Category: reason

After over two hundred years of debate about American constitutional law, there aren’t many new ideas in the field that are simultaneously good, original, and potentially useful in the real world. But Cato Institute scholar Clark Neily’s proposal for “constitutional small claims courts” is one of them. Here’s the problem:

A public defender pseudonymously named Don Zeko posted an infuriating thread on Twitter yesterday in which he describes confronting a police officer in the parking lot of a courthouse as the officer was in the process of citing a woman for saying the word “b*tch” in public.

The officer claimed this was disorderly conduct, a misdemeanor punishable by up to 60 days in jail. Zeko pointed out to the officer that it is, in fact, not illegal to curse in public (as a constitutional lawyer, I would add that there is a First Amendment right to do so) and that the charge would certainly be thrown out.

The officer then ordered Zeko to get in his car and drive away, and Zeko believes he would have been arrested had he stood his ground, as he later wished he had.

This may seem like a trivial incident… But there are three key points to make about this encounter.

First, this kind of thing happens all the time. Just noodle around on YouTube a bit and you’ll be struck by the utter banality of it all: The casual disrespect, intimidation, deceit, manipulativeness—it’s shocking how so many officers misbehave so flagrantly, even when they know they’re being recorded.

Second, as discussed below, there are rarely any consequences for officers who engage in the sort of low-level harassment described by Zeko and depicted in the links above….

Third, while this sort of petty tyranny may pale in comparison to beatings and shootings, these micro-assaults on people’s freedom are antithetical to liberal democracy and, in the aggregate, corrosive to the rule of law. The message is clear: “I’m a cop. If you don’t want to get hurt, don’t challenge me.”

Unfortunately, our system is not well designed to address constitutional violations that do not produce significant physical injuries or otherwise provide the opportunity to recover substantial monetary damages…

And Neily’s original solution:

[T]here’s an easy, virtually off-the-shelf solution that involves nothing more than combining two utterly commonplace features of our existing system: traffic tickets and small claims court….

[I]magine a system like this: The city has a website where people can file small claims against police officers like the one described in Zeko’s Twitter thread. There’s one field for the officer’s name and/or badge number, another for a brief description of what you claim happened, and another where you can list any injuries or damages you believe you sustained. And as with small claims court, there’s a way to include any documentation you might have, including a recording of the incident, photographs of bruises or other physical injuries, witness statements, etc….

But won’t officers constantly be tied up in constitutional small-claims court to the detriment of their other duties? Nope, not at all. First, as with traffic tickets, there will be a way for them to simply admit liability (or decline to contest it) and pay up….

Second, traffic courts typically schedule hearings on all of the contested citations a given police officer has issued in the past X weeks or months for the same day so the officer only has to spend one day in court testifying about those cases. We could do the same thing in constitutional small claims court: Schedule all of the contested cases against a particular officer on the same day, just like traffic court but in reverse……

And again like traffic court, there could be a set schedule of fines—or, in this case, damages awards—for particular sorts of misconduct….

Clark goes on to address a variety of possible objections, and also proposes a clever way to find the necessary funds to pay successful claimants, while simultaneously incentivizing officers to minimize these sorts of violations. As the saying goes, read the whole thing!

Even if fully implemented, this idea will not fully end police misconduct of the sort Clark describes. Far from it, most likely. But it would give victims a real shot at getting compensation, and could give police considerably stronger incentives to avoid such shenanigans.

I would like to propose two extensions of Clark’s idea, which I hope he might regard as friendly amendments:

First, these constitutional small claims courts are unlikely to be effective unless the doctrine of qualified immunity is lifted as a possible defense, or at least severely limited. Currently, that defense gives misbehaving police such broad protection that they are not held liable even for such blatantly illegal acts as stealing $225,000 in private property while conducting a search, and shooting a helpless child who was lying on the ground (the officer was actually trying to shoot the family dog, who posed no threat). If this license to kill and steal applies in Clark’s proposed constitutional small claims courts, they are unlikely to be effective, as officers would not be held liable for almost any misconduct. Clark himself is an advocate of abolishing qualified immunity, so I suspect he would not contest this point.

There is a simple fix for the problem: a state or local government that establishes constitutional small claims courts can also mandate (in the same legislation) that the defense of qualified immunity does not apply to claims filed there, or at least should be given a narrow scope. Even if qualified immunity persists in more high-stakes cases, it is implausible to argue that officers must have it in small claims cases, where all they stand to suffer is a modest financial loss.

