Category Archive: Rights
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.
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.
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.
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Prof. Mike Munger supports safe spaces on campus — but no one should be “safe” from hearing ideas they disagree with across the whole school.
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.
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.
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:
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.
Comments Off on Breaking up Spain: Secession and individual rights
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.
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This is the journey of one North Korean survivor, Yeonmi Park, who escaped North Korea’s borders and then had to break free from its brainwashing.
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Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, Oxford University Press, 352 pages, $21.95
Steve Tennes, an orchard owner in Michigan, recently refused to host a same-sex wedding on his property, instead referring the couple to another orchard.
Business owners have profound incentives to serve customers. It is a rare proprietor who will turn away a paying customer because of a religious conviction.
Yet over the past few years, several business owners like Tennes have done just that. These men and women believe their faith prohibits them from participating in same-sex wedding ceremonies.
Contrary to popular belief, what Tennes did is perfectly legal in Michigan. The Great Lakes State, like about half of the states, has no law prohibiting discrimination on the basis of sexual orientation.
But the Michigan town of East Lansing, where Tennes brings his produce to the farmers’ market, has a local ordinance prohibiting such conduct. Because Tennes will not host same-sex weddings at his orchard, the city banned him from selling fruit at its market. He responded by suing the town for violating his religious freedom. Litigation is ongoing.
Such cases are at the heart of Debating Religious Liberty and Discrimination, a new point-counterpoint book by John Corvino, Ryan T. Anderson, and Sheriff Girgis. All three authors value religious liberty and oppose unjust discrimination. But as they point out in their joint introduction, “The devil is in the details.”
The Case for Limiting Religious Exemptions
Corvino begins the debate by providing a reasonable case for severely limiting religious exemptions. In good libertarian fashion, he contends that laws restrict liberty and so they shouldn’t be passed unless there are very good reasons to do so. If such reasons exist, all citizens should have to follow the laws regardless of their religious convictions.
So, for instance, his solution to the problem of Native Americans who feel compelled to use peyote in religious ceremonies is not to exempt them from laws banning its use but to eliminate the law altogether. Then anyone, religious or not, can use peyote for whatever reasons they desire.
Corvino doesn’t like religious exemptions, but he doesn’t reject them altogether. He concedes, for instance, that the state should not compel citizens to kill. If the nation is conscripting soldiers, pacifists should be offered an alternative to military service. Similarly, medical professionals should not be forced to participate in abortions or euthanasia. These accommodations should be available to religious and nonreligious citizens alike.
Other than in issues of life and death, most accommodations would disappear in Corvino’s ideal world. This is not to say he is entirely unsympathetic to florists, bakers, orchard owners, and others who believe they should not participate in same-sex wedding ceremonies. He suggests three different ways in which they could be protected without religious accommodations. His preferred method is to revise antidiscrimination laws to exclude small firms that offer expressive or wedding-related services.
The Case for Religion as a Basic Human Good
Anderson and Girgis, by way of contrast, make a robust but accessible philosophical argument for the importance of religious liberty. Drawing from the philosopher John Finnis’s work, they contend that religion is a “basic human good” and that the purpose of the state is to “protect the ability of people to pursue all the basic goods.”
Anderson and Girgis recognize that no right is absolute. If the state has a compelling reason to prevent a religiously motivated action, it may do so. With respect to discrimination, they propose that antidiscrimination laws should trump religiously motivated actions only when private treatment of a particular group imposes material and/or social harms that the law can best cure, and the particular proposed antidiscrimination provision is drawn narrowly enough to (1) suppress interactions that inflict those material and social harms, (2) avoid banning too many legitimate or harmless interactions, and (3) avoid treading too far onto other interests like conscience, religion, and speech.
Applying this test would protect the orchard owners, bakers, and florists who have been sued or prosecuted under antidiscrimination laws. But it would not exempt every religiously motivated action; for example, racial discrimination could still be prohibited.
There is much, much more to this book. Collectively, the essays provide an excellent overview of the main issues in cases involving religious liberty and antidiscrimination statutes. Both sides offer reasonable and well-articulated arguments to support their positions.
