Payin the Bills

Wait ... Obama's going to pay for my gas and mortgage?  Sorry Barr, it's just not going to work out.

Via Reason:

Libertarians Can be a Sensitive Bunch

Jacob Weisberg's article in Slate last week has riled up the libertarian blogosphere. Weisberg proclaimed The End of Libertarianism after conveniently blaming the ideology for the current financial meltdown. Slate Reports:

The worst thing you can say about libertarians is that they are intellectually immature, frozen in the worldview many of them absorbed from reading Ayn Rand novels in high school.  Like other ideologues, libertarians react to the world's failing to conform to their model by asking where the world went wrong.  Their heroic view of capitalism makes it difficult for them to accept that markets can be irrational, misunderstand risk, and misallocate resources or that financial systems without vigorous government oversight and the capacity for pragmatic intervention constitute a recipe for disaster.  They are bankrupt, and this time, there will be no bailout.

I have to admit that I do have a copy of The Fountainhead on my bookshelf ... but the same can be said for The Communist Manifesto and The Ralph Nader Reader. And, for Mr. Weisberg's future reference, Rand barely touches on economic theory at all. She mostly just glorifies Man through her kooky philosophy of Objectivism while subjecting her readers to her sexual fantasies.

In any case, Weisberg went after Libertarians with quite a passion for apparently ruining everything - even though Libertarians hold a somewhat pathetic amount of power or influence in any branch of government.  Reason became resentful and responded with a few Brickbats from Matt Welch:

There is no space in Weisberg's conception of "libertarians" for people like, for instance, me: Not remotely a utopian, not "of the right," never read an Ayn Rand novel, spend highschool playing sports instead of reading political philosophy ... and don't pine for some presumably awful world where everyone shares my political views. (And, I might add, unlike Weisberg, I don't want to convert my political views into increased state power over fellow citizens who don't happen to agree with me.)

Read other responses on Reason here and here. (They have a touchy staff.)

Not to be outdone, NYU visiting professor of law Richard A. Epstein took a swipe at Weisberg in his weekly column on Forbes:

Weisberg is so intent on attacking libertarians as "intellectually immature" that he overlooks the point of [Fannie and Freddy's] cautionary tale.  Private markets magnify government errors. But in light of this history, it is plain foolish to treat the current failures solely as the result of an unregulated market.  The hard question is what kind of regulation is appropriate, and why.

Weisberg's crudes charge, however, is that all libertarians suffer from the incurable dogmatism of high school students captivated by Ayn Rand novels (which - confession - I have never read).  His stick-figure image of libertarains does not square with the current intellectual landscape. Limited-government libertarians like me are not anarchists.  We have a presumption against government regulation, which can be rebutted by showing long-term social improvements.

We also strenuously oppose using the credit crisis as a lever for introducing all sorts of senseless gimmicks to disrupt labor and product markets

Volokh, Mises, Rockwell and Cato all chimed in ... If you feel like reading their responses click on the links (I would block quote but this post is running a little long.)

The most humorous thing to come out of this whole fiasco has been watching libertarians proclaim ignorance of Ayn Rand. Clarence Thomas is probably pissed.

Activism as Comedy

Sometimes I just have to laugh when I see what some of the students here find to get upset about. The NYU: Animal Legal Defense Fund, Environmental Law Society, and Students for Education on Animal Liberation were all in a tizzy this week about the visit from recently released felon Peter Young tonight on campus. Posters were printed and put up just about everywhere, including right above my locker. The joy of finding new material for the blog was delayed by the immediate irony inspired chuckle of seeing The Environmental Law Society wasting paper, when they could have just sent out emails on Coase's like every other group requesting an audience.

For those of you unaware of who Peter Young is, please let me explain. Peter is a young man

who is very concerned about animals; mink and fox to be exact. He was so concerned that he decided to destroy around $250,000 worth of fur farmer's property to express his feelings. Peter became a fugitive from the law, was caught, and then put in federal prison for two years. He has been released and is now living the life of an animal rights rockstar, traveling the white hot vegan speaking circuit which is how he arrived here tonight at my school.  He states that his "activism" was spurred after witnessing atrocities at a chicken slaughterhouse when he was in his teens. He soon brought his animal activism to the University of Wisconsin, and through the influences of "mid 90's straight edge bands" decided that his life would take a turn towards the heroic ... driving around South Dakota and opening mink fences. These poor mink would never have survived the wilds of the Bad Lands, but perhaps Peter was just after a few giggles at the sight of old farmers chasing 8,000 mink through the grass and not really interested in saving the lives of animals after all.