My second extension is to apply the constitutional small claims concept to other government employees who often violate constitutional rights in small, but painful ways: regulators, CBP and ICE agents (they also get away with far more serious abuses, of course), CPS/child welfare agencies, public school administrators, and others.  It may be that different agencies will require somewhat differently structured small claims systems. But the basic idea is broadly applicable.

Others may well have their own ideas on how Clark Neily’s idea can be extended and improved. For the moment, I will end by applauding him for this valuable contribution to the debate over how to remedy constitutional rights violations.

 

 

 

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The fourth paragraph of a recent New York Times story about vaping on college campuses notes “a growing health crisis that has killed more than 50 people and injured more than 2,500,” which it says led Congress to raise the minimum purchase age for e-cigarettes to 21. Later the Times notes that the deaths and injuries are “largely attributed to vaping products containing THC.” But that inconvenient fact does not stop the Times from conflating college students’ nicotine vaping—the main subject of the story—with vaping of potentially deadly black-market cannabis products.

That sort of misleading reporting remains sadly common despite the mounting evidence implicating vitamin E acetate, a cutting and thickening agent that began showing up in illegal THC products this year, in the recent outbreak of vaping-related respiratory illnesses. Two days before the Times published its story, The New England Journal of Medicine published the results of a study that strengthens the case against that additive, which is not found in legal e-cigarettes.

Researchers at the U.S. Centers for Disease Control and Prevention (CDC) analyzed lung fluid from 51 patients with “probable or confirmed” vaping-related respiratory conditions and found vitamin E acetate in 48, or 94 percent. As Boston University public health professor Michael Siegel notes, “the three cases in which vitamin E acetate was not detected were not confirmed cases, and each had other potential explanations for their illnesses. One had a multi-drug overdose, one had a fungal infection, and one may have had a bacterial lung infection.”

These results, based on cases from 16 states, are similar to the findings of a November 15 CDC study that found vitamin E acetate in every lung fluid sample from 29 patients in 10 states. The new study also examined lung fluid samples from 99 healthy subjects, including 18 “exclusive users of nicotine-containing e-cigarette products,” and found no vitamin E acetate. The study “provides evidence,” the researchers say, that vaping products “can deliver vitamin E acetate to respiratory epithelial-lining fluid, the presumed site of injury in the lung.” In light of this study and earlier findings, the CDC is now describing vitamin E acetate as “closely associated” with the lung injuries.

The NEJM study, which tested 47 lung fluid samples for THC, also provides further evidence that self-reports may not be reliable in identifying which patients have consumed cannabis extracts. “THC or its metabolites were detected in BAL [bronchoalveolar-lavage] fluid samples from 40 of 47 patients,” the researchers report. “A total of 9 of 11 patients who reported no use of THC-containing e-cigarette products in the 90 days before the onset of illness had detectable THC or its metabolites in their BAL fluid. Among the patients who had available laboratory data or who reported product use, 47 of 50 (94%) had detectable THC or its metabolites in BAL fluid or reported vaping THC products in the 90 days before the onset of illness.”

As a CDC official noted after the earlier BAL study, THC would not necessarily be detectable in the lung fluid of patients who had consumed it. Without urine testing, it’s impossible to confirm the self-reports of patients who deny using cannabis products, possibly because they are reluctant to admit illegal drug use.

The researchers suggest two ways in which vitamin E acetate, which was first publicly identified as a potential lung disease culprit in early September, might be causing patients’ symptoms (endnotes omitted):

Although the ingestion and dermal application of vitamin E acetate have not generally been associated with adverse health effects, the safety of inhaling vitamin E acetate has received little attention. Vitamin E acetate is the ester of vitamin E (α-tocopherol) and acetic acid. The structure shows a long aliphatic tail that can penetrate a layer of surfactant to align the molecule in parallel with phospholipids. Phosphatidylcholines undergo transition from a gel to a liquid crystalline phase when exposed to increasing amounts of tocopherols, such as vitamin E acetate. Transitioning to a liquid crystalline phase would cause the surfactant to lose its ability to maintain the surface tension that is necessary to support respiration in the lung, thus providing a possible mechanism by which vitamin E acetate could cause respiratory dysfunction.

Another potential harmful effect of vitamin E acetate that may contribute to lung injury occurs when it is heated in e-cigarette products. Heating vitamin E acetate in these devices may create ketene by splitting off the acetate group from some or all of the vitamin E acetate. Ketene is a reactive compound that has the potential to be a lung irritant, depending on concentration.

