Relevant and even prescient commentary on news, politics and the economy.

Another Update

In an update of his own, Instapundit references an article by a former student, Jennifer Niles Coffin, that discusses the mall free speech issue in great detail. For example,

There is no consistent rationale behind the decisions that grant free speech protections to the visitors of shopping malls. The Colorado Supreme Court found sufficient entanglement with the government to support a finding of state action. The Oregon court based its decision on the initiative and referendum powers reserved to Oregon citizens in the state constitution. The California and New Jersey courts balanced the property rights of mall owners against the free speech protections of the state constitution and held that the right of citizens to engage in free expression outweighed the property interest of the mall owners. Both courts dispensed with the traditional state action requirement in that context. The New Jersey court also noted the “affirmative right” granted by the free speech provision of the New Jersey Constitution. Interestingly, the language of New Jersey’s free speech provision is nearly identical to that of states in which the courts have refused to extend free speech protection in shopping malls.

However, most of these cases involve petition drives, or protests–things that seem more likely to disrupt commerce than wearing a shirt.

What makes a shirt different? Again, this is from a layperson, but Title II of the Civil Rights Act might. It basically says that if you are open to the public (and the Act gives an expansive definition that surely includes malls), then you can’t discriminate against (or bar, or evict) people on the basis of “race, color, religion, or national origin”, but it doesn’t mention political ideology. So if the shirt said “I’m a Jehova’s Witness and therefore I believe that we should give peace a chance”, then the act seems to apply. But if it just says “Give peace a chance”?? Again, what distinguishes this case from the cases Ms. Coffin discusses is that (based on reports I’ve seen), they were only walking around the mall in their shirts, in the process of shopping. They were not doing anything, such as pamphleteering, petitioning, or protesting, that would interfere with commerce (other than the innate fear of spending money and desire to flee that seeing the phrase “Give Peace A Chance” might induce.)

On one level it’s a silly issue–it’s a T-shirt. But on another it’s fundamentally disconcerting that people would be harassed for something like this. Regardless of your view on the war, here is something worth keeping in mind.


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Are Malls Public Places?

If so, then the Crossgates Mall was clearly in error. Instapundit, (Glenn Reynolds, who of course is an actual law professor, so I’m treading on dangerous ground) says this:

A reader wonders if he’s [the shirt-wearer] got a First Amendment lawsuit. The answer is no, because the mall is a private entity and doesn’t have to observe the First Amendment (he may, however, have an action under New York law or New York’s state constitution).

I am not a lawyer, but I vaguely recalled that issues like this have received considerable attention in the context of limitations on abortion protestors’ free speech rights vs. the right of would-be patrons of abortion clinics to have unfettered access to the clinics, which are, naturally, on private property. So I did a little googling and found a different case entirely, and one that is more on point in the current context: a 1979 decision by the California Supreme Court called Robins v. Pruneyard Shopping Center[23 Cal.3d 899 (1979), aff”d, 447 US 74 (1980)]. There, inter alia, the court ruled that

“to protect free speech and petitioning is a goal that surely matches the protecting of health and safety, the environment, aesthetics, property values and other societal goals that have been held to justify reasonable restrictions on private property rights.”

The California court specifically ruled that malls are “quasi-public” places (Pruneyard is, alas, the name of the shopping mall).

The mall appealed the ruling to the U.S. Supreme Court on 3/18/198, which affirmed the California Supreme Court’s ruling on June 9, 1980 (If you follow the previous link, the “appelants” means the mall). The ruling was issued by (now Chief) Justice Rehnquist. At issue was whether a group of students could solicit signatures to a petition in opposition to a UN resolution, or whether the Pruneyard Mall had the right to evict them “because their activity violated shopping center regulations prohibiting any visitor or tenant from engaging in any publicly expressive activity that is not directly related to the center’s commercial purposes.” The Mall won in District Court, and in California Appelate Court, but lost in the California Supreme Court, leading to the USSC case.

Here are some selected quotes from the Rehnquist-authored USSC ruling.

  • State constitutional provisions, as construed to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the shopping center owner’s property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments.
  • The reasoning in Lloyd Corp. v. Tanner, 407 U.S. 551 – which [447 U.S. 74, 75] held that the First Amendment does not prevent a private shopping center owner from prohibiting the distribution on center premises of handbills unrelated to the center’s operations – does not … limit a State’s authority to exercise its police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the Federal Constitution. And a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.
  • The requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property does not amount to an unconstitutional infringement of appellants’ property rights under the Taking Clause of the Fifth Amendment, appellants having failed to demonstrate that the “right to exclude others” is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a “taking.”
  • The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions. Appellees were orderly, and they limited their activity to the [447 U.S. 74, 84] common areas of the shopping center. In these circumstances, the fact that they may have “physically invaded” appellants’ property cannot be viewed as determinative.
  • We conclude that neither appellants’ federally recognized property rights nor their First Amendment rights have been infringed by the California Supreme Court’s decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants’ property. The judgment of the Supreme Court of California is therefore affirmed.