The uproar over the punishment Young faced is apparently due to the name of the law he was sentenced under.  As the poster explained to me, Peter was convicted under the Animal Enterprise Terrorism Act (AETA). The vegans claim the label is unjust. They threw out a semantic volley of their own as they invited students to come and get some awareness about the "Green Scare!" They conveniently defined that term as: "... legal action by the United States government against radical environmentalists and animal rights activism under the banner of anti-terrorism measures."  Peter to them is a "former political prisoner" who speaks about "resisting injustice."  The text bristles that the law was "[e]nacted despite an impassioned outcry from free speech proponents and the activist community." [emphasis added]

I'll concede this much to the veges ... after September 11th the "terrorist" label has been spread pretty liberally and often times without merit.  But I'm not really sure targeting and "raiding" (read causing extensive damage to) fur farms for ideological reasons is too far removed from the concept of terrorism as a tactic. But in reality who really gives a damn how the bill labels the offender? The AETA was passed by unanimous consent in the Senate and has been unopposed by the ACLU who's only grouch was that the bill could be made better by minor changes providing more free speech protections which Section 43(e) of the bill already does pretty well. The main point of the law, after you remove the terrorist language that sets off some people's emotions, is to prevent animal activists from damaging animal enterprises because of their extreme beliefs. Usually, the general point of laws is to keep society functioning smoothly. Allowing the feds to pick up people like Peter, who caused a lot of problems for other citizens, isn't so scary.

If there is any valid complaint, it might be that the law was somewhat unnecessary. Peter could have simply been charged on your run of the mill trespass/burglary/property damage statutes. But that's not to say there isn't any valid reason for Congress to have passed this law.  A couple of progressions were made by the bill.  

First, the feds can now get involved when individuals engage in this kind of nonsense.  Peter was forced to go into hiding and was wanted by the FBI for a good while; which ostensibly helped in his apprehension.  The local police had stopped and searched him while he was in ND but he was released. So, in this instance, the law actually did some work: the FBI found him hiding out in San Jose - a feat which would have been considerably difficult for a local (or even state) law enforcement agency to handle.  

Second, the legislature of this country specifically targeted a particular type of behavior for condemnation with this bill. The law is an expression of repulsion by U.S. citizens at people who disregard the law simply because they feel strongly about an issue. It is perfectly legitimate for a law making body to find vandalism motivated by extremism more dangerous than comparable petty vandalism. People like Peter who get worked up about their beliefs need to be deterred more heavily by the force of law - the main reason being they already have disregarded what law there was in the first place.

In the end, Peter had to serve two years in prison.  Being on the lam from the FBI for seven years usually gets you a longer sentence, so in that sense, he got off light.  At his sentencing he told the farmers who he "raided" that he would "forever mark those nights on your property as the most rewarding experience of my life."  Saying bullshit like this at sentencing usually gets a big smackdown from a judge, but even despite this, in my view, he got a lenient sentence. Though Peter has shown no remorse for his actions, I still feel a bit sorry for him.  He just seems really confused and truly unaware that his actions were wrong. This is a step up from the criminal who knows he is wrong and just doesn't care.  So perhaps the two year sentence was justified ... first time offender and all.

I'm surprised Peter has so much time to give speeches at universities after the judge gave him 360 hours of community service "to benefit humans and no other species."  I would stop by and see how he managed but I'll probably just go home to drink beer while watching the World Series and eat animals.  Thanks to the poster for offering the vegan refreshments though.

More info on Peter at his Myspace Page

U of Chicago's Intellectual Divide

While browsing the Internet this morning during my Ethics class - as I can usually be found doing (sorry Gillers, but I get it already, ... a conflict is a conflict ... get informed consent) - I came across an article in Forbes penned by my old Contracts professor Richard Epstein.  He was a visiting professor from Chicago last year, and I think he stayed on for this year too.  As you may already know, potential president Obama was a professor at UC Law; which made him acquaintances with Tricky Dick.

