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A Cato Institute policy brief found that while licensed occupations see a nice bump in pay, licensing requirements lower wages for other similar occupations.

Laws governing electoral issues (hereinafter electoral laws) are vital to representation in a democracy and its existence. This short post outlines why and how electoral laws should be subject to higher approval requirements and heightened judicial review.

Michael L. Smith (St. Mary's University School of Law) has posted Constitutional Interpretation and Zombie Provisions (Georgia State University Law Review, Vol. 40, (Forthcoming)) on SSRN. Here is the abstract: The United States Constitution and state constitutions contain numerous zombie...

Jeffrey A. Singer


On May 19, Minnesota Governor Tim Walz signed into law a bill legalizing all drug paraphernalia, including testing equipment and syringes, and decriminalizing drug residue. As Sophia Heimowitz and I explained in our Cato policy analysis last year, drug paraphernalia laws stand in the way of harm reduction organizations that seek to help people who use drugs avoid drug overdoses and the spread of infectious diseases.
In the late 1970s, the Drug Enforcement Administration began successfully encouraging states to enact drug paraphernalia laws and even developed and provided model legislation. Our study found that Alaska is the only state that never enacted drug paraphernalia laws. Our policy analysis called on all other states to emulate Alaska by repealing their drug paraphernalia laws.
Last June, I moderated a Cato online policy forum in which the Executive Director of Alaska's oldest harm reduction organization compared notes with the Executive Director of Arizona's oldest and largest harm reduction organization.
Arizona amended its paraphernalia laws in 2021 to permit syringe services programs to operate and to allow distributing and using fentanyl test strips. Still, it left most of the drug paraphernalia law intact. Minnesota, however, has gone even further by becoming the first state to repeal its drug paraphernalia laws. The law takes effect on August 1.
Hopefully, the remaining states will follow Minnesota's lead.

David Froomkin (Yale University) has posted The Death of Administrative Law on SSRN. Here is the abstract: Administrative law is a system for enabling Congress to confer discretion on executive agents constrained by deliberative reason-giving obligations that tether executive implementation...

AI tools churning out images of fake IDs could help people get around online age-check laws.

We've mentioned this before around here: Google has temporarily blocked links from local news outlets in California from appearing in search results in response to the advancement of a bill that would require tech companies to pay publications for links that articles share. The change applies only to some people using Google in California, though it is not clear how many.The California Journalism Preservation Act (CJPA) would require large online platforms to pay a "journalism usage fee" for linking to news sites based in the Golden state. The bill cleared the California assembly in 2023. To become law, it would need to pass in the Senate before being signed by the governor, Gavin Newsom.As has happened in Spain, Australia, Canada and so on when such laws have been proposed. Of course, the Californian insistence is that this time will be different. There's a dual contention here. Firstly, Google (and Facebook etc) profit from, perhaps even steal, the work of journalists and newspapers by presenting them in search and social media. This reduces the revenue to the newspapers and woes is us.Secondly, the traffic generated by being in search results and social media is a vital source of income for journalism and newspapers. Which is what leads to the conclusion that Google (and Facebook etc) must pay for the news being stolen, but must also continue to run the news they're stealing. Only politics could possibly advance such absurd logic. Which is one reason for - a very good example of -why we continually insist that politics really isn't a good way to run the world.

Following the Supreme Court's closely divided 2023 decision in National Pork Producers Council v. Ross, states continue to enact laws regulating animal conditions on farms located in other states. Constitutional or not, these laws are an aggressive and dubious extraterritorial use of state power.

The 4th Circuit's rejection of Maryland's handgun licensing system suggests similar schemes in other states are unconstitutional.

As most of Republican Gov. Jeff Landry's criminal
justice reforms as legislation
heads to his desk for his signature into law, Louisiana's political left is
working overtime to cast aspersions on measures reversing the ethos behind
changes predecessor Democrat Gov. John Bel Edwards had enticed, despite data showing
very much such assertions are baseless.

In essence, Landry's increases severity of
sentences for some crimes, for 17-year-olds convicted of some crimes, and
lengthens incarceration time for many convicts. Edwards' had done the opposite,
on the theory that the existing measures were cost ineffective, or that any
reduction in crime was more than offset by costs involved. Indeed, more vocal
advocates of the so-called "smart on crime" approach actually argued that you
could have it both ways, reduced crime and costs.

At the
very least, the left wishes to delegitimize Landry's restoration with
claims along the lines that being "tougher" on crime won't make much of a
difference, if not make matters worse, and certainly would cost more. A typical
leftist view on the philosophy behind his package is "there is no firm
empirical evidence that confirms" that "more stringent punitive measures [are] a
criminal deterrent."

That view betrays ignorance, whether willful out
of a desire to cherry-pick evidence to support views often limited to those of researchers
with a compatible agenda (and much
of it flawed), of the actual data. In reality, the most comprehensive and
recent analysis demonstrate that more and longer incarceration as a whole
reduces crimes.

Penalties create two disincentives to criminal
behavior. One is deterrence, by increasing the expected cost to a miscreant for
such behavior. The more severe the penalty, in terms of sentencing conditioned
by time actually served and in prison, all other things equal the less of that
behavior occurs.

