RegState.net

Regulatory Reform

Barak Orbach — Mon, 20 Jun 2011 02:43:57 GMT

June 2011: The Obama Administration launched an unprecedented government-wide review of regulations already on the books. The purpose of the platform is at the very least to create the impression that the review will ensure save money.

President Obama issued Executive Order 13576 that emphasizes CBA principles and reliance on science.

Preemption and Merchants of Morbidity

Barak Orbach — Fri, 31 Dec 2010 00:02:00 GMT

September 22, 2009: NYC Board of Heath issued a resolution to amend Article 181 of the City Health Code. The resolution determined that "[s]moking is the leading cause of preventable death in the United States and in New York City. Up to one half of life-long smokers, depending on age, are expected to die of tobacco related diseases. Smokers who die of tobacco-related diseases lose an average of 14 years of life. Smokers who die of tobacco-related diseases lose an average of 14 years of life."

The resolution therefore amended Article 181 to require points-of-sale of tobacco to "prominently display tobacco health warning and smoking cessation signage produced by the Department."

December 2009: The City Health Commissioner sent letters to Tobacco Retailers, explaining the implications of the new regulation.

The regulatory plan was to post visually deterring posters that will change to maintain the shocking effect.

Tobacco retailers, New York Association of Convenience Stores, Lorillard, Philip Morris USA, and RJ Reynolds challenged the validity of the municipal regulation.

December 29, 2010: Judge Jed Rakoff of the Southern District of New York struck down the amendment to Article 181, holding that "[e]ven merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs." Judge Rakoff granted plaintiffs, the "merchants of morbidity," motion for summary judgment, striking down Article 181.19 of the City Health Code after concluding that the federal Cigarette Labeling and Advertising Act preempted local regulatory schemes.

A poster issued by New York City under Article 181.19:

Ending Don't Ask, Don't Tell

Barak Orbach — Wed, 22 Dec 2010 22:03:00 GMT

The so-called "Don't Ask, Don't Tell" Act (10 U.S.C. § 654) required members of the armed forces who wanted to keep their jobs to conceal non-heterosexual preferences of any kind. This law and its implementing regulations effectively banned expression of sexual preferences and conduct on certain moral grounds. They regulated the entry into the armed forces by forcing suppression of information and conduct.

January 27, 2010: In his first State of the Union Address, the President Obama announced: “This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It’s the right thing to do.”

October 12, 2010: In Log Cabin Republicans v. United States, Judge Virginia Phillips of the Central District Court of California held that the statute was unconstitutional, issuing permanent injunction enjoining the enforcement or application of an Act of Congress known as the “Don’t Ask, Don’t Tell Act."

November 1, 2010: The government argued that the injunction would seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change of policy. The Ninth Circuit granted a request to stay the injunction issued by Judge Phillips.

November 12, 2010: The Supreme Court denied an application to vacate the stay.

November 30, 2010: The Department of Defense issues a comprehensive study of the impacts of repeal, should it occur, of Section 654 of Title 10 of the United States Code, commonly known as the “Don’t Ask, Don’t Tell” law. The study concludes that: "the risks of repeal within warfighting units, while higher than the force generally, remain within acceptable levels when coupled with our recommendations for implementation." Furthermore, the authors of study note that "[t]he general lesson we take from these transformational experiences in history is that in matters of personnel change within the military, predictions and surveys tend to overestimate negative consequences, and underestimate the U.S. military’s ability to adapt and incorporate within its ranks the diversity that is reflective of American society at large."

December 9, 2010: Senate voted 57-40 for S3454 that would repeal the Don't Ask Don't Tell policy, three votes shy of the number needed. Senator John McCain was one of the most vocal opponents to the repeal of the DADT policy.
Shortly after failed S3454 in a procedural vote, Senator Joseph Lieberman introduced S4022 that uses the same language of S3454.

