In an interview, Wright explained, "Given the intuitive and easy to grasp nature of the consumer benefits of discounting contracts in the Intel case, I suspect that judges will be less likely to condemn these practices without real proof of actual consumer harm. I'm skeptical that AMD, (New York), or the (Federal Trade Commission) will be able to produce that here, " Wright said.

One of the primary accusations in the case is that Intel paid rebates to computer makers to illegally maintain monopoly and deprive AMD of obtaining business with PC manufacturers. The complaint also charges that Intel's actions deprived consumers of product choices and lower prices.

But Wright disagrees, saying, "Prices are falling, buyers are not complaining about Intel's loyalty discounts, and the lower prices produce obvious and immediate benefit for consumers."

Wright adds that PC makers "are able to play Intel and AMD off each other to get higher rebates. These rebates are ultimately passed on to consumers in the form of lower prices. That's a critical part of the equation here."

One charge hard to level at Intel: Raising prices, CNET News, November 6, 2009. By Brooke Crothers.

Excerpt:

"One of the most recent examples of steep downward PC price pressure is Netbooks, which have been a hit with many consumers because of their low cost, typically around $350. Intel, along with PC makers such as Asus, Acer, and Hewlett-Packard, created the Netbook market, whose rise forced AMD to counter with a technology platform for low-cost thin laptops that are, ironically, more expensive than Netbooks. 'Ultrathins'--a market that Intel also participates in and is sometimes referred to as CULV, or consumer ultra low voltage laptops--typically start at $500 and range up to about $900.

Wright adds that U.S. law differs from the European Union--where Intel was fined $1.45 billion earlier this year--in the area of monopolies and harm to competition. 'The main difference between U.S. and EU law is that when it comes to monopolization cases, the U.S. approach is inherently skeptical about condemning conduct which benefits consumers to avoid speculative future harms. The EU approach condemns most any non-standard discounting contract from large firms on the grounds that they are likely to harm competition,' he said."

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"Lower advisory fees don't necessarily benefit investors," says Johnsen. "Don't believe the bad press about high advisory fees. It's a misconception that fund fees necessarily reduce invester returns dollar for dollar, and that lower fees therefore benefit investors." Higher prices can indicate higher quality in many cases, says Johnsen.

On November 3 the U.S. Supreme Court heard arguments in Jones v. Harris Associates, in which  the Court reveiwed allegations that classes of investors paid different fees for management of identical portfolios.

Mutual fund fees fight may be much ado about nothing, DailyFinance, November 5, 2009. By Sheryl Nance-Nash.

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The purpose of the symposium was to address the impact of securities regulation on the current global financial crisis.  The event examined the origins and genesis of the crisis, addressed the future of securities regulation both domestically and internationally, and attempted to anticipate the role of government agencies and private market participants in shaping and effectuating regulation. Attendees came from the legal, financial, and academic communities, state and federal governments, and self-regulatory organizations.

Verret addressed issues involved in the TARP bailout in his presentation, "Separation of Bank and State: The Case Against the TARP Bailout."

View symposium details

On Monday, October 26, Verret appeared on KCRW's program To the Point with host Warren Olney, in a segment entitled "Is It Time Wall Street Was Paid for Performance?" Verret expressed concern that income limits for executives would result in limits on dynamic growth. To the Point deals with issues of national concern and is on air in most major metropolitan markets across the country.

Earlier in the week, Verret made a Saturday, October 24, appearance on C-SPAN's Washington Journal. Verret expressed the viewpoint that government does a poor job of regulating away crises, saying the evidence worldwide is overwhelming that government involvement in banking and similar industries is not a good thing.

Listen to Verret's KCRW interview (Verret segment begins at approximately 25:18) 

View Verret's C-SPAN interview

Customs officials found evidence that uncovered a variety of fraudulent activity designed to take advantage of a sprawling European subsidy program in agricultural aid.

"There's a whole world of commercial fraud, which goes under the radar for most people," said Byrne, who has studied the global sugar trade. "It is a parallel universe that mimics the real world of commerce and finance."

Critics claim that Europe's subsidy system distorts the market, disrupting competion and resulting in higher prices for consumers. European sugar prices currently run approximately 20 percent higher than U.S. prices and are the highest per capita anywhere in the world.

Fraud Plagues Sugar Subsidy System in Europe, The New York Times, October 27, 2009. By Doreen Carvajal and Stephen Castle.

Excerpt:

"Across Europe there are some 2.5 million acres of beet fields that will produce 16.7 million metric tons of sugar this year for an industry worth 7 billion euros. Last year the European Union spent 475 million euros in price supports for sugar, including export subsidies. Then it spent another 1.3 billion euros on restructuring aid to reform a subsidy regime so that lavish it even prompted cold-weather Finland to start producing more sugar.

"Sugar producers across the Continent cashed in — from Italy, where Italia Zuccheri collected more than 139 million euros, to France, where a handful of sugar producers received 128.5 million.

