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Volume 18, Issue 42: October 18, 2016

  1. New Book Reveals the Timely Wisdom of America’s First Constitution
  2. Old Law Helps Keep Drug Prices High
  3. Is Florida Beyond Peak Incarceration?
  4. California Lawsuit May Make Water Rights Transparent
  5. Independent Updates

1) New Book Reveals the Timely Wisdom of America’s First Constitution

Is the U.S. Constitution the best possible charter a nation could ever conceive? Many people seem to think so, but some of the greatest patriots of the Founding Era would have disagreed—vehemently. Indeed, men like Patrick Henry, George Mason, and Richard Henry Lee (among others) thought the Constitution’s flaws would become the republic’s undoing. In fact, many of their predictions have come true: Americans labor under a bloated and abusive federal bureaucracy, the national debt has grown to ominous levels, and many people believe the system is “rigged.” The forgotten insights and proposals of the Constitution’s early critics—and their current relevance—come alive in the new Independent Institute book, Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution, by William J. Watkins, Jr.

The “crossroads” in the book’s title are the Philadelphia Convention of 1787 and the state ratifying conventions. In the 1770s and 1780s, the Anti-Federalists (so called because they opposed the Federalist Party and its vision of a “strong” national government) feared the Constitution would weaken political representation and liberties for ordinary citizens. Some urged the adoption of the Bill of Rights—although other Anti-Federalists worried that the amendments opened the door to a power-hungry and pernicious central government. Their original hope was to amend the nation’s first constitution, the Articles of Confederation, not end it.

Crossroads for Liberty offers a fresh perspective on a misunderstood turning point in American history. More than this, it celebrates the achievements of the Articles of Confederation (including its role in winning the American Revolution) and reveals the worldly wisdom of the Anti-Federalists. Those patriots, Watkins explains, gave the nation scores of concrete proposals that, more than two centuries later, offer the best hope for curing our political malaise and reviving the seeds planted by the Declaration of Independence. “Their principles can guide us back to stability and limited government,” Watkins writes. “Let us open our ears and hear what they have to say.”

Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution, by William J. Watkins, Jr. (Independent Institute, 2016)


2) Old Law Helps Keep Drug Prices High

Last month, pharmaceutical executive Heather Bresch sat in the congressional hot seat, taking heat for Mylan Inc.’s much-criticized price increase for EpiPen, its autoinjector for treating anaphylaxis. As is typical, Congress showed it would rather demonize a business leader than reconsider any law that contributed to the problem. The law, in this case, is the Durham-Humphrey Act, one side-effect of which is to suppress competition between drug manufacturers, according to Independent Institute Senior Fellow John R. Graham.

Enacted 65 years ago, the Durham-Humphrey Act authorized the Food and Drug Administration to determine which drugs can be sold over-the-counter and which are available by prescription only. By excluding certain drugs from the OTC market, Graham explains, the FDA can reinforce the competitive advantage of a market leader at the expense of a competitor’s products—in this case, Mylan’s EpiPen over rival Amedra’s Adrenaclick autoinjector.

In the absence of Durham-Humphrey, Amedra would have greater incentive and ability to compete with Mylan on price. “If patients knew they could walk in and grab an Adrenaclick like a tube of toothpaste, they would not need to stockpile as many injectors,” Graham writes. “Because so many patients are now paying full price for their prescriptions, this move would grab patients’ attention, and Mylan would likely have to respond by moving EpiPen OTC.” Also, evidence from Canada, where both EpiPen and Adrenaclick are sold over-the-counter, indicates that the price of EpiPen would indeed fall. The price of EpiPen in Canada is only 12.5 percent of its price in the United States.

One Solution to the EpiPen Crisis: Repeal Durham-Humphrey!, by John R. Graham (The Beacon, 9/27/16)

A Better Choice: Healthcare Solutions for America, by John C. Goodman

Priceless: Curing the Healthcare Crisis, by John C. Goodman


3) Is Florida Beyond Peak Incarceration?

Is America entering an era of criminal justice reform? Put another way: Is “peak incarceration” behind us? Evidence from Florida suggests the answer to both questions is yes. According to a study published in September, “Floridians are strongly moving in the direction of a comprehensive overhaul of the state's criminal justice system,” Independent Institute Research Fellow Abigail R. Hall Blanco writes in the Tampa Bay Times. If true, such a trend in public opinion is noteworthy for a state whose prison population grew five times as fast as its general population from 1970 to 2014.

The study, conducted by the James Madison Institute and the Charles Koch Institute, found that a large majority of Floridians surveyed—two-thirds to three-fourths—believed that their state had too many nonviolent offenders in prison, that imprisonment was costing taxpayers too much money, and that reforming the state’s criminal justice system should be an important priority.

“Undoubtedly, these decisive numbers reflect Floridians’ disapproval of the state's failed ‘lock ’em up and throw away the key’ policies of the recent past,” Hall Blanco writes. “Fortunately, as the data overwhelmingly illustrates, Florida policymakers at both the state and local level will continue to hear Floridians loud and clear—the time for criminal justice reform is now.”

Floridians Push for Reform of State’s Criminal Justice System, by Abigail R. Hall Blanco (Tampa Bay Times, 9/30/16)

The Enterprise of Law: Justice Without the State, by Bruce Benson

Changing the Guard: Private Prisons and the Control of Crime, edited by Alexander Tabarrok

To Serve and Protect: Privatization and Community in Criminal Justice, by Bruce Benson


4) California Lawsuit May Make Water Rights Transparent

A lawsuit over water rights is underway in Santa Barbara County, California, a case that could have major spillover effects across the Golden State’s parched landscape. The litigants: the Goleta Water District and retired “Miami Vice” TV producer Dick Wolf, whose Slippery Rock Ranch sits atop 200,000 acre-feet of water. Independent Institute Policy Fellow K. Lloyd Billingsley has been following the case.

California has long been home to water wars with casualties washing up on all sides, as viewers of Roman Polanski’s 1974 movie Chinatown may surmise. In the latest battle, the Goleta Water District is suing to block Wolf from selling water to the neighboring town of Montecito, claiming the water under his ranch is its own. Ironies abound: The District had previously bought water from Wolf, suggesting it had considered the water to be rightfully his. Moreover, Goleta isn’t blushing even though rival districts didn’t sue when its water purchase from another agency in 2015 prevented them from buying the water.

Billingsley contrasts the conflicts of California with the harmony of Australia, where water rights are well defined and reliably enforced. “Private tradable water rights empowered arid Australia to make the best use of its existing resources,” he writes in the Orange County Register. “A verdict in favor of private tradable water rights would make all Californians the winners.”

Why Santa Barbara Verdict Could Make All Californians the Winners, by K. Lloyd Billingsley (Orange County Register, 9/23/16)

Cross-Currents in California Water: A Case Study of Bureaucracy versus Tradable, Private Water Rights, by K. Lloyd Billingsley (7/18/16)

Aquanomics: Water Markets and the Environment, edited by B. Delworth Gardner and Randy T Simmons


5) Independent Updates
The Beacon: New Blog Posts MyGovCost: New Blog Posts Featured Video News Alert


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