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Texas Congressman Ron Paul has introduced legislation to exempt physicians from the antitrust laws, thus freeing them to form associations to voluntarily negotiate with health plans. You can get complete information about the Paul bill at CAC’s H.R. 1247 Legislative Action Center.
::: posted by Skip Oliva
at 4:26 PM | link
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UMiami update
Donna Shalala backed down under pressure over the Advocates for Conservative Thought debacle:
Several articles have appeared in the media today regarding the University of Miami's Committee on Student Organizations (COSO) and its decision to deny a student group recognition as an official student club. Such recognition is important because it allows student organizations access to funding, space, and other benefits through student activity fees.
The Committee on Student Organizations is enforcing a rule that was developed years ago by others. I think it is perfectly acceptable for Committee on Student Organizations to develop recommendations or standards for the formation of student organizations on campus. But the purpose and content of those organizations absolutely should not be subject to review.
On the surface, Committee on Student Organizations' policy may sound logical and defensible, given limited resources and space, but the end result is that the policy protects existing organizations and makes it challenging for new organizations to be formed.
I have asked Committee on Student Organizations to implement a new policy that is consistent with the principles of free speech, academic freedom, and competition.
In addition, I have asked them to convene a meeting immediately to review the application for the Advocates for Conservative Thought.
::: posted by Skip Oliva
at 4:21 PM | link
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And another thing...
In almost every court, there are prescribed page (or word) limits on the length of briefs and other filings made by litigants. In light of the 1,625 ruling in the campaign finance case, perhaps the judiciary should consider limits on their own opinions. At least something reasonable, like no more than 1,000 pages per case.
::: posted by Skip Oliva
at 4:12 PM | link
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Judicial train wreck
Yesterday a three-judge federal court issued a ruling in the numerous challenges to the Bipartisan Campaign Reform Act (BCRA), popularly known as McCain-Feingold. I’d discuss the decision, except that I’m still not sure what was actually decided. The court’s “opinion” is a mess, stemming a combined 1,625 pages and featuring separate writings from each of the three judges. Judging by the size alone, and without having read a single page, I can safely label this case a travesty. In a nation that requires juries to render unanimous verdicts in even the most routine of criminal cases, we are somehow unable to find three life-tenured federal judges who can agree on a single opinion in a major constitutional case? While I understand the complexity of the law at issue, the court’s voluminous production here is a mockery of common law and judicial review.
As to the merits of the case, I express no great interest. Both sides of the political argument hold reasonable views. BCRA supporters argue politics is corrupted by money, while opponents emphasize free speech triumphs over any such concern. These views are justifiable, but ultimately both miss the mark. The campaign finance system is a problem, but not because the system is causing corruption. The corruption of American government stems from a breakdown in ideological principles, not the fact that interest groups are raising soft money for political parties. John McCain, BCRA’s chief architect, is himself one of the most corrupt members of the United States Senate. In recent years, he’s championed numerous causes promoting the government’s violation of individual rights. Indeed, “campaign finance reform” is merely the latest assault on the Constitution perpetuated by Senator McCain. His corruption has nothing to do with the campaign finance laws, and everything to do with lusting after power.
On the other hand, I simply can’t get that upset over the campaign finance issue. Ultimately, the Supreme Court will strike down the blatantly unconstitutional parts of BCRA, and whatever remains will be ineffective. If there’s one constant in American politics, it’s that smart operatives can get around any dumb, ill-conceived restriction. The BCRA is nothing more than a case of politicians regulating other politicians. At best, it’s a fools’ errand. And, frankly, this whole fiasco may yield a positive benefit: Once people realize that campaign finance laws won’t “improve” the government, people may just stop looking for scapegoats, and start addressing the underlying ideological problems with the modern welfare state.
::: posted by Skip Oliva
at 4:09 PM | link
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Expanding the war on physicians
Nick Provenzo arrived in Vail, Colorado earlier this evening (after an arduous journey) and is ready to wow the folks at the Colorado Medical Society this weekend. Tomorrow the CMS conference will feature Jeffrey Brennan, the Federal Trade Commission’s chief health care prosecutor, who will present a talk called “We’re the FTC and we’re here to help.” No, seriously, he is.
Actually, it seems Brennan took care of some business before heading off to Vail himself. This morning the FTC announced that they decided to “help” a New Mexico physician group by putting a (proverbial) gun to their head and forcing them to sign a consent order. Carlsbad Physician Association, Inc., and seven individuals named separately agreed to never, never again try and assert themselves in the marketplace. Brennan and his thugs accused CPA of collectively bargaining with insurance companies. Or, as the FTC complaint describes the situation:
Since its inception, CPA has operated solely to exert the collective bargaining power of its members. It engages in no activities or functions other than health plan contracting. Further, in connection with health plan contracting, its members do not engage in any cooperative activities to benefit consumers.
Respondents have succeeded in forcing numerous health plans to raise fees paid to CPA members, and thereby raised the cost of medical care in the Carlsbad area. As a result of the challenged actions of respondents, CPA members receive the highest fees for physician services in New Mexico. By orchestrating agreements among CPA members to deal only on collectively determined terms, together with actual or threatened refusals to deal with health plans that would not meet those terms, respondents have violated Section 5 of the FTC Act.
It’s hard to overemphasize the problem here: The FTC wants us to believe that every other professional in this country is entitled to collectively bargain, yet somehow doctors may only exist as serfs beholden to their HMO masters. Not only that, the FTC also wants you to believe that it’s illegal for doctors to want to earn more money for their services! There’s no law which actually says this, but the FTC has taken it upon themselves to deal with the nation’s rising health care costs. Of course, the FTC is supposed to be in the business of law enforcement, not policy making, but such distinctions are irrelevant when you have unrestricted power and a taxpayer-funded budget.
The most noxious argument in the FTC’s complaint is their charge that physicians broke the law by refusing to deal with health plans individually. In other words, a physician who voluntarily decides to negotiate through a physician group is a criminal simply for exercising his right of free association, a right specifically enumerated in the First Amendment. Indeed, the FTC seems to implicitly understand the importance of the First Amendment. That’s why one of the consent order’s terms prevent the CPA physicians from even exchanging contract information among themselves. That’s right: the basic act of speech is unprotected against antitrust enforcement. And if speech isn’t protected, free association sure is hell isn’t.
