Eugene Volokh's Blog, page 2613

When Ordinary Parenting Practices Can Land You in Court

(Ilya Somin)

Law professor David Pimentel has an interesting article detailing the ways in which law and social norms have evolved to the point where perfectly ordinary parenting practices can land you in prison or at least subject you to an expensive lawsuit or prolonged official harrasment [HT: Bryan Caplan and Katherine Mangu-Ward]. As Pimentel points out, this is often a result of vague statutes and regulations that are interpreted by courts and administrative agencies to require extremely overprotective parenting. Pimentel notes that many such overprotective practices are influenced by media sensationalism and have little or no support in the actual data on child safety and some might even harm children more than they benefit them.

I will leave the specific legal issues to those more expert in these matters than I am, such as co-blogger Eugene Volokh. But one example from the text was particularly striking to me, based on personal experience:

Even one generation ago, the norms were different for determining the age at which a child no longer needed a babysitter. The expected minimum age for babysitters has gone up as well, although in the few states that have legislated specific ages, the thresholds vary widely. In Illinois, it is illegal to leave a child under 14 unsupervised for an "unreasonable period of time"; in Maryland, in contrast, a 13-year-old is considered old enough not only to care for himself, but to babysit infants. The days when 11- and 12-year-old neighborhood kids were considered competent babysitters appear to be long gone. This development is all the more marked considering that mobile phones have created a virtually instant line of communication between the sitter and the parents, something unheard of in earlier eras, when younger sitters were considered acceptable. This development is all the more marked considering that mobile phones have created a virtually instant line of communication between the sitter and the parents, something unheard of in earlier eras, when younger sitters were considered acceptable.

I worked as a babysitter when I was twelve, back in the barbaric Dark Ages of the mid-1980s. And this was not considered unusual at the time. When I was 14, I was once hired to babysit a neighborhood family's three kids for several days in a row (the parents came home in the evening, but I was the only one with the kids from about 9 to 5). You can argue about whether my neighbors should have hired an adult instead. But it certainly should not be against the law to hire a sitter in their early teens, nor is there any evidence that this is unusually dangerous or somehow causes permanent harm to the kids.

On the other hand, anecdotal evidence suggests that the growing legal and social bias against younger babysitters has helped drive babysitter pay to levels unheard of in my time. I am almost tempted to get back into the babysitting business myself to take advantage of it!

As Pimentel describes in the article, only a few states have laws that specifically ban early-teen sitters. But the practice might potentially lead to charges under the sorts of vaguely worded general child welfare statutes that he discusses at length in his article. The article describe a variety of dubious prosecutions on other issues that have resulted from such laws.

For and Against Voter ID — Exaggeration All Around

(Jonathan H. Adler)

Rick Hasen previews portions of his forthcoming book, The Voting Wars, on the Election Law Blog and in this excerpt. Among other things, Hasen argues that there is little evidence of significant in-person voter fraud of the sort that would justify strict voter ID laws. At the same time, there is little evidence that the adoption of voter ID requirements suppress voter turnout. Writes Hasen:

many Republican legislators and political operatives support voter i.d. laws for two purposes: first, to depress Democratic turnout, and second to gin up the base. . . .

But there's another side to the issue of voter identification laws, and more broadly to claims on the left of "voter suppression." Democrats/those on the left sometimes inflate the potential negative effect of voter identification and other laws on voter turnout, especially among poor and minority voters. Even though it is clear that some Republicans are motivated to pass these laws in an effort to suppress likely Democratic turnout, some of those efforts are counterproductive and even when such efforts work the effects seem likely to be small. Further, just as Republicans use the scare of voter id laws as a wedge issue to boost Republican turnout, Democrats use the scare of voter suppression to boost Democratic turnout.

So while Republicans exaggerate the threat of in-person voter fraud, Democrats exaggerate the threat of voter ID laws. In both cases, the claims far outstrip the available evidence. Concludes Hasen: "In short, we need to be honest about what we know, and what we don't know, about the effects of these new laws on voter turnout. And we don't know a lot."

From "First to Worst" on Medical Marijuana

(Jonathan H. Adler)

From Rolling Stone, a report on the Administration's escalation of the federal government's campaign against medical marijuana.  It begins:

Back when he was running for president in 2008, Barack Obama insisted that medical marijuana was an issue best left to state and local governments. "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue," he vowed, promising an end to the Bush administration's high-profile raids on providers of medical pot, which is legal in 16 states and the District of Columbia.

