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| Episode 49 – Callback to Russian Spies
June 30, 2010 at 1:27 PM
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| Gitmo Nation Roundtable
Callback to Russian Spies
Tuesday June 29, 2010 This week the Roundtable convenes to discuss the developing Russian spy scandal in the United States, the Americans arrested in Pakistan on terror charges, the CIA director's discussion of the Afghan war, the Catholic Church pedophilia raid in Belgium, and a first-hand account of the G-20 in Toronto. This episode of the Gtimo Nation Roundtable features Brian Masi, BaS the Born again Skeptic, Eric Carlson, Robyn Police, and a spirited return of original host Eugene Michasiw. listen Show Links:
• Spy scandal just another false rest in Russian-U.S. relations
⁃ http://www.thestar.com/news/world/russia/article/830061–spy-scandal-just-another-false-reset-in-russian-u-s-relations?bn=1
• Russia angry as U.S. seeks to limit spy fallout
⁃ http://news.yahoo.com/s/nm/20100629/pl_nm/us_russia_usa_spies
• The 'Illegals': Russian spies living in America?
⁃ http://theweek.com/article/index/204550/the-illegals-russian-spies-living-in-america
• Poland and Russia may sign gas deal soon says economy minister
⁃ http://www.platts.com/RSSFeedDetailedNews.aspx?xmlpath=RSSFeed/HeadlineNews/NaturalGas/8854541.xml
• Kyrgyz leaders say constitution OK'd
⁃ http://www.washingtontimes.com/news/2010/jun/27/kyrgyz-leaders-say-constitution-okd/
• Russia plans second military base in Kyrgyzstan
⁃ http://www.telegraph.co.uk/news/worldnews/asia/kyrgyzstan/7852226/Russia-plans-second-military-base-in-Kyrgyzstan.html
• Imperialist US?
⁃ http://www.overcomingbias.com/2010/06/us-invade-resources.html
• Five Americans jailed in Pakistan for plotting terrorist attacks
⁃ http://www.telegraph.co.uk/news/worldnews/asia/pakistan/7851280/Five-Americans-jailed-in-Pakistan-for-plotting-terrorist-attacks.html
• Pakistan plot suspects 'tortured'
⁃ http://english.aljazeera.net/news/asia/2010/02/201021704231266825.html
• CIA Chief Leon Panetta: In Afghanistan, U.S. Has Committed 1,000 Troops Per Each Al Qaeda Terrorist
⁃ http://thinkprogress.org/2010/06/27/panetta-afghanistan/
• C.I.A. Chief Says Qaeda at Weakest Point in Years
⁃ http://www.nytimes.com/aponline/2010/06/27/us/politics/AP-US-US-Afghanistan.html
• Bin Laden's location still unknown: CIA boss
⁃ http://www.cbc.ca/world/story/2010/06/27/panetta-cia-bin-laden-627.html
• Usama bin Laden – FBI Top Ten Most Wanted
⁃ http://www.fbi.gov/wanted/topten/fugitives/laden.htm
• US begins scaling back ambitions for Afghan occupation
⁃ http://rawstory.com/rs/2010/0627/begins-scaling-ambitions-afghan-occupation/
• World Leaders Agree on Timetable for Cutting Deficits
⁃ http://www.nytimes.com/2010/06/28/business/global/28summit.html
• No arrests made under G20 rule change, Ontario says
⁃ http://www.thestar.com/news/gta/torontog20summit/article/830030–no-arrests-made-under-g20-rule-change-ontario-says?bn=1
• Calls for G20 inquiry ratchet up
⁃ http://www.thestar.com/news/gta/torontog20summit/article/830057–demands-rising-for-inquiry-into-g20-debacle?bn=1
• G20 cleanup in Toronto begins
⁃ http://www.cbc.ca/canada/story/2010/06/28/g20-toronto-fence.html
• Report: Toronto police rough up journalists, arrest peaceful protesters at G20
⁃ http://rawstory.com/rs/2010/0627/police-arrest-peaceful-protesters-g20/
• Police in Toronto Criticized for Treatment of Protesters, Many Peaceful
⁃ http://www.nytimes.com/2010/06/28/world/americas/28security.html
• Toronto artist facing explosives charges out on bail
⁃ http://www.theglobeandmail.com/news/world/g8-g20/toronto/toronto-artist-facing-explosives-charges-out-on-bail/article1619739/ Picks of the Week:
• Robyn's Pick:
⁃ Tilt to Live
⁃ http://www.onemanleft.com/tilttolive/index.php
⁃ Suit Over Faulty Computers Highlights Dell's Decline
⁃ http://www.nytimes.com/2010/06/29/technology/29dell.html
• Eric Carlson's Pick:
⁃ Outfoxed: Rupert Murdoch's War on Journalism
⁃ http://www.netflix.com/Movie/Outfoxed_Rupert_Murdoch_s_War_on_Journalism/70002668?strackid=5a80d75f84843225_0_srl&strkid=997079918_0_0&lnkctr=srchrd-sr&trkid=222336
• BaS' Self-serving Pick:
⁃ http://www.bornagainskeptic.net/
• Brian's Pick:
⁃ Elana Kagan on abortion: More than first meets the eye
⁃ http://www.politico.com/news/stories/0610/39096.html
• Eugene's Pick:
⁃ Inside the G20 Easter Avenue Detention Centre
⁃ http://www.blogto.com/city/2010/06/inside_the_g20_eastern_avenue_detention_centre/
⁃ Eugene's G20 Footage
⁃ http://noagendaforums.com/index.php?topic=2612.msg14821#msg14821 Listen to the episode:
Subscribe on iTunes: http://bit.ly/GNRPodcast
RSS: http://www.mevio.com/feeds/gitmonationroundtable.xml  | Media Files
gitmonationroundtable-238085-06-29-2010.mp3 (MP3 Audio)
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| MSFT Kin Already a Flop?
June 30, 2010 at 10:18 AM
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| 
Hulu starts paid service. Google backing off on China threats. Verizon iPhone coming in Jan 2011. Apple being sued over antenna issue. Weird story about iPhone Facetime. Windows 8 outlined. Flying car coming out for sure! Dell sold faulty computers. Seagate has 3TB drive. Where is the new Hotmail? MSFT Kin phone a flop? Click to listen:  | Media Files
tech5-238060-06-29-2010.mp3 (MP3 Audio, 5.1 MB)
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| MSFT Kin Already a Flop?
June 30, 2010 at 10:18 AM
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| Hulu starts paid service. Google backing off on China threats. Verizon iPhone coming in Jan 2011. Apple being sued over antenna issue. Weird story about iPhone Facetime. Windows 8 outlined. Flying car coming out for sure! Dell sold faulty computers. Seagate has 3TB drive. Where is the new Hotmail? MSFT Kin phone a flop? | Media Files
tech5-238060-06-29-2010.mp3 (MP3 Audio, 5.0 MB)
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| Court Punts on Patent Case
June 30, 2010 at 9:08 AM
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| Last fall, the Supreme Court heard arguments about Bilski v. Kappos, a case that revolved around the question of whether or not the patent system should extend to cover "business methods." As Larry Downes explained at the time, the specific dispute was over the patentability of "a paper-and-pencil system for hedging weather risks in consumer energy prices," but the specific process under dispute was of minimal importance. Interest in the final ruling was high because the case had the potential to be a game-changer for the patent system; many in the intellectual property arena believed it was likely that the Court would definitively end the practice of granting patents to business methods—which would have serious implications for software patents as well. But yesterday, the court offered a ruling that was far more limited in scope. According to Downes, the decision "basically did nothing to change patent law or to settle enormous and mushrooming uncertainties, both for business methods and, more generally, for software applications." For court and IP nuts, Downes's entire analysis of the case and the decision, which offers some convincing speculation about why the ruling came down as narrowly as it did, is well worth reading. For a short take on the policy merits of similar types of patents, see Cato adjunct Tim Lee's case against literary and software patents here. 
