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By  - heritageaction.com Posted November 24th, 2015

Today, conservative leaders sent a letter to House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell urging them to continue the policy contained in recent appropriations bills restricting the use of Obamacare’s “Risk Corridor” program:

As you begin negotiations over legislation to continue government funding past December 11, 2015, we the undersigned individuals and organizations urge you to continue the policy contained in recent appropriations bills restricting the use of Obamacare’s “Risk Corridor” program.

Many of us signed on to a letter last year describing the Risk Corridor program (Sec. 1342 of the Patient Protection and Affordable Care Act, better known as “Obamacare”) in detail and outlining why we believed it was important to restrict its ability to serve as a “taxpayer bailout” for Obamacare participating insurance companies. Fortunately, Congress was able to insert such language into the last omnibus appropriations act (specifically Division G, Title II, Sec. 227 of P.L. 113-235).

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Lawyer cartel fights uberization of the law: Column

By Tom Gordon - usatoday.com Posted on November 19th, 2015

Imagine that at tax time you’re required to either fill out your 1040 without help or pay a CPA hundreds of dollars to do it for you. There’s no H&R Block, and while TurboTax exists, it’s under constant siege by state regulators for being an unlicensed accountant.

That’s analogous to the situation that most Americans face whenever they have a legal issue. For even simple matters, they have to either do it themselves, hire a lawyer for over $200 an hour or use software that can do the job well but which the lawyer cartel is trying to put out of business.

Responsive Law’s Report Card on Barriers to Affordable Legal Help, which will be released Thursday, grades each state on how restrictions created by lawyers make legal help expensive and inaccessible for its residents. No state received a grade above a C. The two factors most responsible for the low grades are restrictions on who can provide legal services and restrictions on the corporate structure of law firms.

For a basic will or uncontested divorce, a consumer could be well served by a competent professional other than a lawyer. However, in most states, only lawyers are allowed to provide these services. State bars have used vaguely worded restrictions on the “unauthorized practice of law” to bring legal actions against everyone from major companies like LegalZoom to small mom-and-pop operations.

The worst offender in restricting competition is Florida, which received an F in the category of Barriers to Non-Lawyer Help. The Florida Bar has a $1.97 million annual budget dedicated to enforcement of unauthorized practice restrictions that it has used to pursue charges against people like Katie Vickers, a senior citizen who helped a fellow parishioner at her church with completing workers compensation forms.

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The Human Right to School Choice

By m.washingtontimes.com Posted November 17th, 2015

For decades, advocates of school choice programs have made their case to city and state officials. They have rightly argued that allowing parents to use public funds to send their children to private schools helps minority students overcome the challenges to learning that exist in many urban public schools.

It’s time to take this argument to a less familiar place: the United Nations.

We will have just that opportunity later this month, when a United Nations expert committee meets to discuss the International Convention on the Elimination of All Forms of Racial Discrimination, an international treaty adopted in 1965. This group — the Committee on the Elimination of Racial Discrimination (CERD) — should use the occasion to consider how countries can protect education rights, combat prejudice and promote tolerance by providing public funds for school choice.

Parents in Europe, North America and South America have for centuries chosen to educate their children in Catholic elementary and secondary schools. In many countries, governments provide tuition assistance to parents or funds to Catholic and other K-12 religious schools, the former of which arrangements the U.S. Supreme Court has approved.

Nevertheless, during the 19th century, many states adopted constitutional amendments that prohibit the direct or indirect use of public funds for “sectarian” purposes. These so-called Blaine Amendments (named after the congressman who attempted, but failed, to secure the adoption of a comparable amendment to the U.S. Constitution) were based on anti-Catholic prejudice and were designed to limit the educational options of immigrant families.

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Woodrow Wilson Was Our Worst President

By  - lewrockwell.com Posted on November 21st, 2015

This is an excerpt from Progressivism: A Primer on the Idea Destroying America(2014).  It appears in a section called “A Rogue’s Gallery of Progressives” along with articles on Lincoln, TR, FDR and LBJ]

Woodrow Wilson was our worst president.  He did many of the things that Lincoln did to destroy life, liberty and property but did them on a grander scale, with less excuse and with more lasting consequences.  It is true that Lincoln laid the groundwork for the modern monstrosity we suffer under now, however, it is also true that federal spending sharply declined after his war and remained modest until the Wilson administration.  It was Wilson, not Lincoln, who birthed the permanent federal leviathan of today.

