Category Archive: Rights

  1. The Sweet Cakes case: Let the market give discrimination its just desserts.

    Comments Off on The Sweet Cakes case: Let the market give discrimination its just desserts.

    Anybody who refers to the United States as a free enterprise, free market, or capitalist economy is wrong.

    Real liberty and freedom mean that individuals, including business owners, may choose to associate with whomever they wish based on whatever criteria they wish. This is not the case in the United States.

    The Oregon-based Sweet Cakes bakery has been ordered to pay $135,000 in damages for refusing to bake a wedding cake for a lesbian couple for their ceremony.

    The couple had filed a complaint with the Oregon Bureau of Labor and Industries in 2013 after the bakery refused them, and then legal proceedings ensued.

    In December of 2017, the Oregon State Court of Appeals upheld the decision to force the bakery to pay the couple for damages. According to Brad Avakian, Oregon’s labor commissioner, “Today’s ruling sends a strong signal that Oregon remains open to all.… Within Oregon’s public accommodations law is the basic principles of human decency that every person, regardless of their sexual orientation or gender identity, has the freedom to fully participate in society.”

    Far from ensuring freedom in America, this ruling is a direct blow to liberty. The Christian bakery owners believe that marriage should only exist between a man and woman, which is their religious conviction. Many other people might believe these bakers’ approach to religion is ridiculous or evil.  However, what these bakery owners did was run their own business according to their own convictions.

    The argument against them is that if they are open for business, they should serve everyone. But why should the lesbian couple — or anyone else — have a right to purchase the labor of these bakery owners?

    A legitimate function of government is to protect and enforce contracts and property rights. The problem with the Oregon case is that it was never the couples’ right to purchase the private property (i.e., cake) of the bakers. Nobody owes anybody anything other than what two or more parties agree upon in a voluntary contract.

    Government must allow business owners to make their own decisions.

    It is interesting that when it comes to our personal relationships, the government recognizes our legal right and freedom to discriminate against individuals based on sex, race, sexual orientation, religion, ethnicity, and physical attractiveness. This is not so when we begin to examine certain commercial relationships.

    If I were applying for a job but refused to take the job because I found out my supervisor had a particular characteristic, identified with a particular sexual orientation, or practiced a particular religion that bothered me, I could legally indulge in my prejudice and refuse employment. On the other hand, if the employer determined that there was something disagreeable about me in that capacity and discriminated against me, I could sue the employer.

    Similarly, if you prefer not to shop at a certain bakery because you object to their religion, you can do so. But if the shop refuses your business because of your religion (or sexual orientation), the government may step in.

    So, currently, individuals have the legally recognized right to discriminate in their personal lives, and as consumers and workers.

    The free market view is that individuals who own businesses should have the same right. Just as private individuals can choose whom they allow into their homes based on whatever criteria they decide, private business owners should be recognized as having the same right.

    But government itself must not discriminate.

    The same would not be true if a business was receiving taxpayer subsidies: all types of people are forced to pay taxes to the government, and those business subsidies are ultimately being extracted from taxpayers.

    Furthermore, it would be against the free market philosophy if the government prevented a certain group from engaging in commercial transactions or if the government ordered business owners to discriminate against certain groups.

    Throughout American history, we have had immoral government laws that enforced segregation. Even the most close-minded, intolerant, prejudiced person who claims to believe in liberty and freedom would have to be against those laws, even if the laws personally benefited him or discriminated against people he hated. The difference is that the government enforced the discrimination. The true supporter of liberty and freedom believes decisions regarding business and association should not be mandated by a government.

    So if the government prevented a lesbian couple from opening a bakery, then a supporter of liberty, even a Christian supporter of liberty who regarded homosexual behavior as sinful, would have to be against that — because now it would be the government interfering in the market.

    The free market system would admittedly allow private businesses to discriminate, but this would come at a cost — lost business. Nothing is free, including discrimination. For instance, I personally would not patronize a business that had racist policies or other policies that personally offend me. Any store that had such policies would lose me as a customer. But that should be my choice, rather than a government-enforced choice.

    In other words, those who believe in liberty believe we should let the market — individuals’ voluntary buying and abstinence from buying — support or punish businesses that discriminate.

    When an individual supports free markets and liberty, and thus supports the right of bakery owners to decide what weddings to sell cakes for, this does not mean the believer in liberty is mean-spirited or “intolerant.” What it does mean is that the supporter of liberty believes the government should be a referee and not a player in the game, and that liberty belongs to all individuals, including business owners.

  2. What is Section 702?

    Leave a Comment

    A panel of experts from TechFreedom, the ACLU, R Street, and the US Naval Academy discuss Section 702, the controversial warrantless mass-surveillance provision of the Foreign Intelligence Surveillance Act (FISA).

  3. 3 reasons why the NRA is so powerful

    Comments Off on 3 reasons why the NRA is so powerful

    Why is the National Rifle Association such a powerful organization? The reason is that in politics, small but organized groups win.

    Politics in Washington is about concentrating and focusing power. Large groups have trouble doing that, but small groups focus power very well. The reason is that effective political groups form if individuals think that they benefit by participating. Social scientists call this the free-rider problem.

    Imagine you belong to a club or fraternity. You have a party. People promise to show up the next day to help clean the house. The free-rider problem is that everyone likes having the house cleaned up, regardless of whether they helped clean it. So, who shows up to help clean the house?

    Mancur Olson, the renowned 20th-century economist, identified three factors that will help us predict what happens.

    1. Individual benefits — Not many people enjoy cleaning up the house after a party. Still, in any group, some people always show up for everything. But there aren’t enough of those people to solve the problem.
    2. Group size — If there are only six people in your frat, it’s easier to get help than if there were a hundred. In a large group, everybody thinks, “Let someone else do it. I’ll just sleep.” But if there are only a few members, you know you need to help.
    3. Selective incentives — One word: donuts. Or maybe sausage biscuits. Some reward that only goes to the people that actually show up and work for the group.