While the researchers caution that “the causative agents” responsible for the lung disease outbreak “have not been established,” the evidence so far overwhelmingly points to relatively new additives or contaminants in black-market cannabis extracts, as opposed to legal nicotine e-liquids. Yet leading media outlets such as The New York Times continue to imply that nicotine-delivering e-cigarettes might be causing the lung injuries, suggesting that policies like raising the legal vaping age or banning flavored e-liquids are logical responses instead of panicky non sequiturs.

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A recent study published in Nature Chemistry finds that 39 percent of respondents in eight European countries say they “agree” with the statement that  “I would like to live in a world where chemical substances don’t exist.” Another 39 percent say the “slightly agree” or “slightly disagree” with this statement. Similarly,  40% say “they do everything I can to avoid contact with chemical substances in my daily life.”

As the study’s authors—Swiss academics Michael Siegrist and Angela Bearth—point out, such “chemophobia reflects stunning scientific ignorance, because human life would be virtually impossible without chemicals. Indeed, pretty much everything we use or touch is a chemical or combination of chemicals. Even if we limit the definition of “chemicals” to artificially produced substances (as opposed to naturally occurring ones), most of the products of modern industry and agriculture routinely use such materials, and they are—on average—no more dangerous than “natural” substances are. If you truly do everything you can to avoid contact with chemical substances (even just artificial ones), you would probably have to return to a stone-age lifestyle. Siegrist and Bearth note that “many claim that they do everything they can to avoid chemical substances although they clearly — and most likely unknowingly — rely extensively on products, from food to cell phones, that would not be possible to manufacture without synthetic chemicals.” If you’re reading this post on a smartphone or on a laptop, you are using “chemical substances” right now!

It may be tempting to make fun of scientific illiteracy in Europe. But we Americans are in no position to judge. Surveys in the US routinely find similar ignorance in this country. For example, some 80% of Americans say they want mandatory labeling of food containing DNA, probably because they do not realize that nearly all food contains DNA, as indeed does every human body. A 2012 survey found that 1 in 4 Americans do not know that the Earth revolves around the sun, rather than vice versa.

Most of what I said about the US DNA survey also applies to the data on chemophobia in Europe:

Polls repeatedly show that much of the public is often ignorant of both basic scientific facts, and basic facts about government and public policy. Just before the 2014 elections, which determined control of Congress, only 38 percent realized that the Republicans controlled the House of Representatives before the election, and the same number knew that the Democrats control the Senate. The public’s scientific knowledge isn’t much better…. Issues like food labeling bring together political and scientific knowledge, and it is not surprising that public opinion on these subjects is very poorly informed…

It would be a mistake to assume that widespread political and scientific ignorance are the result of “the stupidity of the American voter,” as Obamacare architect Jonathan Gruber put it. Political ignorance is not primarily the result of stupidity. For most people, it is a rational reaction to the enormous size and complexity of government and the reality that the chance that their vote will have an impact on electoral outcomes is extremely low. The same is true of much scientific ignorance. For many people, there is little benefit to understanding much about genetics or DNA. Most Americans can even go about their daily business perfectly well without knowing that the Earth revolves around the sun. Even the smartest people are inevitably ignorant of the vast majority of information out there. We all have to focus our time and energy on learning that information which is most likely to be instrumentally useful, or at least provide entertainment value. For large numbers of people, much basic political and scientific information doesn’t make the cut.

As with the US survey result, the European one is not quite as bad as it looks. Many people can happily live their lives in blissful ignorance of basic chemistry. They can continue eat GMO and processed foods, use cell phones, and partake of many other wonders of modern technology in blissful ignorance of the fact that these products contain supposedly nefarious “chemical substances.” If you don’t know what DNA is or don’t know that artificial chemicals infuse most of the items we use every day, when you see a term like “DNA” or “chemical substances” in a survey, you might assume that these things must must be dangerous, or at least should be viewed with suspicion. But, at the same time, you can still be a reasonably discerning consumer when it comes to specific products you are familiar with. Scientific ignorance should not be conflated with stupidity or irrationality.

