I practice municipal law, and have watched with some interest the curious crusade of the current mayor of New York City to enforce, as it were, the good health of its citizens in various respects. Imposing a limitation on the size of sodas with sugar (more alliteration!) seemed to me particularly odd, and I'm not surprised the imposition of this particular regulation has been enjoined. I am somewhat surprised, though, by the reaction of some to the ruling.
Typically, the governing bodies of municipalities are accorded a great deal of discretion in the law. That is to say, courts are not supposed to substitute their judgment for that of the local legislature. Courts are not to strike down local regulations because they disagree with the wisdom of the legislature, i.e. if they think they are or would be ineffective or find them politically disagreeable. Local legislatures require in most cases only a reasonable basis to support their enactments which are directed to supporting or increasing the public health, safety and welfare.
It is both interesting and significant, therefore, that in this case the New York City Council, its governing body, its legislature, did not adopt this regulation. Instead, it was adopted by an administrative body of the city, apparently at the direction of the mayor--it's even possible the mayor may have drafted the regulation or was otherwise personally involved in its preparation. The fact the regulation was not legislation figured in the court's decision to issue the injunction. The claim was made that the Board of Health of the city had been delegated legislative authority adequate to allow it to promulgate the regulation, but this was rejected by the court; rightly, I think.
Had the regulation been an enactment of the governing body, I think it would have been more difficult to justify an injunction. Presumably, however, the City Council did not become involved because those who wanted such a regulation to be adopted believed it would not be adopted by the city's governing body. This seems to be the case, as apparently several members of that body supported the effort to enjoin the enforcement of the regulation.
The court also found that the regulation exempted various purveyors of sugary sodas for reasons which had a political motivation, rendering the regulation arbitrary. This is, of course, never a good sign. For my part, I have always wondered why soda in particular was made the target of regulation. Accepting obesity is bad, and can have a negative impact on public health and welfare, what evidence is there that soda as opposed to other drinks or foods, e.g. donuts, requires regulation more than anything else which contributes to obesity? The mere claim or even the fact there is an "obesity epidemic", which is something we hear very often, doesn't provide legal support for a regulation which purports to restrict only the sale of a product of a particular size, which may contribute to obesity if purchased and consumed in quantity. As a rule, more of a connection between an enactment and an evil should be required. Therefore, those who claim such a regulation is needed, and legally appropriate, because of the prevalence of obesity are employing a red herring.
The claim that such a regulation is needed because manufacturers of soda strive to sell their product would justify regulation of most any product which can cause weight gain. What is it about the advertisement which renders regulation necessary? The mere fact that there is advertisement of a particular product should not be objectionable unless false advertising is involved or unless a product is inherently dangerous.
I've avoided thus far the question whether government should be regulating such things as the size of sodas. I am one who thinks that government regulation is inappropriate in the absence of evidence that the conduct/product regulated is the cause, or at least a primary cause, of a significant problem. However, I also think that it is necessary to allocate resources, i.e. to weigh problems presented to government and emphasize the resolution of problems which are more pressing than others. I question whether resources are intelligently devoted to the restriction of soda size given other conduct which effects public health, welfare and safety, regardless of whether it can be established the sale of soda in certain amounts causes obesity. Simply put, there are other and much bigger fish to fry.
Just why this enactment was made a priority is an interesting question. This is one of the reasons why the legislative process should be involved in decisions of this kind. The personal hobbies, prejudices or concerns of politicians should not be made policy or law, and they are less likely to attain that status when dependent on a legislative body.
Wednesday, March 13, 2013
Sunday, March 3, 2013
Homage to Hitchens
I've just finished Christopher Hitchens' short biography of Thomas Jefferson, Thomas Jefferson: Author of America, and being reminded thereby of how well he wrote thought I'd devote some time and thought and space, here, to express some admiration for him and his work. I tend to think a little less of Jefferson than he did. In fact, I think of Jefferson as being in many respects something of a self-righteous hypocrite, but there's no doubting his significance. But with Hitchens its possible to read and enjoy even when his subject matter is disagreeable.
I haven't read the books by which I assume he is, or perhaps even will be, remembered--his denunciations of religion and defense of atheism. I know well enough his views on these topics, I think, from reading those shorter denunciations which would appear now and then online or in certain magazines, and his work on Thomas Paine. I'm familiar enough with the arguments and the examples, at least as familiar as I want to be. I think he was a bit extreme in some of his comments on these and other issues and people; he didn't understate, ever, though of course he could be ironic.
I admire his style and am sympathetic with many, but not all, of his opinions. I sometimes wonder why I am so impressed by those who can write well. Perhaps it comes from being a lawyer. Legal writing is seldom eloquent and almost never witty, though it generally manages to be clear. My admiration of style in writing leads me to forgive or at least tolerate those with whom I disagree who can write well. Gore Vidal, who once considered Hitchens a kind of successor, wrote very well I think, but would express opinions now and then I thought absurd. Nonetheless, I enjoyed reading him almost always.