"With this much money at stake, critics and some analysts say, the sugar subsidy system is like a cookie jar waiting to be pilfered. Europe’s antifraud division, called OLAF, reported that from 2005 to 2008, 67 million euros worth of sugar subsidies were tainted by irregularities and fraud. Many countries have been penalized millions more over the last few years for lackluster sugar inspections. In 2008, OLAF pursued 34 cases of sugar fraud involving 4.4 million euros, a figure they describe as the icing on the cake because so many of the schemes go undetected."

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Rabkin expressed his view that the ICC is ineffectual and unbalanced, focusing primarily on African nations. "The whole institution is an exercise in symbolism," Radkin said.

The United States is one of only a few western nations that have chosen not to accede to the Rome Statute, which created the ICC. Rabkin endorsed this position, saying, "If you could assure me that the rules would be drafted in Washington and the trials would be conducted by officials responsible to the U.S.," he would have a greater incilination to support the ICC. As it is, Rabkin fears joining could lead to second-guessing of American field troops by an international prosecutor with no military experience attempting to enforce vague and unestablished law.

"It is crazy while conducting wars to have an international diplomat looking over your shoulder," Rabkin concluded.

Ten years later, debate continues over U.S. stance toward International Criminal Court, Harvard Law Record, October 22, 2009. By Nicholas Joy.

Excerpt:

"Rabkin cast dispursions on the historical roots of the ICC and the tribunals established for Yugoslavia and Rwanda. For Damrosch, the ICC’s origins date back to World War II and the U.S. involvement in the Nuremburg Trials and the International Military Tribunal for the Far East.  'Most Americans are proud of those accomplishments. The effort that is going on now [extends] the legacy of Nuremburg.'

"Rabkin views the tribunals that came after World War II in a very different light. 'We should not be proud of the tribunals, but the war effort that defeated' the Axis powers,' he said. He pointed out that the United States had negotiated the London charter, which set up the Nuremburg Trials, with the other occupying powers, who stipulated that only members of the Axis powers would be put on trial."

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Observing that the former Office of Federal Housing Enterprise Oversight in recent years had begun to regulate compensation at government-supported mortgage lenders Fannie Mae and Freddie Mac, which are publicly traded, Verret stressed that those actions included "nothing nearly as heavy-handed as this."

Despite populist calls for executive compensation restrictions, some argue that the restrictions will  encourage talented executives to look for employment opportunities outside the U.S., to which Verret responds, "This is a nickel and dime approach to a billion-dollar problem. This new policy will attract executives who don't have a better alternative, and who don't mind running a business based on political influence."

Verret's comments on the topic were carried in two articles appearing in The Wall Street Journal, as well as in Forbes magazine. Verret also took part in an interview on Patt Morrison's live public affairs show on California's National Public Radio affiliate, Southern California Public Radio. Appearing on the show with Verret were Deborah Solomon, the reporter who broke the story, and Professor William Black of the University of Missouri, Kansas City.

Click on the links below to read the individual stories or listen to the interview:

National Public Radio Interview, October 22, 2009

Pay Czar to Slash Compensation at Seven Firms, The Wall Street Journal, October 22, 2009. By Deborah Solomon and Dan Fitzpatrick.

Pay Czar Moves Represent 'Seismic Shift', The Wall Street Journal (Subscription Required), October 21, 2009. By Joann S. Lublin and Louise Radnofsky.

Pay Czar Readies Knife, Forbes, October 21, 2009. By Brian Wingfield.

Excerpt:

"With some financial firms projected to pay out record bonuses for 2009, the Obama administration is soon expected to slash compensation for bosses at the seven companies that have received the most bailout cash within the past year.

"In the coming days, the Treasury Department's pay czar, Kenneth Feinberg, is expected to announce compensation cuts of about 50% for the 25 highest-paid executives at American International Group ( AIG - news - people ), Bank of America ( BAC - news - people ), Citigroup ( C - news - people ), Chrysler, General Motors and the auto companies' financing arms. Including bonuses, the pay reductions are expected to cut the cash component of salaries by as much as 90% from last year's levels.

"The government is also expected to require changes affecting how these companies' boards of directors set compensation for executives, though details weren't clear. In addition, employees now working in AIG's financial products division, the unit widely blamed for bringing the company to the brink of collapse in 2008, are expected to receive no more than $200,000 in total compensation each. Feinberg had been negotiating with the company to reduce the scheduled $198 million in so-called 'retention awards' employees of the unit are scheduled to be paid next March. (See 'AIG's Pay Fiasco.')

"Executive compensation has been the target of a steady stream of populist outrage ever since the $700 billion Troubled Asset Relief Program was created a year ago. The TARP was meant to bolster the financial system, but recent speculation that some Wall Street firms, such as Goldman Sachs ( GS - news - people ) (which has repaid its TARP obligation), will pay record annual bonuses has caused the pitchforks to come out again. Bad feelings have been exacerbated by a national unemployment rate that is inching toward 10%."