December 15, 2010: HR2965, The Don't Ask Don't Tell Repeal Act of 2010, is introduced and passed by the House 250-175.

December 18, 2010: Senate repeals the DADT

December 22, 2010: President Obama signs Repeals of Don't Ask, Don't Tell.

Cidny McCain participated in a public campaign to repeal the DADT policy with an anti-bullying message.

§ 654. Policy concerning homosexuality in the armed forces
(a) Findings.--Congress makes the following findings:
(1) Section 8 of article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.
(2) There is no constitutional right to serve in the armed forces.
(3) Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.
(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.
(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.
(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.
(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.
(8) Military life is fundamentally different from civilian life in that--
(A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and
(B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.
(9) The standards of conduct for members of the armed forces regulate a member's life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.
(10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.
(11) The pervasive application of the standards of conduct is necessary because members of the armed forces must be ready at all times for worldwide deployment to a combat environment.
(12) The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.
(13) The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.
(14) The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces' high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

(b) Policy.--A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:
(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that--
(A) such conduct is a departure from the member's usual and customary behavior;
(B) such conduct, under all the circumstances, is unlikely to recur;
(C) such conduct was not accomplished by use of force, coercion, or intimidation;
(D) under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
(E) the member does not have a propensity or intent to engage in homosexual acts.
(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
(3) That the member has married or attempted to marry a person known to be of the same biological sex.

(c) Entry standards and documents.--(1) The Secretary of Defense shall ensure that the standards for enlistment and appointment of members of the armed forces reflect the policies set forth in subsection (b).
(2) The documents used to effectuate the enlistment or appointment of a person as a member of the armed forces shall set forth the provisions of subsection (b).
(d) Required briefings.--The briefings that members of the armed forces receive upon entry into the armed forces and periodically thereafter under section 937 of this title (article 137 of the Uniform Code of Military Justice) shall include a detailed explanation of the applicable laws and regulations governing sexual conduct by members of the armed forces, including the policies prescribed under subsection (b).
(e) Rule of construction.--Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that--
(1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and
(2) separation of the member would not be in the best interest of the armed forces.
(f) Definitions.--In this section:
(1) The term “homosexual” means a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the terms “gay” and “lesbian”.
(2) The term “bisexual” means a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual and heterosexual acts.
(3) The term “homosexual act” means--
(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and
(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A).

Justice Breyer on Regulation in Courts

Barak Orbach — Sun, 12 Dec 2010 09:40:00 GMT

December 12, 2010: Justice Stephen Breyer on Fox News

Unlicensed Drivers, Immigration Laws, and Risk

Barak Orbach — Fri, 10 Dec 2010 23:22:00 GMT

Only three states — New Mexico, Utah and Washington — currently issue licenses without proof of legal residence in the United States. Many states have adopted tough new laws to prevent illegal immigrants from driving, while expanding immigration enforcement by the state and local police.

The New York Times' study finds that immigrants who choose to drive in the United States assume substantial legal risks and because they cannot have driver's licenses their risks in accidents are much greater than those of citizens and residents.

Julia Preston and Robert Gebeloff, Unlicensed Drivers Who Risk More Than a Fine, New York Times, December 10, 2010, Page A1.

Trying to Shape Plastic Bag Preferences

Barak Orbach — Wed, 01 Dec 2010 22:35:00 GMT

October 8, 2010: Baltimore Mayor signed into law the Plastic Bag Reduction Program. The City debated for two years various measures intended to reduce the use of plastic bags. One of the proposed measures that failed was plastic bag tax. Unlike many other localities that impose a 5-cent fee per bag, the Baltimore proposed measure was 25 cents (See RegState.net). This proposition was not adopted.

