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Recent Policy Studies
Monetary Policy/Financial RegulationBy Peter J. Wallison, American Enterprise InstituteArticle, 01/27/2012
A United States sovereign debt crisis is a remote possibility, but in our increasingly fragile system it could be triggered by a number of financial catastrophes—from a chaotic break-up of the Euro system to something as adventitious as a serious earthquake in California. The most likely source of a United States sovereign debt crisis, however, is a failure of the United States political system to address the growth of the major entitlement programs—Social Security, Medicare and Medicaid. That possibility is discussed in this paper.
Monetary Policy/Financial RegulationBy Desmond Lachman, American Enterprise InstituteBriefing Paper, 01/27/2012
In the year ahead, a more than likely intensification of the European debt crisis constitutes the major external risk to the United States economic outlook. This is partly because United States export prospects will be negatively impacted by a marked weakening in the Euro and by a serious economic recession in Europe, which still constitutes around one-third of the overall global economy. More troubling yet, it is because a potential European banking crisis would spill over to the United States financial system, which has very close links to the European banking system.
LaborBy James Sherk, The Heritage FoundationWebMemo, 01/27/2012
Union membership, which has fallen to a new post–World War II low of 11.8 percent in 2011, has decreased because traditional collective bargaining does not appeal to most workers. Polls show that only one in 10 non-union workers wants to organize. But while workers reject unions, they do want a voice in the workplace. Unfortunately, the National Labor Relations Act prohibits employee–employer working groups that give employees that voice. It is time for Congress to allow non-union employers and employees to work together to improve working conditions.
Regulation & DeregulationBy Patrick Basham, John C. Luik, Washington Legal FoundationWorking Paper, 01/27/2012
Public health officials and activists argue that warnings with alarming language and graphic images are required to effectively “guide” the public toward better consumption decisions. Graphic health warnings are not grounded in social psychological principles and are not supported by scientific evidence. Properly conducted studies show that such warnings not only are ineffective, but can be counterproductive. Graphic health warnings are fundamentally at odds with three core democratic values: autonomy, respect, and freedom of expression.
The Constitution/Civil LibertiesBy Charles M. English, Washington Legal FoundationLegal Backgrounder, 01/27/2012
This legal backgrounder explores how the present Supreme Court’s textual reading of the First Amendment affects pending governmental efforts to compel private party speech with respect to tobacco (Food and Drug Administration regulations requiring new warning labels including specific government prescribed graphic images) and cell phones (San Francisco’s new requirement that cell phone retailers provide government prescribed posters, “fact-sheets,” and warning stickers on promotional literature). Both laws are presently enjoined and headed for expedited review by the United States Courts of Appeals for the District of Columbia Circuit and the Ninth Circuit, respectively.
Crime, Justice & the LawBy Mark A. Behrens, Cary Silverman, Washington Legal FoundationLegal Opinion Letter, 01/27/2012
Recently, the Pennsylvania Superior Court issued what is believed to be the first appellate level decision to approve the use of a trial court’s equitable powers to deduct bankruptcy trust recoveries from an asbestos plaintiff’s tort system recovery for claims involving the same alleged injury. The ruling is a significant step toward reducing the double dipping which threatens the financial viability of solvent defendants and unnecessarily depletes resources available to future claimants.
National SecurityBy Baker Spring, The Heritage FoundationWebMemo, 01/27/2012
On January 26, Secretary of Defense Leon Panetta provided the public with a preview of the defense budget request the Obama Administration will submit February 13. The full details of the fiscal year 2013 defense budget request will be released next month, but Panetta’s presentation makes it clear that the budget will not provide the United States military with the resources it needs. What Congress and the American people need to understand is that the stakes are exceedingly high. These stakes include the lives and well-being of many people around the globe, the preservation of the global trading system and future prosperity, and ultimately the cause of liberty worldwide. These are not risks worth taking.
Inside the Patient-Centered Outcomes Research Institute: No Promise of Protection from Government RationingBy Kathryn Nix, The Heritage FoundationWebMemo, 01/27/2012
The much-awaited release of the Patient-Centered Outcomes Research Institute’s priorities and research agenda lacks specifics and fails to answer concerns that its research findings will ultimately be used to limit treatment options. While the Patient-Centered Outcomes Research Institute is statutorily prohibited from linking its research findings to coverage recommendations, its creation makes comparative effectiveness research a tempting tool to use to drive down future health care costs.
Economic and Political ThoughtBy Edwin Meese III, Lee Edwards, James C. Miller III, Steven Hayward, The Heritage FoundationHeritage Lecture, 01/27/2012
Throughout his presidency, Ronald Reagan was guided by the principles of the American founding, especially the idea of ordered liberty. In the opening of his first inaugural address in 1981, President Reagan echoed the preamble of the Constitution, calling on the country’s citizens to “preserve this last and greatest bastion of freedom.” Eight years later, in his farewell address, President Reagan pointed out that the American Revolution was “the first revolution in the history of mankind that truly reversed the course of government, and with three little words: ‘We the people.’” In his State of the Union speeches, Reagan referred to the Constitution more than any other President of the past half century. A survey of his presidential papers reveals 1,270 references to the Constitution. On September 9, 2011, as part of The Heritage Foundation’s “Preserve the Constitution” series, two former Reagan Cabinet members and two Reagan historians discussed how the Constitution provided the foundation of the Reagan presidency.
