Two weeks ago, when D.C. District judge Richard Leon ruled that mass government surveillance of Americans’ telephone calling was likely unconstitutional, there was some well-poisoning about his opinion being “passionate.” The implication, of course, was that he was not being suitably judicial. The same could be said of this week’s ruling by Judge Pauley of the U.S. District Court in New York. When the first sentence intones: “The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is,” and when the first citation is a “See generally” to the 9/11 Commission report, these are not signs that you’re about to get dispassionate application of law to facts.

Judge Pauley’s use of the 9/11 Commission report to argue that NSA data collection could have foiled the 9/11 plot is belied by the report’s clear statement with respect to Khalid Al-Mihdhar: “No one was looking for him.” (page 269) In our paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” Jeff Jonas and I detailed ways many of the 9/11 terrorists could have been found had anyone been looking. The argument that NSA spying would have prevented 9/11 is not a strong one.

But passions pitted against one another is just one of the symmetries between the two rulings. Judge Leon distinguished Smith v. Maryland. He believes that the Supreme Court case allowing the use of phone call information to convict a suspected burglar and obscene phone caller does not ratify the collection of phone calling information about every innocent American. Judge Pauley treated Smith v. Maryland as controlling. If one burglar in Baltimore doesn’t have a Fourth Amendment interest in his phone calling data, 200 million Americans don’t either. We have appeals to sort these things out, and Judge Pauley’s ruling makes it more likely that such an appeal will reach the Supreme Court, which is good.

The interesting thing in Judge Pauley’s ruling is ammunition he offers to critics of the panels of judges created by the Foreign Intelligence Surveillance Act. People often refer to them as the “Foreign Intelligence Surveillance Court” or “FISC.”

While the FISC is composed of Article III judges, it operates unlike any other Article III court. Proceedings in Article III courts are public. And the public enjoys a “general right to inspect and copy public records and documents, including judicial records and documents.” (citation omitted) “The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.” (citation omitted)

Later, he writes:

The two declassified FISC decisions authorizing bulk metadata collection do not discuss several of the ACLU’s arugments. They were issued on the basis of ex parte applications by the government without the benefit of the excellent briefing submitted to this Court by the Governent, the ACLU, and amici curiae. There is no question that judges operate best in an adversarial system. “The value of a judicial proceeding … is substantially diluted where the process is ex parte, because the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate.” (citation omitted) … As FISA has evolved and Congress has loosened its individual suspicion requirements, the FISC has been tasked with delineating the limits of the Government’s surveillance power, issuing secret decision [sic] without the benefit of adversarial process. Its ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes.

This echoes an argument Randy Barnett and I offered in our brief to the Supreme Court about NSA spying. These so-called ‘courts’ that administer NSA spy programs lack many of the hallmarks of a true court, and their use to dispose of rights that protect our privacy is a violation of due process.

There will be much more to come in the judicial path of the NSA spying debate. The legitimacy of FISA panels should be a part of that discussion.

In 1980, frustrated by the attention given to Paul Ehrlich’s Malthusian doomsaying, economist Julian Simon challenged Ehrlich to a wager. They agreed on a basket of five commodity metals that Simon predicted would fall in price over 10 years (indicating growing supply relative to demand, contrary to the Malthusian worldview) and Ehrlich predicted would rise. In 1990, all five metals had decreased relative to their 1980 prices and Ehrlich cut Simon a check.

In 2011, two education policy analysts made a similar wager. After Jay Mathews of the Washington Post predicted that voters would “continue to resist” private school choice programs, Greg Forster of the Friedman Foundation for Educational Choice challenged Matthews to a wager, which Mathews accepted: Forster would win if at least seven new or expanded private school choice programs (i.e., vouchers or scholarship tax credits, but not including charter schools) were signed into law by the end of the year. That July, the Wall Street Journal declared 2011 to be the “Year of School Choice” after 13 states enacted 19 new or expanded private school choice programs, nearly triple the number Forster needed to win the bet.

Undeterred, the following year Mathews proclaimed that school choice programs “have no chance of ever expanding very far,” prompting another challenge from Forster. Mathews did not take the bet, which was fortunate for him because in 2012 10 states enacted 12 new or expanded private school choice programs.

Now, for the third year in a row, Forster’s prediction has proved true, with 10 states enacting 14 new or expanded private school choice programs, including:

• Alabama: new scholarship tax credit program and new tax credit rebate program
• Arizona: expansion of education savings account program
• Georgia: expansion of scholarship tax credit program
• Indiana: expansions of voucher program and scholarship tax credit program
• Ohio: new statewide voucher program
• North Carolina: new low-income voucher program and new special needs voucher program
• Iowa: expansion of scholarship tax credit program
• South Carolina: new special needs scholarship tax credit program
• Utah: expansion of special needs voucher program
• Wisconsin: new statewide voucher program and new tuition tax deduction

Most of these laws are overly limited and several carry unnecessary and even counterproductive regulations like mandatory standardized testing. Nevertheless, they are a step in the right direction, away from a government monopoly and toward a true system of education choice.