But even though it may not have much negative effect on most people’s daily-life choices, widespread scientific ignorance can have a dangerous impact on government policy, which can be influenced by ignorant public opinion:

Unfortunately, this is a case where individually rational behavior leads to potentially dangerous collective outcomes. While it doesn’t much matter whether any individual voter is ignorant about science or public policy, when a majority (or even a large minority) of the electorate is ignorant in these ways, it can lead to the adoption of dangerous and counterproductive government policies. In this case, excessive and unnecessary warning labels on food products could confuse consumers, and divert their limited attention from real dangers.

Chemophobia of the sort documented in the European study can also lead to bans or restrictions on useful products. When activists or politicians run a PR campaign claiming that products that contain supposedly dubious “chemical substances” should be banned, people who don’t understand basic science will often be susceptible to such manipulation and disinformation, even if the products in question are actually safer or better than “natural” ones. The European Union has in fact enacted a variety of dubious restrictions on GMO foods, despite the scientific consensus that they are no more dangerous than conventional ones.  Here, as elsewhere, voters have more incentive to be ignorant and to do a poor job of evaluating the information they do know when it comes to public policy issues than when it comes to making decisions in their daily lives.

NOTE: The full text of the Nature Chemistry article is only available in a gated version (though you can get access to it through most universities in the US, Europe, and elsewhere). But here is an ungated summary. Although the latter is by an advocacy organization, I have checked it against the original, and am able to confirm that the summary accurately conveys the main points of the original.

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Though it sometimes feels here at Reason like every day is Festivus—at least the Airing of Grievances part, if not quite the Feats of Strength—it is also true that the Seinfeld-concocted holiday comes every December 23. That means two things: 1) the annual tweet-storm from Sen. Rand Paul (R–Ky.) and, if it falls on a Monday, 2) a Festivus-themed episode of the Reason Roundtable podcast.

Nick Gillespie, Peter Suderman, Katherine Mangu-Ward, and Matt Welch huck darts at, among many other targets, last week’s “bucket of garbage” budget deal, our brand new Space Force, Democratic presidential candidates, cigarette prohibitionists, presidential cultists, trade warriors, governor sons of governors, nu-trad-con manifesto writers, would-be campaign-finance regulators, politicians who can’t stop yammering about baseball, and whichever alien force lives inside Nick Gillespie’s mouth robotically dispensing Zardoz references. There’s even a shocking twist or two near the end, so be here now until the final second, if time even exists.

Audio production by Ian Keyser and Regan Taylor.

Music: “Dance Of The Sugar Plum Fairies” by Tchaikovsky

Relevant links from the show:

“A Special Reason Festivus Airing of the Grievances: Podcast,” by Matt Welch

“‘Until You Pin Me, George, Festivus Is Not Over!’” by Jesse Walker

“Peace, Love, and Misunderstanding,” by Jacob Sullum

“Bipartisan ‘Bucket of Garbage’ Budget Bill Contains $50 Billion in Special Interest Tax Breaks,” by Eric Boehm

“Republicans, Democrats Agree to Dump $738 Billion More Into the Forever War and Space Force,” by Elizabeth Nolan Brown

“Even in Impeachment-Crazed D.C., It’s Always a Good Time To Borrow and Spend!” by Nick Gillespie

“America’s Forgotten Debt,” by John Stossel

“Here’s the One Book All the Democratic Candidates (and President Trump) Should Read,” by Nick Gillespie

“Democrats Still Fundraising Off Citizens United, Still Wrong About What It Means,” by Elizabeth Nolan Brown

“Warren and Buttigieg Spar Over Who Has the Purest Donors,” by Scott Shackford

“The Cult of the Presidency,” by Gene Healy

“House-Passed Budget Deal Raises Age To Buy Cigarettes to 21,” by Christian Britschgi

“It Wasn’t Just a Chokehold That Killed Eric Garner,” by Jacob Sullum

“This Week Is a Crucial Final Exam Capping the Second Year of Trump’s Trade Wars,” by Eric Boehm

“The New Trustbusters Are Coming for Big Tech,” by Thomas W. Hazlett

“The Moral Scolds of the New Illiberal Right Are Coming For Your Internet,” by Peter Suderman

“New York Gov. Andrew Cuomo to State Economy: ‘Drop Dead,’” by Nick Gillespie

“The Five Faces of Jerry Brown,” by Jesse Walker

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A lot of things happened in the past 10 years. A boom in housing construction was not one of them. The 2010s will go down as a decade of historically low housing starts, resulting in higher home prices and rents for some and longer commutes for others.

