Tag: in-the-news

Today is #NationalAdoptAShelterPetDay, so I thought I’d post my own pet proposal for the tax code: a deduction for adopting shelter pets. Right now, many animal shelters are 501(c)(3) charitable organizations, a category that includes corporations or foundations “organized and operated exclusively . . . for the prevention of cruelty to children or animals.” In other words, if dogs or cats are kept in a shelter, the government won’t tax the donations that keep them fed and cared for.

But as soon as those dogs or cats are adopted and go home, the government’s help ends. That doesn’t make much sense, because adoption and home life are much better ways of preventing cruelty than keeping the same animals in shelters forever. And while adopting a pet isn’t purely self-sacrificing—just look at them!—it still performs a service to the pets themselves and to society at large, which the government ought to encourage. (People also love their adopted children, but they still perform a great service by adopting them, which is why the tax code supports adoptions as well as foster homes.)

So my proposal is to amend the Internal Revenue Code to provide a deduction for the ordinary and necessary expenses of caring for a pet adopted from a 501(c)(3)-qualifying shelter. (The deduction could be capped at some predetermined limit, perhaps based on an IRS estimate of the national average.)

Because it would only apply to charitable shelters, the deduction wouldn’t encourage “puppy mills” or breeding for sale. And because it only reduces, rather than eliminates, the expenses of caring for a pet, it wouldn’t be a money-maker for animal hoarders. Instead, it would simply take the support we already give to shelter pets and extend just as much incentive to get them out of the shelters and into loving homes.

Best of all, the proposal has a perfect cringe-inducing and Congress-ready acronym: the “Pet Adoption, Welfare, and Support (PAWS) Act of 2019.” (Attention Hill staffers: imagine your boss’s free local-news airtime for endorsing the PAWS Act from the neighborhood shelter!)

And if any of you do decide to adopt a shelter pet sometime soon, you might be lucky enough to find some like these.

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Stanford University may be about to make a major error by imposing massive cuts on Stanford University Press, one of the nation’s leading academic publishers:

University presses periodically face threats to the financial support they receive from their universities. Such support is crucial, leaders of academic publishing say, because university presses publish work with scholarly significance, knowing that impact must be measured in ideas shared or conventional wisdom challenged, not commercial standards on book sales.

But even if such threats occur periodically, many academics were stunned and angry to learn that Stanford University has announced that it will no longer provide any financial support for its press. Professors at Stanford are pushing back, but there are no signs that the university will reconsider.

Without support from the university, dozens of books released by the press each year would no longer be published.

“At first glance the proposition that a university of Stanford’s stature would voluntarily inflict damage upon an asset like the Stanford University Press seems shockingly improbable. The press is a world-class scholarly publisher with a 125-plus-year history—a global ambassador of the university’s brand,” said Peter Berkery, executive director of the Association of University Presses, via email.

“It appears the Stanford administration is proceeding from the misperception that university presses are self-funding—which, with only a handful of highly circumstantial exceptions, is demonstrably not the case.”

As the Chronicle of Higher Education explains (article unfortunately behind paywall), Stanford University Press brings in some $5 million in annual revenue from its books and other publications, but nonetheless depends on the approximately $1.7 million in annual subsidies from the university in order to make ends meet. The article also notes that SUP’s need for subsidies is in part driven by the University’s refusal to allow the Press to raise money from major donors.

The Chronicle reports that Stanford Provost Persis Drell suggested that the money could instead be spent on graduate fellowships. But it also notes that it would in fact fund only about three such fellowships per year. That seems like a small price to pay for continuing one of the world’s leading academic publishers.

The sum of $1.7 million is a lot of money to you and me. But it’s actually a fairly small amount for a university with a massive endowment and a $6.3 billion annual budget. Unlike commercial publishers, academic presses are not intended to make a profit. There task is to publish works that contribute to our knowledge of important issues, but don’t necessarily attract a large readership.

Stanford UP has a well-deserved reputation for being one of the top handful of academic in several fields, including my own fields of law and political economy. Among my favorite significant Stanford UP books are Martin Redish’s Judicial Independence and the American Constitution  and Terry Anderson and Peter Hill’s The Not So Wild, Wild West: Property Rights on the Frontier.   The latter book reshapes our understanding of both the “Wild West” (showing it was a lot more orderly than its image suggests) and the creation of property rights (which is far less dependent on government than usually thought). We need more works like these, not fewer.