Health CareBy James D. Agresti, Just Facts FoundationReport, 01/26/2012
Healthcare is a deeply personal matter, but it increasingly has become the public's business through numerous laws and regulations that have been enacted. Furthermore, most healthcare services are shaped by a diverse variety of market forces. So if you truly want to understand the healthcare policy problems of today and solutions for tomorrow, you will need a firm foundation of facts that legitimately enlighten reality. This research contains basic facts about health care.
Budget & TaxationBy Deborah D. Thornton, Public Interest InstitutePolicy Study, 01/26/2012
In 2008, Iowa’s state-government workers received an average wage that was 148.07 percent of what the average private-sector worker in Iowa was paid. That means that for every $1.00 an average private-sector worker earns in Iowa, an average state-government employee in Iowa earns $1.48. Iowa’s Pay Gap was larger than in any other state.
The Constitution/Civil LibertiesBy Thomas Messner, The Heritage FoundationBackgrounder, 01/26/2012
Religious staffing by religious organizations is an established, baseline position in federal law that deserves continued support. Most fundamentally, religious staffing by religious organizations is socially desirable conduct that benefits individuals and society, not unjust discrimination that should be eradicated through law. In addition, protections for religious staffing advance several important public interests, including eliminating discrimination against faith-based charities that compete for federal social service funds, increasing the effectiveness of important services to the poor, reducing government entanglement in religious affairs, and protecting religious freedom. Accordingly, public officials should shore up, not tear down, legal protections for religious staffing by religious organizations.
Health CareBy John R. Graham, Pacific Research InstituteHealth Policy Prescriptions, 01/26/2012
A funny thing happened on the way to the so-called health reform promised in the Patient Protection and Affordable Care Act, signed by President Obama on March 23, 2010: Although the cost of health care has increased at a slower rate than in previous years, premiums for health insurance and the share of premiums used for purposes other than paying claims have been increasing faster than in previous years. That’s not exactly what President Obama promised, is it? In fact, it is the opposite of what he promised. What is going wrong?
Economic GrowthBy Loren B. Thompson, Lexington InstitutePolicy Report, 01/26/2012
In recent years the United States economy has begun to falter and the federal government’s debt has risen rapidly. That has led to a widespread belief that the government needs to reassess how its activities impact economic performance. One facet of the debate is the relationship between military spending and the nation’s industrial base. While it is indisputable that Pentagon research has led to important technological breakthroughs such as computers, jet engines, lasers and the Internet, other facets of the military enterprise may be impeding economic competitiveness and progress. This report explains why performance of industrial activities in military depots and shipyards can be detrimental to the nation’s broader economic goals. It acknowledges the contributions of public-sector facilities, but argues that the range of industrial functions they accomplish should be limited to assure they do not impede the potential of the larger economy.
EducationBy John R. LaPlante, Kansas Policy InstitutePolicy Papers, 01/26/2012
There is no silver bullet / single-solution to fix the unacceptably low achievement levels in Kansas (only about a third of all students are proficient in Reading according to the U.S. Department of Education) but online learning is a vital component of the broad array of reforms needed. Kansas policy makers should remove barriers to the growth of online schooling, especially regulations first meant for the brick-and-mortar school.
Health CareBy Scott W. Atlas, Hoover InstitutionBook, 01/26/2012
Medical care in the United States has been loudly and repeatedly derided as inferior in comparison to health care systems in much of the developed world and even in some relatively undeveloped nations. In Excellent Health offers an alternative view of the much maligned state of health care in America, challenging the statistics often cited as evidence that medical care in the United States is substandard and poor in value relative to that of other countries. Rather than relying on purely subjective judgments about equity and fairness, the book provides extensive, detailed evidence with which to answer the paramount question when considering quality of health care: “Where would you rather be when you are sick?”
Foreign Policy/International AffairsBy Joel Rayburn, Hoover InstitutionDefining Ideas, 01/26/2012
Most American observers have hailed the departure of United States troops from Iraq as a victory of sorts, while according Iraq little value in the hierarchy of our foreign policy interests, despite the country’s importance to the global economy and to the politics of a vital region undergoing profound change. If the current trends continue, the instability of post-American Iraq—as well as its hostility to our influence and presence—may far exceed our planned capacity to manage it. Absent a sober reappraisal of our interests, position, and relationship with the emerging Iraqi state, we must be content to see Iraq drift into an adversarial camp or into civil war for years to come. Perhaps, in the end, this is what comes of having declared an end to a war that is not over.
Economic and Political ThoughtBy Gary S. Becker, Hoover InstitutionHoover Digest, 01/26/2012
The widespread demand after the financial crisis for radical modifications to capitalism typically paid little attention to whether in fact proposed government substitutes would do better, rather than worse, than markets. Government regulations and laws are obviously essential to any well-functioning economy. Still, when the performance of markets is compared systematically to government alternatives, markets usually come out looking pretty good.
Economic GrowthBy John B. Taylor, Hoover InstitutionHoover Digest, 01/26/2012
In recent years we’ve seen what doesn’t work. Here’s what would. A simple plan for turning the economy around.
Budget & TaxationBy Mark Robyn, Tax FoundationTax Data, 01/25/2012
The Tax Foundation presents the 2012 version of the State Business Tax Climate Index to enable business leaders, government policymakers, and taxpayers to gauge how their states’ tax systems compare.