Read additional coverage:

Christian Science Monitor

Chicago Tribune

Commenting in The National Law Journal, Somin agrees that the mandate is constitutional based on the high court's past rulings; however, he believes the Supreme Court's jurisprudence is wrong.

"Over the last 60, 70 years, the Court and the political branches have strayed very far from the text and original meaning of the Constitution," Somin says.

Despite disagreements over the issue of constitutionality, it appears evident to many legal experts that the debate will move ultimately to the courts, and scholars are looking to U.S. v. Comstock, which challenges Congress' authority under the commerce clause, for clues on how the federal courts might handle the issue.

Health Care Reform Spurs Litigation Talk, The National Law Journal, October 19, 2009. By Marcia Coyle. 

Excerpt:
"The Raich marijuana decision in 2005 was a victory for Congress' commerce clause powers after a string of high court rulings limiting that power and strengthening states' rights under the Constitution, Chemerinsky said.

"But he said he would not generalize that the federalism revolution, which began in the Rehnquist Court and waned in Rehnquist's last few years, was over.

"'I think there are five justices who very much believe in that revolution,' he said, naming Antonin Scalia, Anthony Kennedy, Clarence Thomas and, based on some opinions they wrote as circuit court judges, John Roberts Jr. and Samuel Alito Jr.

"'There haven't been the cases in the Roberts Court, but now there is Comstock ,' said Chemerinsky.

"In Comstock, the justices this term will decide whether Congress exceeded its commerce clause power when it enacted a law permitting indefinite civil commitment of 'sexually dangerous' persons after they have completed their federal sentences. The U.S. Court of Appeals for the 4th Circuit struck down the law on commerce clause grounds.

"While Comstock may provide some guidance, it is unlikely to stop constitutional challenges to the insurance mandate. 'It is an unprecedented thing for Congress to order individuals to get health insurance,' Turley said. 'If this issue goes to the Supreme Court, I believe Congress will have a clear advantage. But it is not true this is such an easy proposition.'"

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"There are many fledgling institutions that have ambition and vision but are starved for resources," says Zywicki, citing Boston College in political sciene; George Mason, Florida State, and Clemson in economics; and George Mason and Notre Dame in law as "centers of excellence committed to supporting the principles of a free society."

"Rather than try to turn the direction of giant barges like Harvard and Yale, which will accept your generosity only on their terms, why not donate to these upstart programs, which are grateful for even modest investments?" he proposes.

Zywicki says at the beginning of 2008, 76 colleges and universities had endowments estimated to be $1 billion or more. He believes that huge endowments have adversely affected the traditional relationship between universities and their supporters, resulting in decreasing ability of institutional supporters to effect changes in curriculum and related areas and less accountability in campus leadership.

Zywicki encourages earmarking donations for specific purposes, but he admits earmarking funds is of limited usefulness as long as the majority of alumni continue to give reflexively to a general fund. "Money is fungible, so, while earmarking will make you feel more comfortable that your donation is going to be used productively, it isn't sufficient to end the shell game that is the essence of university finances," Zywicki says.

Check that checkbook: a guide to smarter alumni giving, National Review, October 5, 2009. By Todd J. Zywicki.

Excerpt:
"Your alma mater will not always be controlled by your friends. Recent years have seen a spate of donor-intent lawsuits and controversies, most notably the litigation over gifts to Princeton and to Trinity College in Connecticut. Such disputes are likely to become more common in coming years, especially if endowments are slow to return to their formerly high-flying valuations. In both cases, gifts were established for specific purposes long ago. As the gifts grew, the institutions redirected, or sought to redirect, a portion of them to purposes other than those that the donor intended. This prompted lawsuits from family foundations. The dispute at Princeton was settled on terms that appear highly favorable to the university, suggesting that its strategy of asking forgiveness rather than permission was wise.

"Alumni should keep in mind that colleges and universities have teams of lawyers devoted to creating and exploiting loopholes in donor-intent agreements. Even if the current university administration is trustworthy, that will not necessarily remain so. Donors are especially vulnerable when they establish perpetual gifts, as in the Princeton and Trinity cases."

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Somin believes it is a violation of the Due Process Clause of the Fourteenth Amendment to deprive an innocent citizen of valuable property without any judicial process whatsoever, as has been the case with the Illinois Drug Asset Forfeiture Procedure Act. The lower court's decision requires that property owners be given the opportunity to challenge the seizure of property in a brief informal hearing.

"If the Supreme Court denies property owners even this minimal protection, then there will be no meaningful constraint on the power of the government to seize the property of innocent people caught up in criminal investigations and hold it for many months at a time," says Somin.

Forfeiture Laws, the War of Drugs, and Alvarez v. Smith, FindLaw, October 14, 2009. By Ilya Somin.