    What does this have to do with the NRA? Suppose you’re opposed to guns and favor stricter gun control laws, but you know the individual benefits to any one person from organizing are very small. Further, if stricter laws are passed, all the supporters win, whether they contributed or not. There are thousands and thousands of people who think that way. So, the potential group size is very large, and it’s hard to organize.

    What about selective incentives? Not much hope there, either. If you go to a gun control meeting, all you see is some very earnest people handing out folders and wondering why so few people came to the meeting. Is the NRA different? You bet.

    Gun rights supporters are not a small group, so group size isn’t the reason. But individual benefits are important because NRA members not only like guns but, in many cases, actually own guns. So, they have something personally at stake in the issue.

    Furthermore, if you go to a meeting of pro-gun folks, you’ll get to see … guns! Old guns and rare guns. You can join safety classes and marksmanship classes. Even people who might support gun control would enjoy a gun show.

    These sorts of differences explain a lot about our political system generally. Special interest groups that have focused benefits, relatively small numbers, and the ability to offer selective incentives have disproportionate power.

    The problem is this means government policy may not be guided by what’s best for the public at large. Organized interest groups are able to control a lot of policy making, even if most people in the unorganized public disagree with them. Perhaps that’s a reason to be wary of giving the government certain powers in the first place.

    The article above was adapted from the transcript of a Learn Liberty video featuring Professor Michael Munger, “Why Is The NRA So Powerful?”:



  4. Do NFL players have the right to take the knee?

    Comments Off on Do NFL players have the right to take the knee?

    From the television news to Facebook, it seems like everyone has an opinion on the NFL and national anthem controversy. On one side of the spectrum, there is the position that standing up during the anthem means ignoring the injustices that are occurring to certain segments of society. Therefore, kneeling or not putting your hand on your heart is a peaceful and appropriate form of recognizing these problems.

    On the other side of the spectrum, the argument is that these players should be respectful and thankful to live in a country where they have had the opportunity to get out of poverty and make millions of dollars.

    Of course, there is also the position that standing up for the anthem does not mean worshipping the state nor ignoring violations of liberty and justice; rather, it’s a sign of recognizing the ideals that this country was founded on — freedom and liberty.

    I am not going to argue for any of these positions. My point is that the government and the private sector need to be separate, other than in cases where the government is the referee in a contract dispute or when the government enforces property rights. President Trump added fuel to the fire with his recent remarks.

    Whether or not voicing his opinion was appropriate is another discussion. However, the government definitely should not get involved in NFL policies.

    What about the First Amendment?

    We need to be careful about arguing that players have a First Amendment right to protest peacefully on the field. They do not. Yes, players can protest if the NFL allows it. However, what if the NFL did not allow this expression on the field? Would that violate the constitutional rights of the players? No.

    How about an even more strict policy — what if the NFL restricted such protests by players even when they are off the field? Would this be a violation of the players’ freedom of speech?

    Well, if one supports true liberty, freedom of association, and limited government, then the NFL as a private organization has the right to dictate whatever rules they want for their players both on and off the field. But note that players also retain their right to quit the NFL.

    The NFL can require whatever they want of their players because the players play at the pleasure of the team owners and the league. It’s not a right to play professional football.

    This philosophy would, of course, extend to other businesses as well. For example, if a private university restricted the speech and social media posts of its professors, no doubt those professors would argue that their constitutional right of free speech was being violated.

    However, those who support freedom of association could make the point that professors do not have a right to work for that institution. Nor, conversely, does the institution owe a professor a job.

    Now, if a public university tried to control off campus speech or social media posts, this would be inappropriate because liberals, conservatives, libertarians, socialists — indeed people of all different races, genders, and religions — are all forced to pay for public institutions. If the government is going to force me (i.e., taxation) to pay for something I don’t support they cannot then prevent me from sharing my opinions.

    What is forgotten in the debate of free speech and employment is that private institutions do not owe anyone a position. The debate as to whether or not an employee can do or say something is not the real issue. Whether or not something is considered proper etiquette or appropriate language is in the eye of the beholder. And the government should not legislate etiquette.

  5. The first federal criminal case on female genital mutilation will test the limits of religious liberty.

    Comments Off on The first federal criminal case on female genital mutilation will test the limits of religious liberty.

    This article contains stories of abuse that may be disturbing for some readers.

    For the first time, the federal government is prosecuting a case of female genital mutilation (FGM). Six people in Michigan — including two doctors, two assistants, and the girls’ mothers — have been charged with participating in the mutilation of two seven-year-old girls. The doctors and families of the children are members of the Dawoodi Bohras, a community from West India that practices FGM for religious reasons.

    Citizens should generally be permitted to act upon their sincerely held religious beliefs, even if their actions are prohibited by neutral, generally applicable laws. And laws banning a religious practice are almost never constitutional. But if the state has a compelling interest and bans a practice in the least intrusive way possible, even actions motivated by religion may be restricted. Such is the case with FGM.

    Female Genital Mutilation

    FGM is the nonmedical procedure of removing part or all of the external female genitalia for cultural, traditional, or religious reasons. It is widely practiced in Central and North Africa and parts of Asia, but it also occurs in Western countries — primarily in immigrant communities. FGM is often seen as an Islamic practice, but research indicates that ethnicity plays an important role among those who practice it. The United Nations reports that the practice is not diminishing, despite campaigns waged against it.

    The reasons for practicing FGM vary from community to community. In many instances, the ritual fuses with religious practice and takes on the character of a religious duty despite the fact that no text of a major world religion instructs its followers to participate in it.

    The Law

    Since 1995, FGM has been prohibited in the United States as a matter of federal law for females under the age of 18. The law specifies that believing “that the operation is required as a matter of custom or ritual” is no defense against prosecution.

    The language of this law can be read as banning a religious ritual. If so, this law must be subjected to the strictest scrutiny. Most laws fail such scrutiny, but this one does not.

