Public Schools, Condoms, and Parental Rights

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Sex Education curriculum has remained a topic of fierce debate in American public schools over the past several decades. Especially controversial, initiatives where schools distribute condoms to students without the consent of the parents. The schools believe they are providing a public service through dispensing prophylactics to students who may not access to such precautions otherwise. Parents with more of a conservative disposition feel that through providing contraceptives to their children the schools are attempting to undermine the values of the student’s household. Any impartial observer free of any ideological inclinations would see sound logic in either premise. School administrators have good intentions. The concerned parents have sound moral concerns. Despite whether their concerns are originating from religious convictions or pragmatic qualms about encouraging sexual activities among teenagers.

How does American law view the issue of distributing condoms in public schools? It would be reasonable to assume that schools funded with tax dollars should not be overtly promoting partisan values. Through providing condoms to students school officials could be implicitly be condoning pre-marital sex. Which may conflict with the religious beliefs some the parents wish to instill in their children. This dynamic of sex education in public schools presents an important question, where do the rights of the parents come in? These parents who take offense to such programs are effectively having their tax dollars utilized to fund initiatives that they find to be immoral. Their children can participate without any notification to the parents or the written expression of consent. That’s truly where the issue becomes problematic. Unfortunately, the law does not see eye to eye with the concerns of socially conservative parents.

One case that examined whether distributing condoms to students without prior parental consent was unconstitutional was Curtis V. School Committee of Falmouth (1995). In this scenario, a school nurse dispensed condoms to every student in school grades seven through twelve. Then a group of concerned parents challenged this action on the part of the school stating that they have the right to be notified. Also, asserting that parental consent should also be obtained before the school providing condoms to students (P. 431). The court countered this claim by suggesting that state action only violates “parental liberty” only when it is “coercive or compulsory”. That distributing condoms in such a fashion was neither due to students not being required to accept them. Therefore, it does not circumvent the authority of the parent. The ligating party found this premise to be false, arguing that this action was coercive and compulsory. Due to this fact, these contraceptives were being provided in public schools that have compulsory attendance requirements (P.431).

The Massachusetts Justices found little validity in these repudiations and ruled against the parents. The Justices acknowledging that providing condoms to students was a non-medical service. However, they found that there was no Constitutional precedence for requiring parental consent or an option to opt-out. Also, did not find this compulsory in any context. Proceeded to then state that parents do not have the right to “tailor public school education” (P.432).

Whether you are personally in favor of sex education or not it is difficult to not be troubled by this verdict on the part of the Massachusetts Justices. This court decision gives deference to the authority of the public school system over that of the digression of parents. It is difficult to justify such an overreach. This is a prime example of the structural apparatus of the law bulldozering over the rights of the parent. Especially when it would have required little in the way of time and resources for the school to issue permission slips. It perplexing how your child needs a permission slip to go to a museum, but not to receive a condom. Shouldn’t the school have the permission of the parents in either situation? Schools intend to educate children. Sex education is in of itself is one thing. However, distributing condoms takes on another tone. Through directly providing condoms to students without parental consent the school has gone too far. The parent does have the right to object or want to shelter their child from such realities. This may not be the most prudent or realistic approach, however, that is irrelevant. Unless a parent is abusing or neglecting their child, they have a right to raise their child as they see fit. Public schools being appendages of the government do not have the right to interfere with the child-rearing process. This topic provides greater insight into why parents are turning to the unschooling movement in droves (even before the pandemic).

Did Alexis De Tocqueville Predict “Cancel Culture”?

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Alexis De Tocqueville was arguably one of the most insightful writers to ever detail the intricacies of American Democracy. Tocqueville’s journey sounds like an unlikely one. Something analogous to an intellectual version of the excursions taken by Lewis and Clark. A royal magistrate from France traveling throughout North America in only nine months. Even spending some time with local tribal nations. Based upon his keen observations of American political culture Tocqueville made many predictions. Some of his lofty inferences fell flat and resulted in nothing more than faulty speculation.  What was truly impressive about his insights is what he got right.  He did possess an uncanny aptitude for being able to foreshadow various political and societal shifts in America. Much of his writing was quite prescient.

Any modern reader of Democracy In America can’t help but wonder if Tocqueville predicted the phenomenon of “cancel culture”. The present trend in which individuals guilty of engaging politically incorrect speech is de-platformed. Whether it be shadow-banning on twitter or having their radio talk show pulled from the airwaves. Tocqueville shared many of the same concerns that James Madison voiced in Federalist Papers #51. Both men understood how the collective passions of the people could veer into the territory of authoritarian mob rule. That is precisely what “cancel culture” has morphed into, figurative lynching-mob. Relishing the downfall of anyone transgressive of the virtue of political correctness. Resorting to de facto censorship to prevent such subversive individuals from having the ability to transmit any more socially intolerable ideas.

Tocqueville shrewdly points how often any minority must contend with institutional barriers when it comes to seeking justice. The outcry for prohibiting offensive speech targets individuals who are out of lock-step with the majority opinion, effectively infringing upon their First Amendment rights. The true intention of codifying protections for free speech is meant to protect the expression of unpopular opinions. Where is an individual to turn their right to free expression is violated, but their views are perceived as being reprehensive by society?

“My main complaint against the democratic government as organized in the United States is not its weakness, as many Europeans claim, but rather its irresistible strength And what I find most repulsive in America is not the extreme freedom that prevails there but the shortage of guarantees against tyranny.

When a man or a party suffers from an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? That represents the majority and obeys it blindly. To executive power? That is appointed by the majority and serves it as a passive instrument. (Tocqueville, P. 294-295. Transl. Isaac Kramnick).”

He could easily see that those with unpopular opinions could very well have little recourse in enforcing their liberties. It’s easy to defend someone’s right to denouncing racism. It is profoundly more difficult to defend the right of someone to publish racist literature.  This is mainly due to societal pressures. In the present climate defending the First Amendment rights of a bigoted person is tantamount to be racists. While this assumption rests on a rickety premise, public opinion only seeks to promote this fallacy. Due to public passions being more concerned with social justice, there is a willingness to mischaracterize people and to even dispense with critical rights if they do not comport with the grand objective of “tolerance”.  Both Madison and Tocqueville intuitively understood the social dynamics of crowds which would later be expounded upon by social psychologists. Not only to members of the crowd feel a decreased sense of individual responsibility, but there is an emotional amplifier effect. Having either attribute present will make an individual less apt to rely on reason and more apt to go along with the mob. Even if their outrage and indignation are hyperbolic.

The shrewd Frenchman not only understood how popular passions would overwhelm sound reason and effectively alienate minorities, but he foresaw the development of Progressive ideology. Tocqueville noticed that democracy had a proclivity for drifting towards equality. He wrote at length detailing the lack of social stratification in the United States. Even noting that the capitalistic tendencies of America could provide a man from a poor family with the opportunity for exorbitant material success if he is willing to work for it. Democracy as a whole has an equalizing effect on society.  The people elected officials that represent their will. The whole notion of “the government works for the people”.  An idea completely foreign to continental Europe in the 19th century (foreign in practice, not so much in theory). Tocqueville audaciously claims that disposition towards equality implies perfectibility within human nature.

“As classes disappear and grow closer, as a tumultuous mass of mankind, it practices, customs, and laws alter, as new facts emerge, as new truths come to light, as old opinions disappear and are replaced by others, the image of perfection in an idealized and fleeting form is offered to the human mind.

….. Some changes improve his lot and he concludes that, in general, man is endowed with the faculty of indefinite improvement. . (De Tocqueville, P. 522-523. Transl. Isaac Kramnick).”

It is the tendency towards  “indefinite improvement” that lays the groundwork for Progressive ideology. Progressivism generally holds that people are capable of constant betterment. The goal is to keep striving towards an idealized world where all the ills have been neutralized. Most adherents of Progressivism do not mind using the levers of government or other institutions to help lead people in the right direction. One of those corralling techniques would be punishment for veering off the path of social improvement. Such as making a culturally insensitive joke. This would explain the functionality of “cancel culture”. The de facto censorship is one of the means utilized to keep people on the straight and narrow.  If you say something offensive you will be ostracized and have your career ruined. The logic being you will avoid making such a social faux pas when faced with the severity of the consequences. Why? Because followers of the Progressive movement believe that you can do better. Some even sincerely believe that a world without prejudice could exist. Unfortunately, is nothing more than a pipe-dream. Nothing more than good intentions knocking on the door of utopianism. If man is fallible, the odds of offensive speech dissipating is unlikely. Such an assumption demonstrates an unrealistic perception of human nature. We can mold people into the image we desire through social pressure and coercion.  Rather, they need to come to their conclusions not to be forced into socially desirable opinions. There may be immorality in racism. However, there is also immorality in weaponizing social conventions to callously achieve social goals. Especially when innocent parties have their comments taken out of context and are used against them. Making these innocent bystanders nothing more than collateral damage.

Extracurricular Activities: Legal Right or A Privilege

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Is the ability for students to participate in extracurricular activities a
right or a privilege? Many young people mistakenly believe that it is a right.However, in the eyes of the law, it is a conditional privilege. Much to the chagrin of hyperbolic teenagers. School districts reserve the right to make satisfactory academic performance a contingency for participation in interscholastic sports. However, there was one aspiring student-athlete inTexas bold enough to challenge this assertion. Resulting in the ruling of Spring Branch I.S.D V. Stamos. Needless to say, the court’s verdict did not
favor the underachieving student-athlete.

