Smoking Bans as an Infringement on Liberty. The Comments Waft In.

My previous post on my approbation of smoking in bars and bikers not wearing helmets has generated a mini-buzz.

A friend on facebook commented:

Bikers without helmets, fine…it is their own life they are risking. But I have a right and liberty to enjoy a drink or meal without literally breathing in cancerous fumes from second hand smoke. Your absolute right to liberty stops when you are killing me by your actions. So if we both have a liberty to be at the restaurant but our liberties are not compatible…then the person who doesn’t kill the other person with cancerous smoke should win out.

My reply? You are conflating your liberty to go to a restaurant, and a proprietor’s liberty to establish a business as he sees fit. You have a liberty NOT to eat at a cancerous restaurant. You infringe on a proprietor’s liberty to run his establishment as he wishes. You have no liberty to tell someone else how to run their bar. Vote with your feet and go to a different restaurant. When was the last time a Wendy’s or McDonald’s in a state that permitted smoking, allowed smoking? Never. Business arrange policy decisions to attract certain clients. Create a demand for a smoke free restaurant. If they build it, you will come. But don’t tread on a business owner.

From an anonymous friend on Google Talk:

In some fashion or another [banning smoking in restaurants] is causing less smoking or less secondhand smoke . . . which is reducing disease. [P]ragmatically, this seems as good a reduction of freedom as possible.

No my anonymous friend is not Richard Posner, but this statement could have come directly from the lips of the great Pragmatist. Pragmatism certainly has its value. Of the many “health” regulations the state imposes, this may have one of the most rational purposes; reducing disease. But this aim could be accomplished through more narrowly tailored means (I know strict scrutiny does not apply, I’m just using the lexicon). Outright banning smoking is Draconian. Perhaps create tax or other incentives for establishments that ban smoking. Or allow establishments to apply for variances if a certain proportion of their clientele smoke indoors. Much less strict means to accomplish these goals.

And from Paul in the comments:

Josh, North Carolina HAS banned smoking in public places….. it’s all over.

I guess it is all over. What do we do. Shrug. Who is John Galt?


When I smell smoke, I smell Liberty. Why I love smoke in bars and bikers without helmets.

My former home state of Virginia (and my real home state in my mind), recently enacted a ban on smoking in ALL restaurants and bars in the Commonwealth.

The General Assembly passed and the Gov. Tim Kaine signed legislation to ban smoking unless the businesses have a designated smoking area with a separate ventilation system, if it’s a private club or if there’s an open air patio.

I grew up in NYC, where the statists banned smoking in the mid-1990s. So this is nothing new. but when a state like Virginia bans smoking, it gets me suspicious.  Once North Carolina bans smoking in public places, its all over.

For the record, I do not smoke. I have never smoked, and I particularly dislike the smell of smoke. But, whenever I walk into a bar and smell smoke, I relish in the sweet breath of liberty. Ask my friends. I seriously smile whenever I smell smoke in a smoker-friendly restaurant, because I realize they are a dying breed (no pun intended).

Laws banning smoking in private establishments is a classic example of paternalism and state control of private concerns. If a restaurant seeks to ban smoking for a host of reasons, that is their prerogative. If they want to look out for the health of their employees, or provide a cleaner environment for patrons, banning smoking would give them a competitive advantage. Similarly, if an establishment wants to appeal to a smoking clientele, they will understandably risk losing customers who abhor smoke. But, for the government to force private business to change their business model, and exclude paying customers makes me furious. Now, this is no different than the countless other health and safety requirements imposed on businesses, but the smoking ban is the most flagrant, and the most visible (pungent?). That is why these laws enrage me so.

While in Virginia, I would actually choose to frequent places that allowed smoking to make sure Atlas keeps shrugging.

I have a similar reaction when I see motorcyclists without helmets. In my new home of Pennsylvania, motorcyclists are not required to wear helmets. And anecdotally, in the home of Harley Davidson, many bikers go dome-free. Helmet, and seat-belt laws are paternalistic.

Some raise the argument that requiring bikers to wear helmets cuts down on visits to the emergency room, which ultimately reducescosts for everyone. I have a solution! If you choose to ride your bike without a helmet, and you get into an accident, you automatically waive the receipt of any public welfare as a result of the accident. Same goes for seatbelt laws. If you want to do something idiotic, don’t make me pay for it!

That really grinds my gears!

Update: See this post for my response to some of the comments.

Proposal from Harvard Prof: The Congressional Line Item Vote can Eliminate Earmarks. My Proposal: Don’t Insert Earmarks.

From Professor Iluiano (H/T Legal Theory Blog):

Congressional earmarking is an issue of growing concern in the United States. Although it currently accounts for a small percentage of federal expenditures, recent trends indicate that such pork-barrel spending will soon become a significant contributor to the national debt. The federal government must work to control this problem before it becomes unmanageable. One recent attempt to reduce the number of earmarks was the Line Item Veto Act of 1996. On both constitutional grounds and in practice, this measure failed.

Instead of acknowledging these shortcomings and crafting innovative solutions, legislators have repeatedly introduced bills that would once again grant the president a form of line item veto power. This Article, however, develops an entirely new process – the congressional line item vote – that has the potential to eliminate earmarks, reduce the deficit, and make members of Congress more accountable to their constituents.

Part IV will examine why Congress better suited than the President at crafting legislation that advances the national interest. Finally, in Part V, this paper will argue that a congressional line item vote is the best method for eliminating earmarks, reducing the deficit, and increasing congressional accountability. Because the congressional line item vote holds legislators accountable for each provision in every bill, it will force members of Congress to place the preferences of their constituents first.

