Looks like activists across the political spectrum are uniting against a problem I previously termed “Lazy Law.” As Harvey Silverglate illustrates in his book Three Felonies a Day federal criminal law is so comprehensive and vague that almost anyone can be construed as having broken some law. Which means that prosecutors can indict practically anyone they wish.

NYTimes offers an interesting survey of the movement.

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”

The massive healthcare lobby can’t break the FDA’s stranglehold on medical innovation.  Can a bureaucratic turf war do it?  Consider the following statement by the Federal Trade Commission Chairman, Jon Leibowitz:

We’re going to be very concerned about any practice that could increase prescription-drug costs to American consumers.  You can’t let drug safety be used as a tool to delay … competition.

Of course, the ellipses conceal the qualifier that will dash our hopes: The FTC is only interested in ensuring competition of “generics” for drugs coming off patent.  If a useful drug never makes it to the market in the first place because of the excessive regulation by the FDA he probably doesn’t care.

Leonard Mlodinow summarizes extensive research calling into question the abilities and value of wine critics. It turns out that wine critics and purveyors have been attributing far too much detail and precision to their reviews.

I confess that I am no wine connoisseur, but even a nephalist can be amused by the prices, prose, and rituals that surround the marketing and consumption of wine. In addition to nuanced appellations that detail which grape varieties were juiced as well as when, where, and how they were fermented, each particular wine gets adorned with pretentious and colorful descriptions of its distinctive traits. Today critics also rank wines on a 21-point scale (80-100) intended to establish their relative value.

Not surprisingly, most of this is absurd. Critics disagree so widely on the same wines that the outcomes of wine competitions cannot be distinguished from simply awarding medals at random. In fact, even the same critic tasting the same wine at the same sitting cannot reliably reproduce his own ratings. This industry has simply strayed far beyond the precision and detail inherent in either wine itself, or in the human ability to evaluate it.

Perhaps now we can retreat to a more realistically coarse system of description and quality that is both reproducible and standardized. A reproducible rating system would be one that is sufficiently coarse that (A) the same critic should never diverge from an earlier rating of the same product and (B) all critics should be within one point of the average rating. Obviously a 21-point system for wine will never be reproducible, so how about 4 levels — call them bad, not-bad, delicious, and sublime? A standardized system of description would dispense with nuanced and subjective prose and hew instead to positive — perhaps even measurable — qualities. Sweetness, acidity, and viscosity seem like obvious dimensions for any beverage. The universe of permissible flavors should be substantially narrowed. After all, we’re talking about fermented grape juice. Is there a meaningful and consistent distinction between “leather” and “tobacco?” Do we gain by dissecting the general flavors of “berries” or “flowers” into the subtleties of “black-currant” and “lavender?” Mlodinow notes that “even flavor-trained professionals cannot reliably identify more than three or four components in a mixture, although wine critics regularly report tasting six or more.”

I wonder why wine in particular has developed such a peculiar and unjustifiable culture of devotion. In other times and places wine has been a commodity more like, for example, grape juice: Juice may be bad, good, or delicious. It can come from this grape variety or that. But one glass of good red concord grape juice is treated pretty much the same as any other. Likewise, tea, coffee, and chocolate have in times past enjoyed ritual and nuance to rival that of wine today, but now they are now mostly treated like commodities. Why?

The tyranny of Special Interests is a recurring theme on this blog.  Today I decided to create an official category for it.

Special interests, even in a democracy, drive a vicious cycle of government expansion to serve themselves at the expense of the majority.  Or maybe it is the government that foments the special interests to expand its power — a tactic suggested by Cindy Cosgrove:

… which is to shred Americans into hundreds of warring factions. These are those with health-care insurance, those without, the employed, the unemployed, blacks, whites, Latinos, gays, blue collar, white collar, union members, Wall Streeters, Main Streeters, first-time home buyers, foreclosure victims, small business owners, Medicare recipients, undocumented immigrants, those making over $250,000 and those making less. Our identity and security are increasingly tied to membership in one or more of these cartels, each vying for ever-shrinking resources and favors doled out by the government.