Far too often, debates about these matters degenerate quickly into impugning motives and calling names. A critically important contribution of the book is that Corvino, Anderson, and Girgis show that people with deeply held convictions can have a rational argument about controversial issues.
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The following is a lightly edited, slightly condensed transcript of the talk “Adam Darwin: Emergent Order in Biology and Economics,” presented by Matt Ridley at the Adam Smith Institute in 2012.
I’ve called my lecture “Adam Darwin” to stress how congruent the philosophies of Adam Smith and Charles Darwin are. The common theme, of course, is emergence — the idea that order and complexity can be bottom-up phenomena; both economies and ecosystems emerge. But my purpose really is to explore not just the history and evolution of this shared idea but its future: to show that in the age of the Internet, Adam-Darwinism is the key to understanding how the world will change.
The Common Ancestry of Evolution and Economics
Darwin’s debt to the political economists is considerable. He spent formative years in Edinburgh among the ghosts of Hume, Hutchinson, Ferguson, and Smith. When he was at Cambridge in 1829, he wrote, “My studies consist in Adam Smith and Locke.” At his grandfather Josiah Wedgwood’s house in Staffordshire, Darwin often met the lawyer and laissez-faire politician Sir James Mackintosh, whose daughter married Charles’s brother-in-law (and had an affair with his brother).
On the Beagle, he read the naturalist Henri Milne-Edwards, who took Adam Smith’s notion of the division of labor and applied it to the organs of the body. After seeing a Brazilian rainforest, Darwin promptly reapplied the same idea to the division of labor among specialized species in an ecosystem: “The advantage of diversification in the inhabitants of the same region is in fact the same as that of the physiological division of labor in the organs of the same individual body — subject so well elucidated by Milne-Edwards.”
Back in England in the 1830s, through his brother Erasmus, Darwin fell in with the radical feminist and novelist Harriet Martineau, who had shot to fame because of her series of short fictional books called Illustrations of Political Economy. These were intended to educate people in the ideas of Adam Smith, “whose excellence,” she once said, “is marvelous.” I believe it was probably at Martineau’s suggestion that, in October 1838, Darwin came to reread Malthus (a person with whom Martineau was on very close terms) and to have his famous insight that death must be a non-random and therefore selective force.
Parenthetically, it’s worth recalling the role of anti-slavery in bringing Martineau and Darwin together. Darwin’s grandfather Josiah Wedgwood was one of the leaders and organizers of the anti-slavery movement, a friend of Wilberforce, and the maker of the famous medallion “Am I not a man and a brother?” which was the emblem of the anti-slavery movement. Charles Darwin’s aunt Sara gave more money to the anti-slavery movement than any woman in Britain. Darwin had been horrified by what he called, “The heart-sickening atrocities of slavery in Brazil.” Abolition was almost the family business. Meanwhile, Harriet Martineau had just toured America speaking against slavery and had become so notorious that there were plans to lynch her in South Carolina.
Today, to a bien pensant intellectual, it might seem surprising to find such a left-wing cause alongside such a right-wing enthusiasm for markets, but it should not be. So long is the shadow cast by the top-down determinism of Karl Marx, with his proposal that the state should be the source of reform and welfare, that it’s often forgotten how radical the economic liberalism of the political economists seemed in the 1830s. In those days, to be suspicious of a strong state was to be left-wing (and, if you’ll forgive the pun, quite right, too).
Today, generally, Adam Smith is claimed by the right, Darwin by the left. In the American red states, where Smith’s emergent decentralized philosophy is all the rage, Darwin is often reviled for his contradiction of dirigiste creationism. In the average British university by contrast, you will find fervent believers in the emergent decentralized properties of genomes and ecosystems, who nonetheless demand dirigiste policy to bring order to the economy and society. Yet, if the market needs no central planner, why should life need an intelligent designer, or vice versa?