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| How You Get 20 Years for a Prescription
June 30, 2010 at 8:35 AM
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| Last week I noted that Kansas pain doctor Stephen Schneider and his wife, Linda (who worked as a nurse in his practice), face sentences of 20 years to life for painkiller prescriptions the government says were medically inappropriate. The 20-year mandatory minimum was triggered by convictions for illegally dispensing a drug when "death or serious bodily injury results from the use of such substance." Prosecutors tried to implicate the Schneiders in 68 patient deaths, of which they were directly charged for 21. But as Reason contributor Maia Szalavitz reports in a recent Time piece, attributing deaths to painkiller overdoses is a very tricky business: The mechanics of that determination are poorly understood—sometimes even by the toxicologists, pathologists and medical examiners who make the call. Circumstances of death surrounding drug use are also often difficult to untangle: In the Schneider case, virtually all the patients who died were found to have multiple drugs in their bloodstream, often including illegal drugs; in addition, many of the patients were known sufferers of chronic pain with chronic, life-threatening diseases such as heart disease and high blood pressure — conditions that can cause death on their own, without drugs.... Several scientific factors conspire to complicate the issue: First is the widely acknowledged question of tolerance. Patients who take pain medications over the long-term will necessarily build up some amount of tolerance to the drugs. That means that a dosage of a painkilling opioid such as methadone or fentanyl that would be therapeutically appropriate for a pain patient could be enough to kill a person who has never taken them before; in a methadone patient, an extremely high dose might not even be enough to address withdrawal symptoms.... A second complication in cause-of-death findings is what medical examiners call "postmortem redistribution," the shift in detectable drug levels that occurs after a person dies, according to Fred Apple, medical director of clinical laboratories for the Hennepin County Medical Center in Minnesota. Many drugs that may be contained in fatty tissue in a living body are released into bodily fluids after death, which confuses the analysis of substance samples taken postmortem. Furthermore, it's not clear what it means to say a death "results from" the use of a particular drug. In January the U.S. Court of Appeals for the 7th Circuit ordered a new trial in the case of pharmacy burglars who had been convicted of drug distribution that resulted in four deaths. In an opinion by Judge Richard Posner, the 7th Circuit ruled that the jury instruction did not properly explain the law: The instruction began by stating that the jury had "to determine whether the United States has established, beyond a reasonable doubt, that the [victims] died, or suffered serious bodily injury, as a result of ingesting a controlled substance or controlled substances distributed by the defendants or by a defendant." But then it added that the controlled substances distributed by the defendants had to have been "a factor that resulted in death or serious bodily injury," and that although they "need not be the primary cause of death or serious bodily injury" they "must at least have played a part in the death or in the serious bodily injury." The defendants' lawyer asked that the addition, suggested by the prosecutor, be stricken as a confusing gloss on "results from." The district judge refused. The appeals court concluded that the instruction muddled the point that conviction requires "but for" causation: "The government at least must prove that the death or injury would not have occurred had the drugs not been ingested." But that is not enough, Posner said: Suppose a defendant sells an illegal drug to a person who, not wanting to be seen ingesting it, takes it into his bathroom, and while he is there the bathroom ceiling collapses and kills him. Had he not ingested the drug, he would not have been killed. But it would be strange to think that the seller of the drug was punishable under [the statute]. Posner suggested that the relevant consideration is deterrence: "We want drug dealers not to kill their customers inadvertently." He expressed "misgivings" about reading the statute as imposing strict liability, meaning that defendants are held culpable even when a death is neither intended nor forseeable, which he said "could lead to some strange results": Suppose that, unbeknownst to the seller of an illegal drug, his buyer was intending to commit suicide by taking an overdose of drugs, bought from that seller, that were not abnormally strong, and in addition the seller had informed the buyer of the strength of the drugs, so that there was no reasonable likelihood of an accidental overdose. Prosecutors have successfully argued that doctors like Schneider are culpable for a patient's death in precisely this situation. As Posner notes, "the cases are unanimous and emphatic that [the statute] imposes strict liability." He grants that strict liability can serve deterrence: "Strict liability creates an incentive for a drug dealer to warn his customer about the strength of the particular batch of drugs being sold and to refuse to supply drugs to particularly vulnerable people." But it's not clear how that rationale applies in the context of a medical practice where drug strength is consistent, instructions about proper dosage are routine, and the patients include many people suffering from chronic pain—not the happiest bunch, but not necessarily suicidal. Putting aside the scientific and legal complications, the moral issue is clear: It's outrageous to hold a doctor criminally responsible, let alone imprison him for the rest of his life, based on the choices of his patients, whether they are suicidal, reckless, or simply deceitful. 
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| New at Reason: Daniel Shuchman on Elena Kagan and Book Banning
June 30, 2010 at 8:00 AM
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|  As solicitor general of the United States, Elena Kagan argued in front of the Supreme Court that the federal government had the constitutional authority to ban certain political pamphlets. She also strongly implied that some political books, if they were partisan enough, could also be censored. Keeping those facts in mind, Daniel Shuchman has a few questions for Kagan to answer this week at her Supreme Court confirmation hearings.
View this article.  | | |
| Will Elena Kagan Allow Books to be Banned?
June 30, 2010 at 8:00 AM
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| As solicitor general of the United States, Elena Kagan argued in front of the Supreme Court that the federal government had the constitutional authority to ban certain political pamphlets. She also strongly implied that some political books, if they were partisan enough, could also be censored. Kagan's extraordinary claims emerged during the second oral argument of Citizens United v. Federal Election Commission, the campaign finance case made famous by President Barack Obama when he publicly excoriated the justices for their ruling during his State of the Union address. The president alleged that Citizens United would allow corporations to subvert the political process with their economic power. In fact, the case concerns the fundamental political liberties of all citizens. The true stakes were dramatically revealed in the two rounds of oral argument heard by the Court. In the first argument before the Court, on March 24, 2009, Kagan's deputy, Malcolm L. Stewart, represented the government by arguing for the constitutionality of a statute prohibiting corporations and unions from spending funds from their general treasuries to advocate the election or defeat of political candidates. The justices subjected Stewart to a series of stark hypothetical situations testing the extent of the censorship power that the Obama Administration viewed as constitutionally permissible. For example, Stewart was asked by Chief Justice John Roberts what would happen if a corporation were to publish a 500-page book discussing the American political system which concluded with a single sentence endorsing a particular candidate. Kagan's deputy answered that such an endorsement would constitute "express advocacy" and therefore the corporation could only fund the publication of the book through a political action committee. "And if they didn't, you could ban it?" asked the chief justice. "If they didn't, we could prohibit publication of the book," Stewart replied. Even the most liberal justices, usually the most willing to curtail political free speech, seemed a little troubled. Justice David Souter asked what would happen if a labor union paid an author to write a book advocating the election of a particular candidate and then submitted the manuscript to Random House, which then agreed to publish it. The deputy solicitor general replied that he was unsure whether there would be a basis for suppressing such a book, but clearly stated that "the labor union's conduct would be prohibited." Later, the argument turned to other forms of media that the government would have the right to censor. The implications of the administration's position were so enormous that Justice Antonin Scalia seemed almost incredulous. He sarcastically interrupted to say "I'm a little disoriented here, Mr. Stewart. We are dealing with a constitutional provision, are we not; the one that I remember which says Congress shall make no law abridging the freedom of the press? That's what we're interpreting here?" With no apparent irony, Stewart replied, "That's correct." The justices were apparently concerned by what they heard, requesting an unusual second oral argument in the case, on September 9, 2009. This time, Kagan went to the Supreme Court herself. Justice Ruth Bader Ginsburg got right to the point by asking Kagan whether it was still the government's position that Congress could ban TV, radio, and newspaper ads, and even campaign biographies under the rubric of campaign finance reform. "The government's answer has changed," Kagan replied, which sparked laughter in the courtroom. Given the skeptical questioning at the prior hearing, Kagan seems to have made the tactical decision to back off from her office's initial claims and opted to craft a less controversial way of getting the justices to accept significant restrictions on free speech. She assured the Court that she took their prior reactions and hypotheticals "very seriously" and that the Obama Administration reconsidered its position. Perhaps this is an example of her reputed pragmatism and interest in building coalitions. In any event, her attempted finesse did not stand up so well under cross-examination. Kagan conceded that although the statute in question did cover "full length books" it would be subject to "quite good" challenges if it was ever so applied in practice. Moreover, she pointed out that the Federal Election