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OpenMarket: August 2012

  • The Case For A Repeal Amendment

    August 10, 2012 1:47 PM

    If you want different results, you need different rules. Allowing two-thirds majorities of the states to repeal federal laws and regulations is one rule change that could deliver great results.

  • Today's Links: August 10, 2012

    August 10, 2012 10:00 AM

    OPINION

    ORANGE COUNTY REGISTER EDITORIAL: "Is California Getting Too Much CARB?"
    "Californians recently have been learning about $54 million that was unspent by the Department of Parks and Recreation, and about $37 billion in 'special funds' throughout state government that is spent without oversight. But perhaps the biggest state bureaucracy that goes unaccountable is the California Air Resources Board, headed by Chairwoman Mary Nichols. Its yearly operating budget is $860 million. But even that figure pales in comparison with the immense powers it is assuming on Jan. 1, when it begins implementing a 'cap and trade' scheme in which greenhouse-gas emissions supposedly will be controlled by capping the total amount allowed in the state, but allowing high-pollution companies to buy extra capacity, in the form of 'permits,' from lower-polluting companies."

    ALEXIS MADRIGAL: "Finally, Someone Read the Terms of Service So You Don't Have To"
    "I've yet to find anyone who reads the terms-of-service contracts that we "agree" to on the various websites of the world. But now, a group of technologists, lawyers, and interested parties have created TOS;DR, a project to create peer-reviewed summaries of all those documents you will never actually read. Launched in June, it's a kind of brilliant and already-useful tool for some of the more heavily trafficked sites on the web."

    GABRIEL HORWITZ and DAVID KENDALL: "Tough Love: Democrats Must Cut Entitlements"
    "It’s time for Democrats, as parents of entitlement programs, to put them on a diet. And soon — because time is not on our side. Entitlements are set to go on a decades-long growth spurt starting this year, as baby boomers start retiring. At the same time, the Budget Control Act passed by Congress will further shrink investments. How much? Today, there is a $1 trillion gulf between spending on major entitlement programs and the money we devote to public investments. In 2022, the gap is expected to be $2.6 trillion."

  • CEI Podcast For August 9, 2012: Getting TSA To Follow The Law

    August 9, 2012 2:24 PM

    When the TSA installed full-body scanners in airports across the country, they did so illegally. Land-use and Transportation Policy Analyst Marc Scribner explains how a related lawsuit could force TSA to follow the law, and calls for de-nationalizing airport security.

  • Obama Administration Aggravates The Minority Achievement Gap, Increases Risk Of School Violence

    August 9, 2012 2:03 PM

    If you want to fix the achievement gap between black and white students, you must first fix the behaviors that contribute to it, like the disorder and violence in inner-city classrooms that make it hard to teach or learn in such schools, and disproportionately affect the black students in such schools.

    But the Obama administration is doing just the opposite, discouraging school districts from disciplining violent or disruptive black students if they have already disciplined “too many” black students, as Heather MacDonald notes in the current issue of City Journal. Since more black kids come from high-crime areas, it is only natural that infraction rates are higher among black kids than, say, Asian kids (Asians have much lower infraction rates than whites, who in turn have much lower infraction rates than blacks, notes MacDonald). So it is entirely foreseeable, and not the product of racism by a school, that more black kids than white kids get disciplined for misconduct in many schools. The Obama administration argues that higher minority suspension rates presumptively violate Title VI of the Civil Rights Act by constituting "disparate impact," even though the Supreme Court ruled in Alexander v. Sandoval (2001) that such "disparate impact" doesn't violate Title VI.

    Such discipline is not racism, or something that is harmful to minorities in the long run; instead, discipline is a valuable form of instruction that both teaches students how to interact properly with others (a skill that a kid will need both to maximize his own learning, and to handle a job when he reaches adulthood) and also teaches them essential moral values. Depriving disruptive or violent minority students of such discipline based on their race is itself a form of racial discrimination, since it deprives them of "equal access" to an essential educational "benefit," namely, moral instruction and instruction in how to get along with others. See Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999)(civil rights laws forbid denying students access to an educational "benefit" based on their sex or race). Employers require their employees to follow rules and get along with co-workers, and expect them to have "soft people skills," all traits that are instilled through discipline in school and in the home.

    But the Obama administration can't see this, since it is wearing ideological blinders. Contrary to what it seems to think, it does not help a black kid if a school official is prevented from disciplining another kid for beating him up just because the kid who beat him up is also black. (Violence is usually committed against other members of the perpetrator's own race.) Doing so is an example of the "soft bigotry of low expectations" that undermines educational achievement among African-Americans.