    The state has a compelling interest in banning FGM because it affects the well-being of girls and young women who are unable to give informed and proper consent to permanent modifications of their bodies. The practice inhibits sexual pleasure, makes childbirth more difficult, and can lead to a host of other lifelong medical and mental problems.

    (Whether the state has a compelling interest in prohibiting the practice if a woman over the age of 18 clearly and freely desires to participate in it for religious reasons is a different question, and one that we do not address here.)

    In this case, by banning only the procedure as opposed to, say, putting people who believe in FGM in jail to prevent them from doing it, the state has restricted it in the least intrusive means possible.

    Religious liberty is a fundamental American value, but it is not a trump card. FGM is one of the rare instances where the state may justly override an individual’s or community’s sincerely held religious beliefs for the good of its citizens.

    Admittedly, what counts as a “compelling interest” can be hard to define. Basically, it means a very good reason—in this case doing something to unconsenting girls that can cause physical and psychological harm. But there are no bright lines for the “compelling interest” standard. It is possible for someone to object that the harms of FGM aren’t really so bad, though we think it’s clear that the harms are very serious.

    Ultimately, we’ll have to let you the reader — and, later, federal judges, decide.

  6. Expert Answers on the Drug War: Highlights from Prof. Jeff Miron’s AMA

    Comments Off on Expert Answers on the Drug War: Highlights from Prof. Jeff Miron’s AMA

    Last week, Professor Jeffrey Miron joined us on Reddit for an “Ask Me Anything” conversation as part of the Learn Liberty Reddit AMA Series.

    The conversation focused on Dr. Miron’s 30+ years of study on the effects of drug criminalization. Check out some of the highlights below.



    While there seems to be an emerging consensus on legalization of marijuana in the US, pot specific policies might not be completely applicable to other, harder drugs, especially in light of the ongoing opioid crisis. Do you have thoughts on opinions on the efficacy of blanket legalization and/or decriminalization vs. piecemeal changes?


    My first choice is full legalization of all drugs: the negatives from prohibition relate mainly to the adverse incentives and effects caused by prohibition, not the specific effects of one drug versus another.

    That said, partial measures are generally better than nothing.


    Are there currently any countries in the world that have a decent drug policy in your mind? Can be in both directions I suppose, either a more successful ‘war on drugs’ or a sensible policy of tolerance.


    Essentially all countries prohibit most / all drugs; but many enforce to a far lesser degree than the U.S. (e.g., Netherlands, Portugal, and to varying degrees, much of Europe and elsewhere). Changing the formal laws is important; but the harms from prohibition do decline as enforcement declines.


    Hi Dr. Miron, thanks for the AMA.

    Do you think there’s a good model the US can move towards? I’ve always though of Portugal as a good example.

    How do you think the recent legalization of recreational marijuana will go in MA? My town decided to moronically pass up on the tax revenue, so I’m looking forward to seeing what happens in the rest of the state.


    The best model is the U.S. before 1914: no prohibition of any drug or alcohol. As a second best, Portugal is a quite good.

    MA’s legalization seems likely to be somewhat tortured; the public health community is trying hard to undo the ballot initiative.


    Prof, thoughts on Portugal’s drug decriminalization in 2001? (go Crimson)


    A huge step in right direction. Ideally would go farther: full legalization. But current UN treaties make that awkward.


    In your opinion would legalizing drugs lead to fewer overdoes because purity is more manageable or would we see more because of increased access?


    Exactly. Most of the overdoses come from non-medical use that arises when people are cut off from medical or other legal supply (e.g., methadone maintenance). Use of almost anything is much riskier in a black market because quality control is worse.


    I live in San Francisco. What the hell is going on with people doing heroin? There are needles in the streets, and there doesn’t seem to be a way out for most addicts. I’ve seen 2 people shoot up heroin in public. That’s apparently a low number in this city.

    What are the current “ways out” of heroin addiction, and what programs could I donate to to help?


    The way out of the heroin problem is heroin legalization: it would be cheaper, so far fewer people would inject; and people would know the dosage, so far fewer would OD.

    Realistically, the best path is to support Medication Assisted Treatment, i.e., methadone and buprenorphine.


    Dr. Miron, first off, thank you for doing an AMA. Looking forward to reading all the responses.

    Second, how do we draw the line today and in the future between ‘harmless’ drugs and ‘harmful’ drugs, especially when new variants or types of drugs pop up all the time? How do we create a robust system to differentiate drugs?


    I don’t think we can differentiate in a meaningful way, because the main negatives come from prohibition, independent of the properties of the prohibited good. If we outlawed caffeine, we would have a violent black market with poor quality control in which people suffered far more adverse effects from caffeine than now.


    I heard someone talking about this on NPR a few days ago. He brought up an aspect I hadn’t thought of–that organized criminals in states with more medical/recreational cannabis have shifted their black market endeavors to things like identity theft, manufacture of counterfeit IDs, human trafficking, etc.

    He wasn’t making an argument for continued prohibition, rather that the underlying social issues of poverty cycles, gangs, low-education, and recidivism need to be addressed if we want to reduce criminal activity.

    Lifting prohibition isn’t a panacea. If drugs are legalized, what solutions do you propose to address those social issues that incubate and perpetuate criminal activity?

    The war on drugs has destroyed countless lives. Thank you for your time.


    [I] agree that legalization is not a panacea. To some degree, the other policies we need to reduce crime are also reductions or eliminations of prohibitions, however. For example, manufacture of counterfeit IDs is a big deal because we restrict immigration; human trafficking is a problem in part because we outlaw [prostitution].

    Nevertheless, policies that improve education, e.g., are also important.


    Hi, Jeff! What’s your favorite song off of Lost in the Dream? “Red Eyes”? “An Ocean in Between the Waves”?

    I kid, of course-you’re asking about the other War on Drugs. Do you think that public opinion will shift to the point where opposing the War on Drugs isn’t a dealbreaker?