Continue reading “Extracurricular Activities: Legal Right or A Privilege”

Bootleggers and Baptists Part XII: Dual-Role Actors on Both Sides of Proposition 205 (Arizona, 2016)

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Back in 2016, election cycle Proposition 205 (Arizona) sought to establish a regulated market for recreational Marijuana. The measure failed to pass by a slim margin. Expounding upon the strategic flaws of the ballot question has already been thoroughly exhausted by local commentators.  What truly is interesting in retrospectively analyzing this failed legalization campaign was the coalition building. These strategic alliances were forged on both sides of the aisle.  Everyone from puritanical prohibitionists to cannabis aficionados teamed up with orthogonal allies to hedge their bets on achieving their desired policy outcome. Naturally the formulation of such coalitions invariable leads to Bootlegger and Baptists policy dynamics. By the very nature of regulations and policy decisions, someone stands to gain and someone stands to lose. Government action is never neutral. Even inadvertently a policy can provide a downstream benefit to an invested interest group. Sometimes these concentrated benefits are nontangible. Such as a positive public image or gaining notoriety. As the great moral philosopher, Adam Smith reminds social incentives to present us with powerful motives.

One of the more predictable opponents of legalization would be manufactures of prescription painkillers. Insys Therapeutic donated $500,000.00 to the 2016 opposition campaign in Arizona. Insys is a well-known producer of opioid-based medications. Their true motivations are somewhat puzzling.  Medical Marijuana was legalized back in 2010 which would have been a golden opportunity time for funding opposition. This could potentially be a strategic form of revenge. A thinly veiled attempt at settling a score with the Marijuana dispensaries that cost them business.  Why? Because the medical dispensaries would be among the first economic actors to enter the recreational market. It would take much in the way of resources to make a transition to selling both medical and recreational cannabis. In theory, this institutional form of retaliation would provide the benefit of instinct satisfaction to upper management within Insys. This theory assumes little to no economic benefit from this action.

An alternate theory could be Insys does finically benefit from keeping recreational Marijuana illegal. This move could signify a circuitous acknowledgment of the black-market for prescription painkillers. Whether big pharma wants to admit or not, recreational users do make up a portion of their profits. Their main customers need to operate as mid-level distribution. Either through an unscrupulous physician prescribing opioid narcotics to recreational users or through patients reselling the medications on the secondary market. Through going attacking recreational Marijuana they can protect their indirect profits made through the demand on the illicit secondary market.  Opioids are already in competition with alcohol, tobacco, kratom, Salvia Divinorum, and potentially marijuana. By eliminating a whole category of legal and accessible options they gain a slightly larger share of the quasi-legal American intoxicant market.

The question becomes whether this specific economic agent is a Bootlegger or a Baptist. They are unquestionably both. The company possesses some sort of murky incentive for keeping recreational marijuana illegal. Making them a Bootlegger. They assume the role Baptist when publicly justifying their generous donation to the counter-campaign. Citing the danger of marijuana to children. Also, expounding upon the dangers of ingesting substances that do not have FDA approval. All of these are arguments are laughable when you think about the pharmacological risks of the products Insys manufactures. Regardless, assuming good faith on the part of the firm, it is still a moral argument. Which may or may not be factually accurate. For this reason, they are a Dual-Role Actor.

In this scenario, there is another Dual-Role Actor that is on the other side of the fence. That would be the media. Numerous publications pick-up with this story and ran with it. Function as a Baptist through exposing the callous self-interest of pharmaceutical companies. This provides the appearance of a moral crusader who is attempting to reveal how big business attempts to manipulate the system. However, this public service is not done out of pure altruism. Media organizations are frequently willing to dispense with accuracy to be the first outlet to break a news story. Editors often do not focus on important stories but rather those that captivate their viewers/readers. Making news outlets more of a vehicle for entertainment than obtaining information. The best means of gaining and retaining viewership in an age where mainstream media is currently on life support is through sowing outrage.  Exploiting the public’s salient bias against corporations is a great means of generating click-bait worthy headlines.  Utilizing this tactic becomes much more imperative when your industry is presently clinging to life on a shoddy ventilator. The Schumpeterian gales are presently gusting. The creative destruction of alternative media is drawing many viewers away from FOX News and CNN.

Drug Testing In Public Schools

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The right to privacy is fiercely defended liberty in the United States. Codified in the Fourth Amendment of the U.S. Constitution is considered a treasured bulwark from unnecessary surveillance. However, much like any of the other liberties guaranteed to American citizens, it is not without constraints. In certain contexts, our right to privacy is relinquished due to superseding parameters. For example, while in public our right to privacy is loosened.  Also, in the advent of a criminal investigation. If there is probable cause or a search warrant, the interest of the public good takes primacy over the rights of the individual. It may be fair to debate the ethics of subverting individual liberty for the common good, but the law is the law.

It has been well established that while on the premise of public school students do not always have a reasonable expectation of privacy. The degree to which underage students do have a right to privacy is a difficult matter to clarify. The subject of mandatory drug tests on school grounds is no less murky. Much like another Fourth Amendment controversy the conclusion is heavily contingent on context. It is the contextual details that form the line of demarcation between legal and illegal conduct. As a general rule of thumb, subjecting students to random urinalysis testing is legally questionable without extenuating circumstances (P. 256). The defining case for a student drug test was Vernonia School District V. Acton. The Vernonia School District adopted the requirement of a drug test as a prerequisite for participating in interscholastic sports programs. It was ruled that the interest of ensuring the safety of the students took primacy over any privacy concerns. Especially considering the means of administrating the drug test were viewed as being “minimally” invasive.  Pertaining specifically to a drug-testing requirement to play sports the late Justice Scalia observed that students have the same expectation of privacy as the general population. This is even more so true for student-athletes (P. 257).

Perhaps it fair to concede that dispensing with a small amount of privacy is the nonmonetary price to play varsity football. It may even be reasonable to assume that the individual student values the opportunity to play football more than the privacy they surrender. In terms of this contingency being subjected to drug testing is completely voluntary. Mirroring the hiring procedures of many private corporations. If you don’t want to undergo the test don’t accept the job. Likewise, you can elect to simply not play basketball. This issue becomes profoundly more problematic when it is involuntary and without suspicion.

Unfortunately, the Anderson Community School Corporation in Indiana decided to push the envelope on the issue. The school district decided to form a policy where drug tests were mandated for any student suspended for getting into a physical altercation school grounds. Refusal results in either an expended suspension or expulsion (P.257). The school district cited the loose correlation between the pharmacological effects of drugs and violent behavior for justifying this policy (P. 257). Needless to say, a student, James Willis, did challenge this policy. The supreme court declined to review the case citing the decision in Vernonia. However, a silver lining to the question of in-school drug testing procedures came when the Tenth Circuit Court of Appeals rejected the requirement of drug testing for non-athletic extracurricular activities (P. 258). In the 2002 ruling Board of Education V.Earls, the supreme court held that it was reasonable to subject all students participating in extracurricular programs to drug testing.

I have some strong reservations for endorsing drug testing in public schools. The duty of preventing and intervening in instances of drug use is the responsibility of the parents. However, I can concede drug testing to participate in extracurricular activities providing this requirement is articulate to the students.  Since participation in such programs is completely voluntary and analogous to drug testing requirements for a job. The problem becomes when school districts engage in a form of “mission creep” with a loose application of the Vernonia case. Mandating drug tests as a condition for returning to school after being suspended for fighting is truly invasive.  Not to mention coercive. The offense at hand is engaging in violent behavior. That alone isn’t enough evidence to assume a probable cause for drug use. Not from a legal standpoint necessarily.  but from the standpoint of deductive reasoning. While the Anderson Community School district did not punish students for a positive test, they did require the student to seek help. This blatantly veers into the responsibilities of the child’s parent or guardian.  

Affirmative Action, Public Schools, and Tenure

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Decades ago, Affirmative Action programs were implemented to combat discrimination in the workplace.  Generally, imposing specific hiring quotas upon employers to provide career opportunities to historically disadvantaged groups. Like many initiatives designed to curtail injustices, there are blind spots in these anti-discrimination laws. For instance, how are quota systems impacted by layoffs? Does the employer have the legal obligation to maintain racial or gender quotas even when amidst downsizing?  How do tenure and seniority play a role in this decision-making process? As any astute reader can infer attempting to balance out all these complex factors quickly degenerates into a muddled mess. Generating a large array of various legal conflicts, ranging from contractual obligations to employees to comply with workplace discrimination laws. The fallout of the downstream consequences that were never initially ironed out.

The intricacies of such conflicts are particularly salient in the sector of public education. Throughout the 1970s and 1980s, several cases tested whether mandated quotas superseded tenure. As could be reasonably anticipated these cases have resulted in some mixed rulings. For example, in the city of Boston, Massachusetts when budget cuts forced the school district to layoff faculty members the issue was complicated legally mandated racial hiring quotas. The school district opted to ignore the tenure of seasoned Caucasian faculty members in favor of maintaining their racial quotas. This decision by the administrators of Boston schools resulted in several lawsuits (P.311-312). Unfortunately for the teachers pursuing damages the District Court and Circuit Court of appeals ruled in favor of maintaining the quotas (P. 312).  This ruling cited Milliken V. Bradley providing the rationale for desegregation plans taking primacy over seniority.

A similar case took place in Buffalo, New York. Resulting in the verdict of Arthur V. Nyquist which again ruled in favor of maintaining racial employment quotas mandated by Affirmative Action laws.  The court stated that such quotas are valid and supersede tenure unless it is a “ …demonstrable necessity that their rights have been impaired..” (P.312). Examining this pattern in court decision it is easy to superficially interpret these rulings as displaying an institutional bias favoring Affirmative Action.  The issue isn’t quite so linear once when you look at other cases examining the interaction of anti-discrimination laws and tenure in the public school system.

