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Jon Adler has an interesting AEI piece about the Precautionary Principle (Adler and Somin also blog about it). Here is the intro:

It’s better to be safe than sorry. We all accept this as a commonsense maxim. But can it also guide public policy? Advocates of the precautionary principle think so, and argue that formalizing a more “precautionary” approach to public health and environmental protection will better safeguard human well-being and the world around us. If only it were that easy.

Simply put, the precautionary principle is not a sound basis for public policy. At the broadest level of generality, the principle is unobjectionable, but it provides no meaningful guidance to pressing policy questions. In a public policy context, “better safe than sorry” is a fairly vacuous instruction. Taken literally, the precautionary principle is either wholly arbitrary or incoherent. In its stronger formulations, the principle actually has the potential to do harm.

Efforts to operationalize the precautionary principle into public law will do little to enhance the protection of public health and the environment. The precautionary principle could even do more harm than good. Efforts to impose the principle through regulatory policy inevitably accommodate competing concerns or become a Trojan horse for other ideological crusades. When selectively applied to politically disfavored technologies and conduct, the precautionary principle is a barrier to technological development and economic growth.

It is often sound policy to adopt precautionary measures in the face of uncertain or not wholly known health and environmental risks. Many existing environmental regulations adopt such an approach. Yet a broader application of the precautionary principle is not warranted, and may actually undermine the goal its proponents claim to advance. In short, it could leave us more sorry and even less safe.

I haven’t given the precautionary principle too much thought in the health and environmental regulatory context, but it jumped out at me as directly implicating gun control policies. In the Constitutionality of Social Cost, I discuss how some view the right to keep and bear arms as if it were a nuisance, that should be abated the same way a polluting smoke stack would–by regulating it, only with concern for social cost:

Viewing the Second Amendment in Coasean terms helps toilluminate the value, or lack thereof, the Supreme Court hasassigned to this right. It is troubling to consider gun ownershipas a nuisance that can be abridged because it may result inharm. If the Second Amendment is in fact an individual constitutionalright, then it should not be treated as if it were a nuisancethat can be enjoyed only when judges think it is notdangerous. No other constitutional right is held to such a flimsystandard. As demonstrated below, a careful look at the constitutionalityof social cost in the contexts of the First, Fourth,and Fifth Amendments reveals that the courts are much lessinclined to consider the possible harm A may cause B whenconstruing whether B can limit the rights of A.

I’ll have to give some more cost to the precautionary principle.

Call it Public Shaming in the Stocks 2.0. From TNW:

Social activist Fahmi Fadzil has been ordered by a court in Malaysia to apologize on Twitter 100 times, after claiming in a tweet back in January that one of his friends, who was pregnant, had been poorly treated by her employers at a magazine run by BluInc Media.

…

The case was settled this week, and it seems he has escaped a heavy fine, but he has agreed to apologize 100 times over three days on Twitter.

CTRL-C + CTRL-V FTW

H/T Gizmodo

I first starting to pay attention to basketball in 1993-94 (I was about 9) when the Knicks (my hometown team) went to the finals. After that season, the Magic led by Shaq, along with Penny Hardaway (remember him!), Dennis Scott, and Nick Anderson, took over the Jordan-less Eastern Conference, flummoxing my Knicks at every turn. I have fond memories of Shaq, and wish him a happy retirement.

Shaq, who announced his retirement today, was drafted in the 1992 draft. By my count, he was the longest-serving active player in the NBA at 19 seasons. The new leader is none other than Jason Kidd, who was drafted in the 1994 NBA draft. Kidd is the starting PG for the Mavs, currently in the NBA Finals. Also from the 1994 NBA draft is Juwan Howard, who is a reserve for the Eastern Conference Champion Miami Heat. Grant Hill, also picked in the 1994 draft, is on the Suns. Why do I count Kidd first? Well he was the #2 pick. Hill was #3 and Howard was #5. (And remember who was #1? Glenn Robinson!). So technically, Kidd’s tenure is longer, albeit by a few minutes between David Stern announcing the pick. That, and Grant Hill has missed so many games.

It’s funny how so many players from my early NBA memories are still playing.

I just posted an updated version of my article,  Outfoxed: Pierson v. Post and the Natural Law, which is forthcoming in the American Journal of Legal History, to SSRN. This article considers Pierson v. Post–remember that case with the foxes on the beaches of Long Island from Property Class–and how the Court relied on natural law to arrive at the holding. Here is the abstract:

Think back to first year property class. You are a bright-eyed 1L, and one of the first cases you read deals with hunting foxes on the beaches of Long Island, New York. The fact pattern seems obscure enough, but Pierson v. Post is the seminal case used to teach generations of law students about the acquisition of property. The interest in Pierson has recently been reinvigorated thanks to the uncovering of the original record of this case. Last year the Law and History Review dedicated an entire issue to this famous foxhunt.

The holding in Pierson v. Post has been accepted as gospel for first year law students and property scholars alike — but how did the Court arrive at that conclusion? In 1805, New York did not have any statutory or common law to govern this dispute, so the majority and dissenting opinions turned to the natural law. The Judges relied on the writings of Pufendorf, Grotius, and Barbeyrac.

An analysis of the court’s reliance on the natural law writers has been neglected in property scholarship. This article aims to fill that gap. The natural law jurists wrote at great length about how to obtain a property right to a wild animal. This article provides the first thorough digest of these writings, highlights where the jurists agree and disagree with one another, and examines how faithfully the Pierson court construed their writings. Additionally this article shows how the holding exemplifies the common law court’s desire to promote certainty, and shows the congruence between the natural law and economic efficiency. By gaining a more complete understanding of the competing arguments of these jurists, Pierson v. Post is revealed to be a much more sophisticated opinion than we all thought as 1Ls.

From Roll Call:

The rock-musician-turned-activist Bono wants you to know: You, too, can be a lobbyist, and all you need is an iPhone.

ONE, the anti-poverty group co-founded by Bono, launched an app Wednesday that lets iPhone users call their lawmakers at the touch of a button. It even provides a script of what to say.

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By making it easy for someone to lobby while in line at the post office or while watching television, the group expects to have many more of its 2.5 million grass-roots supporters involved in influencing policy.

I wonder what the script will say? Bono is the record!