14 October 2009

Today’s Tabbloid
PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com

FISCALLY CONSERVATIVE BLOG FEEDS FISCALLY CONSERVATIVE BLOG FEEDS

Blueberries and Honey [The Tuesday Links [Cato at Liberty]

OCT 13, 2009 05:09P.M.
Club for Growth]
OCT 13, 2009 06:02P.M. • How to measure the effectiveness of Obama’s stimulus plan.

Over the weekend, California Governor Arnold Schwarzenegger created a
state blueberry commission and new labeling requirements for honey.
He’s also allowing cows to keep their tails. I’m not making any of this up.
It’s all true...unfortunately.
• Forbes: The CBO estimate of the number of people who would stop
being uninsured under the Senate Finance Committee proposal is
exaggerated by at least 7 million to 10 million.
• Smoke and mirrors within the Senate Finance Committee?

• How to save democracy in Honduras.

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• Video: Economist Daniel J. Mitchell discusses economic reform on
Anti-VAT Caucus Update CNBC.

[Americans for Tax Reform]

OCT 13, 2009 05:27P.M.
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American’s for Tax Reform’s anti-VAT caucus has grown by two senators
and nine congressmen in the last couple of weeks, as the Obama Enough is Enough: More Tax
administration continues to float the VAT as a way to p...
Hikes on the Table for WI
[Americans for Tax Reform]
FISCALLY CONSERVATIVE BLOG FEEDS OCT 13, 2009 05:06P.M.

Olympia Snowe’s Voting Record Just when Wisconsinites thought the onslaught of taxes had ended, some
state legislators want to belly up to the bar again on tax hikes. This time
[The Club for Growth] around they are considering taxes that would rai...
OCT 13, 2009 05:19P.M.

After Snowe’s defection on the Baucus health care bill, I thought I’d
share with you her ratings on the Club for Growth scorecard. Not
surprisingly, they are extremely weak:

Year Score Rank 2008 12% 63 2007 12% 66 2006 9%

62 2005 18% 56

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FISCALLY CONSERVATIVE BLOG FEEDS silly. That seems to be the case in Newark, Delaware, where the Christina
School District just suspended a 6-year-old boy for 45 days because he
Federal Employees’ Health Care brought a dreaded knife-fork-spoon combo tool to school. District
officials, in their defense, say they had no choice — the state’s “zero
To Be Taxed Under Obaucus tolerance” law demanded the punishment.

[Americans for Tax Reform] Now, the first thing I’ll say is that I was very fortunate there were no
OCT 13, 2009 04:59P.M. zero-tolerance laws — at least that I knew of — when I was a kid. Like
most boys, I took a pocket knife to school from time to time, and like
The Obama administration’s allies in Congress have a plan to tax most boys I never hurt a soul with it. (I’m pretty sure, though, that I was
“Cadillac plans”—one that is becoming more and more problematic. The stabbed by a pencil at least once.) I also played a lot of games involving
reason is simple: while the &ldqu... tackling, delivered and received countless “dead arm” punches in the
shoulder, and brought in Star Wars figures armed with…brace
yourself!…laser guns! I can only imagine how many suspension days I’d
have received had current disciplinary regimes been in place back then.
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Before completely trashing little ol’ Delaware and all the other places
Candidate Wants to Raise Your without tolerance, however, there is a flip side to this story: Some kids
really are immediate threats to their teachers and fellow students. And
Taxes [Americans for Tax as the recent stomach-wrenching violence in Chicago has vividly
illustrated, there are some schools where no one is safe. In other words,
Reform] there are cases and situations where zero tolerance is warranted.
OCT 13, 2009 04:59P.M.
So how do you balance these things? How do you have zero-tolerance for
We are all used to hearing political candidates make campaign trail those who need it, while letting discretion and reason reign for everyone
promises. Usually the promises are benign enough, big on rhetoric and else? And how do you do that when there is no clear line dividing what is
lacking on details. Candidates announce public polic... too dangerous to tolerate and what is not?