Commission never enforced the law with respect to books, implying that citizens should not worry about being prosecuted. Chief Justice Roberts immediately seized on this, saying "We don't put our First Amendment rights in the hands of FEC bureaucrats." He then asked whether the statute could be used to ban a pamphlet. Such a publication, Kagan admitted, would be different; "a pamphlet is pretty classic electioneering" and could be constitutionally prohibited. She tried to reassure the justices that a book containing hundreds of pages could not be banned just because the last sentence endorsed a candidate, as her deputy had claimed a few months earlier. However, she strongly implied that if the book engaged in "express advocacy" as a whole, it could be banned. Her position would seem to require the FEC to define the differences between books and pamphlets and decide how many sentences in a book are necessary to qualify as "express advocacy." Kagan never addressed whether it was desirable for FEC staffers to become either book reviewers or a de facto national censorship committee. Ultimately, the Court ruled against Kagan by a 5-4 margin. Many questions remain unanswered about Kagan's comfort with banning political publications and limiting free expression in other media. She might say that her own views on these issues are private and that she was merely advocating for her client in this case. However, it is interesting to note that in nominating Kagan, President Obama went out of his way to praise her defence of ordinary citizens against "unscrupulous corporations," citing her work on Citizens United in particular. "Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the Court," Obama declared. Yet Obama and Kagan both ignored the fact that not all corporations that advocate for candidates are big and "unscrupulous." Most are sole proprietorships of small businesses, and many are non-profits, as was the plaintiff in Citizens United. As the Senate considers her nomination this week, they ought to ask her the following: • If a citizen who is the sole owner of a corporation that operates a bakery wants to use his business funds to put a candidate's poster in his storefront window, can that be banned under the Constitution? • If a group of like-minded citizens form a corporation for the purpose of advocating for candidates in whom they believe, can that corporation constitutionally be prevented from spending money? • Is it constitutional for the FEC to review political books for content and ban them if they run afoul of a campaign finance law? • Is it constitutional for media companies to publish content advocating for political candidates? If so, why should they be different from other companies under the Constitution? • If a corporation or labor union produces a pamphlet with its own funds advocating the election of a candidate, can that document be banned under the Constitution? The answers would reveal a lot about what kind of justice Kagan might be and how she reconciles her views with the First Amendment. Perhaps more importantly, it would be an opportunity for the public to see what is truly at stake when the government wants to restrict an individual or corporation's ability to support the candidates of its choice. Daniel Shuchman is a New York money manager and a member of the Board of Directors of the Foundation for Individual Rights in Education. He has written for The Wall Street Journal and The Harvard Journal of Law and Public Policy.  | | |
| G20 Roundup
June 30, 2010 at 7:53 AM
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| 
Last weekend in Toronto, G20 summiteers agreed to cut deficits in half by 2013 and "reduce government debt-to-GDP ratios by 2016." And it only cost them a billion dollars and a few breaches of civil liberties to achieve this result. Here's your G20 wrap-up, with bonus late-breaking news of violence against journalists: The big story from the event was not what the leaders did, but the police state that downtown Toronto was turned into. The government had prepared for the event by spending an exorbitant amount of money on security. Police were given additional powers inside the security zone by a secret law passed by the Ontario government, which allowed them to arrest people for failing to produce identification. Police also told the public they had these powers around the perimeter of the zone, but later admitted they made this up. All these measures did not stop a roving band of lefty anarchists from destroying private property and lighting a police car on fire. As one journalist noted, the protesters did not seem to have a coherent message. Police responded with what appears to be excessive force and serious violations of the constitutional protections that Canadians usually enjoy. In total, police arrested 900 people—the largest mass arrest in Canadian history—many of whom were held overnight in temporary jails and released without charge. Police had an equal disdain for the media. Today J-Source has a roundup of journalists who were harassed, beaten, and arrested for trying to bring the story to the world. Although not reporting at the time—or even within the security zone—the Western Standard's Mike Brock tells about how he was tormented and illegally searched, apparently for wearing a black shirt and talking on the phone.  | | |
| Inflation is Icumen In, Bernanke Sing Goddamn
June 30, 2010 at 7:33 AM
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| Ambrose Evans-Pritchard in the UK Telegraph writes of the Royal Bank of Scotland Group's expectations that Ben "Deflation Never" Bernanke is gonna do whatever it takes to keep it at bay, as signs of creeping slowdowns in world trade and business get more prominent: The ECRI leading indicator produced by the Economic Cycle Research Institute plummeted yet again last week to -6.9, pointing to contraction in the US by the end of the year. It is dropping faster that at any time in the post-War era. The latest data from the CPB Netherlands Bureau shows that world trade slid 1.7pc in May, with the biggest fall in Asia. The Baltic Dry Index measuring freight rates on bulk goods has dropped 40pc in a month.... Andrew Roberts, credit chief at RBS, is advising clients to read the Bernanke text [an eight-year old Bernanke speech in which he hyped the Federal Reserve's ability to defeat deflation with more and more dollars "at essentially no cost"] very closely because the Fed is soon going to have to the pull the lever on "monster" quantitative easing (QE)". "We cannot stress enough how strongly we believe that a cliff-edge may be around the corner, for the global banking system (particularly in Europe) and for the global economy. Think the unthinkable," he said in a note to investors..... A recent paper by the San Francisco Fed argues that interest rates should now be minus 5pc under the bank's "rule of thumb" measure of capacity use and unemployment. The rate is currently minus 2pc when QE is factored in. You could conclude, very crudely, that the Fed must therefore buy another $2 trillion of bonds, and even more if Europe's EMU debacle goes from bad to worse. I suspect that this hints at the Bernanke view.... Societe Generale's uber-bear Albert Edwards said the Fed and other central banks will be forced to print more money whatever they now say, given the "stinking fiscal mess" across the developed world. "The response to the coming deflationary maelstrom will be additional money printing that will make the recent QE seem insignificant," he said. Apropos of nothing, recent gold price data. (Hasn't been below $1,000 in eight months or so.) See Reason magazine's October 2009 roundtable on inflation expectations for more background on these matters.  | | |
| Asian Carp: Illegal Immigrants of the North
June 30, 2010 at 7:23 AM
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| President Obama has his hands full these days, what with the Gulf Oil Spill, the change of command in Afghanistan, Wall Street reform, Supreme Court decisions and replacements, and even some old-fashioned Russian  espionage. Nevertheless, Great Lakes environmental groups sent a letter to the president today urging him to intervene in the great illegal immigration panic of the American northeast: the Asian carp invasion. But just as recent efforts down south to keep out foreign people have been heavy handed, costly, and ineffective, the war on foreign fish up north doesn't make much sense, either. It started with the Army Corps of Engineers' underwater electric fence and monitoring systems to protect native fish populations from the carp hordes. Price tag: $16 million. After genetic material belonging to the carp was found on the other side of the barrier, environmental groups went into a fish frenzy. The Illinois Department of Natural Resources dumped 2,200 gallons of poison into the water, killing 90 tons of fish but only one lonely carp. Price tag: $3 million. Michigan Attorney General Mike Cox filed a lawsuit to shut down the Chicago Sanitary and Ship Canal, which would have hampered Chicago-area shipping industries worth $1.5 billion had the U.S. Supreme Court taken Cox's side. But no matter how many expensive overreactions the Great Lakes states fall for, the carp are coming. The Detroit Free Press reported today that: "A bighead Asian carp was found last week in Lake Calumet six miles from Lake Michigan and miles beyond the electric barrier intended to halt the progress of carp from southern rivers into Lake Michigan." Is it time for Michigan and Illinois fishermen to abandon the lakes and flee to Canadian waters, then? Not so fast. As The Stew, the Chicago Tribune's food blog, pointed out: We might as well start organizing the fishing tournament now. Search for open dates to hold Carpapalooza, our annual summer festival. Begin auditioning actors to play Carpy, the adorable mascot who'll work the promenade along Navy Pier, entertaining visitors of all ages ("Daddy, take my picture with Carpy!") Chicago chefs, start whipping up those seasonal Asian carp recipes now. Chicagoans eat smelts, for crying out loud; they'll get used to eating Asian carp.... One chef says the fish is pretty tasty, a cross, he claims, between scallops and crab meat. Of course, people selling a fish always say it tastes good, and they always describe it as resembling something very mild in flavor. We'll see. But I see this as a bandwagon we ought to be boarding. This is an edible, plentiful fish. And talk about sustainability—the fish are thriving even though we're trying to kill them. The moment is coming. We might as well seize it. In other words, Carpe carp! Obama should disregard environmental agencies and their fish xenophobia. The hungry bellies of Great Lakes-area seafood lovers are the best possible remedy to the purported carp problem. Read more from Reason on the overblown Asian carp crisis here. Reason Senior Editor Katherine Mangu-Ward blogged about immigration barriers and the people (and fish!) who regularly outsmart them here. 
 | Media Files
wil_10062901a.pdf (Adobe Acrobat Document, 24 KB)
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| O Senator, Where Art Thou?
