A picture of Shawn Moore’s 11-year-old clad in camouflage and holding a scary-looking gun prompted New Jersey’s Department of Children and Families to visit his house for an “inspection,” according to Moore. As reported by the Associated Press:

The elder Moore was at a friend’s house when his wife called, saying state child welfare investigators, along with four local police officers, were at the house, asking to inspect the family’s guns.

Moore said he called his lawyer Evan Nappen, who specializes in Second Amendment cases, and had him on speaker phone as he arrived at his house in Carneys Point, just across the Delaware River from Wilmington, Del.

“They said they wanted to see into my safe and see if my guns were registered,” Moore said. “I said no; in New Jersey, your guns don’t have to be registered with the state; it’s voluntary. I knew once I opened that safe, there was no going back.”

The Department of Children and Families has not confirmed that the Facebook picture was the reason for the surprise “inspection,” but a spokeswoman did comment that it is “important to note the way an investigation begins is through the child abuse hotline. Someone has to call to let us know there is a concern.” 

Yesterday, I argued on FoxNews​.com that the gun debate is really a culture debate. Two cultures are emerging in America. One culture respects guns as important tools in the hands of responsible citizens. The other culture is disgusted by guns. It is becoming increasingly difficult to bridge the gap between those cultures in order to devise reasonable and effective gun laws that respect citizens’ Second Amendment rights. 

Clearly, Mr. Moore is in the former camp and has taught his son how to responsibly use firearms. Appearing on “Fox and Friends” this morning, Moore’s son Josh said he’d been shooting guns since he was five, that he likes to hunt, and is a “pretty good shooter.” 

Yet many who are animated by “gun disgust” believe keeping firearms in the home is tantamount to child abuse. But the actual number of accidental firearm deaths of children are usually grossly overstated. In 2010, the CDC reported 62 deaths by accidental firearm discharge for children between 0–14 years old. (You can check the numbers yourself here.)

While each and every one of these deaths is undeniably tragic, the number is far less than deaths due to accidental drownings (726) or bicycles (approximately 100 in 2006). Yet I’m sure social services would not have visited Mr. Moore’s house if he had put up a picture of Josh on a new ten-speed. In fact, for an instrument with such potential for lethality, the number of accidental gun deaths for children is remarkably low. Even seemingly innocuous things, such as adult beds, can kill dozens of children per year. Between 1999–2001, 41 children under five died after being caught between a mattress and a wall or headboard. Nevertheless, during the Clinton administration the Department of Justice ran a series of ads designed to frighten parents about the dangers of unlocked guns, claiming that “an unlocked gun could be the death of your family.”

Those numbers are unlikely to change the minds of the gun-disgusted. As in many areas of public policy, facts often matter less than we’d like to believe. 

With Justice Breyer writing, a unanimous Supreme Court in Standard Fire Insurance Co. v. Knowles (opinion PDF, background SCOTUSBlog) has struck down as invalid a dodge used by some plaintiff’s lawyers to evade the provisions of the Class Action Fairness Act of 2005 (CAFA). As we wrote in October when Cato filed its amicus brief: 

In relevant part, CAFA provides defendants with the right to move class actions to federal court where the claim for damages against them exceeds $5 million. But can clever lawyers keep these cases out of federal court by simply “stipulating” that potential damages are less than $5 million — and before the named plaintiff is even authorized to represent the alleged class? In this case, Greg Knowles is the named plaintiff in a putative insurance-recovery class action against Standard Fire Insurance in Arkansas state court. Before the court certified the class, Knowles tried to avoid that removal to federal court by stipulating that his class would not seek more than $5 million in damages at trial. Notably, the stipulation is worded in such a way that it will not apply if the class definition is later altered. … CAFA was enacted specifically to discourage attorneys from “forum shopping” (seeking friendlier courts) and attempting to keep cases out of federal court. Lawyers who game the system by agreeing to cap damages in an effort to keep cases in more favorable state courts violate the federal due process rights of absent would-be class members, thereby flouting CAFA. 

