Yesterday over at the Volokh Conspiracy there was a lot of talk about bumper stickers. My only bumper sticker is from the greatest tourist attraction in all of Florida, Monkey Jungle, "where the humans are caged and the monkeys run wild." Though it isn't exactly a model of responsible animal husbandry (it started out with six monkeys that proliferated into 80-something), it is a fantastic place to visit (and not just because a monkey urinated on my sister). Highlights of Monkey Jungle include sanctioned feeding of the monkeys and the Wild Monkey Swimming Pool. It is a definite must-see if you are in the Miami area.

Well, Instapundit is down but up, Pejmanesque is down but up, but near as I can tell Daniel Drezner is just down.

Incidentally, if anybody has an email address for Pejman Yousefzadeh could you please send it to me? Thanks.

UPDATE: They're back . . . .

Sasha Volokh, a non-smoking Volokh Conspirator, is frustrated with smoking bans in "public" places. I put public inside quotation marks because a lot of the places in which the bans apply are privately owned and operated but are open to the public, like restaurants and bars. Now being someone to whom smoke isn't merely an annoyance to breathing but a debilitating hindrance (i.e. the slightest hint of smoke in the air sends my trachea into spasms, preventing me from breathing at all), I have a special interest in the subject.

In truly public places, like government buildings, public parks, and public school buildings and grounds (including those of public universities), and even public sidewalks and streets, I'm siding with regulation. We all pay taxes to keep these places afloat and regulation of behavior that is physically harmful to others isn't inappropriate. A person's personal freedom to swing his fists wildly in the air is subordinated to my right to not be socked in the jaw. Similarly, I don't think it's unreasonable to demand a person's freedom to enjoy a cigarrette on the steps of an Ohio State University building to be trumped by my freedom to breathe at all. Now you may be thinking, "It isn't right to ban people from swinging their fists in public places just because they might sock someone in the jaw. We should only make it illegal to sock someone in the jaw." The effects of public smoking, though, aren't as localized as swinging fists. Smoke not only lingers in the air, it spreads to encompass a large volume of air and, in public, people are more likely than not to have to breathe it in.

As for privately owned "public" places like restaurants and bars, as much as I'd like to see them all go smoke free, I'm going to have to side with Volokh. Bans for public health reasons are truly tempting: not just because of harm to second-hand smokers, but because of the incredible public expenditure on treating them (CDC puts health care costs of smoking around $80 billion/year - I'm not sure how much of this is for second-hand smokers). As expensive and harmful and obnoxious to us as it is, what people do in private is their own business. Though it's not just for us to have to pay for the consequences of people smoking in private, the answer isn't the injustice of banning their private habit. As a consumer, I'm free to choose the restaurants I frequent and I like rewarding those without smoking sections with my business. I'm also free to choose where I work. Private "public" places should be treated differently than the truly public ones.

Tim Sandefur is plugging away at one of my pet causes, laws that ban interstate wine shipments.

Oh, and congratulations to Mr. Sandefur for being blog-rolled by The Volokh Conspiracy. Now if only some bit of that fame could trickle down to us . . .

Although Beth has taken on the role as lead-FDA blogger, I thought I'd chime in with a few thoughts.

One: The problem of "perceived risk" and "actual risk" is a very serious one for those of us who aspire to some vaguely utilitarian democratic governance. Ask people what their biggest health fears are, and you get all sorts of very odd answers. In class we learned this as the "nuclear waste v. radon" problem (the problem being that radon is a bigger threat to most people than nuclear waste is, but most people are far more interested in doing something about the former).

Two: Enter the big bad hobgoblin of the federal regulatory state, Interest Group Theory. Beth's reader says that people are bad at assessing risks. This is true. But it's an open question whether want to trust the FDA to judge them for us. After all, since we don't know enough to judge the risks ourselves, we also don't know enough to know whether the FDA is judging the risks honestly. Add to that problem the fact that many workers can make far more in the private sector than on a government payscale, and you get the revolving-door interest group problem (somewhat hampered, but not entirely, by certain employment rules). I go to work for the FDA for a little while, but I'll eventually come looking to get a job at Merck. That gives me some incentive to be a little bit nicer to Merck applications and what have you.