    For marijuana, has roughly shifted that much so far. For other drugs, it’s going to take a while.


    In your mind, what is the key difference between drug legalization and decriminalization?


    Legalization brings the supply side above ground. That eliminates the violence and quality control problems, and allows normal taxation.


    Given known levels of drug use, demand, and price, approximately how much tax revenue would the U.S. stand to collect if we legalized and regulated all drug use, taxing it at a similar rate as alcohol?


    ballpark $50 billion per year. google “miron waldock cato.”


    Thanks for the response! That is indeed a hell of a lot of money. Here’s the report for anyone else interested:


    On a sort of opposite note from many questions already posted: Can you describe what some of the adverse economic effects stemming from overall legalization might be, and how they might be meaningfully addressed? I understand that the potential adverse effects from legalization of a drug like heroin may be different from legalization of a drug like marijuana, but are there any unifying characteristics?

    Thanks for stopping by!


    The only real negative I can imagine is that a few people who do not currently use will perhaps try newly legalized drugs and, in some cases, have bad experiences. But evidence suggests that’s a a modest number, and of course has to be balanced against all the benefits of legalization.


    Hi Professor Miron. As a young, millennial, graduate student in government, I was wondering to what degree you feel drug policy is affected by the older generation as opposed to the younger. Further, in what ways do you expect anti-drug sentiment to shift as millennials begin to age and take more prominent roles in policy?



    Well, I am a lot older than a graduate student, and I grew up hearing that as the baby boom generation matured, legalization would occur. Happened a bit, but not to an overwhelming degree. I guess many people get more conservative, at least about drugs, as they age. So, we have to convince old folks too!

  7. Why new mothers usually don’t sue doctors who violate their rights

    Comments Off on Why new mothers usually don’t sue doctors who violate their rights

    When Caroline Malatesta went to Brookwood Medical Center in Alabama to give birth, nurses physically restrained her against her will and held her baby inside her for six minutes before a doctor arrived. The baby survived without injury, but Malatesta suffered permanent and debilitating nerve damage as a result. She sued after multiple attempts to get answers from the hospital went nowhere, and in 2016, she won $16 million.

    I’ve written previously about violations of women’s rights in childbirth, and one of the most common responses I get to arguments like those I have made here and here is that if women would just stop suing doctors, then doctors would treat them like human beings. Here’s why those arguments are wrong.

    What malpractice claims really do: provide accountability

    While tort law – the branch of legal practice that deals with civil (not criminal) harms or injuries that one person causes to another – has an unsavory reputation due to concerns about frivolous lawsuits, the history of tort law is actually the history of liberty. Lawsuits are the only weapons most ordinary people have to protect their rights against powerful institutions like the government or, in the case of childbirth, hospitals with phalanxes of lawyers.

    OB/GYN liability in particular is much more complicated than the prevailing narrative would suggest. That narrative blames litigious women for defensive medicine, in which health care professionals recommend unnecessary tests and procedures and avoid risky ones to protect themselves from being sued.

    Numerous studies on malpractice claims in general, including a major study in the New England Journal of Medicine, have found that medical errors are very common, while malpractice litigation is actually pretty rare. There are undoubtedly frustrating aspects of the malpractice system in the United States. The system is slow, costly, and uneven: the average claim in the NEJM study took five years to complete, and 54% of compensation went to administrative costs, including lawyers and expert witnesses. What’s more, most victims of medical malpractice never see a dime because the vast majority never sue.

    Moreover, those cases that do make it to court are less likely to win financial settlements than those that are settled outside court, which some see as evidence of high rates of frivolous suits. But the clearest-cut cases are precisely those that will not go to trial; they will be settled instead. For the less clear-cut cases and for most patients, the process of filing a lawsuit is the only way they can get physicians and hospitals to turn over the information that would let them know if malpractice actually occurred.

    What trials accomplish for patients

    Trials are a discovery process for exactly this reason. Claims involving an injury but that don’t involve an error (for example, some stillbirths are simply unavoidable, no matter how competent the care provided) are more likely to reach trial because the trial itself uncovers facts about fault that no one can know before litigation begins. In essence, patients can’t know if their injury was the result of medical error until they go through the trial process. Precisely because someone can be injured without an error, and there can be a medical error without an injury, lawsuits may be the only way of sorting out what happened.

    The fact that cases not involving malpractice reach trial is evidence that the system is working, not evidence that it’s failing. Furthermore, research repeatedly shows that most medical malpractice suits do involve serious injuries to patients. The question is not whether patients are experiencing harms, but whether such harms are the result of avoidable negligence on the part of medical providers. And most of the time, the only way to find that out is through a lawsuit. Hospitals are under no legal obligation to share that information or depose staff unless a lawsuit is filed.

    What’s more, the tort system might be the only thing keeping malpractice levels down, since licensing boards and professional organizations have totally abdicated that responsibility. Licensing boards rarely take action against even clearly negligent physicians, and patients often don’t know even when adverse actions have been taken, which may be one reason why 1% of physicians rack up more than one-third of all malpractice suits.

    It is unclear how limiting patients’ ability to sue would help this situation, when what is clearly needed is more accountability for state licensing boards (or a reform of the entire protectionist licensing system). And medical errors themselves are a serious problem in the US health care system, with a recent report estimating medical errors to be the third leading cause of death in the United States. What we need is more accountability from doctors and hospitals, not less. While the tort system appears to have a limited effect on the prevalence of medical errors, it’s the best system we have right now.

    Risk and liability in obstetrics

    But perhaps obstetrics is different from other medical specialties. It is true that obstetrics carries with it more innate risks than some other kinds of medical practices. Babies are born with cerebral palsy for reasons no one fully understands. Babies get stuck, are stillborn, or have lifelong complications from birth and there is very often nothing even the best doctor can do to prevent such an outcome. Moreover, because birth injuries to children are often catastrophic and may require lifelong care, many parents see no alternative other than to sue for whatever compensation they can get to support a disabled child over his or her lifetime. These are truly tragic cases.