One prevalent example of the courts ruling in favor of faculty tenure over racial quotes was in the early 1980s. The Sixth Circuit Court of Appeals ruled that “contractual and statutory tenure rights” took primacy over quotas (P.312).  Resulting in the case precedence established under Oliver V. Kalamazoo. The question becomes why did the court of appeals rule in favor of faculty tenure in this case?  The court stated that over the past decade the school district had made a “good faith effort” to remedy any effects of past discrimination. Stating that tenure rights should only be subordinated when “reasonable” to do so (P.312). Judging by the context of the ruling in the Oliver case it would be easy to assume that the courts will giver deference to tenure rights if the school district has shown considerable progress in desegregation. While this may sound like a reasonable concession, it is profoundly problematic.  How do you measure “progress” or a “good faith effort”? One can only assume these qualitative metrics are fulfilled if mandated quotas are consistently maintained. What if a school district is only maintaining the quota by a margin of one employee?  What if this employee needs to move out-of-state to take care of a sick relative?  The school district would no longer be compliant. This becomes particularly onerous if the school district is in a region of the United States that lacks ethnic diversity.  If the nearest qualified African-American teacher is hypothetically hundreds of miles away the school district may be out of luck. So then, if another court case comes up and the school district has had issues meeting racial hiring quotas the contractual agreements of the teachers may be put on the backburner. This is concerning because if this country does not uphold property rights and contract enforcement it has fundamentally failed its citizens.

Then finally we come to Wygant V. Jackson which was decided in May of 1986.  In this case, the school board included the plan to maintain racial quotas when layoffs occur in the collective bargaining contract for its faculty (P.312). However, the Supreme Court found this contract contingency to be unconstitutional. Citing the United Steel Workers V. Weber in their decision. Declaring that unless there was solid evidence of past discrimination contractually binding tenure rights take precedence over racial quotas (P. 313).

One of my favorite sayings is “ The path to hell is paved with good intentions”. Some of the downstream ramifications Affirmative Action laws embodied the wisdom in this old idiomatic statement. The unadulterated goal of Affirmative Action laws is laudable but is too broadly applied. While this conflict between tenure rights and racial quotas may have not been foreseeable, it exposes the Achilles’ Heel of top-down government solutions.  It is impossible to plan for every conflict that can arise from a loophole or other notable blemish in the legislation. Being more Hayekian in my worldview I am more inclined to view these flaws as a result of asymmetries in information. Reminding us that most government initiatives fall flat in attempting to achieve their lofty goals.  

Bootleggers & Baptists Part: XI: CVS and Tobacco

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Back when I was a broke college kid and was still a tobacco consumer, few tobacco products provided a better value than Parodi cigars. Yes, they were machine-made. However, they were mechanically bunched and wrap with robust and smokey fire-cured Kentucky/Tennesse broadleaf tobacco. These rugged little stoogies wouldn’t get too far in a beauty contest, but they were solidly constructed. Mimicked the rustic tuscano cigars smoked in Spaghetti Westerns. There was only one brick-and-mortar locational locally that sold these drug-store treasures happen to be CVS. This all changed in 2014 when CVS elected to stop selling tobacco products altogether in the name of promoting health. Sure there was still the internet, with the complexities of shipping cigars across state lines (tax-wise and legally) it was far from an ideal option. I was far from the only one frustrated with this decision made by corporate. In 2015, CVS speculated a slight drop in sales was connected to the corporate ban on tobacco sales.

It is understandable for a firm to strive to convey a consistent message. There is a fair amount of hypocrisy in a healthcare store selling tobacco. Eliminating tobacco makes sense, only if you stop selling all the other unhealthy products sold at CVS locations. Examples ranging from soda, energy drinks, candy, and liquor. Also, one cannot forget powerful opioid narcotics. Granted, there is purportedly “safe” way to ingest such medications. Why not take a stand against the addiction crisis currently plaguing America if the company is so concerned about public health? Needless to say, there is certainly an asymmetry in CVS as a corporation’s advocacy for public health. Bringing the whole rhetoric of voluntarily choosing to stop selling tobacco into question. Even leading the incredulous skeptics among us to question the organization’s true intentions.

The murky intentions of CVS once again bring us back to the economist Bruce Yandle’s famous Bootleggers and Baptists hypothesis. In instances of this coalition-building dynamic, there are always the virtue signalers that provide us with the moral argument for a policy. The silent beneficiaries are known as the bootleggers. Individuals that purely advocate for the policy out of self-interest. Our Baptists in this scenario become apparent when you review the various organizations that provided praise to CVS for this move. Establishments such as the Massachusetts Medical Society and The Harvard School of Public Health. The Bootleggers benefiting from this shift in CVS’s business practices is clear as day, companies producing smoking cessation products. One of the most prevalent examples being Nicorette.

Where does CVS fall in the equation? Surely they either benefit from this change in-store policy or are expressing concern for public health?  I would argue CVS is an example of a dual-role actor. A dual-role actor in Bootleggers and Baptists coalitions are an economic agent or collective of economic agents that fill the role of Bootlegger and Baptist. They may have a genuine concern for the more implications of policy. However, they also simultaneously stand to gain from the purposed or implemented policy. For the sake of being charitable, let’s assume the initiative to improve “wellness” is sincere. Inconsistent, yet sincere. By exalting the virtues of not selling harmful products such as chewing tobacco, cigars, pipe tobacco, cigarettes, etc CVS claims the moral high ground, making them a Baptist. However, they also at the same time gain through accumulating social currency. From the standpoint of publicity, this is gold. The detrimental effects of tobacco use have been well documented and overall public perception of tobacco consumption is quite negative. These factors make tobacco low-hanging fruit in terms of formulating policy. Whether it is the internal policies of a private company or the stroke of a legislator’s pen, tobacco is an easy target. There is no quicker way to look like a hero than to stick it to Phillip Morris. However, why continue to sell soda and candy if you are concerned about fostering public health? Would the customer backlash be too strong? That said, it is difficult to quell my continued skepticism of CVS’s motives for this move. There is a high probability that CVS is operating as an advocate and a beneficiary.

Craft Beer and Creative Destruction

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Millennials are quite frequently criticized by older generations for a litany of various reasons. Some of these grievances vary from a  weak work ethic to having an unwarranted sense of entitlement. Many of these claims are squarely qualitative making it possible that many of these observations are distorted by bias. Since millennials have entered adulthood there have been some interesting shifts in consumer preferences. These characteristics of the Millennial generation can be more objectively measure through tracking sales.

Over the past decade articles reading “ How Millennials are killing ……. Industry” has proliferated throughout the internet. Millennials have chastised for being the death knell for industries ranging from napkins to chain-restaurants. Come on folks, was the food at Applebee’s ever any good in the first place?  All joking aside, this is truly a fascinating phenomenon.  One sector where the departure from traditional sensibilities has been the most pronounced is in beer. Yes, Millennials are trading up to craft beer slowly making the ubiquitous backyard barbeque with a cooler filled with Budweiser cans a relic of yesteryear.

Naturally, there are some sour grapes on the part of Gen-Xers and Baby boomers who are fans of the American adjunct-lager. The unprecedented growth of the craft beer industry coinciding with the late 2000’s early 2010s is not an accident. This is the timeframe in which many Millennials had reached the legal drinking age. Even as recent as 2019 the projected numbers for the growth of the industry have been looking strong.  In 2018, the craft beer market was valued at $108,912 million and was projected to mushroom to $186,590 million by 2025. Unfortunately, the advent of the COVID-19 pandemic has dampened someof the previously projected growth. It estimated that the pandemic has cut overall craft beer sales by approximately 20 percent.

Virus or not, odds are the established mainstay craft brewers with national followings like Dogfish Head, Sam Adams, Sierra Nevada, Stone, Rogue, etc. will weather the storm. Its more likely the regional and local favorites are the companies that are barely hanging on for dear life. The fears of macro breweries and their devoted fan base concerning the rise of craft beer epitomizes the process of creative destruction. An economic concept first devised by Austrian economist Joseph Schumpeter. This concept isn’t isolated to the shift in consumer preferences towards craft beer, but also the other industries millennials are “killing”. Creative destruction can be loosely described as the process of innovation in the market driving out previous products, services, and production methods into obsolesce. Therefore, these developments can fail the less innovative firms in the industry. When Schumpeter first synthesized the conceptual bones of the process he was referring to increases in productive efficiency (p.81-83).  

The production of craft beer if anything is far less efficient than the production of a standard adjunct-lager. Rather, the craft beer example is a different manifestation of creative destruction. Cost-efficiency and are no longer the name of the game. Consumers prefer more flavorful beer are willing to pay a premium for it. Due to this sway in consumer preferences, making hyper-efficient and economical beer is starting to become antiquated. Consumers are starting to become savvier when it comes to the intricacies of the brewing process. They are well versed in the subtleties and flavor nuisances in different hop varieties. The contemporary beer aficionado is looking for a beer that pushes the very boundaries of the definition of beer. Relishing the possibility of obtaining a bottle of the Sam Adams’Utopias beer. Clocking in at a staggering 28 percent alcohol by volume and aged in ex-cognac barrels paralleling a vintage port more than a beer. Demonstrating the dynamic essence of capitalistic markets, to quote Schumpeter :

“Capitalism, then, is by nature a form or method of economic change and not only never is but never can be stationary. And this evolutionary character of the capitalist process is not merely due to the fact that economic life goes on in a social and natural environment that changes and by its change alters the data of economic action (Page 82).”

These innovations are merely an evolution of how we perceive beer. The efforts of craft breweries not only gives us a break from the monotony of drinking Coors Light but expands what was a previously narrow beverage category. Millennial beer drinkers have spoken in the democratic process of market exchange. They don’t want to drink the same beer their dad drank. If the bigger breweries do not adapt they will continue to lose business.  

Not so fast! It would be hasty to assume that millennials and their love of fancy beer are going to be the death of Miller, Coors, Pabst, and Budweiser. These companies and brands survived prohibition, surely, they have an ace up their sleeve. Especially considering they have considerably more capital and resources to invest in the brewing process than the smaller firms. They have found a way to continue to do what they do best and enter the craft beer segment of the market. One early attempt of bigger beer to get in on the craft beer action was in 1995 with the introduction of the wheat ale Blue Moon to their brand portfolio. Back in the mid-1990s, most Millennials were in Elementary School or Junior High School. The craft beer boom of the 1990s was minor in comparison to the current growth in the market. Other attempts of the big guys attempting to craft some suitable alternatives to craft beer have come in the forms of Michelob Amber Bock and Shock Top.