But over the past year, the Obama administration has quietly unleashed a multi­agency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush. The feds are busting growers who operate in full compliance with state laws, vowing to seize the property of anyone who dares to even rent to legal pot dispensaries, and threatening to imprison state employees responsible for regulating medical marijuana. With more than 100 raids on pot dispensaries during his first three years, Obama is now on pace to exceed Bush's record for medical-marijuana busts. "There's no question that Obama's the worst president on medical marijuana," says Rob Kampia, executive director of the Marijuana Policy Project. "He's gone from first to worst."

Hat tip: Instapundit.

Liberty Forum

(Todd Zywicki)

A few weeks back I noted the great new blog and website sponsored by Liberty Fund.  In addition to the blog (which features Mike Rappaport and Mike Greve) the site also has a "Liberty Forum" section with extended deliberation of a particular topic.  Last week the topic was behavioral economics and its implications for liberty and featured an essay by Doug Ginsburg and Josh Wright with several discussants.  Before that was an interesting exchange on "The Uselessness of Constitutional Law" by Michael Paulsen.  Paulsen's proposition is that constitutional "law" really bears little resemblance to anything we call "law" anywhere else in the curriculum and gussying it up as supposedly being actual law not only is distracting to students but even harmful to students' legal education: "In short, Constitutional Law is really bad law and models bad habits."

Russian Authorities Ban Toy Protest Because Toys "Are Not Even People"

(Ilya Somin)

Officials in the Siberian city of Barnaul recently banned an anti-government protest using toys on the specious justification that "toys, especially imported toys, are not only not citizens of Russia but they are not even people" [HT: Julie Ershadi]:

There hadn't been many – indeed any – rallies like it before in Russia. Last month saw dozens of toys, from teddy bears to Lego figurines, standing out in the snow of a Siberian city with banners complaining about corruption and electoral malpractice.

At the time, Russian authorities in Barnaul declared the protest "an unsanctioned public event".

Now a petition to hold another protest featuring 100 Kinder Surprise toys, 100 Lego people, 20 model soldiers, 15 soft toys and 10 toy cars has been rejected because the toys have been deemed not to be "citizens of Russia".

"As you understand, toys, especially imported toys, are not only not citizens of Russia but they are not even people," Andrei Lyapunov, a spokesman for Barnaul, told local media.

It's easy to see the flaw in Lyapunov's reasoning. Yes, toys are not people. But owners of toys are. The toy protest is an exercise of the owners' rights to freedom of expression, not the rights of the toys themselves. Banning a toy protest because toys are not people is much like banning the publication of antigovernment articles in a newspaper on the grounds that newspapers are not people.

Unfortunately, such dubious justifications for restricting political speech are not limited to Russia. Right here in the United States, many claim that the government should have a free hand in restricting political speech by corporations because corporations aren't people. As I explained here, they are making exactly the same mistake as Lyapunov.

Cognitive Enhancement and Political Equality

(Ilya Somin)

Over the next several decades, it is possible that genetic engineering and other cognitive enhancements could significantly increase human intelligence. However, as Ronald Bailey points out, critics on both the right and the left worry that this will undermine political equality:

[N]eoconservatives fear biotechnology's implications for human equality. In his 2002 book Our Posthuman Future: Consequences of the Biotechnology Revolution, for example, Francis Fukuyama asserted, "The political equality enshrined in the Declaration of Independence rests on the empirical fact of natural human equality."

This concern about human equality is the basis for a strange-bedfellow alliance with left-wing critics of biotechnological progress such as Marcy Darnovsky, co-founder of the Center for Genetics and Society. "The techno-eugenic vision urges us, in case we still harbor vague dreams of human equality and solidarity, to get over them," wrote Darnovsky and environmental activist Tom Athanasiou in World Watch magazine back in July 2002. The two fear that advances in biotechnology will "allow inequality to be inscribed in the human genome."

This is a very weak reason to oppose biotechnological enhancement of intelligence. Cognitive inequality is already "inscribed in the human genome." There is a huge difference in intellectual ability between a person with an IQ of 150 and one with an IQ of 75. And there are already massive differences in political knowledge between different individuals and groups (many of them not caused by genetics), some of which I discuss in this article. Political theorists such as John Stuart Mill, argued that these differences justify giving the more knowledgeable extra voting power long before anyone ever heard of genetic engineering.

If the case for political equality can be sustained at all, it must be on the basis that people qualify for it by meeting a certain minimum threshold of cognitive ability, not on the clearly false premise that everyone's ability is essentially equal. On this account, rising above the minimum threshold does not entitle people to extra political power over those with lesser intellectual ability. As Thomas Jefferson put it, "[b]ecause Sir Isaac Newton was superior to others in understanding, he was not therefore lord of the person or property of others." Unlike Francis Fukuyama, the author of the Declaration of Independence did not believe that the political equality enshrined in that document "rests on the empirical fact of natural human equality."