The last bullet point is important, because what the USSC really says is that it’s ok for the State of California to not let mall owners restrict speech that the mall owners dislike (i.e., they can’t kick out the students if said students are orderly). The ruling does not, however, say that there is an affirmative right to free speech in malls, just that the states are allowed to create such rights if they so choose. Still, the USSC is on record as saying in various ways that malls are semi-public places, which would probably imply that, in spite of Reynolds’ reply to his reader, the shirt-wearers would get past summary judgement if they filed a lawsuit.


P.S. The Oregon Supreme Court in 2000 ruled that malls can ban petitions. Follow the link and scroll down to see that there are a variety of state rulings on this subject, which may mean this issue is ripe for certiorari. On the other hand, this is a case of states differing, not the various Circuit Courts of Appeals differing, so it may just be an “it’s up to the states” issue.

Update: I see that CalPundit beat me to this one, though he gives less detail.

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In the category…

of things that make me angry:

NEW YORK (Reuters) — A lawyer was arrested late Monday and charged with trespassing at a public mall in the state of New York after refusing to take off a T-shirt advocating peace that he had just purchased at the mall.

What did these outrageous shirts say? Some sort of negative and crude remark about Bush/Cheney/Powell/Rumsfeld? “Long live ANSWER”? Nope. It said “Give Peace A Chance”. In this instance, the shirt was newly purchased, but since the phrase dates back to at least the 1960s, this means you can be arrested at a mall for wearing an old T-shirt. Nice.


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Medicare Reform

I’d like to talk about the President’s new Medicare plan, but (from CNN) there’s little in the way of details.

In a major concession to congressional Republicans, Bush did not propose a specific [Medicare Reform] bill, but instead left the details to Congress. Republicans had warned the White House that to commit to specifics at this stage was too politically risky.

That’s a bold move.

On a more serious note, if the drug benefit is made optional, so that seniors can choose either (a) Traditional Medicare without prescription coverage or (b) Managed Medicare with prescription coverage, then seniors will self-select into the plan that is in their best interests. What this means in practical terms is that seniors who need a lot of very expensive drugs will disproportionately choose the second option. This implies that the average cost of prescriptions for seniors who opt (“self-select”) for such coverage will exceed the average cost of prescriptions for Medicare enrollees in the over-65 population. Anticipating this, private firms will have to price this factor into their plan or refuse to participate. This has already emerged as an issue in the “Medicare+Choice” managed Medicare program–many private HMOs rushed to join the new program in 1997 and 1998, only to begin withdrawing over the next few years, citing insufficient premiums from the government.

The general lesson is that people will select into the plan that gives them the greatest benefit. Generally (but not always) a greater benefit comes at greater cost. Don’t be surprised if two things happen. First, the cost of prescription coverage will exceed expectations and second, the savings from letting seniors move into managed care will fall short of expectations. Sure, part of this will be political opportunism (what program isn’t overbudget?), but part will be failure to account for adverse selection.


P.S. Another way to think of adverse selection is as follows: imagine that the cost estimates of adding a Managed Medicare with drug coverage would be accurate if seniors were randomly assigned to the new program or to the traditional one. The actual costs will be higher than this amount because seniors who need a lot of drugs will select the drug coverage option, while seniors who need a lot of surgery will select the traditional option.

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Random Thoughts

* Eric Boehlert’s has an interesting piece on Powell in Salon today, worth watching an ad or subscribing.

* Max Sawicky has a letter to the New York Times by Prof. Gregory Mankiw (incoming CEA chair).

* CalPundit’s has some funny quotes from House Republicans on Bush blaming them for the budget that Bush submitted to Congress not having sufficient anti-terrorism funds.

* Here’s a story that’s been going around on Mankiw–some conservatives fear he’s not sufficiently idealogically committed to tax cuts and deficits as far as the eye can see. Steven Moore penned a disingenuous at best piece for The National Review that included this quote:

The good news is there are a multitude of brilliant supply-side academics [emphasis added] who would be superb chief economists at the White House. I am thinking of talented people like Brian Wesbury of Chicago, Richard Vedder of Ohio University, and David Malpass of Bear Stearns.