The current trend in big beer thwarting the present wave of artisanal creative destruction has been buying out existing craft breweries. As the old saying goes if you can’t beat them, join them. The phases of acquisitions began back in the early 2010s. The first notable craft beer acquisition by big beer was  AB InBev’s acquisition of  Illinois-based Goose Island back in 2011 for $38.8 Million. The acquisitions only continued throughout the decade. It started to be commonplace for big beer conglomerates to shell out millions of dollars to buy out established craft brewers. In all honesty, this was a very shrewd move on the part of big beer. Why? It is much more efficient to purchase an established brand that produces a good product and has a following. Versus spending millions more on R&D, marketing, packaging design, etc. 

It should be noted that this has been met with some backlash from craft beer consumers. Some IPA imbibers viewing these companies as “selling out” acting like their favorite underground hardcore band just inked a record deal with Atlantic Records. Ethical opinions aside, strategically this move makes good business sense for both parties. The big guys easily slide into the craft beer game and the owners of the bought-out brewery can either retire or pursue other, business interests, or get hired on an employee (the benefit is it can be less stressful than running your own business). Not every small-scale beer entrepreneur is celebrating the prospect of an acquisition. Veteran craft breweries Sam Adams and Dogfish Head completed a $128 million merger in May 2019. It can be strongly suggested that this merger took place partly to resist either company from being acquired by one of the macro beer conglomerates. After having read a few books written by DFH founder Sam Calagione it becomes quite clear he wouldn’t be one to sell his business. Displaying the fact there are hold outs. However, as the market becomes more concentrated will more craft brewers have to form alliances similar to that of  Sam Adams and DFH to stay competitive? Only time will tell. But if it wasn’t for the tides of the Schumpeterian gales constantly altering the dynamics of the domestic beer market this wouldn’t even be a concern. On the other hand, if it wasn’t for creative destruction we would all still be drinking the same beer favored by our grandfathers.

The Contribution of Beggars to Our Economy

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Panhandlers receive way too much derision and judgment from the general public. They have various stigma ladened insults hurled at them regularly. Constantly derided as “bums”, “beggars, and “mendicants. All terms lacking any sense of dignity. However, what true societal harm have panhandlers inflicted upon society through their attempts to cajoling passing motorists into parting with their spare change?  At worst panhandlers are a minor nuisance and their actions violate insignificant local ordinances. But I will have to draw the line at loitering on private property. From a property rights standpoint, that issue is much more problematic. Why as a society are we so repulsed by the notion of an individual asking for money? We as individual economic agents reserve the right to voluntarily decline to part with our spare change and continue on our merry way. Early this week I was grappling with this question and concluded that panhandlers aren’t a menace at all. That many of the local ordinance aiming to curtail the behavior is nothing more than an overaction to a victimless crime.

Upon stumbling across this idiosyncratic epiphany I naturally conducted a quick survey of the internet to see if any else shared my contrarian perspective on begging.  No other than the great Leonard Read wrote an article back in the 1950s arguing that panhandling was less harmful to the economy and society than taxpayer funding of government services. Read details how not only is the action of giving money to a panhandler voluntary but it does not damage the economy anymore so than an individual choosing to retire. It should be noted that again this article was written before the baby boomer generation retiring. The drastic increase in spending on Social Security and Medicare entitlements has made retirement much more detrimental to the U.S. economy. That point aside, Read mentions how government services assist in creating inflation while panhandling does no such harm. Anyone unacquainted with how inflation works may be confused by this statement. Essentially, he is implying that instead of raising funds through the politically inconvenient act of a tax hike, the government will merely print more money to fund whatever programs and services require allocations. Introducing more money into the economy naturally decreases the value of the currency causing inflation. Thus, making a strong case that panhandling is less harmful to society than government services.

However, I take one issue with this pithy and insightful essay penned by the founder of the Foundation for Economic Education. He describes panhandling in a quasi-neutral light. It doesn’t harm society, but also doesn’t benefit society. I would beg to differ on this point. I view panhandlers as being creative and enterprising individuals who have found a novel method of generating income despite their difficult circumstances. I would be so bold to assert that they resemble entrepreneurs. Perhaps and most likely the nature of panhandling has changed over the past sixty-plus years. To persuade to part with their money, beggars have over the years incorporated elements of entertainment in their persuasion techniques. I once saw a gentleman with a sign that read:

“ Too honest to steal, too ugly to strip”

Not only was this sign humourous but it also exhibits the wit of a talent marketing strategist. If wasn’t for his unfortunate shift in vicissitudes could have been quite the asset in the boardroom. Now he provides the service of entertainment to bored the bored motorists of Chandler, Arizona. Those who are amused by his witty sign, compensate him for his innovation. Another more risque example of panhandlers earning their money through entertainment was a witness at the very same traffic intersection. There was an attractive young lady who appeared to be well-washed and not homeless. Adorning a bikini top and short-shorts with her thong conspicuously exposed.  Needless to say, she was swiftly crossing backing forth between the median and the sidewalk of the intersection graciously accepting paper bills from male motorists. These fellows weren’t parting with mere pocket change! Another sign that I once saw that particularly struck me as clever read:

“ I bet you can’t hit me with a Nickle”

Before you are quick to pass judgment upon a panhandler remember this, it is a grind just like another vocation. It is merely an unorthodox means of earning an income. If anything, panhandlers contribute more to society than those on welfare who do not work. At the very least, beggars attempt to entertain, making them impromptu service providers. Good service demands just compensation.

The Legislation and Special Education Services

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The the legislative roots of Individualized Education Plans (IEPs) date back to the education reforms of the 1970s. However, IEPs were not mandated until the 1990 IDEA Act. Acting an amendment to the EAHCA Act of the 1980s.

Interestingly enough,  much of the legal justification for catering to special needs students was derived from the landmark case Brown V. Board of Education (1954) (P.347). This interpretation is somewhat of a novel application of the case. Citing how the case made a strong argument for equal access to education was not only important for civic and professional development but a right to all children (P.347). Per the literature, there are two categories of discrimination that children face in terms of receiving appropriate accommodations in education; exclusion and misclassification. An example of exclusion would be “grossly inappropriate placement” such as placing a non-English speaking student in an English speaking classroom without an English-Second Language paraprofessional (P.348) Misclassification is defined as incorrectly assessing, monitoring, or placement of a student with learning difficulties (P. 348).

While Brown may have been the philosophical roots for the special education movement in the United States, two cases operated as the primary impetus for this change in educational accommodations. There was the PARC v. Commonwealth of Pennsylvania (1972)  ruling. Which found that denying children the right to education was unconstitutional under equal protection and due process clause (Page 348). The second defining a Constitutional precedent against discriminating disabled children from access to education was 

 Mills V. Board of Education (1972). The court ruled in favor of not shutting out children with intellectual disabilities out of the chance of being educated. Also that economic constrains shouldn’t stymy this process, in other words, the cost of additional accommodations shouldn’t be borne by the parents(p.348).  Both laws provided the framework for federal legislation addressing the educational rights of children with learning difficulties or disabilities.

The first federal law implemented to address the educational needs of disabled children was Public Law No. 94-142.  Passed by Congress back in 1975 was designed to make public education inclusive to disabled children.  It was approximated at the time that as many as 1 million American children had been excluded from public education (P. 349). The law was intended to provide free and adequate accommodations to disabled children ranging from the ages of 3-21 years old. However, considering education is generally a responsibility of municipal and state governments the law cannot supersede the age ranges specified under state law (P. 349). One exception did arise in 1986 with the advent of Public Law No. 99-457, which operates as an amendment to the 1975 law. This amendment mandated extending the terms of Public Law No. 94-142 to infants and toddlers with developmental disabilities (P. 349).

From a legal standpoint what can be defined as an “appropriate” education for a child with learning difficulties? It is not sufficient to merely provide equal access to education under federal law. Failing to provide special provisions to a child with special needs would make the learning process impossible. In legal terminology it has been referred to has functional exclusion (P. 350). The 1975 case Fialkowski V. Shapp brought forth case precedent for defending plaintiffs against function exclusion through a school lacking appropriate provisions to accommodate the student.  What accommodations and course of action are required for each child is determined under their IEP. This legally binding document that provides a tailored and consistent educational approach to help students learn despite their intellectual or physical deficits. These plans are calibrated and readjusted based upon “periodic” assessments of the student’s progress (P. 350.). Instead of a static approach that does not take into account potential changes in the educational needs of the student.

While Public Law No. 94-142 may have provided educational opportunities for those with learning difficulties or limited learning capacity; what about children that are deemed with no capacity for learning?

It is profoundly difficult to determine whether a child can learn or not, even with empirical measurements and assessments. A nonverbal child obviously cannot articulate their comprehension of classroom material, making thus determination much more complicated. A 1989 case,  Timothy W. v. Rochester, New Hampshire School District (1989), grapples with this conundrum in the sphere of public education. Does the extension of access to equal and appropriate educational services include children that are arguably uneducable?  The ruling was the byproduct of a nearly decade long legal battle between Timothy’s parents and the School district of Rochester, New Hampshire. Timothy suffered from cerebral palsy, cortical blindness, spastic quadriplegia, a multitude of intellectual and developmental disabilities.  In 1980, the school board commenced a meeting to determine whether Timothy qualified as “educationally handicapped” under the EAHCA and the corresponding state statutes”.  The school board deemed that he did not qualify due to the severity of his disabilities. Then in 1984, the family’s attorney filed a suit against the school board for violations under the EAHCA and the Fourteenth Amendment’s equal protection and due process clauses. It was ruled on May 24th, 1989, by the  U.S. First Circuit Court of Appeals that special accommodations are to be made for students with disabilities regardless of the extent of their disabilities. This ruling stems from an interpretation of the EAHCA that all children with disabilities irrespective of their learning capacity has a right to special provisions in public schools.