June 30, 2010 at 6:45 AM
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| Many years ago, a friend who collects country music entertained me enormously by pulling out a copy of Mountain Fiddler, a 1978 bluegrass LP recorded by Robert Byrd. Now it's reported that County Records will reissue the late senator's album on CD next month. Several of the tracks are already available on YouTube, so you can listen for free and decide for yourself whether they're a benign footnote to Byrd's career or just another part of his negative legacy: 
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| Scientific Consensus Redux
June 30, 2010 at 6:30 AM
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| Last week, the prestigious journal, the Proceedings of the National Academy of Sciences, published an article that tried to assess the relative credibility of climate scientists who "support the tenets of anthropogenic climate change" versus those who do not. One goal of the study is to "provide an independent assessment of level of scientific consensus concerning anthropogenic climate change." The researchers found that 97–98 percent of the climate researchers most actively publishing in the field are convinced of man-made climate change. In addition, using publication and citation data, the study found that the few climate change dissenters are far less scientifically prominent than convinced researchers. The article concludes, "This extensive analysis of the mainstream versus skeptical/contrarian researchers suggests a strong role for considering expert credibility in the relative weight of and attention to these groups of researchers in future discussions in media, policy, and public forums regarding anthropogenic climate change." Translation: reporters, politicians, and citizens should stop listening to climate change skeptics. Naturally, there has been some pushback against the article. For example, Georgia Institute of Technology climatologist Judith Curry who was not pigeonholed in the study told ScienceInsider, "This is a completely unconvincing analysis." One of the chief objections to the findings is that peer review is stacked in favor of the consensus view, locking skeptics out of publishing in major scientific journals. John Christy, a prominent climate change researcher at the University of Alabama in Huntsville who is skeptical of catastrophic claims, asserted that because of "the tight interdependency between funding, reviewers, popularity. ... We [skeptical researchers] are being 'black‑listed,' as best I can tell, by our colleagues." This fight over credibility prompted me to wonder about the role that the concept of a "scientific consensus" has played out in earlier policy debates. We all surely want our decisions to be guided by the best possible information. Consider the overwhelming consensus among researchers that biotech crops are safe for humans and the environment—a conclusion that is rejected by the very environmentalist organizations that loudly insist on the policy relevance of the scientific consensus on global warming. But I digress. Taking a lead from the PNAS researchers I decided to mine the "literature" on the history of uses of the phrase "scientific consensus." I restricted my research to Nexis searches of major world publications, figuring that's where mainstream views would be best represented. So how has the phrase "scientific consensus" been used in past policy debates? My Nexis search found that 36 articles using that phrase appeared in major world publications prior to my arbitrary June 1985 search cutoff. One of the first instances of the uses of the phrase appears in the July 1, 1979 issue of The Washington Post on the safety of the artificial sweetener saccharin. "The real issue raised by saccharin is not whether it causes cancer (there is now a broad scientific consensus that it does)" (parenthetical in original) reported the Post. The sweetener was listed in 1981 in the U.S. National Toxicology Program's Report on Carcinogens as a substance reasonably anticipated to be a human carcinogen. Interesting. Thirty years later, the National Cancer Institute reports that "there is no clear evidence that saccharin causes cancer in humans." In light of this new scientific consensus, the sweetener was delisted as a probable carcinogen in 2000. Similarly, the Post reported later that same year (October 6, 1979) a "profound shift" in the prevailing scientific consensus about the causes of cancer. According to the Post, researchers in the 1960s believed that most cancers were caused by viruses, but now diet was considered the far more important factor. One of the more important findings was that increased dietary fiber appeared to reduce significantly the incidence of colon cancer. Twenty years later, a major prospective study of nearly 90,000 women reported, "No significant association between fiber intake and the risk of colorectal adenoma was found." In 2005, another big study confirmed that "high dietary fiber intake was not associated with a reduced risk of colorectal cancer." While dietary fiber may not prevent colon cancer, it is associated with lower cardiovascular risk. In its June 1, 1984 issue, The Washington Post reported the issuance of a massive new report by the White House science office supporting the scientific consensus that "agents found to cause cancer in animals should be considered 'suspect human carcinogens,'" and that "giving animals high doses of an agent is a proper way to test its carcinogenicity." Although such studies remain a regulatory benchmark, at least some researchers question the usefulness of such tests today. The December 17, 1979 issue of Newsweek reported that the Department of Energy was boosting research spending on fusion energy reactors based on a scientific consensus that the break-even point—that a fusion reactor would produce more energy than it consumes—could be passed within five years. That hasn't happened yet and the latest effort to spark a fusion energy revolution, the International Thermonuclear Experimental Reactor, will not be ready for full-scale testing until 2026. An article in the June 8, 1981 issue of The Washington Post cited a spokesman for the American Medical Association opposing proposed federal legislation that would make abortion murder as saying, "The legislation is founded on the idea that a scientific consensus exists that life begins at the time of conception. We will go up there to say that no such consensus exists." It still doesn't. In the years prior to 1985, several publications reported the scientific consensus that acid rain emitted by coal-fired electricity generation plants belching sulfur dioxide was destroying vast swathes of forests and lakes in the eastern United States. For example, the March 10, 1985 New York Times cited environmental lawyer Richard Ottinger, who asserted that there is a "broad scientific consensus'' that acid rain is destroying lakes and forests and ''is a threat to our health.'' In 1991, after 10 years and $500 million, the National Acid Precipitation Assessment Program study (as far as I can tell that report is oddly missing from the web) actually reported, according to a 1992 article in Reason: "The assessment concluded that acid rain was not damaging forests, did not hurt crops, and caused no measurable health problems. The report also concluded that acid rain helped acidify only a fraction of Northeastern lakes and that the number of acid lakes had not increased since 1980." Nevertheless, Congress passed the 1990 Clean Air Act Amendments that regulate sulfur dioxide emissions through a cap-and-trade scheme. Acid rain was clearly causing some problems, but was not the wide-scale environmental disaster that had been feared. Interestingly, the only mention of a scientific consensus with regard to stratospheric ozone depletion by ubiquitous chlorofluorocarbon (CFCs) refrigerants was an article in the October 6, 1982 issue of the industry journal Chemical Week. That article noted that the National Research Council had just issued a report that had cut estimates of ozone depletion in half from a 1979 NRC report. The 1982 NRC report noted, "Current scientific understanding…indicates that if the production of two CFCs …were to continue into the future at the rate prevalent in 1977 the steady state reduction in total global ozone…could be between 5 and 9 percent." Such a reduction might have been marginally harmful, but not catastrophic. It was not until 1986 that the mainstream press reported the discovery of the "ozone hole" over Antarctica. This discovery quickly led to the adoption of an international treaty aiming to drastically reduce the global production of CFCs in 1987. (For what it is worth, I supported the international ban of CFCs in my 1993 book Eco-Scam.) With regard to anthropogenic climate change, my Nexis search of major world publications finds before 1985 just a single 1981 New York Times article. "There has been a growing scientific consensus that the buildup of carbon dioxide in the atmosphere is creating a 'greenhouse effect' by trapping some of the earth's heat and warming the atmosphere," reported the Times in its January 14, 1981 issue. What a difference the passage of 25 years makes. My Nexis search turned up 457 articles in major publications that in the last year cited or used the phrase "scientific consensus." Checking to see how many combined that phrase with "climate change," Nexis reported that the number comes to 342 articles. Briefly scanning through a selection of the articles it is clear that some of them involved the controversy over whether or not there is a "scientific consensus" on climate change. The majority appear to cite various experts and policymakers asserting the existence of a scientific consensus that anthropogenic climate change is dangerous to humanity. So what to make of this increase in the use of the concept of "scientific consensus?" After all, several scientific consensuses before 1985 turned out to be wrong or exaggerated, e.g., saccharin, dietary fiber, fusion reactors, stratospheric ozone depletion, and even arguably acid rain and high-dose animal testing for carcinogenicity. One reasonable response might be that anthropogenic climate change is different from the cited examples because much more research has been done. And yet. One should always keep in mind that a scientific consensus crucially determines and limits the questions researchers ask. And one should always worry about to what degree supporters of any given scientific consensus risk succumbing to confirmation bias. In any case, the credibility of scientific research is not ultimately determined by how many researchers agree with it or how often it is cited by like-minded colleagues, but whether or not it conforms to reality. Ronald Bailey is Reason's science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is now available from Prometheus Books. Disclosure: For what it is worth I generally accept the current "consensus" that anthropogenic climate change could be a big problem. I do worry that what governments are likely to do about global warming may be worse than climate change. Join Ron Bailey, Nick Gillespie, Matt Welch, and Jacob Sullum on Reason's weeklong Caribbean cruise in February 2011. Sign up today! http://www.reasoncruise.com 
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| Stevens Calls the Right to Arms a 'Property Right' (for Him, the Ultimate Insult)
June 30, 2010 at 6:20 AM
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|  In his McDonald v. Chicago dissent, Justice John Paul Stevens asserts:
The right to possess a firearm of one's choosing is different in kind from the liberty interests we have recognized under the Due Process Clause.…It does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality… In some respects the substantive right at issue may be better viewed as a property right. Petitioners wish to acquire certain types of firearms, or to keep certain firearms they have previously acquired. Interests in the possession of chattels have traditionally been viewed as property interests subject to definition and regulation by the States. Stevens' opinion that the right to armed self-defense is not very important was decisively rejected not only in McDonald but also in D.C. v. Heller, based on strong historical evidence that the people who ratified the Second and 14th amendments had a different view. But consider the implications of his suggestion that we view the right to keep and bear arms as a property right. Stevens, who sees nothing wrong with the forcible transfer of property from one private owner to another as long as it's done pursuant to a "plan," means this as a put-down. But contrary to his implication that states are free to define and regulate it however they choose, property is explicitly protected by the Fifth Amendment: People cannot be deprived of it without "due process," and it cannot be taken for "public use" without "just compensation." The 14th Amendment's moribund Privileges or Immunities Clause arguably provides additional protection for property rights. Furthermore, the right to keep and bear arms is not the only constitutional right that depends on property. What about "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures"? Under Stevens' reasoning, it would be reduced to a "property interest" that is "subject to definition and regulation by the States." Likewise freedom of speech or religion, to the extent that they depend on the use of property such as computers, paper, ritual objects, and houses of worship. How meaningful would these rights be if you had them in theory but were forbidden to own and use property needed to exercise them? I noted some puzzling rhetorical questions in Justice Stephen Breyer's McDonald dissent earlier today. I'll have more on the dissenters' complaints in my column tomorrow. 
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| Elena Kagan and Originalism
June 30, 2010 at 5:36 AM
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| The Cato Institute's Ilya Shapiro has a great rundown of today's confirmation hearings for Supreme Court nominee Elena Kagan. Some highlights: In her response to Senator Kohl about whether she's an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the "original intent" of the Founders. This line of analysis is completely wrong. It's not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case. So it seems that Kagan either doesn't understand originalism or doesn't take it seriously. Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution. I take this to mean that when originalism suits Kagan's desired result, she will pay it lip service. Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position.... The more I watch Elena Kagan, the more I'm liking her personally and the more I'm concerned about what she'd be like on the bench. Reason weighs in on Kagan here. 