Lincoln’s war was brutal and savage and its damage is still felt today, however, at least his apologists have resort to the post hocrationalization that he was “freeing the slaves.”  In pushing the United States into the war that would ruin a human century, Wilson was instead freeing the British and French Empires. Enormous egos typify the leaders of progressivism: TR, FDR, LBJ.  None of them, however, recklessly plunged our nation into a world war in the absence of a direct attack, believing that the resulting chaos would somehow reshape the world for the better.  Don’t let his utter lack of charisma fool you. Wilson’s ego was as big as any of theirs.

Wilson’s various contributions to big government surpass those of any other president.  They include:

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The WellCare Case Provides an Example of Overcriminalization in Action

By ADAM BATES - cato.org Posted November 19th, 2015

Overcriminalization is not a myth. Labyrinthine regulations often produce absurd outcomes, including prison sentences for individuals who do everything in their power, including consulting multiple attorneys, to comply with the law before acting.

recent op-ed in The Washington Times illustrates the point, using a recent Medicaid fraud case that is currently in front of a federal appeals court:

Here’s a quiz: Which of the following is a federal crime: (a) A hamster dealer needlessly tilting a hamster’s cage while in transit; (b) subliminally advertising wine; or (c) selling a fresh steak with paprika on it?

Give up? The answer: all of the above.

Right now, there are approximately 4,500 federal criminal statutes and 300,000 administrative regulations that can be punished with imprisonment — and the list keeps growing. This is an invitation for our government to over-prosecute. Too often, federal prosecutors are accepting that invitation and rejecting more measured and effective administrative and civil remedies.


In a case that was recently argued before a federal appeals court, executives at WellCare, a managed health care company in Florida, were prosecuted based on their reasonable interpretation of a Florida statute. Federal prosecutors, however, disagreed with the company’s interpretation, even though Florida never issued any regulations contradicting the executives’ reading of the law.

The legal framework WellCare operated in was complex. In a nutshell, Florida’s Medicaid program required managed care companies to report expenses they paid for providing behavioral health care — like mental health services. If the company did not spend at least 80 percent of the premiums they received, they had to return some of the premium dollars to the state. The executives at WellCare read Florida’s requirements as allowing them to classify as expenses the money that WellCare paid to its subsidiary that actually provided all the services.

Florida never clarified the law to say whether this was allowed or not, so WellCare did what businesses do — it consulted a lawyer. And WellCare’s lawyers — both in-house and independent outside counsel — said that the way they were reading the law was reasonable. Other companies providing these services under Florida’s Medicaid program read the law in a similar way. Admittedly, WellCare’s interpretation made the company more money, but, of course, making money is what a corporation ought to do.

Federal prosecutors disagreed and brought criminal charges against its executives. The prosecutors argued that WellCare lied when it sent in expense forms reflecting its reading of the law. At trial, even the government’s witnesses agreed that WellCare’s interpretation of the law made sense. And because this complicated question of how to read a technical Florida health care law was improperly left to the jury instead of the judge, the executives were convicted after a month of stalled deliberations. The company’s reasonable interpretation of a complex law — which was vetted by lawyers — was no sanctuary from a conviction for the company’s executives.

The executives were sentenced to prison up to three years. Yet another company that used the same accounting method was only sued for breach of contract and didn’t even have to pay back any money to Florida.

A federal appeals court has a chance to correct this and uphold a firmly established principle of criminal law: Where a citizen reasonably interprets complex regulatory law, a judge — not a jury — should throw out the case.

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What Happens To A Texas Veterinarian Could Make A Difference In What You’re Allowed To Say

By  - abovethelaw.com Posted November 23rd, 2015

What happens to one Texas veterinarian could make a big difference in the lives of licensed professionals across the country, including attorneys.

When the United States Supreme Court holds its next conference this Tuesday, November 24, the Justices will consider whether to grant certiorari in the case of Hines v. Alldredge. If SCOTUS agrees to hear the case, the Court’s decision could be one of its most important rulings to date on the legal status of occupational speech — speech performed in the context of one’s occupation or profession.

The petitioner, Ron Hines, is a veterinarian who, after retiring from nearly 40 years of traditional veterinary practice in 2002, began offering advice to pet owners through online articles about pet health, as well as email and phone conversations with individuals who sought his help. He prescribed no medications. He performed no procedures. He made clear on his homepage and in his site’s terms of use that his advice and support should not replace appropriate care by a local veterinarian.  

The Texas Board of Veterinary Medical Examiners nevertheless sanctioned Hines.

The Vet Board had tightened its rules in 2005, arguably in order to squeeze out online resources for pet owners that had begun drawing away business from brick-and-mortar vet clinics. The new rules stipulate that vets can only practice if they have recently examined an animal or visited its home. Section 801.351(c) of the Texas Occupations Code now expressly states, “A veterinarian-client-patient relationship may not be established solely by telephone or electronic means.”