Can every CEO be above average?  Obviously not, but when a shareholder’s board is responsible for hiring and compensating an employee there is a structural defect, perhaps best summarized by Jonathan Macey:

No self-respecting board of directors is willing to admit that their company’s CEO is below average. So anytime the new disclosures indicate that an executive’s pay is below average in any way, a pay increase is ordered.

The board is responsible for representing shareholders’ interests.  They would be abdicating their duties if they retained a substandard executive, so unless they’re either resigning their seat or firing a CEO they practically have no choice but to assert that he is above average, and to pay him accordingly.  This leads to an “arms race” of sorts with respect to executive compensation, and the race can become completely detached from efficient labor markets.

If labor markets were efficient then executive pay would be set based on the supply of competent executive candidates and the demand for their labor.  Demand would be limited by the marginal value that a “good” versus “not-as-good” executive could create in a business.

However, the dynamics of a representative board can overwhelm this microeconomic model.  As Rick Bookstaber suggested in a recent post: the board may not be able to quantify or predict the marginal value of an executive.  But that’s their job, so whether they have actually quantified the value of an executive — whether it is even theoretically possible — they behave (perhaps subconsciously) as if they are doing their job, which means they have retained exceptional executive talent.  And the only way to confirm that — to themselves, to the executive, and to their shareholders — is to give their executives above-average compensation!  So every board has to look at what every other board has chosen to pay comparable executives, and then they have to raise it.  The only escape valve for this cycle is for compensations to get so clearly out of line with fundamental supply and demand of executive labor that a majority of shareholders not only see the disconnect but also become sufficiently energized to shake up the board.  And as we know the threshold for large-scale shareholder activism is a high one indeed!

Note that this dynamic is not unique to executives or public companies.  Governmental boards — e.g., school boards — often fall into the same compensation arms races with neighboring districts.  Unions also exploit the arms race dynamic to inflate their wages by negotiating contracts, not on the basis of supply and demand for their labor, but on the basis of keeping up with some reference group (ideally one also engaged in the same arms race).

Why would a worker in an open and mobile labor market support a labor union?  In response to union agitation at the University of Wisconson Dana Hermanson comments:

I fail to see why any competent professor would want to be part of a union. Competent professors have the research and teaching accomplishments to make them[selves] marketable and mobile, and thus protected from bad administrators or misguided universities. With the protection of mobility already in place, why would competent professors want or need a union…?

Indeed, in practice unions reward seniority (at best), patronage, and corruption (at worst).  A competent worker would be foolish to voluntarily bargain with incompetent workers, since his compensation would be dragged down when pooled with their lack of diligence, and they would unfairly benefit from his skill.

And what do we get when we share the production of diligent workers with lazy and unskilled ones?  (Hint: More of the latter, and less of the former.)

Two years ago I asked, “How Can a Free Society Defend Itself?”  which raised several questions to which I still haven’t found satisfactory answers.  Among them:

• How can we defend against asymmetric threats?  (You have to dig into my discussion on the Mises.org forum where I point out that “asymmetric threats” are essentially a product of modern technology: e.g., an individual can build and deploy a truck bomb that can kill hundreds of people, where before the 20th century an individual could not easily wreak havoc disproportionate to his ability to suffer justice.)
• In an age of asymmetric threats how can we defend against aggressors who are suicidal or otherwise immune to deterrence?

Paul Robinson, professor of law, had an essay in the WSJ pointing out that international law lacks reasonable and moral provisions for states to deal with threats preemptively.  He suggests that the American “Model Penal Code” provides a better standard since it allows for the use of force when “immediately necessary.”

