There is a brouhaha afoot in Lafayette with respect to the local Planned Parenthood which apparently dispenses RU-486 pill (Mifepristone). The pill is USFDA approved to terminate pregnancies of up to 49 days gestation. Per Wikipedia:

Mifepristone was approved for abortion in the U.S. by the FDA, in September 2000.[46] It is legal and available in all 50 states, Washington, D.C., Guam and Puerto Rico.[47] It is a prescription drug, but it is not available to the public through pharmacies; its distribution is restricted to specially qualified licensed physicians, sold by Danco Laboratories under the tradename Mifeprex.

I haven’t read a legal brief or anything by Indiana Right to Life which is raising this issue, so I can’t conclude from the J&C story the precise contours of its legal position, if it is taking one, but generally speaking, they complain that Planned Parenthood is providing the pill without being licensed as an abortion facility. IC 16-21-2-2.5 speaks to the State Department of Health’s development of rules for licensure of abortion clinics. However, “abortion clinic” is a term defined by the Indiana Code under IC 16-18-2-1.5:

Abortion clinic
Sec. 1.5. (a) “Abortion clinic”, for purposes of IC 16-21-2, means a freestanding entity that performs surgical abortion procedures.
(b) The term does not include the following:
(1) A hospital that is licensed as a hospital under IC 16-21-2.
(2) An ambulatory outpatient surgical center that is licensed as an ambulatory outpatient surgical center under IC 16-21-2.
(3) A physician’s office as long as the surgical procedures performed at the physician’s office are not primarily surgical abortion procedures.
As added by P.L.96-2005, SEC.2.

Under that definition, a facility would not become an “abortion clinic” by virtue of giving a pill that induces abortion because providing that pill does not constitute a “surgical abortion procedure.”

Indiana Right to Life’s letter to Attorney General Zoeller is here (pdf).

Our request stems from concern that women’s health and safety may be in jeopardy due to the fact that these abortions are occurring in a facility that is not inspected or licensed as other abortion clinics are required to do by law.

So, their concern does appear to be directed at Indiana’s abortion clinic licensure requirements; but, as I say, it looks fairly clear that the definition of “abortion clinic” under the Department of Health licensure provisions concerns itself with facilities that provide surgical abortions.

Charles Wilson, reporting for the AP, has a story about three Indiana Senators looking to press on with a case abandoned by the Indiana Attorney General. (h/t Indiana Law Blog)

Indiana passed immigration legislation that looked a lot like Arizona’s. Recently, the U.S. Supreme Court struck down that legislation as unconstitutional — the state of Arizona was trying to usurp the prerogatives of the federal government. Prior to that decision, the Indiana Attorney General was fighting the good fight – making its pitch for Indiana’s version of the immigration law. But, when the U.S. Supreme Court issued its decision, the writing on the wall was clear, and the Indiana Attorney General declined to keep up a fight that was futile.

Senators Delph, Boots, and Steele apparently want to continue litigating where Attorney General Zoeller has determined further litigation would be wasteful in light of the Supreme Court’s decision. So, they’ve engaged the legal arm of the Federation for American Immigration Reform (FAIR) – a group about which the Southern Poverty Law Center has a dim view. They’re petitioning the court to intervene and try to defend the parts of the law that the attorney general views as indefensible in the wake of the Supreme Court’s ruling.

This reminds me a bit of the tension you always see when criminal defense lawyers represent clients who want them to advance implausible legal theories. These criminal defendants are very imaginative, but their legal theories are fantastic and frivolous. So, they feel slighted when their legal counsel, more grounded in reality, has to admit to the court that they don’t have a case.

It’s Labor Day. And, on this day, it occurs to me that I could use a new job. Not because I’m unhappy with my current job; it’s just that I see a connection between a few of my previous posts that it’d be great to have a couple of months to think about and tie together into a book or something. So, the new job would have to be one that grants sabbaticals right of the gate. Maybe I’d better stick with what I’ve got.

The first post was “Technology and the Future of Work” from last April. The second was just the other day, “Liberty, Laws, and Property.” And, the third, was from last October entitled “Fred Clark: Unemployed in the Affluent Society.”

The problem I see, this Labor Day, is that compared to recent centuries, wealth is fairly abundant, but the amount of labor necessary to create that wealth is very much diminished. And, yet, because of the history of how wealth was traditionally created, we generally tie the legitimacy of one’s claim to property to some sort of labor that goes into creating that wealth. Then, we allow (even encourage) the laborer to contract away much of that claim to an employer – someone with specialized access to tools needed to create wealth (large machines, in many cases) or maybe specialized access to the demand or markets for certain types of labor.

