The Due Process Right To Plea Bargain

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Our criminal justice system is not the exemplar of due process we’d like to think. Instead, the deck is often stacked against defendants because prosecutorial incentives, mandatory minimum sentences and plea bargaining interact in perverse ways. This is exacerbated by our tendency to demand laws against every behavior that offends us, some that are redundant, some with lower burdens of proof, and some that are just silly. Civil justice is subject to excesses as well, as claims of victimhood are bounded only by the fertile imaginations of plaintiffs’ attorneys, but that’s a subject for another day.

Prosecutors tend to be ambitious, which is not necessarily a bad thing. But the U.S. is unique in electing prosecutors, and a “tough-on-crime” message is often successful at the polls. This magnifies the incentive for aggressive prosecution to achieve a high rate of conviction and lengthy sentences. Of course, defendants are often at a disadvantage in terms of the quality of their legal representation, but beyond that are a variety of prosecutorial tactics that can be used in pursuit of these goals.

A nexus between several factors has made the criminal justice system much harsher for defendants. Multiple charges on related and even unrelated crimes, often with harsh mandatory minimum sentences, can help secure a guilty plea on the original charge. The prosecution gets a conviction and avoids the cost of a trial, but the due process rights of the defendant are compromised in the process. Former Federal District Court Judge Kevin Sharp resigned from the bench because he could no longer tolerate the abuses done by mandatory minimum sentences. He offers a couple of examples:

Antonio was driving down the street and, without being too graphic, he and his girlfriend were engaged in an activity that caused him to cross slightly over the double-yellow line. The police saw it and pulled him over. The police suspected his girlfriend was a prostitute, so they split Antonio and his girlfriend up and asked them questions. The police realized based on her answers that she in fact was Antonio’s girlfriend. Then, the police said, ‘OK, we are going to let you go. Oh, by the way, do you mind if we search your car?’ Antonio, forgetting that he had an unloaded pistol under the front seat of his car, responded, ‘No, go ahead.’ Antonio was charged with being a felon in possession of a firearm. Because he was convicted as an adult in his prior crimes, his mandatory minimum sentence was 15 years. …

Members of Congress, in their desire to be elected and reelected, often show how tough on crime they can be, and they say, ‘Look, mandatory minimums are necessary so that we can take discretion away from the judges.’ But these legislators have not taken away discretion, they have just moved it to the prosecutor, who has a dog in the hunt.

The so-called “trial penalty” is the subject of a study on the disparate sentences offered in plea deals versus those likely to be imposed if the defendant goes to trial. This disparity is truly a threat to the Sixth Amendment right to a fair trial. Over 97% of federal criminal cases are now settled by plea, and again, rejecting a plea deal can carry considerable risk for a defendant. In fact, in discussing this study, Walter Pavlo puts things starkly: innocent people are pleading guilty. He quotes this finding:

There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk.”

How to make an innocent client plead guilty” is the topic of Jeffrey Stein’s confessional on the topic:

“... according to the National Registry of Exonerations, 15 percent of all exonerees — people convicted of crimes later proved to be innocent — originally pleaded guilty. That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.

You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday. But your client would have to accept responsibility for a crime they may not have committed.

The final stage happens in court. Your client has signed the paperwork admitting to something you believe in your gut they did not do. Maybe they acted in self-­defense. Maybe they were standing near the actual perpetrator and were presumed guilty by association because of the color of their skin. Maybe they were the victim of an honest misidentification.”

An episode in South Carolina indicating possible manipulation by prosecutors involved a grand jury, which is convened to hear preliminary evidence in a case and decide whether the defendant should be indicted on charges brought by the prosecution. This particular grand jury approved 904 indictments in a single day, averaging 39 seconds per indictment! In response, 27 defense attorneys filed a motion to have the indictments thrown out. It’s impossible to imagine that all of those cases received serious deliberation. Instead, the grand jury appears to have served as a rubber-stamp for the prosecution.

Over-criminalization is another major factor contributing to the erosion of due process rights. As Glenn Reynolds says, the next step should be fewer laws. This earlier paper by Reynolds made the point more forcefully: “Ham Sandwich Nation: Due Process When Everything Is a Crime” (free download):

Overcriminalization has thus left us in a peculiar place: Though people suspected of a crime have extensive due process rights in dealing with the police, and people more charged with a crime have even more extensive due process rights in court, the actual decision whether or not to charge a person with a crime is almost completely unconstrained. Yet, because of overcharging and plea bargains, that decision is probably the single most important event in the chain of criminal procedure.

Reynolds offers a number of remedies, including replacement of absolute immunity for prosecutors with “qualified good-faith immunity”, pro-rata allocation of defense costs based on the ratio of convictions to the number of charges, and requiring that earlier plea offers be revealed to the jury at trial.

Today, the many laws we have against victimless behavior overburden the justice system. Have you ever: purchased a large soda? Used recreational drugs? Purchased raw milk? Engaged in oral sex? Played fantasy sports? Used a plastic straw? Vaped? Paid for a sex toy? Sold lemonade from a stand without a permit? Purchased a Happy Meal? Given food to a homeless person? These are just a few activities that are, or soon-to-be, illegal in certain jurisdictions, and I mentioned only one case having to do with licensure. I have not even mentioned crimes promulgated by federal regulators.

In “Enforcing the Law Is Inherently Violent“, Conor Friedersdorf quotes Yale Law Professor Stephen L. Carter:

Every law is violent. We try not to think about this, but we should.  On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws. … It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.”