Hines, represented by counsel from the Institute for Justice, subsequently argued in court that the law as applied to him violated his free speech rights under the First Amendment.  

The Fifth Circuit Court of Appeals upheld the state’s speech restriction because it applied to licensed professionals in the context their occupation. So, Hines is now asking the Supreme Court to review the case. In his cert petition, he writes:

“This petition raises a matter of first impression in this Court about occupational speech.  While such speech is widespread, this Court has never squarely addressed its constitutional status.  The Fifth Circuit below held that restrictions on veterinary-medical advice are not subject to First Amendment scrutiny.  There is now a direct, outcome-determinative split of authority between the Fifth and Eleventh Circuits on the one hand, and the Third and Ninth Circuits on the other, over whether the First Amendment protects medical advice.  More generally, the decision below also deepened intractable splits of authority over whether restrictions on occupational speech are ever subject to First Amendment scrutiny.”

Amici filing briefs supporting Hines include the Cato Institute with the Mackinac Center for Public Policythe Pacific Legal Foundationthe Association of American Physicians and Surgeons, and a cohort of citizens who believe their own speech rights have been violated by various state occupational licensing bodies.

There are plenty reasons why SCOTUS should grant cert in Hines. The ruling in Hinescould subject licensed professionals in all fields to sweeping limits on what and how they communicate, without the state needing to provide much justification for why particular speech must be outlawed.  

But first, consider the lower court’s mix-up of two distinct concepts in First Amendment law.

Apparently, the Fifth Circuit mistook content neutrality for viewpoint neutrality. What the opinion seems to pack into its explanation of why the law is content-neutral, in fact, more accurately explains why the law is viewpoint-neutral.  

The Fifth Circuit opinion characterizes the state law at issue by stating, “It does not regulate the content of any speech, require veterinarians to deliver any particular message, or restrict what can be said once a veterinary-client-patient relationship is established.” The opinion later refers again to “content-neutral regulation” and evaluates the law under the lower level of scrutiny ordinarily applied to content-neutral restrictions.

The Vet Board rule that would prevent Dr. Hines from speaking as he wishes, however, is simply not content-neutral.  

A restriction on speech is viewpoint-based if it favors or disfavors a particular opinion communicated by the speech. So, if the Board told Texas veterinarians that they may not suggest dietary changes to treat a condition for which there is a prescription medication available, that would be a viewpoint-based restriction. They would be limiting vets to only advocating one side of a controversial issue.

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The People Still Want Smaller Government

By DAVID BOAZ - cato.org Posted on November 23rd, 2015 

Most of the headlines about the large new Pew Research Center survey (6,000 interviews) have focused on the continuing decline in Americans’ trust in government, as depicted in the chart below.

Trust in government Pew

But the survey also asks one of my favorite questions:

If you had to choose, would you rather have a smaller government providing fewer services, or a bigger government providing more services?

As shown in the chart below, the number preferring smaller government rose to its highest point during the 1990s, then reached a low point as President Obama was elected in 2008, and has been rising since then. In the latest survey 53 percent of Americans say they prefer a smaller government, while only 38 percent would rather have a bigger government with more services.

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Terrorism in Paris: Blowback for Yet Another Unnecessary War

By DOUG BANDOW - cato.org Posted November 23rd, 2015

The latest Paris attacks rightly horrify us, but they should surprise no one, least of all the French. After all, France started bombing Islamic State forces 14 months ago. The targeting of civilians is morally monstrous. However, it is sadly predictable, an almost common practice by weaker powers.

A century ago ethnic Serbs and Russian anarchists employed this hideous tactic. More recently Sri Lankan Tamils and Iraqi Sunnis used it. Now the Islamic State is perfecting a weapon it had heretofore left to al-Qaeda.

The Paris killings weren’t an attempt “to destroy our values, the values shared by the U.S. and France,” as claimed by Frederic Lefebvre of the National Assembly. Rather, admitted French academic Dominique Moisi, the Islamic State’s message was clear: “You attack us, so we will kill you.” As America learned on September 11, 2001, intervening in other nations’ political and military struggles inevitably creates enemies and blowback.

Explanation is not justification. But any government that attacks the Islamic State should realize retaliation against people innocently going about their lives, as in Paris, is likely.

This kind of terrorism simply is another weapon of war. If the Islamic State was a normal nation ISIL planes might have retaliated by striking Paris.

The Islamic State undoubtedly had the desire but not the capability to strike directly. So it turned to terrorism.

