, but in fact GW is the city’s largest non-government employer, quite a feat in the nation’s capital. Not surprisingly, GW and Trachtenberg are constantly vilified by malcontents in the community. I still live in GW’s neighborhood, and for years a small group of activists have managed to control local government advisory panels that carry inordinate political influence with D.C.’s zoning officials. Consequently, GW faces roadblocks and obstacles whenever it attempts any new construction project. Yet despite this, GW has managed to grow and prosper under Trachtenberg. The physical campus has improved 100% from when I first came to D.C. in 1996. Prior to Trachtenberg’s arrival in 1986, GW was little more than an urban commuter campus. Now it’s a bona fide national university. (You also have to admire GW’s ability to be nationally competitive without sinking millions into a Division I football program.)

That’s not to say I agree with everything Trachtenberg’s done. Far from it. But it does seem appropriate he’s assuming the leadership of the chamber of commerce. Few individuals have shown as much persistence in the face of constant political opposition to private property rights as old SJT. Now let’s see if he can stop the D.C. Council from banning smoking in restaurants and bars.

Rights & Reason: Googling Leftism

The Adam Smith Institute, a British free market group, warns that Google will be the next major target of anti-corporate leftists. ASI’s Alex Singleton cites an interview with a reporter for the state-subsidized BBC, who bemoans the selfish motives of Google’s leadership:
BBC Online journalist Bill Thompson met Google co-founder Sergey Brin in 2000 and found the man "completely devoted to making a better search engine rather than making himself rich... Now his search engine is the equivalent of programmes on ITV, there solely to attract eyeballs for advertisers."
Thompson wants the British government to regulate Google and other for-profit search engines—he actually calls for an “Office for Search Engines”. Before you dismiss this idea as ridiculous, consider the British government’s record on protecting commercial speech rights. In November 2002, CAC’s second amicus brief in Nike v. Kasky discussed the UK’s campaign to cleanse public affairs television of commercial influence:
Recently, the British Government’s Independent Television Commission banned the further telecast of “The Wall Street Journal Editorial Board with Stuart Varney,” a current affairs discussion program produced in the United States, and initially aired in Britain on CNBC Europe. In a letter to CNBC Europe, the ITC “sharply reprimanded” the network for airing the program, because British policy prohibits current affairs programming from having commercial sponsors. The Wall Street Journal was accused of sponsoring the program in order to promote sales of their print newspapers. The ITC reasoned: “The finding against CNBC Europe has nothing to do with…‘the ability of a commercial TV network to exercise free speech,’ but everything to do with the right of viewers to have access to news and current affairs that is, and can be seen to be, free from commercial influence.”
The automatic association of commercial motives with intellectual corruption is a cornerstone of modern leftist ethics. It explains campaign finance reform, media ownership restrictions, and similar policies that the nation’s Founders would have condemned as naked assaults on individual rights. Sadly, the left has largely succeeded in convincing a large plurality of the western world that commercialism equals evil.

The Culture: New Tower Design for WTC Site Unveiled

I’m unimpressed with the recently revealed “Freedom Tower” now slated to replace the destroyed World Trade Center.

The signature skyscraper at the World Trade Center site will be a 1,776-foot glass tower that twists into the sky, topped by energy-generating windmills and a spire that evokes the Statue of Liberty, new plans revealed Friday.

Saying it will "dramatically reclaim" the Manhattan skyline on the plot where the twin towers once stood, Mayor Michael Bloomberg joined the architects and Gov. George E. Pataki in unveiling the plans for the Freedom Tower. Pataki said the building "will show the world that freedom will always triumph over terror."

The drawings and models show what will be the world's tallest skyscraper, supported by crisscrossing cables meant to resemble another nearby icon: the Brooklyn Bridge. The spire at the top suggests the torch-bearing arm of Lady Liberty lifted high in New York harbor.

The plan was produced after months of contentious negotiations between Daniel Libeskind, who designed the overall five-building site plan, and David Childs, the lead architect for the Freedom Tower.
In an interview with The Associated Press, Libeskind held the new building plan at arm's length.

"We have very different approaches and ideas," he said, calling the revised Freedom Tower "Mr. Childs' building." Still, he said the two were able to compromise on important aspects such as the building's height and the 276-foot spire at its peak.

"At the end we both came up with something that is strong," he said.

The new design eliminates some of the angular shapes in Libeskind's original drawings, replaces Libeskind's visions of gardens atop the office space with windmills, and gives the building more of a twisting shape.

Childs said the tower is "iconic, simple and pure in its form, a memorable form that will reclaim the resilience and the spirit of our democracy."

The plan would create an open area above 70 floors of office space, with observation decks and a reprise of the Windows on the World restaurant that once occupied upper floors of the trade center's 110-story north tower. The windmills would provide 20 percent to 40 percent of the building's energy. [AP]
Freedom Tower attempts to fill the void left by the destruction of the World Trade Center, yet falls woefully short. Two 110 story office buildings are not replaced by a 1,776 foot tall tower with only 60 floors of productive space and a bunch of windmills at the top.

First of all, the proposed design is ugly. The strong symmetry of the World Trade Center has been replaced by a host of confused angles. The latticework of the Central tower offers the appearance of a ghost of a building—not a real structure. The interior seems designed for the sole purpose of mystifying the visitor. The only notable exterior feature of the adjoining buildings is the angles of their loped-off crowns. And windmills? Their inclusion is laughable at best and a source of vibration and noise at worst.

Secondly, the architects seem to acknowledge the importance of creating a structure taller then the original World Trade Center, yet their design is only a tower, not a full, productive building. It is a shell of a building, serving to replace the original towers only in size, but not in function.

The destruction of the World Trade Center is a tragedy, and it deserves to be remembered appropriately on-site. But after all the contemplation and tears, the best way to remember those lost is to see a new building to emerge from the ruins like a phoenix—a full, proud building that does not abandon the original World Trade Center’s purpose, but expands upon it. To answer Bin Laden properly, the new World Trade Center ought to be everything the former World Trade Center was and more: a center for capitalism, art, remembrance and rededication. Such a building ought to say that we will never lose sight of those lost on 9/11, yet our spirit goes on, undeterred and unbowed.

Friday, December 19, 2003

Sports: Another Coach Bites the Dust

St. John’s University fired basketball coach Mike Jarvis today. I remember when Jarvis left George Washington University to take the St. John’s job six years ago. I was an editor at one of GW’s campus newspapers and covered the press conference introducing Jarvis’s successor, former Texas coach Tom Penders. At the time, both schools thought they were taking steps to solidify their programs. Today, neither Penders nor Jarvis are coaching. Penders lasted three seasons before a series of seemingly minor scandals brought him down. Jarvis apparently didn’t produce a strong enough record in the highly competitive Big East Conference.

