I’m back from a speaking swing through Nebraska. At the University of Nebraska College of Law in Lincoln, I spoke about food and drink paternalism as exemplified by Mayor Michael Bloomberg’s initiatives in New York, with Prof. Steven Willborn providing a counterpoint from a more liberal perspective. At Creighton University Law School in Omaha, I spoke (as I often do) on the ideological state of the law schools, drawing on my 2011 book Schools for Misrule, with commentary from Profs. Ralph Whitten and Sara Stadler.
Both events were well attended but I was especially pleased at the strong turnout for the talk in Lincoln on food and the nanny state, a new speech I hadn’t tried out before on a general audience. Here’s a description:
The public is increasingly in revolt against “nanny state” interventions, from Mayor Bloomberg’s attempt to limit soda sizes in New York, to efforts to ban Happy Meals in San Francisco. Some thinkers dismiss concern about paternalism as merely trivial and personal, not on a par with issues acknowledged as “serious” such as police abuse, free speech, surveillance, and the proper functioning of the legal system. Left unchecked, however, the project of paternalism quickly generates very serious problems in each of those other areas: it gives police and enforcers great arbitrary power, hands a special government megaphone to some speakers while stifling others, funnels uncomfortably personal information into government hands, and fuels abusive litigation. No matter what you think of potato chips, if your interests are in liberty and good government, you should be paying attention.
I’m next scheduled to speak on the food police Sept. 23 at a Heritage Foundation panel discussion with Baylen Linnekin, Nita Ghei, and J. Justin Wilson, hosted by Daren Bakst. Details here. More on my fall speaking schedule here.
Aside from the important employment law implications linked last week in this space, the American Medical Association’s decision to reclassify obesity as a disease has implications for Medicaid and private reimbursement of therapy (“now coverage policy must catch up to that consensus,” exulted an officer of the American Society for Metabolic and Bariatric Surgery) and more pervasively for nanny-state initiatives: “Already, Harold Goldstein, executive director of the California Center for Public Health Advocacy, has cited the AMA declaration to boost his group’s efforts to ban junk food and tax soft drinks.” [Mike Tanner] (& welcome Joe Palazzolo, WSJ Law Blog readers)
My new op-ed at the Daily Caller is their “most shared” this morning. Excerpt:
On Monday, Judge Tingling struck down the soda ban in a sweeping opinion that does everything but hand Mayor Poppins his umbrella and carpetbag. This wasn’t just a temporary restraining order putting the regulation on hold for a few weeks. The judge struck down the ban permanently both on the merits (“fraught with arbitrary and capricious consequences”) and as overstepping the rightful legal powers of the New York City Department of Health…
[For] the mayor and his public health crew… the biggest reproach in the decision isn’t in being found to have gotten the facts wrong, it’s being found to have violated the law.
And if anyone is expected to know and play by the rules, it’s a nanny.
Michael Grynbaum, New York Times:
[Bloomberg's] administration seemed caught off guard by the decision. Before the judge ruled, the mayor had called for the soda limits to be adopted by cities around the globe; he now faces the possibility that one of his most cherished endeavors will not come to fruition before he leaves office, if ever. …
The measure was already broadly unpopular: In a New York Times poll conducted last August, 60 percent of city residents said it was a bad idea for the Bloomberg administration to pass the limits…
Ross Sandler, a professor at New York Law School, said city laws deemed “arbitrary and capricious” had frequently been reinstated upon appeal.
The Times also profiles Judge Tingling and reports on reactions by New Yorkers in the street (not favorable toward the ban). Coverage from yesterday, including my podcast with Cato’s Caleb Brown, here. NYU’s Rick Hills, as often happens, takes a different view. (& Point of Law; and more) Update: as of March 15 my Daily Caller piece has been recommended on Facebook 3,700 times, surely a record for me.