Yes, we need “a degree of humility as we choose which of the many things we may not like to make illegal.” We have over-crowded prisons and we have failed to protect the due process rights of the accused. A conviction should require proof of guilt beyond a reasonable doubt. In statistical terms, that would mean a very low p-value. Instead, our system has devolved into one in which defendants presumed innocent are forced to reckon with myriad risks, exaggerated by “kitchen sink” prosecutors and mandatory minimum sentences. The tradeoffs facing defendants are so unfavorable that few cases ever go to trial. The plea bargaining system often reduces the burden of proof to a matter of gamesmanship. For prosecutors, it’s like shooting fish in a barrel.

Forest Fires Ignite Climate Change Delusions

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The geographic extent of this summer’s forest fires won’t come close to the aggregate record for the U.S. Far from it. Yes, there are some terrible fires now burning in California, Oregon, and elsewhere, and the total burnt area this summer in the U.S. is likely to exceed the 2017 total. But as the chart above shows, the burnt area in 2017 was less than 20% of the record set way back in 1930. The same is true of the global burnt area, which has declined over many decades. In fact, this 2006 paper reported the following:

Analysis of charcoal records in sediments [31] and isotope-ratio records in ice cores [32] suggest that global biomass burning during the past century has been lower than at any time in the past 2000 years. Although the magnitude of the actual differences between pre-industrial and current biomass burning rates may not be as pronounced as suggested by those studies [33], modelling approaches agree with a general decrease of global fire activity at least in past centuries [34]. In spite of this, fire is often quoted as an increasing issue around the globe [11,2629].”

People have a tendency to exaggerate the significance of current events. Perhaps the youthful can be forgiven for thinking hot summers are a new phenomenon. Incredibly, more “seasoned” folks are often subject to the same fallacies. The fires in California have so impressed climate alarmists that many of them truly believe global warming is the cause of forest fires in recent years, including the confused bureaucrats at Cal Fire, the state’s firefighting agency. Of course, the fires have given fresh fuel to self-interested climate activists and pressure groups, an opportunity for greater exaggeration of an ongoing scare story.

This year, however, and not for the first time, a high-pressure system has been parked over the West, bringing southern winds up the coast along with warmer waters from the south, keeping things warm and dry inland. It’s just weather, though a few arsonists and careless individuals always seem to contribute to the conflagrations. Beyond all that, the impact of a warmer climate on the tendency for biomass to burn is considered ambiguous for realistic climate scenarios.

And what of the “mega-fires” burning in the West, like the huge Mendocino Complex Fire and last year’s Thomas Fire? Unfortunately, many decades of fire suppression measures — prohibitions on logging, grazing, and controlled burns — have left the forests with too much dead wood and debris, especially on public lands. From the last link:

Oregon, like much of the western U.S., was ravaged by massive wildfires in the 1930s during the Dust Bowl drought. Megafires were largely contained due to logging and policies to actively manage forests, but there’s been an increasing trend since the 1980s of larger fires.

Active management of the forests and logging kept fires at bay for decades, but that largely ended in the 1980s over concerns too many old growth trees and the northern spotted owl. Lawsuits from environmental groups hamstrung logging and government planners cut back on thinning trees and road maintenance.

[Bob] Zybach [a forester] said Native Americans used controlled burns to manage the landscape in Oregon, Washington and northern California for thousands of years. Tribes would burn up to 1 million acres a year on the west coast to prime the land for hunting and grazing, Zybach’s research has shown.

‘The Indians had lots of big fires, but they were controlled,’ Zybach said. ‘It’s the lack of Indian burning, the lack of grazing’ and other active management techniques that caused fires to become more destructive in the 19th and early 20th centuries before logging operations and forest management techniques got fires under control in the mid-20th Century.”

The annual burnt area from wildfires has declined over the past ninety years both in the U.S. and globally. Even this year’s wildfires are unlikely to come close to the average burn extent of the 1930s. The large wildfires this year are due to a combination of decades of poor forest management along with a weather pattern that has trapped warm, dry air over the West. The contention that global warming has played a causal role in the pattern is balderdash, but apparently that explanation seems plausible to the uninformed, and it is typical of the propaganda put forward by climate change interests.

Success In The Enlightened West

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The Left is engaged in a full attack on true liberalism and it is an attack on the rights of the individual: life, liberty, property, speech, due process of law, and other enumerated and unenumerated rights enshrined in the U.S. Constitution. These rights are themselves the very underpinnings of Western civilization and are together an unambiguous force for good in the world. Joe Lonsdale has written a declaration regarding the powerful legal, political, and economic philosophies that have served as the bases of Western civilization and its successes and which have, as a consequence, been adopted around the globe. Lonsdale, in his mid-30s, is an “American entrepreneur and technology investor” and founder of The Cicero Institute, an organization dedicated to encouraging “public-sector entrepreneurship to address America’s most pressing problems.”

I love Lonsdale’s full-throated advocacy for Western principles. Their articulation over three centuries ago by an enlightened “patriarchy” (as today’s social justice warriors might call them) managed to upset an entrenched and rapacious oligarchy, over time lifting whole populations out of subjugation and penury. Ultimately, this upheaval made possible the legal recognition of the same rights for all individuals, regardless of race and gender. Lonsdale’s insistence on the appropriate use of the word “liberal” is refreshing. It should (but won’t) serve as a corrective to the towering ignorance of those who accept “liberalism” when used as a cover for statism.

I’m going to quote “liberally” from Lonsdale’s piece because it speaks so well for itself, but if you’ve made it this far then you should read Lonsdale’s essay in its entirety.