    Despite these innate risks, obstetrics still faces high levels of avoidable medical errors, like every other specialty, as a major report on maternity liability finds. It turns out that negligent injuries to mothers and infants are actually relatively common: they make up around 1% of births, affecting as many as 40,000 women every year in the United States. Yet only around 2% of the victims of negligent injuries sue, and only around 1% of those win a suit. Of those who do win a monetary award, around half of the money goes to court and legal costs.

    Claims by obstetricians that liability costs threaten their livelihood as providers are unsupported by the evidence. Obstetricians now have the second highest salaries of any major specialty, and malpractice insurance as a share of overall practice costs has actually decreased over time, according to the maternity liability report. Nevertheless, liability concerns are a major cause of stress and dissatisfaction among obstetrics providers, even if the financial impact of such concerns is relatively low.

    Why tort reform isn’t a solution

    Tort reform itself is unlikely to alleviate practitioner stress over lawsuits and is also unlikely to improve the quality of care. When compared across states and across liability frameworks, interventions like cesarean sections seem largely independent of either the cost or availability of liability insurance. Similarly, tort reforms and administrative compensation programs have little effect on the rate of cesarean sections, often touted as a major defensive procedure used by obstetricians.

    There are two possible explanations for this gap between physician self-reports and actual practice patterns. First, it could be that physicians are using liability as an excuse for surgery and other interventions that both lower liability and increase payments to themselves. Or they may believe the risks of being sued to be much higher than they in fact are.  What does seem clear is that obstetricians underestimate the rates of medical errors and overestimate their risks of malpractice claims.

    What is ironic, given the relatively high rates of negligent injuries in childbirth, is that only 11% of OB/GYNs responding to a survey on malpractice liability argued that a good way to limit malpractice liability is to reduce the number of medical errors, according to a 2015 Medscape survey of over 4000 OB/GYNs. The rest argued for some kind of tort reform. Is the answer to high rates of medically avoidable injuries even less accountability than we already have?

    I don’t think so, because it creates precisely the wrong incentives.

    What women and doctors really need

    Providers can easily reduce their likelihood of being sued without tort reform. Perhaps obviously, improving the quality of care is one of the best ways to lower obstetrics malpractice claims. Also perhaps obviously, treating women like human beings helps lower liability risk, too. Doctors who take the time to establish a relationship with a patient and who communicate effectively with patients are much less likely to be sued than doctors who fail to treat patients as partners in their own care.

    Who could have suspected that lowering the rate of medical errors while treating women like human beings would help lower the lawsuit rate? And yet in that same Medscape survey, only 6% of obstetricians who were sued indicated that if they could change their behavior to avoid a lawsuit, they would have spent more time with the patient or her family. Obstetricians may be in serious denial about where the real liability threat in their practice lies.

    Just like with any complex legal issue, a few tweaks to the system may be necessary. Some of the highest-award lawsuits (but not the most common) in OB/GYN practice result from cerebral palsy, which in most cases is unlikely to be due to practitioner error. In those cases, birth injury funds or other ways of providing care for severely disabled infants whose injuries are not caused by malpractice might be a better way to go.

    But overall, the vast majority of women who suffer preventable harm to themselves or their infants do not sue, and most cases that receive monetary awards involve a preventable medical injury. Given the crisis of medical errors in the United States, the tort system seems to be working okay.

    The importance of obstetrics lawsuits

    Malatesta’s case shows why the ability to sue is so important. Prior to filing a lawsuit, Malatesta spent months trying to communicate with hospital staff about why the birth plan she and her doctor created was completely voided, why her consent was repeatedly violated, and why she was physically assaulted during her birth, held down, and her baby smashed inside her while she struggled to resist. The hospital eventually cut off contact without providing explanations or answers.

    Without tort, a lone individual could never have fought the administration of a major corporation. Without tort, the hospital would have continued to refuse to answer questions about her care. Without tort, the hospital would have continued advertising itself as “mother friendly.” Without tort, the hospital would have continued to violate women’s bodies without fear of repercussion.

    Does Malatesta’s victory mean abuses like this will never happen again? Of course not. But it does mean one woman was able to prevent more women from experiencing the same abuse at Brookwood in the future, and she received some compensation for the permanent suffering their abuse caused. That’s something.

    While it’s easy to get depressed about the state of maternity care in the United States, the good news is that the solutions to tackling both the OB/GYN liability “crisis” and the maternity care crisis in this country both point in the same direction: improve the quality of care for childbearing women and treat women like human beings with rights over their bodies. Novel thoughts, right?

    Until those things happen, women should resist calls for tort reform and instead advocate for state licensing boards, obstetrics professional organizations, and hospital administrators (among others) — those who are supposed to be providing accountability for the widespread rates of violations of consent and medical errors — to actually start doing their jobs. Until then, tort law, as imperfect as it is, is still one of the best tools the vulnerable can use to defend their bodies and their liberty against coercion by those in power, whoever those in power happen to be.

  8. Here’s the best part about the anti-Trump #resistance

    Comments Off on Here’s the best part about the anti-Trump #resistance

    Have you thought about what it really means to protest Donald Trump and his administration’s policies?

    Since his election, groups have cropped up to oppose his presidency, his policies, and his personality under #resist and #resistance.

    Some movements started before the electoral college vote, hoping to sway electors to vote for Hillary Clinton and threatening to undermine an important electoral norm. Others have started Twitter accounts combating Donald Trump’s policies on climate change, dropping the very small fig leaf the scientific community typically dons when it seeks to claim it is objective. And women’s groups took the opportunity to protest the day after the election as well as create another protest dubbed “a day without a woman,” making heady claims about the solidarity of women against Trump.