Epstein broke with the normal Hyde Park ideology and expressed his concerns about Obama's possible election to the White House.  His general unease with an Obama presidency stemmed from Obama's lack of forthrightness with his possible future plans.  Forbes reports:

"I know him through our association at the University of Chicago Law School and through mutual friends in the neighborhood.  We have had one or two serious substantive discussions, and when I sent him e-mails from time to time in the early days of his Senate term, he always answered in a sensible and thoughtful fashion. And yet, for assessing the course of his likely presidency, I don't know him at all ...

The dominant trope is that he will be a pragmatic president who will move in small increments toward the center, not in bold steps toward the left.

But is it all true? The short answer is that nobody knows. Virtually everyone who knows him recognizes that he plays his cards close to the vest, so that you can make your case to him without knowing whether it has registered. At this point, my fear is that the change in office will not lead to a change in his liberal voting record, as reinforced by a hyperactive Democratic platform. My great fear is that a landslide victory will give him solid majorities in both Houses of Congress, so that no stalling tactics by Republicans can slow down his legislative victory procession. At that point his innate pragmatism will line up with his strong left-of-center beliefs on issues that have thus far been muted during the campaign.

... at heart he is an unreconstructed New Dealer who can see, and articulate, both sides on every question - but only as a prelude to championing the old corporatist agenda with a vengeance."

I'm not really sure what he is talking about with the "corporatist agenda" ... but whatever.

Epstein is my hero for several reasons. First, he is the only avowedly libertarian professor I have had since my tenure at NYU Law. My general benevolence to his ideas are a sharp contrast to the basic hostility I level at all the other liberal professors who try to convince me that ends justify means at this school. Second, the man is more genuine than a turkey leg at a renaissance festival. He stood up in front of an NYU Law class and graphed on the board how the value of women decreases over time, while the value of men increases over time, in an attempt to explain the economic justifications of prenuptial agreements. The look on the students' faces was worth the $100,000 plus I've spent on this "education."  He just doesn't care what people think of him or his ideas.

This lack of care has led to a bit of embarrassment however - as in the three times he lectured our two hour class with his fly wide open. Genuineness comes with the sting of a few snickers I suppose.

The Eternal Straw Men

If you frequent Internet political forums, or unsuspectingly find yourself browsing any comment thread on the once great now defunct Digg.com, you might be familiar with anonymous posters' propensity for comparing any political figure they have a disagreement with to Hitler, or Gobbles, or, well, any prominent member of the German National Socialist Workers' Party. Favorite runners up include Stalin and Mao as evidenced through Naomi Klein's unrelenting comparison of them to ... just about anybody.

The incessant use of the reductio ad Hitlerum strategy gave rise to "Godwin's Law" which was formulated by a Usenet member who grew tired of responding to it.  He discovered that "... as a Usenet discussion thread grows longer the probability of a comparison involving Hitler or Nazis approaches one."  By mocking the strategy, Godwin struck a blow in the name of all who would require anonymous arguments on the Internet use sound logic and reasonable temperament - a group seemingly made up of only Godwin himself.

But the Hitler comparisons still abound and are not limited to the vast series of tubes running information to and fro all over this great world.  Just recently, Madonna - in her infinite Detroit learned manner - made an altogether sound observation that McCain seemed strikingly similar to Hitler.  The Anti Defamation League Reports:

"... while she sang a song titled 'Get Stupid' during the launch of her latest world tour ... a projected photo montage appeared that included pictures of destruction and global warming, followed by video images of ... Mugabe and Hitler, ending with John McCain.  Apparently in Madonna's mind, the last three comprise a rogue's gallery of equivalent offenders to humanity."

George Bush has seen his fair share of Hitler comparisons during his tenure; as well as his pal Putin.  It's probably safe to say that anywhere a person is holding political office, there is someone comparing them to Hitler.

But in these pressing economic times, it seems there is a new whipping boy on the block.  The unfortunate Herbert Hoover has seen his name strewn as an epithet ever since the "great crash of 2008" began.  Most of us remember the term Hooverville from 5th grade social studies.  In reality it is probably the only thing any of us remember about our 31st President.  But this association in the minds of voters is enough for partisan hacks of all stripes to render his name completely meaningless to the annals of history. Apparently, Hoover, for Americans, equates to dirty people living in shacks and starving on bread and water.  