“[John] Locke’s moral insight is ‘liberalism’, a principle of mutual restraint inspired by the inviolable rights of others to design their own lives. Freedom is life in accordance with reason; reason compels us to respect the freedoms of others. By respecting the rights of others, we guarantee our own.

This Enlightenment thinking was put into practice in the Glorious Revolution in 1688 in Britain, and especially in the founding of America, where Locke’s liberalism formed the backbone of the new republic. To be sure, in practice there were deep contradictions—the founders were simultaneously freedom fighters and slave-owners—but the institutional architecture was in place. The West’s new framework of property rights and political freedoms unleashed a surge of creative energy, enabling a three-century miracle of growth, prosperity and unimaginable wonders of innovation.

It didn’t have to happen that way. The natural order of things is for life to be ‘solitary, poor, nasty, brutish and short’ (in the words of Thomas Hobbes, a contemporary of Locke). Western civilisation is a great artifice: a liberal framework that enshrines property rights, allowing us to restrain most forms of tribalism, participate in free markets and prosper by serving others regardless of their identities.

These political rights of treating people equally and letting them get on with their business had a hugely beneficial effect on society and the economy. Consider that historically speaking, it is actually unnatural for the best ideas to dominate and spread, thus allowing entrepreneurs to displace incumbent, vested interests. More common is for force or hierarchy, not the meritocracy of ideas, to win. However, the West established a cultural and legal environment where a competition of clever ideas and activities could flourish. 

Lonsdale offers several examples of the malignant effects of forsaking these Western ideals. The hallmark of all these failures is an abandonment of the individual as the true and natural rights-holder and productive force. Here are Lonsdale’s  closing paragraphs:

As pre-Enlightenment modes of value-signaling, tribalism and power-politics come to the fore on campus and social media, we must reaffirm our commitment to Western liberal values by actually putting them into practice. Only a rational order which enshrines individual rights to person and property, and expands opportunities for all, will create the stability and economic progress necessary to quell populist discontent.  

Unsurprisingly the anti-liberal, top-down parts of our society are experiencing cost-disease and decay. The West enabled a market order where the best ideas win, no matter whose idea it was. We need to remind ourselves of how unusual the miracle of our political economy is and enact its lessons. Only then can we save the concept of ‘Western civilisation’ and spread its benefits of freedom and prosperity—not just for people in the West, but for everyone.”

Right-to-Work Promotes Employment, Wage Growth

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The economic evidence is quite clear that state right-to-work (RtW) laws do not reduce wages, though a few seem desperate to convince us otherwise. In fact, RtW has proven to be an unambiguous economic tonic for states that have enacted such laws (though perhaps not for union lobbyists). Note that this has nothing to do with comparisons of nominal wage levels in RtW vs. non-RtW states, as organizations like the left-wing Economic Policy Institute (EPI) are wont to make. Adjusting for the cost of living often shows a different result. Either way, the recency of RTW laws in many states means that those differences tend to be legacy effects and are not useful as a gauge of the incremental impact of RtW laws.

It’s no coincidence that RtW laws have gained favor as a mechanism for encouraging economic growth in historically low-wage states. The efforts have been largely successful. Jeffrey Eisenach reported the following findings in 2015:

  • RTW laws directly affect economic performance through their impact on business location decisions, especially in heavily unionized industries such as manufacturing. Other things being equal, businesses are more likely to locate in states with RTW laws. There is also evidence that RTW laws have a direct, positive effect on employment, output, and personal income.
  • RTW laws do not lead to lower average wages in either unionized or non-unionized industries. There is some evidence that the long-run effect of RTW laws is to raise wage rates as a result of increased productivity.
  • RTW laws also affect economic performance indirectly through lower rates of union density. The weight of the evidence indicates that lower union density is associated with higher levels of employment, increased investment and R&D spending, and increased innovation.”

Mark Mix reports similar evidence, including more rapid employment growth and larger wage gains in RtW states. And James Sherk addresses some of the myths surrounding RtW, including the misleading narrative that RtW reduces wages and that RtW is unpopular among the American public. Indeed, Sherk quotes a Gallup poll finding that Americans support right-to-work laws by more than a 3 to 1 margin, though it’s not clear how well the average American understands the issue.

A disturbing aspect of the opposition to RtW is an effort to disparage the business community by characterizing private enterprise as exploitative. I leave you with some wisdom from Bran Caplan on that point (HT: Don Boudreaux):

Businesses produce and deliver virtually all of the wonderful, affordable products that we enjoy. Contrary to millennia of economic illiterates, businesses rarely do so by ‘exploiting’ their workers. Instead, businesses provide gentle but much-needed leadership. Left to our own economic devices, most of us are virtually useless; we don’t know how to produce much, and we don’t know how to find customers.  Businesspeople solve these problems: They recruit workers, organize them to vastly raise their productivity, then put these products in the hands of customers all over the world. Yes, they’re largely in it for the money; but – unlike every government on Earth – business rarely puts a gun to your head. Businesses assemble teams of volunteers to meet the needs of willing consumers – and succeed wildly.” (emphasis Caplan’s)

Perspective on U.S. Health Care Spending & Outcomes

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The U.S. spends a lot on health care, and our health care system is frequently criticized for poor health outcomes. The chart below is an example of evidence used to buttress this argument. It shows combinations of health care spending and life expectancy over time for the OECD countries. The U.S. appears to be a severe outlier and inferior to the other countries. A variation on this chart appeared on the home page of The Wall Street Journal this week. It accompanied (but was not part of) a good article by Joseph Walker in which he used 12 other charts in an effort to explain why the U.S. spends so much on health care. (Sorry, this link is probably gated.) Walker discusses several important cost factors, including third-party payments, tax treatment, and the deployment of expensive technology in the U.S. However, the claim that the U.S. is really an outlier is worth examining on other grounds.