Budget & TaxationBy Nick Dranias, Goldwater InstitutePolicy Report, 01/25/2012
Civil servants should serve the public. Honest politicians must end policies and agreements that put their interests and those of government employees ahead of those of citizens at large. This report shows how.
Natural Resources, Energy, Environment, & ScienceBy Nicolas Loris, The Heritage FoundationWebMemo, 01/25/2012
Despite the Department of State’s finding that Keystone XL would pose no significant environmental threat, environmental activists’ relentless opposition persuaded President Obama to deny the permit application. Congress should recognize the findings in the Department of State’s Final Environmental Impact Statement and authorize the application submitted by TransCanada on September 19, 2008.
Family, Culture & CommunityBy Charles Murray, American Enterprise InstituteBook, 01/25/2012
In Coming Apart, Charles Murray explores the formation of American classes that are different in kind from anything we have ever known, focusing on whites as a way of driving home the fact that the trends he describes do not break along lines of race or ethnicity. Drawing on five decades of statistics and research, Coming Apart demonstrates that a new upper class and a new lower class have diverged so far in core behaviors and values that they barely recognize their underlying American kinship—divergence that has nothing to do with income inequality and that has grown during good economic times and bad.
Health CareBy Peter Suderman, Reason FoundationReason, 01/25/2012
So what innovative solution does Obama propose to begin fixing America’s biggest fiscal problem? Simple: He would change the way providers are paid for Medicare’s services. Pay less, spend less. Right? It is so obvious that one might wonder why it hasn’t been tried before. The answer is that it has—many, many times. It is often said that you can’t put a price on health. But for decades that is exactly what the federal government has attempted. Since the birth of the entitlement, a parade of legislators and bureaucrats has been playing billion- and trillion-dollar games of Whac-A-Mole with Medicare, knocking down spending with an elaborately constructed set of technocratic payment schemes in one area only to see it rise back up in some other part of the system. Obama is merely proposing to try it one more time.
National SecurityBy Baker Spring, Michaela Bendikova, The Heritage FoundationWebMemo, 01/25/2012
By accepting an international code of conduct for space, the Administration would threaten the dominant U.S position in military and intelligence space capabilities, which provides the U.S. with enormous advantages over the enemy in the conduct, training, and support of military operations. In addition, the Administration is trying to circumvent the Senate’s advice and consent role. Congress should make it clear to the Administration that it will not tolerate an agreement that blurs the distinction between an arms control treaty and a law of war treaty. By extension, if the U.S. enters into international negotiations on a space Code of Conduct, it should mean that the U.S. is withdrawing its support for the agenda at the United Nations Conference on Disarmament. Congress should vigorously defend its advice and consent role and demand the submission of the Code of Conduct as a treaty, rather than accepting the Administration’s fiction that it is anything else.
Budget & TaxationBy Patrick Louis Knudsen, The Heritage FoundationWebMemo, 01/25/2012
After a year of unproductive brinksmanship, Congress and the President enter 2012 facing the same intractable budget problems as before: a fourth consecutive deficit expected to be $1 trillion or higher, spending that consumes nearly one-fourth of the economy’s total output, and an entitlement-driven fiscal disaster that has drawn one year of inaction closer. In addition, Congress still has lingering issues from actions late last year—items that it must address quickly as the new year begins, such as fixing the ill-conceived spending sequestration and the “doc fix.” These will then be followed by another round of equally difficult decisions, including the annual appropriations for the coming year. Congress and the President still have a responsibility to produce a budget, perhaps the most basic job in any government.
Budget & TaxationBy Curtis Dubay, The Heritage FoundationWebMemo, 01/25/2012
President Obama and Congress need to focus on policies in 2012 that will unleash the economic growth necessary to get the economy back on track, create jobs, and lower the unemployment rate. As more government spending has failed to create that growth, the President and Congress should turn to removing the obstacles that Washington policies are placing in the way of economic expansion. They should start with taxes, since taxes are one of the foremost growth-inhibiting policies. The to-do list below will guide them on how to set the economy free.
Budget & TaxationBy Matt Mayer, The Heritage FoundationWebMemo, 01/25/2012
After three full years, it is clear that the Obama Administration has adopted the views of the Clinton and Bush Administrations on how to use the Federal Emergency Management Agency (FEMA) as a political pork-barrel spending agency. Congress should either limit the use of FEMA declarations or accept the near total federalization of disasters and the federal fiscal cost that goes with that reality.
National SecurityBy Baker Spring, Michaela Bendikova, The Heritage FoundationWebMemo, 01/25/2012
The nuclear mission remains the cornerstone of U.S. and allied security. More than 30 countries rely on the U.S. nuclear umbrella. Bombers provide U.S. policymakers a unique ability to demonstrate policy intent, can be recalled en route to target to demonstrate national willingness to resolve an issue, and provide the widest array of yield options. It is essential that the focus of the Air Force is kept on preserving this mission and maintaining nuclear deterrence. Maintaining a nuclear-mission-dedicated squadron of bombers would help to achieve this goal.
Economic GrowthBy David Addington, The Heritage FoundationBackgrounder, 01/25/2012
America needs jobs. A government committed to free enterprise, limited government, and individual freedom, and not to more borrowing and spending, can properly help. To help unleash the private sector to invest and create jobs, Congress should promptly take five specific actions: enact the New Flat Tax, free America’s energy resources, grant effective free trade negotiating authority, stop excessive government regulation, and end the artificially high pricing of labor for federal construction projects under the Davis-Bacon Act and government-mandated project labor agreements.
