… but air conditioners, waste treatment plants, incinerators, heat-generating buildings where open fields used to be, and random fluctuations are neither.

H/t: Jeff Soyer.

Time to play “spot the disconnect.” Sam Isaac Edwards (‘hat tip: Uncle) argues that since he himself is a dumbass who got liquored up and shot his fridge, no stone cold sober individual should ever be allowed to carry a weapon in any location where others might consume alcohol.

Coming next: a ban on driving cars while others on the road may be intoxicated.

One of the most oft-quoted – and IMNSHO lamest – arguments in support of First Amendment “Reform” is that draconian restrictions on campaign contributions and ads are okey dokey under the First Amendment because “money is not speech.” Technically, of course, it’s not, but has anyone seriously considered the implications of the theory that money can be divorced from what it is spent on? Let’s try applying McCain-Feingold logic to other cherished constitutional rights:

1. Congress can pass a law forbidding any resident of a state that voted for McCain/Palin in 2008 to spend any money on a marriage license or any aspect of a wedding. Courts have ruled that marriage is a fundamental right. May sound a bit tough on marriage, but no matter: money is not marriage!
2. DC and Chicago find a clever way around the ruling in Heller and the expected ruling in McDonald. Can’t ban handguns? No problem. Just pass an ordinance forbidding any resident to spend any money on any guns, ammunition, etc. No constitutional defect there; money is not guns!
3. No one likes a justice system that works for the rich but not the poor, so rather than having justice for The Rich (TM), let’s tax the hell out of everyone to pay for free legal services for all who meet specified criteria, and then make it illegal for anyone to pay an attorney on his own. No problem there; money is not due process!
4. OK, so maybe this “Money is not X” theory doesn’t work well outside the confines of the First Amendment. Well, surely it applies to the rest of the First Amendment itself, right? To test that theory, let’s pass a law providing for “clean” religion. To keep religions “clean,” the government will provide public funds to every religious organization that meets certain criteria, and then forbid every citizen to donate any of his own money to any of these organizations. No problem with that proposal, right? Money is not religion!
5. Last but by no means least, let’s not forget the most important constitutional right of all, the one the framers considered too important to even mention in the Constitution, the right to choose so long as that choice is to obtain an abortion. South Dakota gives up the losing battle of trying to ban it outright, and instead passes a new law making it illegal to spend any money on an abortion, or on transportation to or from another state for purposes of obtaining an abortion. Surely Justices Stevens, Breyer, Ginsburg and Sotomayor would have no problem with that law, right? Money is not abortion!

Or we can use a teensy bit of common sense and recognize, as only a bare majority of our nation’s top court did, that while money technically is only property, it is fungible property which, as a practical matter, embodies whatever it is you choose to spend it on. And when a restriction on money specifically targets money spent on the expression of political ideas, then money sure as hell is speech. Thank God that a bare minimum of Supreme Court Justices understand this.

So implies Nate Silver of 538 (h/t: Uncle) though he doesn’t quite come out and say that. Nate writes:

The table below details the divorce rates for the 43 states that reported their divorce statistics to the CDC in both 2003 and 2008. It is calculated by taking the total number of divorces in the state that year, and dividing it by the number of married persons, as reported by the Census Bureau. The result is then multiplied by two, since each divorce involves two people. This is different than how the divorce rate is sometimes calculated, which may be as a share of the overall population rather than the number of married persons; I prefer my approach because it will not penalize a state for having a lot of marriages (and therefore more opportunities for divorce).

I’ll grant Nate this much: calculating a state’s divorce rate as a percentage of the total population, rather than as a percentage of married people, is too stupid to consider. Of course the only divorce rate that means anything is the rate among those who could get divorced if they wanted to. Xrlq 2.0 and 3.0 both have zero divorce rates amongst them, but so what? The greater point, which Nate seems to overlook, is that the decision of certain couples to marry in the first place, and of others not to, is not random. In State A, where cohabitation is largely frowned upon, a marginally committed couple may choose to marry whilst a similarly situated couple in State B, where cohabitation is commonplace, may not. The likelihood of both couples breaking up is roughly the same, and probably much higher than the odds of a breakup between a more committed couple who would be married either way, but if both couples break up, the first couple will artificially inflate State A’s divorce rate vis a vis B.