The answer is educational freedom, as it is with all of the things that

diverse people are forced to fight over because they all have to support a
FISCALLY CONSERVATIVE BLOG FEEDS single system of government schools! Let parents who are not especially
concerned about danger, or who value freedom even if it engenders a
Zero Tolerance for Difference little more risk, choose schools with discipline policies that give them
what they want. Likewise, let parents who want their kids in a zero-
[Cato at Liberty] tolerance institution do the same.
OCT 13, 2009 04:33P.M.
Ultimately, let parents and schools make their own decisions, and
no child will be subjected to disciplinary codes with which his
parents disagree; strictness will be much better correlated with the needs
of individual children; and perhaps most importantly, discipline policies
will make a lot more sense for everyone involved.

When both the New York Times and Fox News poke fun at a school
district it’s a good guess that district has done something pretty

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Twombly and Iqbal: Reality
Check [Cato at Liberty]
OCT 13, 2009 04:07P.M.
In Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), the
Supreme Court gave trial courts more latitude to dismiss a lawsuit at a
very early stage, before the parties have had a chance to engage in
discovery (the often lengthy and expensive fact-finding stage of civil
litigation), if judges think the suit is not founded on “plausible”
allegations of wrongdoing.
There’s a rich, angry debate about the effect the decisions will have on
dismissal rates of meritorious suits in lower courts. But the consensus
among academics seems to be that both decisions will trigger a sea-
change in lower court practice—one deeply unfavorable to plaintiffs.
We won’t know the real effect of these decisions for many years to come.
But a 2007 study by the Federal Judicial Center on the effect of a trio of
similarly controversial 1986 Supreme Court decisions (known as the
“Celotex trilogy”) raises questions about dire claims that Twombly or
Iqbal will dramatically change lower court practice.
The debate over the Celotex trilogy in the 1980s is eerily similar to
today’s debate over Twombly and Iqbal. Responding to concerns that
juries award arbitrarily large judgments against corporate defendants,
the Celotex trilogy gave lower courts more latitude to grant summary
judgment—that is, to toss lawsuits at the end of discovery, before a case
gets to a jury, when the judge thinks there is insufficient evidence to
justify a jury trial. Many academics complained that the cases would
result in a radical sea change in lower court practice—one that benefited
corporate defendants at the expense of plaintiffs.
The FJC’s 2007 study is the most comprehensive study of the effect of
the decisions to date. Based on data drawn from 15,000 docket sheets in
randomly sampled terminated cases in six district courts, the FJC found
(as expected) that, before and after the trilogy, summary judgment filing
and disposition rates vary significantly from circuit to circuit and
between types of cases. After controlling for differences in filing rates
across circuits and for changes over time in the types of cases filed, the
authors found that “the likelihood that a case contained one or more
motions for summary judgment increased before the Supreme Court
trilogy, from approximately 12% in 1975 to 17% in 1986, and has
remained fairly steady, at approximately 19% since that time.” Moreover,
between 1975 and 2000, “no statistically significant changes over time
were found in the outcome of defendants’ or plaintiffs’ summary
judgment motions, after controlling for differences across courts and
types of cases.” Indeed, despite anecdotal claims that Celotex prompted a
significant increase in summary judgment in civil rights cases, the
authors found “no evidence that the likelihood of a summary judgment
motion or termination by summary judgment has increased” in civil
rights cases since 1986.
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14 October 2009
It’s easy to overstate the FJC’s findings. (The data tell us nothing about
the quality of summary judgment decisions before or after Celotex, and
shed no light on disposition rates at a micro-level, i.e. in product liability
actions, as opposed to other tort actions, or Title VII actions, as opposed
to other civil rights actions, for example.) The study nonetheless lends
some plausibility to the view that Celotex was less a catalyst for change
than a ratification of preexisting lower court practice that had evolved
largely in spite of the Supreme Court and which the Court was, and is,
largely powerless to control.
It’s easy to think of reasons why trial courts’ summary judgment practice
might evolve independently of the Supreme Court. A surprisingly large
number of trial court decisions, including grants of partial summary
judgment, are not immediately appealable—and the pervasiveness of
settlement means many of these decisions are never appealed.
Intermediate appellate courts, moreover, affirm trial court decisions at
an incredibly high rate. And the Supreme Court, which takes only about
80 appeals a year, has dramatically limited capacity to police the
innumerable summary judgment dispositions made daily throughout the
federal court system. The upshot is that trial courts, as a practical matter,
have long had wide discretion to decide even pivotal motions, like