In a odd way, however, today’s FTC decision may be useful. No doubt Nick will use this travesty of justice in New Mexico to impress upon the Colorado physicians the importance of waging a vigorous counter-attack against the FTC and all those who seek to destroy the medical profession via antitrust.
::: posted by Skip Oliva
at 1:00 AM | link
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Friday, May 02, 2003 :::
The "voucher wars" come to Washington
D.C. Mayor Anthony Williams now backs the Bush administration's plan to introduce limited "vouchers" into the District's government school system. The proposal would establish a pilot program in D.C. permitting parents to obtain vouchers for their choice of public or private school. The mayor's endorsement, however, does not represent a united view. Many D.C. officials prefer to keep the city's children as hostages of the teacher cartel:
"Public tax dollars should not go to sending children to private institutions that do not endure the same amount of scrutiny regarding their education measures as the [public] school system," D.C. Council member Adrian Fenty, Ward 4 Democrat, said in a written statement.
Fenty's statement ignores reality. D.C. schools have the highest per-pupil spending rate in the nation, yet performance is among the worst. Furthermore, the amount of "scrutiny" given the government schools is suspect. Accountability has never been a first principle of D.C. govermnent officials, who spend more time whining about their lack of tax revenue than they do lowering the burdens on businesses and economic development.
Not surprisingly, the teacher cartel (i.e. unions) are livid about even the thought of vouchers:
"It is disingenuous at best and duplicitous at worst to siphon money from the District's public schools to finance vouchers for private school education when there is already a proposal to cut $100 million from the city's school budget," said Sandra Feldman, president of the American Federation of Teachers, the parent organization of the Washington Teachers Union.
"If voucher advocates really want to help students and strengthen D.C. schools, they should stand with the citizens and teachers of Washington, D.C., who oppose private school vouchers and support the use of effective educational programs and strategies," Miss Feldman said in a statement.
Feldman has no credibility to make her arguments. For one thing, the AFT has actively opposed numerous measures that would put the interests of students ahead of the union. Consider merit pay. It's a simple proposition—pay the better teachers more money without regard to seniority. This principle is applied in almost every business in America, yet its antithetical to government school administration, because the AFT will only support seniority-based pay systems. But if we're supposed to put the students first, shouldn't we ensure that only the best teachers are out there?
And who exactly opposes vouchers outside the union? Are we really supposed to believe that any parent—at least any rational parent—would intentionally deny themselves greater choice and control over the child's education?
::: posted by Skip Oliva
at 12:46 PM | link
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Civil vs. common law
Cato's Richard Rahn has a superb column in today's Washington Times on the conflict between common law and civil law in the United States. Rahn provides the type of intellectual depth and context that's missing from much of the current political debate over "judicial activism" and legal reform:
America has been blessed with the English common law system, or customary law based largely on precedent and statutes in effect in England under James I in 1603. Many of the former English Colonies adopted the common law system. Continental Europe, on the other-hand, and many other countries adopted a civil law system based on detailed written codes.
The civil law system traces its origins to the ancient Roman law system. The most famous of these civil law systems is the "Code Napoleon" of 1804, which serves as the basis for modern French law.
It is widely recognized that the "rule of law" is necessary for a civil and prosperous society. But in order to have a "rule of law," people need to know what the law is and for the laws to be considered reasonable. The Ten Commandments are an example of this principle. Most everyone could memorize 10 rules, but no person can know 10,000 or 100,000 rules. The beauty of the traditional common law system was there were relatively few rules, and the subsequent development of the law was based on the commonly understood first principles. Thou shall not murder, steal, etc.
Unfortunately, in recent decades we have had an explosion in detailed rulemaking that has drifted far from the common law. For instance, 30 percent of all federal criminal laws have been passed since 1970. Before 1950, most Americans could pretty well know whether an action they might undertake would violate the law. That has now changed.
In my specialty, antitrust, the problem of civil law is on full display. I'm always amazed that there are literally hundreds of otherwise law-abiding businesses that somehow manage to violate the antitrust "laws" despite retaining highly competent (and highly paid) legal counsel to advise them on antitrust matters. If antitrust law was objective and concise—that is to say, if it was understandable by the commoner—you wouldn't see the plethora of merger reveiews and FTC consent orders you see today. Indeed, the FTC would probably be out of the antitrust business altogether, since no rational business would deliberately incur the agency's wrath.
::: posted by Skip Oliva
at 12:31 PM | link
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Talkin' baseball...
Sen. Chuck Schumer, New York Democrat, took some time from his busy schedule (i.e., obstructing judicial nominees and regulating spam) to lobby Major League Baseball Commissioner Bud Selig to give Puerto Rico the Montreal Expos:
Dear Mr. Selig.
I am writing today in support of Puerto Rico getting its own permanent Major League Baseball team.
The strong ticket sales and exuberant crowd reaction to the four-game Mets-Expos series that ended Monday shows that Puerto Rico could support its own Major League Baseball team. Even for those of us who could only watch the games on television, the intensity of the fans at Hiram Bithorn Stadium came through loud and clear.
Over 65,000 tickets we sold to people who were eager to see a Canadian team play a team from New York. The crowd went wild for players from both sides, which bodes very well for the future of a team in Puerto Rico. As you know, baseball teams typically take years to build fan loyalty and ticket sales. Crowds coming out to see their favorite players on visiting teams will boost ticket sales in the crucial first years in the Puerto Rican market.
The experiment of playing big league games in Puerto Rico succeeded beyond anyone's expectations, and Major League Baseball now should give very serious consideration to giving Puerto Rico a team of its own.
Sincerely, Charles E. Schumer United States Senator
If you're wondering why Chuck cares about this, keep in mind Election Day 2004 is fast approaching, and Schumer is looking to cover his re-election bases. New York has a large Puerto Rican community, and Schumer seems to think putting the Expos in San Juan will make his constituents happy. Not that this makes much sense. After all, Puerto Ricans living in New York who follow baseball are likely Mets or Yankees fans. More importantly, Schumer's economic analysis is wanting. The recently played Expos games in San Juan took place in an 18,000 seat minor league stadium. That's hardly a fair test of Major League potential. Plus you have the fact that there are two U.S. cities—Washington and Portland—which are much further along in the bidding process for the Expos than San Juan.