In a sweeping decision, trial court judge Milton Tingling has struck down the ban on sugary drinks decreed by the New York City Department of Health, which had been scheduled to go into effect tomorrow. I discuss the ruling in a Cato podcast above. I’m also quoted by Jillian Kay Melchior at National Review Online:
It was a sweeping ruling, because the judge said not only was the ban arbitrary and capricious, but it also went beyond the public-health agency’s powers under the statute. It meant that, even if Bloomberg went back and got a better factual justification for it, he had no legal right to do it. The agency just plain lacked the power. It means that the powers that public-health agencies claim because of emergency dangers like a raging epidemic — they don’t get to rule by dictate about other elements of our life that are not emergencies.
Other coverage: New York Post, CBS New York, Moin Yahya, David Henderson. As the law’s effective date approached, city residents were learning more about its unpleasant effects on such everyday activities as ordering beverages to split with pizza delivery, mixers at nightclubs, table pitchers to serve kids’ birthday parties, and, most recently, coffee, the subject of a virally famous poster from the local Dunkin’ Donuts operation.
P.S. And now I’ve got a Daily Caller piece out on the decision. See follow-up post here.
A press release from George Washington University Prof. John Banzhaf describes his latest stunt as follows: “Undergrads Required To Lobby For Obama Policy.” In this case, it’s more for a policy identified with Michael Bloomberg — limits on the size of sweetened drinks — which students were asked to promote in letters to their own lawmakers. I’ve got a write-up at Cato at Liberty, where I list some of the other occasions on which Overlawyered readers have met the gadfly professor. (& Katherine Mangu-Ward, Center for Consumer Freedom) Update: many reactions, including another press release from Prof. Banzhaf.
“That is quite a correction in today’s Times to Mark Bittman’s column the other day about sugar and diabetes,” notes Ira Stoll. Bittman’s column began with the striking opener “Sugar is indeed toxic” and went on to promote a far-reaching regulatory crackdown on sweetened foods. But it soon came under sustained attack from various commentators (more) for misstating recent findings about the health effects of sugar in the diet; it’s true that sugar intake tends to cause obesity and obesity itself causes diabetes, but it’s a separate, unresolved question whether sugar by itself instigates diabetes through some mechanism of action not common to other highly caloric foods.
Here is the correction:
Mark Bittman’s column on Thursday incorrectly described findings from a recent epidemiological study of the relationship of sugar consumption to diabetes. The study found that increased sugar in a population’s food supply was linked to higher rates of diabetes — independent of obesity rates — but stopped short of stating that sugar caused diabetes. It did not find that “obesity doesn’t cause diabetes: sugar does.” Obesity is, in fact, a major risk factor for Type 2 diabetes, as the study noted.
On Sunday the New York Times published a long, breathless screed attacking food company marketing (“Inside the hyper-engineered, savagely marketed, addiction-creating battle for ‘stomach share.'”) The article itself furnishes an example of empty, hype-fueled journalistic calories, or so I suggest in a new op-ed at the Daily Caller.
On Friday at Duke Law School, the Duke Forum for Law and Social Change is giving its annual symposium, this year’s subject being legal approaches to obesity prevention. The organizers have kindly invited me to participate in a late morning panel, where my views are likely to differ from those of the other participants; details here.
If you’d like to book me to speak at your own event or campus, contact me directly at editor – at – overlawyered – dot – com, through the Cato Institute’s Events staff, or, if you’re associated with a Federalist Society chapter, through the Society’s national office.
Probably a parody: New York mayor announces ice cream buyback program [Alex Tabarrok]
Taking advantage of the media bubble arising from the announced shutdown of Hostess snack-cake operations, Rep. Dennis Kucinich (D-Ohio) is back with a bill proposing to deny the deduction as ordinary business expenses of money spent advertising kids’ snacks. Kay Bell and Kelly Phillips Erb apply deserved ridicule (via Paul Caron/TaxProf).
Plus: Baylen Linnekin on Denmark’s planned repeal of a pioneering fat tax (earlier) and the rejection by voters in two California cities of soda taxes.