Wednesday, April 23, 2014
I haven't had time to read it, but Paroline v. US, which came out today, is an interesting and hard case about causation and burdens of proof. Paroline illegally possessed a pornographic image of Victim as a child. A statute says offenders need to pay restitution. Victim's life was ruined by her knowledge that her image is spread all over the internet. So what should Paroline, the only one of thousands of offenders to be caught, pay? The Roberts dissent says he should pay nothing, because it's too hard to prove what damage is attributable to Paroline. That sounds reasonable to me in practice, but that difficulty is what makes this an interesting case for theorizing.
Monday, April 21, 2014
I'm on a bankruptcy email list that's lately had some interesting discussion of the liability of the new General Motors for torts caused by the old General Motors before bankruptcy but not known at the time to the victims. What happened was that old GM entered bankruptcy in 2009 and sold most of its assets to the new GM with a disclaimer of liability for the new GM, under the approving eye of the bankruptcy judge. Old GM retained some assets and was eventually liquidated, with a trust fund being set up to pay tort victims. The question is whether the disclaimer in the sales contract has any legal effect, and whether under general principles of "successor liability" new GM is liable for old GM's torts.
I don't know the law of successor liability. I did find a powerpoint presentation by Amit Singh, a practitioner. Google Scholar turns up a few titles that sound like economic analyses. Does anybody know if these are the best articles? This strikes me as a potentially useful and interesting research area.
Taking Future Claims Seriously: Future Claims and Successor Liability in Bankruptcy F Tung - Case W. Res. L. Rev., 1998 .
Corporate Successors under Strict Liability: A General Economic Theory and the Case of CERCLA MB Fox - Wake Forest L. Rev., 1991.
Successor Liability and Asymmetric Information AH Choi - American Law and Economics Review, 2007.
Thursday, April 17, 2014
Slate’s Jordan Weissman has an interesting story on CBO’s projections for the profitability of the three main federal direct student lending programs. The projections are reasonably big -- about $15 billion per year, of which $12 billion comes from graduate (including law school) loans. That’s about the same money we currently give up by allowing homeowners to deduct the cost of their mortgages (see here and scroll down to p. 35). Does that combination of borrowing rules make sense? Should government profit off of some people to give a tax break to others?
I think of the student loan programs as a really big bake sale.
Wednesday, April 16, 2014
Paul Krugman is moving from Princeton to City University of New York to an inequality institute. Here is his announcement in his column "The Conscience of a Liberal":
So, why am I doing this? It is in no sense a commentary on Princeton, which has been a wonderful place for me professionally and personally. In particular, I can’t praise Princeton’s intellectual quality enough: it has been a great honor to be affiliated with a superb public policy school and an equally superb economics department.
Instead, my move reflects some hard thinking about how I can best make use of my time....
... the answer seemed clear: more and more of my work has focused on issues of income inequality, and nobody does more important work producing the hard data on which all of this work relies than the Luxembourg Income Study, directed by Janet Gornick, professor of political science and sociology at the Graduate Center of CUNY. So I approached Janet about the possibility of some kind of affiliation with LIS that would give me both an office and the ability to interact with the excellent group LIS has assembled in New York.
"So why am I doing this?" Well, a salary of $225,000/year combined with a courseload of one seminar per year (after the first year's zero teaching) might have something to do with it. He's worth it on the market, of course, but conservatives are having a lot of fun with the story of the former Enron consultant's latest career move.
I don't know whether this is hypocritical, because I don't know details of what Professor Krugman thinks about income inequality. If his position is the common one of liberal economists that inequality in income is unjust but should be tolerated because human nature requires monetary incentives to encourage effor , then he should not himself engage in injustice, even if his ideal policy position would still allow other, selfish, people to earn high salaries so as to encourage them to work harder. I'd make an exception if he donates most of his income to charity, but I wouldn't give him the benefit of the doubt on that.