Admittedly, I am not a completely disinterested observer. My first book as a law professor, Democracy and Political Ignorance: Why Smaller  Government is Smarter,  was published by Stanford UP in 2013, and has since been widely reviewed, published in a revised second edition, and translated into Italian and Japanese. Stanford took a risk on an ambitious proposal by an academic with little track record for writing books. Importantly, they also agreed to set a relatively low price for the book (going against the standard practice of many other academic publishers), which made it accessible to buyers other than libraries and academics with substantial expense accounts.

Thanks in part to the pricing decision, Democracy and Political Ignorance sold thousands of copies and attracting attention in media outlets around the world. It’s an example of SUP’s willingness to proceed with projects that might otherwise have been overlooked. It is also, of course, an example of their laudable willingness to publish books that advocate positions at odds with prevailing political opinion in the academic world, and among most of the Press’s own editorial staff. Anderson and Hill’s excellent book, mentioned above, is another example of SUP’s commitment to ideological diversity.

While my SUP book had the good fortune to turn a profit, many worthwhile academic books, however, are unlikely to be profitable in the same way. Their audiences may be unavoidably limited to experts in the relevant field.

I should add, also, that SUP’s editorial and production work on my book—led by law and anthropology editor Michelle Lipinski—was exemplary. Since 2013, I have had the opportunity to work with several other leading academic publishers, and I know whereof I speak on this point. I have heard similar praise from other SUP authors.

Stanford is a private organization and has the right to set spending priorities as it wishes. Reasonable people can disagree about the value of some of SUP’s specific expenditures and publication decisions. But largely gutting Stanford University Press would be a major mistake.

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Democrats have spent years complaining that Republican health care legislation would result in fewer people with health insurance, often while pointing to Congressional Budget Office (CBO) estimates showing just how many would go without coverage. But now Democrats in the House are backing legislation that would result in 500,000 people losing coverage, according to a new report from the CBO.

The bill would prohibit the sale of renewable short-term health plans allowed by a Trump administration rule that went into effect last year. These plans, which can be extended for up to three years, tend to offer more limited coverage than the plans sold under Obamacare’s rules, and they also tend to be significantly less expensive. If the bill were to go into effect, about 1.5 million fewer people would end up purchasing short term plans, CBO estimates. About half a million of those people would end up purchasing coverage through Obamacare’s exchanges instead. Others would obtain coverage through their employers. And about 500,000 “would become uninsured.” That is, half a million people who had coverage would lose it—and replace it with nothing.

The bill would also have a modest effect on the deficit, resulting in a decrease of about $8.9 billion over the next decade. For context, CBO projects the deficit will total about $900 billion in 2019.

Although the bill is unlikely to become law while Republicans hold the Senate and the White House, House Democrats in both the Energy and Commerce and Education and Labor committees have already voted to support it. 

The bill’s effects are smaller than those of the GOP repeal legislation introduced during 2017, and total coverage may not be the only or best metric by which to judge such legislative proposals. Nevertheless, the bill exposes one of the fundamental rifts in today’s health policy debates—the division between those who believe health insurance plans should be required, by law, to offer a comprehensive suite of benefits, and those who believe in allowing for more customized and personally tailored options. Essentially, it is an argument about whether politicians and bureaucrats should design coverage, or whether it should be left to individuals to choose for themselves.

That divide was reflected in the structure of Obamacare, which required health insurance plans to offer a suite of “essential health benefits,” from maternity care to mental health, and outlawed an array of existing plans that offered more limited coverage.

The benefits of such comprehensive plans are plain: They offer a broad spectrum of benefits. But so are the drawbacks: They tend to be substantially more expensive, which is one reason why the price of unsubsidized plans sold through Obamacare’s exchanges has soared.

In a report on short-term plans last year, for example, The Washington Post noted the case of one Iowa man who purchased a short term plan for $90 a month; the Obamacare-approved alternative would have cost about $450. Individuals and families have struggled to afford the more heavily regulated plans offered under the law, and some have simply been priced out of the market.

Rather than allow those people to purchase less expensive plans, even as a fallback option, the Obama administration restricted their sale, with backers of the health law deriding them as “junk insurance.” In this view, a second-best option is not worth allowing at all. 