summary judgment, with relatively light appellate oversight.
Are Twombly and Iqbal a replay of the Celotex trilogy? Only time will
tell. But what we know, to date, about the Celotex trilogy suggests that,
whatever you think about Twombly or Iqbal, strong claims about the
influence of either decision may well overstate the Supreme Court’s
power and influence over trial court practice.
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Snowe Votes with the
Democrats [The Club for
Growth]
OCT 13, 2009 03:22P.M.
Breaking...Sen. Olympia Snowe will vote for the Democrats’ health care
bill.
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The 50 Most Powerful People in
D.C. [The Club for Growth]
OCT 13, 2009 03:05P.M.
GQ.com has the list. It’s good for entertainment purposes, because it’s
otherwise quite absurd. A hockey player is actually ranked ahead of
Supreme Court Chief Justice John Roberts. UPDATE: Dost my eyes
deceive me? When I originally looked at the list, I swear Roberts was
listed last at #50, but a gentlemen from GQ just called to let me know
that John Roberts was actually ranked #10...far ahead of the hockey
player, which I confirmed. Duly noted.
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Federal Reserve as Cash Cow
[Cato at Liberty]
OCT 13, 2009 02:37P.M.
Scheduled for consideration before the House Financial Services
Committee this week is a draft bill creating a Consumer Financial
Protection Agency.
While there is a lot wrong with the bill — after all it is based on the
premise that somehow consumers were tricked into not making a
downpayment or re-financing thousands out of their homes, and then
walking away — perhaps the most important provision, and the least
discussed, is funding the agency by a transfer of cash from the Federal
Reserve. Section 119 of the bill requires the Federal Reserve to transfer
an amount equal to 10 percent of its expenses to the new agency’s
Director.
This I believe is the first time in history that Congress is using the
Federal Reserve to simply fund another agency. Why stop there, how
about have the Fed just prints trillions of dollars to pay for the rest of the
government? If Congress believes this agency will benefit the public,
then the agency should be funded by the public, by a direct
appropriations raised by taxes.
Of course after watching Ben Bernanke turn the Fed’s balance sheet into
a slush fund for Wall Street, it was only going to be a matter of time
before someone in Congress decided to use that slush fund for their own
purposes. So much for transparency in government.
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14 October 2009
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Felony Franks [Cato at Liberty]
OCT 13, 2009 01:50P.M.
The Wall Street Journal has an article today about a small businessman
in Chicago, James Andrews. Mr. Andrews started a hot-dog stand and
hired ex-convicts as employees. The name “Felony Franks,” came to him
and he thought it was catchy. Since it was his business, Mr. Andrews
didn’t think twice about the name. Enter Chicago Alderman Robert
Fioretti. The alderman doesn’t like the name and will not “permit” Mr.
Andrews to set up signs to attract more customers. (Btw, How many
people like the name Robert Fioretti anyway? Maybe it should be
changed to … eh, never mind) Neighborhood “activists” are also setting
up meetings to discuss the hot-dog business and the “exploitation” of the
workers. Kevin Jones, 42, an employee at Felony Franks, tells the
reporter he does not feel exploited, “Working here allows me to provide
for myself and my family.”
What a farcical situation. First, the politicians manufacture scores of
felons. Next, the pols have their own ideas on how to “help” the ex-cons
return to civil society. Those ideas entail spending taxpayer money.
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What’s Wrong With Being A
Renter? [Cato at Liberty]
OCT 13, 2009 01:11P.M.
A recent New York Times piece focusing on the financial health of the
Federal Housing Administration (FHA), offered a couple of examples of
borrowers who would not have gotten mortgages, but for FHA’s low
downpayment and underwriting requirements.
Take for instance a Ms. Shimon, mentioned in the piece. If she had to
come up with a larger than 3.5 percent downpayment, she “would still be
a renter,” in the words of the New York Times. Yes, my reaction was
probably the same as yours; no, not that, not a renter, anything but being
a renter. I am trying to remember at what point in our history did being a
renter become a social stigma, or some sort of disease to be cured? Of
course, the article does not explain why it would be bad if Ms. Shimon
had stayed a renter, because apparently the New York Times assumes all
decent, upstanding people own their own homes.
Now yes, there are dozens of academic studies that show owning your
own home is associated with being a better citizen, better educational
and health outcomes for your children, and greater savings on the part of
owners. But it is important to remember that none of these studies show
that homeownership causes these outcomes, just that on average,
homeownership is associated with these outcomes. More importantly,
the marginal homeowner, who would not have bought a home without
some sort of subsidy, is likely to be quite different than the average
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com 14 October 2009