Am I correct, though? Is it hypocritical for someone who thinks income inequality is unjust to accept more than the pay of the average American? (As a Christian, I am troubled about my own high salary, but the Christian has no objections to inequality per se, only to love of money and poor use of it. We can leave that discussion for another day.) Note that this moral question is different from the policy question. There is no hypocrisy in thinking that unequal income leads to poor social outcomes but accepting a high salary oneself, so long as you don't think there is any injustice involved, just as there is no hypocrisy in opposing tax breaks while taking advantage of them so long as they still exist.
Monday, April 14, 2014
Many on the Right have been discussing the Bundy Ranch Confrontation, which seems to have ended with the surrender of the federal government. Breitbart is one place to look, and has links to legal documents. Mr. Bundy has not been paying his grazing fees for 20 years or so, because he thinks the State of Nevada is the legitimate owner of the land, not the federal government. That is clearly a crazy position, but many people sympathize with him because he is a rancher whose family has been there for generations. He also seems to be arguing that anyone should be able to graze there for free. To me, his position seems literally communist (as does the associated fact that as it turns out he's the one who ends up making all the money from the communist policy). From the blog comments I've seen, though, many western libertarians actually don't believe in property rights and do believe they should have the right to live off of the government. Conservative commentators that I've seen treat the subject are a bit perplexed as to what to say, since they realize the situation but don't want to call other conservatives communists.
If everyone were forced to learn law and economics, we wouldn't have this problem. Then people would realize that government ownership, common ownership by neighbors, and lack of property rights are three different things.
Sunday, April 13, 2014
For readers who may not already be on the ALEA e-mail distribution list, information on this year's meeting of the American Law & Economics Association (to be held May 8-9 in Chicago), can be found at their web site. As the site notes, those registering after April 30 pay a $25 late registration fee. Or should that be a $25 early-registration bonus?
Wednesday, April 9, 2014
Everyone dreads a tax audit. Some people have cheated on their taxes, so they obviously are running scared. Others have pushed close to the line in making deductions, and expect to have some of them disallowed. Still others need have no fear of paying more, but have to expend time and effort showing that to the auditor.
This is easily remedied. Our objective is to catch the cheaters, make the aggressive deductors step back from the line, and reward the good citizen who pays just what he’s supposed to. Let’s start with the good citizen. I propose that we pay anyone who gets a clean audit. If you are audited, and the auditor gives you a clean bill of health, he also presents you with a $1,000 check. Perhaps it should be more, perhaps less, but the aim should be to make someone pleased with the chance to prove his honesty to the government.
Will the auditors manufacture defects in your return so as to block your bonus? They could, but it’s not their $1,000; it’s the Treasury’s. The Treasury could announce a policy of rewarding auditors who find defects, but there’s no way that policy wouldn’t become public, and the Treasury is, after all, a political organization. Anyway, if the Treasury is out to make people pay illegally high taxes, that’s a problem regardless of whether we adopt the bonus scheme; even now, Treasury could instruct its auditors to charge fake taxes and increase the revenue.
What about the second group--- the aggressive deductors? With this scheme in place, they’d have less incentive to be so aggressive. It would be easier to be conservative with deductions and take the occasional audit bonus instead.
And what about the third group--- the cheaters? They, too would have more incentive to clean up their act. But we might combine the bonus program with stepped-up penalties, as a way to make it revenue neutral. It’s hard to object to tax cheats paying more so that honest taxpayers bear less of the burden of the audits the cheats make necessary.