The Constitution/Civil LibertiesBy Robert Alt, The Heritage FoundationReport, 01/25/2012
The courts have increasingly intervened on what are properly political questions. They have thereby undermined the ability of the American people to decide important issues through their elected representatives. Not surprisingly, the courts have become increasingly politicized institutions, and the nomination and confirmation of judges has also been politicized. The Constitution is resilient, and it provides its own mechanism for renewal. The President nominates, and the Senate confirms, federal judges to serve during good behavior. If America is to be again a country of laws, and not of men, the people must demand that their President nominate and Senators confirm only judges who will conform to the proper role of a judge, and rule based upon the words and the original public meaning of the Constitution.
Foreign Policy/International AffairsBy Brett Schaefer, The Heritage FoundationBackgrounder, 01/25/2012
The U.S. and other countries deserve credit for resisting attempts to increase the United Nation’s budget, especially since the U.N. regular budget has been reduced only once in the past two decades. However, closer inspection reveals that the budget “cut” is largely the result of deferred “recosting,” not of reductions in U.N. mandates, employment, or other activities that would lead to a more permanent cutback in spending. The U.S. has fought a difficult battle for U.N. budgetary restraint for decades. America’s current economic crisis underscores the moral responsibility toward American taxpayers to ensure that the U.N. implements true budget cuts. The U.S. and other major contributors must hold firm, lest the deferral of “recosting” turn into a temporary budget gimmick rather than a real budget cut.
Foreign Policy/International AffairsBy James Phillips, The Heritage FoundationWebMemo, 01/25/2012
The Obama administration should focus on expediting the fall of the Assad regime through non-military means, not on restraining the opposition from defending itself against a predatory regime. Syria’s faltering economy, weakened further through multilateral sanctions, will increasingly erode the Assad regime’s narrow base of support and undermine its ability to finance the repression of its own people. Eventually the regime will implode if the opposition coalition can reassure nervous Alawite, Christian, and Druze minorities and the Sunni mercantile elites that they would be better off under an inclusive representative government than under the current regime.
Transportation/InfrastructureBy Steve Poftak, Pioneer Institute for Public Policy ResearchPolicy Brief, 01/24/2012
Pioneer’s Transportation Dashboard is intended to communicate the performance of the state’s transportation system and inform the public about the effectiveness of the state’s transportation leadership. As a single-page of primarily visual communication, it necessarily simplifies the complex nature of the transportation system. Pioneer developed the dashboard in partnership with Northeastern University’s School of Engineering, led by Professor Ali Touran. We offer the dashboard as a starting point for the development of richer and deeper analysis of system performance.
Budget & TaxationBy Jeremy Alford, Pelican Institute for Public PolicyReport, 01/24/2012
When the Louisiana Legislative Auditor’s Office investigated the unfunded accrued liability last spring, the total price tag weighed in at $18.2 billion. By the time the current fiscal year commenced in early June, another $300 million was added to the tally, making for a UAL that’s actually closer to $18.5 billion To put that figure into perspective, every man, woman and child in Louisiana would need to pony up somewhere in the neighborhood of $4,090 to retire the state’s entire pension-related UAL.
Economic and Political ThoughtBy Mark Meckler, Jenny Beth Martin, Henry Holt and CompanyBook, 01/24/2012
Fueled by the fires of passion and patriotism, Mark Meckler and Jenny Beth Martin have become the faces of the most powerful political movement in the country, empowering their more than twenty million members by using both high-tech advances and the time-tested American tradition of rallying in public. Promoting the basic principles of the Tea Party Movement—free market, limited government, and fiscal responsibility—the Tea Party Patriots have become the largest tea party organization in the world. With unparalleled access to the inner workings of the movement, Meckler and Martin hope to explain how the Tea Party came to be, what it is and is not, and perhaps most important, provide the first comprehensive, forward-looking document outlining a plan to restore America to its prior greatness.
Economic GrowthBy Philip Booth, et al., Institute of Economic AffairsBook, 01/23/2012
Explicit attempts by government to control GDP, or rapidly increase GDP growth, have normally failed. Such a target-driven mentality is part of the conceit of central planning. Attempts to centrally direct policy towards improving general wellbeing will also fail. Contrary to popular perception, new statistical work suggests that happiness is related to income. This relationship holds between countries, within countries and over time. The relationship is robust and also holds at higher levels of income as well as at lower levels of income. This calls into question the assertion that people are on a ‘hedonic treadmill’ that prevents them becoming happier as their income rises beyond a certain level of income.
The Constitution/Civil LibertiesBy Michael Mukasey, Hillsdale CollegeImprimis, 01/23/2012
The message lurking in the structure of the Constitution is that those acting lawfully under it deserve at least the benefit of the doubt when they act to protect the common good. That is not meant to be a statement or a suggestion of a jurisprudential standard, a standard of law; but it is meant as a prudential standard, a standard of civics and public discourse. This standard will help keep intact the system that we depend on to preserve the nation that Abraham Lincoln called the last, best hope of earth—words that are truer today than they were when he spoke them during another time of trouble.