Excerpt:

"The Illinois Drug Asset Forfeiture Procedure Act (DAFPA) allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without any kind of legal hearing. This rule applies even to property owned by completely innocent persons who simply had their possessions caught up in a drug investigation through no fault of their own – for example, if someone else used their car to transport illegal drugs without their knowledge. The three car owners involved in Alvarez were never even charged with a crime, much less convicted. Under DAFPA, the authorities also don't have to prove that keeping innocent owners' property is necessary in order to prevent the loss of valuable evidence.

"In other words, DAFPA authorizes the government to take away the valuable property of completely innocent people for over six months at a time, without giving the owner any opportunity to contest the seizure whatsoever. The 187 day time limit applies to any personal property worth less than $20,000, which includes most cars. And, even after an asset forfeiture action is filed, many more months might pass before any court actually hears the case. In this case, the three cars were held by the police for over a year.

"Laws like DAFPA pose a serious danger to the property rights of innocent people caught up in the War on Drugs. In many jurisdictions, police departments are allowed to auction off property seized in drug investigations and keep the profits, giving them a clear incentive to seize cars first and ask questions later. Moreover, many of the people whose cars are seized are poor or minorities. They often lack the political power necessary to persuade police to release their property without judicial intervention."

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The well-known panelists included Richard Epstein of the University of Chicago Law School, Scott Kieff of George Washington University Law School, Mark Lemley of Stanford University Law School, and Fred von Lohmann of the Electronic Frontier Foundation.

In Quanta Computer v. LG Electronics, the Court was asked whether patent holders can seek royalties from downstream third-party purchasers. The high court's finding was a unanimous denial based on the theory of "patent exhaustion," which provides that an initial authorized sale of a patented item terminates all patent rights to that item. Panelists discussed the case's implications for patent law and licensing agreements.

A podcast of the panel discussion is available here.

Malcolm delivered her talk as part of the university's Civil Liberties in the 21st Century Community Conversations Colloquium, which encompasses a series of lectures in the fall and spring semesters of the academic year.

Malcolm addressed the landmark case District of Columbia v. Heller in which the Supreme Court held that the Second Amendment to the Constitution protects a citizen's right to own firearms for legal purposes such as self-defense.

A recognized authority on constitutional and legal history, Malcolm's scholarship is focused on the development of individual rights in Great Britain and America. She has written many books and articles on gun control, the Second Amendment, and individual rights. Her work was cited several times in the U.S. Supreme Court opinion in District of Columbia v. Heller.

Shimer College is a small, independent, four-year liberal arts college with fewer than 150 students located minutes from downtown Chicago. The college is best know for its intellectual atmosphere, small class size, and use of a Great Books curriculum. Its students are taught largely by Socratic method and are expected to develop their capacity for critical thought and interpersonal communication through careful reading and discussion of the classics.

Buckley is the Executive Director of the George Mason Law & Economics Center (http://www.law.gmu.edu/lawecon/), as well as a Foundation Professor of Law. He has taught at George Mason University School of Law since 1989, and before then was a Visiting Olin Fellow of the University of Chicago Law School. He was twice a visiting professor at the Sorbonne (Paris II), and in fall 2007 was a visiting professor at the Institut d'études politiques de Paris (Sciences Po). His law degrees are from McGill and Harvard.

The TPA directs the Department of Homeland Security to impose a $10 fee on foreigners who visit the U.S. under the visa-waiver program. Those fees will fund a new nonprofit known as the Corporation for Travel Promotion, which will promote travel to America via multimillion dollar ad campaigns.

Sales says the TPA is "a stark example of mission creep." He points out that the DHS online registry used in the visa-waiver program was designed  to help authorities identify potential terrorists before they reach U.S. soil. Instead, he says, the system is being used to raise revenue for the benefit of big business.

"The TPA is redistribution at its most rank; it is a regressive tax. Wealthy and powerful corporations will have their pockets lined with money fleeced from travelers—many of who are of modest means, and all of whom, as non-citizens, have no voice in the American political process," Sales explains, adding that we should not be using a national security program "to enrich the travel industry at the expense of its guests."

Corporate Welfare for Mickey Mouse, National Review Online, October 5, 2009. By Nathan A. Sales.

Excerpt:
"The TPA surcharge could discourage people from visiting this country. A German family of four planning a winter vacation in Florida is already on the hook for hundreds of dollars in checked-bag fees, extra-legroom fees, security fees, passport fees, and so on. Will they be eager to shell out another $40? It may not seem like much, but they could spend that money on sunscreen and sunglasses, a picnic on the beach, or a rental car for a day. The family might decide to scrap Florida and head for the Spanish coast instead.

"American travelers stand to lose, too. Some countries in Europe are already threatening to retaliate with fees of their own. Europe is even thinking about restricting visa-free travel for some Americans. That means American tourists and businessmen could have to dig a little deeper into their wallets for their next trip to Paris, or even stand in line at the French consulate to get a visa first.