Schumer's San Juan-lobbying is particularly problematic for Major League Baseball given that other members of Congress have for years threatened to retaliate against baseball if they didn't put a team in Washington. Commissioner Selig must now decide which group of politicians to alienate in the process of making what is, and should be, purely a business decision. Granted, Schumer was simply currying political favor and is unlikely to act should baseball not relocate the Expos to San Juan, but that's not the point. Schumer had no business opening his mouth (in an official capacity anyway) on a private business decision of no relevance to his state.
::: posted by Skip Oliva
at 12:24 PM | link
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Off to Vail!
I'm off to the Colorado Medical Society's "Physicians are Not Criminals" weekend seminar at Vail, Colorado, where I will address the physicians on Sunday about how CAC can help them defend their rights against antitrust attack. Jeff Brennan from the Federal Trade Commission will also be there to give an address titled "We are Borg, Resistance is Futile." Oops, No, that's not it. It's "We're the FTC and We're Here to Help You."
Needless to say, I expect an interesting weekend. I'll blog about how it went when I get back.
::: posted by Nicholas Provenzo
at 8:50 AM | link
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Thursday, May 01, 2003 :::
The Stamp Act Crisis: The First Defense of Freedom in America
In a speech given before the Ashland Colloquium, University of Kentucky Ph.D student J. Patrick Mullins says the American Revolution was, in essence, the American people’s defense of their right not to be deprived of their property without their consent. The Stamp Act Crisis was the first battle in that defense.
Mullins' speech examining the causes of the Stamp Act Crisis is now available at the Center for the Advancement of Capitalism's website at: www.capitalimcenter.org.
::: posted by Nicholas Provenzo
at 10:57 PM | link
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Any why do they even care?
When does a University president refuse to stand up for intellectual freedom on campus? When that president is non other than Donna Shalala, former Clinton Cabinet member. According to the Sarasota Herald-Tribune, four University of Miami conservatives claim the student government is blocking them from starting a club and say the college's president, Donna Shalala, has refused to intervene.
The students say they were told by student leaders that since the university already has a College Republicans chapter, there was no need for another conservative group. Shalala, who was Clinton's Health and Human Services secretary, has ignored a letter asking for help, the four women and their supporters say.
They call the decision discriminatory, because along with a Democratic club, the school has several groups that they say represent liberal beliefs and causes, such as Amnesty International and Students for a Free Tibet.
It seems to me that the University thinks that left of center students have many different nuances to their ideas, while right of center students are but one homogeneous blob (and I’d wager $5 they call that blob “ultra-right wing.”)
How typical. I think that the largest, most comprehensive private research university in the southeastern United States with a reputation for academic excellence should have room for more than just one right of center student group, if that's what students want.
Google Search Disclosure: My uncle is a professor at the School of Education at the University of Miami. I have not spoken with him about this or any other university policy.
::: posted by Nicholas Provenzo
at 6:26 PM | link
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When is Don Luskin going to replace Paul Krugman at the New York Times?
Don sure has my vote. He's been totally demolishing Krugman's case against the Bush tax cuts.
::: posted by Nicholas Provenzo
at 3:44 PM | link
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Who keeps Latino culture down? We do, we do.
In a full page open letter to Karl Rove published in yesterday's Washington Times, New York State Senator Efrain Gonzalez, Jr., chairman of the National Hispanic Policy Institute claims that if the Federal Communications Commission approves Clear Channel's acquisition of Univision, non-Latinos will come to control Latino culture. The letter reads in part:
Dear Karl:
As staunch supporters of President Bush, we have been heartened by your public statements about reaching out to the Hispanic-American community. Coming from the chief White House Advisor on political affairs, your words raise the hopes of every American of Hispanic heritage.
The question is, do your statements reflect a true concern by the Bush Administration for the interests of our community or are they only political rhetoric?
. . .The issue before the FCC is whether to NON-Hispanic media giants - Clear Channel and Univision - will be allowed to dominate and control the nation's Spanish language radio market, and, in turn, Latino culture.
Clear Channel, as you know, is owned by Lowry Mays, the Texas-based media tycoon who boasts openly of his influence in the Bush White House. Univision is owned by Jerry Perenchio, the California media czar, who like Mays, is a heavy contributor to Republican campaigns.
Fact: Neither Clear Channel nor Univision lists a single Hispanic among its top corporate executives or board members. What is even more disturbing to the Hispanic-American community is that the owner of Univision is the same Jerry Perenchio who openly campaigned on behalf of California's anti-Hispanic Proposition 187 during the Pete Wilson years.
Fact: A poll taken by Opiniones Latinas shows that an overwhelming majority (87%) of Hispanic-Americans belive that Spanish-speaking radio stations owned by Latinos are better able to understand and respond to the needs of Hispanic listeners.
Yet if the Clear Channel-Univision alliance is approved, independent Hispanic station owners across the country will face a future of being either devoured or crushed by a NON-Hispanic media monopoly[. . .]
This letter has to be a new low. Gonzalez is demanding that the government deny a legitimate business merger on strictly racial grounds. He calls Jerry Perenchio, a businessman who earned his position by hard work and intelligence a "czar." He claims that it is impossible for non-Latinos to grasp the interests and culture of those they would seek to have as radio listeners. If that were true, wouldn't it spell the end to the Clear Channel-Univision alliance, as radio listeners flocked to media that better represented their tastes?
That Gonzalez does this all so openly and defiantly makes his demand all the more obnoxious. The White House ought to answer this letter with a resounding "no." It is one thing to seek new members for the Republican Party among neglected groups. It is another thing altogether to accommodate extortion demands such as this.
::: posted by Nicholas Provenzo
at 12:24 PM | link
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Recording Industry Targets Kazaa Users
File sharing technology has made the theft of intellectual property all but routine, especially on America's college campuses. Now, the recording industry is using that same technology to send a warning to those who steal music online. According to the AP:
The recording industry has tapped into two Internet file-swapping services and is flashing messages to music traders warning them they're breaking the law.