Last month I defended Nebraska’s decision to fire football coach Frank Solich on strictly business grounds. I endorsed Nebraska athletic director Steve Pederson’s view that “mediocrity” was not a virtue in a competitive, moneymaking business like major college football. The same argument could be advanced for firing Jarvis. While Jarvis produced a winning record, the program was not maximizing its potential, given its recruit-rich New York City base and strong basketball tradition. The biggest criticism of Jarvis has always been his recruiting; at GW, he was often chided for relying on foreign players rather than aggressively recruiting local talent.

Then again, unlike Nebraska, St. John’s can’t seem to figure out what direction it wants to go in. Jarvis is now the third former head coach in nine years, following Brian Mahoney and Fran Fraschilla. And it made no sense to fire Jarvis in December—just at the start of conference play—while promoting his longtime top aide, Kevin Clark, to acting coach. That’s just throwing away the current season, which won’t send much of a message to recruits, fans, or current players.

One suspects St. John’s will press for a big name coach (Rick Pitino’s name has already come up), but that strategy may fall flat. This is what happened at GW when Jarvis left. The school went for the biggest name it could find, a name that happened to be good pals with the athletic director. GW overlooked the circumstances of Tom Penders’ departure from Texas, and within a couple years, they paid for that oversight. Now GW is rebuilding under a competent coach, Karl Hobbs, who was elevated from the assistant coaching ranks. Hobbs knows he holds a mid-major job just below the elite level. St. John’s is not at that same level, but may choose not to recognize that fact. This shows poor business management. Basketball is St. John’s chief revenue-producing sport; any attempt at a quick-fix will blow up in their face and do long term damage to the school.

And as I noted when Frank Solich is fired, it’s funny that universities will fire coaches for mediocre performance, but professors are considered untouchable due to tenure. Using Jarvis as an analogy, could you imagine an English professor getting fired before midterms because the students weren’t learning fast enough? Not that I would object to such a system. I just question why academia insists on the double-standard.

Antitrust News: FTC Strikes at Patent Rights

The FTC has declared war on intellectual property rights, specifically patents. The FTC recently released a report that concluded patent laws are too generous -- meaning they protect patent holders rather than consumers. Some of the FTC's specific criticisms have merit, but ultimately it's Congress's job to decide what the patent laws are. But the FTC has never been an agency that waits for Congress to act. Thus, the Commission is already using its broad antitrust authority to go after patents they don't like. Yesterday this battle took a nasty turn.

In 1997, Schering-Plough, a drug company, sued two generic drug companies that allegedly infringed S-P's patents in developing a generic version of S-P's K-Dur 20 drug. These patent suits are routine in the pharmaceutical industry. At the urging of the trial judge, the companies settled their dispute. S-P made payments to the two competitors in exchange for agreements to defer introduction of the generic drugs. The court approved this deal, and that should have been the end of that.

In 2001, the FTC filed an administrative complaint, charging the deals violated the antitrust laws because they denied consumers immediate access to generic K-Dur 20. In June 2002, the administrative law judge assigned to the case dismissed the FTC staff's complaint on all counts. Today, nearly 18 months later, the five FTC commissioners unanimously reversed the judge and held the court-approved settlements were illegal.

You have to question the integrity of the decision making process. A neutral judge finds the FTC staff's arguments baseless. Then the five commissioners, political appointees having recently stated their personal agenda in opposition to intellectual property rights -- overrule the judge in favor of the position taken by staff appointed by the same commissioners. And we're supposed to tell the Iraqis how to try Saddam?

The timing of this decision is curious for another reason. Andrx Pharmaceuticals is currently fighting a class-action lawsuit challenging an agreement it made to settle patent litigation with Aventis. In this case, the Sixth Circuit held an interim settlement violated the antitrust laws. Andrx has filed a petition for review with the Supreme Court, and the plaintiffs must file a response by December 29. My group, the Center for the Advancement of Capitalism, is filing an amicus brief at Andrx's invitation. I have to think the FTC is trying to send a message with today's decision.

Capitalism & Law: Beware Jury Compassion

The Association of Trial Lawyers of America (ATLA) publishes a guide on how to win tort cases. Included is a chapter written by lawyer David Wenner, who advises his brethren to weed-out jurors who believe in “personal responsibility”. Wenner argues that plaintiff’s attorneys should eliminate highly religious, “family values” people from juries, but his arguments also would exclude Objectivists and rationalists as well:
"It is helpful to divide the jurors into two groups: the personal responsibility group and compassion-altruistic group," Wenner wrote. "Jurors who are extreme on the personal responsibility bias, or who have a high need for personal responsibility, will strongly favor the defendant. In contrast, jurors who are extreme on the compassionate-altruistic bias, or who have a high need for compassion, will strongly favor the plaintiff."

Based on his research, jurors who believe in moral absolutes tend to have what Wenner called a "personal responsibility bias.

"The personal responsibility juror tends to see the world with bright line rules on how people should act," Wenner wrote. "People should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences. People must be accountable for their conduct."

Such jurors, Wenner believes, are likely to question whether the plaintiff could have done something to avoid the injury they suffered.

"The motto of these jurors is that if a person is committed to personal responsibility, then he or she must first accept blame before blaming others. That means playing the blame game is unacceptable if the plaintiff was in the best position to avoid the injury," Wenner wrote. "If the plaintiff has not been completely responsible, do not expect the personal responsibility jurors to find for the plaintiff, even though the plaintiff may have been only partially at fault."
This may sound offensive to many of us, but Wenner is right on the money. Juries that find for plaintiffs and award unreasonable damages place altruism and compassion above reason and personal responsibility. And while Wenner is trying to guide plaintiff’s lawyers to victory, his comments provide a strong argument for eliminating the ability of lawyers to control jury selection. The judge, not the counsel, should exercise that responsibility. In fact, I’m starting to think civil juries should be abolished altogether.

Rights & Reason: Spurrier, Pragmatism & Democracy

Although the presidential election is starting to awaken nationally, here in Washington much of the talk is centered around Redskins head coach Steve Spurrier and whether he’ll be back for a third season in 2004. Spurrier was an enormously successful collegiate coach at Florida, but has posted a mediocre 12-18 record to date in D.C. The key to Spurrier’s Florida success—pass first, pass often—has been his Achilles heel in Washington, where offenses and defenses are substantially more complex. Spurrier also can’t overwhelm opponents with talent in the NFL as he could in the Southeastern Conference.

I bring all this up because in recent weeks I’ve begun to notice a philosophical similarity between Spurrier and President Bush. Both men are agenda-driven. That is to say, both renounce comprehension of complex systems in favor of advocating a limited agenda. Spurrier came to the Redskins to see if his passing attack would work in the NFL; he was uninterested in the details—or even the organizational philosophy—of managing an NFL franchise. Similarly, President Bush came to office with a checklist of items—tax cuts, prescription drug benefits, “changing the tone” in Washington—but no genuine philosophy of government or interest in the details of daily governance.