Doesn’t it make you think that Wesbury is from the University of Chicago and that Vedder is from Ohio State University? Economists routinely say “she’s at Chicago” or “he’s from Ohio” to refer to these two institutions. The Chicago reference is even more clever because of Chicago’s reputation for being a conservative Economics department (it’s the home of Milton Friedman, after all), so it’s easy to mentally insert “university of” when you read Moore’s almost-surely-intentionally misleading phrase (I am, incomparably, sounding like Bob Somerby). But John Quiggin, a blogger from Down Under, did some homework:

A short Google search reveals all. Not only is David Malpass not an academic, he doesn’t hold an economics qualification of any kind (he has an undergraduate physics degree and an MBA), though this hasn’t stopped him becoming chief economist at Bear Stearns. Wesbury is “Brian Wesbury of Chicago” in the same sense as millions of other people – he works for a bank in Chicago – but at least his undergraduate degree is in economics. On the other hand, Richard Vedder is a genuine but obscure academic, and Ohio University is a real but obscure university (at least in relation to economics).

Brad DeLong has more to say about Steven Moore here (surprisingly, it’s not all positive). And Kieran Healy noticed that NR replaced the phrase “brilliant supply-side academics” with just “brilliant supply-siders”, but didn’t change or clarify the misleading affiliations.


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I caught my first episode of Bill Maher’s new HBO show, Real Time with Bill Maher. It was pretty funny, and Maher did a nice job of making the opportunistic winger David Horowitz look like a fool. I’m not a big fan of having Coulter on (though she is high on entertainment value if you can ignore the fact that some people actually believe her). But Maher (reportedly) told her “You just make shit up, don’t you?” Under the new format, which entails repeatedly using a small set of guests, we can look forward to more of this.

Did you catch Monica Crowley (a Fox Coulter-Clone) argue that Colin Powell reversed his position on using diplomacy with Iraq because he was slighted by the prospect of a French veto? Shouldn’t decisions like war vs. diplomacy be made on something other than ego (I suspect that Monica mischaracterized Powell).

And, I was pleasantly surprised to find that Da Ali G Show was laugh-out-loud-hilarious.


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Rawls, Bailey, Alterman, Progressive Taxation, and the Veil of Ignorance

I gave three takes on Rawls’ Veil of Ignorance here. The concept actually takes thinkers pretty far in terms of evaluating a number of social issues. Is Slavery moral? Circa 1860, if you were going to be placed into a random position in society, you would have about a 10% chance (based on some numbers here) of being a slave. Because virtually everyone would find those odds unacceptable, thinkers operating behind the view of ignorance would reject the institution of slavery. Rawls argues that the people in the original position, behind the veil, would come up with just institutions and practices; because slavery would be rejected from behind the veil, it is therefore unjust. Here’s a pretty easy one to try for yourself: the Taliban system in Afghanistan, circa late 1990s (you have about a 50% chance of being a woman).

Thought processes like these lead to Rawls’ first Principle of Justice: (i) “Each person has an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties of all”. The logic is straightforward and compelling: from behind the veil, you could end up starting anywhere in society; your rights and freedoms should not depend on where you start. But what if we could harm a very small part of society and thereby make everyone else much better off? Rawls would reject this because it would not be “compatible with a similar scheme of liberties of all”. Note that this first principle is basically an equality of opportunity principle—let all start in the same position and each then act in their own interest, letting the cards fall where they may. Alterman writes that thinkers behind the veil would create a social structure that is “equally fair if judged by the person at the bottom as well as the top; the CEO as well as the guy who cleans the toilets. In real-world American politics, this proposition would be considered so utopian as to be laughable.” Upon inspection, this statement is a bit ambiguous.

I doubt that more than a handful of nuts would consider the idea that the CEO and the cleaner of toilets should have the same rights, in the sense of the Constitution and Bill of Rights, utopian. This concept is on the (likely very short) list of things you could get Glenn Reynolds, Atrios, and my grandmother to agree upon. So this reads like Alterman is not just making a statement about liberties, but also about outcomes and income distribution. This is also what The West Wing’s Will Bailey was talking about in the scene I described here.

This redistributive line of reasoning derives from Rawls’ second Principle of Justice (sometimes called “The Difference Principle”:

(ii) “Social and economic inequalities are to satisfy two conditions: they must be

(a) to the greatest benefit of the least advantaged members of society; and

(b) attached to offices and positions open to all under conditions of fair equality of opportunity”

So, for example, it’s ok that doctors make a lot more than cleaners of toilets, because this inequality leads more people into medicine, and they then help people, including the “least advantaged members of society”. But Rawls took this much farther and went on to argue strongly in favor income redistribution. This is the “maxi-min” principle: designers operating behind the veil of ignorance would construct a society to maximize the minimum level of welfare in society. While redistributing income downwards does not necessarily lower average income (think of schools and roads), assume for the moment that it does (it surely does after some point). How much income should we redistribute? Rawls argued that we should continue to redistribute income up to the point where it no longer improves the well-being of the least advantaged members of society.