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| Breyer: Now Judges Will Have to Decide What a Semiautomatic Is
June 30, 2010 at 5:25 AM
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|  Dissenting from yesterday's Supreme Court ruling that said the Second Amendment applies to the states via the 14th Amendment, Justice Stephen Breyer complained that judges will now have to make assessments about gun control for which they lack the necessary expertise. To illustrate that point, he posed a series of rhetorical questions (emphasis added):
Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting pat-downs designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government's ability to take special measures during, say, national security emergencies? Most of these are questions that courts may actually have to address. But I doubt they will be called upon to settle the issue of what constitutes a semiautomatic weapon (a gun that fires one round, ejects the empty casing, and automatically loads a new cartridge when the trigger is pulled) or decide whether people have a right to possess them (a question the Court already answered in District of Columbia v. Heller, where it overturned a law that banned semiautomatic handguns). I suspect Breyer is using semiautomatic weapon as a synonym for assault weapon, an arbitrary category that is based mainly on the proscribed guns' military-style appearance rather than their capabilities. While this conflation demonstrates Breyer's point that judges do not necessarily have the knowledge to assess the wisdom or propriety of gun control laws, the same is true of legislators. Judges, like legislators, can and should strive to intelligently assess the evidence and arguments submitted by both sides. Sometimes judges and legislators both fail at this task. 
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| Minimum Wage Hurts Children
June 30, 2010 at 5:02 AM
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| This is the time of year when youngsters across the country are getting out of school and hitting the pavement to look for summer jobs. The unfortunate reality of the current economic climate is that teenagers are having an extremely tough time. The unadjusted unemployment rate for 16 to 19 year olds in May was 26.8 percent, up from 12.6 percent a decade ago and 23.6 percent in May of last year, before the federal minimum wage increased to $7.25 per hour. Minimum wage law "winds up doing more harm to those people it's intended to help, than it actually benefits them," said James Sherk, a senior policy analyst with The Heritage Foundation, in an interview with Charles Adler. "What happens when it becomes more expensive to hire workers? Well, employers, like everyone else, they hire fewer workers. And it means higher wages for some workers, but for other workers it means that they don't get a job in the first place." Sherk recently took this message to the U.S. Congress Joint Economic Committee, declaring that "temporarily reducing the minimum wage to $5.15 an hour would spur hiring of unskilled youth." The states seem to have their signals crossed, though. In Illinois, where minimum wage is going up to $8.25 per hour, the Republican candidate for governor has signaled his willingness to drop the rate to match the federal level. Meanwhile, New York is considering moving in the opposite direction by mandating a living wage of $11.50 for jobs connected to any developments that receive subsidies or tax breaks from the city. In North Carolina, where the minimum wage has jumped $1.10 in the past year and a half, summer camps are being forced to layoff young councilors and cut back on field trips. This ends up hurting both college students and the children they are supposed to take care of. "It is harder when there are less counselors to get things done," said college student and camp councilor Toni Watson in an interview with News 14 Carolina. A 2007 study published in The Journal of Human Resources found that young people in jurisdictions with high minimum wages had worse outcomes later in life because they were less likely to get the training and experience they needed when they were young. You'd have to be completely heartless not to want kids to have the opportunity to get a good job when they grow up. Seriously people, think of the children! 
 | Media Files
teen_jobs_scarce_100741931.mp3 (MP3 Audio, 6.1 MB)
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| Reason.tv: Pension Tsunami's Jack Dean on the Growing Wave of Public Pension Debt
June 30, 2010 at 5:00 AM
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| At his website PensionTsunami, Jack Dean and his staff chronicle the ever-growing wave of public pension debt. "The whole idea of the pension was to provide public servants with a decent retirement," says Dean. "It wasn't to make them wealthy, to allow them to retire younger and with more money and be able to go off and play golf while the rest of us supported them." Reason.tv's Ted Balaker spoke with Dean about a fiscal mess so large that even prominent liberals like former California Assembly Speaker Willie Brown are sounding the alarm. Interview shot by Alex Manning and Paul Detrick. Edited by Manning. Approximately 9.47 minutes. Go to reason.tv for downloadable versions of this and all our videos, and subscribe to reason.tv's YouTube channel to receive automatic notification when new material goes live. 
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| Even This Mexican Walking Fish Can Defeat U.S. Border Security
June 30, 2010 at 4:33 AM
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|  On this hot Tuesday afternoon, take a moment to imagine yourself in the boots of your border brethren with this spot-on rant from the San Antonio Express-News about how gol-durned expensive it is to fail at securing our borders. (Or imagine yourself as the super-cool Mexican Walking Fish at right. He does not wear boots, but he can defeat our border security. Your call.) In 2005, Operation Linebacker sent $35 million in state and federal funds to rural border sheriffs' departments so they could help the Border Patrol. They ticketed thousands for traffic violations and arrested many illegal immigrants, but few criminals. In 2007, that program morphed into Operation Border Star, a multi-agency effort that relied on $110 million in state funds. In May 2006, then-President George W. Bush launched Operation Jump Start, a plan to deploy up to 6,000 National Guard troops to the U.S.-Mexico border. That same year, Congress authorized 700 miles of fence along the border and Gov. Rick Perry asked citizens to test a website linked to eight cameras along the border. The latter project ran out of money after a year and fell far short of its goals in arrests and reports of illegal crossings. Just 17 of 200 cameras had been installed with a $2 million federal grant. As for the fence, the General Accounting Office found that, despite a $2.6 billion investment, the government couldn't tell if it worked. In January, the GAO found that the number of new system defects identified over a 17-month period in the federal government's Secure Border Initiative, a multiyear, multibillion-dollar program "was increasing faster than the number of defects being fixed." Faced with that finding, Homeland Security Secretary Janet Napolitano ordered an assessment of the program and froze some of its funding. But then in May, President Barack Obama announced plans to send 1,200 National Guard troops to the border. In fact, only one thing seems to have worked to slow passage at the border: According to Homeland Security figures, the number of apprehensions of illegal aliens dropped 23 percent between fiscal year 2008 and 2009. But it wouldn't be far-fetched to attribute much of that to the slumping U.S. economy, arguably our most effective border protection measure so far. Read lots more on the failures of border control and the ways we should just let 'em in here. 
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| Undermining the "American Taliban"
June 30, 2010 at 3:56 AM
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| Back in February, I wrote the following about this DailyKos/Research 2000 poll, which suggested that every conservative in America thought Obama was a Kenyan communist: Last week Daily Kos editor Markos Moulitsas told readers that he was "putting the finishing touches on my new book, American Taliban, which catalogues the ways in which modern-day conservatives share the same agenda as radical Jihadists in the Islamic world." But the liberal Dinesh D'Souza (whose sinister claims about the left's "responsibility" for 9/11 are summarized and rebutted here by George Mason law professor Peter Berkowitz) found himself "making certain claims about Republicans that I didn't know if they could be backed up." Working backwards, Moulitsas set out to prove, via a Daily Kos/Research 2000 poll, that self-identified Republicans have much in common with the makeup-wearing, women-beating acolytes of Mullah Omar. The poll's results obviously do not confirm Moulitsas's rather extreme judgment of rank-and-file Republicans, but are nevertheless alarming. After a quick read of the questions and methodology (areas in which I possess no expertise), I was skeptical. Now, DailyKos founder Markos Moulitsas is admitting that the study was, in his words, "bunk": I have just published a report by three statistics wizards showing, quite convincingly, that the weekly Research 2000 State of the Nation poll we ran the past year and a half was likely bunk. Since the moment Mark Grebner, Michael Weissman, and Jonathan Weissman approached me, I took their concerns seriously and cooperated fully with their investigation. I also offered to run the results on Daily Kos provided that they 1) fully documented each claim in detail, 2) got that documentation peer reviewed by disinterested third parties, and 3) gave Research 2000 an opportunity to respond. By the end of last week, they had accomplished the first two items on that list. I held publication of the report until today, because I didn't want to partake in a cliche Friday Bad News Dump. This is serious business, and I wasn't going to bury it over a weekend. We contracted with Research 2000 to conduct polling and to provide us with the results of their surveys. Based on the report of the statisticians, it's clear that we did not get what we paid for. We were defrauded by Research 2000, and while we don't know if some or all of the data was fabricated or manipulated beyond recognition, we know we can't trust it. Good for Moulitsas for both allowing an investigation and coming clean when the results were unfavorable to Kos and Research 2000. 
 | Media Files
beating.mpg (MPG Video, 1.8 MB)
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| The Fall of the "American Taliban"
June 30, 2010 at 3:56 AM
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| Back in February, I wrote the following about this DailyKos/Research 2000 poll, which suggested that every conservative in America thought Obama was a Kenyan communist: Last week Daily Kos editor Markos Moulitsas told readers that he was "putting the finishing touches on my new book, American Taliban, which catalogues the ways in which modern-day conservatives share the same agenda as radical Jihadists in the Islamic world." But the liberal Dinesh D'Souza (whose sinister claims about the left's "responsibility" for 9/11 are summarized and rebutted here by George Mason law professor Peter Berkowitz) found himself "making certain claims about Republicans that I didn't know if they could be backed up." Working backwards, Moulitsas set out to prove, via a Daily Kos/Research 2000 poll, that self-identified Republicans have much in common with the makeup-wearing, women-beating acolytes of Mullah Omar. The poll's results obviously do not confirm Moulitsas's rather extreme judgment of rank-and-file Republicans, but are nevertheless alarming. After a quick read of the questions and methodology (areas in which I possess no expertise), I was skeptical. Now, DailyKos founder Markos Moulitsas is admitting that the study was, in his words, "bunk": I have just published a report by three statistics wizards showing, quite convincingly, that the weekly Research 2000 State of the Nation poll we ran the past year and a half was likely bunk. Since the moment Mark Grebner, Michael Weissman, and Jonathan Weissman approached me, I took their concerns seriously and cooperated fully with their investigation. I also offered to run the results on Daily Kos provided that they 1) fully documented each claim in detail, 2) got that documentation peer reviewed by disinterested third parties, and 3) gave Research 2000 an opportunity to respond. By the end of last week, they had accomplished the first two items on that list. I held publication of the report until today, because I didn't want to partake in a cliche Friday Bad News Dump. This is serious business, and I wasn't going to bury it over a weekend. We contracted with Research 2000 to conduct polling and to provide us with the results of their surveys. Based on the report of the statisticians, it's clear that we did not get what we paid for. We were defrauded by Research 2000, and while we don't know if some or all of the data was fabricated or manipulated beyond recognition, we know we can't trust it. Good for Moulitsas for both allowing an investigation and coming clean when the results were unfavorable to Kos and Research 2000. 
| Media Files
beating.mpg (MPG Video, 1.8 MB)
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| Is That Reason in Your Pocket?