Ideas evolved by descent and modification just as species do, and the idea of emergence is no exception. Darwin at least partly got the idea from the political economists, who got it from the empirical philosophers. To put it crudely, Locke and Newton begat Hume and Voltaire, who begat Hutchinson and Smith, who begat Malthus and Ricardo, who begat Darwin and Wallace. Darwin’s central proposition was that faithful reproduction, occasional random variation, and selective survival, can be a surprisingly progressive and cumulative force. It can gradually build things of immense complexity. Indeed, it can make something far more complex than a conscious deliberate designer ever could. With apologies to William Paley and Richard Dawkins, it can make a watchmaker.
Each time a baby is conceived, 20,000 genes turn each other on and off, in a symphony of great precision, building a brain of 10 trillion synapses, each refined and remodeled by early and continuing experience. To posit an immense intelligence capable of comprehending such a scheme, rather than a historical emergent process, is merely to exacerbate the problem — who designed the designer?
Likewise, as Leonard Reed pointed out, each time that the pencil is purchased, tens of thousands of different people collaborate to supply the wood, the graphite, the knowledge, and the energy, without any one of them knowing how to make a pencil. Says Smith, if you like, “This came about by bottom-up emergence, not top-down dirigism.” In both cases, nobody’s in charge, and crucially, nobody needs to understand what’s being done.
Why Innovation Happens
So far, I’m treading a well trodden path in the steps of Herbert Spencer, Frederick Hayek, Karl Popper, and many others who’ve explored the parallels between evolutionary and economic theory. But the story has grown a lot more interesting in the last few years, I think, because of developments in field of cultural and technological evolution. Thanks especially to the work of three anthropologists — Rob Boyd, Pete Richardson, and Joe Henrich — we are beginning now to understand the extraordinary close parallels between how our bodies evolved and how our tools and rules evolve. Innovation is an evolutionary process. That’s not just a metaphor, it’s a precise description. I need you to re-examine a lot of your assumptions about how innovation happens to disenthrall yourself of what you already know.
First, innovation happens mainly by trial and error. It’s a tinkering process, and it usually starts with technology, not science, by the way, as Terrence Keeley has shown. The trial and error may happen between firms, between designs, between people, but it happens. If you look at the tail planes of early airplanes, there’s a lot of trial and error, there’s a lot of different designs being tried and eventually one is decided.
Exchange is crucial to innovation, and innovation accelerates in societies that open themselves up to internal and external exchange through trade and communication — Ancient Greece, Song China, Renaissance Italy, 16th century Holland, 19th century Britain — whereas innovation falters in countries that close themselves off from trade — Ming China, Nero’s India, Communist Albania, North Korea.
More ever, every innovation, as Brian Arthur has argued, is a combination of other innovations. As L.T.C. Rolt, the historian of engineering put it, “The motorcar looks as if it was sired by the bicycle out of the horse carriage.” My favorite example of this phenomenon is the pill camera, which takes a picture of your insides on the way through. It came about after a conversation between a gastroenterologist and a guided missile designer.
Adam Smith in other words, has the answer to an evolutionary puzzle: what caused the sudden emergence of behaviorally modern human beings in Africa in the past hundred thousand years or so? In that surprisingly anthropological first chapter of The Wealth of Nations, Smith saw so clearly that what was special about human beings was that they exchanged and specialized.
Neanderthals didn’t do this — they only ever used local materials. In this cave in Georgia, the Neanderthals used local stone for their tools. They never used tools from any distance away, from any Neanderthal sites. But when modern human beings move into this very same area, you find stone from many miles away being used to make the tools, as well as local stone. That means that moderns had access to ideas, as well as materials from far away. Just as sex gives a species access to innovations anywhere in its species, so exchange gives you access to innovation anywhere in your species.
When did it first happen? When was trade invented? At the moment, the oldest evidence is from about a 120,000 years ago. That’s when obsidian axes in Ethiopia and snail-shell beads in Algeria start traveling long distances. These beads are made from marine shells, but they’re found a hundred miles inland. And we know from modern Aborigines in Australia that long-distance movement of man-made objects happens by trade, not migration. So it’s not that people are walking all the way to the Mediterranean and picking up shells and walking all the way back again; they’re getting them hand-to-hand by trade.