Of course, that’s why defenders of the status quo have made 2013 the Year of the Anti-School Choice Lawsuit.

Check out this video put together by the good people at the Global Post — an online mag that has done much to establish itself as a serious news outlet, only to have its efforts set back by this piece of fear-mongering trash. 

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Throughout the year, we are constantly bombarded by bad news. Stories about hunger, violence, oppression and illness flow from our television sets and radios, and fill the pages of our newspapers. And true enough, for far too many people, 2013 was not a good year. We must, however, distinguish between stories of individual unhappiness and disaster, and long term trends – which are, on the whole, positive. Over the last couple of weeks a number of stories pointed to these positive developments and I include them below:

NPR Morning Edition “Tired of Doom And Gloom? Here’s the Best Good News of 2013”

Cracked​.com “5 Amazing Pieces of Good News Nobody is Reporting”

Washington Times “Most Things are Better Now”

The​At​lantic​.com “Is the Pope Right About the World?”

For nearly 30 years, Connecticut beverage distributors received the unclaimed refund value of recycled bottles as part of the state’s Bottle Bill, which set up a refund system for used bottles as an attempt to encourage recycling. As in other states, the law requires beverage dealers to pay refunds for every bottle turned in.

Fiscal troubles in 2008 prompted Connecticut to amend the law, however, to require a “deposit account” from which distributors were to pay the refunds. This requirement was intended to aid the state environmental agency to study the rates of deposit payments and returns. The following year, the fiscal situation worsened, and the Bottle Bill was again amended, this time to require the remaining funds in the deposit accounts (after returns were paid out) to be paid to the state—retroactively including any unpaid remainder funds since the accounts went into effect in 2008.

A. Gallo & Co. and other beverage distributors in Connecticut saw this as an uncompensated taking of their property and sued the state. They took their case through the state court system, but even the Connecticut Supreme Court turned a blind eye, holding that beverage distributors never had a property right in the remainder funds in the first place. The distributors have now asked the U.S. Supreme Court to hear their case, and Cato joined the New England Legal Foundation, the Southeastern Legal Foundation, and the National Federation of Independent Business on a brief supporting their petition.

We argue that Connecticut’s budgetary troubles are no excuse for violating a longstanding property right without compensation. Moreover, by twisting its statutory interpretation to satisfy political pressures, the Connecticut Supreme Court has made itself complicit in the uncompensated taking. It’s bad enough when strapped-for-cash legislatures unfairly force public burdens onto the shoulders of private parties to feed their spending addictions, but when all three government branches — including the one entrusted with soberly interpreting the law, especially in times of fiscal emergency — get drunk on power and deny even the existence of a property right, it’s time for a Supreme Court intervention.

The Supreme Court will decide by winter’s end whether to take the case of A. Gallo & Co. v. Esty.

One of the big Obama administration trade initiatives going on right now is negotiations with eleven countries in the Pacific region, called the Trans Pacific Partnership (TPP). What exactly is being talked about in these trade talks? Is it really about free trade? Based on standard media coverage of the issue, it’s not easy to discern. Here’s an example from the Washington Post.

In the print version of the piece, the title notes that the U.S. is seeking “to shape global trading rules”; and the sub-title says that the goal of the talks is “a freer flow of world commerce.” That sounds free trade-ish. But is it free trade? And if not, what is it?

When you look at the substance that is described in the article, the talks seems much broader, and do not have a very free trade feel. Take a look at these examples:

When Vietnamese officials issued new Internet rules this year, the U.S. tech industry gave a shudder.

The regulations clamp down on political speech, require companies such as Facebook and Google to invest in local computer infrastructure to store information on Vietnamese users, and could force chipmakers to strip standard encryption features from their processors.

Only one of these is about free trade (the local computer storage requirements). The rest are all domestic laws that affect trade. But perhaps more accurately, the U.S. trade goal here is changing other countries’ domestic laws so as to increase US exports, which isn’t free trade at all.

Some of these changes may be good (e.g., taking on speech restrictions); I’m less certain about others, such as the stronger intellectual property rules mentioned later in the article. But the article gives away the real policy goal, when it says:

the more significant fights … are over issues such as the regulation of the Internet and e‑commerce, the rules for the patent and sale of biopharmaceuticals, and the oversight of logistics, consulting, energy management and other service industries where the U.S. holds an edge.