Now, Bush’s supporters will argue he does have a philosophy: “compassionate conservatism”. I’ve expended a great deal of thought trying to figure out what that phrase means, but I’ve drawn nothing but blanks. Compassionate conservatism is a slogan, not an ideology. At best, it’s an approximation of a philosophy. It implies Bush believes in limited government, except when doing so is deemed uncompassionate. How we define compassionate is anyone’s guess. It has something to do with religion, but not to the point where it offends the nonreligious or people who hold different values from us. The President does recognize the need to identify and destroy evil, but so far he’s limited that to Saddam Hussein, Osama Bin Laden, and members of Congress who voted against the Medicare bill. This is hardly the work of a great moralist.

Bush succeeded as governor of Texas largely because the job did not require ideology, complex thinking, or for that matter opposable thumbs. The Texas legislature meets for a limited biennial session, while executive power is diffused among hundreds of boards and agencies. A governor can survive, indeed thrive, by promoting a limited agenda. Much like Spurrier at Florida, Bush ran up an impressive record by exploiting the natural advantages of his position’s limited demands. When both men went to the next level, however, their limitations caught up with them.

This leads me to Howard Dean, the Democratic presidential nominee (pending the outcome of the actual primaries). The other day John Rosenberg, a blogger specializing in diversity issues, cited an interview Dean gave in the summer on the subject of ideology and politics:
Dean describes himself as an anti-ideological pragmatist. "I'm not an ideologue," he said in an interview with In These Times. "I think the great problem with this president is that his is an ideological administration. Facts don't matter to them. I'm a complete pragmatist. I really believe that people who have ideologies that can't be bent and are insensitive to the facts can't govern."
Dean correctly describes himself as a pragmatist. He errs, however, in calling Bush an ideologue. This shows Dean doesn’t understand the concept of ideology or its implications. As noted above, Bush is driven by a limited, concrete agenda. Any idea or concept not on that agenda is irrelevant to him, just as defensive backs are irrelevant to Spurrier. This is why Bush signed campaign finance reform, imposed steel tariffs, and allows his antitrust enforcers to run amok. They’re not part of his agenda, so he need not be concerned with them. That is not the work of an ideologue.

Dean is a pragmatist, which means he rejects ideology for being ideology. He considers any moral absolute an abomination. (This must be why libertarians love him.) A pragmatist believes only in momentary whims, not universal abstractions. Thus, when Dean emphasizes the primacy of “facts,” he refers to assessing subjective desires, not identifying objective reality. For Dean, truth comes through the passion of his supporters. His facts are verified by the anger of the crowd: They oppose the war in Iraq, so the war had no justification; people are anxious about the economy, so Bush’s economic policies have failed. Ultimately, Dean seeks consensus for the sake of consensus, regardless of its objective truth and long-term implications.

George Bush too is a pragmatist, but he makes exceptions for things like tax cuts and the war. On his agenda items, he is inflexible. This makes him, I suppose, an “unreasonable pragmatist,” which is really shifting a paradigm without a clutch. Yet Dean insists that Bush is an ideologue. He does this because it sets up the presidential race as a clash between ideology and pragmatism; post-New Deal history suggests Americans will vote pragmatism. For his part, Bush’s supporters (especially among neoconservatives) also support this setup, because they believe Americans are ready for ideology again. The only problem is, the ideology they’re backing isn’t Objectivism or rationalism, but a leftism-conservatism hybrid that goes well beyond compassionate conservatism. I’m not sure what the final philosophical product will look like, but I suspect it will involve brown shirts and public loyalty proclamations.

But that’s just a small core of the Bush supporters. The president himself remains a big dumb guy without an ideology, which brings me back to Steve Spurrier. Spurrier will return next year if (a) the Redskins conclude he can put them on the path to the Super Bowl; or (b) the Redskins can’t find a better coach. Option (a) is probably not the way to go, and option (b) still needs to be explored. When it comes to the presidency, we know Bush won’t get us to the ideological Super Bowl—that is, he’ll never advocate a political philosophy that integrates reason, individualism, and capitalism—so the question becomes whether there’s a better president out there. Howard Dean’s continued existence suggests there isn’t. This means we’re faced with keeping a mediocre president who will, metaphorically speaking, lead us to back-to-back 7-9 seasons if nobody's injured. Hey, at least we’re not the Arizona Cardinals.

Thursday, December 18, 2003

Sports: Union 1, A-Rod $25 million

For weeks, the Boston Red Sox have pursued a trade with the Texas Rangers whereby Boston outfielder Manny Ramirez would be swapped for Texas’s Alex Rodriguez. The sticking point is money, though not in the usual sense. Rodriguez holds baseball’s richest contract, earning between $25 million and $32 million per year through 2009. The Red Sox want some relief from this high price. According to an unnamed baseball official, some of Rodriguez’s salary would be reduced and some would be deferred, and Rodriguez would be eligible for free agency earlier than the original contract provided. Both parties apparently agreed to this arrangement.

Unfortunately, the MLBPA, the union representing Rodriguez, effectively vetoes the deal. Union lawyer Gene Orza claims the current collective bargaining agreement (CBA) prevents any contract renegotiation that results in the player receiving less money. Rob Manfred, baseball’s chief labor lawyer, disputes Orza, arguing the CBA only requires a restructuring provide “an actual or potential benefit to the player”. The actual rule, as reported by Baseball Musings, seems to support Orza’s interpretation. It says, “The amount stated in paragraph 2 [i.e., Payment] and in special covenants hereof which is payable to the Player for the period stated in paragraph 1 hereof shall not be diminished by any such assignment, except for failure to report as provided in the next subparagraph (d).” This pretty clearly forbids any reduction or deferment in actual salary.

But the real issue here is whether it’s proper for the union to interfere with the contractual relationship between Rodriguez, his current team, and a team he has agreed to be traded to. No doubt Rodriguez is glad to give back some money in order to go from Texas, a perennial last-place team, to Boston, a World Series contender. Traditionally, the union cares first and last about increasing salaries. There are numerous tales of players pressured by the union to accept the highest bid, even when a lower offer from another club proved appealing to the player for other reasons. (For example, Andy Pettite recently signed with the Houston Astros, which play in his hometown, rather then resign for an allegedly higher salary with the New York Yankees.)

The MLBPA is certainly better than most unions. Unlike, say, the National Education Association, MLBPA supports a competitive salary structure that permits individual players to negotiate contracts within general boundaries set by the CBA. The NEA insists on the same contract for all workers, regardless of merit, tied only to seniority. But the MLBPA ultimately suffers from the same flaw as all unions: They’re power derives not from economic production, but from the CBA. The union must strictly enforce the CBA’s terms, even to the detriment of Rodriguez and two teams, because without the CBA, the union is meaningless.

Under U.S. law, a union enjoys monopoly bargaining power. Whenever a simple majority of workers vote to form a union, all workers immediately come under whatever CBA is negotiated. If not for this legal privilege, it’s doubtful the most recent labor disputes in baseball would have reached crisis points. If players were free to negotiate on their own without any CBA constraints, a large enough percentage would have broken union ranks to make a strike unprofitable for the holdouts. This outcome is impossible under labor law, however, and thus the union is able to veto Rodriguez’s trade despite the benefit to all parties in interest. The union’s interests are political, not economic.