    While some may object to the divisive rhetoric associated with these movements — especially those who refer to Trump as #notmypresident — it is important to see that the right to resist rests at the core of American principles. The executive director of the ACLU hits the nail on the head: “Despite himself, Donald Trump has accomplished something beautiful — he’s awakened American democracy and reminded us that it’s ‘We the People’ who truly govern.” This concept reaches all the way back to the Declaration of Independence and arguably farther than that to the classical liberal par excellence, John Locke.

    The Right to Resistance

    The Founders created a document that served as more than just a declaration of war: it was also  a justification for what the British called a treasonous revolt against the crown. Where the Founders previously argued for their rights as Englishmen, given rights by the government and due to their status as members of the British Commonwealth, the Declaration marked a change. In it, they claimed natural rights, ones they should enjoy without anyone’s permission and regardless of what sovereign territory they happened to occupy.

    What was their argument? They claimed a right as a free people to stand up to an oppressive government — in their opinion, an illegitimate government. They claimed that a government is only legitimate if it secures the people’s rights to “Life, Liberty, and the pursuit of Happiness.” If a government “becomes destructive of these ends,” the people reserve the right to “alter or to abolish it.”

    To our modern ears, this seems like a perfectly reasonable thing to say. Of course governments exist to protect the rights of the people. Of course the people can resist or overthrow their government if it fails in this, its most fundamental task. In the 18th century, however, no one made this claim against the government. Resistance or revolt came in the pursuit of better governments, but they did not come from a natural right to resist.

    The claims of the Declaration represent a radical shift in the concept of rights, one founded in meaningful part on the philosophy of Locke.

    Locke created what is referred to as an ahistorical state of nature. In essence, he created a new origin story for human beings, claiming that prior to the creation of society, humans lived freely and equally. As we develop, there come times of scarcity or difficulties securing our property. To address such problems, people consent to create governments that provide basic necessities: the security of your person and property.

    A government’s legitimacy stems from its ability to provide those basic goods. If it fails in this respect — for whatever reason — the people reserve the right to overthrow it and create a new government. Locke claims there is no difference between an unjust king and a thief. And much like a thief is held accountable for his crimes, the people must hold the government accountable for any rights violations.

    The Responsibility to Resist

    The Declaration contains similar basic principles. In the eyes of the colonists, the British had violated their rights and refused to make amends. The Lockean understanding of natural rights facilitated the transition from British citizens seeking redress from their government to human beings overthrowing an illegitimate government.

    Our rights stem from our status as human beings, not as Americans. We need to remind ourselves that we are free and equal. With that status, we have the ability to assert our rights and hold governments accountable when they violate or threaten to violate those rights. It is, after all, our responsibility to make sure the government protects our rights rather than violating them. This is why Patrick Henry said,

    They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power.

    Americans retain the right to resist their government, thanks to efforts of the Framers to clarify what a legitimate government is and what we can do when it becomes illegitimate. More importantly, citizens have to understand what their rights are and consistently assert them against the government.

  9. Vaping bans: How the FDA is making it harder to quit smoking

    Comments Off on Vaping bans: How the FDA is making it harder to quit smoking

    If you were struggling to kick a habit like smoking that endangered your health, which would you prefer: trying an alternative that, while not perfectly safe, was significantly less harmful, or giving up and sticking with your deadly habit?

    The answer seems obvious, and it should. Harm reduction — opting for a product or activity that is not harmless but is better than the existing alternatives — is a common strategy that we use almost unthinkingly.

    That principle needs to be applied in public policy, and the FDA’s coming vaping ban shows us why. Because e-cigarettes don’t burn tobacco (they deliver nicotine through a liquid that’s heated until it vaporizes), they are intrinsically less dangerous than smoking tobacco-containing cigarettes — 95 percent less harmful, according to Public Health England. So it would make sense to encourage people who are unable or unwilling to give up the habit completely to substitute vaping for smoking.

    England’s rational solution to smoking

    England’s Royal College of Physicians urged doctors last year to “promote the use of e-cigarettes, NRT [nicotine replacement therapy] and other non-tobacco nicotine products as widely as possible as a substitute for smoking in the UK,” because they provide “nicotine without the smoke.” As professor Michael Russell, whose research was the foundation for the 1988 US Surgeon General’s report on nicotine addiction, put it simply, decades ago, “People smoke for nicotine but they die from the tar.”

    Just this month, Public Health England issued its long-awaited tobacco control guidelines, based on the latest science and health monitoring data. They recommend: “The best thing a smoker can do for their health is to quit smoking. However, the evidence is increasingly clear that e-cigarettes are significantly less harmful to health than smoking tobacco. The government will seek to support consumers in stopping smoking and adopting the use of less harmful nicotine products.”

    However, it also recommended that e-cigarettes not be routinely included in “smokefree policies,” which could have the unintended consequence of making it harder for smokers to quit.

    In the United States, FDA regulations are denying smokers the opportunity to use e-cigarettes to quit or to reduce risk. Further complicating matters, leading public health groups including the American Heart Association, the American Lung Association, and the American Cancer Society are actively lobbying against e-cigarettes, supporting adding e-cigarettes to “smokefree” policies and misrepresenting the science about both the safety of e-cigarettes and how they can help cigarette smokers drastically reduce their risk.

    In June, San Francisco passed a law which would ban all e-cigarette liquids flavors except those meant to taste like tobacco — despite numerous surveys of former smokers who told researchers that it’s these flavors which helped them make the life-saving switch.

    Although anti-e-cigarette activists claim that it will take decades to know definitively whether e-cigarettes are less harmful than smoking, we already know a great deal about why cigarette smoking is so devastatingly dangerous: primarily because of tobacco combustion. There’s a reason that, for decades, cigarettes have had nicknames like “cancer sticks” and “coffin nails.”

    We also know a tremendous amount about e-cigarettes, the liquid that goes into them, and what comes out and is inhaled. Are they totally “safe?” No. But there’s no question that they are far less harmful than cigarettes, the most dangerous, irredeemable, widely used consumer product ever invented. And we know that many smokers are using e-cigarettes to quit.