I don’t believe the MPC really addresses this problem, since the key point is defining when and what defense is “immediately necessary.”  For example, if somebody says, “I’m going to kill you — not now, but sometime when your guard is down,” our current laws do not allow you to use force against that person.  The best they offer is a judicial restraining order telling the aggressor to stay away from you.  In the context of states and international law we have the same problem: An aggressor can tailor his threat so that defense is only justified when it is impossible.  Then he can retreat as soon as a forceful defense can be mounted … at which point defense is not “immediately necessary” and hence would be unjustified.

Following some brief correspondence Professor Robinson offered the following clarification:

The point here is that modern [penal] codes switch the focus from the timing of the threat to the timing of the force needed to defend, as it should.  This is a popular provision in state criminal code reforms.  The timing of the threat – its imminence – simply is no longer the relevant test for triggering defensive force.

This has not yet been incorporated into any laws that I am aware of, but it’s at least a first step in principle to addressing these difficult questions.

Among them, as I have pointed out before, is the FDA.  Matt Alsante brings our attention to the latest mass death sentence handed out by our government:

As the debate about health-care reform has heated up, there’s been a lot of talk about creating expert panels that give bureaucrats control over what treatments we can receive. Truth be told, these panels already exist. Earlier this month, the Food and Drug Administration (FDA) bureaucracy made a decision that will deny women a viable option for fighting ovarian cancer.

James Taranto (again — Best of the Web has had a great week!):

[L]iberals, who pride themselves on their tolerance, often have a strong antipathy toward those who hold differing political views.

Since government already has its sleeves rolled up to reform the healthcare industry, Richard Rafal offers “A Doctor’s Plan for Legal Industry Reform” along the same lines.  Which only seems fair — after all, if the U.S. Constitution provides for any universal right to healthcare it has hidden that right in its “penumbras.”  But it explicitly enumerates universal rights to legal care (legal counsel, due process, speedy trials, the right to petition the government, etc.).  The judicial system is our last governmental defense against infringement of our inalienable rights, but these days it is practically inaccessible except through the legal cartel.

Rafal’s Legal Industry Reform is worth reading in full, but here are some highlights to get you started:

Each potential legal situation will be assigned a relative value, and charges limited to this amount. Program participation and acceptance of this amount is mandatory, regardless of the number of hours spent on the matter. Government schedules of flat fees for each service, analogous to medicine’s Diagnosis Related Groups (DRGs), will be issued. For example, any divorce will have a set fee of, say, $1,000, regardless of its simplicity or complexity….

Legal “death panels.” Over 75? You will not be entitled to legal care for any matter. Why waste money on those who are only going to die soon? We can decrease utilization, save money and unclog the courts simultaneously. Grandma, you’re on your own.

Ration legal care. One may need to wait months to consult an attorney. Despite a perceived legal need, physician review panels or government bureaucrats may deem advice unnecessary. Possibly one may not get representation before court dates or deadlines. But that’ s tough: What do you want for “free”?

James Taranto clarifies a distinction that often trips up detractors of free-market proponents, who claim that being pro-capitalism is the same as being a shill for corporations:

A useful distinction can be drawn here between business (commercial activity) and big business (large corporations or industries acting collectively to seek economic advantages from the political system). Those of us who adhere to free-market principles are pro-business, in that we think commerce is a good thing, but owe no allegiance to corporations or industries as such.

Interposition, nullification, and secession.  These are the means by which a state can check the power of a federation.

That is how American federalism was supposed to work. The three branches of the central government would check each other, but it would be up to the sovereign States to keep the central government itself in check. The Constitution was to be enforced through political action of the States not by the legalism of nine unelected Supreme Court justices.

That’s from Donald Livingston’s excellent essay at the Tenth Amendment Center.

“Interposition” brought to mind the recent gestures by several state governors to reject federal “stimulus” funds.  Those gestures were viewed as symbolic, empty, and perhaps silly because rejecting the federal money would not have had any real effect on federal power or spending.  They would have had real consequence had the governors truly interposed against what they claimed was unconstitutional federal spending: I.e., the concomitant gesture to rejecting the federal funds should have been the recovery and return to their states’ taxpayers all federal taxes that were supposedly being spent unconstitutionally.