The solution, I think, is to lower the stakes of FDA approval. Keep the FDA in business and well-funded, keep trying to ferret out interest group corruption and all the rest, but limit the FDA's ability to proscribe new drugs or treatments. Instead, let them issue ABA-style "approved/disapproved" warnings and long, long reports, and let them mark some drugs "prescription only," if they wish, but let medical doctors prescribe drugs that fail FDA review, or that simply haven't made it through the FDA pipeline yet. That reduces the need for drug companies to engage in rent-seeking behavior, reduces the ability of FDA approvers to extract mega-rents from pharmaceutical companies, increases the discretion and flexibility available to doctors, and increases the chance that people in really dire straits can take the desperate risks that they might need to in order to live.

Remember the words of Richard Thaler:

When you are likely to win, don't take chances. When you are likely to lose, take some risks!

A reader responds to my Pharmaceutical Market Access Act post:

Cutting back on the red-tape of the FDA is a bad thing (I believe). People tend to be very bad at judging risk when they lack the understanding of those risks. Organizations like the FDA and OSHA exist to counteract that inability to judge risk. Could it be possible for people to independently judge the risk and efficacy of new (or old) drugs? I say no. As an example of why not, I pose: why do people feel safer driving in a car than flying in an airplane? The data shows that flying in a plane is far safer, and in the 1950s, the US Air Force was the first group to lobby for seat belts when their own data showed that car accidents killed more pilots than plane crashes.

Sure people may be bad at judging risk, especially when the situation calls for a specialized education. But does that mean we need to be paternalistic to those who should be capable of such judgments? By law, an ordinary person isn't deemed competent to judge certain medical risks for himself: that's why some drugs require a physician's prescription. The physician, however, damned well better be competent enough to assess the risks to the patient and make a recommendation. Just because drugs clear the FDA doesn't mean they are through with clinical testing. Physicians and other scientists constantly test the efficacy and safety of new and old drugs for their intended and off-label uses. That's the lifeblood of medical research and innovation. Passing the FDA also doesn't necessarily mean that the drug is safe. The latest research into hormone replacement therapy should teach us that lesson. Regular folks like you and me may believe that driving is safer than flying but the experts at the Air Force know better. The same is true with prescription drugs: a patient may think a certain drug is medically indicated but his doctor isn't going to prescribe it if he doesn't have grounds to believe that it will help.

Also, while the FDA is busy tying red tape around new prescription pharmaceuticals, it isn't regulating some really dangerous drugs that people can buy at their local health food stores: herbal supplements. These drugs, because they are considered "natural" don't have to meet stringent guidelines for safety. Manufacturers can basically put any "natural" substance they want into a bottle, make any kind of claim they want, and sell it. People buy these supplements and vitamins not knowing that they could negatively interact with other drugs they take or could be completely unsafe in themselves. For example, one woman purchased a bottle of a substance that claimed to increase metabolism and ended up requiring a liver transplant. The article is from the New York Times Archive and is pay for use. It turned out that the manufacturer of the drug responsible for destroying the consumer's liver made his living selling tee-shirts from a stand and decided to try his luck selling herbal supplements by filling some gel-caps he bought with a substance someone at the gym told him burned fat. If the FDA really wants to protect consumers, it should be less paternalistic in the field of prescription drugs and moreso with readily accessible "herbal supplement" drugs that are dangerous and make false claims.

Stuart Buck and The Curmudgeonly Clerk both point out some pretty serious past errors from the ABA rating system. This is a terrible shame. If the ABA ratings were limited to assessing relatively objective factors, and trusted by both sides, they could actually be something useful to look at (as I've written). But can anybody name the last time a Senator's decision about how to vote on a nominee (or even a voter's decision about how to vote on a Senator) hinged on the ABA rating of that nominee?