Monday, April 7, 2014
Adele Morris, fellow and policy director for Climate and Energy Economics at Brookings, has posted on the Brookings Tax Policy blog, TaxVox, a discussion of the possibility that the EPA, in issuing a proposed rule due out in June on what states may do to reduce greenhouse gas emissions under section 111(d) of the Clean Air Act. She thinks that EPA should, and maybe could, allow states to implement a state carbon tax to comply with whatever rule EPA issues in June. There is much unexplored territory here, and I expressed skepticism as to whether a statute that is fairly detailed in its prescriptions, and that has been interpreted by courts to be restrictive in its menu of allowable policies, could be interpreted to allow for something as radically flexible and sensible as a carbon tax. I remain skeptical, but hopeful. It would be politically meaningful if some red states actually seized on a carbon tax as being more efficient and sensible than the usual command-and-control-like standards issued under the Clean Air Act, while Congress continues to fight last century's fight (whether climate change is a problem or not), and continues to oppose carbon taxes on emotional grounds, not economic ones.
Suppose that a lawmaker is designing a system of legal rules, such as a tax code or financial regulations. Regulated parties have an incentive to find and exploit loopholes, as long as the expected benefits exceed the expected costs. These search/exploitation investments are purely redistributive and thus wasteful. A loophole depends both on the legal rule and the characteristics of the regulated parties. One can envision a legal code drafted in two steps. In its first iteration, the code will be replete with loopholes that are easy to identify and exploit. Regulated parties that partake of the loopholes will reveal information about their types that the lawmaker will then use to draft a second iteration of the code, with fewer loopholes.
Most likely the lawmaker will need more than two periods to reduce loopholes to the optimal number. However, the point is that instead of drafting a system of rules that tries to minimize loopholes from the start, it is better for the lawmaker to strategically include loopholes that, when exploited, will reveal information. In fact, a lawmaker should use information-revealing-loophole-rules even when they are superfluous, from a purely regulatory standpoint.
Of course, sophisticated regulated parties will know that the lawmaker is trying to trick them into revealing information. If there are unsophisticated parties that are sufficiently similar to the sophisticated ones (in all things but their level of sophistication), the lawmaker can use the information revealed by the unsophisticated parties. If the number of sophisticated parties is large and a failure to exploit the loophole will put a party at a competitive disadvantage, then colluding to confuse the lawmaker becomes difficult due to collective action problems. But suppose that regulated parties can reach a self-enforcing agreement to collude—i.e., they agree not to exploit the loopholes. So be it: that was the goal all along.
In fact, a lawmaker can speed things along by announcing: “I have adopted a legal code with strategically placed loopholes. Please exploit them. Doing so will reveal private information about yourselves that I will use to redraft the code. My goal is to reduce the aggregate costs from loopholes. I just need your help, so I can do it efficiently. I will always include information-revealing-loopholes. So if you ever come across a loophole, ask yourself—‘Do I feel lucky?’”
Sunday, April 6, 2014
A while ago, in the beginning of the previous decade, as a doctoral student of law and behavioral economics, I was looking for a topic for my PhD dissertation and I had suggested my advisor to write on whether individual differences could be a factor in legal policy making.
Having studied the huge importance of individual differences and personality theories in psychology, I felt it has been a huge omission of the newly emerged law and behavioral economics. At the time, my advisor thought the idea is too premature and hence risky, and I have decided to study the interaction between law and social norms. A decade later I am pleased to see that the interest in individual differences seems to be on the rise. This interest appears to be developing from various directions.
Firstly, research on big data has led some to suggest the potential for a more fine-tuned approach to default rules. See for example, Porat and Strahilevitz (2013). Secondly the rising nudge approach obviously raises the importance of individual differences to a higher level, given the areas of life it attempts to regulate Sunstein’s (2013).
Thirdly, newly acquired knowledge about individual differences in areas such as risk or intuition are disseminating into legal theories. My wonderful colleague, Avishalom Tor is organizing a terrific conference on individual differences in law that will be held in London in June, and I hope to report more on the topic following the conference.
Naturally, adopting individual differences in law is not a dichotomist decision, as it could be adopted only in areas where the theory is strong and the impact is significant. Furthermore, while I think we should be excited with the development of these lines of reasoning and the dramatic potential to its impact on both private law and public law, a few words of caution are necessary:
First, how much of the individual differences can we identify ex-ante? This is obviously highly important for most private law contexts. Second, is the categorization offered by the different personality theories reliable and stable enough? Third, how substantial are the differences and whether the benefit from being sensitive to them, outweighs the cost of acquiring the information and the uncertainty associated with incorporating it into law. Fourth, how to relate between psychological based individual differences and demographic based differences. The latter might be more identifiable and reliable but more controversial from a normative standpoint.