"COPYRIGHT INFRINGEMENT WARNING," the message reads. "When you break the law, you risk legal penalties. There is a simple way to avoid that risk: DON'T STEAL MUSIC."
At the same time, the industry is collecting the user names of people suspected of illegally offering copyright material with the file-sharing services Kazaa and Grokster, but it doesn't intend to pursue legal action, said Recording Industry Association of America (news - web sites) President Cary Sherman.
Sherman, who announced the effort Tuesday, called it "educational" and said "there's no enforcement connected to this."
Kazaa owner Sharman Networks likened the RIAA campaign to spam meant to confuse users. Grokster Ltd. President Wayne Rosso called it "a death rattle."
"It doesn't bother us, because we are very anti-copyright infringement anyway," Rosso said. "They think they're harassing us. No. What they're doing is declaring war on our users."
Hey Mr. Roscoe, that's users who wantonly steal as if it was a matter of right. And isn't it a little bit ironic that you would condemn as spam a message sent in response to outright theft? If this is a war, who fired the first shot?
I think that the case for intellectual property has to be brought to our college campuses. Basically, a whole generation of Americans is acting as if it had the right to anything and everything as long as it exists in binary code. The information age is their age--if they choose to pirate it away, they will only stand to lose long term.
::: posted by Nicholas Provenzo
at 9:57 AM | link
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Wednesday, April 30, 2003 :::
FTC boss can see clearly now
For all their anti-capitalism bluster, the Federal Trade Commission does seem to like some large businesses, such as LensCrafters. In formal comments to the Tennessee legislature, FTC Chairman Timothy Muris urged legislators to reject proposed restrictions on commercial optometrists in the Volunteer State. The proposed bill, according to Muris, regulates without providing any tangible consumer benefits:
Senate Bill 855 begins with the statement that optometrists "shall be free from any influences that would interfere with their exercise of professional judgment," and that "optometrists shall not be associated with any person or persons in any manner which might degrade or reduce the quality of visual care received by the citizens of this state."
The next section then states: "A manufacturer, wholesaler, or retailer of ophthalmic materials who leases space to an optometrist shall not, directly or indirectly, control or attempt to control the professional judgment, manner of practice, or practice of an optometrist."
* * *
These restrictions would apply to all manufacturers or sellers of ophthalmic materials who lease space to optometrists, thus limiting the relations between optometrists and the optical store in which some may choose to practice.
Muris correctly recognizes that this bill would interfere in the private, voluntary relationship between optometrists and the commercial retailers they work for. On this ground alone, the bill should be rejected as contrary to the principles of individual rights and capitalism. But Muris, of course, is not a capitalist, thus his arguments against the bill are rooted in consumerist thought:
Restraints on competition from optical chains may make consumers better off if such restrictions improve the quality of eye care or lead to other consumer benefits that would not be produced by firms operating in a competitive marketplace. Senate Bill 855 would create net benefits for consumers if the value to consumers of any improvement in the quality of eye care attributable to the Bill is greater than the harm imposed on consumers by the reduction in competition. We respectfully urge the Tennessee legislature to weigh the impact on competition of the prohibitions in Senate Bill 855 against any benefits that the Bill's restrictions might create for consumers.
Muris goes on to cite “empirical evidence” gathered by the FTC which shows the proposed bill’s restrictions are pragmatically unnecessary. In other words, it’s okay on principle to violate private contract rights, but only if you can produce some data which demonstrates some potential “benefit” to consumers.
The “empirical evidence” argument is a hallmark of Muris’ FTC leadership. Superficially, it sounds appealing, as it seems to emphasize the importance of data in assessing antitrust claims. But in reality, the FTC usually treats “empirical evidence” as a series of random concretes which have no underlying concept to tie them all together. For example, in merger review cases, the FTC often manipulates “empirical evidence” to create market definitions that are not supported by objective facts. This happened last year when the FTC went after MSC.Corporation, arguing the software company monopolized a market which consisted entirely of MSC’s own product. The FTC ignored industry analysts—and even MSC competitors—who argued the actual market definition included a number of products arbitrarily excluded by the FTC’s so-called “empirical evidence.”
Indeed, I’m willing to bet that given the FTC’s data on optometry, I could fashion an “empirical evidence” argument in support of the Tennessee legislation. As the old adage goes, there are lies, damned lies, and statistics.
::: posted by Skip Oliva
at 7:18 PM | link
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Iowa's highest-paid drunk
Larry Eustachy is the State of Iowa’s highest-paid employee, earning about $1 million annually to coach Iowa State University’s men’s basketball team. Eustachy holds a prominent leadership position which requires him to represent the university publicly in various capacities, most notably as a recruiter for the basketball program. Like all coaches, Eustachy must personally sell students (and their parents) on the value of attending Iowa State over other schools, including Iowa State’s various competitors in the Big XII Conference. For all these reasons, Eustachy’s personal integrity is essential to his ability to perform his duties to Iowa State University and, more generally, to the Iowa taxpayers who pay his salary.
This week the Des Moines Register reported Eustachy, on two occasions, attended late-night parties on the campuses of two Iowa State opponents after games. At one such party, held on January 23 at the University of Missouri, Eustachy was photographed drinking with students and kissing several female students on the cheek. That Eustachy did this as a 47 year-old married man with two children is bad from a personal standpoint. That he did so as a representative of Iowa State University is bad from a professional standpoint, given the importance of a basketball coach’s reputation and integrity.
A year earlier, Eustachy attended a party at Kansas State University, like Missouri a conference rival of Iowa State. The Des Moines Register reported this account of Eustachy’s actions:
In January 2002, the coach was at an early-morning fraternity party in Manhattan, Kan., hours after his team lost a game to Kansas State, students told the Register. On that occasion, a fraternity member said he wound up in an argument with Eustachy because he found the coach's arm around his 19-year-old sister.
The woman told the Register that Eustachy walked into the house and complimented her on her appearance, saying that she should be attending the University of Kansas, where the girls are "much hotter."