This is not to suggest CBAs are inherently wrong. Many, if not most, private sector employers benefit from well-structured CBAs. If nothing else, they can make labor negotiations more efficient and productive. As the NEA example demonstrates, the worst abuse of CBAs and unionism come in public-sector unions, where both sides of the negotiation are subject to political control.

It’s regrettable that Rodriguez, the Rangers, and the Red Sox can’t work a deal that satisfies the union’s factually correct interpretation of the CBA. But it should also be noted that Texas originally offered Rodriguez the large contract that they are now unable to trade. As with most things in business, poor decision making will come back to haunt you, irrespective of outside legal and political pressures.

Politics: Interest Group Malaise

I didn't think anyone could top "Libertarians for Dean" for the title of most self-defeating interest group. Then I heard about "Canadians for Clark". Looks like we have a new front-runner. Personally, I'm eagerly awaiting the formation of "Hashemites for Lieberman".

Capitalism & Law: Relief Needed From Oxley

Donald Luskin points us to this statement from Rep. Mike Oxley, chairman of the House Financial Service Committee and co-conspirator in the Sarbanes-Oxley act:
“All mutual fund shareholders deserve lower fees. Not just shareholders who invested in funds that engaged in questionable trading practices; not just shareholders invested in one fund family; but all mutual fund shareholders deserve relief from fees that continue to rise.”
Oxley no doubt is trying to steal the thunder of New York Attorney General Eliot Spitzer, who has been trying to extort mutual fund companies into lowering their fees. Luskin incredulously asks, “But since when is it any of Congress’ goddamn business to give mutual fund shareholders ‘relief from fees’?” Heck, when is it ever Congress’ job to try and lower consumer prices in any industry. The answer is that it’s not. But that doesn’t stop Congress. Or the White House, for that matter. Just look at any antitrust case, and you’ll see the objective is usually to forcibly lower consumer prices that were “unreasonably” raised by producers.

Rights & Reason: Victory for Medicinal Pot

On Tuesday, the U.S. Court of Appeals for the Ninth Circuit ruled California’s medical marijuana law trumped the federal ban on the drug, at least in a noncommercial, intrastate context. The case was brought by four people, two of whom use marijuana, while the other two provide it. The Court describes the medical necessity of the marijuana for the first two plaintiffs:
Appellants Angel McClary Raich and Diane Monson (the “patient-appellants”) are California citizens who currently use marijuana as a medical treatment. Appellant Raich has been diagnosed with more than ten serious medical conditions, including an inoperable brain tumor, life-threatening weight loss, a seizure disorder, nausea, and several chronic pain disorders. Appellant Monson suffers from severe chronic back pain and constant, painful muscle spasms. Her doctor states that these symptoms are caused by a degenerative disease of the spine.

Raich has been using marijuana as a medication for over five years, every two waking hours of every day. Her doctor contends that Raich has tried essentially all other legal alternatives and all are either ineffective or result in intolerable side effects; her doctor has provided a list of thirty-five medications that fall into the latter category alone. Raich’s doctor states that foregoing marijuana treatment may be fatal. Monson has been using marijuana as a medication since 1999. Monson’s doctor also contends that alternative medications have been tried and are either ineffective or produce intolerable side effects. As the district court put it: “Traditional medicine has utterly failed these women . . . .”
The other two plaintiffs cultivate the marijuana and provide it to Raich and Monson free of charge. Nevertheless, the Drug Enforcement Agency “seized and destroyed” the marijuana plants Raich and Monson relied upon. Attorney General John Ashcroft has made it very clear he will not respect state laws permitting medicinal use of marijuana. Accordingly, the plaintiffs filed suit seeking an injunction to protect their ability to grow and use marijuana. The Ninth Circuit granted the injunction, reversing a district court’s decision, because the use of marijuana described here falls outside Congress’s power to regulate interstate commerce.

This should be an obvious conclusion to anyone who understands the Constitution. If you grow a crop and give it away to someone within the same state, that is neither “interstate” nor “commerce”. Traditionally, however, common sense alone does not prevail in Commerce Clause challenges. Since the New Deal, the courts regularly uphold federal regulations that “affect” commerce, even if the rules deal with purely in-state activities. The idea is that Congress should be allowed to control any private activity that might influence a national regulatory scheme. One of the three judges in this case in fact cited that principle in dissenting from the court’s decision. Circuit Judge Arlen Beam argued that the government’s ban on medicinal marijuana was consistent with a New Deal-era ruling that permitted the government to prevent a farmer from growing crops in excess of a federal quota. Judge Beam sadly sees no problem with the government telling a farmer what to grow, which tells me he sees little bounds to federal Commerce Clause power.

The intent of the Commerce Clause was to enable Congress to ensure national markets for goods and services; that is, markets free of parochial state roadblocks. There is nothing to suggest the Framers intended Congress have the power to regulate every act that might “affect” commerce, and more importantly, nothing to support the view that Congress can simply ban whole industries (such as marijuana) from commerce simply because the government disapproves of its use. Think about it. If Congress can ban any product it wants from interstate commerce simply by passing a law, then why was a constitutional amendment necessary to enact national prohibition on alcohol? Prior to the New Deal, even prohibitionists understood Congress simply couldn’t tell people what they could own, buy, or sell in their own communities.

Of course it’s one thing to ban alcohol. It’s quite another to deny people use of a product that provides legitimate medical treatment. I wonder how the Justice Department responded to the Court’s statement that Angel Raich could die without continuing marijuana treatments. It’s sickening to think there is any circumstance where the attorney general of the United States—even a morally obtuse Christian like John Ashcroft—would let an American die to preserve an irrational federal law. It certainly makes you question President Bush’s commitment to preserving the American values he claims we’re bringing to Iraq. Torturing dying people is more consistent with the former regime of Saddam Hussein than with the Constitution written by James Madison.

Congratulations to the plaintiffs in this case, and to their attorney, Randy Barnett, a contributor at the Volokh Conspiracy.

The Culture: All the news that's fit to fake

Michelle Malkin is all over New York Times reporter Charlie LeDuff for fakery.

Looks like the New York Times has another ugly Jayson Blair-like scandal on its hands. This time, the young minority reporter is Charlie LeDuff, a part Native-American, part-Cajun writer, known as a rising star and favorite pet of former executive editor Howell Raines.