And there are few, if any, sitting judges I admire more than Alex Kozinski and Richard Posner, both "qualified/not qualified".

Rather than tack assorted updates onto previous posts, I'll just post various helpful comments sent in by readers.

One of our very rare Cambridge-based readers writes in with some thoughts on comparative library structures:

I think it's also worth considering that the Cam UL seems to be not particularly well-funded by American standards. Consider: the stacks close at 6:45 on weekdays. I don't know about Chicago, but the weekday stacks closing time at Columbia is 10:45. Also, they don't have an acquisitions librarian at the UL. Could you imagine having a library this size, at a uni this caliber, without someone specifically tasked to choose which books to buy? . . . Let's not even get started on the idiocy of having every faculty library plus the UL have different policies on borrowing times, etc.

I am not sure about the motivations of Cambridge, but at the last university I attended . . . there was a form of one-upmanship that was being played there. If you knew certain books would be on the reading list for a class, the gamesman would check them all out before classes started, in order to prevent other classmates from getting better grades than the gamesman. If you were an undergrad, you might conspire with a grad student to check them out for you. If you neglected to update your mailing address with the library, it becomes impossible for recall notices to get to you. Undergrads got books for 4 weeks, grad students got till the end of the semester, and faculty/staff got till the end of the academic year. Approved high school students and alums got them for 2 weeks. It was not rare to see a grad student or professor at the check out counter at the end of the semester with a large cart holding 20-50
books. . .

Additional theory: the difference in customs in lending policies may have something to do with the differences in libraries in the US and UK. I believe that Carnegie's public libraries were the first to allow the unwashed masses to borrow books. At that time, libraries were essentially private clubs that charged for loans. Some ibraries in the UK also pay fees to the author of a book for the number of times the book is checked out.

I think the issue is a bit more complicated that mere costs of accommodation or fitness standards. If I remember correctly, when Israel was a new state, the Israeli army was actually very integrated along gender lines, even the combat divisions. However, the military quickly discovered that male soldiers would accept strategically unacceptable risks when dealing with female soldiers, while this was not the case when dealing with fellow male soldiers. Women treated both genders equally. From what I remember, this chivalrous behavior was not amenable to training and was the main cause for Israel's subsequent segregation of its combat divisions.

I am not sure what to make of this. One one hand, women who want to serve in the military are made to bear the cost of male behavior (yet again, some might say). On the other hand, women inspired a great deal of stupid male heroism, and this costly behavior appears to be entrenched. In short, I am not sure if this policy tradeoff is very clear cut in this case. It all depends on how highly you value the right of women to serve in the military.

You can only ignore small probability events when there aren't correspondingly large consequences. The word "moral" in Buffon's paper is used in the same way as Laplace used it, to take into account both probabilities and consequences.

For example, I would ignore a 1 in a million chance of losing $100. It is "morally certain" not to happen. The payout is small compared to the probability.

However, I do not ignore a 1 in a million chance of dying. It isn't a big worry, but that risk is worth about $15 to me. That is, putting my seat belt on is like winning $15, if my seat belt reduces my risk of death by 1 in a million. (No, you can't kill me for $15 million; it's more complicated than that :-).

This is the idea behind risk analysis: low probabilities of high consequences. People might ignore these risks, but they shouldn't when making important decisions. For example, safety professionals use "micromorts" (one in a million chance of dying), while nuclear plant analysts use "nanomelts" (one in a billion chance of a meltdown) to think about these risks.

What the St. Petersuburg paradox does is make the consequences grow at the same rate the probabilities are decreasing (either progressively doubling the payoff or, in the other examples (you) point out, doubling the "utility" to defeat concave utility arguments). This means that you cannot ignore any part of the deal; each part has just the same "moral expecation".

Lunch today with the New York Times revealed several interesting articles. To wit:

Rents in Manhattan are down, so now for only a little more than $2000 a month, you too can get a 730 square foot apartment with no closets at 10th and 56th. One of our co-bloggers is currently trying to find a place to live in New York City, but I'm not sure this news is totally heartening.