Those that pass for intellectuals in these sad times often seem incapable of writing admirably, though they are more than capable of writing extensively, even relentlessly. Most of our commentators seem to have adopted a declamatory style which I find tiresome. Those that comment verbally are either boorish or pedantic. This in combination with the fact that they are ubiquitous leads me to despair now and then, but also now and then I encounter someone capable of writing well, and feel a kind of tranquility. Encountering someone who can think well and write well is an increasingly rare joy.
I find it interesting that what we call 9/11 resulted in a change in his status among the intelligentsia. His railings against Islamic fundamentalism seem to make perfect sense given his views on religion generally, so the fact that his former comrades on the Left turned against him because of his support for actions against that fundamentalism is somewhat surprising. This can be explained in part if their disagreement was with his support for certain actions, like the war in Iraq, but it seems broader-based. He also burned bridges by his contempt for Bill Clinton and other liberal icons.
It strikes me that he was, for the most part, consistent in his thought and writing--based on what I've read, in any case. He was a self-described contrarian who was just that. Individuals are becoming scarce, though many claim to be individuals. Self-styled individuals lurking in their bunkers awaiting government agents are merely deluded, however. Anger doesn't make an individual, though it can make trouble for others.
Those who have wit and style, those that can write well, seem to be less objectionable than others, at least to me. Even when they support acts or state views I oppose, I find them interesting and worthy of respect. When I respect someone, I don't take them for granted, I don't treat them lightly. It's impossible to feel contempt for those you respect or to disregard them. One has to take them into account.
That's why respect is important, far more important than love, I think, because love is always reserved to a few. The key to tolerance of others, the only thing that might save us yet, is respect. Self-respect may even do the trick, as self-respect assumes the existence of thoughts, emotions and conduct which are unworthy.
I think we must add Hitchens to Mencken and Beirce as fierce, witty, eloquent critics of our society, culture and times, and mourn his passing as we mourn their absence.
I haven't read the books by which I assume he is, or perhaps even will be, remembered--his denunciations of religion and defense of atheism. I know well enough his views on these topics, I think, from reading those shorter denunciations which would appear now and then online or in certain magazines, and his work on Thomas Paine. I'm familiar enough with the arguments and the examples, at least as familiar as I want to be. I think he was a bit extreme in some of his comments on these and other issues and people; he didn't understate, ever, though of course he could be ironic.
I admire his style and am sympathetic with many, but not all, of his opinions. I sometimes wonder why I am so impressed by those who can write well. Perhaps it comes from being a lawyer. Legal writing is seldom eloquent and almost never witty, though it generally manages to be clear. My admiration of style in writing leads me to forgive or at least tolerate those with whom I disagree who can write well. Gore Vidal, who once considered Hitchens a kind of successor, wrote very well I think, but would express opinions now and then I thought absurd. Nonetheless, I enjoyed reading him almost always.
Those that pass for intellectuals in these sad times often seem incapable of writing admirably, though they are more than capable of writing extensively, even relentlessly. Most of our commentators seem to have adopted a declamatory style which I find tiresome. Those that comment verbally are either boorish or pedantic. This in combination with the fact that they are ubiquitous leads me to despair now and then, but also now and then I encounter someone capable of writing well, and feel a kind of tranquility. Encountering someone who can think well and write well is an increasingly rare joy.
I find it interesting that what we call 9/11 resulted in a change in his status among the intelligentsia. His railings against Islamic fundamentalism seem to make perfect sense given his views on religion generally, so the fact that his former comrades on the Left turned against him because of his support for actions against that fundamentalism is somewhat surprising. This can be explained in part if their disagreement was with his support for certain actions, like the war in Iraq, but it seems broader-based. He also burned bridges by his contempt for Bill Clinton and other liberal icons.
It strikes me that he was, for the most part, consistent in his thought and writing--based on what I've read, in any case. He was a self-described contrarian who was just that. Individuals are becoming scarce, though many claim to be individuals. Self-styled individuals lurking in their bunkers awaiting government agents are merely deluded, however. Anger doesn't make an individual, though it can make trouble for others.
Those who have wit and style, those that can write well, seem to be less objectionable than others, at least to me. Even when they support acts or state views I oppose, I find them interesting and worthy of respect. When I respect someone, I don't take them for granted, I don't treat them lightly. It's impossible to feel contempt for those you respect or to disregard them. One has to take them into account.
That's why respect is important, far more important than love, I think, because love is always reserved to a few. The key to tolerance of others, the only thing that might save us yet, is respect. Self-respect may even do the trick, as self-respect assumes the existence of thoughts, emotions and conduct which are unworthy.
I think we must add Hitchens to Mencken and Beirce as fierce, witty, eloquent critics of our society, culture and times, and mourn his passing as we mourn their absence.
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