The Baltimore Plastic Bag Reduction Program Ordinance establishes a regulatory framework that mostly attempts to shape consumer preferences.
The ordinance declares its purpose "to reduce the quantity of plastic bags distributed by dealers in Baltimore City and, thereby, reduce the environmental and economic costs of handling plastic in City landfills, stormwater drains, outfalls, and the Inner Harbor."
It specifically provides that "[a]ll dealers, whether of food or other goods, who offer to provide checkout or carryout bags must prominently post at their registers a policy of providing plastic bags only if requested
by the customer."

The regulatory framework that the Ordinance creates intends to encourage consumers to use reusable bags.

The Ordinance is in effect as of December 1, 2010.

Advance Care Planning and Fears

Barak Orbach — Wed, 01 Dec 2010 21:55:00 GMT

Section 1233 of the House Healthcare Bill was sacrificed in the political process in order to reach an agreement over the healthcare reform. Section 1233 intended to offer voluntary "advance care planning consultation" services to assist individuals who confront with difficult decisions regarding end-of-life care. AARP, and quite a few other organizations supported Section 1233 that, among other things, could have saved healthcare costs by helping patients and families choosing the options they preferred.

Section 1233 was sacrificed because opponents of the healthcare reforms presented it as a legislative attempt to "put to death [seniors] by their government."

For example, Representative Virginia Foxx (N.C.):

Sarah Palin and Newt Gingrich made their own contributions:

November 29, 2010: The Obama Administration issued a lengthy Medicare regulation that includes advance care planning consultation. The regulation defines "voluntary advance care planning" as "verbal or written information regarding the following areas: (i) An individual's ability to prepare an advance directive in the case where an injury or illness causes the individual to be unable to make health care decisions. (ii) Whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive."

Private Lawmakers, Federal Regulation, and Guns

Barak Orbach — Thu, 18 Nov 2010 00:58:00 GMT

A paper I wrote with two of my students, Kathleen Callahan and Lisa Lindemenn, studies how private lawmakers play use states to influence federal policies.

The paper uses the Firearms Freedom Act Movement as a case study. As the paper shows, between January 2009 and March 2010, almost identical Firearms Freedom Act bills were introduced in 27 states. Nine State Legislatures endorsed the bills and they became laws in eight states. In Oklahoma, the bill was vetoed.

Source: Orbach, Callahan & Lindemenn, Arming States' Rights, Arizona Law Review (2010)

This paper provides an initial account of a strategic apparatus crafted by private lawmakers to influence federal policy. The “battering ram strategy” employs the legal powers of states and localities to challenge and weaken federal laws. Recently, a specific weapon, the “Commerce Battering Ram,” has developed to challenge current Commerce Clause jurisprudence, using the heft of the Tenth Amendment and numerous state legislatures to propel its argument forward. The weapon’s strength is augmented by the ability of private lawmakers, facilitated by Citizens United, to stack state legislatures with senators and representatives who are sympathetic to their goals. The Essay documents the core of a particular Commerce Battering Ram, the Firearms Freedom Act movement, which has proliferated and armed other Tenth Amendment platforms with a similar formula for challenging federal laws. This formula was drafted and promoted by a private citizen with a specific gun rights agenda. State legislators have enacted and cloned the formula, and its model has been adopted to challenge federal law in other regulatory domains, most notably healthcare reform. The compounding effect of these Commerce Battering Rams has not been studied. However, if their proponents—largely members of the Tea Party movement—are successful in their attempt to break through the walls of federal law, the result may have an enormous unintended impact on the American people.

Barak Orbach, Kathleen Callahan & Lisa Lindemenn, Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy, Arizona Law Review (2010).

Graphic Tobacco Warnings

Barak Orbach — Sat, 13 Nov 2010 04:41:00 GMT

November 10, 2010: The FDA announces new, evidence-based tobacco control initiatives to make health warnings on packages and in advertising larger and more prominent. The proposed rule introduces a set of graphic tobacco warnings that intend to deter smoking.