So if the average voter remembers only economic shittyness in relation to the man who was Hoover, and that somehow (we don't really know how) he caused that economic shittyness, what better way to convince a populous that you should be elected than to label your opponent as a Herbert Hoover during an economic downturn?

Politician:  "Obama wants to raise taxes in a recession ... the last person to do that was Herbert Hoover!  And we all know where that got us!"

Voter to friend:  "Who is Hoover?"

Friend:  "I think he was that President who made everyone eat dirt in the 30's"

Voter:  "Screw that, I don't want to eat dirt, I'm voting for McCain."

Both the Democrats and the Republicans have been guilty of this in the last few weeks.  Chuck Schumer wins the award for being the most ridiculous about it though.  He won't shut up about Hoover.  Basically he's arguing that the "last guy" to do nothing for the middle class when we faced this type of economic crisis was Hoover!  We can't do that again!

McCain is guilty too.  The Right is arguing that Hoover caused the great depression by instituting tariffs in a protectionist bid which is what Obama is claiming he will do.  Well, obviously then, Obama wants another great depression and shouldn't be voted for.

It probably comes as no suprise that Bush is also getting the Hoover treatment; since he has been, and continually will be, compared to every possible asshole since time in memoriam.

It's all nonsense.  The economic situation today isn't even comparable to the 1930's; much less the possible remedies.  Any idiot politician who invokes the Hoover smear should be voted against because they are insulting your intelligence - even though they are correct in realizing that we really don't know anything about Hoover.  Taking advantage of your intelligence or lack thereof is just evil - infact, it's akin to something Hitler would do; that asshole.

Enough already!

I'm announcing a new law today in the hopes of getting a law named after me.  Perhaps I can finally create a Wikipedia page about something I did without having it deleted by the wiki-whores in a matter of seconds (I swear they live inside the wiki).

As the likelihood of an American recession increases, the probability of a Reductio Ad Hooverum argument being used against a President in office, or candidate thereto, approaches one.

 

Joe the F***ing Plumber

Full disclosure:  I'm basically stealing this post from Althouse but I wanted to be sure my 4 readers caught this Red State Update.  

The Plea Bargain

Class: Criminal Procedure

Professor: Jacobs

Topic: Should We be Ashamed of Plea Bargaining in Our Criminal Justice System?

The overwhelming response from the class was yes, we should be ashamed.

Why?  Well, according to one classmate, a person held in pretrial incarceration shouldn't be subjected to the difficult choice of either pleading guilty and giving up his constitutionally protected rights for a lesser sentence, or remaining in jail until trial where, if found guilty, he would be subjected to a higher punishment.

This view of plea bargaining requires a belief that the punishment one is subjected to after trial is: 1) abnormally high, and 2) is so because of its extortionate utility.  This argument sees the state as using the higher punishment to persuade the defendant to plead so that they can clear their dockets and not have to prove guilt - which can be tough.  I'm not so quick to make that assumption, but it seemed to me that the majority of my classmates assigned this motivation to the judicial system automatically.

Although the most reasonable argument to have during class would have been whether the punishments given after plea bargaining are truly a bargain and not bait, we spent most of the time lamenting over the unfortunate positions that people are put into and the "unfair" choices they would be forced to make.  A sample:

"I just don't see how it's ok for a guy who is in jail and ... maybe he needs to feed his kids or maybe will lose his job ... and then the prosecutor says that 'all this can end if you plead' ... I just don't see how that's right ..."

Giving the benefit of doubt to the courts that the punishments handed down after trial are the baseline norm however, I can't see how plea bargaining would be anything but beneficial to the lowly and accused.

When you are indicted, there are generally two possible options that you can choose:  cop a plea, which will get you a reduced sentence; or go to trial.  If you go to trial and are found guilty, you will be subjected to the full punishment of the law for the crime. And, if you are acquitted, of course, you will be set free.  Where is the horribleness in this situation?