Umm… I have an easier suggestion. The way to eliminate earmarks is to eliminate earmarks. Simple, right? Stop inserting them, and they won’t exist.

But of course, rationally self interested congressman have every incentive to insert. And as a resident of Johnstown, PA, my Representative, Jack Murtha, is the king of earmarks. See a recent WSJ Op-Ed about our airport for no one for more details. (I will be flying out of the Jack Murtha Airport next week, stay tuned for bloggings).

If Congress would stick to their enumerated powers, they would not have the Constitutional mandate to spend on the wide ranging crap contained in earmarks. You may argue, what about the spending power. Well, as I understand it, the spending power is linked only to power Congress has. I would argue Congress lacks the power to spend in many wholly intrastate activities. Interesting proposal nonetheless.

Posted in Uncategorized. Comments Off on Proposal from Harvard Prof: The Congressional Line Item Vote can Eliminate Earmarks. My Proposal: Don’t Insert Earmarks.

What happens when no one wants to argue a case in front of SCOTUS? The Justices Appoint Counsel. Is this Kosher?

From the Columbus Dispatch (H/T How Appealing):

When the justices agreed to hear the case, they discovered that nobody would defend the appeals court ruling.So in April, an official of the Supreme Court called Merritt, a professor at Ohio State since 1995. We need a lawyer to argue a case before the justices, the official said. Can you give us an answer in the next day or two?

She quickly read through the appeals court ruling and told herself, “I can argue this case.”

This is kind of an odd move from the Supreme Court. Even if no one is willing to argue the case, the Justices, sua sponte, select counsel to argue and brief the case. I suppose the Justices have a vested interest in making sure that a case granted cert is effectively argued on both sides. But isn’t this kinda meddling? If the party below does not want to contest the case, why should the Justices get involved. Is there even a live case or controversy at this point? Is this Kosher?

Posted in SCOTUS. Comments Off on What happens when no one wants to argue a case in front of SCOTUS? The Justices Appoint Counsel. Is this Kosher?

Potential Study: Measure Influence of Law Clerks on Judges

At Concurring Opinions (H/T ATL), Professor Hoffman considers the influence law clerks have on Judges.

Although there have been a few studies about the usage, hiring, and quality of law clerks, I haven’t seen work that really convinces me that clerks change judicial performance (rather than match it).  That question of influence is pretty important for all kinds of reasons — not least because if law clerks were really influencing their judges, we might want to spend a little bit more time thinking about their roles, ethics, hiring, etc.

Especially with the legal market reeling, “As an organ of the government, the judiciary simply eats better brains when the economy stinks.”

How would this study work?

Eight to ten years from now – in 2018 or thereabouts – we test whether opinions arising from this bumper-clerk period are cited at a higher rate than opinions from the ordinary market periods immediately preceding and following.  The hypothesis would be that if clerks influence judges to write better opinions, better clerks will produce to more citable opinions.

Is this true? Are judges so reliant on their clerks that the citability of their opinions is closely linked to the quality of their clerks? I don’t agree with the author’s thesis. Despite the horrible hiring season, the top Circuit Judges (the Kozinski’s and Wilkinson’s of the world) will still hire the top students at Harvard and Yale. The lesser-known Circuit Judges will now be able to select better students than those available in the past. But these lesser-known Judges will still be bound by the influence, originality, and reputation of the Judge. A brilliant clerk can only dress up a Judge’s philosophy so much. Ultimately, all the credit falls to the Judge.

In the comment thread, Volokh Conspirator Orin Kerr parries with Dave Hoffman, and agrees with me. Kind of.  More after the jump.

Read the rest of this entry »

Posted in Uncategorized. Comments Off on Potential Study: Measure Influence of Law Clerks on Judges

Vermeule on Invisible-Hand Justifications in Legal Theory. Download it while it’s hot!

When Professor Solum writes that an article is “Highly recommended. Download it while it’s hot!” you should probably read it. I would second Professor Solum endorsement Adrian Vermeule’s new article on the The Invisible Hand in Legal Theory. From the essay:

    Theorists have offered invisible-hand justifications for a range of legal institutions, including the separation of powers, free speech, the adversary system of litigation, criminal procedure, the common law, and property rights. These arguments are largely localized, with few comparisons across contexts and no general account of how invisible-hand justifications work. This essay has two aims. The first is to identify general conditions under which an invisible-hand justification will succeed. The second is to identify several theoretical dilemmas that arise from the structure of invisible-hand justifications and that cut across local contexts. These are the dilemma of norms, which arises because norms of truth-seeking, ethical action or altruism can both promote and undermine the workings of the invisible hand; the dilemma of second best, which arises because partial compliance with the conditions for an invisible-hand justification can produce the worst of all possible worlds; and the dilemma of verification, which arises where theorists claim that an invisible-hand process functions as a Hayekian discovery procedure – a claim that is empirical but pragmatically unverifiable.

I have cited a lot of Vermeule’s work in my article on the Lemon Test and legislative history, and found his reasoning to be superb. I had thought I came up with an original idea, only to find that Vermeule had written about it in the Chicago Law Review several years prior. Oh well.

Check out this article, let me know what you think.

Posted in Uncategorized. Comments Off on Vermeule on Invisible-Hand Justifications in Legal Theory. Download it while it’s hot!