David Bernstein of Volokh Conspiracy to give two lectures in Arizona

Volokh Conspiracy contributor and George Mason U law professor David Bernstein is or will shortly be in Arizona to give two lectures, on invitation of the Federalist Society.

The first, today (!) at 12:15 PM in room 164 of the University of Arizona's James E. Rogers College of Law, will be on the subject of his book-in-progress, Rehabilitating Lochner, referring to the now dormant doctrine of unlimited freedom of contract.

The second, at ASU's Sandra Day O'Connor College of Law, from 4:00-5:30 PM in 111 Armstrong Hall, will be on the topic of "Threats to Civil Liberties from Antidiscrimination Laws".

I do not know whether CLE credit is available. Contact the Federalist Society for that information.

HT: Connor Medenhall of The Arizona Desert Lamp.

Eegee's, Desert Museum, Tucson Citizen are undemocratic!

Going past Eegee's this morning, I saw that the flavor of the month is "Lucky Lime." Yuck! Bright slime-green--the color of Ecto Cooler--artificial citrusesque sugar water. Not nearly as good as their natural flavors. Don't those of us who occasionally depend on these chilly colloidal empty calories to prevent sublimation deserve a vote in the matter? Eegee's is un-democratic!

And I have a gripe with the Desert Museum, too. Their cougar exhibit is totally unrealistic. Their natural habitat--Scottsdale--has palm trees, wisteria, and In-and-Out Burger. And I think that the museum could make more money from ticket sales if the javelina pen were to be combined with the snake, cat, and wolf exhibits. And I'm sure I can find a few thousand Fox Network watchers who agree. Why can't we put it to a vote? The Desert Museum is undemocratic!

And the Tucson Citizen is undemocratic. They don't call me when they're getting ready to write an editorial, nor do they put their contents to a vote. Chrissakes, they're the Tucson Citizen, just like me!--I deserve a vote in the matter. Thoroughly undemocratic, that I can't get together a petition to fire whoever wrote Monday's editorial. Whoever it was doesn't seem to even understand the rationale behind vouchers. "Market failure?"--what's that. And he calls them "undemocratic" as though that's an insight. Criticizing something by calling it undemocratic is a sure sign of thoughtlessness, and possibly of ignorance or low intelligence. That private schools are undemocratic is the point of the program! The idea is to allow parents who are being poorly served by democratically run schools to put them in schools run by self-perpetuating boards of directors or trustees, and to mitigate the crowd-out and double-payments problem by which the mere existence of public schools causes the education market to fail. The writer didn't research the matter enough to learn why proponents support what they do, and ought be cut from the payroll. Let's get together and vote on it.

We can't do that? Then you're undemocratic! Someone do something! Teacher! Mommy!

Flower report.

It's been a disappointing season for those of us who ordinarily like to hike amongst or shoot Sonoran Desert wildflowers. The season should be peaking right now, but instead it's done. Brittlebrush and creosote bush bloomed, albeit weakly, but poppies, lupines, and pentstemons are making an extremely poor showing. In a good year we'd right now see many of the latter in low areas along Kinney Road, but not this time around. Likewise, there's not much color at all at Picacho Peak.

Rains came heavy and late this year; maybe that means the flowers will come late, as well. And on the bright side, ocotillo are in full bloom in Saguaro National Park West, and paloverdes around Tucson and in the countryside are blooming more strongly than I've ever seen. We can probably expect an equally strong showing from the related ironwoods.

New 'blog added to roll.

Arizona Eighth has been around for some time, but the last time I hit their site, they were concerned only with the eighth-district Congressional seat. I should have looked more often; they're doing a bang-up job covering local and state politics in the district.

Readers are probably expecting me to have something to say about the AZ Supreme Court ruling on vouchers. I do, and "told you so" isn't the extent of it. More to follow, and since the Citizen hasn't shut down yet, I'm strongly considering writing a guest opinion on this one. It'll be my first in too long a while.

Arizona: Eighth most liberal state in the USA.

You wouldn't think so, would you? But when such things are quantified, Arizona looks pretty good.