"Disney World, Delta Airlines, and other players in the travel industry are rational actors. If they think ads will bring in more business, they’ll run them on their own. They don’t need a government handout to persuade them to pursue their self-interest.

"Indeed, travel companies could always tack $10 surcharges onto their own price tags. But after watching the airlines take heat when they started charging for checked bags and in-flight meals, the industry apparently decided it’s better to let the government do the dirty work. Angry travelers will blame DHS for the fee, or maybe the United States as a whole, instead of the businesses that profit from the TPA. The costs are socialized, the benefits are privatized."

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It is noted that Section 251 [the corporate contributions ban] makes no distinction between a large or small corporation. It prohibits corporate contributions generally. ...The legislative history of the Federal Corrupt Practices Act shows that the principal basis for limiting the use of money by corporations in connections with federal elections was removing disproportionate influences exerted by means of large aggregations of money.

"In the reargument of Citizens United v. Federal Election Commission, several Supreme Court justices made note of the contested history of the corporate and labor expenditure ban," Hayward points out. "Prohibiting corporations and unions categorically from political spending has always been controversial, for good reason, as the court's reargument in Citizens United illustrated yet again."

Hayward is a board member of the Office of Congressional Ethics and the Center for Competitive Politics.

Allison R. Hayward: Ban on small-business political bucks is unconstitutional, The Examiner, October 5, 2009. By Allison R. Hayward.

Excerpt:
"In 1948, a group of automobile dealers in Michigan were indicted under federal law for making illegal corporate contributions to a state political committee in 1946. Heavy governmental regulation of the market made political influence an enormously important goal for the automobile industry. The government set not just the price of all cars, but dictated to whom they should be sold. The subsequent growth of a black market eroded state sales tax receipts.

"During a state tax investigation, the reform-minded Republican Michigan attorney general, Eugene Black, uncovered evidence of political contributions (most less than $1,000) out of dealers’ corporate accounts. For various political and personal reasons, the state investigation stalled.

"Black, undeterred, took the case to the Truman Department of Justice. Attorney General Tom Clark assigned his top aides, Alex Campbell and Peyton Ford, to oversee a federal investigation under the day-to-day supervision of two Michigan U.S. attorneys, Thomas L. Thornton and Joseph Deebs. Even after extensive FBI investigative work, trials in early November 1948 (a week after President Truman’s upset victory) of two indicted auto dealers ended in acquittal.

"The attorneys at Justice wanted to push on, but the Michigan prosecutors did not. It was at this point, in January 1949, that Thornton and Deebs observed:

“'It is noted that Section 251 [the corporate contribution ban] makes no distinction between a large or small corporation. It prohibits corporate contributions generally. ... The legislative history of the Federal Corrupt Practices Act shows that the principal basis for limiting the use of money by corporations in connection with federal elections was removing disproportionate influences exerted by means of large aggregations of money.'

"Thornton and Deebs thus recommended ceasing the investigation. Campbell and Clark were not persuaded, by the way, and continued to pursue a handful of Republican auto dealers through 1950.

"To be sure, the Thornton/Deebs memorandum does not address the corporate contribution ban in the familiar 'strict scrutiny' terms we now apply to restrictions on speech. It couldn’t, because that constitutional doctrine did not exist in 1949.

"In the terms of our day, however, the memorandum is arguing that the contribution ban, read literally, is overbroad. Justice Antonin Scalia said essentially the same thing in the reargument.

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O'Neill discussed the difficulty the government faces in prosecuting suspected terrorists who may be  plotting crimes against the United States and its citizens. Currently suspected terrorists are referred by law enforcement agencies such as the FBI for possible prosecution. Under the U.S. legal system, prosecutors must have sufficient evidence to charge and successfully convict. It is estimated that the government prosecutes only one in four of those referred by law enforcement, raising the question whether it would be better to be more pro-active in preventing attacks by terrorists. O'Neill believes Congress needs to provide a uniform definition of what constitutes a terrorism offense.

Watch the interview

"Their argument (in papers filed in court and in a recent op-ed signed by Mr. Boies in the Wall Street Journal) consist entirely of out-of-context snippets from Supreme Court opinions, nasty attacks on millions of American citizens, and astonishing assertions that an institution central to virtually every civilization in the history of the human race is patently irrational," says Lund.

"The fundamental purpose of marriage is to enable, encourage, and require biological parents, especially fathers, to take responsibility for their children," Lund explains. "Because this institution is a response to a phenomenon uniquely created by heterosexual intercourse, the very meaning and definition of marriage has always been inseparable from the problem it is meant to address."

The Boies-Olson position would redefine marriage, says Lund, replacing it with an institution whose purpose is entirely different.

The Case against Boies-Olson, National Review Online, September 24, 2009. By Nelson Lund.