The WSJ gave Betsy McCaughey half of their opinion page on Thursday to expose the views of Ezekiel Emanuel (“Obama’s Health Rationer-in-Chief“).  The disapproving essay concludes with a question, “Is this what Americans want?” and seems to presume that Emanual’s principles for allocating scarce medical resources are so horrifying that simply describing them is sufficient to reject them.

However this did not reduce my enthusiasm for Emanuel’s philosophy.  McCaughey’s citations show Emanual raising essential issues, making excellent ethical arguments, and providing solutions that make perfect sense for government spending on individual welfare.

The problem with this debate is that it is about two separate but sometimes correlated questions:

1. How much healthcare should government provide?
2. Should government healthcare usurp private markets for the same goods and services?

What is both reasonable and necessary for government healthcare would be unethical for free market medical services: Namely, a system for rationing finite resources that considers cost and benefits in a social, not individual, context.  Government can’t pretend that it has unlimited resources.  And in this debate I have not yet heard an explicit argument in favor of the default method for allocating scarce resources: queues.

Government needs some socialist basis for (A) taking money from some people (via taxes) and (B) giving it to others (via medical services).  Of course a major part of the debate pertains to (A), i.e., the degree and manner in which government is justified in coercing some people to contribute towards the health of others.  But given some level of government-sponsored healthcare Emanual offers an ethical framework — indeed, the only coherent one I have encountered — for part (B): disbursement of finite resources

The second question raised above is more difficult, but insofar as a rationing system is employed to problem 1A it need not interfere with private markets.  I.e., Govenrment should not encumber private commerce in medical goods and services even if it does itself engage in socialized medicine.

Why stop at Casual Fridays? I propose the following:

Formal Mondays: Appropriate attire is limited to tuxedos or morning suits for men, and ballgowns or wedding dresses for women.

Tactical Tuesdays: Fatigues, battle dress uniforms, or other paramilitary attire. Open-carry of weapons and tactical accessories is also encouraged.

Onesie Wednesdays: Coveralls, jump suits, or siren suits.

Athletic Thursdays: Dress for your favorite athletic pursuit. Wear a gi, bike shorts, racing suits, or any uniform appropriate for a particular sport (e.g., fencing, dressage). Where headgear is part of the sport you must bring it, but you need not wear it in the office.

While researching the best way to take advantage of the 2009-2010 tax credit for household energy upgrades I looked at geothermal heating/cooling systems.  Currently the most energy-efficient residential climate control system is a heat pump, which is essentially two-way air conditioner: It doesn’t expend energy to generate heat, but rather to extract latent heat from air in one location and to pump it to another.  During the summer it pumps from inside a house to the outside, like a conventional air conditioner, and during the winter it pumps heat from outside air back indoors.  The problem with an outdoor heat pump is that it’s always working against the weather: During hot weather it’s trying to move heat from a hot location (inside) to an even hotter location (outside).  During cold winters it’s even harder to extract heat from freezing outside air to raise indoor temperatures to a comfortable level.  Geothermal heat pumps solve this problem by exploiting the fact that subterranean temperatures are a nearly constant 50 degrees year-round.  By putting the heat exchanger underground the heat pump runs much more efficiently because it doesn’t have to fight the weather.

Geothermal heat pumps are very nifty and efficient, but even with the government’s 30% tax credit they are still not economical for conventionally-sized residences.  Drilling underground heat exchange loops will typically exceed $10,000, and the efficiency gains don’t justify that expense given current energy prices.