Indexes and rankings of economic freedom have been around for some time; what has been lacking is a comprehensive study of liberty enjoyed by residents which takes into account not only "regulation" of business but also, more generally, paternalist interference in quotidian life, including restrictions on firearm ownership, the various rules and taxes on alcohol, campaign finance restrictions, actual arrest totals for victimless crimes, and the like. The Mercatus Center at George Mason University has put together what, to my knowledge, the first comprehensive freedom index, Freedom in the 50 States.

One quarter of the weight was allocated to fiscal policy, one quarter to regulatory policy, and one half to paternalism. Surprisingly, Michigan came out ahead when considering regulatory policy alone, proof that one very bad regulation, in this case, agency-shop unionization with no "right to work", can do serious damage. Not surprisingly, New Hampshire came out in the lead when considering fiscal policy alone--and nobody will say that New Hampshire has slipped into the third world as left-wingers predict Arizona to whenever a penny is cut from the state budget! And not surprisingly, Alaska came out far ahead, in a category by itself, when considering personal freedom. California came in thirty-seventh place in personal freedom, proof that tolerance talk doesn't imply liberal policy.

On that note, my more leftish readers are probably thinking that Arizona came in the top ten overall on its economic strengths alone. However, Arizona ranked eleventh in economic freedom and twelfth in personal freedom. We're a state full of reactionary types, who consistently re-elect Sheriff Joe and call for blood in the comment sections of newspaper websites, but that doesn't translate into illiberal policy. When it comes to action, we're a fairly live-and-let-live bunch.

As usual, weights given to individual items are questionable. There's no obvious way to add up restrictions on sale of raw milk, blue laws, and mandatory waiting periods for marriage; it's a problem in the same class as interpersonal comparisons of utility. This sort of thing almost cries out for both anthropological and psychological cross-validation. However, that the regression analysis on page 20 turns up a statistically significant correlation between the overall freedom index and net migration into a state indicates at least some utility here--and the effect is stronger for personal freedom than for economic freedom!

Percent vote for Kerry in 2004 correlates negatively with both personal and economic freedom, albeit only slightly negatively for personal freedom. (The authors say it is flat; when I get ahold of the plotted data I will do a ranks test.) It is worth noting that Mercatus is not a "conservative" or right-wing institute and has no Democrat or Republican torch to hold high; the report itself references Nozick and Spencer when discussing the authors' concept of liberty. Economic and personal freedom themselves correlate positively, despite the study authors not finding libertarianism (modern classical-liberalism) as a strong alternative anywhere. They instead account for the trend as being the result of balancing forces.

There are certainly valid gripes to be made, about weightings and even about oversights, but this is a great start, which I hope will spur both intellectual and policy action. Hat tip goes to closet-Arizonan and semi-anonymous "CLS", 'blogging at Classically Liberal.

Given the results, a possible new state motto: We're not bad people, we're just ornery.

Tucson's best newspaper still in print, for now.

A pleasant surprise on my return from Palo Alto: I went looking for the commemorative final edition of the Tucson Citizen and found instead the Monday paper. The Citizen was scheduled to close on Saturday if parent company Gannett did not find a buyer; Gannett is reportedly in negotiations with buyers and will keep the Citizen open at least through the 27th.

The Citizen is easily Tucson's best newspaper. Its editorial page is more interesting, its reporters ask more pointed and well-researched questions, and its features writing isn't the breezy fluff that ordinarily passes for "features" these days. Furthermore, when I call the Citizen, whether with a news tip or to discuss a guest opinion, they remember my name and who I am and treat me like a neighbor; they're a real touch of class. And speaking of class, Mark Kimble must be one of the most fair-minded newsmen in the business.