The only remedy to what my classmates thought was such an unholy proposition - bargaining for a lesser sentence with the state - would be to take that option away from the defendant.  But this doesn't remedy any of the problems the defendant will face!  The only thing refusing plea bargaining will accomplish is that everyone is now subject to the full punishment whether they plead guilty or drag the state through the process of proving their guilt.  You still have to sit in jail awaiting trial, which means you will still lose your job or have your kids taken into state custody.  

"Oh, what's that?  You want to offer a guilty plea so you can get the hell out of here and take care of your business?  Sorry, we had to take away that option because we thought it might be unfair to you.  So anyway, see you at trial."

There is a virtue in announcing your guilt and throwing yourself on the mercy of the court.  This should be rewarded for a myriad of reasons.  First, the crime or controversy is now all wrapped up, so people (the victim, offender, and the state) can get on with their lives.  Second, it does clear dockets, and we as a people can stop wasting time in the court and get to the more important business.  Third, in some situations the plea is used by the state to get information against more important criminals.  And Fourth, taking moral responsibility for your actions shows the court you understand what you did was wrong and is persuasive in factoring whether or not you will become a recidivist.

The only real unfortunate situation is when an assumed innocent is charged and is presented with an option to plead guilty and face lower penalties, or go to trial with all the rights given therewith and attempt to prove his innocence against a more severe threat of punishment.  Again though, taking the bargaining away from the innocent will not alleviate his problem of having to face trial.  He will go to trial and face the harshest punishment regardless.  

Should we trust an innocent in this situation to make the right choice for himself?  Obviously. Who better would understand what is in his best interest than the accused himself?  I certainly don't want to be making such serious decisions for others.  We should allow the accused to take stock of the situation they find themselves in and weigh the risks and benefits of going to trial themselves.  If they want to offer the state a deal, who am I to tell them they shouldn't do so? We've already arrested them, why should we take even more autonomy away unless it serves some useful purpose?

You're Fired!

Class: Employment Law

Professor: Sharon Rabin Margalitoh

Topic: Wrongful Discharge: Tort Theories of Recovery - Intentional Infliction of Emotional Distress

The case that led most of our discussion was Agis v. Howard Johnson Co. Basically, what happened was that a manager of a HoJo restaurant couldn't figure out which waitress had stole money from the till and decided the best way to deal with the situation was to line them all up alphabetically and begin firing them one by one until the guilty party felt enough shame to come forward.  The ploy not only failed to get the money back but led to a lawsuit whereby one or more of the waitresses claimed "emotional distress" and won a good sum of money from the corporation.

If I had known having an asshole boss could get me paid I probably would have retired by now.

The idea that one should receive damages for having their feelings hurt is an obvious absurdity that I won't go into.  My real problem with this case stems from the courts inability to see the basic problems with allowing tort recovery in this situation.

The waitresses were all "at will" employees who had no contractual rights nor obligations to Howard Johnson or its restaurant. This means they could simply quit at anytime for no reason at all, as well as be fired at any time for no reason at all.  Of course there are various duly enacted laws which adjust "at will" firings to not include such motivations as race, gender, etc. But there was nothing on the books which stated anything about employers having to be nice.  

Being an "at will" employee has its ups and downs.  There is absolutely no enforceable job security, but at the same time there is no legal job requirements either.  So, if your asshole boss pulls stunts like the one in this case, you can simply tell him to jump in a lake and walk out the door with no legal repercussions.  Of course the downside is that no matter how long you've worked at a place, or how dear your job is to you, you can be handed a pink slip at any time with no questions asked.

My main problem is why a court would see these waitresses as victims of the manager's actions when they had no duty to follow his demands leading to their humiliation.  The moment he told them to line up to be fired alphabetically they all had a choice not to do so.  They simply could have said no and taken their chances or quit.  But they didn't, and chose to go ahead with the manager's exercise.

There is a doctrine of defense in tort law called assumption of risk.  Basically it states that one can't sue for damage when he voluntarily entered into a situation fully aware that there was a risk of injury.  So, if you go to a MLB game and get hit in the face by a foul ball, you get nothing. The reason being everyone knows that balls fly into the stands (this is an absurdly simple explanation that I refuse to be held to in the future).  