Excerpt:
"The notion that the fundamental features of an institution adopted by virtually every civilized society are based on nothing but moral opprobrium toward homosexuals is so weird that one wonders why serious people should even have to discuss it. Apparently, however, we’ve come a long way since the Supreme Court summarily dismissed such a claim in 1971. But here we are, so let’s point out the obvious.

"Only unions between men and women are capable of producing offspring, and every civilization has recognized that procreation is critical to its survival. The institution of marriage has been established in virtually every known human society, including our own, and officially recognized marriages have always been exclusively between men and women. This is not an accident or the result of some unreasoned prejudice. After the desire for self-preservation, sexual passion is perhaps the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally, and it does so only after a nine-month lapse. The result can be uncertainty about paternity or indifference to it by the father. If left unchecked, this would give many men little incentive to invest in the rearing of their offspring, and the ensuing irresponsibility would have made the development of civilization impossible."

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In a Financial Times op-ed, Hazlett takes a look at market data showing that the U.S. ranks first (at 71.1 percent) among the five wealthiest large economies, followed by France, the United Kingdom, Japan, and Germany (using calculations based on broadband subscriptions, population, and household size).

Deregulation, rather than regulation, has been the impetus behind strengthened competion and innovation, says Hazlett. "French and Japanese networks languished early in the WWW era, while unregulated US cable TV operators pioneered innovations in residential broadband," he says. "DSL growth in America then surged when it, too, was deregulated."

"Cherry picking broadband penetration numbers to imply the US is slipping into Third World status is fine for a quickie term paper, at least if Wikipedia goes down," says Hazlett. "But adults ought to sort through the multi-dimensional complexity of the real world—as The Economist attempts to do with its e-Readiness Index which, in 2008, ranked the US as first in the world."

The broadband numbers racket, Financial Times, September 17, 2009. By Thomas Hazlett.

Exerpt:

"Every party – from corporate giants to heads of state – poses as that ER doc. They are ready to inject the elixir; no time for lab tests! The pre-set diagnosis is that our superiors have more ambitiously regulated, forcing networks to help entrants compete. But South Korea, the reigning world heavyweight broadband champ, did not use 'line-sharing' but rival networks to win the crown. Canada, a highly ranked contender, did likewise, sporting cable vs. telephone rivalry similar to our own.

"Meanwhile, countries such as Germany unwisely protected state telecoms monopolies and then over-regulated their private spin-offs. While cable TV networks pass virtually every German home, regulations block efficiencies and kill investment incentives. Cable modem service has been near nil, botching a golden competitive opportunity that South Korea, Canada, and the US enjoy.

"Kevin Werbach, an influential University of Pennsylvania law professor, writes that the key is to 'Compare broadband offerings in places that pushed forward with line-sharing, like France and Japan, with those in the US.' He asserts that eliminating line-sharing for US DSL 'was a terrible loss for competition and innovation'.

"The market data say otherwise."

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Speaking specifically of Gonzales v. Raich (2005), in which a Court majority upheld a federal law prohibiting a woman from growing marijuana for medicinal purposes on the basis of the Commerce Clause, Somin says the decision "seems to all but eliminate the prospect of meaningful judicial restriction of congressional Commerce Clause authority."

"It is extremely rare for the Court to strike down a law that enjoys strong majority support from both the general public and the political elite, and is a major item on the current political agenda," says Somin in a Volokh.com post cited in the article. "Doing that is likely to create a head-on confrontation between the Court and the political branches of government, which the Court will almost certainly lose, as happened when the Court struck down various New Deal laws in the 1930s."

While Somin believes the Supreme Court will uphold mandatory health insurance, he says, "such a law would be unconstitutional under the correct interpretation of the Commerce Clause—or any interpretation that takes the constitutional text seriously."

Is Mandatory Health Insurance Constitutional? CBS News, September 21, 2009. By Declan McCullagh.

Excerpt:

"In their Wall Street Journal op-ed, David Rivkin and Lee Casey take aim at Democratic Sen. Max Baucus' proposal that includes levying a $1,500 annual tax on uninsured Americans. They say: 'Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a "tax" that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by "taxing" anyone who doesn't follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.'

"Unfortunately for legal prognosticators, the U.S. Supreme Court has provided no exact guidance. In Gonzales v. Raich (2005), a majority concluded that a federal law prohibiting a California woman from growing marijuana for her own medical use is 'entitled to a strong presumption of validity' -- and authorized by the Commerce Clause -- even if state law permits the medicinal use of cannabis. On the other hand, in U.S. v. Lopez (1995), the court struck down a gun-related law on the grounds that it lacked 'any concrete tie to interstate commerce.'

"Because Gonzales v. Raich is more recent, it's presumably a better glimpse into what the court thinks. (As Justice Clarence Thomas wrote in a strongly-worded dissent siding with the medical marijuana patient named Angel Raich, 'If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers.'"