Newspapers in general have been struggling as the nowadays near-universal use of the Web has made their old business models obsolete; Seattle recently lost the Post-Intelligencer, which has continued as a Web publication; the San Francisco Chronicle, which I considered a major regional daily nearly in the same league as the Chicago Tribune and New York Times, is facing difficulties similar to those of the Citizen and Post-Intelligencer. There's something else working against the Citizen, whose circulation is in the neighborhood of 18,000, closer to that of the Sierra Vista Herald than to rival Tucson paper the Arizona Daily Star. My conjecture is that being an afternoon paper is hurting the Citizen. When I was a subscriber to the paper edition, I liked finding it on my doorstep on coming home from work, but in general our generation expects papers to be on the doorstep or newsstand in the morning.

My words to this effect aren't worth a dime to the business, but I'm hoping the Citizen stays open. It provides a much needed alternative to the often shallow reporting and trite editorial page of the Daily Star, and were it made slightly more competitive, it could even keep the Star honest. At the same time I'm hoping that Freedom Communications is not the buyer. While I'm a fan of the East Valley Tribune, sending Randist maybe-philosopher Tibor Machan, whose glibertarian columns are usually an insult to intelligence, to re-educate editorial boards whenever they depart from an ideological plumb-line not too much different from silly 1970s folk-libertarianism is a sure way to both break staff morale and to destroy the fair-mindedness that has made the Citizen the great paper, however undersubscribed, that it is. (The comparison between Arizona columnist Robert Robb and Machan is instructive. You can see that the wheels in Robb's head are turning; Machan is all spinal reflexes.) But I'd rather see it stay open, even if hobbled by glibertarian claptrap, than fold, leaving Tucson with but one daily newspaper.

Why not Just Fix The Public Schools?

Your humble narrator is in Palo Alto this week, not for a postdoc search quite yet but instead to spend a week with the woman who'll be his wife as soon as he graduates. Such trips have side benefits; I've made several scientific contacts, sat in on concerts and lectures, and even get to see how local politics works elsewhere.

I am an advocate of the separation of school and state, and have been since long before I started this 'blog. Correspondents and left-leaning colleagues have often asked why I support a total change in the way education is provided in most of the U.S. instead of Just Fixing The Public Schools.

It's less dull a question than it seems on its face. That private schools of various sorts outperform traditional government-monopoly schools has gone from a speculation in Capitalism and Freedom to empirically established fact, incontrovertible except by the sort of study that "controls for" all of the private schools' usual advantages. Where I grew up--Cook County, IL, a stone's throw from Chicago--middle-class families in many neighborhoods, and especially middle-class Catholic families sent their children to private high school almost as a matter of course, to the point where attending the legacy public school was a matter of conscious choice. This was good for all: people with alternatives have high expectations. But in most places, most children are educated in the public school, and most of my highly educated colleagues are the products of public schools. (I attended a mediocre public grade school and junior high for eight years, followed by one of the area's more prestigious prep schools, where I had some major catching up to do in my first year.) Many of the legacy public schools are doing "good enough", and since most children are in public schools, the way to improve things for most children right away, without any switchover costs and without any late-adopters being left behind, is to Just Fix The Public Schools.

The problem is that the legacy public schools are tremendously difficult and in ways impossible to fix by their institutional nature. Democracy--a ten-dollar word for "majoritarian voting"--is a fine way to run a club whose members have common interest, a fairly good way to manufacture and maintain consent and legitimacy of a government acting within certain bounds, a somewhat poor way to determine public policy, and relative to how either for-profit or non-profit schools run, a downright wacky way of determining how a service such as education is to be provided.

In both the local Palo Alto paper and one of the area's larger news websites the hot topic for some time has been the mathematics curriculum in the Palo Alto Unified School District. The question raises itself, why not just let teachers teach math, but it's not that simple. The State of California allows districts only nine choices of mathematics textbook, and each district must seemingly choose but one of these. The committee tasked with this in Palo Alto, composed of forty-one teachers, three parents, two school principals, and a few administrators has nearly settled on the University of Chicago's Everyday Mathematics series, provoking strong objection from many parents concerned about the series's use of electronic calculators and de-emphasis of standard algorithms and problem solving in favor of constructivism and possibly confusing early presentation of multiple algorithms. (Arizona schools are not quite as micro-managed but still make curricular decisions by committee. I am participating as a consulting scientist in TUSD science curricular reform; the emphasis on buzzwords and abstraction and fad makes it as pleasant as pulling teeth.) One parent from nearby Menlo Park remarked that Everyday Math is one of the reasons her family moved from its previous place of residence, and quite a few others are sharing similar negative experiences.