Under Eustachy’s contract with Iowa State, which runs through 2011, the coach is required to provide "positive representation of the university and the university's athletic programs in private and public." It’s hard to argue Eustachy’s actions at the two parties did not violate this requirement. Eustachy admitted his actions, but earlier today refused to resign.
Eustachy’s defense proved more interesting than the photos in the Register. Eustachy claimed his job should be saved on the grounds that he’s an alcoholic:
"For the rest of my life I will seek counseling for this illness,'' [Eustachy] said. "I have no excuses for my behavior. ... We'll see what happens in the future, but I am looking forward to the future as a sober person.''
Eustachy says he deserves a “second chance” and should not be fired. This is an unfathomable position. By his own admission, Eustachy has coached a college basketball team for several years with the knowledge that he has a drinking problem. Eustachy said he often drinks “10 or 12” beers during the average workday. Who knows how often the coach was actually drunk while on the job. Who knows what image he was projecting while visiting recruits, representing Iowa State at alumni events, or attending NCAA functions.
Any suggestion that Eustachy’s behavior should be excused because he’s an alcoholic is absurd. If a person has a deadly virus and, knowing he’s infected, fails to obtain treatment and then infects other people, such a person could not defend his actions on the grounds that he was sick. While alcoholism is not contagious, the principle still applies. If you know you have a problem and fail to seek treatment, you are responsible for your actions. The only question is whether Iowa State should fire Eustachy for his misconduct.
The university should fire him, and word late this afternoon is that’s what will happen. Iowa State athletic director Bruce Van De Velde suspended Eustachy this morning and, pending a required five-day appeals period, the university’s president will likely fire him next week. This decision should enjoy no serious dissent. To do otherwise would be an approval of Eustachy coaching college students while admittedly drunk. Most college basketball coaches are fired for far less serious offenses, and Eustachy should receive nobody’s sympathy for his disgraceful actions.
If Eustachy placed any value on his own integrity (to say nothing of the university or the state’s), he would have resigned. But he declined to do so, saying that despite his “poor judgment” and “bad decisions,” it was not “my way” to simply resign. Frankly, coach, it was doing things your way that got you into trouble in the first place. Indeed, had it not been for the pictures in the Des Moines Register, Eustachy would probably have continued to ignore his drinking problem. Asking for a second chance when you were caught in the act is disingenuous, to say the least.
As a post script, I would suggest Iowa State consider hiring Eustachy’s predecessor, Tim Floyd, to return to coach the basketball program. Floyd made a mistake when he left Iowa State five years ago to coach a wretched Bulls team. But unlike Eustachy, Floyd’s error is forgivable without having to go through the Betty Ford Clinic.
::: posted by Skip Oliva
at 6:56 PM | link
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VMI loses again
Seven years ago, the Supreme Court declared the Virginia Military Institute’s male-only admissions policy unconstitutional. As a state-run school, the Court found single-sex admissions violated the Fourteenth Amendment’s Equal Protection Clause. This past Monday, VMI again found itself in constitutional peril, when a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled the school’s “supper prayer” violated the First Amendment rights of VMI students. Virginia state officials are now considering a further appeal to the full Fourth Circuit, although such an appeal is unlikely to succeed.
Circuit Judge Robert King, writing for the unanimous panel, rejected former VMI Superintendent Joseph Bunting’s argument that sponsoring a daily prayer during dinner (in a mess hall where nearly all students attend) effectively amounted to a state endorsement of religion. Two VMI students sued General Bunting, individually and as superintendent when he refused to abandon the supper prayer. These two students have since graduated VMI, which raised the issue of mootness before the Fourth Circuit. Judge King’s opinion answered that question as well as the underlying constitutional issue:
Because the Plaintiffs have now graduated from VMI, their claims for declaratory and injunctive relief are moot, and we vacate the district court’s judgment insofar as it awarded such relief. In assessing the Plaintiffs’ claim for damages, we agree with the district court that the supper prayer violates the Establishment Clause of the First Amendment, but that General Bunting is nevertheless entitled to qualified immunity.
It’s surprising VMI even contested the constitutional issue on appeal. Sponsoring an overtly Judeo-Christian prayer is suspect under normal circumstances. In the context of a military academy, which places great emphasis on social conformity and unit cohesiveness, the “supper prayer” was obviously a coercive attempt to inculcate religious values onto students. There is no other public college in Virginia which could ever get away with this, and VMI is certainly not entitled to any special constitutional waiver.
VMI’s only real defense was that the prayer reflected the school’s tradition and values. The Court noted General Bunting’s belief that the supper prayer "is a precious link to our heritage and an admirable practice for a school of our provenience and culture." As to the law, General Bunting’s attorneys cite Marsh v. Chambers, a 1983 Supreme Court decision upholding the right of legislative bodies to open their sessions with a prayer. Judge King’s opinion rejected any legal similarity between Marsh and General Bunting’s case:
General Bunting first suggests that we should view the prayer as a uniquely historical practice, in an approach similar to that employed by the Supreme Court in Marsh. In Marsh, though, the Court was specifically influenced by the fact that, in September of 1789, members of the first Congress voted to submit the First Amendment to the states in the same week that they voted" to appoint and to pay a Chaplain for each House" of Congress. In upholding the Nevada practice, Chief Justice Burger reasoned:"[t] his unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged."
(Note: Judge King incorrectly describes Marsh as dealing with the Nevada legislature. In fact, the case dealt with the practice of Nebraska’s unicameral legislature.)
Marsh applies only to limited circumstances where the Framers’ intent could unmistakably be determined. These circumstances, however, do not include VMI’s supper prayer, for as Judge King notes:
Put simply, the supper prayer does not share Marsh’s "unique history." In fact, public universities and military colleges, such as VMI, did not exist when the Bill of Rights was adopted.
This is the money line of the entire opinion. Although Judge King does not belabor this point, it is nevertheless a critical identification. Many supporters of expanding religious expression in the public sphere—especially government schools—cite their interpretation of America’s founders as amicable towards the intermingling of church and state. Lost in this argument is the simple fact that the government created in 1788 was never intended to include many of the institutions created since that time. Government schools are foremost among these constitutionally illegitimate institutions.