But, now, with the demand for labor at very low levels, the individual has very little leverage when negotiating away their claim to property (e.g. the employment contract). This leverage is further reduced by the fact that the person has certain basic needs – food, shelter, health care, etc; and, by and large, can’t simply walk away from the table in most cases. (If demand for labor is high, then you can simply go on to the next employer; if not, you have to take what you can get.)

Meanwhile, employers (those with specialized access to tools or markets) can accumulate great wealth because they can bundle together the shares of access to property traded away by the laborers (value created by labor but not retained by the laborer) and pocket that value for themselves. They’re able to do this because they are operating in an environment featuring a cocoon of infrastructure and property laws; among other things. Absent this environment, their deals with laborers (and with makers of the specialized tools and with the markets they have specialized access to) would be worth precisely nothing. Without this cocoon, you get Somalia. Which is why, despite Randian fantasies of “going Galt,” the employer class never seems to voluntarily absent itself from “government oppression.” They benefit from the rights decreed in their favor and burdening everyone else as described by Jeremy Bentham:

Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burden on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body, except myself the obligation not to touch its produce. Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burden on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body, except myself the obligation not to touch its produce.

So, because the people who profit by contracting with laborers are dependent on the cocoon of infrastructure and property laws, laborers acting through their government are not entirely powerless to leverage a new deal. And, because of the disparity of profits made possible by this system, it’s not entirely unjust to use that leverage. I tend to envision such a system featuring secure access to necessities such as food, shelter, and health care; but it should not be so luxurious as to turn our current hyper-abundance of labor into a shortage.

On the other hand, drawing off some of the labor force would, to some extent, be a feature, not a bug. If labor were not quite so abundant, that would increase the negotiating leverage of the remaining laborers. This line of thinking runs deeply, deeply against our Puritan roots. Sloth! Idle hands are the devil’s work shop! Back in the days when those roots were taking hold, the situation was different. As described by Fred Clark, channeling John Galbraith:

Goods were vitally necessary; the loss of available labor to produce those goods was extremely detrimental to society; and, therefore, the penalty – deprivation of all or most of an individual’s income – was appropriate. The penalty was so justified that there was no moral obligation to help someone who wasn’t helping themselves by working.

Those conditions are no longer so operative. Maybe it’s time we consider a new New Deal; even if it makes John Calvin cry.

Tipsy has a really good blog post up over at his site entitled “Inscrutable Justice.” Go read it. It considers our inappropriate tendencies toward private vengeance in the administration of our public criminal justice system and some further thoughts on whether these tendencies are modeled after certain views about how God administers justice. I love the description of the Calvinist view of the Almighty as sort of a thin-skinned medieval lord who is infinitely offended and of John Edward’s “Sinners in the Hands of an Angry God” as a near-slander of God.

More to the point, however, indulging our natural, individual thirst for vengeance is digression from the public goals of the criminal justice system. Maybe a toxic digression. This came up for me in a discussion over at Kole Hard Facts of Life about the seemingly very light sentence of Anders Breivik in Norway. He was sentenced to 21 years for killing 77 people.

Admittedly, the severity of the punishment is not comparable to the severity of the crime. But, then, really nothing the State could do to Breivik could match his crime. However, it’s not the goal of the State to inflict as much pain on the criminal as the criminal inflicted on the victims. Rather, the goals are to keep the public safe, deter future crime, and – in service of those two goals – rehabilitate the criminal, if possible. Now, I know that the desire for vengeance is a motivating emotion in some who create and administer the criminal law as well as many of the citizens who support the criminal law. But, vengeance is an individual feeling; not a desirable attribute of the State.

So, while I would shed no tears if Breivik suffered a freak accident that caused him to die a painful death; I can’t fault Norway for not codifying vengeance. As I understand it, after the 21 years is up, if a determination is made that Breivik is still a threat to public safety, there are mechanisms in place for extending that sentence. I can’t look at Norway and then at the United States; their relative crime rates; and their relative costs of administering criminal justice and conclude that we know better than Norway how to do these things – even if their public system doesn’t happen to scratch my personal itch for retribution.

The law cannot create rights without creating the corresponding obligations. It cannot create rights and obligations without creating offences. It can neither command nor prohibit, without restraining the liberty of individuals.

In his “Principles of the Civil Code,” Jeremy Bentham has some interesting thoughts on the relationship between liberty and property. (h/t Marc) He points out that property laws, like all laws, are infringements of liberty. They are useful infringements, but infringements all the same.

Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burden on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body, except myself the obligation not to touch its produce.
. . .
The proposition, although almost self-evident, that every law is contrary to liberty, is not generally recognised: on the contrary, the zealots of liberty, more ardent than enlightened, have made a conscience of combating it. And how have they done it? They have perverted the language, and will not employ this word in its common acceptation. They speak a language that belongs to no one: they say, “Liberty consists in the power of doing every thing which does not hurt another.” But is this the ordinary meaning of this word? The liberty of doing evil, is it not liberty? If it is not liberty, what is it then? and what word should we make use of in speaking of it? Do we not say that liberty should be taken away from fools, and wicked persons, because they abuse it?

Libertarians are perhaps better regarded as propertarians. Bentham suggests that laws should only be enacted where the burdens they impose are outweighed by the benefits they confer.

The legislator ought to confer rights with pleasure, since they are in themselves a benefit; he ought to impose obligations with repugnance, since they are in themselves an evil. In accordance with the principle of utility, he ought never to impose a burden but that he may confer a benefit of a greater value.

The libertarians I have read don’t seem to bother much with this sort of calculus when it comes to property rights. They take it as an article of faith that property rights always outweigh the corresponding restrictions on liberty. This is so, I think, because of the tendency to regard property rights as “natural rights” — something that comes not from the rational acts of humans but from the ether or something. I’ve never heard a convincing explanation of “natural rights” — mainly just hand waving references to a Creator whose mind is apparently known to those who divine the natural rights. Fact is, in the absence of law, there are no rights; just unenforceable opinions about how things ought to be.

But, I think in the coming years as the nature of work evolves, we’ll have to be more aware of the calculus underpinning our assessment of property rights and the corresponding burdens imposed thereby.

I’ll keep thinking about this. I think it plays into all kinds of major concerns: jobs, debt, taxes, the shrinking middle class, etc.

Update Came across a quote from Adam Smith in his “Wealth of Nations” which seemed appropriate to this post:

“Civil government, so far as it is instituted for the security of property, is, in reality, instituted for the defense of the rich against the poor, or of those who have property against those who have none at all.”

I had a thought about our current fish-bicycle style employer-based health insurance system where good chunk of the American public’s health insurance is tied to their place of employment. The two things aren’t really connected intuitively. There is no real reason one has to be tied to the other. And I think it results in some unintended consequences – for example, sick people or family members are sick people are likely to stick with a job that’s otherwise unsuitable for them simply so they can keep living and stuff.

But, it does have one salient feature that’s especially resonant in the United States – it at least gives some assurance that we are not insuring lazy people. Laziness might be the cardinal sin in the U.S. And, I do believe, we’d rather have a screwed up, expensive system of health insurance that gives us less for our dollar if it means that no one who is lazier than us gets more than us.

Which might explain why Medicaid is fairly unpopular. Even I’m guilty of it. Within the last month, I’ve grumbled to my wife about some expensive procedure received by someone with whom we’re acquainted. It was something that would possibly wipe us out financially despite being insured if we were to find ourselves in that position. But, since the recipient has Medicaid and nothing to lose, in some ways, they’re better positioned to receive medical care.

Matt Taibbi has a brief article entitled More Evidence Wall Street Is Overpaid.

We’ll be getting to this more next week when we do our piece on Mitt Romney and the private equity business, but one of the most frequently-overlooked problems of the financialization age is that a lot of our brilliant financial engineers are actually pretty damned average, when it comes to playing the market.

Apparently only 11% of hedge funds have outperformed the S&P 500. The huge compensation for people working in this field comes not, it seems, from the market smartly allocating resources in the people who provide the highest return; but more from successful rent seeking by Wall Street firms who more or less control access to the casino.

In addition to being wasteful in terms of asset allocation, our current system is also probably a waste of talent. Taibbi again:

Someday we’ll get back to the time when the really smart guys from the best schools went to work for companies that built actual products, engineered more efficient cars, cured diseases, etc. Because it seems like our best minds kind of suck at investing.

Neil Armstrong passed away yesterday at the age of 82. I always felt a certain affinity for him because: a) he was Neil Armstrong and I was a kid in the 70s; and b) he grew up in the same general geographic area as me: born in Wapakoneta, OH (my family spent some time in Sydney, OH) and went to school at Purdue. But, on some level, I resisted picking him for personal hero worship – not because of any deficiency with him, but because I’ve always had a tendency to gravitate to second banana types or less obvious folks. Neil was the shining star. I felt bad for Michael Collins – go all that way and be the one who has to circle the moon while the other guys get to walk on the moon.