The chart’s construction suggests that a reliable link should exist between health care spending and life expectancy, but there are several reasons to question whether that is the case. U.S. life expectancy has been held down historically by high rates of smoking, but reduced smoking rates should help moderate the U.S. life expectancy gap in coming years. Obesity in the U.S. is a more persistent problem, especially for the poor, and an even bigger contributor to low U.S. life expectancy than smoking at present. (See this report for evidence on the contributions of smoking and obesity to shorter life expectancy for older adults.) Other contributors to low life expectancy in the U.S. include high motor-vehicle deaths and homicides, the latter attributable in large part to the war on drugs. All of these factors contribute to higher health care spending and directly reduce life expectancy.

The status of the U.S. as an outlier in terms of health care spending is questioned on the Random Critical Analysis blog (RCA). The author’s detailed analysis includes the following points among many others of interest:

  • Health care is a superior good: as income rises, spending on health care rises faster;
  • The U.S. has a much higher standard of living than any of its peer nations;
  • U.S. consumption spending relative to GDP is an “outlier”, like health care spending relative to GDP;
  • Consumption is a stronger predictor of health care spending than income;
  • Relative to consumption, health care spending in the U.S. is not an outlier, nor is spending on pharmaceuticals, physician/nursing compensation, and the levels of health price indices.

Take a look at the following sequence from the RCA blog linked above (the animation might not be visible on a phone):

So the argument that the U.S. health care system is inferior to peer countries based on cross-county spending comparisons and life expectancy, to the extent that it holds up at all, is subject to strong qualifications. Inferior lifestyle choices, diets, and lack of exercise might be problematic in the U.S., but the healthcare system cannot be faulted based on spending levels relative to other OECD countries.

In fact, the superiority of the U.S. health care system in many areas is not even in dispute. As Mahdi Barakat points out, wait times for care, cancer survival rates, and stroke mortality are all clearly better in the U.S. than in many peer countries:

Lives are indeed saved by the many types of superior medical outcomes that are often unique to the US. This is not to mention the innumerable lives saved each year around the world due to medical innovations that are made possible through vibrant US markets.”

Barakat compares dubious progressive claims that up to 45,000 American lives are lost each year due to a lack of insurance with the likely incremental lives lost if various performance measures in the U.S. were equivalent to those in other countries:

  • 25,000 additional female deaths per year with Canada’a wait times for care (no estimate for additional male deaths is given by Mahdi’s source);
  • 64,000 additional stroke deaths each year with the UK’s overall stroke mortality;
  • 72,000 additional cancer deaths each year with the UKs survival rates.

Theoretically, the national spending figures could be adjusted for the cost of queuing, i.e. wait times. While Obamacare certainly increased wait times in the U.S., the adjustment would likely reduce or eliminate the spending advantages that several OECD countries appear to have over the U.S.

The performance of health care systems in many countries with single-payer systems or universal care is subject to challenge, as some of the statistics offered by Barakat demonstrate. In “The Truth About SwedenCare“, Klaus Bernpaintner expresses his dismay at the romanticized view of health care in Sweden among so many Americans. His effort to convey the truth about Sweden’s stultifying health care bureaucracy is illuminating. There are few private physician practices in Sweden. Care is generally rationed and waits are lengthy, and it is delivered by disinterested, centrally-assigned providers.

For non-emergency cases in Sweden, you must go to the public ‘Healthcare Central.’ This is always the starting point for anything from the common flu to brain tumors. You must go to your assigned Central, according to your healthcare district. Admission is by appointment only. Usually they have a 30-minute window every morning, when you call to claim one of the budgeted slots. Make sure to call early or they run out. Rarely will you get an appointment for the same day. You will be assigned a general practitioner, probably one you have never met before; likely one who does not speak fluent Swedish; and very likely one who hates his job. If you have a serious condition, you will be started on a path of referrals to experts. This process can take months.”

Bernpaintner calls this Sweden’s health care “bread line”, where people go to die. He mentions several other nightmarish features of health care in Sweden that Americans should hope to avoid. In particular, we should resist calls for a single-payer system, like Bernie Sanders’ Medicare-For-All proposal. An analysis by Charles Blahous of the Mercatus Center at George Mason University has shown that it would increase federal spending by $32.6 trillion over ten years. This estimate is basically in-line with others mentioned by Blahous. Much of the additional federal spending would represent a transition away from private spending, a process that would be massively disruptive. However, the study gives the plan the benefit of several doubts by accepting the assumptions made by Sanders: 1) a huge saving in prescription drug costs; 2) a huge saving in administrative costs; 3) providers will happily accept Medicare reimbursement levels; and 4) new immigrants will not be attracted by an essentially free health care program. Fat chance. But given all of these questionable assumptions, total health care spending would fall even as the government takes on the massive new outlays. Take away just fantasy #3 and total national health care spending would rise, a swing of $700 billion by 2031.

John Cochrane makes a useful distinction between two conceptions of universally-accessible coverage: one that all must use vs. one that all can use. (He calls them both forms of single-payer systems, though that usage sounds a bit awkward to me.) The voluntary form is preferable for several reasons: it can preserve choice in terms of coverage and providers; while the public-payer’s share must be funded, it demands little or nothing in the way of cross-subsidized pricing; and it does not imply that government must act as a single “price setter”. Cochrane warns of the possible consequences of a universally-mandated single payer:

Not only is there some sort of single easy to access health care and insurance scheme for poor or unfortunate people, but you and I are forbidden to escape it, to have private doctors, private hospitals, or private insurance outside the scheme. Doctors are forbidden to have private cash paying customers. That truly is a nightmare, and it will mean the allocation of good medical care by connections and bribes.”