In the absence of government-run schools, cases like this one never occur. Nobody would seriously question the right of a wholly private institution to require prayer, or any other religious exercise, as part of its curriculum. Thus, the VMI case should not only teach us a lesson about the separation of church and state, but a lesson about the separation of school and state as well.
::: posted by Skip Oliva
at 4:39 PM | link
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FTC v. Rambus
Contrary to popular belief, not every company falsely accused by the Federal Trade Commission settles without a fight. Rambus, a California-based technology firm, is currently fighting FTC staff lawyers tooth-and-nail over charges they committed fraud. The Rambus trial opens later this morning before an administrative (i.e. FTC-appointed) judge. Here's a good summary of the case from George Leopold of EE Times:
Rambus Inc. heads to trial on Wednesday (April 30) before a Federal Trade Commission judge as the company digs in to defend itself against antitrust charges brought by the agency last June.
FTC lawyers will argue that Rambus (Los Altos, Calif.) violated U.S. antitrust laws “by deliberately engaging in a pattern of anticompetitive acts and practices that served to deceive an industry-wide standard-setting organization,” the Joint Electron Device Engineering Council (Jedec).
The group was developing an industry SDRAM standard. The U.S. alleges that during the four years Rambus participated in Jedec's deliberations it concealed patents and pending patent applications involving specific technologies that eventually become part of Jedec's SDRAM spec. The alleged non-disclosure violated the group's rules, and FTC attorneys charged Rambus with violating U.S. antitrust laws.
Rambus has denied it deceived the Jedec group. It has also continued to appeal an adverse 2001 ruling in a federal court brought by other Infineon Technologies AG and has steadfastly refused to settle the FTC complaint prior to this week's trial before Chief Administrative Law Judge James Timony.
“The fact that Rambus's founders believed they had conceived the inventions in question was public information,” the company said in a pre-trial statement. “The inventions were described in detail in publicly available patent documents that were discussed at Jedec and that were closely scrutinized by engineers and lawyers employed by Jedec members.”
In January, a federal appeals panel here reversed a lower-court ruling that Rambus had committed fraud. The decision also reversed a trial court ruling that Infineon hadn't infringed Rambus patents, sending the patent infringement issue back to the lower court.
Shareholders have also rallied on behalf of Rambus, accusing the FTC of harassing the company and urging lawmakers to call off the agency. Those efforts have so far attracted little congressional support.
The FTC trial could last from five to eight weeks.
The problem is not that Jedec doesn't have a debatable claim against Rambus. The problem is Jedec already went to court and lost (at the appellate level) on their claims. The FTC's case is nothing more than an effort by the federal government to interfere with a private breach-of-contract proceeding. If the FTC is successful, you can be sure more businesses in the future will seek FTC intervention instead of going through the normal judicial channels. This is particularly dangerous given the FTC staff's total lack of qualifications to judge industries like Rambus's. It's also a separation-of-powers problem, given that the FTC is attempting to undo a federal appellate court's ruling in favor of Rambus. You may believe the FTC has the better argument, but who should decide these legal questions, an impartial federal court or a politically-motivated group of FTC prosecutors?
I suspect Rambus will ultimately be vindicated, if for no other reason than the FTC's decision is subject to review by a federal court of appeals. The FTC's recent track record before actual judges is pretty bad, and the Article III courts in recent years have been particularly hostile to the FTC's efforts to invent new legal theory. Rambus will no doubt waste thousands on legal fees for the next couple of years, but in the end it's worth it if the FTC is stopped.
::: posted by Skip Oliva
at 1:03 AM | link
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Tuesday, April 29, 2003 :::
Frist Says Santorum's Post Not in Peril
Bad news: according to the AP, "Senate Majority Leader Bill Frist said Tuesday that Sen. Rick Santorum's leadership post is not in jeopardy, providing the Pennsylvania Republican with an important vote of confidence three weeks after his remarks about homosexuals."
"People who work with Rick day in, day out understand he's a man of caring, compassion and tolerance," Frist said. "Strongly religious, a man of great faith, an effective and strong leader. In terms of questioning his leadership ability or position, it's a non-issue."
Has anyone in the Republican Party actually read Santorum's remarks? Santorum attacked the freedom of all consenting adults to control their capacity for sex unless it fits within his view of the family. This is an appalling view.
Imagine if I was the third ranking Republican in the US Senate, and I said that I thought the state had no interest whatsoever in regulating the sexual activities between consenting adults. Then imagine if I said that the courts, under the Ninth Amendment, ought to protect the individual's right to his life and his privacy, as long as he does not initiate force upon another.
I wonder if Bill Frist would support my leadership position, and my 'strong rationality.' Somehow, I doubt it.
::: posted by Nicholas Provenzo
at 1:52 PM | link
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Forest Service Blocks E-Mail Comments
This AP story came in over the weekend and I haven't had the time to address it. The US forest service says it is going to ignore public comments on proposed rule changes when they come from certain e-mail servers or on preprinted post cards.
A spokesman said the agency is not barring all e-mail — only e-mail that goes through an outside server such as a business or environmental Web site. The agency is also barring other "duplicative materials" such as form letters, printed post cards and lists that include spaces for respondents to check off statements they agree with.
Such comments, whether electronic or on paper, can be overwhelming and provide little useful information, said Forest Service spokesman Joseph Walsh. The Forest Service has counted such comments in the past, he said, adding that the new policy is subject to review.
This is a terrible idea. The right to petition the government is fundamental. A citizen has a right to speak their peace at a regulatory hearing and that opinion taken into consideration. That a citizen’s efforts are part of a coordinated group effort is irrelevant. The government can easily separate substantive comments from non-substantive comments, just like it did for the Microsoft antitrust settlement public comment period, when the government received over 30,000 comments. Hundreds of CAC supports lodged their own comments with the Department of Justice opposing any sanction to be placed on Microsoft whatsoever. CAC's own comments were included in the 30 or so "major comments list," fittingly since CAC has followed the case since its inception. Are comments like these to be made irrelevant because they were part of an organized effort on the part of people choosing to communicate their principles to their government? I think not.
So while I vehemently disagree with most of the comments the Forest Service would ignore (they are mostly the product of environmentalists), I think there are better ways for the government to evaluate these comments than by simply ignoring them.