Some of the Proposed Warnings

The Tobacco Control Announcement
Kathleen Sebelius, Secretary of Health and Human Services (HHS), Howard K. Koh, M.D., MPH, Assistant Secretary of HHS and Margaret A. Hamburg, M.D., FDA Commissioner announcing new, evidence-based tobacco control initiatives to make health warnings on packages and in advertising larger and more prominent.

Dysregulating Offensive Emails

Barak Orbach — Sat, 25 Sep 2010 23:56:00 GMT

Nebraska convicted Darren Drahota of a breach of the peace based on two e-mails he sent to William Avery, his former political science professor and a candidate for the State Legislature.
Drahota's emails concluded an exchange of 18 e-mails that presented differing opinions on a variety of topics, such as the Bush presidency and its policies, the Clinton impeachment, the Iraq conflict, Muslims, terrorism, the "war on terror," the use of force in the Middle East, al Qaeda, and military service to the United States. Drahota’s e-mails are much longer and often laced with profanity and invective. Avery’s responses, while suggesting disagreement, were quite brief. Some portions of the e-mails from Drahota had friendly, respectful, and admiring comments about Avery and his teaching, but in the same e-mail, Drahota would include disrespectful, hostile, angry, profane, and offensive comments about blacks, Muslims, and people on the liberal, or left, side of the political spectrum, as well as comments that certainly could be read as disrespectful and insulting to Avery.

In June 2007, the trial court found Drahota guilty of oral pronouncement. He appealed. In June 2009, the Court of Appeals held that Drahota's conduct constituted a criminal act of a breach of the peace. In September 2010, the Nebraska Supreme Court held that Drahota’s rants, although provocative and insulting, were not fighting words, and were protected by the First Amendment.

Anti-Corruption Guidelines

Barak Orbach — Wed, 01 Sep 2010 15:23:00 GMT

June 15, 2010: Addressing the regulatory failure that led to excessively risky offshore drilling, President Obama noted:
"Over the last decade, [the agency in charge of regulating drilling and issuing permits, known as the Minerals Management Service,] has become emblematic of a failed philosophy that views all regulation with hostility -- a philosophy that says corporations should be allowed to play by their own rules and police themselves. At this agency, industry insiders were put in charge of industry oversight. Oil companies showered regulators with gifts and favors, and were essentially allowed to conduct their own safety inspections and write their own regulations."

August 30, 2010: The Bureau of Ocean Energy Management (BOEM) that replaced the corrupt Minerals Management Service issued anti-corruption guidelines. The guidelines provide that BOEM employees "must immediately report any situation or incident where industry personnel attempt to bribe, harass, coerce or improperly pressure or influence a [BOEM] employee with respect to the performance of the employee’s official duties, including the issuance of Incidents of Noncompliance (INCs) or any other action considered or taken by the employee in accordance with applicable regulations."

Corruption is generally illegal and, thus, the issuance of anti-corruption guidelines reaffirms the conclusion that tea drinking and other forms of anti-regulation partying may not provide good solutions to any problem.

President Obama's Speech of June 15, 2010:

The Bedbug Disclosure Act

Barak Orbach — Wed, 01 Sep 2010 12:54:00 GMT

August 31, 2010: NY Governor, David Paterson, signed into law the Bedbug Disclosure Act that requires building owners to disclose a one-year history of bedbug infestations to potential tenants.

The Act responds to the national bedbug infestation of 2009-10 and its logic is the imperfect information among potential renters and assumed information among landlords. The New York Legislature provided the following justification for the Act:
Prospective tenants have a right to access relevant documentation regarding the history of bedbugs within their new living spaces. This information is essential to making an informed decision and should not be withheld from consumers. Should a prospective landlord refuse to supply this information, they should be compelled to provide it.

Lead Bullets at the EPA

Barak Orbach — Sun, 29 Aug 2010 04:58:00 GMT

The Toxic Substances Control Act ("TSCA") mandates that the EPA must regulate chemical substances where there is a “reasonable basis to conclude” that such substances “present an unreasonable risk of injury to health and or the environment” (15 U.S.C. § 2605(a)).