Yet as Michael Cannon, the Cato Institute’s health policy director, has pointed out, those plans can fill gaps in Obamacare’s coverage scheme. With some exceptions, the health law’s exchanges only make new coverage available during a few weeks or months at the end of each year known as an open enrollment period. Someone who purchased a three-month plan under the Obama-era rules in, say, January, would not be able to extend it and could find themselves unexpectedly sick and unable to renew the coverage for months. Allowing short-term plans to last for a year, as the Trump rule does, offers them a better option.

But these sorts of options are apparently not what Democrats have in mind when they say they want to expand coverage. Instead, they appear willing to potentially allow hundreds of thousands of people to go without coverage entirely in order to prevent anyone from having coverage they deem insufficient.

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In a letter issued Monday to an unidentified sharing economy platform, the federal Department of Labor clarified that gig economy workers are independent contractors, not full-fledged employees.

That seems like a common sense reading of the relationship between those workers and the platforms—like Uber, TaskRabbit, and dozens of others—that connect them with potential clients. Someone who drives for Uber, for example, gets to set their own hours and is responsible for their own vehicle. That certainly doesn’t look like a typical employer-employee relationship, but some activists have been trying to get courts and state governments to identify sharing economy workers as full-fledged employees.

Defining gig economy workers as employees would make the platforms responsible for providing health insurance and other benefits, and would force them to follow federal minimum wage laws. In all, employees can be 20 to 30 percent more expensive than contractors. It’s a designation that would potentially jeopardize the business model that has allowed the gig economy to grow and prosper—and one that would likely limit workers’ ability to exercise the independence that those jobs offer.

The Labor Department’s letter only applies to a single company—an unnamed firm that “connects service providers to end-market consumers to provide a wide variety of services, such as transportation, delivery, shopping, moving, cleaning, plumbing,
painting, and household services”—that had asked the department to determine whether workers using its platform were employees or contractors.

Still, the ruling is an important indication of where it stands on the broader question of how gig economy workers should be classified.

“Today, the U.S. Department of Labor offers further insight into the nexus of current labor law and innovations in the job market,” Keith Sonderling, acting administrator of the department’s Wage and Hour Division, said in a statement.

The ruling is also an important break with previous Labor Department guidance. Under the Obama administration, the department had issued official guidance advising that Uber and Lyft drivers would likely be classified as employees if the department was asked to make a determination about their status. Shortly after taking office, the Trump administration removed that guidance from the Department of Labor’s website, prompting the unnamed company in the letter issued Monday to seek a specific ruling from the department.

In making its determination, the department considered six factors: the degree to which employers have control over workers, the permanency of the workers’ relationship with the employer, the employer’s level of investment in workers’ equipment and facilities, the level of skill required for the work, the workers’ potential to earn profit, and the integration of the workers’ services into the employer’s business.

While the latter four are more technical in nature, the first two categories are probably the most important. Gig economy platforms have very little control over their employees, who typically can log in or log out of the systems as they please.

“A business may have control where it, for example, requires a worker to work exclusively for the business; disavow working for or interacting with competitors during the working relationship,” the Department of Labor letter states.

But that is not at all how gig economy platforms operate. Drivers can work for both Lyft and Uber—often switching between the two apps during a single shift—and completing other odd jobs on TaskRabbit does not mean a worker can’t also deliver food on DoorDash.

Indeed, research from JP Morgan Chase, an investment bank, shows that most gig economy workers are active only a few months out of the year. Rather than being full-time jobs, the data indicate that workers are likely to use the gig economy to earn extra income when needed or when time allows.

Similarly, there is very little in the way of permanence to the employer-worker relationship within the gig economy. For an Uber driver, for example, ending that relationship is as easy as deleting an app.

Defining that relationship at all is “inherently difficult,” the Labor Department letter reads, in part, because “as a matter of economic reality, [workers] are working for the consumer, not [the platform].”

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A Suffolk University/Boston Globe poll of 394 likely New Hampshire Republican voters released Tuesday is showing more bad news for GOP challenger Bill Weld in his own backyard: 72.3 percent favor President Donald Trump, while just 16.5 percent back the former two-term governor of Massachusetts. When fence-sitters John Kasich and Maryland Gov. Larry Hogan are thrown in, Weld slips to third place behind the CNN commentator, 7.9 percent to Kasich’s 9.1, more than 60 percentage points behind the incumbent.

