Maryland has passed a special insurance rule that would require businesses with more than 10,000 people on the payroll to spend at least 8% of their payroll on health benefits or else tithe it to the state's funding for indigent health care. I confess that as a logical matter I fail to understand why champions of the poor champion this measure-- from what I can tell it doesn't require Wal-Mart to pays its workers any more, it just requires it to pay its workers in a good rather than in flexible cash. I suppose the state's reason for wanting the measure is that it knows that as a practical matter it knows that it will be forced to provide health care where the employers do not, so it is perfectly happy to see employee wages reduced 8% in exchange for some health-care in order to save money at the state treasury later. But if that's right, it means a marginal loss for workers, a marginal loss for Wal-Mart, and possibly a marginal gain for the Maryland taxpayer. A more sophisticated economist could try to think through the incidence more carefully than that.

Anyway, of arguably more general interest is that the law affects only Wal-Mart, at the moment. Three other employers meet the 10,000 person threshold, but already lay out more than 8% of their payroll on health care (presumably, although I have not checked, because of the dumb tax-breaks that come from compensating employees in this way). Some suggest that this makes the law constitutionally suspect, but I wouldn't hold my breath for an Olech claim here.

I was just struck because this is not the first time Maryland has passed a generally-worded economic regulation that in fact affected only one corporation. [There, of course, the Supreme Court insisted that the power to tax was the power to destroy (and therefore, oddly enough, that the power had to be revoked generally, but just when it was used destructively). Wal-Mart, of course, does not receive the same treatment.]

UPDATE: As usual, skepticism and good points from PG. As I understand the law-- which is badly-- if Wal-mart pays $1000 in payroll, it now must also pay $80 in employee healthcare. This means that if Wal-mart currently compensates an employee with $1000, it can now instead pay $926 and $74 worth of employee healthcare and fulfill its obligaitons. Right?

Perhaps they do not go so far
As we who stay, suppose—
Perhaps come closer, for the lapse
Of their corporeal clothes—

It may be know so certainly
How short we have to fear
That comprehension antedates
And estimates us there—

Dickinson, 1399

Judge Posner describes the (unpleasant) conditions of Supermax prisons causing Dan Filler to question whether Supermax prisons are inherently or frequently cruel and unusual punishment, or at least whether legislatures ought to be required to make a clear-statement authorizing placement in them.

While few people seem interested in returning to the original understanding of the Eighth Amendment, it is worth drawing out an implication. If it is right that the Eighth Amendment forbids what the British understood to be "Cruel and unusual" punishments-- i.e., punishments made up by the judge rather than provided for by statute-- it would seem reasonable to think that this justifies a more searching judicial inquiry into the prison process. This would not be a substantive inquiry into whether or not the given infliction of nastiness on a given prisoner was justified by some allegedly neutral penalogical goal-- instead, this would be a sort of anti-Chevron administrative law review, or special penalogical non-delegation doctrine, designed to ensure the usualness of the imposition of Supermax facilities.

What exactly such a doctrine would look like is unclear, and made less clear by the relative paucity of penal imprisonment at the time of the writing of the 14th and 8th Amendments, but it does seem to me a not-unreasonable inference to draw from the original understanding of the Eighth Amendment.

Earlier this week, Ethan Leib commented on Justice Alito's suggestion that 5-4 decisions should be entitled to less precedential weight than unanimous ones. Leib suggested that it was "rare that anyone openly articulates this idea," but alludes to a comment by Professor Eskridge criticizing Justice Rehnquist's articulation of it. For what it's worth, that articulation was in the form of a majority opinion of the Supreme Court in Payne v. Tennesse, where Rehnquist gave, among other reasons:

Booth and Gathers were decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions.

Ms. Cora Styles, yeast geneticist and technical expert, passed away Tuesday, 17 January 2006.