    The problem with “deemed” tobacco products

    Partisan politics in the US Senate blocked an effort to rein in the FDA’s retroactive de facto ban on e-cigarettes, known as the “deeming” regulation. The Tobacco Control Act of 2009 gave the FDA direct authority to regulate cigarettes, but other products, such as e-cigarettes, would have to be “deemed” tobacco products before the agency could extend its regulatory reach over them.

    The blocked legislative fix, as outlined in the bipartisan Cole-Bishop rider to the budget bill in May, was a modest but urgent effort to fix part of the Obama administration’s e-cigarette ban. The amendment would have restricted the FDA’s “deeming” regulations and its ill-conceived premarket tobacco application process to e-cigarette products sold as of August 8, 2016, while the existing regulations, which are being phased in, cover e-cigarette products introduced since February 15, 2007, or virtually all e-cigarette devices and liquids.

    The Cole-Bishop amendment was approved by the House Agriculture Appropriations Committee and was on its way to becoming law via the budget bill. However, Senate Democrats considered it a poison pill and threatened a government shutdown if it and a range of other minor legislative riders were included in the legislation.

    The same day the budget was unveiled, the FDA announced an extension to deadlines related to the deeming regulations. In a web statement to stakeholders, the agency said the extensions “will allow new leadership at the FDA and the Department of Health and Human Services additional time to more fully consider issues raised by the final rule that are now the subject of multiple lawsuits in federal court.”

    This announcement implies that the new leadership at the FDA and its parent agency, the Department of Health and Human Services, are having second thoughts about the prospects of defending the flawed regulatory process that led to a retroactive and innovation-stifling regulation that would decimate an entire class of life-saving products.

    The Trump administration will now have an opportunity to use the deadline extension to take action within the confines of its legal discretion.

    Nullifying the e-cig ban

    There’s one approach that could reverse the Obama-era regulation without ponderous rulemaking or the uncertain legislative process: The administration could effectively nullify the deeming regulation. A new administration cannot simply change rules it doesn’t like. It can, however, evaluate the current status and merits of a growing number of legal challenges that assert the agency failed to follow the proper rulemaking procedures and then instruct the FDA and the Department of Justice to stop defending the rule because of the serious and irrevocable harm the rule is causing to public health.

    Just as the Obama administration’s Justice Department decided not to defend duly passed legislation that it determined was not legally defensible (the Defense of Marriage Act, for example), the Trump administration has the discretion not to defend a rule that it believes was created with procedural failures.

    It appears that the new head of the FDA, Scott Gottlieb, will agree with our formulation. In his Senate confirmation hearing, he alluded to this, perhaps prophetically, in response to questions about how to balance the benefit of e-cigarettes against any risk. “I think a properly constructed and overseen regulatory process should have the capacity under the authorities Congress gave the agency to make these determinations,” he said (emphasis added).

    The Obama FDA’s process was both improperly constructed and lacked effective oversight. Nullifying the rule by declining to defend the process by which it was created would also give Congress time to rethink the underlying 2009 Tobacco Control Act, which did not even contemplate e-cigarettes (which were then in an early stage of development).

    Gottlieb also stated, “We need to make sure we’re getting the most bang for our regulatory buck. That means being cognizant of risks and being sure that we’re not adding to consumer costs without improving consumer safety.” Spending time and effort on defending the indefensible is hardly a good investment of the FDA’s resources. But most important of all, nullifying the FDA’s vaping ban would save the lives of smokers who would like to quit cigarettes, today and in the future.

    Editor’s note: This is an updated and revised version of a piece published at the National Review.


    For more analysis on vaping bans, watch this Learn Liberty video:

  10. No, corporations are not “people.” But the First Amendment still applies.

    Comments Off on No, corporations are not “people.” But the First Amendment still applies.

    A few weeks ago, I was on the toxic cesspool that Twitter has become, and got a reply to one of my Tweets: “You libertarians need to realize corporations=/=people if you want people to take you seriously.” And then the strangest thing happened: a substantive, polite conversation.

    I replied that no libertarian I know would defend the position that corporations are people. My interlocutor replied, saying s/he thought that was a standard libertarian position.

    I said, no, although in fact libertarians would argue for two kinds of protections for corporations. The first would be freedom of contract, in the sense that corporations are legal “persons” capable of signing binding agreements, but also that property owned by the corporation was protected by the Fifth Amendment from takings without compensation. And that also means that corporations have the freedom to choose the terms of the contract, without outside regulation of those terms, as long as there is no force or fraud. So corporations are, in a limited sense, economic persons, and liability for losses of the corporation is limited to the assets of the corporation, protecting stockholders’ personal assets.

    Freedom of Association

    The second aspect of corporations is that they are associations. Not persons, with the First Amendment speech rights given to citizens, but associations of citizens. Corporations, then (and this was the holding in Citizens United) can participate in politics because to rule otherwise would be a restriction on the freedom of association guaranteed by the First Amendment. (The amendment actually says “peaceably to assemble,” but that has been interpreted to mean “association”). Same amendment as speech protection, but freedom of association is quite different.

    Thus, it is simply not true that “libertarians believe that corporations are persons,” even though that caricature is often presented as fact. It is true that freedom of association is one of our core principles, and we think it extends to freedom of contract.

    But you don’t have to go that far; imagine that the state can say which associations have political participation rights and which don’t.  What about political parties? Parties are associations of individual citizens, and the political rights of the citizens are expressed more effectively through associating into groups. That is why the First Amendment puts freedom of assembly on a par with the other freedoms (speech, religion, press, and petition).

    An Actual Conversation

    My conversational partner (“Twittee”?) went silent for about five minutes. Then s/he replied, “That’s interesting. And it makes a lot of sense. Thanks!”

    And I thought, what just happened?  Is this really Twitter? Perhaps it’s the dawn of a new era. Try it: try explaining that one of our core values is freedom of association. Try pointing out that this entails freedom of contract, and that property rights are just as important as political rights.

