It's argued that the government somehow has an interest in regulating you from activities which you otherwise consent to doing: suicide, not wearing a seatbelt, doing drugs or, having someone else chop you up and store you in a freezer. These are activities which primarily only affect your own person, and, as such, gov't regulation seems like an intrusion into personal autonomy.
Under what principle can the government do this?
One, is it because some of these activities have negative social externalities? That is, they affect other people in their indirect consequences? E.g. not wearing a seatbelt results in more serious injuries and thus more burden on the public health system.
Yet this argument fails insofar as you would then have to weigh the strength of those externalities against the individual's autonomy. For seatbelts, if the person pays for his own health insurance, perhaps the externalities are minimal. Suicide, too, may not be that bad if you had no family to get depressed over you.
Two, alternately, is it because policy makers believe that individuals have limited rationality, and do not know what is in their best interests? Certainly the German cannibalism case, or suicides in general, apply here. But so does doing drugs or not wearing seatbelts. Government here is being paternalistic, perhaps in a good way, in saying that somethings, while pleasurable in the short run, are bad in the long run. And certainly cognitive psychology shows that people are extremely bad at making the "pleasure now versus pain later" cost-benefit calculations.
Or finally, is it just because the gov't, as some sort of guardian of societal mores, finds some activities so morally reprehensible that it feels itself as having a duty to prevent them?
It seems to me a lot of the law on pornography turns on which one of these three explainations you take: Is it bad for society? Bad for the individual consumer? Or just bad in general?
Wednesday, February 28, 2007
Thursday, February 22, 2007
Law: judicial review of legislative spending
given the problem of earmarks and pork-spending, there are two solutions possible:
1. executive check.
2. judicial check.
the solution of an executive check - in the form of a line-item veto - has been tried and struck down as unconstitutional. i wonder now if there is a possibility of using a judicial check.
this might work in the same way as the non-delegation doctrine. delegation occurs when the legislature gives some law making power to an administrative agency. the court articulated a principle that the law had to have an "intelligible principle" governing it, or be ruled impermissibly vague.
we might try something like this with rider bills , which are spending items attached to unrelated items of legislation. the court might try to articulate a standard that any item that has no rational relationship to the stated purposes of the bill be struck down as impermissible.
no idea where the court might find this power... and huge separation of power constitutional issues.
1. executive check.
2. judicial check.
the solution of an executive check - in the form of a line-item veto - has been tried and struck down as unconstitutional. i wonder now if there is a possibility of using a judicial check.
this might work in the same way as the non-delegation doctrine. delegation occurs when the legislature gives some law making power to an administrative agency. the court articulated a principle that the law had to have an "intelligible principle" governing it, or be ruled impermissibly vague.
we might try something like this with rider bills , which are spending items attached to unrelated items of legislation. the court might try to articulate a standard that any item that has no rational relationship to the stated purposes of the bill be struck down as impermissible.
no idea where the court might find this power... and huge separation of power constitutional issues.
Law: a tax on free speech?
a thought came up as a combination of the con law and the regulation classes that i'm taking: wouldn't it be cool to replace the MPAA's movie rating system with a simple tax on movie violence and obscenity and other undesirable behavior? for instance, smoking in movies and TV encourages teens to smoke in emulation.
for the argument to work, we need to assume that negative TV messages have social externalities. that is, while they may increase a film's sales, they adversely affect public morals.
the current system, to me, has a serious incentive problem. there are four grades of films: G, PG, PG-13, and R. (we'll leave aside M). each of those four ratings has a fair amount of room for maneuver. the rules are fairly reasonable, but by only having four categories, there is inherently a problem that most movie producers will not adjust the content of the films unless the film falls close to the boundary between two ratings.
For instance, if a film uses the F-word 1-3 times, it gets a PG-13. So there is an incentive to lower the usage of the word if there's only 4 instances of it. But, if the character says it more than 3 times, then there is no incentive to cut back. the character can say it 10 times, 20 times, and still keep the same rating. (although the reviewer's discretion may jump in at a certain point).
a similar problem exists that violence usually gets a free pass, whereas sex is heavily censored. and because it goes on behind the scenes, the public doesn't have a good idea of the relative weights of these screen acts.
in contrast, a tax system to obscenity would make film makers internalize the costs of obscenity (with proceeds going to, say, PBS). a filmmaker would have to make a cost-benefit decision on whether each instance of nudity or of violence is worth - artistically speaking - the tax penalities he would have to make for it.