June 30, 2010 at 2:45 AM
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| Always happy to see Reason? Now you take it with you wherever you go, thanks to our brand-spanking-new iPhone app. The Reason iPhone App keeps you up to date with the latest news and views from the Reason staff wherever you are. Compatible with the iPhone, iPhone 3GS, and iPod Touch, the Reason App downloads and syncs Reason's content to your device in real time. And best of all, it's FREE! 
Features include: -
Access to fresh content from Hit & Run, Reason.com (including Brickbats), Reason.tv, and Reason.org; -
Simple Save and Share functionality for all text and video content; -
Smooth navigation between and within sections; -
Secure Donations page. If you need help with the application or have a suggestion for how we can improve it, please send an email to app@reason.com. The Reason iPhone App was developed by Peter Snyder, a programmer based in Chicago. He specializes in Web 2.0 projects and Cocoa/iPhone applications. He can be contacted about projects at snyderp@gmail.com, or at his website. The Reason iPhone App uses TouchXML, which is licensed under the MIT software license.  | | |
| How Will States Keep Health Insurance Premiums Down If They Can't Order Insurers to Operate at a Loss?
June 30, 2010 at 2:01 AM
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| Since Massachusetts overhauled its health insurance regulations in 2006, average premium prices have skyrocketed. And the governor's office seems to be at a loss as to how to stop further increases: Its response has not been to look for ways to make the system more efficient or less resource intensive, but to simply tell insurers that they aren't allowed to price their premiums as requested. Problem is, insurers can't operate that way for long, especially with all the new operating regulations and coverage mandates they're facing. And so it wasn't surprising to see that, following the state government's rejection of most proposed rate increases, the Bay State's four biggest insurers all announced hefty first-quarter operating losses.  Gov. Patrick's rate caps may not have been sustainable (insurers can only operate at a loss for so long), but they did provide an easy short-term method for blocking premium growth. And, more importantly, they gave the governor a political boost by making him look tough on insurers. But now it appears that his system of de facto insurance price controls may not be an option for much longer: Last week, the state's insurance appeals board sided with Harvard Pilgrim Health Care, one of Massachusetts' biggest insurers, and decided that the rate hikes the company had requested were, in fact, reasonable.
Naturally, the governor's office isn't too happy: Consumer Affairs Undersecretary Barbara Anthony said the administration is reviewing the decision and weighing whether to ask Attorney General Martha Coakley to appeal the decision to the Superior Court. "We strongly disagree with the hearing officers' decision," said Anthony. "They've substituted their judgment for the judgment of the commissioner." Well, yes. But isn't that the whole point of an appeals board—to review the facts of a case and the ruling made and, if necessary, substitute the judgment of the appeals board for the judgment of the original authority? If the job of an appeals board was to defer to the judgment of the commissioner, then it wouldn't really be offering much of an opportunity for appeal, would it? Regardless, it seems clear that the Patrick administration will continue in its fight for the right to demand that insurers operate at a loss. And I suspect that the Patrick administration will soon be joined by efforts at the federal level. Already we're seeing calls for national regulation and review of insurance premiums. As Gov. Patrick has discovered, these proposals are likely to score political points. But they aren't likely to address the core problems of rising medical costs and spending—problems which ObamaCare, like its model in Massachusetts, has only exacerbated.  | | |
| New at Reason: Shikha Dalmia on Nationalizing BP
June 30, 2010 at 2:00 AM
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|  Soon after the Gulf gusher started spewing its toxic muck, many figures on the left demanded that the federal government seize BP's assets. But as Shikha Dalmia explains, the harsh truth is that neither the government nor the company can make the victims of the spill whole again. Indeed, the absolute worst thing one could do to them is consign them to the tender mercies of a government-controlled BP.
View this article. 
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| Don't Nationalize BP
June 30, 2010 at 2:00 AM
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| Life is complicated. But not for the statist leftarati watching the BP oil disaster. For them, it offers yet another opportunity to reaffirm a binary lesson in an old morality play: "government good; private corporations bad." Soon after the Gulf gusher started spewing its toxic muck, an activist group named "Seize BP" sprang into action, holding rallies all across the country in outfits depicting injured pelicans demanding—you guessed it!—seizure of BP's assets. Nor is this call limited to a fringe group. Chris "Hardball" Matthews recently hectored: "Why doesn't the president go in there, nationalize the industry and get the job done?" Salon magazine's Joe Conason, likewise, advocates taking a leaf from Norway's page and nationalizing the whole industry to constrain a "dangerous economic sector." Former labor secretary-turned-Berkley-professor Robert Reich insists that if the government can take over AIG and General Motors, then why not BP's North America branch? And Rosie O' Donnell has opined... oh nevermind, who cares! The harsh truth is that neither the government nor the company can make the victims of the spill whole again. But the absolute worst thing one could do to them is consign them to the tender mercies of a government-controlled BP. Reich, who has made the most cogent case for nationalization, argues that the company's first responsibility is to its investors, not the victims of the spill. Hence it faces a fundamental conflict of interest in which it has every incentive to delay and diminish compensation. (Theoretically, BP's stockholders could sue the company if it made what they regarded as an overly generous settlement to avoid the political heat.) And, in the Reichian parable, the only solution to this market failure is massive government intervention. If only. The reality is that such intervention rarely—if ever—has a happy ending, regardless of where and when it's applied. Consider the Bhopal gas tragedy in India, the worst industrial accident in history that marked its 25th anniversary last year. For arguments similar to the ones that Reich & Co. are deploying, the Indian government took it upon itself to deal with Union Carbide—the company responsible for releasing methyl isocyanate into a densely populated town, killing up to 20,000 and injuring about half a million. The government went so far as to bar the victims from filing private lawsuits on grounds that it was better positioned than them to extract a muscular settlement from the company. What did it get? A measly $470 million—partly because it vastly understated fatalities in order to minimize its own negligence. Bhopal victims on average got $580 each, and that too after begging and bribing officials who continue to sit on about half of the money. If you think that this happens only in India where the government is dysfunctional and corrupt, consider the tobacco settlement in America where state attorneys general decided to sue tobacco companies after a series of private lawsuits filed by smokers proved unsuccessful. The treatment costs of smokers imposed a strain on Medicaid budgets, they claimed, that the companies ought to pay back. Never mind that study after study has shown that smokers die young and cost states less than nonsmokers. Tobacco companies agreed to cough up more than a quarter-trillion dollars under the 1998 Master Settlement Agreement. But what was supposed to pay for anti-smoking campaigns and defray smoking-related health care costs has turned into a giant slush fund for whatever states desire. According to a 2007 General Accounting Office study, states use about 30 percent of the money for intended health purposes. The rest goes toward plugging budgetary holes, infrastructure spending, servicing debt, you name it. And what did the smokers, arguably the only genuinely injured party, get? The same old crappy Medicaid benefits and vastly higher cigarette prices! Indeed, the big danger if Uncle Sam takes over BP is that politics—not injury—will dictate who gets what. In the case of the auto bailout, to take Reich's own example, car dealers fiercely petitioned their congressmen to escape the ax, even if this meant more red ink for their parent company. If BP is nationalized, it is inevitable that politically connected lobbies—farmers, unionized industries, greens—will end up getting a larger share of the spoils than the genuinely aggrieved individuals who don't have friends in high places. But the biggest danger of a government takeover is this: If BP offers victims an unsatisfactory settlement, they can sue. Not so if the government is running the company and determining compensation. The doctrine of sovereign immunity will likely shield it from lawsuits—and, if not, I would bet my annual supply of Perrier, it will pass a law doing so, as happened in India. So are there any good options for BP's victims? Unfortunately, no. Economic damages for the victims of Exxon Valdez on average worked out to less than $29,000 per head—and that's before they paid off their lawyers—not nearly enough to restore their destroyed livelihoods. As to the punitive damages, it took them two more decades to finally get a fifth of what they were originally awarded, thanks to extended litigation by the company's well-heeled lawyers. About 20 percent of the claimants were already dead by then. But worse from the standpoint of BP's victims, the Supreme Court in the Exxon case ruled that punitive damages in industrial catastrophes cannot exceed economic damages. The court invited Congress to revise that provision, which it has failed to do. Doing so now in order to retroactively raise BP's liability will mean running afoul of the Constitution, not to mention the rule of law. In short, oil spill victims will now pay not just for BP's negligence—but the government's as well. Their best bet, notes Jonathan Adler, professor of law at Case Western Reserve University, might actually be through the $20 billion escrow fund that the Obama administration has persuaded the company to create—notwithstanding Texas Republican Rep. Joe Barton's little apology to BP. BP's liabilities are likely to far exceed that amount, which is why it is going along with it in the first place. A properly constituted fund in which the government acts as a referee—and not as a negotiating party as would be the case under nationalization—might be better than the alternatives for both sides. BP could quickly process claims by offering victims pre-packaged deals. If they don't like what BP puts on the table, they could walk away and sue. But BP would have an incentive to offer them something half-way decent to avoid litigation and bad publicity. And the prospect of immediate payment that saves time, litigation costs and hassle would give victims an incentive to accept. "They won't get perfect justice," notes Adler, "but they'll get something approximating rough justice." The reality is that the spill's victims have been dealt a bad hand in a game that they didn't choose to play. But anyone who thinks that the government can be their knight in shining armor ought to be sentenced to six months of community service cleaning up the Gulf. There are no good guys in this drama. Shikha Dalmia is a senior analyst at Reason Foundation and a biweekly columnist at Forbes. Robert Soave of the University of Michigan provided valuable research assistance. This column originally appeared at Forbes. 