Last week, Freddie Mae Deputy Chief Economist Len Keifer tweeted out a graph comparing new housing starts over the past six decades. The results are startling.

the 2010s will end up with the lowest number of housing units started in 6 decades, by a wide margin pic.twitter.com/3o43sEQnzp

— ???? ???????????? ???????????????????????? ???? (@lenkiefer) December 18, 2019

In the past 10 years, construction started for 9.8 million new housing units in the U.S. That compares to 15.4 million units in the last decade and 13.7 million in the decade before that. (Keifer notes that those numbers don’t include manufactured housing, a traditional source of low-income housing. It increased a little, but not enough to change the pattern.)

lack of new housing actually worse than above graph makes it out to be

historically manufactured housing (MH) not included in figures above, has been an important source of affordable housing

even though MH has been increasing, still well below historical avg pic.twitter.com/4GHHWBjqPT

— ???? ???????????? ???????????????????????? ???? (@lenkiefer) December 18, 2019

The national numbers match what we’ve seen in some of the highest-cost housing markets in the country.

New York City added 509,000 housing units, or about 2.2 units per new job, from 2001 to 2008, according to a recent report from the city’s Department of Planning. It added only 457,000 units, or .5 new units per new job, from 2009 to 2018.

In 2018, the Californian authorities permitted 117,892 new units of housing for the state’s nearly 40 million residents, according to California’s Department of Finance. By comparison, the Golden State issued 131,732 housing permits in 1975 (the earliest year data is available), despite having only 21.5 million residents.

The question isn’t whether government regulation has constrained supply. Rather its which government regulations have restricted supply the most.

Some scholars like to point to zoning restrictions that prevent developers from constructing taller, denser apartment buildings in high-demand urban areas. Others stress urban growth boundaries that block new suburban housing.

On top of this are historical preservation laws, environmental regulations, and prevailing wage requirements for construction workers. Whatever their other policy merits may be these all increase the costs of building new homes.

“The bigger background narrative is NIMBYism generally,” says Salim Furth, an urban policy expert at the Mercatus Center. “It’s not that localities have planned for housing and have just done it in a way that doesn’t produce quite enough. There’s a visceral ‘just don’t build anything here’ attitude that is prevailing in most American suburbs today.”

A 2016 National Association of Home Builders (NAHB) study estimates that regulatory costs have increased the price of a new single-family home by 30 percent in the first half of the decade. Another NAHB study found that regulations account for a third of new multifamily regulatory costs.

The people who bear the burden of these regulations are renters and new home purchasers who find themselves shelling out more money for the same amount of housing.

An October report from Apartment List put the percentage of cost-burdened renters (those paying more than 30 percent of their income in rent) at just under 50 percent. In 1960 only 24 percent of renters were cost-burdened. Some have chosen to save on housing by spending more time behind the wheel: The Washington Post reports that Americans commuting longer than ever before.

Policy makers are starting to wake up to the problem of a government-induced housing affordability crisis. Occasionally they are even passing good policies.

California has significantly deregulated the construction of granny flats, resulting in a massive spike in the construction of those units in places like Los Angeles. Seattle has done the same, while also upzoning some city neighborhoods to allow for denser residential and commercial development. Oregon and Minneapolis both abolished single-family-only zoning laws.

Alas, these reforms have often been coupled with counterproductive price controls. Both California and Oregon passed caps on rental price increases this year. New York similarly strengthened pre-existing limits on rent increases in New York City. It has also given local governments the authority to pass their own rent control laws.

On balance, Furth believes housing policy is moving in the right direction at the federal and state level. But he thinks that is counteracted at the local level, where the trend is toward giving planners more power to micromanage what new housing will look like.

“That allows local elected officials to have a seat at the table designing and planning everything. They have certain priorities that never include affordability,” Furth tells Reason. Local governments have an incentive, he says, to boost tax revenue above all else. That leads them to zone for higher-quality housing that will attract wealthy residents who pay a lot in taxes but consume few services.

In California, the high levels of discretion built into the permitting process allows activists and other self-interested parties to slow down new development. But other cities, such as Des Moines, are moving in the direction of zoning for higher-quality, higher-priced homes.

Some cities, such as Houston, have managed to stay affordable despite tremendous growth precisely because local officials have decided not to micromanage what new housing will look like or where it can be built.

Getting other cities to embrace a lighter-touch regulatory approach requires policy changes. It also requires people to accept having less control over what other people do with their property.

“We need to change the way that we think about property and neighbors,” says Furth. “We have a pattern of thinking that is just going to lead to worse and worse outcomes.”

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