Like many of Trump’s most fervent political opponents, Kasich and Hogan had been hoping that Special Counsel Robert Mueller’s investigation would dramatically alter the political landscape, giving them an opening against an otherwise overwhelming favorite busy stacking his party’s deck. Well, so much for that. The official Hogan position these days is “seriously considering” but needs to see a “path to victory”; meanwhile, Kasich hype man John Weaver keeps hyping every new some-conservatives-don’t-like-Trump poll, as his meal ticket gets paid for repeating on CNN that “all of my options remain on the table.”

Weld, who told me in late February that “I’m not waiting to see what happens with the Mueller investigation, because I know all I need to know about the rule of law,” has since his April 15 official announcement been ratcheting up his Trump/Russia criticism, while fundraising, he claims, is “in the millions.””It’s time for Trump to resign,” he wrote last week for the NeverTrumpers over at The Bulwark (whose founder Bill Kristol, meanwhile, keeps pining for Nikki Haley to jump into the race).

Weld hired Robert Mueller in 1990 as his deputy at the Justice Department (fun fact: Mueller’s only reported political contribution was to Weld’s losing Senate race against John Kerry back in the ’90s). So I asked him while guest-hosting Sirius XM Insight’s Stand UP! with Pete Dominick last Thursday what (if any) special insights he has on the special counsel’s work.

“I think the whole conspiracy with Russia issue is gone,” Weld said. “Mueller is a very thorough prosecutor, found no evidence of that. If he didn’t find any evidence of that, that didn’t happen.” However: “He didn’t say Trump is guilty of obstruction, [but] he puts out all the evidence.” More:

I can tell you, it’s very obvious that the evidence goes well beyond what’s required to charge the president with obstruction of justice. It goes well beyond anything President Richard Nixon ever did. What the Mueller report says at the end of Volume Two is, we would have liked to have come to a conclusion that the president is not guilty of obstruction of justice, but we were unable to come to that view. They didn’t pull the trigger, because they thought they couldn’t charge the president. If you read Volume Two, it’s very clear that the president committed the offense of obstruction of justice.

I asked Weld to address the objection that obstruction is a dubious charge when, unlike in the case of the Watergate burglary, there is no underlying crime. “Well, that’s not the law,” he said. More:

I realize that’s the theory advanced by Bill Barr, now Attorney General Barr, in his June 2018 19-page memo for the president’s eyes, which wound up with him getting selected to be attorney general. … It’s as though he never read United States vs. Nixon, the summer of 1974 case, decided unanimously by an eight to nothing Supreme Court, saying, “Nixon, you’ve got to turn over those tapes in response to the subpoena, or you’re going to be guilty of contempt of Congress.”

Nixon, as I’ve said, had self-awareness and a sense of shame, whatever you want to call it. He turned them over right away. He resigned August 9th; I think that opinion was July 24th or something like that. That was a huge earthquake around the Supreme Court’s holding, that the president is not above the law. Part of their rationale was that this is pursuant to a legitimate criminal inquiry, there was some evidence, etc. etc. In other words, they went into exactly the sort of thing that Mr. Barr says you can’t go into. He says, once the president does something, you can’t examine the motivations or the circumstances surrounding it. It’s just pure executive power. You can’t even cross examine him on that.

Weld’s bottom line: “Mueller showed obstructive acts. He recited enough to show corrupt intent as well. That’s all there. The only thing that stopped him was this internal Justice Department opinion from 20 years ago. I would not have relied on that myself.”

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Senate Minority Leader Chuck Schumer (D–New York) and House Speaker Nancy Pelosi (D–Calif.) will be meeting with President Donald Trump today to discuss a new, bipartisan infrastructure package. If a letter sent to Trump from the two leaders yesterday is any guide, their asks will include new taxes, new spending, and a healthy dose of protectionism.

“The issue of infrastructure spending is a bipartisan Congressional priority and we believe there are significant majorities in both the House and the Senate to take action on this issue,” wrote the two in a Monday letter which argued the country needs to “rebuild its infrastructure to promote commerce, create jobs, advance public health with clean air and clean water, and make our transportation system safer.”

To do this, Pelosi and Schumer listed three priorities any infrastructure package should focus on.

This includes a call for “substantial, new and real revenue”—i.e. tax increases of some form—in order to fund a package “big and bold enough to meet our country’s needs.”

Something big and bold should “go beyond transportation and include broadband, water, schools, housing, and other initiatives,” reads priority number two, which adds that “we must also invest in resiliency and risk mitigation of our current infrastructure to deal with climate change.”

Lastly, any infrastructure package “must have strong Buy America, labor, and women, veteran, and minority-owned business protections” all of which will help make any infrastructure deal “a major jobs and ownership boost for the American people.”