Mill made a fairly good theoretical case for giving extra votes to those citizens who have greater political knowledge. Ignorant voting often inflicts harm on all of society, and not just on the ignorant voter himself. Because, as Mill puts it, voting is the exercise of "power over others," it cannot be seen as purely an individual right that the voter is entitled to without regard to its effects. However, the theoretical argument is only worth implementing in practice if 1) the knowledgeable minority can be trusted not to use their extra power to oppress those with fewer votes, and 2) the government can be trusted to come up with a knowledge test that is objective and politically neutral. I am extremely skeptical on both counts, especially the second. These problems will not disappear with the development of cognitive enhancement. Thus, the case for political equality is buttressed by the realities of politics as well as theories of natural rights.

In the long run, cognitive enhancement could help alleviate political ignorance and increase political equality. Greater intelligence would enable "rationally ignorant" voters to assimilate more political information in the very limited time they are willing to devote to following politics. As for the equality issue, cognitive enhancement is likely to follow the same trajectory as numerous previous information-spreading technologies, such as books, radio, television, and computers. While at first they may be available mostly to the rich, over time costs will go down thanks to competition, and the rest of society will be able to take advantage of them as well. Ultimately, therefore, cognitive enhancement might actually reduce the large "natural" gaps in cognitive ability that currently exist. If, for example, genetic engineering enables everyone to achieve an IQ of 180, people who would otherwise have had very low IQs will gain a lot more than the Newtons of the world.

Another Chance at Federal Eminent Domain Reform

(Ilya Somin)

In the aftermath of the Supreme Court's controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.

Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:

…

…

[Insert sound of crickets chirping, grass growing, and paint drying].

Not much has changed since then. This is unfortunate because there is much that the federal government can do to prevent harmful takings. Many states have failed to pass effective reform laws, and federal funding often facilitates Kelo-like takings there.

Fortunately, as Christina Walsh of the Institute for Justice explains in this recent op ed, Congress now has another opportunity to rectify its previous omissions:

It has been demonstrated time and again that eminent domain is routinely used to wipe out black, Hispanic and poorer communities, with less political capital and influence, in favor of developers' grand plans.

It also has been demonstrated that restrictions on eminent domain in no way inhibit economic growth, as the beneficiaries of eminent domain abuse would like you to believe….

Groups across the philosophical spectrum have recognized the need to limit this abuse of power to protect those who are defenseless against the seemingly unstoppable alliance of powerful, deep-pocketed developers and their politician friends. The diverse coalition has included the National Association for the Advancement of Colored People, the League of United Latin American Citizens, the National Federation of Independent Business and the Farm Bureau. It's safe to say that the coalition also includes more than 80 percent of Americans, as demonstrated poll after poll taken after Kelo.

Despite the evidence that Americans are united against the misuse of eminent domain, Congress has yet to to take even a modest step. A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use….

This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.

It is tragic because this is exactly the kind of centrist reform – uniting minority advocates and small-business interests – where Republicans and Democrats should be able to work together.

Even if it passes, this bill would not end eminent domain abuse or even all federal funding for it. But it would be a valuable step on the right direction. Past history does not bode well for the bill's prospects in the Senate. And it's especially difficult to pass legislation during an election year. However, it's possible that things will be different this time.

As for those who worry that federal intervention in this field would undermine federalism, I have addressed that argument considerable detail here.

Active 5th Circuit Bar Members Near GW Law?

(Orin Kerr)

Pardon the bleg, but I'm hoping to file an amicus brief next week in the U.S. Court of Appeals for the Fifth Circuit, and I need an active member of the 5th Circuit bar to move for my admission to the 5th Circuit bar to allow me to file my brief. My office is over at 20th and H, NW; if there are any VC readers who are nearby and would be willing to move for my admission this afternoon, please send me an e-mail — okerr at law.gwu.edu. Many thanks.

UPDATE: I think I have a few volunteers. Many thanks to those who responded.

Foot Voting, Political Ignorance, and Constitutional Design

(Ilya Somin)

My 2011 article "Foot Voting, Political Ignorance, and Constitutional Design" is now available on SSRN, after a delay due to policies of the publisher. Here's the abstract:

The strengths and weaknesses of federalism have been debated for centuries. But one major possible advantage of building decentralization and limited government into a constitution has been largely ignored in the debate so far: its potential for reducing the costs of widespread political ignorance. The argument of this paper is simple, but has potentially important implications: Constitutional federalism enables citizens to "vote with their feet," and foot voters have much stronger incentives to make well-informed decisions than more conventional ballot box voters. The informational advantage of foot voting over ballot box voting suggests that decentralized federalism can increase citizen welfare and democratic accountability relative to policymaking in a centralized unitary state.