The presumption that universal health care will improve quality and save lives is unsupported by any real evidence. Its proponents incorrectly assume that the uninsured do not get care at all. Providers might go uncompensated, but the uninsured can often get needed care with more immediacy than they could with the lengthy wait times typical of many single-payer systems. The quality of care is likely to deteriorate under a single-payer system given the stresses placed on providers, the highly regulated conditions under which they would be forced to operate, and restricted treatment options. And of course a single-payer system would suspend the price mechanism and any semblance of competition in the health care marketplace.

The health care system in the U.S. has massive problems, but they were created and exacerbated by a series of governmental intrusions on the marketplace over many years. A flourishing market requires choice for consumers and competition between providers—in both health care delivery and insurance coverage. It also requires a roll-back of regulation on providers and insurers. But as Cochrane emphasizes, such a marketplace can exist apart from a voluntary, tax-funded payer-of-last-resort.

Right-To-Work Prop A: Freedom of Speech, Association and Contract

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I’d be angry if my employer forced me to contribute to the company’s Political Action Committee (PAC), and that view is shared by many of my colleagues. It would be illegal, of course, at least as a condition of employment. I love my job, but I give nothing to the PAC because I do not trust it to properly represent my political preferences. That goes for political contributions and lobbying activity that might benefit the company and, by extension, my own economic interests. I simply do not believe the company will refrain from corporatist practices, and I do not under any circumstances want my contributions lavished on politicians with whom I have policy differences.

In my home state of Missouri, unions and their political allies insist that union dues payments should be a condition of employment in unionized workplaces. Like PACs, unions are major political contributors, and I’d be surprised if there weren’t a large number of union members who object to the use of their dues for political contributions and activism. Of course, most of that activism is broadly anti-capitalist. This, quite simply, constitutes compelled speech and is a violation of employees’ First Amendment free-speech rights. Forced membership is a violation of the worker’s freedom of association under the Fourteenth Amendment.

Unions are also presumed to represent the interests of workers in negotiating with management, but not everyone wants that representation, especially given the corruption that has often plagued unions over the years and the poor economic performance of unionized industries in general. That last statement applies to public employee unions no less than private sector unions. Prohibiting non-union workers from employment at a unionized firm violates their freedom of contract under the Fifth and Fourteenth Amendments. I agree, however, that an employee refusing to join a union should not automatically be entitled to the wages and benefits negotiated by the union in collective bargaining with the employer. That should be strictly between the non-union employee and the firm.

Missouri Proposition A, which is on the state’s August 7 ballot, is a referendum on a right-to-work (RtW) law already passed by the general assembly and signed by the governor last year. I’ve discussed reasons why some libertarians have expressed disagreement with this kind of legislation—primarily because it denies an employer the right to hire workers exclusively from a unionized pool of labor. As Daniel J. Mitchell has noted, right-to-work laws are a second-best, compensatory solution to other forms of government intervention in labor markets that essentially grant unions monopsony privileges. Furthermore, giving primacy to an employer’s right to deal exclusively with a union ignores the rights of non-union workers and the rights of union members who do not wish to contribute to a union’s political activities. Trampling on the latter stands in contrast to the established protection of my rights against coerced contributions to my employer’s PAC.

The standard economic argument in favor of RtW laws hinges on the favorability of a state’s business environment and its competitiveness with other states. Andrew Wilson explains how and why Prop A will create jobs in Missouri. He notes that over the ten years ending in 2014:

“…average job growth in the 22 states with RTW laws in place for most or all of that time was more than twice as fast (at 9.1 percent) as in the 28 forced-union states. The RTW states also had considerably faster growth in personal income (at 54.7 percent compared to 43.5 percent) and a much stronger economic growth (50.7 percent compared to 38.0 percent).”

Wilson also remarks on a historical phenomenon which pro-union forces refuse to acknowledge: unions have undermined the competitive position of the industries upon which their members rely. It’s a classic principal-agent problem. Workers appoint an agent for representation, but the agent acts independently to maximize its own gains, often at the expense of the workers. RtW applies discipline to the process, reinforcing the union’s incentive to put members’ interests above of its own. After all, nearly all employers have to compete for workers, and private employers have to compete in product markets. Union workers have been exempt from competition only to the extent that their wage demands have not undermined the business’ competitive position, but they frequently have.

The real rub, according to RtW opponents, is that business interests will simply “crush” unions under RtW and impose lower wages and poor work conditions on workers. But as I alluded above, there are employers that prefer to work with a union for a variety of reasons. Second, suppose that new employees of a unionized firm refuse to join the union, or that some union members opt out. That’s a pretty strong indication that union membership is an unattractive proposition. Whose fault is that?

I favor Proposition A because workers should not be forced to accept representation by any third party, firms should not be forced to hire exclusively from those willing to do so, and because workers should not be required to contribute to union political initiatives. But as Steve Spellman writes, unions could do much to enhance their value to both workers and firms, attracting membership and gaining advantages in bargaining with employers:

If unions focused on providing helpful, outsourced H.R. functions to companies, such as worker recruitment, drug screening and taking care of all that labor-law-compliance paperwork, it would sure change their reputation. As would standing up for its members, while also taking necessary (and fair) disciplinary actions instead of covering up for the occasional bad apple (even if that is only one worker out of 1,000). … If we can dream a little here, unions could also be best positioned to stand up for workers who are discriminated against, for whatever reason, rather than waiting on the law to catch up with our evolving society.”