The hotshot LeDuff is now in hot water over his cribbing of anecdotes from someone else's book about kayaking down the Los Angeles River for his own Page One fluff story about — you guessed it! — kayaking down the Los Angeles River. An embarrassing correction published in the New York Times on Dec. 8 explained:

An article last Monday about the Los Angeles River recounted its history and described the reporter's trip downriver in a kayak. In research for the article, the reporter consulted a 1999 book by Blake Gumprecht, "The Los Angeles River: Its Life, Death, and Possible Rebirth." Several passages relating facts and lore about the river distilled passages from the book. Although the facts in those passages were confirmed independently-through other sources or the reporter's first hand observation-the article should have acknowledged the significant contribution of Mr. Gumprecht's research.
Gumprecht, an assistant professor of geography at the University of New Hampshire and a former newspaper reporter, told Slate's Jack Shafer he was "fairly shocked" by the similarities between his book and the Times's story, and that LeDuff's borrowing went beyond accepted journalistic practices.

Perhaps not coincidentally, LeDuff was a good pal of the disgraced Jayson Blair.
Malkin says this is not the first time LeDuff has been accused of lying.

In September, author and columnist Marvin Olasky reported that LeDuff attributed fake quotes to a naval officer in San Diego to fit the reporter's antiwar agenda.

Lieutenant Commander Beidler, 32, on his way to Iraq in January, was walking with his family toward the end of Naval Station Pier 2 when the Times's Charlie LeDuff asked him for his general view of war protesters. Mr. Beidler recalls stating, "Protesters have a right to protest, and our job is to defend those rights. But in protesting, they shouldn't protest blindly; instead, they should provide reasonable solutions to the problem." The LeDuff version had Mr. Beidler criticizing Los Angeles protesters but turning his guns at a complacent United States: "It's war, Commander Beidler said, and the nation is fat. 'No one is screaming for battery-powered cars,' he added." The journalist then turned to Commander Beidler wife's Christal: "'I'm just numb,' she said as she patted down his collar. 'I'll cry myself to sleep, I'm sure.'"

Mr. Beidler was at sea when he discovered how far at sea the Times's reporting was, but he sent off a letter to the editor stating what he had said and arguing that the quotes about national fatness and battery-powered cars "were completely fabricated by Mr. LeDuff in order to connect our nation's dependence on oil with the current military buildup in the Middle East."

Mr. Beidler also stated, "Mr. LeDuff continued his shameful behavior by attributing words and actions to my wife that were not her own. Not only did she not say she would cry herself to sleep, but she didn't pat down my collar either, which was impossible for her to accomplish with my civilian shirt hidden under my jacket and a duffle bag hanging on my shoulder closest to her."

In response, a Times editor shrugged off Beidler's complaint. LeDuff, he informed Beidler, "thinks that he accurately represented his interview with you and your wife, and therefore so do I. If you have another encounter some day with The New York Times, I hope its outcome is more satisfactory to you."
Hmmm. Which am I going to trust: the integrity of a US naval officer, or the integrity of a guy who writes about fake kayak trips?

Jayson Blair fakes stories. Maureen Dowd drops context as if the use of it physically hurts her. Paul Krugman twists facts with more routine then any pretzel maker. And now Charlie LeDuff. The question I ask is why does anyone continue to take the New York Times seriously?

Rights and Reason: Vatican slams handling of Saddam

The Vatican is loving our enemies:

A top Roman Catholic official has attacked the way Saddam Hussein was treated by his US captors, saying he had been dealt with like an animal.

Cardinal Renato Martino said he had felt pity watching video of "this man destroyed, [the military] looking at his teeth as if he were a beast".

The cardinal, a leading critic of the US-led war in Iraq, said he hoped the capture would not make matters "worse".

A senior US official has defended the decision to show the pictures.

The official said the broadcast of Saddam Hussein undergoing a medical examination was allowed under the Geneva Conventions in order to maintain peace and security.

There was no attempt to humiliate the prisoner, the official said.

A daughter of Saddam Hussein has said she believes her father was drugged before US soldiers captured him.

Rallies in support of the deposed Iraqi president have continued in central and northern Iraq along with attacks on security forces.


Cardinal Martino said on Tuesday that the US "could have spared us these pictures".

"Seeing him like this, a man in his tragedy, despite all the heavy blame he bears, I had a sense of compassion for him," he told reporters. [BBC]
I feel neither sympathy nor compassion for Saddam Hussein. Compassion for Saddam is moral treason to all those his regime killed, maimed and raped. Yet it is footage of a medic delousing this man who slaughtered thousands of his own people and whose intransigence has led to the deaths of almost 500 of my countrymen that the Vatican finds disquieting.

The Vatican is free to offer love to the enemies of mankind if it chooses. I, however, prefer that they receive justice.

Wednesday, December 17, 2003

Capitalism & Law: Regulatory Overkill

The FTC is cracking down on a perennial scam: work-at-home envelope stuffing schemes. We've all seen the ads promising large incomes stuffing and sending envelopes. In reality, these are glorified chain letters that usually end up costing the work-at-home senders more money then they'll ever make. I certainly won't challenge the FTC's decision to go after the companies responsible for these scams, but I do question whether the FTC's presence is really needed. Consider this item from the FTC's own press release:
Targeting the sellers of work-at-home schemes who were taking money out of consumers’ pockets with their deceptive pitches, the Federal Trade Commission today announced a joint federal and state law enforcement sweep cracking down on purveyors of fraudulent envelope-stuffing business opportunities. Joining the Commission in announcing its two federal district court complaints in “Operation Pushing the Envelope” were the U.S. Postal Inspection Service, which announced five criminal and 22 civil cases; the Illinois Attorney General’s Office, which announced two state complaints; and 23 states and four other government agencies that participated in a nationwide consumer education and outreach initiative about the potential costs of such work-at-home opportunities.
If the Postal Inspection Service and 28 other agencies have a hand in this, then why do we need the FTC? The agency seems a redundant player here. And it's not like we needed the 4th Infantry Division to catch these scammers. A first-year lawyer at the Justice Department could have handled this case with a minimum of time and effort.

Politics: Naughty Legislation

Rep. Doug Ose of California has introduced legislation to clarify the federal ban on broadcasting obscenity. Currently it’s a crime punishable by two years in prison to “utter[] any obscene, indecent, or profane language by means of radio communication”. The statute doesn’t specify what constitutes such language, however. Ose’s legislation boldly remedies that situation by defining “profane”:
As used in this section, the term `profane', used with respect to language, includes the words `shit', `piss', `fuck', `cunt', `asshole', and the phrases `cock sucker', `mother fucker', and `ass hole', compound use (including hyphenated compounds) of such words and phrases with each other or with other words or phrases, and other grammatical forms of such words and phrases (including verb, adjective, gerund, participle, and infinitive forms).
I’m all for legislative clarity, but this seems a tad, er, obscene. Keep in mind there are few, if any, criminal prosecutions for obscenity. Ose’s bill is more likely a reaction to the FCC’s recent whining about U2 singer Bono letting out a bad word during last year’s Golden Globe Awards telecast. Some folks decried the fact Bono and NBC weren’t tarred and feathered for that offense.

Ose also must realize this bill would never survive First Amendment scrutiny (unless, of course, Ose’s ban is intended to prevent the “appearance” of corrupting political campaigns). Which means this entire proposal is an exercise in grandstanding before the faux family-values crowd. Now there’s something that ought to be banned.