The excuse commonly made for Arizona's public schools, especially urban districts like TUSD, is that their problems stem from poverty, parental illiteracy, lack of positive parental engagement, and anti-intellectual family culture. Speaking as someone who's had contact with TUSD teachers as a speaker, I can say that there's some truth to that, but it isn't the whole story. The trouble is in part simply that public schools are public schools. As the people of Silicon Valley are on average considerably more affluent and educated than Arizonans--Silicon Valley is one of the most highly educated areas in the world--the usual excuses don't apply here. Parents are demanding excellence, and there is considerable popular sentiment in favor of the adoption of "Singapore Math" texts based on that small country's rather successful curriculum. The nearby Las Lomitas School District, Palo Alto's private Keys School, and many homeschoolers have successfully adopted this program.

Excellence, however, is not what public schools are about. The public schools do not have as their mission to educate to a very high standard or even to tailor education to the individual child so as to help each one achieve his potential. The governing principle of public schools is, at best, "One Size Fits All" and, at worst, if one takes the radical egalitarian rhetoric of opponents of vouchers and tax credits seriously, "Cut the Tall Trees Down." The committee was apparently hamstrung by its decision early on to require that the text adopted be suited to teaching struggling students and fast learners concurrently. Apparently selecting one text for average and excellent students and an alternative for the strugglers was out of the question, as was bringing the strugglers up to speed by intensive KIPP Academy-style intervention. As a result, unless Palo Alto's school board reverses the committee decision next month, local public school students will be taught mathematics in a way that shortchanges talented and average students and possibly the difficult ones, too.

It's worth emphasizing again, that neither poverty nor parental ignorance are at work here. Opponents of private education like to speak of private school and homeschool parents as failing in civic duty by doing better for their children and therefore not being there to complain at PTA meetings and the like, but presuming for the sake of argument that that's a just complaint, flight is certainly not at work here, either: the parents who are speaking out are highly educated and relatively affluent--engineers, computer programmers, scientists. The trouble is that public schools are public schools. The best parents can do is to complain at meetings. If they pull their kids out, the schools are guaranteed funding by law. They can try to effect change through the democratic process, but school board elections are usually more about party affiliations, loyalties, and slogans than about the issues, and by the time proponents of more sound curricular ideas have a majority, children have already had several years of substandard education and may be permanently behind their peers in prep school or college.

It is simply not just to ask parents to sacrifice their children's education to preserve a clumsy institution. The trouble with public schools--besides their being run by electoral democracy--is that there is no meaningful right of exit. Parents can't say "I'll educate my kid myself" and get their taxes back, meaning parents who want to leave must pay twice for education. The result is that, except in places like Cook County where it is the (sub)cultural norm to send children to private school, most parents, not wanting to pay twice, keep their kids in the public school unless it gets very bad. Many parents can't afford to pay twice. Not only do the kids not leave, if they do, it doesn't matter. The public schools are guaranteed funding, and both school board re-elections and administrator contract renewals are hit-or-miss. Individual teachers--the good ones, anyway--are motivated by their convictions and pride, but structurally, for administrators, school boards, committees, the teachers' union, and everyone else making decisions about how to hire and fire teachers, purchase books, and (often needlessly) constrain what the teachers do in the classroom, the incentives make no sense. On the other hand, both traditional private schools and charter schools, which receive funding from the government but operate as contractors, must succeed or shut their doors.

Do poverty, parental ignorance, and the like negatively affect the performance of the public schools? Probably. Does low funding? Under certain circumstances--we must avoid considering it underfunding every time the dollar amount is too low for the legacy public schools' somewhat ideological supporters. But care must be taken to recognize that much of the trouble with public schools comes from their being public--run by democracy, funded by the State, and not allowing meaningful exit. Some very serious troubles concerning curriculum and exit are invariant, whether one is in Tucson or Silicon Valley. Replacement of the legacy state-run school system with a market driven by parental choice--the development of which can be jumpstarted by a high-cap dollar for dollar individual use tax credit--would provide instant mitigation.