So, I got to wondering why Armstrong’s death hit me so hard. We were driving home from a kid’s soccer game, Amy told me that Twitter was full of the reports of his death. And I felt a real pang of sadness that I never get with your average celebrity. Now, Armstrong was a man with a lot of heroic qualities; but I can’t think that my feelings about his passing had a lot to do with his qualities as an individual. He was heroic, but not uniquely so. He was not John Galt or some sort of ubermensch that went to the moon by himself. In fact, for me, one of the most heroic things about him was his humility in his life following the moon landing. Not many would have conducted themselves with such grace in his place. Still, with respect to the moon landing itself, there were and are other individuals who would have performed as heroically under the same circumstances. My pang of regret at his passing had more to do with what Armstrong represented. He was iconic.

Armstrong was America at its very best. An America that bent itself and its resources on a noble goal. Not to make myself look too wishy-washy, but I recall a moment when I was maybe 26 or 27 and I was thinking about the moon landing. And the full magnitude of that accomplishment really hit me. I cried a little bit. Thinking of the hundreds of thousands of years of humanity that spent nights looking up at the moon and wondering about it. And only now, within a couple of years of my birth, humans – humans from my country no less – had the audacity and the ability to leave the planet and go there. And Neil Armstrong was the tip of that particular spear who first set foot on the damn moon. We live in the future!

But, his passing represents the passing of that time; when we strove and accomplished. It was akin to the feeling when Discovery made that final flight. It wasn’t because I had a particular investment in Discovery; it was, as Neil DeGrasse Tyson pointed out, because there was nothing waiting in the wings behind Discovery. When Gemini gave way to Apollo, that was a moment of excitement, not melancholy. Similarly, part of what hurts about Armstrong’s passing is that there do not seem to be astronauts waiting in the wings to repeat or advance what Armstrong and NASA did in 1969. I read that the youngest person who walked on the moon was born in 1938. His passing is a reminder that, in many ways, we have become a lesser, meaner people; less inclined or able to strive together toward great things.

Rest in Peace Commander.

Getting ahead of the upcoming session and drafted a bill for supporters of the Akin distinction about legitimate/forcible/actual rape:

SECTION 1. IC 35-42-4-1, AS ADDED BY P.L.148-1976, SECTION 2, AND AMENDED BY P.L.340, SEC.36; P.L.320-1983, SEC.23; P.L.16-1984, SEC.19; P.L.297-1989, SEC.1; P.L.31-1998, SEC.3., IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. (a) Except as provided in subsection (b), a person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when:
(1) the other person is compelled by force or imminent threat of        force;
(2) the other person is unaware that the sexual intercourse is occurring; or
(3) the other person is so mentally disabled or deficient that consent to sexual intercourse cannot be given;
commits rape, a Class B felony.
(b) An offense described in subsection (a) is a Class A felony if:
(1) it is committed by using or threatening the use of deadly force;
(2) it is committed while armed with a deadly weapon;
(3) it results in serious bodily injury to a person other than a defendant; or
(4) the commission of the offense is facilitated by furnishing the victim, without the victim’s knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim’s knowledge.
(c) If pregnancy results from the sexual intercourse described in subsection (a), such pregnancy shall create a rebuttable presumption that the offense did not occur.

Who wants to introduce it?

This intro to an Evansville Courier Press editorial caught my eye:

Maybe we’re overstating it, but it seems that the more we learn about the universe — and we are learning a lot — it seems the less we know.

Well, now, that’s the beauty of it all, isn’t it? With the scientific method, curiosity, and a sense of wonder, the universe is like a cornucopia of puzzles to solve.

Specifically prompting this editorial:

Astronomers have discovered a distant galaxy — 5.7 billion light-years fitting anybody’s definition of “distant” — that spits out new stars at, well, an astronomical rate.

The galaxy is creating about 740 new stars a year, compared to about one a year for our own Milky Way.

Astronomers are nicknaming the galaxy Phoenix because, at 6 billion years old, it was thought to be dead, but it came back to life in a way that gave scientists new mysteries to puzzle over.

The universe is vast, and we are small; but we’re getting bigger. Compare the first couple million years of human progress versus the last five hundred or so. (Unless you believe that humans have only been around for 6,000 years, in which case, this discussion is probably already blasphemous.) If we can hold it together long enough to travel faster and get a foothold on other planets, our species could really make something of itself. Right now, however, we’re kind of making a mess of our nest on the planet Earth; and it’s an open question how long we’ll have the resources to continue progressing.