John Muhammed is representing himself in court, and there's disagreement about whether this is a good move. Argument is done mostly by analogy. Kevorkian is serving time for taking his case into his own hands; Zacharias Moussaoui has brought his trial to an impasse. It's not entirely clear whether he's doing this under the theory that it's harder to condemn a man to death when he's been talking to you for days, because he doesn't trust his lawyers, or because he has some stunt yet to play.

David Brooks thinks that John Edwards has the theory that will bring the Democrats out of darkness. Of course, I've always thought it's a bad idea for political parties and partisans to take tactical advice from people on the other side. That said, in the same spirit I'd like to suggest that the Democrats just suck it up and take marijuana decriminalization under their portfolio, to bring the mighty (ha ha) electoral weight of the Libertarians behind them.

The Boston Police, uncontent to let the Yankees leave town unpunished, are pursuing charges against Jeff Nelson and Karim Garcia, who seem to have beaten the tar out of some poor Red Sox groundskeeper. Much as I suspect that this case isn't being pursued for entirely neutral reasons, thugs don't become less so just for wearing jerseys. (Well, except in football).

A pacifist college student snuck dangerous things (bleach, box-cutters) onto Southwest Airplanes and is now facing charges in federal court. On the one hand, it seems silly to pursue serious a very serious penalty against him, since his intent was pretty clearly unmalicious. On the other hand, did he really have to leave them there for a month? (And what does it say about Southwest that they don't ever clean out their bathrooms thoroughly enough to find a box cutter?) I mean, after all, imagine if you were an unarmed nut with terroristic impulses, and just happened to be digging around under the sink, where Lo and Behold! the weaponry you needed to carry out a hijacking was awaiting you. Okay. I read too many novels.

Linda Greenhouse notes that the Court's returning (yet again) to the question of what exactly judges get to decide instead of juries.
According to Ms. Greenhouse, the question essentially boils down to whether Ring v. Arizona (which said that "aggravating factors" necessary to apply the death penalty must be found by juries rather than judges) applies in non-capital cases. I don't know enough to know if that snapshot characterization is right, but I have read Ring, and if so, this could be quite a fascinating case, especially for Justice-watchers.

Ring had a pretty odd line-up with Scalia, Thomas, Kennedy, Ginsburg, Souter, and Stevens in the majority, Breyer concurring in the result, Scalia and Kennedy concurring in more than just the result, and O'Connor and Rehnquist dissenting. "Death," as any 8th Amendment scholar can tell you, "is different," so it's not at all clear who will jump what side when the dust has cleared. Well, it's fairly clear that Scalia would be happy to apply Ring in non-capital cases (he writes "I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives–whether the statute calls them elements of the offense, sentencing factors, or Mary Jane–must be found by the jury beyond a reasonable doubt."), and that O'Connor and Rehnquist wouldn't be. Justice Kennedy's concurrence says that stare decisis is the key issue for him here.

While Justice Breyer voted for the Ring result-- that juries rather than judges got to decide-- he did so because death was involved. It's unlikely he'd do so in another context:

. . . I cannot join the Court’s opinion. I concur in the judgment, however, because I believe that jury sentencing in capital cases is mandated by the Eighth Amendment.

This Court has held that the Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty. . . Otherwise, the constitutional prohibition against “cruel and unusual punishments” would forbid its use.

I add one further point, lest the holding of today’s decision be confused by the separate concurrence. Justice Breyer, who refuses to accept Apprendi . . . nonetheless concurs in today’s judgment because he “believe[s] that jury sentencing in capital cases is mandated by the Eighth Amendment.” While I am, as always, pleased to travel in Justice Breyer’s company, the unfortunate fact is that today’s judgment has nothing to do with jury sentencing. What today’s decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so–by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase. There is really no way in which Justice Breyer can travel with the happy band that reaches today’s result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.