UA students vote down Kalafut lawsuit, 2411-2207

A very wise choice: students at the University of Arizona voted to save the University the expense of a sure-loser First Amendment lawsuit that would have been brought by your narrator and whatever co-plaintiffs I'd have found, had PIRG won its plebiscite.

Thanks go out to the Daily Wildcat editorial board, the guys at the Desert Lamp, and anyone else who helped spread the word about what a bad idea this was.

I'll be in continuing contact with FIRE; after the Southworth decision and the Second Circuit follow-up Amidon v. Student Ass'n of State University of New York, that allocating fees by plebiscite, or even conducting "advisory" plebiscites for that purpose, is unlawful.

Freedom of Choice in Health Care Act, back from the dead.

Arizonans had the chance last November to pass broad protections for the role of individual choice in health care, but the measure failed by a small margin due in part to AHCCCS director Anthony Rodgers telling tall tales about it at state expense.

We may get that chance again: A very dull measure cleaning up some language concerning state trust lands, HCR 2014, may be replaced by a striker establishing protection of the right to purchase or not purchase private health care or private health insurance, or to not participate in a "health care system."

The language of the measure that, if adopted, would be sent to the voters for approval, is much cleaner than that of the Freedom of Choice in Health Care Act, which was plagued by undefined terms and awkward mouthfuls such as "Health Care Coverage." Rodgers' mal fide attack should have been a nonstarter the first time, but certainly doesn't apply to this. Moreover, the sort of uninformed voter that tends to be brought out by a Presidential election, especially with the charismatic Obama in the race, will likely stay home when this question is up.

Minutes aren't available for the 4 March meeting of the Health and Human Services committee, and this bill isn't on the agenda afterwards. Both the original and the striker were proposed by Nancy Barto, Health and Human Services chairwoman, so prospects for striker adoption look good.

Quoting from the Southworth decision...

From Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000):

It remains to discuss the referendum aspect of the University's program. While the record is not well developed on the point, it appears that by majority vote of the student body a given RSO may be funded or defunded. It is unclear to us what protection, if any, there is for viewpoint neutrality in this part of the process. To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum, for instance, does not depend upon majoritarian consent. That principle is controlling here.

Deciding the funding of political or religious organizations by referendum, at a public university, is blatantly unconstitutional. If the referendum passes, I will both file a civil suit and be in contact with the U.S. Attorney's office and the state Attorney General concerning conspiracy to violate civil rights.

I will steal from PIRG.

Participating in the undergraduates' ASUA election at the University of Arizona leaves one with a dirty feeling, even though doctoral students are eligible to vote in that tawdry Miss Congeniality pageant. This time around, I did so, for self-defense.

As reported on the Desert Lamp, the Arizona PIRG, a strange combination of Naderite think-tank and multilevel marketing scheme, is attempting to secure for itself compelled contributions from the University of Arizona's students. If tying a compulsory contributions to any organization to one's completion of one's degree at a university, or to attendance at a public (tax-subsidized) university does not strike you as clearly wrong, you are probably a defective of some sort.

But the issue isn't being framed that way, and many of the ill-prepared students the University of Arizona is required to admit aren't yet to the level of critical thinking where they'd ask that question. This may very well pass due to naive or stupid sorts saying to themselves "Clean air? Global Warming? Count me in!", even more so because PIRG apparently was allowed to write the ballot line itself!

If the measure passes, a few responses are in order:

1. Even the most whiggish Republicans in the legislature see the University as a place where the left-wing, feeling entitled to it due to its obvious moral and intellectual superiority, feeds itself the taxpayers' and studentry's money. Hence their disdain for the organization, usually manifested in passive-aggressive fashion. Seeing PIRG get $2 for every student at an institution set up and subsidized for the pubic benefit will only aggravate this further. And I'll call them to let them know about it.
   