  • Teachers Unions Defend Institutional Incompetence

    August 8, 2012 4:41 PM

    Openmarket.org

    No good deed goes unpunished.

    Take Mayor Michael Bloomberg’s brave decision to lay off 3,600 employees — including teachers and principals — of 24 of New York City’s worst-performing schools, all with an eye toward rebooting them with new staff, management plans, and curricula. The outgoing staff were told they could reapply, but would have to compete with thousands of new applicants. The goal: Turn around the schools by turning them inside out.

    Naturally, the teachers’ unions pitched a fit, and have done everything they can to thwart the Mayor’s plan.

    The irony is that, as is so often the case, unions brought this pain on themselves. Bloomberg’s original plan was to institute a comprehensive instructor evaluation plan in order to, as The Wall Street Journal editorial board put it, “smoke out the lowest performing educators.” But New York’s powerful United Federation of Teachers (UFT) strongly objected to this effort to locate incompetent instructors, forcing Bloomberg into his plan B — mass layoffs at the two dozen worst-performing schools.

    http://www.openmarket.org/2012/08/08/teachers

  • When Violations Of The Law Have No Remedy: The Case Of Warrantless Wiretapping

    August 8, 2012 3:23 PM

    Yesterday, in Al-Haramain Islamic Foundation, Inc. v. Obama, a panel for the Ninth Circuit Court of Appeals ruled that the federal government did not unequivocally waive its sovereign immunity when it comes to violations of federal wiretapping law, thus leaving violations without a civil remedy. In effect, this leaves the plaintiffs with no ability to hold the government accountable for breaking its own laws. As the opinion itself stated: "This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization."

    The dangers of broad immunity are real in both the public and private contexts. Previously, Ryan Radia of CEI and Berin Szoka of TechFreedom have argued that any cybersecurity bill passed by Congress should not grant broad statutory immunity against common law contract claims because it would prevent a market for privacy from arising. In Al-Haramain, the principle of sovereign immunity was applied, thwarting an attempt to keep government officials accountable.

    The genesis of sovereign immunity should be enough to illustrate its dangers. The concept is a relic of a bygone era, reflecting the medieval idea that "the King can do no wrong." Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201 (2001). Along with the confused doctrine of divine right of Kings, there were those who seemingly believed the monarch actually shared many of God's attributes--such as perfect administration of justice. This is in stark contrast with the classical liberal standard, which is that all men should be held accountable for their actions.

    The notion that the government is incapable of error seems contrary to the historical experience of the Founding generation and can be found nowhere in the United States Constitution. Nonetheless, the concept of sovereign immunity has been incorporated into American law by courts who looked to English common law and practice. The theoretical justification of such a move has been unclear even to the courts which have applied it. See, e.g., United States v. Lee, 106 U.S. 196, 207 (1882) ("[T]he principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.").

  • Teachers Unions Defend Institutional Incompetence

    August 8, 2012 3:00 PM

    No good deed goes unpunished.

    Take Mayor Michael Bloomberg’s brave decision to lay off 3,600 employees -- including teachers and principals -- of 24 of New York City's worst-performing schools, all with an eye toward rebooting them with new staff, management plans, and curricula. The outgoing staff were told they could reapply, but would have to compete with thousands of new applicants. The goal: Turn around the schools by turning them inside out.

    Naturally, the teachers’ unions pitched a fit, and have done everything they can to thwart the Mayor’s plan.

    The irony is that, as is so often the case, unions brought this pain on themselves. Bloomberg’s original plan was to institute a comprehensive instructor evaluation plan in order to, as The Wall Street Journal editorial board put it, “smoke out the lowest performing educators.” But New York’s powerful United Federation of Teachers (UFT) strongly objected to this effort to locate incompetent instructors, forcing Bloomberg into his plan B -- mass layoffs at the two dozen worst-performing schools.

    To no one’s surprise, this, too, was unacceptable to the UFT, which claimed the city’s actions violated the teacher’s collective bargaining agreement. And so off the case went to arbitration, where the Mayor got his hat handed to him: sole arbitrator Scott Burchheit scrapped the planned reboot of the failing schools because, he found, “a wish to avoid undesirable teachers was the primary, if not exclusive reason” for the closings.

    In other news, mice like cheese.