EducationBy Charles Murray, Hillsdale CollegeImprimis, 01/23/2012
The Department of Education has no track record of positive accomplishment—nothing in the national numbers on educational achievement, nothing in the improvement of educational outcomes for the disadvantaged, nothing in the advancement of educational practice. It just spends a lot of money. If the Department of Education disappeared from next year’s budget, would anyone notice? The only reason that anyone would notice is the money. The nation’s public schools have developed a dependence on the federal infusion of funds. As a practical matter, actually doing away with the Department of Education would involve creating block grants so that school district budgets throughout the nation wouldn’t crater. Sadly, even that isn’t practical. The education lobby will prevent any serious inroads on the Department of Education for the foreseeable future.
EducationBy Paul E. Peterson, Ludger Woessmann, et al., Education NextEducation Next, 01/23/2012
Given the integration of the world economy, a global perspective is needed for assessing the performance of U.S. schools, districts, and states. High-school graduates in each and every state compete for jobs with graduates from all over the world. Charles Vest, president of the National Academy of Engineering and president emeritus at Massachusetts Institute of Technology, has warned, “America faces many challenges…but the enemy I fear most is complacency. We are about to be hit by the full force of global competition. If we continue to ignore the obvious task at hand while others beat us at our own game, our children and grandchildren will pay the price. We must now establish a sense of urgency.”
EducationBy Jay P. Greene, Josh B. McGee, Education NextEducation Next, 01/23/2012
American education has problems, almost everyone is willing to concede, but many think those problems are mostly concentrated in our large urban school districts. In the elite suburbs, where wealthy and politically influential people tend to live, the schools are assumed to be world-class. Unfortunately, what everyone knows is wrong. Even the most elite suburban school districts often produce results that are mediocre when compared with those of our international peers.
EducationBy Eric A. Hanushek, Education NextEducation Next, 01/23/2012
But in all the acrimonious discussion surrounding NCLB, surprisingly little attention has been given to the actual impact of that legislation and other accountability systems on student performance. Now a reputable body, a committee set up by the National Research Council (NRC), the research arm of the National Academy of Sciences, has reached a conclusion on this matter. In its report, Incentives and Test-Based Accountability in Education, the committee says that NCLB and state accountability systems have been so ineffective at lifting student achievement that accountability as we know it should probably be dropped by federal and state governments alike. Unfortunately, the NRC’s strongly worded conclusions are only weakly supported by scientific evidence, despite the fact that NRC’s stated mission is “to improve government decision making and public policy, increase public understanding, and promote the acquisition and dissemination of knowledge.”
Natural Resources, Energy, Environment, & ScienceBy Randal R. Rucker, Walter N. Thurman, PERC – The Property and Environment Research CenterPERC Policy Series, 01/23/2012
We live in an imperfect world full of problems. That fact contributes to the ongoing media drumbeat over imminent catastrophe. Horror stories sell; news items about incremental improvements are not interesting except to people in the industries working to make life a little bit better. One horror story is that of Colony Collapse Disorder, a mysterious phenomenon affecting honey bees. It is a real problem that not long ago produced headlines such as “Bee Colony Collapses Could Threaten U.S. Food Supply” (Associated Press, May 3, 2007). Two prominent agricultural economists, Randy Rucker and Wally Thurman, look at the bee problem in a new light. The problem still exists but gets little news because, once again, the sky did not fall. People in the beekeeping industry reacted to the problem so swiftly that pollination continued and the food supply was saved.
Natural Resources, Energy, Environment, & ScienceBy Laura Huggins, PERC – The Property and Environment Research CenterPERC Policy Series, 01/23/2012
Fisheries around the world suffer abuse due to the lack of property rights. The result is environmental destruction and economic waste. In a few instances, when fisheries were in collapse, developed nations were spurred to adopt individual quotas or some other rights-based approach that produced better environmental and economic results. Unique about Namibia is that a catch-share system was adopted in a poor nation with a population consisting of several deeply-rooted tribes. This development shows that market-based reform is not a Western notion that somehow conflicts with traditional values. The lessons from Namibia and other fisheries success stories discussed in this essay illustrate that property rights and environmental protection can happen anywhere.
PhilanthropyBy Kirk MacDonald, Capital Research CenterFoundation Watch, 01/23/2012
Do you care that Adbusters Media Foundation is an obscure Canadian foundation run on a shoestring budget? That its magazine attacks “consumerism” and mocks capitalism and the advertising industry? That its founder dislikes the United States and Israel? How about that it’s behind the Occupy Wall Street movement?
PhilanthropyBy Matthew Vadum, Capital Research CenterFoundation Watch, 01/23/2012
Few outside the world of philanthropy have heard of the nearly 60-year-old Arca Foundation but that doesn’t mean it hasn’t been effective. Founded by a tobacco heiress, Arca has been on the cutting edge of radical left-wing causes, embracing Fidel Castro’s Cuba, the Palestinian cause, Saul Alinsky-inspired community organizing, and the never-ending social justice campaigns of the Left.
The Constitution/Civil LibertiesBy Michael Marinaccio, Capital Research CenterFoundation Watch, 01/23/2012
Last year’s Supreme Court decision in Citizens United v. Federal Election Commission drove the activist Left to madness. The decision affirmed a principle that corporations, like individuals, have free speech rights, which liberal doomsayers predict will lead to nothing less than the downfall of American democracy. To combat the ruling, the Obama White House has drafted an executive order that, if issued, will compel both for-profit and non-profit corporations (including labor unions) to disclose their political contributions whenever they apply for federal grants and contracts.