Tuesday, December 16, 2003

Antitrust News: Daily Roundup

Three antitrust updates this afternoon:

1. Later today the European Court of First Instance will decide whether to uphold a 6.8 million Euro fine imposed by European antitrust authorities against British Airways. In 1999, the EU sided with Virgin Atlantic, who claimed BA “abused its dominance” by giving travel agents rebates linked to the number of BA tickets sold. The EU said this was just plain unfair to Virgin, who couldn’t match the rebates.

For years, the EU has targeted rebate programs that reward a company’s loyal customers. The European Commission believes dominant firms must not take any action that might maintain or expand their market share. One antitrust lawyer told Dow Jones, “Dominant companies in Europe will continue to find themselves open to attack for pursuing anything but the most conservative pricing strategy”. On a positive note, the Court of First Instance has recently overturned a number of Commission antitrust fines. This case offers an opportunity to continue that trend, because BA presented a strong argument that the Commission botched the market definition. Lawyers familiar with the case say the EU confused the travel agent market with the air transport market, which exaggerated the actual dominance of BA.

2. Yesterday, the Supreme Court agreed to review F. Hoffman La Roche Ltd. v. Empagram, S.A., one of the many antitrust cases still pending against the worldwide vitamin industry. This case presents a curious question: Can foreign plaintiffs invoke U.S. antitrust laws over alleged infractions that occurred outside the U.S.? Obviously the answer should be “no,” but since when do antitrust laws make sense?

The plaintiffs in this case are nationals of Australia, Ecuador, Panama, and Ukraine. They claim to be victims of an international price-fixing conspiracy in the vitamin industry. Many of the defendant companies have already settled civil and criminal antitrust charges in the U.S. and abroad. These plaintiffs seek damages under the Sherman Act for their purchases outside the United States; they argue that because the underlying conspiracy affected American commerce, jurisdiction is proper here. Most federal appellate courts have rejected this argument in other cases, but the Court of Appeals for the District of Columbia went the other way, and ordered the case tried. The defendants, backed by the Solicitor General, the U.S. Chamber of Commerce, and the German government, have asked the Supreme Court to reverse that finding.

3. Finally, today’s “Corporate Coward” award goes to First Data Corporation for their last minute capitulation to the Justice Department. Earlier this year First Data, which runs ATM and debit card networks, agreed to buy competitor Concord EFS. The DOJ claimed the merger would illegally reduce competition in the market for PIN-based debit networks. This is an odd market definition, since debit networks consist of both PIN-based and signature-based models. Many debit cards actually work with both networks. Yet the DOJ insisted the markets were separate for antitrust purposes. First Data disagreed, at least at first, and vowed to fight the DOJ in court.

A hearing was scheduled for this week, but yesterday we learned the company had indeed settled. First Data will divest its interest in one of its debit networks to a third buyer chosen by the DOJ. This will protect consumers, according to the DOJ. In reality, this settlement protects the jobs of DOJ lawyers who go around imposing arbitrary market definitions. First Data’s capitulation essentially ratifies the DOJ’s decision to separate the PIN and signature debit markets, making it difficult for any other company in the field to argue the objective facts in the future.

Rights & Reason: Price Controls and Cosmetic Surgery

In a Washington Post op-ed today, Jonathan Oberlander and Jim Jaffe argue the President’s Medicare bill will inevitably lead to price controls on drugs. Only they won’t be called price controls. This is not a new scheme, but rather an extension of how Medicare currently treats physicians and hospitals:
When Medicare was enacted in 1965, it barred the federal government from "exercising any supervision of control over the practice of medicine."

Partly to deter a physicians strike, doctors were promised that they'd be paid at the usual and customary rates that insurers such as Blue Shield had set over the years.

Hospitals got an even sweeter deal -- reimbursement that paid them essentially whatever their costs were, with a bonus on top.

In addition, Medicare spared both hospitals and physicians direct federal administration, instead allowing them to choose private administrative intermediaries that would pay their bills.

Since there was little reason why anyone offered a blank check would reject it, providers were fairly relaxed about provisions that locked them into the program over time. Now it is difficult and expensive for doctors to drop their affiliation, and nearly impossible for most hospitals to do so.

Will things go differently with drugs? Time will tell, but it seems unlikely. The government has habitually responded to budget stresses by changing the reimbursement mechanism and lowering payments. Whatever one thinks of government efficiency, this practice has worked well. Over the past two decades, physician and hospital payments have been regularly cut.

Because hospitals spent more, they were the first to get the bad news. In 1983 Congress enacted the Prospective Payment System. Instead of paying hospitals retrospectively for whatever they charged, Medicare imposed a system of administered pricing that allowed the federal government to set payment rates. Payments quickly declined precipitously.

A few years later the Medicare Fee Schedule for physicians was introduced. It was a terribly elaborate scheme that was based on measures of the complexity, time and resources involved in physicians' services. Its advertised purpose was to establish a fair and scientific basis for Medicare payments to physicians.

But ultimately it divorced doctors from their historical and customary fees. As with hospitals, Medicare imposed a system of administered pricing on doctors. By this time, of course, many physicians were dependent on their Medicare patient base and simply couldn't afford to walk away from the program, despite the lower reimbursement rates.
As CAC has explained at great length, antitrust policy is now a key tool in the Bush administration’s efforts to keep health care costs down by force. Any physicians that attempt to negotiate higher prices with private HMOs—a move that would begin to liberate physicians from below-market Medicare reimbursements—are labeled “anticompetitive” monopolists by the FTC. Republicans justify this naked attack on free market principles by arguing antitrust isn’t really regulation, merely an effort to ensure the market isn’t controlled by a single group of players. The fact that physicians generate the wealth that makes modern medicine possible is a contextual argument routinely dropped by the antitrust apologists. Since federal policy is concerned solely with the distribution of resources, not their production, the government is forced to eliminate any consideration for the economic rights of physicians.

The central contradiction of government healthcare policy is the inability to reconcile price controls with antitrust’s stated objective of improving consumer welfare. As Virginia Postrel notes in response to the Oberlander-Jaffe article, price controls tend to distort some parts of the market while leaving other, less essential areas untouched:
More insidious is a pattern my brother and sister-in-law, a family practice physician and an anesthesiolgist, observe in their area. The best general surgeons are going into cosmetic surgery, and they're luring the best anesthesiolgists into at least part-time cosmetic work. The dermatologists are telling patients with rashes to go elsewhere. Patients expect to pay for cosmetic work themselves, at market prices. They expect someone else to pay for health-related treatments, at lower prices. The result is predictable: the degradation of health care even as cosmetic care improves.