  • Today's Links: August 8, 2012

    August 8, 2012 9:16 AM

    OPINION

    STEVE FORBES: "To Help Free Market, Bury the Hatchet"
    "We all want America’s economy to improve and realize that crony capitalism — where Washington politicians, not free markets, decide who succeeds — is a barrier to prosperous growth. Yet industries still dispatch lobbyists to Capitol Hill to get a legislative or regulatory 'fix' when there’s a marketplace dispute. Consider the recent settlement between retailers and payment card companies over fees that merchants pay to accept plastic."

    WILL OREMUS: "What Happens When Our Cellphones Can Predict Our Every Move?"
    "Your cellphone knows where you’ve been. And new research shows it can take a pretty good guess at where you’re going next. A team of British researchers has developed an algorithm that uses tracking data on people’s phones to predict where they’ll be in 24 hours. The average error: just 20 meters. That’s far more accurate than past studies that have tried to predict people’s movements."

    INVESTOR'S BUSINESS DAILY: "The True Costs of the GM/UAW Bailout"
    "The administration claims to have saved the U.S. auto industry. What it really saved was the industry's dominant union - and it weakened capitalism in the process. Michigan is one of those light-blue states where Mitt Romney just may have a chance on Nov. 6. Don't be surprised, then, if Barack Obama's re-election campaign carpet-bombs it with ads noting that Romney once said the auto industry should go bankrupt, and that the Obama administration found a better way."

  • Today's Links: August 7, 2012

    August 7, 2012 9:54 AM

    OPINION

    A. BARTON HINKLE: "Abortion Debate Skewers Political Pieties"
    "According to a sympathetic piece in The Washington Post, Codding has 'tried for months' to 'scrape together' enough money for a 'costly renovation' of her Falls Church abortion clinic—and she is still short by nearly $1 million. Wherever shall the money come from? Gail France is frustrated as well. [...] Like Codding, Frances resents new regulations the state has imposed on her business that govern everything from hallway widths to parking spaces. [...] This is not, to put it mildly, the standard progressive posture regarding the regulation of business. To the contrary: When any other industry is being discussed, most liberals believe the correct level of regulation, always, is: more."

    AMY WHITCOMB SLEMMER: "Massachusetts' Decisive Move to Attack Health-Care Costs"
    "Massachusetts is six years into implementing the precursor to the Affordable Care Act (ACA) -- the law that every state, now that the Supreme Court has upheld its key provisions, is now trying to decide how to implement. [...] But when Massachusetts passed the law, it made the calculated decision to tackle the thorny issues of cost and quality later. That time is now. Massachusetts' health-care costs have escalated at an unsustainable rate. Consumers experience these increases as higher deductibles, copayments, and out-of-pocket costs. We've begun to get a good picture of what was contributing to the rising cost of health care -- and a clear indication that spending more was not necessarily contributing to our overall health."

    MASHABLE: 'Obama That I Used to Know' Parodies Gotye With Political Twist (VIDEO)

  • Decoding The Malthusian Fallacy

    August 6, 2012 5:35 PM

    The writings of Reverend Thomas Robert Malthus (1766-1834) inspired Victorian historian Thomas Carlyle to condemn economics as "the dismal science." Witnessing the deplorable crowding, poverty, and disease of England's dirty cities and struck by a grim historical record of famines and epidemics, Malthus embodied academic pessimism. The work that made his reputation and popularized his name was An Essay on the Principle of Population. Malthus felt he was a Cassandra, admonishing utopians to beware of a catastrophic inevitability they could not see: The human population would inevitably exceed the carrying capacity of its environment.

    This natural inequality of the two powers, of population, and of production of the earth, and that great law of our nature which must constantly keep their effects equal, form the great difficulty that appears to me insurmountable in the way to the perfectibility of society.

    Surrey's sour scholar essentially believed that human population grew exponentially, whereas agricultural productivity grew arithmetically, i.e., in a straight line. He was partially right. England's population growth was undergoing a historical uptick during Malthus' lifetime. However, agricultural productivity was too. Like civilization itself, urbanization was driven by rural agricultural and urban industrial productivity increases and the surpluses attending them. The same process drew Malthus' eye, ironically enough.

    This pattern repeated in the 1970s. Productivity increased in previously undeveloped areas. Population growth swung upward. Cities became crowded. Demographers and economists went into a tizzy. Then huge segments of the global population surged from miserable poverty to genuine prosperity.

    Malthus made other contributions to his field, a true intellectual force. How did the latter halves of the previous two centuries so wildly, wonderfully contradict dismal expectations? Here we find the fatal flaw of his argument, and the worldview of many environmentalists. They appraise humanity as an "infant, mewling and puking in the nurse's arms," helpless, mouth open, desperately consuming the resources around it.

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