Putting it this way, the talks seem to be about economic nationalism pursued through trade agreements! Make everyone use our rules, which will give our companies an advantage. Along the same lines, the online title of the article is as follows: “Through trade treaty, U.S. hopes rules that favor its companies will become the norm.”

There is real free trade in these talks, of course. There will be lower tariffs and liberalized services trade, and government procurement will be opened up to foreign competition. But the shift to other subjects as the focus, and the emphasis on giving advantages to U.S. companies, has fundamentally altered the nature of these agreements and the debate, and in the process left the media confused about how to talk about free trade and trade agreements. They keep trying to make these agreements sound like they are about free trade, but with the hurdle that much of what’s in them is not.

December 26 is the 120th anniversary of Mao Zedong’s birth, typically a date of great celebration in China. But this year the Chinese government seems somewhat ambivalent about celebrating Mao’s disastrous achievements. It’s about time. 

Many countries have a founding myth that inspires and sustains a national culture. We’ve just seen South Africa and the world celebrate the accomplishments of Nelson Mandela, the founder of that nation’s modern, multi-racial democracy. In the United States we look to the American Revolution and especially to the ideas in the Declaration of Independence of July 4, 1776. 

The Declaration of Independence, written by Thomas Jefferson, is the most eloquent libertarian essay in history, especially its philosophical core:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The ideas of the Declaration, given legal form in the Constitution, took the United States of America from a small frontier outpost on the edge of the developed world to the richest country in the world in scarcely a century. The country failed in many ways to live up to the vision of the Declaration, notably in the institution of chattel slavery. But over the next two centuries that vision inspired Americans to extend the promises of the Declaration—life, liberty, and the pursuit of happiness—to more and more people.

China of course followed a different vision, the vision of Mao Zedong. Take Mao’s speech on July 1, 1949, as his Communist armies neared victory. The speech was titled, “On the People’s Democratic Dictatorship.” Instead of life, liberty, and the pursuit of happiness, it spoke of “the extinction of classes, state power and parties,” of “a socialist and communist society,” of the nationalization of private enterprise and the socialization of agriculture, of a “great and splendid socialist state” in Russia, and especially of “a powerful state apparatus” in the hands of a “people’s democratic dictatorship.”

Tragically, unbelievably, this vision appealed not only to many Chinese but even to Americans and Europeans, some of them prominent. But from the beginning it went terribly wrong, as really should have been predicted. Communism created desperate poverty in China. The “Great Leap Forward” led to mass starvation. The Cultural Revolution unleashed “an extended paroxysm of revolutionary madness” in which “tens of millions of innocent victims were persecuted, professionally ruined, mentally deranged, physically maimed and even killed.” Estimates of the number of unnatural deaths during Mao’s tenure range from 15 million to 80 million. This is so monstrous that we can’t really comprehend it. What inspired many American and European leftists was that Mao really seemed to believe in the communist vision. And the attempt to actually implement communism leads to disaster and death.

When Mao died in 1976, China changed rapidly. His old comrade Deng Xiaoping, a victim of the Cultural Revolution, had learned something from the 30 years of calamity. He began to implement policies he called “socialism with Chinese characteristics,” which looked a lot like freer markets — decollectivization and the “responsibility system” in agriculture, privatization of enterprises, international trade, liberalization of residency requirements.

The changes in China over the past generation are the greatest story in the world—more than a billion people brought from totalitarianism to a largely capitalist economic system that is eroding the continuing authoritarianism of the political system. On its 90th birthday, the CCP still rules China with an iron fist. There is no open political opposition, and no independent judges or media. And yet the economic changes are undermining the party’s control, a challenge of which the party is well aware. Five years ago Howard W. French reported in the New York Times:

Political change, however gradual and inconsistent, has made China a significantly more open place for average people than it was a generation ago.

Much remains unfree here. The rights of public expression and assembly are sharply limited; minorities, especially in Tibet and Xinjiang Province, are repressed; and the party exercises a nearly complete monopoly on political decision making.

But Chinese people also increasingly live where they want to live. They travel abroad in ever larger numbers. Property rights have found broader support in the courts. Within well-defined limits, people also enjoy the fruits of the technological revolution, from cellphones to the Internet, and can communicate or find information with an ease that has few parallels in authoritarian countries of the past.

The Chinese Communist Party remains in control. But it struggles to protect its people from acquiring information, routinely battling with Google, Star TV, and other media. Howard French noted that “the country now has 165,000 registered lawyers, a five-fold increase since 1990, and average people have hired them to press for enforcement of rights inscribed in the Chinese Constitution.” People get used to making their own decisions in many areas of life and wonder why they are restricted in other ways. I am hopeful that the 100th anniversary of the CCP in 2021 will be of interest mainly to historians of China’s past and that the Chinese people will by then enjoy life, liberty, and the pursuit of happiness under a government that derives its powers from the consent of the governed.