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Mason Law Professor David Bernstein's scholarship on Lochner is cited in the article, with an observation that the mainstream version of Lochner, which pits bosses against exploited workers, does not resemble the historical evidence in the case, which actually depicts a struggle between unionized and non-unionized bakery workers.

Bernstein points out that "a ten-hour day law would not only aid those unionized workers who had not successfully demanded that their hours be reduced, but would also help reduce competition from nonunionized members." 

Lochner and Liberty, Reasononline, September 18, 2009. By Damon W. Root.

Excerpt:

"Too busy making outlandish claims about his positions on gun control and radio censorship, Sunstein's conservative critics have ignored one of the biggest problems that his ideas pose to limited constitutional government. Sunstein is one of the most influential modern critics of Lochner v. New York (1905), perhaps the Supreme Court's most famous decision defending economic liberty. So why aren't conservatives going after Sunstein for his opposition to this case? Because many of them don't like Lochner either.

"At issue in the case was a provision capping working hours in New York's 1895 Bakeshop Act, which banned bakery employees from working more than 10 hours per day or 60 hours per week. In its 5-4 decision, the Court nullified this provision for violating the liberty of contract secured by the Due Process Clause of the 14th Amendment.

"In his 1987 Columbia Law Review article "Lochner's Legacy," which is one of the most cited articles on the case from the last two decades, Sunstein criticized Lochner for preventing the state from using its lawful power 'to help those unable to protect themselves in the marketplace.' Similarly, in his 1998 book The Partial Constitution, Sunstein asserted that the Lochner Court 'made the system of "laissez faire" into a constitutional requirement.'

"But compare those claims with the actual text of the Lochner decision. As Justice Rufus Peckham wrote for the majority, while New York certainly possessed the power to enact valid health and safety regulations, the maximum hours provision of the Bakeshop Act 'is not, within any fair meaning of the term, a health law.' Not only was the baking trade 'not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee,' the limit on working hours involved 'neither the safety, the morals, nor the welfare, of the public.' In other words, 'clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week.'"

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"The incidence of Medal of Honor awards as a percentage of total participants in operations in Afghanistan and Iraq is lower than that of twentieth century wars, but these campaigns have been only fractionally as deadly," says Lerner. "Indeed, as a percentage of the 5,100 who have died in Iraq and Afghanistan, 6 Medals of Honor is an almost identical rate of awards as that achieved in World War I and World War II."

Early in the twentieth century, the Department of Defense established methodical protocols to govern award of the medal, and those protocols have resulted in an award system that is uniformly stringent in its application.

Lerner suggests that rather than offering criticism of the Medal of Honor selection process, Congress should instead shift its focus to treating its own expenditure of taxpayer revenues by strict standards similar to those followed by the Pentagon in awarding the Medal of Honor, with significant internal review and an overriding sense of miserliness.

Profiles in Courage, American Thinker, September 17, 2009. By Craig S. Lerner.

Excerpt:
"This is unfortunate because in an era of rampant grade inflation -- and out-of-control federal spending -- the Medal of Honor stands out, conspicuously, as an instance in which standards and parsimony have been preserved. The award was created during the Civil War, and a ragged selection process resulted in several dubious recipients throughout the 19th century.  Among the most controversial Medals of Honor were the twenty awarded after the one-day skirmish with the Sioux Indians at Wounded Knee, South Dakota in 1890.

"In the early twentieth century, however, the Defense Department scrutinized earlier medals, rescinding hundreds, and implementing methodical protocols to ensure the integrity of the award. Much like the Vatican's traditional canonization process, which included a devil's advocate (or advocatus diaboli) to gainsay every candidacy for sainthood, the presumption is against issuing the award, and overwhelming evidence is expected to overcome this presumption.

The Volt is scheduled to go on sale in 2010 for an estimated $40,000 per vehicle. By Krauss's reckoning, GM presumably calculated the 230-mpg figure using Environmental Protection Agency draft guidelines for calculating gas consumption of "plug-in" vehicles.

"There is no obviously correct way to compare the efficiency of electric vehicles—whether 'strong hybrids' like the Toyota Prius and the Ford Escape or 'plug-ins' like the Volt," says Krauss. By analysis, Krauss illustrates that in normal use, the Volt's actual efficiency in high-electricity-cost states could drop to an equivalent of 90% less than GM's touted mileage estimate.

"The federal government now owns a controlling interest in GM. Will it promulgate EPA final guidelines that authorize the Volt's 230-mpg claim?" Krauss asks. "Or will Washington force GM to disclose how poor a choice this 'game changer' is for almost everyone."

General Motors' Game-Changing Bid, Forbes, September 16, 2009. By Michael I. Krauss.