Of course, those killed did not deserve to die. But said one of the killers, “It’s the fault of your president, he should not have intervened in Syria” and Iraq.

Western governments which let loose the dogs of war should stop pretending that their nations enjoy immunity from attack. There are no certainties even for America, which has done surprisingly well since 9/11.

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World Fisheries Day

By Hannah Downey - perc.org Posted on November 19th, 2015

November 21 is World Fisheries Day, a day to celebrate fishing communities and focus on managing global fisheries to ensure sustainable stocks and healthy ocean ecosystems.

Twenty three years ago, when we began to realize collapsed fisheries were a huge problem, Donald Leal described how property rights could save fisheries in the December 1992 edition of PERC Reports:  

Overfishing has plagued the oceans for centuries.  In areas where no limits are set on harvest, fish populations dwindle because fishermen have no incentive to preserve fish for the future. Indeed, off the coast of New England, groundfish populations – that is, cod, haddock, and flounder – have been falling fast, costing the region $350 million and 14,000 jobs, according to a 1990 report by the Massachusetts Offshore Groundfish Task Force. 

Governments, national and local, often deal with the problem by setting a limit on the overall catch of certain fish in their jurisdictions. Theoretically, such a limit will protect future catches by leaving enough fish to propagate.

But such a limit can cause havoc among fishermen. Knowing that the season can end as soon as the annual harvest level is reached, fishermen race to the fishing grounds and try and catch as many fish as possible. To stay competitive, fishermen are forced to invest in expensive equipment and bigger and faster boats and to take dangerous risks. With such a short season, they can suffer financial disaster if an equipment breakdown occurs on opening day

The Race to Fish
Governments can also try other techniques such as gear restrictions and split seasons. But fishermen typically find ways around these restrictions and the race to fish continues. In the end, both fishermen and consumers suffer. With seasons lasting a few hours or a few days, the markets are flooded with fish, lowering the price fishermen receive. Instead of fresh fish, consumers have to eat frozen fish for most of the year. 

In recent years, however, a new technique-a new system of ownership-has emerged to manage fisheries. These are called individual transferable quotas or ITQs. Each fisherman has a property right in a fixed proportion of the total allowable catch each year. This right can be traded. 

ITQs eliminate the race-to-fish atmosphere plaguing fisheries. With a secure right to a specific amount of fish each year, each fisherman can focus on harvesting that amount of fish as inexpensively as possible and at a time when it should bring the highest value.

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Not Everything That’s Unseemly Should Be Illegal

By ILYA SHAPIRO and RANDAL JOHN MEYER - cato.org Posted November 23rd, 2015

The explosion in criminal statutes is only a part of the problem of overcriminalization. The other side of the coin is prosecutorial discretion: a prosecutor’s official authority to charge certain offenses and not to charge others. The growth of criminal codes, state and federal, gives prosecutors more tools, which allows them to both “stack” charges and expand the reach of criminal code provisions to new, non-criminal facts.

Take for example several recent prosecutions under New Jersey’s official misconduct statute, a felony provision with a mandatory five-year, no-parole sentence.

On its face, the law simply prevents government officials from abusing their offices for personal gain. “Official misconduct” under the statute means an official’s act or omission “relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.” Prosecutors have used this broadly worded language in highly creative ways.

In one recent case, New Jersey Superior Court Judge Carlia M. Brady was charged with official misconduct and harboring a fugitive. Judge Brady went to the police on June 10, 2013 to report that her car was stolen and that her then-boyfriend, Jason Prontnicki, was likely involved. As it turned out, Prontnicki was wanted on an outstanding warrant for robbery. The police informed Judge Brady that she was obliged as an “officer of the court” to inform the police as to Prontnicki’s whereabouts. When Prontnicki showed up at her house for brief periods of time on June 10 and 11, Judge Brady informed Prontnicki that he could not stay with her and Prontnicki made clear his intentions to turn himself in with the help of counsel. After both incidents, Judge Brady called the police and left unreturned voicemails. On June 11, police arrested Prontnicki and Brady at her home.

Clearly Judge Brady had violated her duty to report the whereabouts of a wanted criminal suspect, right? The only problem is that such a duty doesn’t exist, either for citizens generally or for judges specifically.

In New Jersey, like most places, the enforcement of arrest warrants is the job of law enforcement officials, such as police. Indeed, the very idea of a judge enforcing the warrants she or her colleagues issue conjures up the ridiculous image of a robe-clad jurist chasing a fleeing suspect while wielding a wooden gavel. The state supreme court has even made clear that judges don’t have an official duty to effectuate arrest warrants.

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