The last point, emphasizes an obvious fact. The more we will care about individual differences in law, there will be a need not just to improve the social science aspect of it but also the jurisprudential infrastructure, in terms of concepts such as equality, fairness and welfare.
Strahilevitz, L., & Porat, A. (2013). Personalizing Default Rules and Disclosure with Big Data.
Sunstein, C. R. (2012). Impersonal default rules vs. active choices vs. personalized default rules: A triptych.
Sunstein, C. R. (2013). Deciding By Default. University of Pennsylvania Law Review, 162(1).
 This omission, might have been related to the dominance of economics to which I have referred to in my previous blog.
 To some extent, it is already widely used in criminal law, especially, when it comes to theories of punishment.
Say I’m the CEO of a company with toxic waste buried in our back yard. One day on my way into work, I spot John Travolta climbing over our fence holding a chemistry kit and a spade. After I press the button that releases the hounds, my next step should be…calling my broker? Until John files A Civil Action, I have a window in which I can sell my stock with no market discount.
That has to be a problem for deterrence theories of tort law, doesn’t it? Read on, friend.
Local elections were held in Turkey last week. Many people were wondering whether AKP, the dominant party in Turkish politics, would allow fair elections or whether they would try to illegitimately influence them. Weeks before the elections many interesting developments took place, including the dissemination of audio recordings of stigmatizing phone conversations (allegedly) between the prime minister and other parties (including his son). Many were under the impression that these developments would lead AKP to lose a significant share of their votes, since these developments cast doubt on the legitimacy of the ruling party and their leaders. When the election results came out, many people were surprised to see that AKP had maintained power in many big cities (including Istanbul, the most populous city in Turkey). This led many, including academics, to question whether the elections were fair.
An interesting study by Erik Meyersson attempts to empirically address this question. He finds a positive “relationship between the share of invalid ballots and higher voting share of the ruling AKP government in last week’s local elections in Turkey.” He explains his analysis and findings here.
He concludes as follows: “All together, these last results further supports the hypothesis that Turkey’s most recent elections may have been implemented with substantial irregularities. Until a valid explanation for these results is presented that does not include voter fraud it is difficult to imagine what else could be going on.”
I wanted to bring this noble attempt to uncovering facts about the recent elections to your attention, and any comments by empirical economists would be appreciated.
A full-time minimum wage worker--- a burger flipper, say--- earns $15,000 annually. The median doctor earns $190,000. The average pay of a Fortune 500 CEO is $10.5 million. Is this inequality bad? Ought we to tax the doctor to give money to the burger flipper, and tax the CEO to give money to the doctor? Many, probably most, people think so, though I personally wonder why redistribution, as opposed to "equal sacrifice in taxation" or "taxation for benefits" is justified.
If it is, though, should we be taking from the CEO to give to the doctor? Or should the transfer go straight from CEO to burger flipper, with no transfer to the doctor? It depends on your theory of why inequality is bad, I suppose--- and I'd be interested in hearing answers in the comments.
Of course, ought redistribution to benefit anybody in the United States? Median household income in Russia is $12,000, in India it is $3,000, and in Liberia it is $1,000.
Thursday, April 3, 2014
I quit (or took a break from) smoking about half a month ago. During that time, I’ve come to understand some of the dynamics of pubs that allow smoking versus those that do not. I’ve realized that these places provide an informative case study for crystallizing a frequent confusion that arises in law and economics discussions, namely the labeling of paternalistic arguments as externality based arguments.