On August 3, 2010, several groups submitted a petition to EPA under Section 21 of TSCA, asking EPA to "prohibit the manufacture, processing, and distribution in commerce of lead for shot, bullets, and fishing sinkers," arguing that "lead used in shot, bullets, and fishing sinkers is a “chemical substance” falling within the scope of TSCA." The petition pointed out that "most other uses of lead, such as lead-based paints, plumbing pipe and fixtures, and leaded gasoline, are already subject to strict regulation. ... However, there is currently no specific regulation of lead shot, bullets or fishing sinkers under TSCA." The petition summarized the risks associated with lead and noted that "in recent decades the federal government has taken various regulatory actions to reduce the exposure of humans to lead in drinking water, paint, gasoline, toys, toxic dumps, automobile wheel balancing weights, and indoor and outdoor shooting ranges. However, other lead sources causing significant contamination are still uncontrolled, and lead exposure to wildlife has recently been widely documented and is not adequately regulated."

Nevertheless, on August, 27, 2010, EPA denied the petition, arguing that the Agency does not have the legal authority to regulate this type of product under TSCA.

The New York Times described the decision as "legally dubious."

The Anti-Sin Movement

Barak Orbach — Fri, 23 Jul 2010 16:16:00 GMT

The Great Recession made sin taxes popular and controversial. State and municipalities like the regulatory tool that offers some relief for budget deficits and help to cope with sins lead to obesity, excessive drinking, smoking, and pollution. Sin industry and some "sinners," however, do not welcome sin taxes. In New York, the battle over soda tax ended with a victory for supporters of sins (see RegState.net's summary). Overall, however, the anti-sin movement records many victories.

In Washington State, in February 2010, Governor Christine Gregoire proposed "a Balanced Approach for Hard Times " that included a list of sin taxes, such as tax on carbonated beverages, bottled water, candy, and gum, and increased tax on cigarettes. In April 2010, the state legislature endorsed its proposal (SB6143). The beverage industry quickly responded and mobilized local sinners and anti-tax forces to collect 395,000 signatures to place Initiative 1107 on the November 2010 ballot to repeal the local sin taxes.

Regulating Wall Street

Barak Orbach — Thu, 22 Jul 2010 04:30:55 GMT

July 21, 2010: President Obama signed into law the most sweeping overhaul of U.S. financial-market regulations since the Great Depression, marking the conclusion of an effort to craft a legislative response to the 2008 financial crisis, aka the Great Recession: The Dodd-Frank Wall Street Reform and Consumer Protection Act.

FCC's Third Party Regulation of F-Words

Barak Orbach — Thu, 15 Jul 2010 17:17:00 GMT

Should broadcasters enforce morality or at least the morality of certain parents? To enforce particular morality norms, the FCC employed third-party liability: it sanctioned broadcasters for the conduct of others. The efficiency of the method, the underlying morality, and the process of application were challenged.

January 19, 2003: At the Golden Globe Awards, U2 won the award for the Best Original Song in Motion Picture ("The Hands That Built America" from The Gangs of New York). After receiving the award, on a live broadcast, Bono, blurted out: "This is really, really fucking brilliant!" Concerned about the souls of American children, the Parents Television Council mobilized its members to send numerous complaints to the Federal Communications Commission (FCC).

October 3, 2003: The Chief of the FCC Enforcement Bureau issues a Memorandum Opinion and Order responding to the complaints, concluding that the various broadcasters that aired the Golden Globe Awards did not violate any law.

The Parents Television Council sought to reverse this decision, filed application for review and encouraged its members to send more complaints.