So Will Bailey’s proposal to increase the marginal tax rate on the “Uber-Wealthy” from 36% to 37% (to finance college tuition tax credits) is, while Rawlsian in spirit, well short of what Rawls would advocate. Still, as a response to the intern’s question, it does pretty well. Alterman’s “equally fair if judged by the person at the bottom as well as the top; the CEO as well as the guy who cleans the toilets” formulation seems much closer to Rawls’ vision.

The open question is whether people behind the Veil of Ignorance really would choose to structure society in a way to maximize the minimum of well-being. This is a strong statement that is premised on an extremely high degree of risk-aversion in the population—mightn’t people accept a bit of a reduction in the income of the least among us if that risk were accompanied by an increased chance of higher wealth?

More to come, but not much more. Writing on Rawls is much tougher than, say, pointing out that Michael Savage is a jackass.


[Links repaired 3/4/03]

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Slow Post Day

I’m still working on my Rawls follow-up, but in the meantime I do have one thing to point out to my readers: Michael Savage is a jackass.

I guess that makes the decision-makers at MSNBC objectively pro-jackass.


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Cranky Physicist

Robert Park, a Physicist at the University of Maryland, posts/emails on Fridays. Here’s his take on the plans to eliminated the testing requirements for missile defense:


In April 2000, the APS Council stated: “The United States should not make a deployment decision relative to the planned National Missile Defense system unless that system is shown through analysis and intercept tests to be effective against the types of offensive countermeasures that an attacker could reasonably be expected to deploy with its long-range missiles.” In fact, a law designed to prevent deployment of weapon systems that don’t work was passed in 1983 after Ronald Reagan announced his Strategic Defense Initiative. Now the Bush administration is proposing to exempt the Pentagon’s controversial missile defense from testing. The request is in the 2004 budget. I called my friend Puff Panegyric at the Missile Defense Agency. “You’ve got to admit the law makes sense,” I said. “Maybe it did in 1983,” Puff sneered, “but North Korea has made the world a more dangerous place. We don’t have the luxury of waiting until things work. There are leaders of some countries who would like nothing better than to start a war.” “I see your point Puff.”

I strongly recommend Park’s newsletter, which you can read or have emailed to you at


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More Mankiw

Earlier, I gave a piece of advice to Greg Mankiw, incoming chair of the Council of Economic Advisors:

Note: Mankiw has also written a few books, including a Macroeconomics textbook. I advise keeping public pronouncements consistent with theories in the latest editions of those books.

Atrios has the goods on Mankiw’s Principles of Economics. Here’s an excerpt from Atrios’ excerpt:

An example of fad economics occurred in 1980,” Mr. Mankiw wrote, “when a small group of economists advised presidential candidate Ronald Reagan that an across-the-board cut in income tax rates would raise revenue.”

After reviewing the impact of Mr. Reagan’s policies, which included a run of high budget deficits that lasted until the mid-1990’s, Mr. Mankiw wrote that the moral of the experience was that “when politicians rely on the advice of charlatans and cranks, they rarely get the desirable results they anticipate.

In later editions of his textbook, Mr. Mankiw dropped the entire section on “charlatans and cranks” and muted his criticism. But he has not mended his fences with today’s advocates of big new tax cuts.

Now I almost wish I hadn’t said “latest editions”, because this creates some wiggle room for Mankiw to say that the thinking about deficits changed. But in the late 1990s, I can’t think of any new events that would make an economist decide that lowering taxes would increase federal revenue, since the exact opposite had occured (taxes were raised in 1993, the economy boomed, and deficits began shrinking and then turned into surpluses).

Doesn’t the Whitehouse have staffers who can vet for this kind of stuff? I suspect they do, but to find an economist who remained true to Supply Side economics and the Laffer Curve throughout the 1980s and 1990s, the administration would have to go pretty far into the ranks of Republican hack-economists. This would cost the administration much-needed credibility (scroll down to question 10 to see less than half favor Bush’s economic plan and that opposition reached 40%) on the economy.


Still to come: more Rawls, Alterman and Bailey, but as Matthew Yglesias points out, it takes some care and time.


Max Sawicky has another great quote (tying deficits to long term interest rate) from Mankiw’s book here.

Slate’s Daniel Gross also discusses Hubbard and Mankiw here.

And here’s a link to the list of economists opposing Bush’s tax cuts. Even excluding the ten Nobel Laureates, it’s an impressive list.

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