[For those readers who are not familiar with these terms, here are brief and informal definitions. Paternalism essentially refers to the limiting of people’s freedoms to act under the theory that without such limitations these individuals will act in ways that are contrary to their self-interests. Negative externalities refer to costs incurred by (third) parties who did not engage in the activity that caused those costs.]
In my law and economics class, when I ask my students to question whether there is a utilitarian justification for a given rule or practice, they rarely rely on paternalistic arguments. There’s a simple reason for this: I do not teach them much about paternalism, and I do not provide them with any analytical tools to study paternalism. (I explain the concept and discuss how it may affect analyses etc., but never formally cover it.) However, I do teach them about negative externalities.
I have noticed over the last few years that some students, and unfortunately also some law professors, mistake paternalistic arguments as arguments based on negative externalities. Some may call this an unimportant semantic problem; I believe that this problem not only makes it hard for two people to communicate with and understand each other, but it also disguises an argument that relies on the existence of some behavioral problems as one that could exist in a world where every individual is acting completely rationally. Due to this ‘disguising effect’ the rule for which the justification is provided appears to be desirable under a broader set of circumstances than is actually the case.
The policy of banning cigarettes or smoking in pubs provides an excellent example to illustrate this point. Consider two potential rules: (i) the owner of the pub gets to decide whether or not people can smoke in the pub, and (ii) smoking is prohibited in pubs. Imagine that I ask my students to provide an efficiency based justification for rule (ii). That is, are there any reasons to believe that rule (ii) would generate higher social welfare than rule (i)?
The following (hypothetical) dialogue is close to what I had with some of my students in the past (S=student, M=Murat)
M: “Is there a good justification to choose rule (ii) over rule (i)?”
S: “By banning smoking in pubs we’re eliminating the negative externality that smokers impose on non-smokers in those pubs where the owner would otherwise allow smoking.”
M: “Okay. So, let’s step back a second. What is the pub-owner presumably trying to maximize?”
M: “Under rule (i) will he not choose that policy that maximizes his profits?”
S: “I guess so.”
M: “If the negative externalities imposed by smokers on to non-smokers are sufficiently high, would you not, as a profit maximizing pub-owner, choose to compete with smoker-pubs, by opening up a non-smoking-pub, and attract all individuals who suffer great negative externalities in smoker-pubs?”
M: “So under rule (i), if we observe pubs that allow smoking, does this not imply that (1) non-smokers who go to those pubs do not suffer great negative externalities, and/or (2) the competitive process leads to a good distribution of smoker/non-smoker pubs in town?”
S: “Maybe. But, you are making an implicit assumption that need not be true.”
M: “Most likely. What is that assumption?”
S: “That people can accurately tell how much negative externalities they suffer. And more importantly, when there are smoking-pubs, more people tend to become smokers. We’re incentivizing bad-habits.”
M: “Those are excellent points. But, both of these points rely on people not accurately knowing themselves. The first point you raise is basically that people do not accurately estimate the cost of becoming a second-hand smoker, and the second point is that people do not accurately estimate the cost of being a smoker. Is that right?”
S: “Sounds right.”
As this dialogue demonstrates, the hypothetical student starts off by making a negative externality argument and then quickly switches to a paternalistic argument. The distinction is important. Negative externality arguments are valid to the extent that we believe regulatory responses are legitimate ways of protecting people from others. Furthermore, negative externalities can exist in situations where all individuals are rational. Paternalistic arguments, on the other hand, are valid to the extent that we believe regulatory responses are legitimate ways of protecting people from themselves. Perhaps more importantly, problems that give rise to paternalistic arguments commonly require individuals who act irrationally.
Monday, March 31, 2014
No one should trivialize the environmental harm from natural gas exploration, and from hydraulic fracturing in particular. The air and water quality implications are sobering. And the Obama Administration needs to clamp down on the natural gas industry on methane leakage (they are). But the most strident green groups continue to display a stunning sanctimony, one that suggests they exchange ideas only in their exclusive echo-chamber, producing an ideological purity that would make Tea Party fanatics blush.