In his opinion for the unanimous Court, Justice Breyer found that the named class representative lacked a right to limit absent class members’ claims in such a way. Individual litigants remain free to avoid federal jurisdiction through the use of damage stipulations, but that is a decision they are entitled to make only for themselves. That’s very much consistent with the principles Cato urged, and with the importance of individual rights as the fundamental basis for legal action, rather than as mere ingredients to be aggregated by lawyers seeking settlement advantage. Thanks again to the ever-brilliant David B. Rivkin, Jr., Andrew M. Grossman and colleagues at Baker & Hostetler for their work on the Cato brief.

In anticipation of a hearing in the House Judiciary Committee Wednesday afternoon, Sandra Aistars, executive director of the Copyright Alliance, writes in the Hill about the principles that should guide copyright reform, calling for debate “based in reality rather than rhetoric.”

Chief among these principles is that protecting authors is in the public interest. Ensuring that all creators retain the freedom of choice in determining how their creative work is used, disseminated and monetized is vital to protecting freedom of expression.

Arguing for authors in terms of freedom of choice and expression is good rhetoric, but it’s quite unlike what I expect you’ll hear during our noon Wednesday forum on copyright and the book Laws of Creation: Property Rights in the World of Ideas.

Authors Ron Cass and Keith Hylton methodically go through each intellectual property doctrine and explore its economic function, giving few words to authors’ “choice” or their “freedom of expression.” They certainly don’t denigrate authors or their role, but Cass and Hylton don’t vaunt them the way Aistars does either.

Recent events in the copyright area are providing much grist for the discussion. You can still register for the book forum, treating it as a warm-up for Wednesday afternoon’s hearing, if your freedom of choice and expression so dictate.

While the Cypriot Parliament may be dragging its feet on a proposed rescue plan for Cyprus’ banks, the country ultimately faces a choice between Brussels’ bitter pill…and bankruptcy. Cyprus’ newly-elected President, Nicos Anastasiades, has quite accurately summed up the situation:

“A disorderly bankruptcy would have forced us to leave the euro and forced a devaluation.”

Yes, Brussels and the IMF have finally decided to come to the aid of the tiny island, which accounts for just 0.2% of European output — to the tune of roughly $13 Billion. But, this bailout is different. Indeed, the term “bail-in” has emerged, a reference to the fact that EU-IMF aid is conditional upon Cyprus imposing a hefty tax on its depositors. Not surprisingly, the Cypriots, among others, are less than pleased about this so-called “haircut”.

Still, the question lingers: Why now? The sorry state of Cyprus’ banking system is certainly no secret. What’s more, the IMF has supported a “bail-in” solution for some time. So, why has the EU only recently decided to pull the trigger on a Cyprus rescue plan?

One reason can be found by taking a look at the composition of Cyprus’ bank deposits (see the accompanying chart).

There are two main take-aways from this chart:

1. European depositors’ money began to flow out of Cyprus’ banks back in 2010. Indeed, most European depositors have already found the exit door.
2. Over that same period, non-Europeans (read: Russians) have increased their Cypriot exposure. If the proposed haircut goes through, Russian depositors could lose up to $3 billion. No wonder Valdimir Putin is up in arms about the bail-in.

Perhaps a different “red telephone” from Moscow will be ringing in Brussels soon.

Zimbabwe, a country with one of the world’s least free economies led for decades by the authoritarian Robert Mugabe, has been growing rapidly in recent years. It has outperformed the group of six African countries dubbed the “Lion Kings” because of their high growth. In a Cato paper released today, Craig Richardson explains the factors behind Zimbabwe’s growth, including high commodity prices, and why its performance is unsustainable. 

On Saturday, Zimbabwe voted on a referendum on a proposed constitution. The results should be known later this week, but as Richardson wrote Friday in a Wall Street Journal Europe op-ed, if the constitution is approved as expected, it will enshrine “government land grabs as perfectly legal.” Recall that the country began a period of severe economic and political turmoil precisely when the government began seizing large commercial farms at the beginning of the last decade. Unfortunately, most signs point to further decline for Zimbabwe.