homeowner.
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Some, like my home-building friends, might justify ever-expanding
homeownership because it creates construction jobs. But so does Tonight on The Kudlow Report
building apartments. If we had a shortage of apartments, they maybe
encouraging people to buy homes would relieve pressure on the rental [Larry Kudlow’s Money
market. But the glut of apartments is almost as big as the glut in homes.
Rental vacancy rates are near historic highs in much of the country. Even Politic$]
with declining home prices, in many places it still makes more financial OCT 13, 2009 11:48A.M.
sense to rent.

The federal government’s obsession with homeownership was one of the

contributing factors to the financial crisis. It is time we recognized
renting as a viable option for many households, and starting treating
renters as if they were as equal citizens as anyone else.

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This evening at 7pm ET:
Three Irrefutable Facts About HEALTHCARE ON THE HILL
the Baucus Bill [Cato at Liberty] CNBC chief Washington correspondent John Harwood reports from
Washington.
OCT 13, 2009 11:57A.M.

AN INTERVIEW WITH SEN. JOHN THUNE

The Senate Finance Committee votes today on Senator Max Baucus’
A Look at Healthcare, the Dollar & TARP
version of the health care bill. Cato health care experts have analyzed the
bill thoroughly, and point out three vital components to the cost and
Sen. John Thune (R-SD) will be aboard.
reach of the legislation:

INTEL AFTER THE BELL

1) The real cost of the bill is in excess of $2 trillion.
CNBC’s Jim Goldman will speak with Intel’s CFO.

Chairman Max Baucus hoodwinked the CBO with a number of clever

EARNINGS CENTRAL
budgetary gimmicks, most notably by keeping about half of the cost off
CNBC’s Matt Nesto reports.
the federal books. The bill also assumes Congress will make cuts to
Medicare payments, which has never once happened before.
IS THE DOLLAR AN OBSTACLE TO THE STOCK MARKET?
Currency vigilantes instead of bond vigilantes?
2) The bill contains an enormous middle-class tax hike.

*Brian Wesbury, First Trust Advisors Chief Economist

The bill imposes a 40 percent excise tax on health insurance plans that
*Niall Ferguson, Harvard University professor, “Colossus” Author
offer benefits in excess of $8,000 for an individual plan and $21,000 for
*Jim LaCamp, Macroportfolio Advisors Sr. VP, Portfolio Manager
a family plan. Insurers would almost certainly pass this tax on to
consumers via higher premiums. As inflation pushes insurance
NO OVERSEAS TAXATION
premiums higher in coming years, more and more middle-class families
Michael Klayko, Brocade Communications Systems CEO will join us.
will find themselves caught up in the tax — providing the government
with more revenue.
Plus...a look at Bernie Madoff’s prison brawl and Disney’s retail
makeover with Steve Jobs.
3) The bill creates a national ID program.

Please join us. The Kudlow Report. 7pm ET. CNBC.

The bill contains a paragraph explicitly addressing “eligibility
verification.” You must prove who you are to federal entitlement
agencies in order to qualify for the bill’s “state exchanges” and tax
credits. No ID, no benefits.

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Oh, Canada?! [Americans for New at Cato Unbound: Will

Tax Reform] Wilkinson Discusses Inequality
OCT 13, 2009 11:36A.M.
and Justice [Cato at Liberty]
The Mackinac Center recently sent a reporter to Canada, to film OCT 13, 2009 10:13A.M.
interviews with ordinary canadians about life under socialised medicine.
The first series of clips was released earlier today: ... American income inequality is rising, we are told. By some measures,
this is true — but what should we do about it? In this month’s Cato
Unbound, Will Wilkinson discusses the politics of inequality. He asks a
question that in my (perhaps biased) opinion deserves more attention: If
FISCALLY CONSERVATIVE BLOG FEEDS income inequality is bad, and if it’s rising, why is income redistribution
the answer? Shouldn’t we correct the underlying problem, rather than
Tuesday’s Daily News [The Club just one of its symptoms?