Elections, Transparency, & AccountabilityBy J. Christian Adams, Capital Research CenterOrganization Trends, 01/23/2012
Liberal foundations, public interest law firms and advocacy groups have created a permanent network of experts and organizations devoted to an arcane but critical task: monopolizing the narrative on election laws and procedures. Cloaking their actions in the rhetoric of civil rights and the right to vote, they seek to affect the outcome of the election. They challenge any effort to protect the integrity of the ballot box by denying the possibility of vote fraud and crying “Jim Crow.”
Natural Resources, Energy, Environment, & ScienceBy Amanda Carey, Capital Research CenterGreen Watch, 01/23/2012
Despite the environmental movement’s enormous effort and great expectations Congress has enacted no comprehensive climate change legislation. There’s no carbon tax, no cap-and-trade. In 2009, a cap-and-trade bill did pass the House but it was pulled from the Senate calendar. True, the federal government continues to tighten air quality standards, fuel efficiency standards for cars and trucks, and emission controls for plants and factories. But environmentalism’s Holy Grail remains elusive: there’s been no bill signing ceremony that recognizes global warming as a man-made planetary threat requiring nationwide controls over carbon emissions. What happened?
EducationBy Dick M. Carpenter II, Friedman Foundation for Educational ChoiceReport, 01/23/2012
Idaho already offers tax credits for donations to private schools, including religious schools, through the Schools, Libraries and Museums Credit. Through this program, taxpayers may take a credit for charitable contributions to Idaho public and private (including religious) nonprofit schools, including elementary, secondary and higher education, as well as Idaho public libraries, the Idaho State Historical Society and a list of other nonprofit organizations. This tax credit boosts private funds available to private schools and other organizations. Similarly, a scholarship tax credit would simply encourage private donations to private organizations so that scholarships could be made available for families to choose from a wider variety of schools—in some cases, the very same schools currently receiving donations through the Schools, Libraries and Museums Credit.
PhilanthropyBy Nachum Gabler, Charles Lammam, Niels Veldhuis, Fraser InstituteFraser Alert, 01/23/2012
An increasingly smaller proportion of the population in most provinces is giving to charity over time. Most notably, how ever, the index shows that private monetary generosity in Canada is considerably lower than in the United States. This generosity gap undoubtedly limits the power and potential of charities to improve the quality of life in Canada.
Health CareBy Bacchus Barua, Mark Rovere, Brett J. Skinner, Fraser InstituteFraser Alert, 01/23/2012
Waiting times for elective medical treatment have in creased since last year. Specialist physicians surveyed across 12 special ties and 10 Canadian provinces re port a total waiting time of 19.0 weeks between referral from a general practitioner and receipt of elective treatment. At 104 percent longer than it was in 1993, this is the longest total wait time recorded since the Fraser Institute began measuring wait times in Canada.
Economic and Political ThoughtBy Ibn Warraq, Encounter BooksBook, 01/23/2012
The West in general, and the United States in particular, has witnessed over the last twenty years a slow erosion of its civilizational self-confidence. Under the influence of intellectuals and academics like Susan Sontag and Noam Chomsky, and destructive fashions from postmodernism to multiculturalism, the West has lost all security in its own values, and is surprisingly incapable and unwilling to defend those values against aggressive challengers across the globe. In Why the West Is Best, Ibn Warraq, an Islamic scholar and a leading figure in Koranic criticism, offers a frank and authoritative defense of the West from the outside looking in. Warraq examines the strengths and freedoms often taken for granted in the West and contrasts them with the stunning lack of freedoms in the majority of societies in the world, tackling taboo subjects of racism in Asian culture, Arab slavery, and Islamic Imperialism along the way.
Economic GrowthBy Amy Handlin, Broadside BooksBook, 01/23/2012
Crony capitalism is as much of a problem at the state and local level as it is at the federal level. Drawing on her personal experiences, Amy Handlin paints a colorful picture of some of the political insiders who’ve used their positions of power to advance their own financial interests at the expense of the public welfare. Handlin concludes with a set of practical recommendations that average citizens can undertake to fight crony capitalism in their own back yards.
Regulation & DeregulationBy Karla L. Palmer, Jeffrey N. Gibbs, Washington Legal FoundationLegal Backgrounder, 01/23/2012
A federal court in Florida held recently that the Federal Food and Drug Administration lacked the authority to enjoin the practice of pharmacists filling a veterinarian’s prescription for a non-food producing animal by compounding from bulk substances. After undertaking a thorough historical, regulatory and legal analysis of pharmaceutical compounding, the court found that FDA’s assertion of authority over “traditional pharmacy compounding in the context of a pharmacist-veterinarian-patient relationship is contrary to [the] congressional intent” of the Federal Food, Drug, and Cosmetic Act. The court also held that the undisputed evidence in the case demonstrated that allowing FDA to enjoin a pharmacist’s traditional, widespread, and state-authorized practice of bulk compounding of animal drugs “could destabilize the pharmacy profession and leave many animal patients without necessary medication.”