Editorial Note:

The purpose of this essay is a brief survey of the history of Special Education law in the United States. I am not presenting any arguments for or against legislation directed towards providing accommodations for students with special needs.  I found the legal history of this development in public education to be fascinating. I apologize to my regular readers if this post was a bit boring. I happened to obtain a used education law textbook a few months back and have been enjoying this intellectual journey immensely. However, one point of speculation on the Timothy W. v. Rochester case.  As a former New England resident, I can tell you New Hampshire has politically been something of an outlier in deep blue electorate of New England. Traditionally, New Hampshire has been a red state.  In recent decades it has morphed into more of a swing state. The electoral history of the state is pertinent to this ruling because one can only surmise how it was perceived by residents and elected officials. There most likely was a pundit somewhere in the state that griped about the ruling being overreach on the part of the federal government. There is an argument for this point, as education has traditionally been a responsibility of state governments. Does the moral imperative of providing equal access to education for all trump the necessity of constraining federal intervention in state matters? That is a difficult question to answer with a simple yes or no response. However, dispensing with any strong ideological proclivities, I would have to say that the answer lies within striking a nearly unobtainable balance. The opportunity costs of either position needs to be carefully weighed before we hastily make any conclusive claims.  

Bootleggers and Baptists: Part XI: Workplace Diversity

Diversity awareness programs on their surface appear to be noble endeavors designed to provide equal opportunity employment to historically disadvantaged groups.  Over the years, there has been some controversy over the conclusive impact and application of workplace diversity programs. Due to claims of only marginal success in increasing the diversity of the workforce. One major shift has been to couple diversity with “inclusion”, having a diverse workforce is not enough. The company now needs to also provide a welcoming environment.  This is a profoundly difficult task considering the subjective evaluations of what is defined as “welcoming” may vary wildly depending upon the perspective of the individual employee. There is a growing prevalence of what is known as “diversity fatigue”. Many managers and H.R. personnel succumb to the stress of attempting to fulfill lofty and unstandardized goals.  Making the achieving the goals of diversity and inclusion an ever-present uphill battle. Especially with the hyper-dynamic and ever-changing trends in what is deemed as being politically correct by the intellectual upper crust.

The move for diversity for its very sake is not without adverse consequences. Beyond merely making aimless strides towards an arbitrary and idealistic goal. If mismanaged minority employees may feel alienated or there may be an increase in the incidence of conflicts between employees. Two downsides are often not accounted for in the application of diversity programs. Neglecting these variables not only determines the purported objectives of diversity programs but the inevitable flaws of human nature.  The old expression “… you can bring a horse to water, but you can’t make him drink…” comes to mind. Prejudice cannot be eradicated by the edict of corporate policy nor by the stroke of a lawmaker’s pen. Freewill and personal perception have a massive role in fostering and maintain prejudice. A naively wide-eyed and idealistic diversity awareness program provided by an employer will not inculcate the virtue of tolerance into their employees. These are conclusions that the individual must independently arrive at deep introspection.

These lofty expectations mirror the Holier-than-thou virtue signally exposited by contemporary Progressives. Modern Progressive has firm ideological roots dating back to the early 20th century. A careful examination of history will lead any thoughtful observer incredulous of the true aims of the diversity movement. Many of the moral objectives of the Progressive Era were nothing more than circuitous means of rent-seeking. Making the whole notion of workplace diversity truly about diversity dubious at best. Few employees ever question how their employer benefits from promoting diversity programs. A business enterprise exists to provide a product or service not to proliferate the virtues of tolerance. What do they stand to gain through attempting to cultivate a culture of hyper-tolerance?

What emerges from this situation is a potential example of  Bootleggers and Baptist coalition.  An internal coalition between the human resources department and upper-management. Typically, the individual representing the moral argument for a diverse workplace is the “Diversity Ambassador”.  A role within the company that carries quite a bit of prestige, yet how this position direct benefits day-to-day operations is questionable at best. Even when employees who are crucial to daily business are laid-off the Diversity Ambassador gets to keep his job.  Although such a role is nothing more than a luxury. This actor is undoubtedly our Baptist due to his incessant persistence in exalting the values of diversity and inclusion. His rhetoric comes just short of mirroring a political propaganda campaign. Boldly asserting that everyone possesses some degree of prejudice or implicit bias. His obtuse repudiations make countering his claims (regardless of the accuracy of his claims)  a futile endeavor. Below details a scenario witnessed by the author that demonstrates the zero-sum nature of the accusatory discourse of the typical Diversity Ambassador:

Diversity Ambassador:

“ I have conducted this exercise for over twenty years and not once has anyone ever mentioned that I was black. I told you all to list the inferences you can make from just looking at me. No one even mentioned the most obvious characteristic of me. I am black. Why is this? None of you have followed my instructions! Why?!

Audience Member (Attempting to answer his question):

“ Because none of us see color.”

Diversity Ambassador:

“ Don’t ever tell a diversity and inclusion coach that you don’t see color!!”

The above conversation between a corporate Diversity Ambassador and an hourly employee exhibits the perverse quiddity of this wanton advocating for diversity. This is not the tone of a man who wants to educate, but rather who wishes to indoctrinate. Pedagogically and condescendingly force-feeding us the moral imperative of admitting our own biases. Versus attempting to foster understanding or attempting to provide us with the genuine precepts for being more tolerant. The man was simply describing our sins without truly prescribing a means of reconciling them. Paralleling the fervor of an Evangelical preacher, we can do no right. We must fully accept that we are in the wrong with no hope of ever being right. Presenting a situation where the participant can only lose. Generating such a compelling moral narrative for the imperative to proselytize the virtue of diversity that it also doubles as an impenetrable smoke-screen that insulates the company from accusations of discrimination.

The Bootleggers in this dynamic are the individuals in upper-management.  There are two main benefits of this variety of moral rent-seeking are deflecting the possibility of having a hostile work environment and social currency for appearing to be forward-looking. Over the years the United States has become quite a litigious society. Considering the increased sensitivity towards various minority groups, the opportunities for discrimination lawsuits have only become expanded. Providing a sizable incentive for those at the helm of the company to avoid any transgressions against their employees that could be viewed as discriminating in nature. By painting the opposite picture, even if this image is illusory, diverts, or weakens claims of discrimination. Not only does promoting diversity and inclusion have monetary incentives, but it also fosters a positive image for the company. It creates the facade of being open, progressive, modern, and may lead to the company to earn accolades for their culture. All of which will benefit the company and make the jobs of the CEO, CFO, etc. more secure. The reputation of the company for inclusive will attract talented young professionals that will only add value to the organization. One only needs to look at the example of Google to see how company image matters when it comes to acquiring skilled employees. Work culture almost operates as a form of non-monetary compensation. It is another variable that may sway top-notch young professionals towards one company versus another. Merely operating to the benefit of those in the top-tiers of management.

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Bootleggers and Baptists X: Marijuana and Taxes

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Presidential election years seem to be the Super bowl for ballot initiatives. The ballot questions typically presented in the midterm election aren’t exciting enough to stir any fervent enthusiasm. Then again, like with anything else, there are always exceptions!  Superficially, it appears as if activists and lobbyists save the real blockbuster ballot questions for Presidential election years. This perception could be entirely illusory. It looks like Arizona is going to attempt to legalize recreational Marijuana once again. The first go-around in 2016, under Proposition 205 failed by a slim margin. Leading some proponents of legalization to believe that the tides are changing in the Grand Canyon state.  The opinion polls are demonstrating the popular sentiment that the majority of Americans favor legalization. Now maybe the golden opportunity for Marijuana activists and consumers to direct their efforts towards advocating for Proposition 207, The Smart and Safe Act.

While Marijuana activists are hopeful that the bill will pass, lawmakers are more concerned with the consequences of the bill passing. Legalizing Cannabis presents the herculean task of establishing all the regulations governing recreational sales. Just looking at the number of regulations in states such as Massachusetts who already allow recreational sales, it becomes apparent that regulating Marijuana is far from a perfect science. Many of these rules imposed by state governments are nothing more than a compromise. The prospect of a complete laissez-faire Marijuana market is pure fantasy. Advocates of legalization need to provide something in the bill to appease those uncomfortable with the concept of a recreational Cannabis market. Many of these burdensome regulations aim to foster public safety and provide revenue to the state government. That being said one of the most notable concessions in this exchange is in the form of taxation. Whether it is pot, tobacco, alcohol, or even sugary sodas consumers gripe at the very thought of having to pay the premium due to the excise taxes imposed on their favorite vices.