Where Nate really goes off the deep end, though, is in distinguishing states whose laws simply do not provide for gay marriage from states whose voters have affirmatively acted to prohibit it:

Overall, the states which had enacted a constitutional ban on same-sex marriage as of 1/1/08 saw their divorce rates rise by 0.9 percent over the five-year interval. States which had not adopted a constitutional ban, on the other hand, experienced an 8.0 percent decline, on average, in their divorce rates. Eleven of the 24 states (46 percent) to have altered their constitutions by 1/1/08 to ban gay marriage experienced an overall decline in their divorce rates, but 13 of the 19 which hadn’t did (68 percent).

The differences are highly statistically significant. Nevertheless, they do not necessarily imply causation. The decision to ban same-sex marriage does not occur randomly throughout the states, but instead is strongly correlated with other factors, such as religiosity and political ideology, which we have made no attempt to account for. Nor do we know in which way the causal arrow might point. It could be that voters who have more marital problems of their own are more inclined to deny the right of marriage to same-sex couples.

The elephant in the room, which Nate scoots right by, is that constitutional bans on gay marriage have passed handily in every single state whose voters have been allowed to vote on them. Religiosity, political ideology, concerns about one’s own marriage, etc. may all play some role in determining the margin by which a constitutional or initiative ban on gay marriage may have passed in any particular state (a factor Nate does not examine) but the only factor determining whether a state has a ban gay marriage is the extent to which voters are or aren’t allowed to choose. Perhaps Nate’s real point is that if you allow people too much freedom of choice, they may choose to get a divorce?

It’s too bad that California is not included in the chart, as it would be the perfect state to prove whose theory is right. If mine is right, California should have a relatively low or declining divorce rate, as it’s a liberal state where uncommitted couples are free to shack up with little or no pressure to marry. If Nate is right, California’s divorce rate should be heading through the roof, as it’s the one state whose voters have acted not once but twice to prohibit gay marriage (though strictly speaking, CA hadn’t enacted a single constitutional ban as of 1/1/08, so perhaps Nate would skate on a technicality).

Easily the dumbest argument I’ve heard on the health care debate is that we should mandate health insurance because we mandate auto insurance. WS Journal letter writer Laura Young recently wrote:

People are required to have car insurance; why not health insurance? Personally, I’d rather insure my health than my auto. I can always get a new car, but my life is not as replaceable.

Neat, but no law requires you to insure your auto. If anyone requires you to insure your auto, it’s your lender or your lessor, and they’re doing it to protect their own interest, not yours. Apparently Ms. Young forgot that the mandatory part of auto insurance in most states is liability insurance, not comp or collision. And your liability insurance isn’t mandated to protect you; it’s mandated to protect the rest of us from you. Big difference. However, there does appear to be one important parallel between mandatory auto insurance and mandatory health insurance after all: neither mandate works.

Lameness points to the Ass. Press for noting that Massachusetts’s mandated health insurance “has passed legal muster” in the context of a discussion over whether a federal mandate would. Last time I checked, Massachusetts was a state, not a branch of the federal government.

My post on tortious interference with contract vs. alienation of affection led to an interesting discussion, but not really the one I was aiming for here, so let’s try one more time, taking this to a more abstract level. This is NOT about whether you support or oppose alienation of affection laws. If you want to weigh in on that issue, feel free to do so here, here or here (though if you do, know that A of A does not require the defendant to be romantically involved with a married person; anyone who encourages anyone else to divorce a third party is potentially liable). Setting aside the specific topics of divorce and breach of contract per se, is there any other X for which it can reasonably said that either:

1. It is morally acceptable to X, but morally unacceptable to encourage others to X; or
2. It is morally unacceptable to X, but worse to encourage others to X.

And if the answer to either #1 or #2 is “yes,” I’d really, really like to know why.

Bonus question: is there any other area of law apart from divorce and breach of contract, where either of the above principles is public policy? For example, does any state impose a stiffer penalty on those who suborn perjury than on those who commit it themselves? Punish the person who solicited a murder with death while the person who actually carries it out can only get life? Etc. The only other examples I can think of are drugs and prostitution. The former rests on the mildly paternalistic but perhaps defensible view that people who throw good money at a a bad habit don’t know what they’re doing, while those who profit from this bad habit do. The latter rests on the equally paternalistic, but fundamentally much sillier, notion that people who throw good money at a different bad habit do know what they’re doing, while those who manage to profit off that bad habit somehow don’t. Or is there some other, less ridiculous rationale for this disparate treatment that I’m missing?