But geothermal heat sinks aren’t the only advancing technology.  A study by the U.S. Geological Survey suggests that geothermal power generation may be able to satisfy a large portion of our energy demand.  Existing geothermal power plants depend on unique geological formations where high temperatures can be found in permeable rock within 2 miles of the earth’s surface.  Such sites are limited and only rarely economical to exploit.  Newer approaches, dubbed “Enhanced Geothermal Systems” (EGS), would tap up to 4 miles below the surface and take advantage of the higher temperatures and pressures to drive power plants with greater capacity and service life.  EGS appear to be practical over much wider geographic areas.  The USGS report, the first comprehensive geothermal resource assessment in thirty years, suggests that EGS could add on the order of half a terawatt of generating capacity to the domestic power grid.  (Current U.S. generating capacity is roughly one terawatt.)

Craig Karpel makes an excellent point in his essay today, “We Don’t Spend Enough on Health Care.”  He cites studies suggesting that it would not be unreasonable for the American healthcare industry to grow from 17% of GDP today to more than 30% of GDP in a few decades.

Why not?  Industrialization has steadily decreased the resources Americans must devote to satisfying the basic human needs of food, clothing, and shelter.  With increasing resources to spend on non-necessities it should not surprise us to find individuals more disposed to indulge in advanced medicine.  Entertainment and luxury goods have a limited power to increase quality of life, especially once health and vitality begin to decline.  Until we have achieved perfect immortality health technology is the ultimate luxury good.

Yet government and the liberal establishment are evangelizing an odd perspective on the healthcare industry.  Obama’s attempts to increase the federal government’s role as a purchaser and provider of healthcare are premised on the argument that, “The cost of health care has weighed down our economy.”

The President’s complaint seems to be about the efficiency of healthcare — i.e., the amount of dollars it takes to purchase a given level of service.  It is true that any market inefficiency “weighs down our economy,” insofar as we enjoy greater production at a lower costs when markets run more efficiently.  We could say the same about any sector of economic activity — “The cost of transportation has weighed down our economy.  If only we could move people and goods more efficiently our economy would certainly grow!”

In this case, the President is actually saying, “We’re spending 17% of GDP on healthcare, and that’s too much because I happen to know we could get the exact same goods and services for just 15% of GDP!”  Of course, anyone who still believes that a government can acquire or provide goods and services more efficiently than for-profit enterprises in a free market hasn’t been paying attention for the last century.  Indeed, insofar as there are obvious inefficiencies in the healthcare industry government interference is invariably the dominant cause.

A slightly different formulation of the President’s complaint might be, “We’re spending 17% of GDP on healthcare, and that’s too much because we need to increase spending on [insert the cause du jour -- the war, or the space program, or entitlements to special interests....]”  In which case this is just an opportunistic appeal for increasing government control of the economy.

In the first case the President is almost certainly correct — America’s healthcare spending is less efficient than it could be — but for the exact opposite reason he would stipulate:  The federal government’s staggering regulation and spending in healthcare impairs the efficient operation of that industry.

In the second case, we should celebrate a society that can afford to devote such unprecedented resources to any sort of discretionary spending.  We might debate priorities: Perhaps there is some level or character of individual healthcare spending we should find as tasteless as megayachts.  But so long as we are a free republic that is a debate that should be conducted outside of the halls of a coercive government.

If the government is going to provide medical services with finite resources then it is going to have to make difficult choices: It can’t take a spare-no-expense approach to treating every single person.

I addressed the question of how to rationally distribute life-saving resources three years ago.  Any coherent allocation of these resources will be fascist, which makes government healthcare even more politically unpalatable in a culturally libertarian country like the United States.

Amusingly, the Obama administration is under attack because its healthcare policy advisor, Ezekial Emanuel, earlier this year published “Principles for Allocation of Scarce Medical Interventions” reminiscent of mine.  It may not help that he gave his proposal the vaguely orwellian name, “The Complete Lives System.”

Most modern cars have engine control computers and sensors that can tell not only whether your current tank of fuel is contaminated but also whether you would benefit from higher-octane gasoline. Yet few (if any) cars readily communicate those data to the driver. Why not?