Much legal commentary at Slate follows a pat formula: judicial activism is a genuine menace, but not from left or liberal jurists. It’s those awful judges on the conservative and libertarian side who engage in the real activism when they strike down laws and government initiatives, or as in the case of ObamaCare, come close to striking them down. To observe the formula at its most mechanical, check out Emily Bazelon’s Slate article last Wednesday portraying a judge’s striking down of Mayor Bloomberg’s ban on big soda sizes as a venture in “conservative judicial activism.”

Never mind that none of the readily available biographical information about jurist Milton A. Tingling seems to justify describing him, as Bazelon does, as a “conservative judge.” (Elected in Manhattan on the Democratic line, Judge Tingling appears to have fit his judicial career comfortably into the framework of Charles-Rangel-era Harlem politics, as David Bernstein mentions at Volokh Conspiracy. In a couple of earlier notable cases, Judge Tingling did rule against police and public-order interests, but we don’t ordinarily regard that sort of civil-libertarian streak as distinctively “conservative.”) 

Bazelon assails Judge Tingling for supposedly substituting his own judgment for that of Bloomberg’s Department of Public Health on the merits of the drinks ban. But everyone agrees the question properly before the court was not whether the judge agreed with the ban. It was instead whether the ban could pass muster under the relevant New York precedent, a 1987 case called Boreali v. Axelrod in which New York’s highest court (to quote the case summary) ruled that the state Public Health Council “overstepped the boundaries of its lawfully delegated authority when it promulgated a comprehensive code to govern tobacco smoking in areas that are open to the public.” Boreali is a distinctive New York case, and creates a test for impermissible delegation that differs from what courts do when applying federal law.

Prof. Aaron Saiger, a specialist in local government law at Fordham Law School in Manhattan, had this to say the other day at Concurring Opinions about the drinks ruling: 

… Judge Tingling is right that New York State’s nondelegation doctrine – the doctrine that administrative law professors who teach only federal cases tell their students is a dead letter – prohibits the rule. The foundational case, Boreali v Axelrod, is nearly on all fours with this case. Health departments, pursuant only to sweeping language giving them authority over public health, cannot in New York State limit trade in legal markets over which the legislature has given them no explicit authority. If the City is to win its promised appeal, it is going to need to argue that Boreali should be overruled or limited.

The problem with that is that Boreali is right. Nondelegation is an important constitutional principle and should not be sidelined out of existence. … I think it’s not just reasonable, but better politics, better civics, and better constitutional law to require those shoves [i.e., paternalistic “nudges”] to come from a legislative, rather than an executive and bureaucratic, process.

Saiger’s commentary is all the more pertinent because he’s anything but a fan of the decision’s craftsmanship. Unlike Judge Tingling, he doesn’t think the ban was arbitrary or capricious; he doesn’t believe the city’s charter should be read to limit the Health Department’s decree powers to those responding to imminent or emergency health threats; and he’s not averse in principle, he says, to what the Mayor was trying to do. 

So what does Bazelon think about Boreali v. Axelrod? Does she think it should be overruled or can somehow be distinguished from the beverages case? It’s hard to tell, because her article never mentions Boreali at all, though Judge Tingling had laid it out at great length as the precedent on which he was basing his decision. 

Judges shouldn’t — and Judge Tingling didn’t — breeze right by the relevant case law in the course of reaching a foreordained conclusion. If only all legal commentators were as careful.

Health Matrix: a Journal of Law-Medicine at Case Western Reserve University School of Law has released “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA,” a paper I coauthored with CWRU law professor Jonathan Adler. From the abstract:

The Patient Protection and Affordable Care Act (PPACA) provides tax credits and subsidies for the purchase of qualifying health insurance plans on state-run insurance exchanges. Contrary to expectations, many states are refusing or otherwise failing to create such exchanges. An Internal Revenue Service (IRS) rule purports to extend these tax credits and subsidies to the purchase of health insurance in federal exchanges created in states without exchanges of their own. This rule lacks statutory authority. The text, structure, and history of the Act show that tax credits and subsidies are not available in federally run exchanges. The IRS rule is contrary to congressional intent and cannot be justified on other legal grounds. Because tax credit eligibility can trigger penalties on employers and individuals, affected parties are likely to have standing to challenge the IRS rule in court. 

This paper led to one of the most important (and ongoing) legal challenges related to the PPACA. Access the full paper here.