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| Another Reason Why Owning Property Is a Mug's Game
June 30, 2010 at 1:35 AM
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| Because governments at all levels think they can tell you what to do with it: This week, New York state senators vote on a bill that would make it illegal for any homeowner or renter to sublet for less than a month. The new law would be a blanket ban on short-term rentals no matter how ethical the renter is. Geopolitical note: If this passes, New York State will banning that which is legal in...Communist Cuba. 
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| Woman Struggles to Wash Oil Off Child's Foot
June 30, 2010 at 1:11 AM
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| A video uploaded to YouTube shows the effects on one family's trip to a Florida beach. The clip shows oil smeared on a child's foot, and his aunt trying to wash it off.
User name: scottswear
Location: Rosemary Beach, Florida
Date uploaded: June 28
Views: 29
User notes: We're currently staying in Rosemary Beach in the Panhandle of FL. Beautiful beach as always, but this scenario unfolded shortly after our morning walk today. This area of the Panhandle was previously free of oil. It became very clear that this is going to be an issue early on in our vacation. Sure we can go and buy water shoes for my twin nephews to avoid this, but there is a lot to be said for the choice vs. HAVING to wear said shoes to avoid this type of situation. Not to mention the soft sand is half the reason to come to this area... not having the option to enjoy barefoot strolls on the beach greatly diminishes the experience of coming to the wonderfully soft white beaches of this area. And trust me, you don't want me to start on the environmental side.
Click here to watch this video on YouTube. | Media Files
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| The Horses' Asses in Statehouses
June 30, 2010 at 12:46 AM
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|  Is your blood pressure too low? Then just conduct periodic Google News searches on the phrase "out of money." You'll get stuff like this Associated Press story:
The chief executive of the New York Racing Association said Monday he's confident an infusion of state cash and the impending selection of a bidder for operating a casino at Aqueduct Racetrack indicate NYRA's financial problems are over as the lucrative Saratoga racing season approaches. [...] There were concerns that Saratoga's season could be in jeopardy because of NYRA's financial woes. But the Legislature approved a $25 million loan late last month to keep Saratoga and NYRA's downstate tracks, Aqueduct and Belmont, open. I will repeat myself: Until state governments disentangle themselves from this kind of 100 percent inexcusable, non-core crap, they do not qualify for anything but contempt. And note, too, that–as Jacob Sullum details in his great 2008 feature on America's online gambling prohibitions–wherever states are in businesses that they have no business being in business in, you can bet that their protection of those rackets will include criminalizing the 100 percent peaceful transactions of not only their own residents, but even furriners who don't live here. It's outrageous, immoral, and ubiquitous. 
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| On Financial Reform, Reasonable Republican Centrists Aren't Quite Sure Where the Reasonable Center Is
June 30, 2010 at 12:09 AM
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| It's often seemed to me that, broadly speaking, the financial-services reform debate has been primarily about punishment, not policy, about doing something for the sake of being seen to do something rather than doing something effective. The complexity of the legislation and the obscurity of many of the financial instruments set to be regulated have caused much of this, and obviously there are exceptions, particularly in the wonkier corridors of Acelaland. But overall the shape of the debate has looked more or less like this: Democrats are against Wall Street, and Republicans are against Democrats. Whether you support or oppose the bill has depended largely on which one you consider the bigger bad guy. That's made it tough for centrist GOP types, who, on the one hand are supposed to be reasonable-minded populist reformers—looking out for the little guy, forcing hedge-fund managers to fly commercial to Washington, holding the hands of little children as they walk across the street while giving them good-natured lectures on the food pyramid, etc.—but are also expected to be fairly reliable team-R players on major initiatives, to figure out which exactly which side they're on. Tentatively, they've supported reform, or at least the idea of doing something about all those Big Bad Bankers. But they're less inclined toward new taxes to go along with whatever gets done. And now that Sen. Robert Byrd is headed toward the great conference committee in the sky (dropping the number of yes-votes by one), it looks like the fate of the bill lies in the hands of a handful of Republican squishes moderates: Democrats need to retain the remaining 57 Democratic and Independent senators and also win over at least three Republicans to meet the key 60-vote threshold needed to pass the bill. As of Monday, no Republican had committed to voting for the legislation. Sen. Christopher Dodd of Connecticut, who's charged with guiding the legislation through the Senate, said he "always" worries about having enough votes, but declined to answer further questions. "Let me do my work," he said, before heading off to meet with Sen. Olympia Snowe, one of the Maine Republicans open to voting with Democrats. Ms. Snowe was one of three Republicans who voiced disquiet about the fee, which could total $17.9 billion, according to a Congressional Budget Office estimate. Before her meeting with Mr. Dodd, Ms. Snowe said Monday she was concerned it wasn't debated in either House or Senate before being added in the conference committee that merged the two bills produced by Congress. "You have to look at the entirety of the legislation," she said. "Obviously, its important to have financial regulatory reform." Sen. Scott Brown (R., Mass.), who voted yes when the Senate passed its bill in May, reiterated his reservations about the final product because of the fee. "I've said repeatedly that I cannot support any bill that raises taxes." Sen. Susan Collins of Maine, calling herself undecided, said there was "much in this bill to like" but like Mr. Brown, she voiced concern about the fee "slipped in during the late hours." A number of Democrats, including Evan Bayh and Russ Feingold, are apparently waffling too. But this is almost certainly strategic—an effort to avoid committing before passage is certain, and to perhaps rack up some favors-owed when it does. If the Republicans fall in line, I suspect the Democrats will follow. 
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| It Is Time For You to Stop All of Your Spending
June 30, 2010 at 12:04 AM
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| Rick Santelli throws another fit: For a quieter take on the same message, see Reason.tv's interview with former New Mexico Governor, and possible 2012 GOP presidential candidate, Gary Johnson: And for how the state governments we are supposed to be crying for jacked up their spending during the good times of 2002-2007, read Reason's May 2009 cover story. 
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| Chicago police officer convicted of lying about torture and abuse
June 30, 2010 at 12:00 AM
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| Former Chicago police lieutenant Jon Burge was convicted of federal perjury and obstruction of justice charges (we first covered this story when his trial first began). Over his career, Burge had lied repeatedly about the torture of suspects. He testified at his own trial, denying he ever tortured suspects or encouraged other officers to do so. [...] | | |
| If You Want to Know Just How Stoopid Your Elected Officials Are, Read This Op-Ed on Lifting The Travel Ban to Cuba
June 29, 2010 at 10:59 PM
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| Here's Rep. Tom Rooney of Florida actually trying to argue that the decades-old embargo of Cuba is finally - finally! - about to topple the Castro regime! And why that means we should quintuple down on a really shitty, ineffective policy that has done nothing except prop up one of the longest-lived tyrannies in the New World. The bill would open up relations with a regime that routinely imprisons journalists and citizens who disagree with their government. This would send mixed messages about our commitment to the brave pro-democracy movement in Cuba. Lifting the travel ban would inject millions of dollars into the Cuban government at a time when the Castro regime is on the ropes. Cuba's foreign trade declined by a third in the last year, the country is several billion dollars in debt to sovereign lenders, and its economic crisis is putting Castro's rule in jeopardy. Why would we lift the travel ban and let American tourism dollars prop up the Castro regime? At this juncture, lifting the ban would amount to yet another bailout – only this time, we'd be bailing out a brutal dictatorship on the brink of collapsing. Whole thing here. It takes a brave man to sacrifice the actual people of Cuba for his own sense of moral indignation. One of the reasons I came to cherish consistency in political thinking is that I came of age during the great South African college disinvestment craze back in the 1980s. I would have long, boring conversations with people who would argue that any trade with apartheid South Africa was morally abhorrent, even if boycotting the place would hurt the poorest stuck in that country. And that it was equally morally grotesque to ban travel and trade to Cuba because, you know, it hurt the poorest in that country. That was the liberal argument, of course. Right-wingers would argue the opposite mix: No trade for Cuba but we should never pull out of South Africa. (And in case you're wondering: The eventual boycott of South Africa by the U.S. helped extend apartheid, as "isolation breeds contempt, not reform.") The idea that individuals should make these decisions rather than governments was generally not on the table for discussion. One need not travel all the way down what Ronnie Raygun used to call "constructive engagement" to realize that increasing trade and contact with repressive regimes tends to undermine them. The Castro Bros. have been on the ropes longer than Gerry Cooney; I think it's well past time to knock them out of the ring for good by flooding the freaking country with American dollars, people, and values. And if you don't trust me, here's a GOP congressman who is quite eloquent on the subject ("the default should be freedom"). Take it away, Rep. Jeff Flake: 
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| Reason Writers Around Town: Nick Gillespie on The Lessons of L'Affaire Weigel & Just Who The Hell is a Libertarian Anyway?