Many car engines are designed with higher compression ratios that require “premium” gasoline for optimal performance. These cars can still run on lower-grade fuel: They rely on knock sensors to detect the failure of low-octane fuel to resist detonation and can retard ignition timing to counteract it. However this timing adjustment reduces engine efficiency and power, so typically drivers want to avoid it. (Conversely, higher-octane gasolines are sometimes sold at such a premium to regular that their higher cost might outweigh the efficiency benefit to engines tuned for them.)

But gasoline octane rating is not the only factor that determines safe engine timing. Air density, which decreases with altitude and temperature, also affects detonation. Fuel that works great in summer or mountains may bog your car down in cold or sea-level conditions. Only your engine knows for sure whether it’s running optimally, or whether it would benefit from a bump in your fuel tank’s octane.

Apparently some aftermarket engine computer interface devices (e.g., the ScanGauge or the DashHawk) can allow a driver to monitor engine timing retardation in realtime. Ideally manufacturers should convert these data into useful dashboard information. Perhaps something like, “Your current fuel is handicapping the engine. Increase tank octane by 2 for optimal performance in current conditions.”

I was surprised to learn from a discussion with a P&G product manager that dye- and fragrance-free consumer products are only a 5% market niche! This is baffling to me, and not just because I find most artificial fragrances irritating: It’s not like we’re living in primitive conditions where lack of hygiene and sanitation permeate our surroundings with the stench of unwashed animals, waste, and decay.

I suppose nosegays and perfume might still be in order for excursions to the zoo, circus, or municipal waste processing facilities. But why would normal humans in a well regulated household in a civilized community want to immerse themselves in the cacophony of artificial scents from their laundry detergent, fabric softener, dish soap, surface cleaners, bath soap, shampoo, antiperspirant, lotion, etc? And maybe then further compound that with “air fresheners” and colognes?!

As I wondered before: Shouldn’t I be able to buy dye- and perfume-free products at a discount, since they require fewer ingredients and development? Apparently not, and because consumer product companies consider “dye- and fragrance-free” to be a niche market they typically don’t consider removing those ancillary additives until a product line is well established!

What is the word for a parent whose child has died?  There seems to be no standard term; the best I have found is “child-bereft” or “bereft parent.”  But researching the question did lead me to this excellent discursion by Arnold Zwicky on “Missing Words:”  Concepts that are important enough to a culture that they should have words to describe them, but that don’t.

In our culture, people’s sex is important, and, for relatives, it’s important whether they are related to us by blood or by marriage (whether they are consanguineal or affine kin, as the anthropologists put it).  Yet, the marking of these features in the ordinary English vocabulary of kinship is a puzzling patchwork.

Ideally, we’d have both more specific words, distinguishing relatives on these dimensions, and also more general words, disregarding one feature so that relatives can be grouped together. Parent vs. mother/father and child vs. daughter/son come close to this ideal situation.   Sibling vs. brother/sister is a more dubious case, since for many people sibling is a technical term.  Then we get to cousin, which is undercoded (there’s a sex-neutral word, but no sex-specific ones), and niece/nephew, which is overcoded (there are sex-specific words, but no sex-neutral one).

And to aunt/uncle, which is overcoded on one dimension (there are sex-specific words, but no sex-neutral one) and undercoded on another (there are no words distinguishing consanguineal aunts/uncles from affine aunts/uncles).

Then there’s sister-in-law/brother-in-law, which are overcoded on the sex dimension, but undercoded in another way.  These words encode both an affine and a consanguineal relationship, but with two different scopings: brother-in-law is either spouse’s brother or sibling’s husband.  Many people feel that these two relationships are not equally close — in marrying, your spouse’s family is joined with yours, but when your sister marries, her husband’s family is not joined with yours in this fashion — so that these people find the use of a single word for them uncomfortable.  (As a result of the familial closeness of spouse’s brother, some people — I am one — are willing to extend sister-in-law to spouse’s brother’s wife.)

Read the whole thing for some good answers to my original question.