Science of the Spurious: Global Warming and Suicide

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The latest entry in the scare-mongering literature of global warming, published this month in Nature, purports to show that warming will lead to more suicides! I’m not sure whether these researchers deserve an award for naiveté or cynicism, but they should get one or the other. The lead author is listed as Marshall Burke of Stanford University.

The basic finding of their research is that an increase in average monthly temperature of one degree Celsius (1.8 degrees Fahrenheit) increases the monthly suicide rate by 0.68% (or 0.42% when accounting for the previous month’s temperature as well). They might have used the preferred verbiage “is associated with”, rather than “increases”, because they surely know that correlation is not the same as causation, but perhaps they wished to impress the news media. Let’s put their result in perspective: the annual U.S. suicide rate per 100,000 persons was 11.64 over the years 1968-2004 in their sample. A 0.68% increase in the suicide rate would have brought that up to roughly 11.72. Of course, the average U.S. surface temperature did NOT increase by 1 degree Celsius over that period — it was about half that, and temperatures have been relatively flat since then.

The real problem here is that most of the variation in temperatures across the sample used by Burke and his co-authors is seasonal and geographical. While they claim to have accounted for such confounding influences using non-parametric controls, they give few specifics, so I am unconvinced. It has long been known that suicides tend to be seasonal and are higher in the warmer months of the year. The reasons cited vary, including a boost provided by warmth in the energy needed to execute a suicide plan, “inflammatory chain reactions” from high pollen counts, seasonal peaks in bipolar disorder, and stress from greater social interactions during warm weather. These are seasonal phenomena that are not even incidental to the question at hand. And let’s face it: if warmer weather gives you the energy to kill yourself, the temperature is probably not the problem.

The authors also report a positive “effect” of temperatures on suicides using annual data, but with a rather large variance. This result probably captures geographical variation in suicide rates, though again, the authors claim to have made adjustments. Southern states tend have high suicide rates, but no one has suggested that warm, southern climates are to blame. Instead, there are other socioeconomic factors that probably account for this regional variation. I suspect that this is another source of the correlation the authors use to project forward as a likely impact of global warming. (While the inter-mountain West tends to have high suicide rates relative to other regions, many of those states are lightly populated, so they would receive low weights in any analysis of the kind discussed here.)

Finally, the trend toward slightly warmer temperatures between 1968 and the late 1990s was spurred largely by a series of strong El Nino events, especially in 1997-98. Suicide rates in the U.S., on the other hand, reached a high in the mid-1970s, ran slightly lower until hitting another peak in the mid-1980s, and then tapered through the late 1990s even as temperatures spiked. Since 1998, suicides have trended up as temperature trends flattened during the so-called “global warming hiatus”, which is ongoing. This sequence not only contradicts the authors narrative; it reinforces the fact that the variation exploited in the samples may well be seasonal and geographical, and not related to climate trends.

An issue over which Burke, et al demonstrate no awareness is the exaggerated statistical significance of meaningless effects in very large samples. This has been called the “p-value problem” because large samples can lead to vanishingly small p-values (which measure statistical significance). In a very large sample, any small difference may appear to be statistically significant. It’s a well-known pitfall in empirical work. A suicide is what’s known in the statistical literature as a “rare event”, given it’s annual incidence of about 0.01% of the population. I submit that the estimated impact of a 1% change in that rate, a change of 0.0001%, is well-nigh meaningless.

But the authors, undaunted, do their very best to make it seem meaningful. First, they pick a sub-sample that yields a somewhat higher estimated effect. Then they apply it to a future climate change scenario that is considered extreme and “extremely unlikely”, by climate researchers. They calculate the cumulative increase in suicides implied by that estimate out to 2050 — 32 years — for the U.S. and Mexico combined: about 22,000 extra suicides (they give a confidence interval of 9,000 to 39,000). That would be a lot, of course, but aggregating over many years using a high-end estimate and an extreme scenario can make an otherwise tiny effect appear large. And remember, their confidence interval is tightened considerably via the use of many observations on essentially irrelevant seasonal and geographic variation.

Burke and his co-authors have succeeded in publishing a piece of research that is not just flimsy, but that they apply in a way that is grossly misleading. They made it as ripe and plump as possible for promotion by the news media, which seems to love a great scare story. I might just as easily claim that as declines in income are associated with higher suicides, efforts at carbon mitigation requiring high taxes and punitive consumer rates for electric power will lead to an increase in suicides. And I could “prove” it with statistics. Then we would have a double-warming whammy! But I have a better idea: let’s expose bad research for what it is, and that includes just about all of the literature that warns of catastrophe from global warming.

Deceits of the Climate Claimants

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Well-meaning souls innocently parrot the global warming narrative but generally know little of the controversies surrounding its validation, or lack thereof. That includes much of the mainstream media. Every warm day is evidence of global warming. Every cold day is evidence of extreme volatility brought on by climate change. Every big storm, every forest fire, and every endangered species is attributed to warming. The poles are melting, the sea is rising, the sky is falling, and it is mostly bullshit. But in the meantime, the mythology of global warming has become an all-purpose cudgel for state oversight and “redistributive justice”, primarily to the benefit of the “climate change industrial complex. The myths are repeated so frequently that many accept them as facts. Here, I list a few of these myths along with information that should give pause to anyone tempted to take them too seriously.