As far as Democratic infrastructure initiatives go, this is all pretty pro forma. Since at least 2017, Democrats have floated various spending plans as a counter to Trump’s famed $1 trillion infrastructure initiative.

Unlike the president’s proposal—which initially was focused mostly on transportation projects, included relatively modest amounts of new federal spending, and contained a number of privatization and deregulatory provisions—Democrats’ plans have called for lots of new federal spending on a wide range of priorities that often stretch the definition of infrastructure.

In March of last year, Senate Democrats floated the idea of a $1 trillion infrastructure package comprised entirely of federal spending, and which echoed many of the priorities advocated in Schumer and Pelosi’s letter, including billions of dollars for schools, affordable housing, and internet infrastructure. This proposal would also have undone some of Republicans’ 2017 corporate tax cuts as well.

In January 2018, Sens. Bernie Sanders (I–Vt.) and Elizabeth Warren (D–Mass.)—both now presidential contenders—sent a letter to Trump asking that any infrastructure package include stiff Buy America provisions.

More recently, Sen. Amy Klobuchar (D–Minn.)—also running for president—released her only $1 trillion infrastructure plan that included lots of money for rural broadband, high-speed rail, and schools.

What’s notable about Pelosi and Schumer’s latest pitch to Trump is that, while they might not have moved much on infrastructure, the president seems to be edging closer to them.

Trump’s initial infrastructure proposal from February 2018 included only $200 billion in federal spending, which was supposed to leverage an additional $1.3 trillion in non-federal investment.

It also included calls for exploring the privatization of publicly-owned airports and utilities, streamlining environmental reviews, and shifting from a tax-and-spend model of funding infrastructure to one dominated by public-private partnerships and user fees.

Trump failed to show much interest in advancing his own proposal however, and it eventually died on the vine. The president has also at times contradicted his own marginally more free market stance on infrastructure by bashing privatization and endorsing a gas tax hike.

Trump’s latest $1 trillion infrastructure proposal—included as part of his March budget request to Congress—was remarkably less detailed than the February 2018 proposal, and put much less emphasis on reforming the way infrastructure dollars are spent.

That suggests the president and Democratic leaders might find enough common ground for some sort of pork-laden infrastructure proposal that pairs some Republican priorities (like spending on rural infrastructure) with Democratic requests for money on transit or broadband. Getting Trump to agree to stiff Buy American provisions would not be a tough sell either.

Perhaps the biggest sticking point would likely be the tax increases Democrats are asking for, which would cut against Republicans’ one real legislative achievement in recent years.

Provided that the issue can be solved, a bipartisan infrastructure bill heavy on federal spending and light on reform might be in the cards.

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The theater department of Columbia College in Chicago attempted to stage a production of “HOME/LAND,” which is about the experience of Palestinian and Latino immigrants in America. But no students of Palestinian descent tried out for the play, and so white actors were cast in these roles.

That was just one of the terrible injustices visited upon the minority community by the play’s director, Catherine Slade, according to aggrieved students who told the campus newspaper, “It got to a place where nobody felt safe.” Yes, their very safety was affected by the director’s habit of “being aggressive and speaking badly” about the cast.

Perhaps Slade—a black woman, theater professor, and vocal coach—was critical of the cast members because they were insubordinate and easily offended, quickly bringing their issues with her to the Mosaic Theater Collective, Asian Student Organization, Black Student Union, and Muslim Student Association.

“There was no trying to collaborate with us,” one actress, Sophia Alonzo, said of Slade. “There was no trying to see if [she was] doing the right thing. It almost felt like we were just being used as pawns. It’s hard because these are real stories to our families and our background that were [not treated as] valid.”

It sounds to me like these students objected to being directed at all. They also objected to white actors reciting their lines in Spanish and were offended by Slade’s suggestion that several white members of the cast could pass as Latin or Palestinian.

The paper has more:

The Chronicle contacted Slade on Saturday, April 20 and requested an interview, to which she initially agreed. On Monday, April 23, the News Office intervened and eventually denied interviews with Slade, Theater Department Interm Chair Peter Carpenter and Diversity, Equity and Inclusion Scholar-in-Residence for the Theater Department Khalid Long. After repeated requests for a statement, the News Office supplied one Friday, April 26, in the evening shortly before The Chronicle’s deadline.