::: posted by Nicholas Provenzo
at 12:08 PM | link
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U.S. Forces Return Fire at Iraq Protest
Hot from the AP: FALLUJAH, Iraq - U.S. soldiers opened fire on Iraqis at a nighttime demonstration against the American presence here after people shot at them with automatic rifles, soldiers said Tuesday. The director of the local hospital said 13 people were killed and 75 wounded.
Just imagine if the Germans, after the Nazi surrender in WWII, took to the streets to protest the American presence. With guns.
This is why we can’t have "democracy" in Iraq. The principle of individual rights will have to be imposed by the US, whether the Iraqi people like it or not.
In his recent Ford Hall Forum lecture, America vs. Americans, philosopher Leonard Piekoff argued that the US should not be sqeamish when fighting a war with a mortal foe--the life of Americans must come before the life of the enemy--even enemy civilians. At first, I blanched at Piekoff's argument, which seemed to fall into the trap of fighting the last war. I was impressed with the fact that the US did not have to kill a whole lot of people in order to defeat Saddam. In four weeks of fighting, our solders were able to take control of a whole nation, with minimal loss of life. But now I'm staring to wonder if there is truth the the argument that the US did not kill enough of our enemy during the war. There are just too many instances where our enemies are not behaving like vanquished foes.
I love and respect those Iraqis that greeted our troops with open arms. But those that haven't, well, I don't have much time for them. And I certainly do not want to see the lives of our fighting men and women sacrificed to bring democracy to the liberty hating people of Iraq.
::: posted by Nicholas Provenzo
at 11:50 AM | link
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U.S.: Most Spam Contains False Claims
This just in from the AP: Internet users skeptical of junk e-mails promising easy money, miracle cures and dream dates are right to be wary: The Federal Trade Commission says two-thirds of the "spam" messages clogging online mailboxes probably are false in some way.
Like I really needed the FTC to tell me that it is unlikely that I could make make millions while working at home with a larger penis while capitalizing on secret investment opportunities from ex-Nigerian government officials.
Tell me, why do these people have a budget?
::: posted by Nicholas Provenzo
at 11:10 AM | link
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Fun with Surveys
I have some fun with a Republican fundraising survey at Initium.
I know, shame, shame, shame. But the Democrats don't send me their surveys.
::: posted by Nicholas Provenzo
at 10:54 AM | link
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Monday, April 28, 2003 :::
Joey Tabula-Rasa
David Brooks has an interesting essay in today’s Weekly Standard where he examines the huge disconnect between rhetoric and reality in the Arab world. That’s really not news by itself; we are all quite familiar with Baghdad Bob’s rather tenuous dance with reality and the wake up he and the rest of the anti-American world received after America’s victory in Iraq.
Where the article gets interesting is when Brook examines a fictional 20 year old American college student he calls “Joey Tabula-Rasa.” Brook writes:
Joey doesn't know much about history; he was born in 1983 and was only 6 when the Berlin Wall fell. He really has no firm idea of what labels like liberal and conservative mean. But now he is in college, and he's been glued to the cable coverage of the war and is ready to form some opinions. Over the past months, certain facts and characters have entered his consciousness, like characters in a play he is seeing for the first time.
The first character is America itself. He sees that his country is an incredibly effective colossus that can drop bombs onto pinpoints, destroy enemies that aren't even aware they are under attack. He sees a ruling establishment that can conduct wars with incredible competence and skill. He sees a federal government that can perform its primary task--protecting the American people--magnificently. . .
. . .The American system of government, moreover, is clearly the best system. In Joey's eyes, the United Nations is a fractious debating society. The European Union is split. The French are insufferable, the Germans both hostile and pacifist. The Arab ruling class is treacherous. Billions of people around the world seem to hate us, and while Joey is aware that there are some reasons to be suspicious of the United States, he resents the way so many people are over the top in their resentment, fury, and dislike. In short, Joey does not look around and assume that the world is moving toward some world government or global unity. When the chips are down, there are very few nations you can trust. Joey is both more trusting of America, and more suspicious of the world, than he would have been if he had formed his worldview in the 1990s.
The second great character on Joey's mind is the American soldier. When Joey thinks of youthful idealism, he doesn't think of college students protesting in the streets, he thinks of young soldiers risking their lives to liberate a people. These are the men and women Joey saw interviewed by the dozen on TV. They seemed to enjoy being in the military. They seemed to believe in their mission. They seemed to be involved in something large and noble even at a young age.
In Joey's eyes, the people who get to do the most exciting things are not members of the meritocratic elite--Harvard and Stanford alums who start software companies. They are the regular men and women of the armed forces, or, as he remembers from the days after 9/11, they are firemen and cops. They are people without prestigious degrees and high income prospects.
Joey naturally feels that while those soldiers are liberating a country and talking about duty and honor, all he is doing is preparing for business school. That doesn't mean he necessarily wants to enlist, but he is aware that there is something lacking in his pampered private life. He also sees, in the example the soldiers set, that discipline, neatness, professionalism, and openly expressed patriotism are kind of cool.
The third character Joey sees is the terrorist. He sees the people who blew up the World Trade Center. In Iraq, people like that piled into pickups and suicidally attacked tanks. They wore those black fedayeen gowns. In Israel, they strap bombs to their waists and blow up buses. Joey is aware that there are a lot of people, especially in the Arab world, who are just batshit crazy. There is no reasoning with these people. They understand only force, and they must be crushed.
Joey sees that some regimes around the world are sadistic and evil. They torture and mutilate their own people. They ignore the basic rules of warfare and civilization. Conflict with these people is inevitable. They lurk in the dark corners of the globe, and for some reason they think they should take out their problems on us. You always have to be on guard, because there really is evil about. . .
. . .[N]ew categories are crystallizing in his mind. These categories--who is progressive, who is conservative, who is reactionary--do not comport with the categories in the minds of people who came of age during the civil rights era, or even the Cold War.
Joey isn't one of a kind. There are millions of Joeys, and variations on Joey. Inevitably, then, in ways subtle and profound, the events of the past month will shape our politics for the rest of our lives.