The science is settled: There are a number of great scientists who dispute the global warming narrative (and see here). But a few studies have claimed incredibly widespread consensus (97%) among scientists that mankind drives climate change. These studies are generally plagued by biased samples of scientists (sometimes including non-scientists), faulty selection and classification of paper abstracts, and direct involvement of climate activists in the research process. These studies tend to present the “consensus” as one side of a stark dichotomy, with no nuance or middle ground for those subscribing to anything less than the inevitability of a warming catastrophe.

Record high temperatures: The temperatures that are almost always reported are surface temperatures that are subject to extreme bias. The most drastic bias is caused by increasing urbanization. Urban weather instruments are often sited in areas with an increasing amount of impervious ground cover, which absorbs sunlight and heat, leading to the so-called “urban heat-island effect”. This has imparted an upward trend in urban temperature readings. Moreover, urban temperature readings tend to be over-sampled in estimates of global surface temperatures, reinforcing the distortions in measured warming.

Melting poles: Arctic sea ice extent has been in modest retreat since 1980, when satellite measurement began to allow more accurate readings. The Antarctic, however, has shown a trend in the other direction, as shown in this piece by Judith Curry. In the same article, Curry shows that specific Arctic locations had less sea ice 6,000 to 8,000 years ago than today. For more complete information on satellite-era trends in sea ice extent, see this informative reference page (scroll way down for Antarctic information). Looks like Al Gore’s dire prediction that the poles would melt by 2007 was just a little off target.

Polar bear extinction: We are constantly seeing warnings of polar bear extinction on social media. Memes feature desperate-looking bears stranded on ice floes, drifting away from their cubs. Perhaps you aren’t supposed to know that polar bears are extremely strong swimmers. Or that the polar bear population is been thriving, increasing by an estimated 10-20% since 2001. So whether or not the past few decades have seen a decline in sea ice, the bears seem be doing just fine.

Rising sea levels: The rate of increase in sea levels over the past 8,000 years has been vey slow relative to the 10,000 years prior to that, when they rose at rates of up to 5.5 meters per century. That compares to recent rates of about one foot per century. Predictions that islands in the Pacific would be swallowed by the seas have not come to pass. In fact, satellite images show that more of the world’s sandy shorelines accreted than receded between 1984 and 2016, This does not appear to be a crisis by any means.

Increasing storms: No, the frequency and intensity of tropical cyclone activity has decreased since 1900, a trend that has continued unabated over the past 20 years. I know of at least one study suggesting otherwise, but it is based purely on modeled relationships, not hard data, and not tested against data. The frequency and intensity of droughts and floods has been flat to declining as well. And while more weak tornadoes are detected today than in the past, the frequency of moderate to strong tornadoes has decreased over the past 45 years.

Desertification: Increases in carbon concentration have not been associated with desertification, as the media seem to have concluded. As noted above, the frequency of drought has been steady to declining. In fact, precipitation data suggests that patterns of variability in rainfall do not square with the predictions of climate models. In fact, the world has seen an increase in green vegetation since 1985, even in arid regions.

Ocean acidification: The reported declines in ocean pH levels over the past few centuries are actually smaller than the normal seasonal variation in pH levels. The presumed negative impact on sea life appears, after all, to be minimal to nonexistent (see the same link).

Higher alpine tree lines: We’ve been waiting. It hasn’t happened, but that hasn’t stopped some activists from stating it as established fact.

Armadillo northward migration: I’ve heard this cited as “proof” of global warming. The range of armadillos extended as far north as southern Missouri and Kansas in the early 1970s, so this isn’t new. In fact, armadillos began their migration northward into the U.S. before the mid-1800s. Some biologists have attributed the migration to warming but acknowledge many other reasons, including more forested habitat in the north and factors such as movement of cattle by rail. Armadillos burrow and are able to keep warm underground in the winter. Of course, a series of warm winters can bring them further north along with other species, but a few cold winters can take a toll on the population and push them south again.

U.S. carbon criminality: U.S. CO2 emissions have been in almost steady decline on a per capita basis for at least seven decades, long before the carbon freak-out began. The declines have resulted largely from the normal market process of competitive efficiency in production. China leads the world in total annual CO2 emissions by a wide margin, about 80% ahead of the U.S. in 2017. Total U.S. emissions actually declined in 2017 for the third straight year, while emissions in China, the EU, and for the world all increased. In fact, China was actually in compliance with its pledge under the Paris Accord despite the increase, so the pledge was not especially ambitious.

High social cost of carbon: The estimates used by the Environmental Protection Agency are plagued by poor methodology and are subject to great uncertainty. Some studies rely on a series of tenuous causal links, such as CO2 emissions to global temperatures to ice melt to sea level to real dollars of coastal damage many years hence, all without considering variances at each stage, and assuming zero effort to adapt or mitigate damages over long time frames. A shortcut approach relies on historical correlations between temperatures and such measures as heat-related deaths, labor productivity and real output. These estimates extrapolate old relationships to the distant future and ignore the very real human tendency to adapt. The underlying assumptions are undercut by such basic facts as ongoing migration to warmer regions. The estimates also fail to account for the likelihood that warmer weather will improve agricultural productivity.

The public’s interest in climate change has waned, and no wonder: sensible people do not buy hype and demands for sacrifice in the face of contradictory evidence. Revelations of statistical fraud have led to even more skepticism. And when your “proof” is founded on model extrapolation, often theoretically-based rather than empirically-based, you’re skating on thin scientific ice. At this link, Steven Hayward has an interesting take on the public’s increasingly jaundiced view of global warming activism:

“Scientists who are genuinely worried about the potential for catastrophic climate change ought to be the most outraged at how the left politicized the issue and how the international policy community narrowed the range of acceptable responses. Treating climate change as a planet-scale problem that could be solved only by an international regulatory scheme transformed the issue into a political creed for committed believers. Causes that live by politics, die by politics.”