June 29, 2010 at 10:23 PM
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|  Writing in The Daily Caller, Reason's Nick Gillespie takes a shot at defining just what makes someone libertarian:
In the wake of l'affaire Weigel, so much is at stake for the things that matter to journalists and their enablers (read: you, gentle reader). What, for instance, is a ratfucker exactly, and is being one a good thing or a bad thing? Can journalism withstand the apparent insistence that reporters not trash-talk sources like former members of N.W.A.? Can the MSM really move into a blog-based commentary space with anything more barbed than Howard Huge or Love Is… cartoons? And perhaps most important for all of us in the libertarian movement (you know who you are and I'll pick you all up in my Ford Festiva on the way home): Just what the hell are our membership guidelines?... Only John Galt knows what the most basic requirements of libertarianism are. Folks ranging from Bill Buckley to Noam Chomsky to Clint Eastwood have described themselves as partly or wholly libertarian, so maybe it has something to do with speech impediments, dumb politics, and the ability to marry younger and younger women as you approach 1,000 years old. Believe it or not, even some girls have called themselves libertarian, including the two ladies who were the top editors at Reason long before The Nation dared top its masthead with a member of the second sex. First and foremost, libertarians like liberty, the idea that individuals have as much space as possible to make as many choices as possible (there's a reason that Reason's most recent anthology is called "Choice"). And unlike conservatives and liberals, who always fetishize some choices and demonize others, we're pretty consistent. We generally like school choice and reproductive choice, for instance, and think you should have your choice of religion (including none at all) too, and drugs, and partners in life and business. Whole thing here.  | | |
| Police Blackout
June 29, 2010 at 9:00 PM
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| Last November a police officer shot and killed David Masters, an unarmed motorist, as he sat in the driver's seat of his car on the side of Richmond Highway, a major thoroughfare in Fairfax County, Virginia. Masters was wanted for allegedly stealing flowers from a planter. He had been given a ticket the day before for running a red light and then evading the police, though in a slow and not particularly dangerous manner. In January of this year, Fairfax County Commonwealth Attorney Raymond Morrogh announced through a press release that he would not be filing any charges against the officer who shot Masters. The shooting, Morrogh found, was justified due to a "furtive gesture" that suggested Masters had a weapon. The only eyewitness to this gesture was the police officer who pulled the trigger. There exists dash-camera video of Masters' shooting. There are also police interviews of other witnesses, and there is the police report itself. But the public and the press are unlikely to see those, or even to learn the officer's name. That's because the Fairfax County Police Department—along with the neighboring municipal police departments of Arlington and Alexandria—is among the most secretive, least transparent law enforcement agencies in the country. Michael Pope, a reporter who covers Northern Virginia for the Connection Newspapers chain and for WAMU-FM, filed a series of open records requests related to the Masters shooting with the Fairfax County Police Department. All were denied. In March, Pope asked Fairfax County Police Public Information Officer Mary Ann Jennings why her department won't at least release the incident report on Masters' death, given the concerns that some have raised about the shooting. "Let us hear that concern," Jennings shot back. "We are not hearing it from anybody except the media, except individual reporters." Except the media? That's exactly who you would expect to file most open records requests. Asked why her department won't even release the name of the officer who shot Masters, Jennings got more obtuse. "What does the name of an officer give the public in terms of information and disclosure?" Jennings asked. "I'd be curious to know why they want the name of an officer." Well, for starters, because he's a government employee, paid by taxpayers and entrusted with the power to arrest, detain, coerce, and kill. And he recently used the most serious of those powers on an unarmed man. Releasing the name would allow reporters to see if the officer has been involved in other shootings or if there have been prior disciplinary measures or citizen complaints against him. It would allow the media to assess whether the Fairfax County Police Department has done an adequate job of training him in the use of lethal force. Then again, journalists can't get that other information either. The default position of the Fairfax County Police Department, Pope says, is to decline all requests for information. And not just from the media. When a member of the county SWAT team shot and killed 38-year-old optometrist Sal Culosi Jr. in 2006, it took nearly a year, plus legal action, to get the department to release information about its investigation of the shooting to Culosi's family. Culosi, who had been suspected of wagering on football games with friends, was also unarmed when he was killed. In a state that the professional journalism association Investigative Reporters and Editors ranks the fifth most transparent in the country, the police departments in Fairfax County, Arlington, and Alexandria have managed to interpret the open records law in a way that lets them be almost completely opaque. "Part of my daily routine when I worked in Florida was to drive to the police station and get a copy of the previous day's incident reports," Pope says. "I was just dumbfounded when I started working in Virginia." The police rejected all his requests for information—even for incident reports about arrests the same department had described in press releases. Invoking a phrase that traditionally refers to censorship, Fairfax County's Jennings told Pope that releasing police reports to the press would have a "chilling effect" on victims and witnesses, discouraging them from coming forward to report crimes. As Pope notes, that doesn't appear to be the case in cities that routinely release police reports, as nearly all do. When Pope asked Jennings what evidence she has to support her theory, she replied, "I don't know if there's evidence or not. All I have is what our investigators and what our commanders and the police administration believe." Don't expect elected officials to correct any of this. "I am in the corner of trusting our police department," Arlington County Board Member Barbara Favola told Pope. "If they push back I am not going to override them, and I don't think I could get three votes on the board to override them either." Alexandria Commonwealth Attorney Randolph Sengel fired off an indignant letter to the editor after Pope wrote about the secrecy in the northern Virginia police departments. Calling Pope's well-reported piece a "rant" that was "thinly disguised as a news story," Sengel declared, "Law enforcement investigations and prosecutions are not carried out for the primary purpose of providing fodder for his paper." Mocking the media's role as a watchdog, Sengel added, "The sacred 'right of the public to know' is still (barely) governed by standards of reasonableness and civility," as if those two adjectives were incompatible with a journalist inquiring about the details of a fatal police shooting of an unarmed man. "The most offensive theme of this article," Sengel complained, "is the notion that law enforcement agencies decline to release these reports to protect their own, or to conceal corrupt behavior.…Believe it or not, the reporter and his colleagues are not the last true guardians of truth and justice, the attainment of which does not hang on unfettered exercise of journalistic zeal. Last time I checked there were multiple safeguards in place to assure the integrity of the criminal justice system." These are remarkably wrongheaded sentiments, especially coming from an elected prosecutor. There have been several cases across the country where police reports haven't jibed with video evidence or have otherwise turned out to be inaccurate. Journalists and advocacy groups have used public records to shed light on bogus arrests, police cover-ups, poor police training, and wrongful convictions. Sengel seems indignant at the very idea that a lowly journalist might be looking over his shoulder, or over the shoulders of the cops who bring him the people he prosecutes. Fairfax County hasn't charged a police officer for an on-duty shooting in 70 years. Perhaps that's because no officer there has deserved to be charged. But perhaps local police and prosecutors have too cozy a relationship. The point is, we don't know. And northern Virginia's cops have made it almost impossible to find out. Radley Balko (rbalko@reason.com) is a senior editor at reason. 
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| Don't Touch My Unicorn
June 29, 2010 at 8:00 PM
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| Lawyers for the National Pork Board sent a 12-page "cease and desist" letter to the ThinkGeek website telling them to stop marketing unicorn meat with the phrase "The Other White Meat," which the pork board claims a copyright on. Of course, Think Geek isn't actually selling unicorn meat. The ad it put together was an April Fool's stunt. 
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The notion of scientific consensus plays a big role in the currenc climate change debate. So how have earlier scientific consensuses fared? Reason Science Correspondent Ronald Bailey looks back and finds that the answer is: not too well.
Writing in today's New York Daily News, Associate Editor Damon Root explains the importance of yesterday's landmark Supreme Court gun rights decision and argues that New York could use some gun owners like 76-year-old lead plaintiff Otis McDonald.
From our July issue, Senior Editor Radley Balko reports on how the police departments in Fairfax County, Arlington, and Alexandria, Virginia stonewall their critics and hide their activities from government accountability watchdogs.
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