“The Theatre Department is committed to providing students with opportunities to perform in diverse theatre productions,” the statement read. “The ‘HOME/LAND’ script called for Latinx, Palestinian and Caucasian characters. All students who auditioned were cast in the production. However, not all of the students who auditioned were of the same race and/or ethnicity as the characters identified in the script. Indeed, no Palestinian students auditioned for the play, and as such, non-Palestinian actors were assigned to those roles. Several Latinx students who initially auditioned for the production didn’t pursue participation.”

Recall that for the modern intersectional left, race is a fundamental, immutable building block of identity. This puts the craft of acting in a tough spot—any attempt to depict or portray people of other races is essentially forbidden. My forthcoming book, Panic Attack: Young Radicals in the Age of Trump (pre-order here), contains several examples of theater professors giving up in frustration after their student actors and actresses object to playing anyone different from themselves and revolt against negative feedback, which triggers their mental health issues.

Hat tip: The College Fix

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Two hundred seventy days. That’s how long the District Department of Transportation (DDOT) of Washington, D.C., said it might take to get around to painting a single crosswalk.

They weren’t kidding. Ronald Thompson of Anacostia told WTTG he made a formal request for the crosswalk to be painted back in October. For months, nothing happened. Then, on Easter Sunday, a pedestrian, 31-year-old Abdul Seck, was hit and killed by a car at an intersection just blocks away.

So Thompson decided he didn’t want to wait anymore. At a vigil for Seck, Thompson met Michael Kaercher, who agreed that road safety was a big issue. “These kids I see, these parents, these grandparents walking their kids to school, they do not have a safe accommodation here,” Thompson told WTTG. This past Sunday, the two men took it upon themselves to do what DDOT wouldn’t, city approval be damned

Kaercher was the one who did the actual painting. “It was such an obvious project that I could do safely, without posing any significant risk to myself and no risk at all to other parties,” he told WTOP. And it’s not like the job required painting expertise or a significant commitment of time and resources. “The most painting I’ve ever done before was my dining room wall,” Kaercher added.

All told, it took about two hours and required $150 worth of supplies.

Amazingly, Kaercher may have been breaking the law. Around the country, it’s generally illegal for residents to paint crosswalks or install traffic signage on public roads. It’s not clear whether DDOT will take action, as the agency declined to answer WTTG’s questions regarding the legality of Thompson and Kaercher’s actions.

“Of all the things to possibly get arrested or fined for, helping to make people’s lives a little bit safer and a little bit less stressful? I’m fine with that,” Kaercher told WTTG.

Now, DDOT did have an explanation for why they hadn’t painted the crosswalk in the months since Thompson made his request. Per a statement provided to WTTG:

The general pavement marking service level agreement is 270 days for turnaround due to marking installation being very weather dependent. The conditions for installation generally only occur from March to November. The agency often installs markings well before the 270 day turn-around time and we are evaluating whether the SLA should be changed. Mr. Thompson’s service request came in at the end of the 2018 pavement marking season. DDOT has his request in cue and expects it to be installed shortly. DDOT has received 417 service requests for pavement markings in 2019 and closed 141 of them. Our safety team will be investigating the location to see if additional markings, signage and speed humps are needed in the area.

This is yet another example of private citizens taking it upon themselves to do what the government is incapable of. It’s not always the government’s fault. As a resident of the D.C. metro area, I know firsthand that the weather can get nasty, and I assume painting a crosswalk in the dead of winter isn’t exactly fun.

The problem is that we expect the government to fix these problems in the first place. Yet time and again, private citizens have shown they’re much more adept at this type of thing. Consider the masked anarchists who took to the streets of Portland in 2017 to patch up potholes. (Amazingly, a transportation bureau spokesperson suggested they might be breaking the law.) And in 2018, Domino’s answered the age-old question: Who builds roads in a libertarian society? The pizza chain helped fix roads in numerous states around the country. It was the perfect solution, as Reason‘s Christian Britschgi noted at the time:

Roads exist to service people’s transportation needs, whether that’s getting to and from work, schlepping freight between cities, or, yes, delivering freshly cooked pizza. Aligning the funding of roads with the purposes they’re used for would make infrastructure more responsive to the end user.

Just last month, I wrote about Monte Scott, a 12-year-old Michigan boy who used a garbage can full of dirt to fill at least 15 potholes near his family’s home last week. Scott told the Muskegon Times he’d wanted to fill potholes for months, and finally did so following a half-day at school. “People complain and complain, and the city never fills them up,” he said. “And I feel horrible because they never do it. They should fix the streets.”