for Growth] This underlying problem could be anything from high imprisonment
OCT 13, 2009 11:21A.M. rates, to inadequate schools, to corrupt CEOs — or a combination of
these and other factors. It may be harder to fix these things than it would
Obama has decided to shelve a $200 billion tax hike. If this is good news, be to tax the rich more heavily. But correcting income inequality with
why don’t I feel happy? redistribution may only mask an underlying injustice, or several of them,
each with other bad effects on our society.
Special interests are at the heart of the health care debate. Don’t be
fooled otherwise. All through this week, we will have response essays by thoughtful
commentators — sociologist Lane Kenworthy, economist John V. C. Nye,
Brian Wesbury and Robert Stein offer some tax-free “tips” for and philosopher Elizabeth Anderson. Be sure to stop by and see what
Washington. they have to say about inequality in America, why it matters, and what
we should do about it.
Redistribution health...the public is catching on.

Lindsey Graham is no free trader.

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States tax the rich at their peril.
Illinois Candidate Makes
Vernon Smith, the winner of the 2002 Nobel Prize in economics, gives
praise to Elinor Ostrom, the 2009 Nobel Prize winner. Commitment to Taxpayers
Canadians speak out against socialized medicine - Part I, Part II, Part III. [Americans for Tax Reform]
OCT 13, 2009 09:57A.M.
In an economic system of individuals, there are no trade deficits.
A candidate in Illinois’ 2010 gubernatorial race recently signed the
Charlie Rangel faces a primary challenger. Taxpayer Protection Pledge. Bob Schillerstrom, a Republican, signed the
Pledge last week. Schillerstrom is curren...
Eminent Domain Alert: A showdown in Brooklyn over the New Jersey
Nets.

VIDEO: The VAT Man Cometh?