March 18, 2004: The FCC issues a Memorandum Opinion and Order addressing the 2003 Golden Globe Awards, concluding that "the live broadcast of the “Golden Globe Awards” included material in violation of the applicable indecency and profanity prohibitions." Specifically, the FCC held that "given the core meaning of the “F-Word,” any use of that word or a variation, in any context, inherently has a sexual connotation. . . . The “F-Word” is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language. Its use invariably invokes a coarse sexual image. The use of the “F-Word” here, on a nationally telecast awards ceremony, was shocking and gratuitous." Broadcasting of the phrase, therefore, was "patently offensive under contemporary community standard."

June 4, 2007: Broadcasters challenged the FCC's decision. In Fox Television Stations v. FCC, 489 F.3d. 444 (2d Cir. 2007), the Second Circuit held that the FCC's decision was "arbitrary and capricious" under the Administrative Procedure Act, vacating the decision.

April 28, 2009: The FCC appealed. In a 5-4 decision, the Supreme Court held that the FCC's order was neither "arbitrary" nor "capricious."

July 13, 2010: The case returned to the Second Circuit on remand and yet again the Second Circuit held that the FCC's indecency policy violated the First Amendment and was unconstitutionally vague, creating a chilling effect.

Soda, Sin Taxes, and Regulatory Sins

Barak Orbach — Mon, 05 Jul 2010 17:01:00 GMT

In the Wealth of Nations, Adam Smith prescribed sin taxes, writing: "Sugar, rum, and tobacco are commodities which are nowhere necessaries of life, which are become objects of almost universal consumption, and which are therefore extremely proper subjects of taxation.” Free-market ideologists attribute excessive value to Smith's invisible hand metaphor but apparently never turned the pages to his reflections on sin taxes.

During recessions, states and the federal government reconsider sin taxes as regulatory mechanisms to address deficits and shape costly preferences, such as unhealthy habits. One popular form of sin taxes during the present recession is soda tax.

The New York Governor has been trying to pass soda tax in various forms, but failed each time. In the spring of 2010, Governor David Paterson proposed tax on sugary sodas and exempted diet beverages. Two coalitions of interest groups formed: the Alliance for Healthier New York and New Yorkers Against Unfair Taxes. The New York Times briefly documents how the New Yorkers Against Unfair Taxes derailed the proposed soda tax. Several New York politicians, led by State Senator Diane Savino, argue that the soda tax is "regressive." In a press release, entitled Senator Savino explained:
"The beverage tax is nothing more than a money grab. Instead of revisiting our regressive tax policies and wasteful spending, which have gotten us into the predicament we are in, this proposal is simply another way of increasing revenue on the backs of working families.” ("No to Regressive Beverage Tax," March 12, 2010).
At least one study shows that more than one in four adult New York City residents consumes one or more cans of sugar-sweetened soda per day. Consumption varies widely among demographic groups, with socially disadvantaged populations, who are most impacted by obesity, having the highest prevalence of frequent consumption. In other words, soda tax would be regressive because poor people drink more soda. See: Colin Rehm et al., Demographic and Behavioral Factors Associated with Daily Sugar-sweetened Soda Consumption in New York City Adults, Journal of Urban Health 85: 375-385 (2008).

The campaign materials of the Alliance for Healthier New York and New Yorkers Against Unfair Taxesspeak for themselves.

The Alliance for Healthier New York

Download Ad of the Alliance

New Yorkers Against Unfair Taxes

Download Ad of the Coalition

San Francisco to Regulate Cellphone Radiation

Barak Orbach — Thu, 10 Jun 2010 14:06:00 GMT

June 10, 2010: Finding the "government agencies and scientific bodies in the European Union (EU) and Israel have recognized the potential harm of long-term exposure to radiation emitted from cell phones and, as a result, have issued warnings about their use, especially their use by children," San Francisco's Board of Supervisors adopted an ordinance that requires retailers to disclose the Specific Absorption Rate ("SAR") of cell phone devices.

The ordinance's logic is that "[t]he SAR values for different makes and models of cell phones differ widely, but consumers are not able to make informed purchasing decisions because there is no requirement that the retailer provide the applicable SAR values to the consumer at the point when the consumer is deciding between various makes and models."