Now that’s 120,000 years ago — ten times as old as agriculture — but I suspect it goes back further still. There’s a curious flowering of sophisticated tool kits in Africa around a 160,000 years ago, in a seashore dwelling population, as evidenced by excavations at a place called “Pinnacle Point.” It came and went, but careful modeling by some anthropologists at the University College London suggests that this might be a demographic phenomenon: a rich food supply led to a dense population, which led to a rich toolkit. But that’s only going to be true if there is exchange going on, if the ideas are having sex — dense populations of rabbits don’t get better tools. Once exchange and specialization are happening, cultural evolution accelerates if population density rises, and decelerates if it falls.
We can see this clearly from more recent archeology in a study by Melanie Klien and Rob Boyd. In the Pacific, in pre-Western contact times, the sophistication of fishing tackle depends on the amount of trading contact between islands. Isolated islands, control for island size, will have simpler fishing tackle than well-connected islands. And indeed, if you cut people off from exchange networks, human progress not only stalls, it can go backwards.
The best example of this is Tasmania, which became an island ten thousand years ago when sea levels rose. Not only did the Tasmanians not get innovations that happened after this time, such as the boomerang, they actually dis-invented many of their existing tools. They gave up making bone tools altogether, for example. As Joe Henrich has argued, the reason for this is that their population was too small to sustain the specialization needed to collaborate in the making of some of these tools. Their collective brain was not big enough — nothing to do with their individual brains, it’s the collective intelligence that counts.
As a control for this idea, notice that the same thing did not happen in Tierra Del Fuego. The Fuegan Indians continue to progress technologically. The reason for this is that the Magellan Strait is narrower than the Bass Strait, so trade continued and the Feugan Indians had access to a collective brain the size of South America. Whereas, as the Tasmanians had access to a collective brain only the size of Tasmania.
The Collectivism of Markets
Now for me one of the most fascinating implications of this understanding of the collective brain is just how touchy-feely liberal it is. I’m constantly being told that to believe in markets is to believe in selfishness and greed. Yet I think the very opposite is true. The more people are immersed in markets, the more they collaborate, the more they share, the more they work for each other. In a fascinating series of experiments, Joe Henrich and his colleagues showed that people who play ultimatum games — a game invented by economists to try and bring out selfishness and cooperation — play them more selfishly in more isolated and self-sufficient hunter-gatherer societies, and less so in more market-integrated societies.
History shows that market-oriented, bottom-up societies are kinder, gentler, less likely to go to war, more likely to look after their poor, more likely to patronize the arts, and more likely to look after the environment than societies run by the state. Hong Kong versus Mao’s China, 16th century Holland versus Louis the XIV’s France, 20th century America versus Stalin’s Russia, the ancient Greeks versus the ancient Egyptians, the Italian city-states versus the Italian papal-states, South Korea versus North Korea, even today’s American versus today’s France, and so on.
As Voltaire said, “Go into the London stock exchange and you will see representatives of all nations gathered there for the service of mankind. There the Jew, the Mohammedan, and the Christian deal with each other as if they were of the same religion, and give the name of infidel only to those who go bankrupt.”
As Deirdre McCloskey reminds us, we must not slip into apologizing for markets, for saying they are necessary despite their cruelties. We should embrace them precisely because they make people less selfish, and they make life more collective, less individualistic. The entire drift of human history has been to make us less self-sufficient and more dependent on others to provide what we consume and to consume what we provide. We’ve moved from consuming only as widely as we produce to being much more specialized as producers and much more diversified as consumers.
That’s the very source of prosperity and innovation. It’s time to reclaim the word “collectivism” from the statists on the left. The whole point of the market is that it does indeed “collectivize” society, but from the bottom-up, not the top-down. We surely know by now after endless experiments that a powerful state encourages selfishness.
Let me end with an optimistic note. If I’m right, that exchange is the source of innovation, then I believe that the invention of the Internet, with its capacity to enable ideas to have sex faster and more promiscuously than ever, must be raising the innovation rate. And since innovation creates prosperity by lowering the time it takes to fulfill needs, then the astonishingly rapid lifting of humanity out of poverty that has happened all over the world, particularly in the last 20 years, can surely only accelerate. Indeed, it is accelerating. Much of Africa is now enjoying Asian Tiger-style growth. Child mortality is plummeting at a rate of five percent a year in Africa. In Silicon Valley recently, Vivek Wadhwa showed me a $35 tablet computer that will shortly be selling in India. Think what will be invented when a billion Indians are online.