Applied to pharmaceuticals, this pattern would give us more skin care and baldness drugs, fewer treatments for complex diseases. We'll be good looking but sick. I'm all for cosmetic improvements, but that's not a tradeoff most of us would choose.
Another distortion occurs with uninsured patients and hospitals. All hospitals establish list prices for their services. Insurance companies, however, rarely pay that list price. Instead they negotiate a discount rate with the hospital, such as 7%, which applies to all prices. Earlier this year, the FTC went after a group of hospitals in Maine that jointly negotiated their discount rate with insurers. Each hospital still set its own list prices, but they agreed to only offer insurers a particular discount rate. The FTC said this was “anticompetitive” because it denied insurers the benefit of price competition. What the FTC left out was the fact that higher discount rates merely shift cost burdens to uninsured patients, who generally are poorer than their insured counterparts. Remember, the FTC does not consider whether price levels are rationally related to a producer’s operating costs; antitrust policy demands lower consumer prices regardless of context.

Thus, the FTC was not protecting all consumers, only those favored by existing public policy, meaning patients insured by HMOs. Such favoritism is rampant in antitrust, because all government interventions in the marketplace involve granting one group special favors at the expense of someone else. The healthcare issue also demonstrates a related regulatory principle: When regulation fails, the government reasons, it must be the fault of the market, not the policy. That’s why Medicare price controls were implemented in the first place, because government leaders would not admit the Medicare policy itself was responsible for higher costs.

Rights and Reason: Texas housewife busted for hawking erotic toys


A Texas housewife is in big trouble with the law for selling a vibrator to a pair of undercover cops, and the Brisbane vibrator company she works for says Texas is an "antiquated place'' with more than its share of "prudes.''

Joanne Webb, a former fifth-grade teacher and mother of three, was in a county court in Cleburne, Texas, on Monday to answer obscenity charges for selling the vibrator to undercover narcotics officers posing as a dysfunctional married couple in search of a sex aid.

Webb, a saleswoman for Passion Parties of Brisbane, faces a year in jail and a $4,000 fine if convicted. []
I think it's the town police department and town officials who should be arrested for obscenity. This is what happens when you leave religious conservatives in charge.

Capitalism and the Law: The People v. Lala Wang

CAC's Skip Oliva offers a case study on the injustice of business regulation today at Initium:

Wang is the founder of, an interactive portal site that allows customers to access a real-time database of real estate listings. In her years as a real estate broker, Wang never faced a single consumer complaint. But her perfect record and satisfied customer base did nothing to dissuade the New York Department of State from trying to shut down her business. The Department claimed Wang's Internet database was, in fact, an unlicensed AIV. Wang disagreed, arguing that a real-time, interactive web portal was about as far from the static AIV lists of the 1970s as you could get. Her service had none of the consumer fraud pitfalls of those older, largely extinct businesses. But the Department would not waiver, and they suspended her real estate broker's license until she agreed to rid herself of . .
What is impressiveve about this case is Ms. Wang had the courage to fight back. I wish her the best as her petition for certiorari goes before the US Supreme Court.

The War: Operation Red Dawn After-Action Report

Our military sources have provided us with a copy of the Combined Joint Task Force's official slideshow report on Operation Red Dawn. To download, click here (Microsoft PowerPoint, 5.91 MB)

Monday, December 15, 2003

The War: Enola Gay Protesters Disrupt Museum Event

Some anti-nuclear protestors still fighting the 2nd World War.

A small group of protesters briefly disrupted the official opening of the National Air and Space Museum's new annex at Dulles International Airport Monday, spilling a red liquid supposed to resemble blood near the Enola Gay exhibit and throwing an object that dented the airplane.

Two men were arrested after security broke up the demonstration. Thomas K. Siemer, 73, of Columbus, Ohio, was charged with felony destruction of property and loitering, while Gregory Wright of Hagerstown, Md., faced a misdemeanor loitering charge.

Several elderly atomic bomb survivors from Japan also expressed dismay that information on the effects of the bomb dropped by the Enola Gay on Hiroshima Aug. 6, 1945, was not included in the exhibit.

"If they want to show these planes, that's fine but we can't help but also demand that they show the damage and the stories that take place behind these weapons," said Terumi Tanaka, 71, a survivor of the Nagasaki atomic bomb attack which occurred three days after Hiroshima. [AP]
Rather than display the Enola Gay in Northern Virginia, I hold that the aircraft should be displayed as part of the USS Arizona memorial. Along with the USS Missouri, the Enola Gay would show the Alpha and Omega of the Pacific Theater with an undeniable poignancy—and as an irrefutable argument.

Corporate Cowards: Dow AgroSciences

It is often considered axiomatic among advocates of the free market that all businessmen are heroes. On the contrary, all but a few businessmen fail to defend even their most basic rights, and their cowardice results in the destruction of untold amounts of wealth. As part of a new project, CAC is going to highlight these corporate cowards and expose them for their wealth–destroying ways. Appropriately, today's "Corporate Coward" award goes to Dow Chemical subsidiary Dow AgroSciences and its CEO A. Charles Fischer.

A subsidiary of Dow Chemical Co. will pay a $2 million court-ordered penalty to the state of New York for illegal safety claims in advertising of its pesticides.

"By misleading consumers about the potential dangers associated with the use of their products, Dow's ads may have endangered human health and the environment by encouraging people to use their products without proper care," New York Attorney General Spitzer said Monday.

Spitzer said the penalty involving the popular Dursban and other pesticides is the largest penalty in the nation's history for this type of case.

Dow AgroSciences agreed to the $2 million penalty, but admitted no illegal or erroneous advertising, said spokesman Garry Hamlin. He said the firm settled to avoid a costly court case.

Spitzer had alleged that Dow AgroSciences violated a 1994 agreement between the company and the state that prohibited advertisements touting the safety of its pesticide products.

"The 1994 agreement restricted our ability to support and defend our products," said Guy A. Relford, the company's head of litigation, "even if our statements were true."

For instance, Relford said, the old agreement was interpreted by Spitzer as prohibiting telling people that the federal Environmental Protection Agency had registered one of Dow's products as a reduced risk pesticide.

State Supreme Court Judge Joan Madden in Manhattan issued the consent order that requires the firm to pay the $2 million penalty, prohibits it from making safety claims about its pesticides, and requires it to start a compliance program. That program will include an internal review of all ads and future ads by Dow in New York state and removal of any safety claims. The company will also have to provide training to comply with advertising restrictions. [AP]
If Dow AgroSciences believed its advertising to be true, why didn't it fight for its right to make its claims until the bitter end? Why didn't it fight against New York corporate Czar Elliot Spitzer's plainly erroneous reading of its earlier settlement? (Spitzer lists every one of these claims as false and misleading. By Spitzer's apparent standards, every advertising claim could be held as misleading.) Does anyone truly believe that by giving Elliot Spitzer a $2 million settlement, Dow is not admitting to illegal or erroneous advertising?

There is no excuse for Dow AgroSciences capitulation. A businessman has every right to make truthful advertising claims. Such freedom is essential if a businessman is to be able to communicate the virtues of his products with potential customers. And every businessman’s commercial speech should be afforded the same 1st Amendment protections as his political speech—commercial motives should never be used as an excuse to place speech into an intellectual ghetto.