Most consumers may find these taxes to be annoyances, they play a crucial role in the legalization of recreational marijuana. For those who are fearful of the externalities that society will bear due to the use of recreational  Cannabis. The taxes levied on marijuana sales can be earmarked and allocated to a state program for substance abuse treatment or increased funding for DUI patrols on the state highways. Operating as a form of vice-specific  Pigouvian taxation meant to offset any of the harms caused by legal Marijuana consumption. Tax revenue generated from recreational sales can also be utilized more flexibly. Not being relegated to compensating for the societal costs of Marijuana. The Smart and Safe Arizona Act plans to allocate fire departments, and the “highway user fund”. Demonstrating that tax money obtained through legal sales can be more broadly applied to regular state expenditures such as emergency services. marijuana tax revenue towards community colleges, police and

Does the question become in the states that have already legalized cannabis, have the excise taxes been effective in generating state revenue? The results have been somewhat mixed. On the whole, the economic benefit has been less than promising. For example, Colorado rakes in an estimated $250 million annually from Cannabis sales, however, that is less than 1% of the state’s total budget. It is hard to speculate whether this an indictment of the prospect of legalization or the excise taxes being too high. If the goal is to generate revenue it would be prudent to avoid making the taxes confiscatory. Otherwise, consumers will not purchase from the legal market when the transaction costs of patronizing the black market are low.  Effectively derailing one of the core objectives of the legalization movement, curtailing illicit sales. It is difficult to determine when taxes become too onerous in the eyes of the consumer. There are a lot of subjective factors that influence consumer sensitivity to price elasticity, which has been estimated to be between “-0.40 and -1.51%” in the illicit market. Having the largest impact on the purchasing behavior of moderate users more so than heavy and light users. However, parallels can be drawn between the taxation of marijuana and other legal vices such as tobacco and alcohol. New York has arguably had one of the highest tax rates for cigarettes in the country and simultaneously has a thriving illicit smuggling market. Resulting in “..30% to 45% of all cigarettes..” having been “… illegally smuggled across state borders”. Smuggling efforts to avoid excessive taxes are not limited to merely tobacco, but also alcohol. One sobering statistic (no pun intended) is that globally 20 % of all alcohol consumed is acquired through illegal sources.  The rate of direct taxation does not include the costs of regulatory compliance on the part of producers which is passed to the consumers in the retail price. Merely nothing more than another form of implied taxation.  This is a fact that regulators need to thoroughly contemplate when proposing a tax rate. Is the purpose of the tax to generate revenue or deter people from consuming the product?

Superficially, the tax has purposed for the Smart and Safe Arizona Act mirrors the present excise tax on alcohol and tobacco. The proposal is aiming for a 16 % excise tax, which has done little to hamper alcohol consumption in Arizona. Potentially the tax as purposed may help in assisting the state drawn in more revenue to fill its coffers. It is important to try to have realistic expectations of the impact of legalization on tax revenue. It can be stated with confidence that if the taxes are excessive, it will only benefit the black market. Regardless of what is being taxed if it is exorbitant people will find ways to circumvent the tax.  If we consider the inferences implied in the model of a Laffer Curve heavy taxation reduces tax revenue. Creating something of a paradox. When the tax burden is high, the productive output will decrease because the incentive to produce is greatly reduced. Hypothetically this could lead to not only diminished output but also reductions in investments.  

                                                    (Image from the Foundation For Economic Education)

Needless to say, if the transaction cost of avoiding a tax is low, determining the tax rate is a precarious balancing act. It could be safe to say that there are proponents of taxing marijuana at a high rate, but for various reasons. Once again, we encounter a Bootleggers and Baptists coalition. In this scenario, the Baptists are the individual who naively believes that a higher tax rate will automatically equal more money for government services. In a static model or a perfect world, this may be the case. Such an assumption ignores human nature, which has the proclivity to exploit any possible loopholes. Those in the coalition possessing the naivete of a moral do-gooder exhibited the laudable goal of wanting to collect money to improve infrastructure and services.  The Bootleggers are the individuals supporting a high tax rate and fully understanding it will prevent people from buying legal Marijuana. There are two subgroups among the Bootleggers. There are two-dimensional and obvious beneficiaries who sell or distribute marijuana on the black market. Their incentives model is transparent and due to the illegality of their businesses, they operate as silent beneficiaries. I highly doubt even the Mexican Drug cartels could get away with forming a lobbying organization in the United States. Despite their political clout and economic power just south of the border.

The second subject of Bootleggers is not quite so obvious. They are individuals who oppose recreational marijuana use. They are fully hopeful that high taxes will serve a confiscatory function. Due to popular sentiment growing increasingly in favor of legalization, the fight to keep pot illegal is becoming significantly more difficult. The next best thing you can do is influence consumer behavior by making it prohibitively more expensive to purchase the intoxicant. This perspective could be a naïve one if the individual actor does not account for the black market. Those in favor may also want marijuana sellers and users to experience the legal consequence of doing business on the black market. Even if the fallout is less severe than it was during prohibition. The self-serving motive behind this logic stems from the prejudice the members of the subgroup hold against Marijuana consumption. Whether justified or unreasonable this would be the impetus. It could be feasible that such actors are dual-role agents.  Not only do they personally dislike Marijuana, but they also truly believe it is a dangerous plant and the public needs to be shielded from the adverse consequences of its consumption.

Gonzales V. Raich- Medical Marijuana and Federalism

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When medical marijuana was first legalized back in 1996 it presented a bit of a conflict for law enforcement. Even though Marijuana could be prescribed for medical purposes in California, it was still a banned substance under federal law.  Twenty-four years later Cannabis remains prohibited under federal law remaining a Schedule I drug.  Under this classification, a drug is deemed as having no medicinal value and a high potential for abuse. Even though medical Marijuana is presently legal in 33 states. The conflict between state law and federal law in the sphere of regulating Cannabis has created a plethora of issues. Among these issues have been inconsistent rulings on the behalf of the Supreme Court. At times striking verdicts that circumvented state authority and gave deference to the jurisdiction of the federal government. At best, these rules are Constitutionally questionable.


One particularly noteworthy example of this confusion of jurisdiction transpired on August 15th, 2002. Angel Raich and Diane Monson, two card-carrying medical Marijuana patients, were subjected to a raid by the DEA and the local sheriff’s office. Despite the fact their Marijuana consumption and cultivation were legal under state law “..federal agents seized and destroyed all six of … Cannabis plants..” on the property. Unfortunately for the respondents, the Supreme Court did not rule in favor of their case, Gonzales V. Raich (2005). The court found that congressional authority under the Controlled Substances Act (21 U.S.C. 801) superseded the Compassionate Care Act passed at the state level. Why would the court side with federal authorities on this matter? This incorrect judgment by the Supreme Court is possibly rooted in a misapplication of the Commerce Clause. This clause on the Constitution grants Congress the authority to regulate intrastate trade. It is perplexing that the Supreme Court would find the parameters of this congressional function to be so malleable that it could be extended to a medical plant cultivated solely for personal use. Effectively allowing federal agencies under the egis of congressional law to interfere with the affairs of California.


Legal scholar Randy E. Barnett found that the Supreme Court had misapplied the Commerce Clause in this case. Due to the court’s loose definition of economic activity. It can even be argued that they also misinterpreted the past cases cited in their decision. United States V. Lopez (1995)limits the substantial effects doctrine to intrastate activities that are economic in nature” (P.5). Meaning that Congress would have had the authority to intervene in the matter of medical Marijuana cultivation if it stood to impact the national economy. Here’s where the Supreme Court engages in the aerobatic feat of fitting non-economic activities into the model of economic conduct. Analogous to fit the square block into the proverbial round hole. Through applying the Larger Regulatory Scheme Doctrine the court was able to loosely define  Raich and Monson’s conduct as “economic”. Utilizing what Barnett refers to as a “fungible goods rationale”, essentially inferring that the production of marijuana influences the national supply of the commodity (p.7). Aside from merely grasping at straws with this determination it completely ignores the purpose of the complaints growing marijuana in the first place, relief from chronic medical conditions. In light of the opioid epidemic would it be fair to confiscate legally prescribed Vicodin tablets due to this medication having the potential of being illegally sold on the black market? No. However, Vicodin also isn’t illegal at the federal level. Leaving open possible speculation that this application of law overtly discriminates against medical Marijuana.


The ruling in Gonzales V. Raich demonstrates an inconsistent stance on striking down the use of the Commerce Clause by federal authorities to unjustly meddle in state matters. In the two cases cited by the court United States V. Lopez (1995) and United States v. Morrison (2000) it was held that the Commerce Clause was not applicable due to the non-economic nature of both cases. If an individual were to examine the context of Gonzales V. Raich it would be easy to see that it too is not enforceable under the Commerce Clause. Rather it was an example of gross abuse of power that is not even Constitutional allocated to federal agencies.



United States V. Lopez (1995)


Back in the early 1990s 12th grader, Alfonzo Lopez was charged with bringing a concealed handgun to school. He was initially charged under Texas law and a day later the charges were dropped.  Subsequently was charged by federal authorities for violating the Gun-Free School Zones Act of 1990.  Lopez was found guilty on federal charges and was sentenced to six months in prison. Federal authorities citing the Commerce Clause as their justification for intervention. The appeal on this case did end up reaching the Supreme Court where it was ruled unconstitutional for Lopez to be charged under the Gun-Free School Zones Act.


Per Oyez it was ruled:

Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with “commerce” or any sort of economic activity.


It is profoundly confusing that this case was cited in Gonzales V. Raich, yet the general principle did not seem to transfer to from United States V. Lopez. Much how it is a gargantuan leap to assume that gun possession in a school zone would automatically lead to distribution in intrastate economic activity. It is equally faulty to assume that the production of Marijuana for medical purposes is overly economic. If there is not any concrete evidence that either Monson or Raich had an intent to resell their prescribed Cannabis, then the “economic” argument seems to falter. Similarly, in the Lopez case, the economic argument is at best grasping for straws. Unless there was solid evidence that Lopez was planning to rob a bank after school, it is hard to say that the federal authorities were upholding the stability of intrastate commerce.

United States V. Morrison (2000)


In 1994, two male students attending Virginia Polytechnic Institute ( now known as Virginia Tech) raped a female student. Then in 1995 the female student file a complaint under Virginia Tech’s sexual assault policy. One of the male students was immediately suspended for two semesters and the other was able to go on with impunity. When the student who was punished sought an appeal and his punishment was found to be “excessive” and was “set aside”. The female student did end up unenrolling from Virginia Tech. Then subsequently sued both the school and the two males students under the Violence Against Women Act of 1994. A federal law designed to curtail violence targeted at women. It was ruled that utilizing the Commerce Claus to enforce the VAWA was unconstitutional. While abhorrent, violence against women does not disrupt interstate commerce. In terms of delivering justice in this case of disturbing sexual violence that falls upon the commonwealth of Virginia.