The Constitution/Civil LibertiesBy Paul Smith, Katherine Fallow, Washington Legal FoundationLegal Opinion Letter, 01/23/2012
Variations in courts’ approaches to commercial speech raise the question of whether the Court ought to be more consistent about demanding real proof of claimed justifications in reviewing laws that restrict free expression. Justice Breyer certainly has a point that the huge differential between regulation of violence and sex seems puzzling as an empirical matter. How about commercial speech and other expression subject to intermediate scrutiny? Should “common sense” justifications continue to be allowed there? We believe not. As Judge Posner put it in an earlier video game case, “common sense is sometimes another word for prejudice.” Or, to quote a recent philosophical article, “[m]odern science was founded on the basis of a skepticism about the value of common sense for explaining the world—a laudable, fertile skepticism about our cognitive capacities and what is immediately given to them, about the received views and explanatory systems passed on within cultures.”
Regulation & DeregulationBy Dick Thornburgh, David R. Fine, Washington Legal FoundationCounsel's Advisory, 01/23/2012
The United States Court of Appeals for the Third Circuit has asked the Pennsylvania Supreme Court for assistance in resolving a case involving the rights of minority shareholders who believe they were “squeezed out” in a cash-out merger, and the result will decide whether a Pennsylvania appraisal statute provides those minority shareholders with their exclusive remedy. On the path to that result, Mitchell Partners, L.P. v. Irex Corporation also demonstrates how federal courts may determine novel state-law questions.
Crime, Justice & the LawBy J. Russell Jackson, Washington Legal FoundationCounsel's Advisory, 01/23/2012
The decision in Pilgrim is strong authority supporting the efficiency of a motion to strike class allegations where it is clear from the complaint that the proposed class would involve the application of fifty states’ laws, which cannot be performed consistent with the predominance and superiority requirements of Rule 23(b)(3).
Crime, Justice & the LawBy Michael E. Clark, Washington Legal FoundationLegal Backgrounder, 01/23/2012
The threat of enforcement actions being pursued against companies and individuals for violating the Foreign Corrupt Practices Act has dramatically increased for various reasons, which include more aggressive use of the law by its enforcers (the U.S. Department of Justice and the Securities and Exchange Commission, the globalization of business markets, and a sea-change in attitudes of officials in most developed countries about the importance of rooting out corruption. This paper focuses on a hot issue in FCPA enforcement now that foreign-owned entities are increasingly targeted in enforcement proceedings—namely, what constitutes a foreign official?
Crime, Justice & the Law
Punitive Damage Awards, The Rest Of The Story: A Response To The Center For Justice And Democracy White PaperBy Victor E. Schwartz, Cary Silverman, Washington Legal FoundationLegal Backgrounder, 01/23/2012
A recent white paper issued by the Center for Justice & Democracy (CJ&D), “What You Need to Know About . . . Punitive Damages,” argues that punitive damage awards, unconstrained by procedural safeguards or statutory or constitutional limits, are needed to protect Americans from corporate misconduct and unsafe products. This Legal Backgrounder highlights some of the significant flaws and half-truths in the CJ&D white paper’s reasoning. Ironically, contrary to its assertions, aspects of the white paper demonstrate the importance of proportionality and due process safeguards, and how punitive damages overkill can eliminate the public’s access to beneficial products.
Crime, Justice & the LawBy Beth Shaw, Washington Legal FoundationLegal Opinion Letter, 01/23/2012
The Act’s provisions should help to correct joinder abuse in patent litigation, going forward, by creating an additional constraint on plaintiffs who allege that their patents are being infringed by a broad spectrum of corporate defendants. A plaintiff must include in the complaint allegations that each defendant made or used the same product or process, and must include “questions of fact common to all defendants,” or the plaintiff must sue the defendants separately. Separate suits will allow defendants more opportunities to seek transfer to an appropriate venue. The new joinder section also potentially adds some major litigation costs for non-practicing entities. In addition to litigation costs, if a plaintiff sues twenty separate defendants in twenty separate suits, it potentially puts the validity of the patent in suit at stake every time the case is tried.
Regulation & DeregulationBy Cory L. Andrews, Washington Legal FoundationLegal Opinion Letter, 01/23/2012
Last May, the Interagency Working Group on Food Marketed to Children released its Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulation (IWG Proposal). In a nutshell, the IWG Proposal advocates sweeping nutritional standards and marketing restrictions on the food and beverage industries. Though well-intentioned, the proposal would, among other things, severely hinder a company’s ability to provide consumers of all ages with constitutionally-protected information about their products. What the public has largely overlooked, however, is how the IWG Proposal would hamper or eliminate the many worthwhile philanthropic and community activities that the food and beverage industries have long sponsored. In recent congressional testimony, a senior Federal Trade Commission official pledged that the final IWG Proposal would account for the concerns described below. It remains to be seen, however, whether the entire Working Group would embrace such changes.
The Constitution/Civil LibertiesBy Karina Sargsian, Washington Legal FoundationLegal Opinion Letter, 01/23/2012
The framers intended to minimize the government’s ability to punish. Whether a punishment is civil or criminal in nature, however, is a subjective determination. Understandably, the courts, in order to allow constitutional provisions to protect defendants from punitive civil sanctions, found trouble distinguishing a punitive from a non-punitive sanction. This created a blurry and unpredictable divide between civil and criminal punishments, resulting in inconsistent outcomes. With the resurrection of Ward’s two-prong test, the confusion surrounding these issues will considerably decrease. Courts will now first defer to legislative intent. If the legislature has labeled the punishment as civil, no constitutional protection will arise. Only in exceptional cases, where there is the clearest proof of sufficiently punitive sanctions, will certain constitutional protections be extended in civil cases.