If there’s one takeaway from these stories, it’s that while local governments may struggle to ensure the roads are safe, private citizens are getting real results.

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My long-in-the-works article Finding Law has now been published online in the California Law Review. The article takes on about a century’s worth of legal prejudices, nowadays associated with the Supreme Court’s decision in Erie Railroad Co. v. Tompkins. Instead, it defends a view of unwritten law as something that can be found by the legal system, rather than only being made by judges.

From the abstract:

That the judge’s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed—as a “fallacy,” an “illusion,” a “brooding omnipresence in the sky.” That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Article seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, “positive” criticism is that law has to come from somewhere: judges can’t discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English—with a certain kind of reliability, but with no power to revise at will.

The second, “realist” criticism is that law leaves too many questions open: when judges can’t find the law, they have to make it instead. But uncertain cases force judges to make decisions, not to make law. Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force—as law of the circuit, law of the case, and so on—without altering the underlying law on which they’re based.

This Article claims only that it’s plausible for a legal system to have its judges find law. It doesn’t try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous passages in Erie, rest on the false premise that judge-made law is inevitable—that judges simply can’t do otherwise. In fact, judges can do otherwise: they can act as the law’s servants rather than its masters. The fact that they can forces us to confront the question of whether they should—and, indeed, whether the Erie doctrine itself can outlive its mistaken premises. Finding law is no fallacy or illusion; the brooding omnipresence broods on.

And from the conclusion:

This change in attitude toward the common law seems to be rooted in a giant intellectual mistake. According to [Larry] Kramer, the removal of limitations on judicial lawmaking “results not from doctrinal changes, but from changes in our beliefs about the nature of law and the lawmaking process.” It’s only because “[w]e have come to see that even the fundamental principles of the common law were ‘made’ by judges” that “the ‘natural’ limits of pre-modern common law disappear, and the potential for making common law becomes as broad as we are willing to let judges go.” Surely the judicial process could have used some demystification; surely the history of the common law, under Lord Mansfield as well as others, is replete with examples of judges playing fast and loose with unwritten law. But the real motive force here seems to be a simple error about the nature of law: that it’s a “fallacy” or “illusion” to suppose “that there is this outside thing to be found.” And such errors, once made, don’t restrict themselves to unwritten law: cavalier judicial attitudes toward the common law have seeped into statutory and constitutional arguments as well.

Again, nothing in this Article addresses the actual norms of actual legal systems—whether in Blackstone’s England, New York State, or the United States as a whole. Maybe today’s legal norms really do empower judges, federal or state, to trade in their black robes for superheroes’ capes, or to play “junior-varsity Congress” with unwritten law. But in light of Holmes’s own reticence, it’s important to remember that this is not the only possible approach; that history and legal theory do offer alternatives; that different polities can choose, through their own constitutional systems, the powers they want their judges to enjoy. To make this choice, we need to restore, at least at the level of possibility, the consensus that such a choice exists. …

More on the specifics of the argument later this week.

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Politicians and reporters often rail about “the rich getting richer and the poor getting poorer.”

But as John Stossel explains, it’s not true.

In fact, the incomes of poor and middle-income Americans are up 32 percent since the government began keeping track several decades ago.

Yes, that increase is adjusted for inflation.

Another misleading claim, says Stossel, is the idea that the U.S. “no longer has economic mobility.”

But a paper in The Quarterly Journal of Economics found that most people born to the richest fifth of Americans fall out of that bracket within 20 years (Table 2). Likewise, most born to the poorest fifth climb to a higher quintile. Some climb all the way to the top.

Another claim is that inequality itself is a huge problem.

New York City Mayor Bill de Blasio warns: “There’s inequality in this country right now that is threatening to tear us apart.”

Stossel says that it might tear us apart—but only if people come to believe that all inequality is evil.

But it isn’t, he says. It’s just part of life. Some people are better singers than others. The best athletes are just physically different.

Society doesn’t try to equalize those things—or many others—for good reason.

Former investment banker Carol Roth tell Stossel, “I have two kidneys. There are people out there who need one, don’t have one that functions. Should the government be able to take my kidney because somebody else needs it?”

“There’s inequality in everything,” she adds. “There’s inequality in free time. There’s inequality in parents. I don’t have any parents or grandparents. Life is unfair…unfair is a feature. It’s not a bug.”

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The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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