Ballot box voters have strong incentives to be "rationally ignorant" about the candidates and policies they vote on because the chance that any one vote will have a decisive impact on an electoral outcome is vanishingly small. For the same reason, they also have little or no incentive to logically evaluate the information they do know. By contrast, "foot voters" choosing a jurisdiction in which to reside have much stronger incentives to acquire information and use it rationally; the decisions they make are individually decisive.

Political ignorance is far from the only factor that needs to be considered in determining the degree of centralization in political systems. But it deserves greater attention than it has received so far.

Glenn Reynolds on What a Course on the Occupy Movement Might Teach

(Kenneth Anderson)

Trendy supply meets trendy demand in the form of university courses offering to explain the Occupy movement. In today's Wall Street Journal, Glenn Reynolds offers some suggestions on items to include in the course syllabus; he generously quotes me, from a post several months back here at Volokh, "The Fragmenting of the New Class Elites."  My point in that post was to observe that the Occupy movement was in large part about elite intra-class struggle, between an upper tier elite that was (and is) doing pretty well, and a lower tier elite that faces serious pressures and downward mobility.  (If you'd like a way in to the theory of the New Class, this mid-1990s review essay of mine on lawyers and the New Class is a place to start.)

Glenn's piece points toward something that needs much more study and discussion, and impact on policy: the linkage between the crisis in higher education and its business model, on the one hand, and elite formation and reproduction, on the other.  That includes the tendencies reinforced by that selection process – not all of which are obvious, but which have large consequences for the way in which our current elites operate.  One of the less obvious is the selection bias and long-run training of upper tier students and their parents toward risk aversion.  Strange as one might find it, I would put risk aversion as the primary behavior distinguishing today's elites – in the college placement process, the university, the migration of top tier students to Wall Street jobs where they make good money but risk OPM, the assortative mating market that is quite possibly (as I remarked tongue in cheek at Valentine's ) the raison d'être of the physical elite university, the intense reward of strategic behavior that is aimed less at maximizing gains than minimizing possible losses … today's elites are well schooled in strategic behavior, but that strategic behavior is mostly about avoiding any error, and to the extent that our elites take risks, it is only with other people's futures.

The system of high school college placement and higher education itself induces fantastic risk aversion, and that is accelerating, in large part on account of grade inflation that leave students in high school (applying to college) and in the university compressed against a top grade – in which there is mostly room to fall and fail.  When the median grade in the liberal arts is an A-, you mostly have only to go down and given the cost of the credential and its consequences – well in excess of any educational value in the liberal arts – you will act in the most risk averse, strategic way and take only classes in which you already know you will do at least that well.  The analogue of risk aversion in higher education in real life is downward mobility.  As the Occupy movement demonstrates, downward mobility is a serious prospect.

I will try to explain more of this in later posts; I'm torn between topics, and have some serious deadlines looming in other things.  But I will say that Glenn's op-ed points to one of the most pressing intellectual and moral issues of American society today, at the nexus of elite formation and higher education.  Risk aversion must seem like an odd characteristic to single out as crucial to understanding the American New Class, but I think it is on the short list of crucial features of elite reproduction.

All of this is very difficult for our elites to take up reflectively, for obvious reasons – conflicts of class interest, as well as in difficulty in confronting one's own risk aversion as a social pathology, given how much success it has brought you.  But, even more importantly, the master intellectual method that currently predominates in elite training and formation, economics, is remarkably ill-equipped even to see the issue, because its assumptions make it very difficult to see the "social" as an irreducible analytic category, rather than simply congeries of individuals.  Until there is a recovery of social theory – and the conflict tradition in social theory in particular – and a greater willingness to see the discipline of economics within a centuries' long trajectory of intellectual history, we will not have the tools by which to analyze the New Class in America.

(Note to the Hoover Institution.  This is a near-perfect subject for you to take up, because it sits at the point of serious intellectual and academic work rather than day to day politics, and it has impacts that will reverberate across society and generations.  Why not convene a discussion group to discuss the topic over the next couple of years?  Fred Siegel, Russell Berman, Mary Ann Glendon, Peter Berkowitz, Dave Brady, Frank Fukuyama, Tod Lindberg, Andrew Ferguson, Megan McArdle, Walter Russell Mead, Charles Lane, Martha Minow, Josh Cohen, Zygmunt Bauman, Glenn Reynolds, Niall Ferguson, me, et al. – notice how many of them are already at Stanford?)