Yet it would seem Dow AgroSciences believes otherwise. The only justification Dow could possibly offer its investors and the public is that its executives are sniveling bedwetters too timid to defend their most basic rights. Given such cowardice, Dow’s investors would be well served to find themselves a CEO who is willing to fight for his business’s freedom of speech.

The War: Saddam Down, Iran Next?

The people of both the United States and Iraq can take great comfort in the news of Saddam Hussein’s capture by US forces. Yet without taking anything away from the greatness of yesterday’s milestone, Americans should not lose sight of the other challenges that remain to be faced.

One continuing problem with the Bush Administration’s Middle East strategy is that while the threat of Iraq has been answered, the larger question of the rising threat of Iran remains. It is no secret that Iran seeks nuclear weapons. Yet what exactly is the US position toward Iran? Will we seek to contain it, like we contained the former Soviet Union? Will we provide support and moral sanction to those in Iran who seek to overthrow the mullahs? Will we attack Iran, and place its terrorist-supporting leaders in cells adjoining Saddam’s? Or will we ignore Iran, like we ignored it in the years prior to 9/11? America’s strategy toward Iran remains to be seen.

And it ought to be noted that a consequence of the Bush administration’s strategy of delay as it begged the world’s favor in dealing with Iraq is that America is now perceived simultaneously as a hegemonist and a weakling. Our enemies know that Iraq was the easy target compared to Iran, yet it took us over a year after the shock of 9/11 to invade it. All that time, America’s leaders repeatedly genuflected toward international opinion. America’s leaders repeatedly attempted to appease untrue allies when the proper response would have been to act boldly and without the sanction of any body other than our own institutions. And America’s leaders repeatedly placed “Iraqi freedom” before “American security” as our primary purpose.

Yet despite the administration's missteps, the fundamental truth remains. If it is true that the US was right to apply force to Iraq to prevent a bloody dictatorship from obtaining WMD’s, the same holds true for Iran.

It has been said that the capture of Saddam was made possible by the successful integration of many different sources of intelligence. I hope our leaders will be capable of the proper moral integrations necessary to subdue Iran.

Rights & Reason: Sabotaging Affirmative Action

The Foundation for Individual Rights in Education is up-in-arms because colleges are discouraging "affirmative action bake sales"—conservative-staged events where cookies are sold at different prices to customers depending on their race. It was a cute trick the first time it was tried, but the fact that they're still being staged tells me college conservatives aren't the most original thinkers. And while FIRE does nice work on free speech issues, I'd take them more seriously if they didn't defend anti-individual-rights militants like John Banzhaf.

An idea that's worth exploring, however, is the campaign started by a group called Their objective is to encourage "civil disobedience" against affirmative action: is an organized protest of affirmative action. More specifically, we're protesting college entrance racism by organizing people who wish to mark their race incorrectly on college admission applications. If enough people do it, then schools' racial statistics become unreliable. Colleges and Universities will be placed in the position of trying to turn away people when they show up for classes because of the color of their skin. And, once we get a sizeable number of people who have signed up, we'll post the number of people from each school who have signed the petition, effectively informing entrance administrators that their system sucks. All this will expose racial preferences for what they really are: racism.
I don't know if this will work, but it's definitely worth a try.

Sunday, December 14, 2003

Politics: Saddam Captured

My first thought when I heard U.S. troops found Saddam Hussein and a briefcase wih $750,000 in cash: Maybe Saddam's making a contribution to Howard Dean. "Ba'athists for Dean" does have a nice ring to it. And before you send me nasty e-mails, remember Dean and Hussein both support government control of the media and hiding behind the United Nations. Other than that, they're both fiscally conservative, pro-capitalist leaders.

Capitalism & Law: Mired in Judicial Quagmire

This week’s Supreme Court decision upholding restrictions on free speech (aka “campaign finance reform”) should not be taken seriously by rational men. I say this not because of my particular disagreements with any of the opinions, but because the Court itself did not take this case seriously. Consider the head note announcing the justices’ vote:
Stevens and O’Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion Scalia, J., joined as to Parts I, II—A, and II—B. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C. J., joined, in which Scalia, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which Thomas, J., joined with respect to BCRA §213. Rehnquist, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens, J., filed an opinion dissenting with respect to BCRA §305, in which Ginsburg and Breyer, JJ., joined.
Altogether the Court issued six opinions. Not being a lawyer or an academic, I find this judicial schizophrenia quite irritating and frankly dangerous. When Congress passes a law, it acts as a body to produce a single law reflecting the consensus of its members. Juries are required to pass unanimous verdicts on the most trivial of criminal offenses. Yet when we put nine highly qualified justices on the Supreme Court, they allow themselves to go off in a dozen directions without any commitment to sustaining the common law. That’s just sickening.

The nation’s third and most important chief justice, John Marshall, came to the Supreme Court having never served as a judge. Marshall was a politician, having served in the Virginia and federal legislatures, and as secretary of state for the first President Adams. When he took over as chief justice in 1801, the court still used the English practice of each appellate judge issuing his a separate opinion—known as a seriatim opinion—with the Court as a whole pronouncing a judgment. That practice effectively ended in 1803, when Marshall issued an opinion for the entire Court in Marbury v. Madison, the case that established judicial review of congressional actions. The concept of issuing a single common-law opinion for the Court was perhaps Marshall’s greatest contribution to American culture. It reflected, I believe, Marshall’s view that for the law to have true authority in a republic, the Court’s views must be clearly explained in a manner understood both by the immediate parties to a case and the public generally.

In many 19th century cases, it was common for justices to dissent from the Court’s judgment without issuing a separate opinion. That is obviously no longer the practice. More problematic, however, is the routine practice of issuing concurring opinions, which allow a justice to join the Court’s final judgment but not its reasoning. This practice has led to a breakdown in the common law. There are now cases where the parties and their attorneys don’t know what a court’s decision really means. In major cases, the Court has all but given up on trying to reach a five-justice consensus behind a single opinion. Indeed, the fact that so many major cases are decided by a 5-4 vote is cause for concern. The rights of American citizens should not routinely hinge on how Sandra Day O’Connor is feeling on a particular morning, yet that’s practically what the system has decayed into.

Opinion glut is not simply a matter of bad jurisprudence; it poses a direct threat to the foundation of an individual rights republic. The BCRA case is a prime example. Because of the opinion’s complexity, lack of clear principle, and fractured nature, the inevitable result will be hundreds if not thousands of additional cases designed to figure out just what the Court meant. This creates more work for lawyers, and if history has taught us anything, it’s that more work for lawyers means less individual rights for the rest of us. The common law only works when the common man can understand the rules without having to depend on lawyers. That’s why they call it the “common” law. But more and more, this country is turning into a pale model of the French civil system, where rights exist exclusively at the behest of state regulators.