Natural Resources, Energy, Environment, & Science
Citizen Suit Settlement Impels Federal Listing Action on 250 Species: But Will It Reduce ESA Litigation?By Alison Suthers, William G. Myers III, Washington Legal FoundationLegal Backgrounder, 01/23/2012
The U.S. Fish and Wildlife Service (FWS) has developed a work plan to review more than 250 species for possible protection under the Endangered Species Act (ESA) in the next several years. The plan is part of settlement agreements between FWS, WildEarth Guardians, and the Center for Biological Diversity in a major consolidated lawsuit in the U.S. District Court for the District of Columbia. The lawsuit alleges that FWS failed to meet deadlines for making ESA listing determinations for a number of species. Under the settlement agreements, FWS has not committed to list any of the species under the ESA but has committed to make decisions about whether to list the species.
Natural Resources, Energy, Environment, & ScienceBy Peter L. Gray, Christopher H. Marraro, Washington Legal FoundationLegal Opinion Letter, 01/23/2012
A lawsuit that the New York Attorney General recently filed against the U.S. Army Corps of Engineers to halt development of natural gas in Marcellus Shale Formation brings into sharp relief the need to reform the National Environmental Policy Act of 1969 (NEPA), or at the very least to refocus its implementation. NEPA is a procedural statute; it directs all federal agencies to prepare an Environmental Impact Statement (EIS) before undertaking a “major federal action significantly affecting the quality of the human environment.” The EIS must include an analysis which, among other things, identifies unavoidable adverse environmental impacts of the proposed action, as well as alternatives to the proposed action. With NEPA now being used to prevent development of green energy, such as the Cape Wind project off the coast of Massachusetts and cleaner-burning natural gas in the Marcellus Shale formation, we have come full circle.
The Constitution/Civil LibertiesBy Michael Volkov, Washington Legal FoundationLegal Opinion Letter, 01/23/2012
The Justice Department fails to provide transparency to the voluntary disclosure process which would ensure that all parties are treated consistently and fairly. As a result, DOJ becomes a virtual Star Chamber, defining and enforcing the Foreign Corrupt Practices Act without any meaningful judicial review. The Justice Department and the SEC need to adopt and disseminate standards and policies governing the voluntary disclosure process, or Congress needs to provide some mandatory disclosure process to assist companies. The absence of such standards is unfair, breeds disparate treatment of similarly situated companies, and undermines the fair administration of justice.
Elections, Transparency, & AccountabilityBy Patricia Millet, Washington Legal FoundationLegal Backgrounder, 01/23/2012
If the trends hold, either a strong textual hook or a plausible claim of impossibility will now be required for a successful claim of preemption, because the standard for successfully invoking purposes-and-objectives preemption has become far more rigorous and exacting. An agency’s claim of impairment alone will certainly not suffice. Of course, the end result of that doctrinal shift may simply be that many of the considerations that previously would have informed purposes-and-objectives analysis will be reformulated into a statutory interpretation dispute over how properly to read a preemption or savings clause. In general, however, if an entity claiming preemption can point to statutory text or plausible impossibility triggering the non obstante analysis, the disappearance of the presumption against preemption will make preemption more readily available.
Regulation & DeregulationBy Robert A. Armitage, Washington Legal FoundationLegal Backgrounder, 01/23/2012
The Leahy-Smith America Invents Act, the world’s first truly twenty-first century patent act, contains all the elements needed for a patent system to operate effectively, efficiently, economically, and equitably. If the decade ahead yields greater international patent cooperation and harmonization among patent systems around the world, the starting point for that effort should lie in the incorporation of its provisions into patent laws across the globe. Should that promise be realized, then the act will have realized its full potential as the most significant patent act since 1790, not only for the United States, but for inventors and creators everywhere, as well as those who invest in the creation of new inventions, those who are employed producing and selling them, and, of course, those who are then able to benefit from them as consumers.
Health CareBy Marshall P. Meringola, Washington Legal FoundationLegal Backgrounder, 01/23/2012
As the number of Americans suffering from chronic pain continues to escalate – now surpassing the number of those suffering from diabetes, heart disease, and cancer combined – the use of prescription opiods for relieving pain has become prevalent as an effective and medically proven treatment for a variety of patient pain levels. Unfortunately, Washington State recently enacted burdensome regulations on prescription opiods, redefining the patient-physician relationship such that physicians are often forced to choose between “providing access to pain medications for those who need them and managing the variety of risks posed by [opioid] analgesic drugs.” The regulations were intended to reduce prescription drug abuse, but in actuality, they place physicians in an unenviable position, and threaten the ability of medical providers to appropriately evaluate and prescribe personalized treatment for all patients.
The Constitution/Civil LibertiesBy John R. Fleder, Anne K. Walsh,, Washington Legal FoundationLegal Backgrounder, 01/23/2012
Many federal prosecutors and investigators believe that private counsel hinder the government’s ability to gather evidence in civil and criminal matters. To circumvent the involvement of company counsel in such investigations, government officials have increasingly turned to catching potential witnesses and defendants off-guard. Investigators frequently employ the practice of visiting the homes of current and former officials of a company that is under investigation. Companies need to have procedures in place to protect themselves and their employees before such visits occur.