    Then instead of defending that tired old claim that “money is speech” we can do better with “contracts are associations, and therefore protected by the First Amendment. And the Fifth Amendment protection for ‘due process,’ and the Fourteenth Amendment protection for ‘rights, privileges, and immunities.’” Maybe we can have an actual conversation.

  11. Breaking up Spain: Secession and individual rights

    Comments Off on Breaking up Spain: Secession and individual rights

    Editors Note: On October 27, the Catalan regional parliament voted 70-10 to declare independence from Spain. This comes after the Spanish government attempted to stop the independence referendum, in which 90% of the Catalans who voted favored independence. In this article, Prof. Sorens examines the legality and morality of secession.

    A large region of Spain called Catalonia has announced October 1 as the date of a binding referendum on its independence from Spain. This is the culmination of eight years of independence activism, regional elections, and public consultation. The Spanish government says the referendum is illegal; the Spanish Constitution declares Spain to be “indivisible.” If the referendum vote succeeds, should Spain allow Catalonia to secede? And if the Spanish government forbids it, how should other governments respond?

    Protecting Citizens’ Rights

    The first way to think about these questions is to see which course of action better protects citizens’ rights. Suppose first that the Catalan government will be roughly as respectful of citizens’ rights and liberties as the Spanish government is. (Independentists argue that it will be more respectful; unionists dispute this.) In that case, we can focus narrowly on the right to live under a government of one’s own choosing.

    People don’t talk about this right much, but it’s extremely important. If you live in a Western country, your government disposes of 40–60% of your income, subjects you to thousands of criminal statutes, and regulates everything from your intimate family relations to your contracts in the marketplace. Your relationship with your government is, whether you like it or not, the most significant relationship in your life: no one else has the power or legal authority to put you in jail, after all. So why shouldn’t your relationship with your government be as consensual as possible?

    Working from the premise that it is more just to allow people to live under a government they prefer, we can see the attraction of deciding controversies over sovereignty with a referendum. If more Catalans prefer to live under a Catalan state than wish to live under the Spanish state, then it is better to allow independence. If fewer do, then it is better to forbid it.

    Defining the Threshold for Referendum Success

    Some scholars have argued that independence referendums should have a greater than 50% plus one threshold for success. The motivating idea here seems to be that the rights of those inclined to oppose independence are more important than the rights of those inclined to support it — and this idea is not as implausible as it sounds. Independence could mean oppression of the minority. Protecting a greater number of people’s rights could involve violating more significant rights.

    In the case of Catalonia and Spain, it is difficult to argue that Catalonia is likely to violate more rights than Spain does. (There is a pro-independence Marxist party in the Catalan Parliament, but there is also an even larger semi-Marxist party, Catalonia Yes We Can, that opposes independence, and there are also far more right-wing extremists in the anti-independence camp than in the pro-independence camp.) Moreover, the Catalan pro-independence coalition has said that after independence, all Catalan citizens will have the right to dual nationality, retaining their Spanish citizenship. This is an important move by the Catalan government because it reduces any legitimate reasons for those who oppose independence to complain about injustice.

    Catalonia could go even further and allow its citizens to choose which government they will pay certain taxes to in exchange for eligibility for excludable services. By “excludable services,” I mean those that do not have to be provided for everyone in the territory, as defense, roads, and police do. Social welfare programs and education are examples of excludable services (“private goods” or “club goods” in the language of economics). If pro-Spanish Catalans are allowed to retain the Spanish link for these services, then there is all the more reason to concede a 50%-plus-one threshold for independence.

    The Legality and Morality of Catalan Secession

    Let’s look at some objections to the idea of secession.

    First, what about the illegality of secession under the Spanish Constitution? Let’s be clear about what constitutions do and do not do.

    Constitutions do not tell citizens what to do and impose penalties on those who don’t comply. Constitutions constrain and authorize government. They may authorize government to impose penalties on citizens, but they do not require it. “Indivisibility” may mean, at most, that government officials are prohibited from breaking up the country, but it does not mean that government officials must punish citizens who withdraw their consent from the state.

    Catalonia has devised its independence process to allow for a citizen-led constituent assembly after a successful independence referendum. Legally speaking, there is no requirement for either the Catalan or Spanish governments to punish citizens who complete the independence process.

    Second, under some circumstances, breaking the law is justifiable. If the law is unjust, and breaking the law would not threaten the rights of others or violate any moral duties toward oneself, then it is morally permissible to break the law. A law proclaiming the indivisibility of the state is an unjust law because it does not permit citizens to withhold or withdraw consent: it forces them to be subjected to a legal system to which they never agreed. Breaking even an unjust law shouldn’t be done casually, especially by government officials, because it could undermine public order. But if those risks to the rights of others are low enough, then it can be justified.

    Upholding the Spanish Constitution

    But what about the fact that over 90% of Catalans voted in favor of the Spanish Constitution in 1978, which contained the indivisibility clause? Many Catalans say they voted for the constitution under duress, because the alternative to the constitution was continued dictatorship. This is a valid point. But even if it had not been adopted under duress, there are two additional points to consider.

    First, the Catalans who voted for the Spanish Constitution are largely not the same Catalans voting for independence now. A previous generation cannot bind a future generation. I should not be able to make political decisions now that will bind my daughter decades from now.

    Second, a principle of common law that has a good basis in ethics is that you generally can’t require specific performance from a contract. If I sign a contract agreeing to work for you, and then back out, you can’t force me to do the work anyway — that would be slavery. What you can do is sue me for damages. A promise not to secede is like this. At most, breaking the promise would entail compensation for damages, but you can’t force someone to remain a part of your group — or your state — against their will.

    In conclusion, the more Catalonia does to guarantee respect for the rights of all its citizens after independence, the more confident we can be that Catalonia’s independence should be recognized following a successful majority vote.