It is important to note that Justice Rehnquist who delivered the majority opinion did not tacitly condone the actions of these two men. Rather, he was attempting to uphold the proper application of federalism.

[i]f the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of…Morrison. But under our federal system, that remedy must be provided by the Commonwealth of Virginia, and not by the United States.”


The Morrison and Lopez cases only make the ruling in Gonzales V. Raich more dubious. If we can allow the states to regulate non-economic violent crime why cannot we do the same for non-violent drug laws? The lengths the court went to frame Monson and Raich’s cultivation of Marijuana as economic and therefore require federal intervention defies reason.  Also, gives credence to professor Barnett’s stance that this case was a devasting blow to federalism in our legal system. Potentially washing away the gains made in the Lopez and Morrison cases. Who gets hurt by such fallacious judgments by the Supreme Court? Medical Marijuana patients who are grappling with a multitude of various debilitating conditions. However, fortunately, the tide does seem to be turning as far as Marijuana is concerned. After all, years later public opinion has come around for not only medical use of Cannabis but also recreational use. Medical use is presently legal in 33 states and recreational use is legal in 11 states plus Washington D.C. That in of itself could be viewed as a larger long-term win for federalism. The lingering potential for the federal government to usurp functions that should be within the state’s power still exists. Only time can tell if on a later date the federal authorities opt to intervene in the seasoned recreational market of a state like Colorado or Washington.


Also, please see click here to see the story of Angel Raich.









Can a Communist Be A Public School Teacher?



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The right to free association is generally one that is generally perceived as being connected to the First Amendment. It could be argued that is more of a corollary of the principles of free expression that is implicitly protected under the Constitution. It developed conceptually as a protected form of expression back in the 1950s and 1960s. One of the cases of the era, NAACP v. Alabama (1958) where the state of Alabama attempted to weaponize state law to discriminate against the organization. Considering that free speech has its limitations, it would be only logical to assume that there are forms of association that are unlawful. For instance, the area of gang affiliation becomes quite murky and the legality is based upon an individual’s interpretation of the right to free association. Some have argued that free association is only extended to peaceful assembly. In Arizona state statute ARS 13-2301 implies that membership in of itself contributes to criminal activity, making it a crime.


Does the right of free association extend to employees in the public sector such as school teachers? It does. Meaning your child’s school teacher (providing they attend a U.S. public School) could be a Communist or even a Nazi. The prospect of this being a reality is quite slim considering the majority of Americans avoid embracing extreme ideologies. However, theoretically, there is nothing wrong with a public employee subscribing to the views of the subversive group.  Oaths of loyalty were administered to public employees during the Cold war-era as a means of curtailing the spread of Soviet ideology. Over the years the courts have ruled that these oaths infringed upon the right of free association of government employees. In theory, making it possible for your child’s first-grade teacher to be a dye-in-the-wool Maoist.


Keyishian v. Board of Regents (1967)


One of the earlier cases addressing the right of free association for educators was fought at the collegiate level.  The facts of the case detail how the University of Buffalo became a public institution when it merged with the State University of New York system back in the early 1960s. Professor Henry Keyishian was then subjected to having to take an oath that has never been nor was he a member of the Communist Party. Presumably complying with state law at the time. Professor Keyishian proceeds to sue the board of regents because having employment contingent on such an oath was unconstitutional.


In the end, the courts had concurred that forcing public servants to take such an oath was a violation of their rights. Per Oyez:

Because the country had an interest in protecting the First Amendment rights of teachers for the educational system to be as free and open as possible, such overly broad and vague requirements both violated the teachers’ rights and were detrimental to the profession. The Court held that the government could only regulate First Amendment rights with “narrow specificity.” The Court also held that specific provisions of the Civil Service Law and Educational Service Law were too overly broad because they prohibit membership in the Communist Party without determining whether or not there was any specific intent to overthrow the United States government.


Establishing that even if a public servant’s personal beliefs may be extreme or deviant, this should not be a qualifying criterion for employment. While this case may have provided clear case precedence for the rights of college professors in public institutions this is not a clear defense for K-12 educators (P.216). Public school teachers do get their day in court in the early 1980s.


Schmid v. Lovette (1984)


By the early 1980s, most California school districts had acknowledged that loyalty oaths were unconstitutional and stopped administering them to newly hired teachers (P. 216). One outlier in the state of California happened to be the Richmond Unified School District. Plaintiff Marvin Schmid filed a suit against the school district claiming that her First Amendment rights had been violated. The court did find subjecting prospective teachers to such an oath was unconstitutional. Establishing precedence for the right of free association for public school teachers.


While teachers may have the right to privately practice Satanism or salute a statue of Hitler in the privacy of their own home, much like other rights, there are limitations. Depending upon the constraints of the terms of their employment matters become a bit more sticky. I certainly could not imagine a school system allowing a teacher to indoctrinate students with the ideals of fascism.  For the right-wingers, claiming the school already inculcate students with the virtues of Marxism need to get a grip. Yes, the schools do need to become depoliticized, however, Marxism entails full state socialism. The mindless fixation with equality of outcome and insincere diversity is certainly left-of-center.  To call it Marxism is hyperbolic.


While this case was more of a free speech matter it could easily be extrapolated to participation in subversive political groups.  Last year controversy stirred in Texas when a teacher was fired for posting an anti-immigration tweet. Then the commissioner of the Texas Education Agency suggested that the teacher should be reinstated. All you need to do is replace the tweet with was seen at an anti-immigration rally and then it becomes a free association issue. Due to both rights being interrelated. This controversy illustrates how the defense of the First Amendment is a precarious balancing act. In a climate of hyper-political correctness, our right to free expression is presently being challenged.  It is a fight I hope that the sincere defenders of the First Amendment will win.










Ballot Access Laws in Arizona Are Too Strict


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Authors Note: This a Draft for An Op-Ed piece. Please feel free to provide candid feedback.



Many Americans are displeased with the present state of American politics. Much of this dissatisfaction is spurred by being limited to the narrow choice between two parties. Per a 2017  Gallup poll, 61 % of participants surveyed expressed that a third-party is a much-needed alternative to the present Republican/Democrat paradigm. While the idea of promising contender to the DNC/GOP establishment may receive quite a bit of fanfare from average voters that does not mean that such political force will be a reality. Unfortunately, countless third-party and independent candidates have been kept off the ballot by stringent ballot access requirements. Historically, as ballot access laws have become more rigorous the number of minor party candidates has decreased.  Effectively confining the number of choices available to the American voter.

The bulk of the prohibitive ballot access requirements that third-party candidates are subjected to are passed at the state level. Over the past couple of years, Arizona has consistently ranked among the states with the most onerous requirements. Especially after passing Bill HB 2608 back in 2015 which expanded signature requirements for a candidate to appear on the ballot, under ARS 16-322. This revision has been particularly burdensome to the Libertarian Party, which is arguably the strongest third-party contender in the state. Even when the Libertarian Party attempted to challenge the law in 2019 the Supreme  Court sided with the state. Concluding:


“… state’s signature   requirements   are   reasonable   restrictions   that   impose, at most, a modest burden on the Libertarian Party’s First and Fourteenth Amendment rights, while directly advancing Arizona’s  important  regulatory  interest…”


The Supreme Court also rejected the Libertarian Party’s 2020 appeal to contest the law. Leaving Arizona’s hopes of breaking up the present duopoly on politics in shambles. The prime culprit appears to be the 2015 revision to ballot access requirements which solidifies the current two-party dynamic. These restrictions should be eliminated because they fail to protect the voter, designed to target prevalent minor parties and impose direct violations on the First Amendment rights of voters and candidates.


Ballot Access Laws Fails to Protect the Voter:


The main arguments for stricter ballot access requirements tend to be shielding voters from confusion, ballot overcrowding, frivolous candidacies, and political stability. Historically, ballot overcrowding has never been cited as a direct reason for increasing signature requirements. Before the 1930s minor parties had very “lenient” access to the ballot in the majority of states. Even with lower barriers to entry the calamities of voter confusion and rampant frivolous candidacies seemed to be virtually nonexistent. Typically are issues that will be invariably sorted out by voter preferences. In the unlikely event of confusion, voters will levitate towards parties and policies they are familiar with. Candidates lacking strong convictions and direction will generally have potential votes re-direct towards another candidate. It is quite clear that these concerns are not pitfalls that the government must insulate the average citizen from. Especially, when most ballot access restrictions imposed by the state government tend to also exclude legitimate candidates.  These problematic quirks of liberal ballot access can easily be resolved by the voters themselves.

The second category of the aspiring purposes of ballot access laws is to protect voters from political instability. Preventing “unconstrained factionalism” from eroding the political stability of the country. Undermining the steady nature of a two-party system which interrupts the proliferation of splinter factions. The more probable side of the political stability argument suggests that it would help prevent indecisive elections. Through directing votes to one of two prominent parties it will help reduce the odds of a stalemate. Whereas dividing votes between three or more parties would increase the probability of this issue be prevalent. This argument is flimsy at best because indecisive elections were not a common problem before the restrictive ballot access laws of the 1930s. Beyond the evidence of history, Public choice theory also demonstrates how accessible ballot access will not compromise political stability. The country being splintered into a multitude of quarreling factions is unlikely, per the Median voter theorem to win an election you need to aim for the center. There are only so many unique ideologies that can be formulated that are not so extreme that it philosophically alienates moderate voters. Putting an informal constraint on the speculated “electoral chaos” that would ensue from looser ballot access restrictions.