Pruitt Out At EPA; So Is Eco-Absolutism

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Green munchkins celebrated the fall of a house of cronyism earlier this month when it crashed right on top of EPA chief Scott Pruitt. Not that the Environmental Protection Agency has ever been free of cronyism and wicked warlocks, but Pruitt stumbled into an awkward appearance of coziness with industry representatives and was seemingly too fond of his expense account. The munchkins, however, will be sorely disappointed to learn that Andrew Wheeler, Pruitt’s replacement on at least an interim basis, will press forward with the same deregulatory agenda. They might imagine Wheeler as the surviving Warlock of the West, but the munchkins are incapable of understanding the deeper nature of wickedness at the EPA.

The agency took an expansive role during the Obama Administration (see this note on “environmental justice”, and this on the use of the “social cost of carbon” in rulemaking, and this on water regulation). Aggressive action was directed at emissions of carbon, a trace greenhouse gas (four parts per 10,000), but one that is necessary for life. In 2009, the EPA reached its “endangerment finding” that greenhouse gases, including carbon, pose a threat to humanity that must be addressed under the powers conferred upon the agency by the Clean Air Act. The Obama Administration viewed this finding as a regulatory carte blanche, ushering in a series of draconian, high-cost measures to reduce U.S. carbon emissions. Unfortunately, the environmental lobby is notorious for its inability to see beyond first-order effects. It cannot come to grips with the fact that green policies often waste more resources than they save, undermine the economy, infringe on liberty, and have their greatest negative impact on the poor.

President Obama also pushed for American participation in the Paris Climate Accord, which would have required transfers of billions of dollars of wealth to the often-corrupt governments of less developed countries for alternative energy projects. Beyond green energy objectives, this was presumably restitution for our past carbon sins. Whatever shortcomings Pruitt might have had, I valued his leadership in opposition to the Paris Accord and his role in dismantling the EPA’s overzealous regulatory model.

Pruitt might have earned praise from the green lobby in at least one area. He placed particular emphasis on streamlining Superfund site remediation, including a radioactive waste site in the St. Louis area. It is one of the so-called “top-10” sites that have been given high priority by the EPA. But there are 1,300 Superfund sites across the country, so Andrew Wheeler will have to be creative to succeed with more than just a few of these cleanups.

Ledyard King discusses the likely course of Scott Pruitt’s legacy under Wheeler, including continued opposition to the Paris Accord, reversing or deemphasizing renewable power mandates, reduced staffing and fewer enforcement actions. The Clean Power Plan is slated for replacement with rules that are not prohibitive to coal-fired power. Emissions from coal-burning are already heavily regulated, and CO2 and its unproven harms do not offer a valid pretext for a wholesale shutdown of the coal industry. Actions under the endangerment finding, if there are any, are likely to be more circumspect going forward. However, there are disconcerting reports that the Trump Administration may seek to subsidize or protect coal interests from more cost-effective alternatives, like natural gas.

According to King, Wheeler will continue Pruitt’s effort to balance representation on EPA advisory boards between academicians and business and state interests, include more geographic diversity on these boards, and end grant awards to members. Wheeler will continue to push for EPA rule-making based on fully-transparent science, rather than studies relying on private data. There are also likely to be efforts to stop “sue-and-settle” actions used by partisans to gain court-ordered consent decrees, which subvert public participation in the regulatory process.

The endangerment finding combined with the dubious and notoriously uncertain “social cost of carbon” gave EPA regulators almost unbridled power to control private activity. This ranged from questionable efficiency standards, uneconomic mandates on energy sources, and prohibitive emissions standards. The EPA also promulgated an expansive definition of “navigable waters” as an excuse to regulate virtually any puddle, or sometimes puddle, as wetland under the Clean Water Act. This overzealousness is a consequence of over-application of the precautionary principle, under which any prospective risk to humanity or the environment provides a rationale for regulation, taxation, or prohibition of an activity. It is also a consequence of refusing to recognize that government regulation, when it offers any benefit, has diminishing returns. The compliance costs of EPA regulations have been estimated to exceed $350 billion annually, a substantial impediment to economic growth that imposes cruel penalties on business, workers, and consumers. It is all the worse that these effects are strongly regressive in their impacts across income levels. Scott Pruitt may have been his own worst enemy, but his departure at this point might well advance the much-needed deregulatory agenda, as it is now that it is in the competent hands of Andrew Wheeler.

Monstrous Mathematics: Selling Abortion As Fiscal Austerity

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The pro-choice Left says, “Massive welfare benefits will be necessary to support the babies you’d force women to carry to term.” The remark is viewed as an argument clincher among pro-choicers, but it’s not a persuasive defense of abortion rights. In fact, it’s quite beside the point: human lives are at stake. The “welfare defense” suggests that there must be a valid tradeoff between public aid and lives that can otherwise be saved. Or indeed, between publicly-funded abortions and future public aid. By that logic, perhaps EMS service should be suspended in impoverished neighborhoods so that welfare payments might be reduced. These kinds of monstrous tradeoffs are not remotely on the table.

(The commentary that follows does not pertain to abortions that might be necessary to preserve a woman’s life or health, or in the case of pregnancies caused by rape.)

An operative assumption underlying the left’s suggestion is that additional…

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