Excerpt:
"For plug-ins, however, the mileage measurement apparently authorized by the EPA draft guidelines is unintelligible. The Volt, for example, has enough electrical storage to travel 40 'ideal' miles (probably closer to 30 miles in real conditions) on battery power alone. GM claims this range is enough to allow 75% of Americans to commute to work and back. If a Volt owner were to forever restrict her driving to trips of less than 30 miles between charges, the Volt would give her not the claimed 230 mpg, but 'infinite' miles per gallon; the car might, theoretically, never need gasoline. This alone makes a mockery of the draft guidelines, which assume that at some point the Volt will be driven by its tiny gas engine.

"Then there's the cost of the charge. Since the Volt must be plugged in to recharge its battery, the draft guidelines factor in 11 cents per kilowatt-hour (current kwh prices range from 8 cents in North Dakota to 20 cents in Connecticut). GM estimates that the Volt will require 10 kwh for one complete charge (40 'ideal' miles, 30 'real' ones), or 25 kwh for every 100 'ideal' miles electrically driven. At 11 cents per kwh, 100 'ideal' miles of electric driving would cost the driver $2.75 ($2 in North Dakota, $5 in Connecticut). Since 87-octane gasoline currently costs $2.75 per gallon, one might say with a straight face that the Volt can theoretically travel 100 miles for the price of one gallon of gas. That is the equivalent of 100 mpg--60% less than GM's claimed 230.

"It gets worse. What if the owner drives more real miles than 30? The Volt's 1400cc gas engine must take over--not to drive the wheels, as other cars’ engines do, but to recharge the battery so that battery can power the electric motor that drives the wheels. What an inefficient torque delivery system! The Economist calculates that one should expect no more than 20 mpg with gasoline."

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Panelists at the symposium used the event as an opportunity to discuss and debate current Second Amendment issues and scholarship, while also discussing key topics such as "original intent" versus "the living Constitution" and the scope and future of the Heller decision.

In addition to Lund, the event featured such Second Amendment experts as Professors Nicholas Johnson of Fordham University and Michael O'Shea of Oklahoma City University, David Kopel of the Independence Institute, and historian Clayton Cramer, among others.

The symposium was sponsored by The NRA Foundation and the Northwestern University Chapter of the Federalist Society.  

"Sunstein has nothing to do with the 'czars' or the problems with the 'czars," said Somin. "The ironic thing is that anybody else who might be appointed to this job would be less qualified, and more liberal. I disagree with what Sunstein writes in 'Nudge." But what he advocates is not as bad as the views likely to be held by other people who could run [the Office of Information and Regulatory Affairs]."

Sunstein went through confirmation hearings before the Senate Committee on Homeland Security and Governmental Affairs in May, but his nomination has been placed on hold in the time since. Meanwhile, Sunstein has been under attack by conservatives for some of his more controversial views.

Attacks on Sunstein Frustrate Conservative Fans, The Washington Independent, September 9, 2009. By David Weigel.

Excerpt:
"Nine months later, Sunstein is still not working at the regulatory office. In May, he went through confirmation hearings before the Senate Committee on Homeland Security and Governmental Affairs. In June, Sen. Saxby Chambliss (R-Ga.) placed a hold on his nomination, citing concerns about Sunstein’s opposition to hunting. In July, Sen. John Cornyn (R-Texas) placed another hold on Sunstein, for the same reason. On August 7, before leaving for recess, Sen. Harry Reid (D-Nev.) filed for cloture on the nomination. But another senator, who has not made his or her name public, has placed a hold on Sunstein, making it unclear when the Senate might take up his nomination.

"After the departure of Van Jones, the former White House special adviser for green jobs, enterprise and innovation, Washington has begun to take more seriously an argument made on July 30 by Rep. Eric Cantor (R-Va.) — that Obama is attempting to expand the number of 'czars' in order to sneak radicals into his administration. The president, wrote Cantor in The Washington Post, has appointed a 'virtual army of "czars’"— each wholly unaccountable to Congress yet tasked with spearheading major policy efforts for the White House.' And Sunstein is often included in that list. According to Rep. Jack Kingston (R-Ga.), who has introduced legislation that would cancel the salaries of presidential appointees who haven’t been confirmed by the Senate, Sunstein is one of 34 such 'czars.' Glenn Beck, the TV and radio host who has taken credit for the campaign that ousted Jones, has attacked the man he calls 'Regulatory Czar Cass Sunstein' on no fewer than 12 episodes of his Fox News show."

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Zywicki points out that the cost to the consumer of a bounced check (or its electronic counterpart) can far exceed the cost of overdraft insurance, which the consumer can elect to use for situations that cannot be anticipated.

"Market competition is most useful precisely in situations like this—when we don't know what consumers prefer and so we allow market experimentation to match consumers to the products that they prefer," says Zywicki. "If consumers don't want to pay overdraft fees the answer seems pretty simple—don't overdraw your account, which has been the rule for centuries when it comes to checks. Otherwise don't interfere with consumer choice to select this useful, albeit expensive, product. Or use a credit card and pay it off at the end of the month, which is probably the best option of all."

The Debit Card: Trap or Sound Choice? The New York Times, September 9, 2009.

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