So a system where every instance of the F-word is taxed at (arbitrarily speaking) 0.5% of revenue, filmmakers would limit that word only to those instances where it adds to the storyline. extraneous smoking, sex, and shooting scenes would be taken out, reducing the overall amount of violence while giving the artist the maximum flexibility to preserve the storyline.
is this censorship? well, i want to draw a distinction between movies as commodity and movies as expression. no, it's not a clear line. but one can certainly argue that nowadays, movies are as much a cultural product (along the thinking of the Frankfurt School), made for mass consumption, as they are mediums for expression. to the extent that they exist to make their producers rich, there is not a strong justification to protect them absolutely. and to the extent that the tax system can deter egregious behavior, perhaps it may forestall legislative backlashes that are more restrictive, just as what was proposed in the aftermath of the columbine shootings.
for the argument to work, we need to assume that negative TV messages have social externalities. that is, while they may increase a film's sales, they adversely affect public morals.
the current system, to me, has a serious incentive problem. there are four grades of films: G, PG, PG-13, and R. (we'll leave aside M). each of those four ratings has a fair amount of room for maneuver. the rules are fairly reasonable, but by only having four categories, there is inherently a problem that most movie producers will not adjust the content of the films unless the film falls close to the boundary between two ratings.
For instance, if a film uses the F-word 1-3 times, it gets a PG-13. So there is an incentive to lower the usage of the word if there's only 4 instances of it. But, if the character says it more than 3 times, then there is no incentive to cut back. the character can say it 10 times, 20 times, and still keep the same rating. (although the reviewer's discretion may jump in at a certain point).
a similar problem exists that violence usually gets a free pass, whereas sex is heavily censored. and because it goes on behind the scenes, the public doesn't have a good idea of the relative weights of these screen acts.
in contrast, a tax system to obscenity would make film makers internalize the costs of obscenity (with proceeds going to, say, PBS). a filmmaker would have to make a cost-benefit decision on whether each instance of nudity or of violence is worth - artistically speaking - the tax penalities he would have to make for it.
So a system where every instance of the F-word is taxed at (arbitrarily speaking) 0.5% of revenue, filmmakers would limit that word only to those instances where it adds to the storyline. extraneous smoking, sex, and shooting scenes would be taken out, reducing the overall amount of violence while giving the artist the maximum flexibility to preserve the storyline.
is this censorship? well, i want to draw a distinction between movies as commodity and movies as expression. no, it's not a clear line. but one can certainly argue that nowadays, movies are as much a cultural product (along the thinking of the Frankfurt School), made for mass consumption, as they are mediums for expression. to the extent that they exist to make their producers rich, there is not a strong justification to protect them absolutely. and to the extent that the tax system can deter egregious behavior, perhaps it may forestall legislative backlashes that are more restrictive, just as what was proposed in the aftermath of the columbine shootings.
Thursday, February 1, 2007
Politics: Obama
Biden on Obama: “I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy,” he said. “I mean, that’s a storybook, man.”
Offensive? Not to Obama. Probably to every other Black presidential candidate. But guess what, Biden is just saying what every single political observer is thinking: "Yes, Obama is black, and no, Obama is not that Black."
First, Obama is Black. Duh. He's half white, but in our one-drop culture, half is enough for Blackness unless you pull a Tiger Woods and start finding some native american in that mix.
Second, Obama is not that Black. No, not because his father's African, or because he grew up outside the US, or any of that. He's not that Black because all the usual ways of attacking a Black candidate: as outside the mainstream, as poor and inchoate and rabble-rousing, don't apply here.
Obama, in fact, is pretty invulnerable to those attacks, for one reason and one reason alone. I'll spell it: H-L-S. Obama is part of what I see as a new generation of minority leaders, many of whom are my classmates. These leaders are products of the opening of the American education system to minorities.
They've gone to top schools. They've had professional careers. Most engage in activism as a matter of personal conviction, but most also have other career objectives, other goals. Obama, for instance, was a U Chicago law professor before becoming an activist. Go ahead, pigeonhole that. It's hard to call them radicals, or rabble, or any of the things that lie behind words like "articulate and bright and clean."
So instead, they'll call him "Black, but not that Black"
Offensive? Not to Obama. Probably to every other Black presidential candidate. But guess what, Biden is just saying what every single political observer is thinking: "Yes, Obama is black, and no, Obama is not that Black."
First, Obama is Black. Duh. He's half white, but in our one-drop culture, half is enough for Blackness unless you pull a Tiger Woods and start finding some native american in that mix.
Second, Obama is not that Black. No, not because his father's African, or because he grew up outside the US, or any of that. He's not that Black because all the usual ways of attacking a Black candidate: as outside the mainstream, as poor and inchoate and rabble-rousing, don't apply here.
Obama, in fact, is pretty invulnerable to those attacks, for one reason and one reason alone. I'll spell it: H-L-S. Obama is part of what I see as a new generation of minority leaders, many of whom are my classmates. These leaders are products of the opening of the American education system to minorities.
They've gone to top schools. They've had professional careers. Most engage in activism as a matter of personal conviction, but most also have other career objectives, other goals. Obama, for instance, was a U Chicago law professor before becoming an activist. Go ahead, pigeonhole that. It's hard to call them radicals, or rabble, or any of the things that lie behind words like "articulate and bright and clean."
So instead, they'll call him "Black, but not that Black"
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