That’s a very interesting neocon view of the youth of America, but here’s my take on Joey: Joey is a kid who is adrift in a sea of contradictions. He has no reliable compass to guide him—he does not understand explicitly how the mind works, and exactly what the requirements for his personal survival and prosperity are. It doesn't mean a lick what Joey thinks about Iraq or the world at large because he’s utterly clueless on fundamentals.
Joey hears lofty statements said about freedom. He also hears lofty statements about sacrifice. He can’t navigate between them because he was never taught how to think in principle. Joey instead operates in a range of the moment expediency.
He sees an America of wealth and abundance, wants it for himself, but is conflicted by what he hears when he goes to church and when he listens to his professors. Now that he’s in college, he sees that it’s the pro-sacrifice, anti-wealth mentality that seemingly makes the consistent argument. But he also sees that these arguments only lead to horror or absurdity. Instead of realizing that ought to reject bad ideas out of hand, he turns off to ideas as such. He has been taught how to be a pragmatist. And it is precisely when the chips are down and the answers are far form academic that a pragmatist like Joey is no ally. Joey will float with the strongest tide, whatever tide that may be.
Where I do see eye to eye with Brooks is that there are millions of Joeys, and variations on Joey. And frankly, that’s what really worries me.
::: posted by Nicholas Provenzo
at 3:16 PM | link
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Antitrust news
Jury selection begins today in Brooklyn, New York, in an antitrust case pitting more than five million retailers against Visa USA. The retailers claim Visa's insistence that stores whch accept Visa credit cards must also take Visa debit cards violate antitrust laws. Specifically, the retailers are upset because Visa debit cards require signatures, a practice which costs the merchants more than accepting cards which only require a PIN number.
The lawsuit, first filed in 1996, also named MasterCard International as a defendant, but this morning the judge presiding over the trial announced MasterCard reached an "11th hour settlement" with the plaintiffs. U.S. District Judge John Gleeson ordered the settlement sealed while Visa goes to trial, so the terms of MasterCard's surrender are unknown. Still, it's reasonable to infer the MasterCard settlement is a good sign for Visa, especially considering Judge Gleeson has given the plaintiffs a relaxed burden of proof. According to Bloomberg News, Gleeson "ruled earlier this month that they don't have to prove that credit and debit cards are separate products, a key requirement to establish their antitrust claim. He also said Visa's credit-card market share was so large that one could infer it could force merchants to take an unwanted product."
Of course, "force" doesn't actually mean force. It's doubful the retailers will introduce evidence Visa officials put a gun to anyone's head to make them accept debit cards. Especially given that the plaintiffs include Wal-Mart, the world's largest retailer, it's hard to believe any of the plaintiffs suffered a true injury. But in the context of antitrust, simply possessing economic power is sufficient. The jury is unlikely to hear much about the difference between economic and political power, i.e. the difference between a true monopoly (such as the U.S. Postal Service) and a successful corporation like Visa. And given the recent string of antitrust jury verdicts, Visa seems certain to lose at trial. Thankfully any appeal will be heard by the New York-based U.S. Court of Appeals for Second Circuit, a tribunal that has a decent track record of rejecting novel and meritless antitrust claims.
::: posted by Skip Oliva
at 2:56 PM | link
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Compromise & Controversy
Lest we be accused of only pointing out stupid remarks made by Republicans, here’s a sordid political tale from today’s Washington Post:
A senior member of the D.C. Democratic State Committee said yesterday that she plans to ask for the resignation of the city party's chairman, Norman C. Neverson, because he made a provocative statement in a newspaper article that does not represent the philosophy of Democrats.
Barbara Lett Simmons, the party's national committeewoman and a longtime Neverson detractor, said she is appalled that the head of the city's Democratic Party was quoted in the Washington City Paper as saying he would have voted for the three-fifths compromise, in which slaves were counted as three-fifths of a person for taxation and apportionment purposes when the U.S. Constitution was adopted.
"He has expressed a philosophical position contrary to the Democratic Party," Simmons said. "This is 2003. I don't think we can afford in this upcoming year of trying to reclaim the White House and Congress to have 17th-century-mentality leadership."
Simmons, who has been critical of Neverson since he took over the party three years ago, said Neverson has every right "to think, feel and believe exactly what he expressed." But she said he "can't be my leader, and he can't appropriately represent this Democratic body."
Neverson said he made the comments in an extensive article about his personal life and his political leadership. The article quotes Neverson as saying he would have supported the constitutional clause decreeing that each slave be counted as three-fifths a person because "to produce a republic you have to make sacrifices."
"If it offended anyone, I apologize," Neverson said. "It wasn't meant to say that Norm Neverson supports the three-fifths compromise. It was taken completely out of context. When you don't have all the facts and you don't have all the information, ignorance rules supreme. Get the information."
Now I don’t think for a moment that Neverson, who is African-America, actually supports the three-fifths compromise. He was making a point about political compromises in general. My question is, why didn’t he pick a different example? The Constitution had lots of compromises—such as the different apportionments for each houses of Congress—which would have illustrated Neverson’s point more clearly. Heck, as my friend Tom said to me earlier, Neverson could’ve brought up the Compromise of 1850 to make a point regarding slavery. That would have been a less inflammatory example.
Still, reading the Post article, one gets the clear impression that the move to oust Neverson is less about the specific remarks he made, and more about the internal politics of the D.C. Democratic State Committee. Neverson apparently made the classic error of handing his opponents the rope to hang him with.
::: posted by Skip Oliva
at 2:08 PM | link
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Questions of State and Defense
Skip Oliva takes an in-depth look at former House Speaker Newt Gingrich's call for a “regime change” at the U.S. State Department today at Initium.
::: posted by Nicholas Provenzo
at 2:46 AM | link
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Sunday, April 27, 2003 :::
'They're doing it to themselves'
It was amusing to watch Pat Buchanan attempt to defend the bloody self-flagellation of the Iraqi Shi'ites on the McLaughlin Group this morning. His argument: Christians have been doing the same thing going back to the middle ages, and "They're doing it to themselves."
So Buchanan supports freedom when it comes to perhaps one of the most bizarre of religious practices, but not when it comes to things like consensual homosexual sex. How typical.
::: posted by Nicholas Provenzo
at 11:59 AM | link
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