However, "all other things equal" rarely are and
can be extremely difficult to disaggregate in analyses of deterrence.
Principally, variance occurs around the probability of apprehension and prosecution
to the fullest sense of the law. Capital punishment provides an excellent
example of the latter and how that can affect analyses of its deterrent impact.
In the aggregate, research provides somewhat of a mixed picture for whether
executions prevent murders (by legal definition, premeditated and heinous).

But that's because of the guerilla warfare that
has developed by anti-capital punishment interests to prevent executions deliberately
designed to water down the deterrent effect, essentially vacating the sentences
and breaking society's pact with victims to carry out that punishment. Parsing out
that – in other words, when authorities are able and willing to carry out death
sentences in a reasonably timely fashion – the evidence is quite clear: executions
save innocent lives.

Yet perhaps more trenchantly, punishment is but
the output of a criminal justice system. The input is prosecutorial conduct.
For example, "progressive" prosecutors willing to file less severe charges
and/or ask for less severe sentencing, if they even bother to prosecute,
entirely subvert the deterrence impact of sentences written into law.

In short, the presence of such confounding
variables makes it difficult to assess empirically any relationship between
sentencing and crime commission. Still, behavioral theory dictates that there
must be casual covariance where stiffer punishment reduces criminal activity.
After all, if jaywalking is made a capital crime, even as people know it is rarely
reported and even more rarely enforced, the penalty is so severe that in terms
of expected outcomes it will deter jaywalking, for the penalty is so harsh that
for many even the tiniest odds of being caught don't reduce the expected negative
value of the punishment enough to go below the expected positive value of
saving a few steps by not using a crosswalk.

Fortunately, the other disincentive is much easier
to measure: if incarcerated (unless corrupt authorities are involved), a person
cannot commit criminal activity among the public. Simply, as data show and especially
for serious crimes, most of those incarcerated will commit more crime when
not imprisoned. By keeping them imprisoned for longer periods, through a
combination of sentencing and lower levels of reducing the time served or of
having access to parole and probation, predators are off the streets. In fact,
longer times served in prison for a crime are associated with reduced levels of
recidivism, so a double bonus is enjoyed by society.

And, as
crime data show, after Edwards' changes went into effect, in Louisiana
crime increased relative to the rest of the country and region. Costs may
increase with Landry's agenda in place, such as by keeping more convicts imprisoned,
but the payoff in reduced crime will be worth it.

Landry's restoration from these solidly follows
the evidence (as it does also with the issue
of charging 17-year-olds as adults and making it administratively easier to
carry out capital sentences). Suggestions to the contrary don't inform, but instead
mislead.

Animals, both livestock and others (including pets) have long needed state-enacted legal protections for their welfare. In the next post in this series, Aye Mar Win looks at the corpus of laws and legal provisions that are aimed to protect them in Myanmar, and what more can be done for their welfare.   _______________________________________________ Natural resources … Continued

Graham Greenleaf (University of New South Wales, Faculty of Law) has posted Global Data Privacy Laws 2023: International Standards Stall, but UK Disrupts ((2023) 183 Privacy Laws & Business International Report 8-15) on SSRN. Here is the abstract: Since 2020...

Joseph William Singer (Harvard Law School) has posted Conflict of Abortion Laws (Northeastern University Law Review, Vol. 16, No. 2 (2024, Forthcoming)) on SSRN. Here is the abstract: When a resident of an anti-abortion state goes to a prochoice state...

Matthias Lehmann (University of Vienna) has posted New Challenges of Extraterritoriality: Superposing Laws on SSRN. Here is the abstract: While extraterritoriality is often bemoaned, this contribution makes the point that it is actually indispensable. If the state wants to maintain...

Jeffrey Miron


This article appeared on Substack on June 22, 2023
The New York Times reports that multiple states are responding to the opioid overdose crisis by passing harsh new laws aimed at fentanyl:
In the 2023 legislative session alone, hundreds of fentanyl crime bills were introduced in at least 46 states, according to the National Conference on State Legislatures. Virginia lawmakers codified fentanyl as "a weapon of terrorism." An Iowa law makes the sale or manufacture of less than five grams of fentanyl — roughly the weight of five paper clips — punishable by up to 10 years in prison. Arkansas and Texas recently joined some 30 states, including Pennsylvania, Colorado and Wyoming, that have a drug‐​induced homicide statute on the books, allowing murder prosecutions even of people who share drugs socially that contain lethal fentanyl doses.

This approach is deeply misguided. Rather than further criminalizing fentanyl, federal and state governments should legalize it, along with all other opioids (and all other illegal drugs).
Most overdoses from illicit drugs result from accidental consumption of excessively potent or adulterated versions, since quality control is difficult in an underground market. That reflects the Iron Law of Prohibition.
In a legal market, fentanyl would be widely available, but in clearly marked dosages, allowing users to consume without risk of overdose. That is what occurs now for other legal but potentially dangerous products, such as alcohol or over‐​the‐​counter medications like acetaminophen (Tylenol). Overdoes occur for legal "drugs," but they are rare and reflect deliberate excessive consumption.
Governments almost always try to fix society's problems with more government. When the original problem resulted from too much government, that approach is especially unfortunate.