The defense in our case didn't go with my half baked theory however and stuck to the traditional argument that a claim of Intentional Infliction of Emotional Distress (IIED) must be coupled with actual physical harm to go forward.  This was the rule up to that point in Massachusetts.  The Massachusetts bench is a wily one and decided that this case, and its facts, were going to be the basis for a new doctrine in MA tort law which allowed suits for IIED to be independent of any physical damage to the individual.  

Allowing IIED's to go forward independently is laughable enough but basing this doctrine on the grounds of this case is hard for me to understand.  Not only do you have to argue that calling people horrible and humiliating names on the street justifies tort liability, but giving notice that you are about to inflict emotional distress and having the person submit to it voluntarily allows tort liability.   

During class I just couldn't help but wondering if the support for the plaintiffs in this case would remain if the situations were reversed.  If a group of waitresses came onto their shift and began hurling insults at their manager and then walked out just as the dinner rush started, would my classmates and the Massachusetts bench allow that manager to sue those waitresses for IIED?  I doubt it, but maybe I am being overly cynical.  

The main argument in favor of the case's outcome is that the employees are "economically dependant" on their jobs and shouldn't be put in a situation where they have to choose between being lined up and humiliated and losing their source of income.  I understand this point, but the fact remains, no matter how dependant you are on your job, you always have an option not to take your boss' bullshit anymore.  Furthermore, how can we as a society determine ones baseline protection of law according to their "economic dependence" on the job?  Does this mean that other "at will" employees who are independently wealthy but like working should get less protection?

At the very least the judges should leave it up to the legislature to straighten these sort of things out.  Employment "at will" assumes two individuals equal under the law entering into an employment relationship on their own terms and with their own free will.  Employers shouldn't have to worry that once they hire someone an economic dependency will be magically created which assumes certain obligations flowing from the employer to the dependant that were never bargained for.  Unless of course the legislature creates such an obligation by law and lets you know of such obligations before you go hiring a bunch of thieving waitresses.

Federal Cigarette Regulation Redux

Maybe my brain works like the majority of the Supreme Court cert pool, or maybe coincidences do happen. But who knew my recent post on how federal regulation of cigarette warnings hurt consumers would be so timely.

Reason reported yesterday:

The Supreme Court kicked off its fall term today with oral arguments in Altria Group v. Good, a case that stems from a lawsuit filed by a group of Maine smokers claiming that light cigarette advertisements and packages contained false and deceptive information.  Altria, the parent company of Phillip Morris, argued that since its marketing is consistent with federal cigarette labeling laws, the state suits have no business going forward.

The companies are simply shrugging their shoulders and explaining that their hands were tied. Of course they wanted to let everyone know of all the possible problems arising from the use of tobacco, but the federal government wouldn't let them.  And they're right.

This seems like an open and shut federal preemption case, so I'm unsure as to why SCOTUS took it up.  I'm too lazy to look up the procedural history but I would guess its because the Circuit Court was foolish enough to rule in favor of the former smokers.

Update:  The lazy spell passed and it turns out I was right.  The First Circuit tried to avoid the preemption problem and ruled in favor of the smokers:

The Circuit Court concluded that the lawsuit was based on claims of false statements about the two brands’ tar and nicotine content – that is, it was not based on health hazard claims that are regulated by federal law, but rather on the duty not to deceive consumers.—a duty imposed by state law. That disposed of the express preemption claim. The Circuit Court also said the FTC’s actions did not amount to a formal regulation of the use of tar and nicotine yields, rejecting the implied preemption claim. -- SCOTUS WIKI

Don't Eat That!

NYC just unveiled a new subway advertisement scheme reminding citizens to stop being so fat. I like the city's targeted subway audience and hope it saves space on the A Express that I have to cram into every morning. Fat people ruin transportation for everyone.

The new campaign, highlighting the magic number 2000 for daily caloric intake, is not a surprising development from a city that goes to great lengths in order to force its citizens to be healthy. I would argue that the cigarette ads have gone a little too far though. Having to look at some guy talking through a hole in his throat while eating my Cinnamon Toast Crunch depresses me and depression makes me want to smoke - mission failed

But all these advertisements must cost the citizens of this city a pretty penny. The cost of used advertising space on the trains and airtime on the television, not to mention the cost of enforcing various fat bans on restaurants, could be avoided if NYC realized that its not the government's job to take care of us. This might be a useful point for Bloomberg to realize during his illegal third term. As the city faces a severe financial drought, due to the coked out finance guys having no jobs, maybe ... just maybe ... we should look to cutting spending on unneeded expenses like health care advertising and not raise taxes.