Professor Louisa Degenhardt of the University of New South Wales has conducted a study determining that Australia, New Zealand and North America are the countries that consume the most pot. The study does not, however, say how much pot one must consume to think North America is a country.

A recent Texas case raises an interesting issue: if your home state says you aren’t married, but another state where you don’t reside says you are, can you get divorced anywhere?

[Pete] Schulte said Texas was the only place where they could file for divorce because they live in the state and have established residency.

“I have a feeling there are going to be opponents who say this is going to allow the floodgates of gay marriage to open, and I disagree with that,” he said. “Gay marriage and gay divorce are two seperate [sic] things.”

Indeed they are. Whoever came up with the brilliant idea that any young and stupid couple can marry anywhere in the world and have it recognized everywhere, but the same older and wiser couple can’t undo that marriage in any state but their state of residence – not even the state that solemnized the marriage in the first place?

And since I’m ranting about stupid laws aimed at inconveniencing the dissolution of marriages that weren’t going anywhere, anyway, maybe now is a good time to ask a question I’ve been sitting on for a while. For those dinosaurs who still support “alienation of affection” lawsuits on the theory that they protect marriage, which of the following best summarizes your position?

1. Allowing the ex to sue the next preserves the original marriage because we’d all divorce someone who annoys us slightly, but no one would ever divorce someone vindictive enough to sue your next SO.
2. Allowing the ex to sue the next protects marriage because North Carolina’s divorce rate is __% lower than that of South Carolina, Southwestern Virginia or Tennessee, which don’t have alienation of affection laws anymore [or a similar comparison between downstate Illinois and Indiana or Iowa.]
3. Allowing the ex to sue the next – but not to sue the departing spouse – makes sense because if the cheating spouse is a woman, well, women can’t really make choices for themselves, anyway. And if the cheating spouse is a man, well hell, what man could resist a chance to bang some hot chick who wants to lure him away from his wife. It’s not his fault for violating his own wedding vows, it’s her fault for giving him an opportunity to violate vows she herself never agreed to at all.
4. OK, I admit it, allowing the ex to sue the next but not the cheater himself is downright retarded, and there’s no evidence that allowing anyone to sue either his ex or his ex’s next will do a fracking thing to preserve the institution of marriage. Never mind that. The law is meant to protect marriage, so who cares what the frack it actually does?
5. Other (specify).

While the Administration head fakes and declares the public option “dead” (meaning it either won’t come to life quite as soon as they had hoped, or perhaps that it will but will be “private” in the most technical sense imaginable), others in the dextrosphere and beyond advocate competing reforms of their own. Many good ideas there, but I think they can be distilled to three:

1. Remove the tax code provisions that favor employer-paid health care over health care paid for by the individual.
2. Don’t buy insurance to cover risks you can afford to bear yourself.
3. Don’t sell “insurance” to cover “risks” that are certain to happen.

The first issue is a tax problem so simple even Congress could fix it. That is to say, they could “fix” it if they were serious about “fixing” health care in the sense that you take your car to get it “fixed,” rather than their current interest in “fixing” it more in the sense of “I’ll fix that dirty, rotten so-and-so.” Currently, health insurance provided by your employer is tax-free from square one, while health insurance and health services paid for by you only become tax deductible above 7.5% of your AGI. I have yet to hear anyone articulate a sound (or even unsound) reason why that should be so. Remove that disparity, and now it’s just as cheap for you and your employer to negotiate whether you want it to provide more health benefits, or less health benefits and cash instead. If employers can negotiate group rates that make it worthwhile to get health benefits from work without today’s tax advantage, great. If they can’t, we’ll take the extra cash and use it to buy our own health insurance, thankyouverymuch.

The second issue is not limited to tax or public policy. People are risk-averse, and have a tendency to buy overpriced extended warranties on electronics that will become obsolete, and pay higher premiums to avoid deductibles on the insurance policies they legitimately need. Insurance, like gambling, is a losing bet in the long run; the casino always wins. Whatever insurance you buy, find out that company’s loss ratio. That’s how much you can expect to get back on your dollar, and trust me, it will be south of 100%.^* A losing bet makes sense if you’re buying peace of mind to protect you against those risks which, while remote, would utterly wipe you out of they materialized. But if you’re insuring against risks that would merely annoy you and/or set you back a bit, you’re a sucker. In a word, buy “stuff that would kill me insurance,” not “stuff that sucks insurance.” Lots of things suck. Deal with it.