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How Cap and Tax will Hurt
Tennessee [Americans for Tax
Reform]
OCT 13, 2009 09:48A.M.
In our continuing, daily, state by state, look at the financial impact of the
Waxman-Markey Cap and Trade Tax Bill, we will show you the projected
losses in Gross State Product, Personal Income, and N...
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What Will Olympia Snowe Do?
[The Club for Growth]
OCT 13, 2009 09:48A.M.
Today, the Senate Finance Committee is going to vote on Chairman Max
Baucus’s nationalized health care bill. It’s understood that the vote will
be along party lines, with a couple of exceptions. Democrat Blanch
Lincoln, who’s up for re-election and vulnerable, may side with the
Republicans. “Republican” Olympia Snowe, who’s extremely liberal, may
side with the Democrats. Snowe’s vote is the most important, but it will
give Democrats the illusion of “bipartisanship” that they want to sell to
the media and to the public. The following is what the Politico sees as the
implications to Snowe’s vote.
—SNOWE VOTES “YES”: Clearly the outcome Baucus is
rooting for, as he made a lot of concessions to bring her
onboard. The bipartisan nod Snowe brings to the bill
strengthens Baucus’ hand as he, Reid and Dodd merge the
Health and Finance committee bills. Snowe’s buy-in makes it
easier for Baucus and Reid to sell reform to moderate
Democrats - think Landrieu, Ben Nelson, Bayh - who are
arguably more conservative than Snowe. And it positions
Snowe to grab a bigger seat at the decision-making table as
Reid crafts a bill to send to the Senate floor. Not to mention,
the headlines all laud Baucus for landing a Republican vote
and give Democrats the big mo. Look for Republicans to push
back hard against any narrative that suggests one GOP vote
makes the bill bi-partisan.
—SNOWE VOTES “NO” - This will be written as a SETBACK
for Democrats. For Baucus, this one stings because he put so
much time and effort into wooing Snowe for naught. He
doesn’t get the hero’s welcome or a carrot to entice moderate
Dems. And the failure to win Snowe’s support in Finance will
raise questions about whether Baucus and Reid can win her
support on the floor. Remember, Sen. Ben Nelson has said he
won’t vote for an all-Democratic bill and other mods could be
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14 October 2009
jittery without the bipartisan cover she provides. As for the
Maine senator, she may find herself with a less influential
voice moving forward as Democrats begin to question
whether she’s really serious about passing reform. The
headlines may be the biggest problem for Dems as they’ll
slow the ‘mo and cast doubts on what should be a very big
day for Baucus and reform.
—WHAT SHOULD SHE DO? Two schools of thought: a) If
she votes against, she preserves her leverage as it goes to the
floor. Otherwise, Reid takes her for granted and moves on to
Susan Collins. b) White House argues: “She gets her greatest
leverage by voting for it in committee, because then she’s a
part of the discussions to merge the bill, because once you
have her in committee, you have to keep her for the floor.
Because now you’ve committed yourself to a 60-vote track. If
she wants to be for something in the end, the worst thing she
could do is vote against it in committee, and then allow there
to be a sense that it’s headed to reconciliation, and the
progressives are going to push incredibly hard for a bunch of
things she’s uncomfortable with, like a full public plan.”
—CAVEATS - Snowe has left herself enough room that no
matter how she votes today she’ll be able to change it later. A
no today can become a yes tomorrow as Snowe continues
using her leverage to shape the bill. Conversely, a yes today
can switch overnight if she feels leadership stepped all over
her concerns while shaping the legislation. As Democrats’ last
best hope at winning a GOP vote, Snowe will continue to hold
a good deal of sway. If she votes no, some observers may start
ringing the reconciliation bell - a rookie mistake, according to
some insiders.
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A Cure for What Ails Harrisburg
[Americans for Tax Reform]
OCT 13, 2009 09:42A.M.
Today’s Philadelphia Inquirer ran the following Op-Ed by ATR state
affairs manager Patrick Gleason on the Pennsylvania budget and the
need for greater transparency in the legislative process: h...
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Are Industrialized Countries
Responsible for Reducing the
Well Being of Developing
Countries? [Cato at Liberty]
OCT 13, 2009 08:45A.M.
A basic contention of developing countries (DCs) and various UN
bureaucracies and multilateral groups during the course of International
negotiations on climate change is that industrialized countries (ICs) have
a historical responsibility for global warming. This contention underlies
much of the justification for insisting not only that industrialized
countries reduce their greenhouse gas emissions even as developing
countries are given a bye on emission reductions, but that they also
subsidize clean energy development and adaptation in developing
countries. [It is also part of the rationale that industrialized countries
should pay reparations for presumed damages from climate change.]
Based on the above contention, the Kyoto Protocol imposes no direct
costs on developing countries and holds out the prospect of large
amounts of transfer payments from industrialized to developing
countries via the Clean Development Mechanism or an Adaptation Fund.
Not surprisingly, virtually every developing country has ratified the
Protocol and is adamant that these features be retained in any son-of-
Kyoto.
For their part, UN and other multilateral agencies favor this approach
because lacking any taxing authority or other ready mechanism for
raising revenues, they see revenues in helping manage, facilitate or
distribute the enormous amounts of money that, in theory, should be
available from ICs to fund mitigation and adaptation in the DCs.
Continue reading here.
14 October 2009
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What Does the State
Department Not Want Us to
Know about Honduras? [Cato at
Liberty]
OCT 13, 2009 08:42A.M.
Senator Jim DeMint from South Carolina recently traveled to Honduras
and found—no surprise—a peaceful country and broad support for the
ouster of President Zelaya among members of civil society, the supreme
court, political parties and others. In an op-ed in this weekend’s Wall
Street Journal, DeMint describes his trip in light of Washington’s
continuing support of Zelaya and its condemnation of what it calls a
“coup.” U.S. policy is mystifying since the ousted president’s removal
from office was a rare example in Latin America of an institutional
defense of democracy as envisioned by the constitution and interpreted
by the Supreme Court that ruled that the president be removed. (For
independent opinions on the case, see here and here.)
However, the Senator reports a legal analysis at the State Department
prepared by its top lawyer that apparently has informed Washington’s
policy but that has not been made public nor even released to DeMint
despite his repeated requests. In the interest of democracy and
transparency, the State Department should immediately release its legal
report. Maybe then we (which includes much of the hemisphere) will be
less mystified about what is driving Washington policy toward
Honduras. Or at least we’ll have a better insight on the administration’s
understanding of democracy.