Ballot Access Laws Are Designed for the Benefit of the Major Parties


There is also some evidence to suggest that ballot access laws are catered to benefit the existing mainstay parties.  The United States has had ballot access laws since 1888. The proliferation of strict ballot access requirements did occur until the 1930s and was generally perceived as a means of prohibiting members of the Communist Party from running for elected office.  These tactics over the years have been applied to other minor parties once state governments realized that manipulating signature requirements proved to be an effective means of keeping third-party candidates off of the ballot. For example, back in 1995, the state of Alabama tripled the signature requirements to appear on the ballot. This was a direct result of the Patriot Party diverting votes that would have otherwise gone to a Democratic candidate. Third-parties have achieved some modest victories in court against unjust ballot access laws. Such as in Burdick v. Takushi (1992) where Hawaii’s ban on write-in candidates on elections ballots was ruled as unconstitutional. However, generally, the courts rule against the complaints of third-party candidates. Simultaneously the courts tend to minimize the Constitutional concerns of third-party candidates. Demonstrating that the institutional barriers to the ballot box are sealed with the blessing of the Supreme Court. As evident in the  2019 ruling of  Arizona Libertarian Party v. Hobbes.

One glaring fact that often gets ignored is that the majority of ballot access laws have been formulated by legislators who are affiliated with one of the major parties.  This presents an unfortunate conflict of interest, as this brings into question the motives of passing such laws.  Therefore, making it difficult to determine whether these laws are being passed for the benefit of the voter or the callous self-interest of those involved in politics. Creating an internal lever for our elected lawmakers to preserve their influence in state politics. Solidifying this potential rationale for passing  HB 2608 (2015) has been the commentary of a publicly known affiliate of the Republican party. Insinuating that the Libertarian Party has been siphoning votes away from the GOP.  This individual stated quote: “I can’t believe we wouldn’t see the benefit of this”.


This statement implies that increasing the signature requirements was not done to foster political stability or reduce ballot overcrowding. Rather, it was passed to aid Republicans in retaining political influence in Arizona.



Strict Ballot Access Requirements Encroach Upon the First Amendment:



Strict ballot access requirements present some unique challenges to the First Amendment that often are unscored in many of the Supreme Court decisions. Per the revised signature requirements in Arizona, the Libertarian Party would require to obtain petition signatures from nonparty members. Viewed by the party’s attorney in their 2019 case as a violation of free association protected under the First Amendment. While the free association argument is a valid concern, it is an only peripheral concern. Above all, voting is a form of free expression.  The courts typically ignore the expressive function of voting, however, it is a form of speech that should be protected.  A vote can serve as a form of protest, a vote can reflect a certain philosophical point-of-view.  The market-place of ideas may lack tangible currency; however, the value of ideas can always be quantified by the will of the voters.  A mere vote can convey so much more than a constituent preferred candidate. It is generally a representation of a set of ideas, which can be symbolic or literal. Keeping third-party candidates off the ballot effectively limits the variety of forms of self-expression allotted to the voter. Operating as a circuitous form of censorship.

Imposing burdensome ballot access requirements not only limits the free speech of voters, but also the First Amendment rights of candidates. Campaign platforms present specific positions on issues that undoubtedly serves as an expressive function. Lending itself to be interpreted as a protected form of speech.  Third-parties have been invaluable for presenting novel perspectives on policy issues.  For instance, the  Liberty Party that formed in the 1840s brought the abolition movement to the table when most major parties refused to entertain ending slavery. Even in the modern era, the candidacy of Ross Perot for the Reform Party back in the 1990s presented alternative views that were invaluable to public discourse. Such as Perot being one of the few aspiring presidential candidates critical of the NAFTA agreement.  Perot reminding us of the virtue of balanced budgets. Through keeping minor party candidates off the ballot, we are in-turn we are limiting the variety of opinions in public discourse. This is nothing more than a legally sanctioned form of de-platforming.




                A significant number of voters may be frustrated with the current two-party duopoly on American politics. Little can be done if prohibitive ballot access laws work to keep third-party candidates off the ballot.  These laws do not protect voters, nor do they secure our political institutions. Seemingly existing to keep the status quo intact with few substantive arguments soundly justifying such measures. Until the Supreme Court starts taking the constitutional concerns of minor parties seriously, the two-party system will remain.  It would foolish to expect the Republican and Democratic state legislators to repeal laws that serve their interests.

Substance over Style

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Just a random thought. As I have gotten older I have begun to realize how you arrive at your answer is more important than what your answer is.

Anyone can get lucky with incidentally contriving a profound insight. However, your method of arriving at such a conclusion cannot be the byproduct of chance.

Rather, it would be the byproduct of sounding thinking. Replicating the feat will eliminate the potential it was a happenstance fluke.

My Response to Bruce Yandle

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Dr. Yandle,


I greatly appreciate your quick reply to my previous e-mail.  I apologize for taking so long to get back to you. As an amateur blogger, I will most likely continue to explore novel applications of the B&B dynamic, both in regulation and in the mundane day to day examples. Not only will this provide me with an endless array of topics to write about, but it will also increase my understand of the B &B theory. I have to say there is something about framing behavior in the Bootleggers and Baptists context that never gets stagnant.  It will make writing about regulation to be dynamic for years to come.


Above all I appreciate your encouragement, I will proceed to navigate my way through the murky and convoluted world of regulation. Fully acknowledging that most regulation (if any) does not benefit the general public. Rather, it serves as a form of rent-seeking that is barely noticed by the average voter/ taxpayer due to the costs being distributed through higher consumer prices or taxes. Before familiarizing myself with Public Choice Theory I was already skeptical of regulation. Through theories like the Bootleggers and Baptists dynamic, I now have better precepts for refuting the validity of ineffective and self-serving regulations.


Again, Dr. Yandle, I appreciate you taking the time to respond to me. I will continue to expand my understanding of the political decision-making process. An election year is a prime time to do so! There will be a multitude of living examples of Public Choice concepts coming to life.  Animated by the all too human and fallible nature of politicians and interest groups.  I just wish I had been aware of this economic school of thought back in 2016. Considering the impending cataclysm that many pundits were speculating in the wake of the Trump Presidency. Which I can only see as being a form of rent-seeking either from the standpoint of increasing viewership ratings or maintaining the credibility of political factions that the mass media finds to be more favorable. Then again, Trump is awful on trade. However, I am still waiting for the apocalyptic dystopian future many of our friends in the media predicted nearly four years ago. It would be nice to have a more economically laissez-faire president that holds individual rights in high esteem. However, due to invested interests, current public opinion, and the nature of American politics such wishes seem likely a lofty pipedream.


P.S.: I also enjoyed your essay The Next Fifty Years: Optimistic or Pessimistic?, published in The Independent Review. Working from home has eliminated my 45-minute commute back and forth from work. Leaving me with more time for reading and research, last quarter I subscribed to the print edition of  TIR. That was a novel and interesting study you conducted. I am not sure if I have the faith to say the next fifty-years will be promising. I certainly believe that material comfort and convenience will only continue to exponentially improve with innovation. In terms of moral development, it is difficult to say. While technology has provided us with a lot of positive developments it has also been correlated with social decay. A steady decline in civility and decorum. Then again, correlation does not necessarily equal causation, having the third-variable problem rearing its ugly head. I could potentially be unfairly singling out the technology. The COVID-19 epidemic seems to have only compounded this issue as people are staying home and becoming more atomized. Don’t get me wrong, as a Classical Liberal/ Libertarian  I am all for individual rights. However, the paradox becomes as people become more individualistic they drift away from the private institutions that previously held communities together (such as church, I am personally not religious, but I have nothing against religious observance). The surrogate that fills this vacuum almost always ends up being government.  As we become more individualistic our affairs end up becoming more collectivistic. I want to remain hopeful that the human species flourishes not only materially but morally and socially. As a society, we need to figure out how to reconnect again.


Thank you again for your time Dr. Yandle,


Peter C. Clark.



Bruce Yandle’s Reply

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Yesterday, I received a response from the legendary Public Choice scholar, Dr. Bruce Yandle. There were three main takeaways from his response to my e-mail. Even through e-mail communications, Dr. Yandle exhibits all of the decorum and humility you would expect from a southern gentleman. It truly is a privilege as a nonacademic to be able to have such an exchange with one of my intellectual heroes.



Takeaway #1- He was Humbled by the Fact that His Theory Was So Influential Upon My Thinking


I was slightly surprised that he was humbled by the impact his theory has had on my thinking. He was particularly humbled by the fact that I find his theory to be a powerful means for explaining the world. I could not agree more. The Bootleggers and Baptists’ paradigm is not relegated purely to the sphere of politics and regulation. As he mentioned in his response you start to notice examples everywhere once you are familiar with the concept. That speaks volumes of the conceptual transcendents of the theory. Making all the more brilliant observations. Above all, I am glad that Dr. Yandle was able to see that his theory has influenced others. That it is a “living idea” not just a sterile postulation that is confined to dusty economic textbooks. But a profound theory that explains the world how it is. Not imposing value judgments of what should be.


It should also be noted that he did see some sound reasoning in equating  Bootleggers and Baptists to the Id and Superego. He also alluded to Adam Smith’s Theory of Moral Sentiment, citing that both roles also paralleled Smith’s” the man within the breast” and the “impartial spectator”.



Takeaway #2- Dr. Yandle conceptually finds the prospect of a Dual-Role Actor to be valid.


Dr. Yandle stated that he like the term “Dual-Role Actor” and agrees with it as a premise. Using the example of how Donald Trump as addressed immigration policy for how many times politicians fall into this category. Utilizing arguments around reducing crime from the standpoint of the moral high road. Then in the next breathe stressing the point of how immigrants take jobs from American citizens. Simultaneously appeasing the Bootleggers and Baptists  Making Trump’s clumsy balancing act a pure example of a “Dual-Actor” paradigm. He assures me that I am correct in my assumption that the B&B dynamic does not explain the origin of these coalitions, but rather the details of the occurrence.


Takeaway #3- Keep Writing and Thinking About Regulation.


Dr. Yandle also encouraged me by stating “I wish you well and hope that you will keep thinking and writing about regulation”. That is a suggestion I will certainly follow!