In a March 18 letter to the President, sixteen environmental organizations urged the President to reject a plan to build the Cove Point liquified natural gas export facility in Lusby, Maryland, and to "commit to kepping most of our nation's fossil fuels in the ground."
It is an intentional conflation to lump natural gas in with coal as "fossil fuels," much the same way that Tea Party fanatics lump all taxes together as evil. Some taxes are better than others; some fossil fuels are better than others. Natural gas emits about half the carbon dioxide than does coal for unit of energy produced, and virtually none of the sulfur dioxide, particulate matter, or mercury emitted by coal. Methane leakage is still so serious that it may cancel out the carbon dioxide benefits. But stopping methane leakage can be done. As many have pointed out (including myself), there are countries out there, most notably China, that do not appear to be terribly concerned about the critisicm heaped upon them by the likes of 350.org, the Sierra Club, or Friends of the Earth. Coal is the fuel of choice for countries that can afford it. The only potential rival is natural gas. The U.S. now produces enough of it to export, and export it to countries that would not otherwise consider reducing greenhouse gas emissions. There is reason to believe that China, in particular, would be a buyer, given the crippling smog suffered by so many Chinese cities, a product of cars and coal-fired electricity generation.
The 16 green groups also invoke the specter of higher "U.S. gas prices -- harming virtually all Americans" as a reason to dial back export of LNG. Of course! That is what we need to make our economy more energy-efficient! Low gas prices! That's the answer! We can have (indeed, must have) lower gas prices because it is the moral suasion of these great green groups that will cause us to consume less energy!
Many Democrats have heaped scorn on the Tea Party as being irresponsible, intractably stubborn and self-serving, and delusionally ideological. Those people might take a hard look at some green groups and wonder if they really are any different.
Vivek Ghosal and Daniel Sokol have posted to SSRN The Evolution of U.S. Cartel Enforcement, which takes a closer, more institutional look at cartel enforcement policy following seminal but less detailed treatments in Antitrust Law: An Economic Analysis, by Posner (1976), and The Antitrust Paradox, by Bork (1978). Ghosal and Sokol illustrate how the evolution of cartel enforcement can be traced to the evolution of the institutions involved, including the Justice Department. Though not inconsistent with Posner and Bork, this view lends more richness to the understanding of how cartel enforcement has arrived at its present juncture.
Saturday, March 29, 2014
Below is a question from the final for my half-semester PhD game theory course. I've put the game tree answer right below. For the other answers, see the comment section, where I'll put them as a comment.
Bonus question for blog readers: Will Russia invade Estonia and Latvia?
They are the modern analog of Czechoslovakia, as the Crimea is the analog of Austria, Syria the analog of Spain, the Ukraine proper the analog of Poland, and Finland the analog of the Baltic Republics. NATO is the analog of France, America the analog of the UK, and China the analog of the Soviet Union, but fortunately Russia's army isn't analogous to the Werhrmacht and would have to stop with Finland.
Question. Russia’s leaders are either bold or timid. President Obama puts a 70% probability on them being bold. The Russian leaders must decide whether to invade the Crimea or not. If they do, Obama must decide whether to send troops to the Ukraine or not. If he does, then Russia’s leaders must decide whether to withdraw or risk a fight. The status quo payoffs can be set at (0,0)....
Thursday, March 27, 2014
One of the reasons I love being a tax scholar is that tax law intersects with most everything. In addition to writing about tax law and theory, I thus spend significant time and energy thinking about the intersections between taxation and other areas of domestic policy (especially health care).
As one manifestation of these interests, I've been talking over the past few months with California lawmakers and staff about potential reforms to California's policies for combating climate change. You can find some of my thoughts on these reforms and on issues relevant for comparing carbon taxes and cap and trade policies in an op-ed I recently co-published with my colleague Mark Gergen, available here.
In this post, I thought I'd share some tentative thoughts on a fundamental question underlying this whole area: should state governments even try to combat climate change?