As to the third point, let me start by saying that while the fact that a purported “insurance” contract covers services you are certain to need may strain the definition of “insurance,” that doesn’t necessarily mean it’s a bad idea. The question is, does your “insurance” offer you some other, non-insurance reason to go through a health care insurer? If your HMO can negotiate a volume discount you’d never get on your own, or if it can negotiate other terms that are more favorable to its members than to the general public, that might be a reason to use a health insurer for routine medical care as well as catastrophic risks. But if these reasons aren’t there, you’re probably better off going it alone, and only insuring against catastrophic medical conditions that would otherwise wipe you out.

Which brings me to the subject line: health savings accounts. If your employer offers one, look into it. It’s the closest thing to free enterprise medicine there is … for now?

^*Interestingly, some insurers do have a combined ratio above 100%, which sounds like they should be losing money, but they aren’t because they make up the difference in investments. The expenses don’t help you as a consumer, though; only the loss component makes it back to you.

The latest hysteria on driving and cell phones is that talking on a cell phone while driving is supposedly just as dangerous as driving under the influence. This claim is based on a series of recent studies purporting to show that drivers talking on cell phones are four times more likely than the rest of us to cause an accident. Matt Richtel of the New York Times puts it this way:

Extensive research shows the dangers of distracted driving. Studies say that drivers using phones are four times as likely to cause a crash as other drivers, and the likelihood that they will crash is equal to that of someone with a .08 percent blood alcohol level, the point at which drivers are generally considered intoxicated.

Note the insidious passive voice. Rather than having the guts to come out and say “I, Matt Richtel, personally consider a driver with a .08 BAC to be intoxicated because X, Y and Z,” he simply dodges the issue and makes “generally considered” by that unknown “them.” No need to back up the allegation; just label it as accepted wisdom and be done with it.

Mr. Richtel have backed up his generally considered accepted wisdom by noting that .08 as a threshold is the law in most states today. However, that’s a fairly development, which was fueled more by aggressive lobbying by neoprohibitionist MADD than by any actual scientific developments. As recently as 20 years ago, .15 was the norm in most states, and a driver with a BAC of only .08 would not have been considered legally drunk in any state (at least, not based on his BAC – if they can prove you’re under the influence, they can charge you on that basis no matter how low your BAC). Then we all went MADD in the 1990s and voilà, now every driver with a .08 BAC is now considered legally “drunk,” whether or not he is, in fact, drunk. And now that every state has followed suit (under intense coercion by the federal government, but never mind that) and some states are talking of twisting the screws even further, it’s now accepted wisdom that everyone with a BAC of .08 is drunk.

Here is where one hysteria fuels another. Now that we’ve redefined “drunk” to include a large segment of drivers who are not in fact drunk, cell phone alarmists can now argue that talking and driving is just as dangerous as driving “drunk.” Which is probably true, in a sense. Some drivers with a BAC of .08 really are drunk; presumably, they are the reason this class of “drunks” causes four times as many accidents as the rest of us. Many more of these de jure drunks are de facto non-drunks; presumably they account for the fact that .08 BAC “drunks” cause only four times more accidents than the rest of us, rather than the much larger differential one might expect if they were all truly impaired. Ditto for cell phone conversations; some of us keep our calls short, avoid topics that are likely to get us deeply engrossed in the conversation, and generally avoid talking on the phone at all when traffic conditions are tough. Others just get on the phone and gab away, paying little attention to surroundings. Guess which group is causing the accidents?

Lastly, the evidence does seem to be clear that hands-free devices, while handy, are useless when it comes to preventing distraction-related accident. The risk isn’t that you’ll see a road hazard and waste too much time ditching your phone. The risk is that you won’t notice the conditions at all until it’s too late. Returning one last time to the tired DUI analogy, states that ban drivers from using hand-held cell phones while allowing them to use hands-free ones makes about as much sense as raising the DUI limit back to its traditional .15 threshold for those who drink fine wine or premium beer, while lowering it to .05 for those who drink Thunderbird or Coors.