In terms of human prosperity, therefore, we ain’t seen nothing yet. And because prosperity is an emergent property, an inevitable side effect of human exchange, we could not stop it even if we wanted to. All we could do is divert it elsewhere on the planet (which is what we in Europe seem intent on doing). “Adam Darwin” did not invent emergence: his was an idea that emerged when it was ripe. And like so many good ideas, it was already being applied long before it was even understood. And so I give you Adam-Darwinism as the key to the future.
Comments Off on Sports betting should be legal across the country. Here’s why.
The Oakland Raiders’ impending move to Las Vegas has reignited debate about the legality of betting on sports. Most states ban betting schemes (although Nevada is an exception), and NFL Commissioner Roger Goodell supports these bans. Other commissioners, like the NBA’s Adam Silver, oppose them. As for the general public, a 2011 study from Fairleigh Dickinson University shows that Americans are split on the issue. So, should we lift the bans or not?
The Paternalist Argument
As far as I can tell, the main arguments against legalizing betting are paternalistic: the state should ban gambling to protect gamblers from themselves. For instance, a ban could prevent gamblers from becoming addicted.
But outright prohibition is not the only way to address gambling addiction. For instance, some states offer self-exclusion programs, which enable people to voluntarily ban themselves from certain gambling activities. Gambling facilities must then refuse wagers from and deny gaming privileges to these people; facilities can even arrest self-excluded patrons for trespass if they enter the gambling floor.
What’s more, other activities like drinking alcohol present a considerable risk of addiction and yet remain legal. Rather than imposing a general ban on drinking, we take a more targeted approach and offer treatment to those particular people who suffer from an addiction (and ban drinking for minors, too). I see no reason to treat sports betting differently.
Your Money, Your Decision
Here’s a positive argument for legalizing sports betting: people generally have the right to spend their money as they see fit, so they should be allowed to spend their money on gambling. If you may spend your paycheck on a sports car to chase thrills, why aren’t you allowed to spend it betting on the Super Bowl for the same reason?
Alternatively, you could bet on sports in an attempt to make money. In this respect, betting on sports seems similar to other, perfectly legal activities. Someone who buys stock in General Motors is “betting” that the company will sell lots of cars, just as someone who puts money on the New England Patriots is betting that they’ll win the game.
Skill vs. Chance, Investing vs. Gambling
Maybe investing in the stock market is different than betting on the NBA playoffs because the proceeds of the latter are “predominantly subject to chance.” Suppose this is true — whether you win money from your bet on the Golden State Warriors is mostly a matter of luck, whereas whether you win money from your “bet” on General Motors is mostly a matter of skill.
Why should this matter when it comes to legality? The thought might be another paternalistic one: in games of chance, your odds of winning are “too low,” so the state must stop you from gambling away your money.
But people often have higher odds of winning games of chance than games of skill. Suppose a local pub charges a $100 entry fee for its dart contest. The winner receives $1,000. Darts is a game of skill, not luck. The trouble is, I don’t have the skill. So I have virtually no chance of winning. Crucially, I have a significantly lower chance of winning the dart contest than winning my bet on the NBA Finals (which hovers around 50%). It’s strange, then, that I may enter the dart contest but I may not bet on the NBA Finals.
Lastly, I may legally perform actions that have a 100% chance of financial loss, so why isn’t it legal to perform actions that only have, say, a 50% chance? For instance, I am within my rights to simply hand over $500 to Brooke the bookie as a birthday gift. So why may I not hand over $500 to Brooke when there is at least a chance that I’ll get some money back on a bet?
Of course, betting $500 on sports could be a bad idea. But then again, gifting Brooke the $500 could be a bad idea, too, and that’s perfectly legal. Even if sports betting is unwise, that’s not nearly enough to make it criminal.