There is little doubt that federal efforts to combat climate change would be more effective than state efforts, and that global efforts would be even more effective. California has little power to influence the world price for fuels or for other sources of greenhouse gas emissions on its own. At least in the short term, to the extent that California’s policies drive up the price Californians pay for fuels in order to deter greenhouse gas emissions, the major beneficiaries may well be the consumers of fuels in other states and in other nations.
Why then do I think it is potentially desirable for California (and for other states) to enact policies to combat climate change?
First, in my view, there is more to policy analysis than consequentialist reasoning. I take seriously the notion that California has a duty to do its part in terms of combating global warming, even if other states or nations shirk on their duties.
Second, by acting as an early mover, California might help cultivate constituency groups for policies to combat global warming in other states or at the federal level. I think it likely that each jurisdiction that enacts policies to combat global warming makes it easier, politically, for other jurisdictions to do the same. This is so because California adopting policies to combat climate change can accustom voters in other states to these policies and can illuminate through practical experience how these policies might be administered. Moreover, businesses operating in California who become subject to these policies may then lobby for similar measures to be adopted in other states or federally so as to ensure a level competitive playing field.
Global warming is one of the central challenges of our time. California is a rich state both by national and (especially) by global standards. If the U.S. is to ever adopt an effective carbon tax or cap and trade policy, California seems a likely starting place.
Of course, from my perspective as a tax scholar, all of this is just background to the fascinating design problems of enacting a state-level policy for combating climate change. I hope to write more on some of these issues in future blog posts.
Wednesday, March 26, 2014
Well, I was only going to post one tax piece this week, but I can't resist commenting on the oral argument yesterday in Hobby Lobby (transcript here), which was notable for some bad economics. The first was when Justice Sotomayor and Kagan argued that Hobby Lobby and Conestoga actually would benefit from not complying with the mandate, because they could just drop health insurance entirely and pay the $2,000/employee fine (ok--- “tax”, if you’re Justice Roberts). The second was the apparent confusion of Justices Kennedy, Ginsburg, Sotomayor, and Kagan in counting the employees’ harm from the employers’ noncompliance separately from the government’s “compelling interest”. [Come to think of it, if the effect of noncompliance on the employees is to be considered, isn’t the employer’s dropping insurance altogether as a result of the mandate a more substantical burden than the government allowing it to drop just the morning after pill?]
1. The Helpful Mandate. Hobby Lobby doesn’t want to pay for morning after pill insurance. Its best option is to drop insurance coverage entirely, because offering noncomplying insurance incurs ruinous fines, but dropping insurance is okay if the company pays $2,000/employee to the IRS.Since Hobby Lobby is paying more than $2,000/employee for health insurance now, the company will actually be better off! So the mandate doesn’t impose a “substantial burden”--- rather, it removes one.
2. Double Counting. Suppose the religious freedom statute requires a balancing test rather than just thresholds of substantial burdens and compelling interests (that is a separate issue in the case). Then we have to consider not just Hobby Lobby and the government, but third parties such as Hobby Lobby’s employees. They won’t get their free morning after pills. This will be an important addition to the balancing test, probably weighing just as much as Conestoga’s harm from having to pay for the pills.
There's more detail, including excerpts from the transcript, below:
Tuesday, March 25, 2014
Today the US Supreme Court decided Quality Stores by an 8-0 vote in favor of the IRS. The IRS argued that when Quality Stores gave severance pay to its workers, the company and workers had to pay FICA (social security/medicare) tax on that pay. The Supreme Court agreed, and rightly so. Severance pay is just as much pay as regular wages, so this makes sense in terms of economics, and the Supreme Court agreed with the basic principle that all forms of labor compensation that required income tax withholding should required FICA in Rowan Cos. v. United States, 452 U. S. 247 (1981).
So how could Quality Stores have won in the lower courts? ---Because the IRS issued regulations in 1990 that contradict Rowan.