2. I will defend my dissertation sometime between December and May; I have one to two semesters left at the U. I will steal at least $2 worth of something from PIRG. By "Steal" I mean "Take back what's rightfully mine."
   
3. The U.S. Supreme Court has indicated that this sort of fee is unlawful, in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), and again in Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), as it is not allocated in a viewpoint-neutral fashion. I will be immediately on the phone with Alessandra up at the ACLU, and if they cannot provide representation, I will turn to Foundation for Individual Rights in Education who can then refer me to counsel. Do not think that I will not find co-plaintiffs or pro bono representation. According to FIRE, given Southworth, the case is just about a sure win.
   

That simple. Want to compel me to financially support a political point of view in order to finish my doctorate? Want to compel others to support it to attend a university they have subsidized through their taxes? War's on.

Cobb, Jenney to debate stimulus proponents tomorrow.

I'm not a big "fan" of debates. Lawyering is one thing, but settling intellectual questions, especially of the quantitative sort, almost demands the precision and slow pace of writing. (My advice: do not allow yourself ever to be convinced by verbal argument on a question of economics or natural science.) Witness the sleazy "debates" over anthropogenic global warming, wherein the most charismatic showman with the best dumbed-down "easy" argument wins.

But I'm a "fan" of both Joe Cobb and Tom Jenney, and wouldn't mind cheering on their side in tomorrow's debate over economic stimulus, were I able to casually drive up to Phoenix.

For readers in the Phoenix area, here are the details, from the Phoenix College Business Club:

Economic Stimulus Debate March 10 at Phoenix Collegehttp://www.marginalrevolution.com/marginalrevolution/2009/02/coming-to-terms-with-bank-nationalization.html

Debate to take economic policy out of the textbook and into real life

PHOENIX-Is stimulus spending by government one of the greatest inventions of the 20th century? Or is it the economic equivalent of crystal meth? Local policy experts will debate the wisdom of government fiscal stimulus at a forum sponsored by the Phoenix College Business Club on the evening of Tuesday, March 10.

"The ongoing economic crisis, and the government's efforts to address it, have taken what seemed like a purely academic debate, and made it a discussion with important real-world implications," said Bev Jenkins, faculty advisor for the Phoenix College Business Club. "The government's response to the crisis will likely have a huge impact on job creation and economic growth, not just in the short run, but for decades to come."

Even though the most recent $787 billion package has been signed into law, many observers believe that many more stimulus measures will be proposed in the coming months and years.

Arguing in favor of the proposition that government spending can stabilize the US economy are David Wells, associate faculty director of ASU's Interdisciplinary Studies Program, and Thomas W. Dietrich, a local tax attorney. Arguing against the proposition are Tom Jenney, Arizona director of Americans for Prosperity, and Joe Cobb, a local economist.

The debate will feature an extensive period for audience questions. The general public is invited and encouraged to attend.

The debate will take place from 7:00 to 9:00 pm in room C102 at Phoenix College, which is located at 1202 W. Thomas Road in downtown Phoenix. A flyer for the debate is attached.

Contact: Bev Jenkins, (602) 285-768

Harvard economist Jeff Miron recommended another, more responsible stimulus a while back. As for me, I'm fed up with the audacity of hoke, a President and Congress who would like to use the financial crisis as an excuse to implement a left-wing equal-but-poor healthcare scheme in particular, and dress up in costume and play New Deal in general. They are prolonging the crisis because it is politically expedient, and we ought demand a speed bankruptcy instead.

Tucson pubs vs Boston pubs

Tucson pubs: great beer selection, crowd keeps to itself.
Boston pubs: measly beer selection, friendly crowd.

I understand the latter to have to do with us being in the West: people are more neighborly in places like Chicago or New Orleans or Boston. But why do Boston pubs have small beer lists? Or why do even mediocre Tucson beer joints (1702 is world-class) like Bison Wiches have such a great selection?

Yes, I just got back from some professional travel. Plenty of interesting goings-on at the capitol: posting will resume soon!