How Federal Regulation of Cigarette Packaging Hurts Consumers

Anyone who smokes could probably recite the three to four warnings that usually come on the side of their cigarette packs.  My favorites include: “Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight.” & “Cigarette Smoke Contains Carbon Monoxide.”  The reason for their favorite status is the peace of mind stemming from my: a) not being a woman or a fetus (not giving a shit), and b) not understanding the chemical reactions between CO and my cells (ignorance is bliss).

Not only are cigarette warnings limited to a total of four easy to read and quite benign messages, they are preceded by an “According to the Surgeon General” disclaimer; making it seem that this opinion of cigarettes being harmful is limited to the understanding of one man.  The prefix usually makes smokers simply disregard the warnings, as we all think to ourselves “who is this douche bag,” or “what the hell does he know,” or “the Surgeon General can go jump in a lake,” etc.

The warnings are a result of federal regulations promulgated after the passage of 15 U.S.C. §§ 1333-34.  These regulations require that the Surgeon General be the sole decider on how the warnings should look, read, etc.  The act also preempts the states from requiring different (read more extensive) language to be placed on cigarette packages through private tort suits over the harmful effects of smoking.

Usually, states allow private citizens to sue manufacturers of harmful products who do not extensively warn the public about the dangers of use.  This is why, for example, you cannot buy a set of window blinds without having a tag on the strings warning you to keep them unattached so that your suicidal toddler might avoid hanging himself.  This, no doubt, was a result of someone suing a manufacturer of blinds over a dead baby.

Interestingly, this type of private regulation - usually the most vigilant type due to the massive damages coming to the lone regulators (read plaintiffs bar) – is disallowed in the arena of cigarettes due to the perpetual thorn in federalism’s side - preemption.  The federal regulators don’t want the states muddling up their simple system of warnings by forcing the cigarette companies – through massive law suits – to smear red inked, exclamation point ridden, in your face WARNING!!! labels all over Joe Camel’s face.  So they conveniently told the States to stay the hell out of it.

Who does this help besides the tobacco companies?  If the companies were kept honest by lawsuits about the numerous and extended possible damaging effects of their product, maybe smokers would be more informed about the problems satisfying that nit fit brings them.  Cancer, emphysema, and fetus shrinkage are not the extended version of possible harms here; these are the trailer.  The feds should have left this regulation up to the citizens.  We would have done a better job of keeping the tobacco companies honest.

I think that writing this justifies a cigarette.  Time for a smoke break.

How Liberals Discovered Federalism

Class: Constitutional Law

Professor: Risa Gobuloff

Topic: Federalism

California is set to vote on a proposed state constitutional amendment in a few weeks.  The subject matter is close to many who live there: gay marriage.  It’s unfortunate in my view, because marriage should be left to the people and the government should stay the hell out of it.  

But I doubt that will be the case anytime soon, especially seeing how those on the left are just as adamant about forcing the government to “recognize” their rights (my mistake for thinking true rights need no allowance) as those on the right are petitioning against them.  All I can say is good luck in November, whichever side of an absurd debate you find yourself on.

The topic was conveniently brought up (by me) in my constitutional law class with Professor Goluboff last week.  The debate centered on “whether we want federalism as it is proposed in the constitution” (yes you read that right).  The matter was laid out after a survey of Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964).  A young lady in the class raised her hand and detailed how she thought that federalism was appropriate in certain cases.  As she explained, she liked it when it protected California’s right to allow gay marriage but thought it was an ill advised policy when applied to the racial strife in the former confederacy during the desegregation period.

What principles.

Gonzales v. Raich, 545 U.S. 1 (2005) also helped those with a leftist mentality understand exactly why federalism should be protected and the Commerce Clause reinterpreted.  The Bush administration helped my cause in this way.  His administration showed those on the left that betting all your chips that the federal government will be on your ideological side is risky, and being allowed to seek refuge in the state of your choice should be an American principle we never let slip away.

If you claim federalism only when it protects your side, you don’t believe in federalism at all.