Accordingly, the ordinance providces that "[n]o retailer within the City may sell or lease. or offer to sell or lease. any cell phone to the public without disclosing the SAR value for that phone."

Georgia's Roadkill Bill

Barak Orbach — Fri, 04 Jun 2010 16:46:00 GMT

Several food historians have been debating whether the Brunswick Stew was invented in Georgia or in Virginia, but they all agree that it is a traditional roadkill dish. The debate exists because some developed the roadkill cuisine. In the United States, every year, millions of animals are hit on the road by vehicles. The carcasses could offer value but their collection may impose some cost to the state that may not be in the position to utilize them.

June 3, 2010: Georgia Governor Sonny Perdue signed into law the Roadkill Bill that provides:

27-3-28.
(a) Except as otherwise provided in this Code section, any person may lawfully possess native wildlife which has been accidentally killed by a motor vehicle. The following exceptions and conditions to this general rule shall apply:
(1) Any person taking possession of a bear accidentally killed by a motor vehicle shall notify the department or a law enforcement officer of the fact and location of the taking of possession and his or her name and address within 48 hours after taking possession of the bear; and
(2) This Code section shall not authorize any person to take possession of any animal of a species designated as a protected species under Article 5 of this chapter or under federal law.
(b) A law enforcement officer receiving a report of a person taking possession of a bear under paragraph (1) of subsection (a) of this Code section shall in turn transmit the reported information to the department within 48 hours after receipt of such information.

Put simply, Georgia grants drivers an option to collect carcasses of accidentally killed wildlife and, in return, is asking drivers to report about certain animals, assuming that collectors identify protected animals.

Regulation and the Social Costs of Spitting

Barak Orbach — Tue, 25 May 2010 19:28:00 GMT

Many societies have negative views toward the habit of spitting in public. Spitting on one's face is an act of insult and potentially assault. In 1872, the Illinois Supreme Court upheld a jury judgment of punitive damages for a person who was spat upon in his face in a crowded courtroom. Alcorn v. Mitchell, 63 Ill. 553 (1872). The court held that "[i]t is customary to instruct juries that they may give vindictive damages where there are circumstances of malice, willfulness, wantonness, outrage and indignity attending the wrong complained of. The act in question was wholly made up of such qualities. It was one of pure malignity, done for the mere purpose of insult and indignity." Thus, courts regulated spitting as an assault and battery.

In the 1890s, scientists found out that spitting was not only offensive but was also related to tuberculosis rates. This disturbing discovery led to the first anti-spitting law, a New York City ordinance from 1896:

Spitting upon the floors of public buildings and of railroad-cars and of ferry-boats is hereby forbidden, and officers in charge, or control of all such buildings, cars and boats shall keep posted permanently in each public building and in each railroad-car and in each ferry-boat a sufficient number of notices forbidding spitting upon the floors, and janitors of buildings, conductors of cars and employees upon ferry-boats shall call the attention of all violators of this ordinance to such notices.

Legislatures identified spitting in public as a costly externality that should be regulated and New York City was only the first jurisdiction to act. Other states and cities followed. Over time, tuberculosis almost vanished in the United States and anti-spitting laws generally disappeared. States that still have them, do not enforce their anti-spitting laws.

Spitting, however, has remained a socially symbolic act of offense. In 2010, New York City faces a new problem: spitting upon workers of the City's transportation system is classified as an assault under the drivers' contract. The New York Times reports that Passsngers' habits to spit on drivers result in significant paid leaves. Thus, although less costly than tuberculosis, spitting has remained socially costly although perhaps for different reasons.

Another way to look at the social cost of spitting in New York City is of course to focus on the drivers as an interest group that inflates the social costs of spitting in modern times.

See:
Michael M. Grynbaum, When Passengers Spit, Bus Drivers Take Months Off, New York Times, May 25, 2010, Page A1.