Last week, two state legislatures voted on smoking bans. The bill in Kansas passed, but a similar bill in Indiana failed. With the new Kansas law, 38 states now restrict smoking in some public places, and 28 states forbid smoking in bars.

Proponents of anti-smoking legislation argue that second-hand smoke is dangerous and that state residents have a right to breathe clean indoor air. While medical evidence demonstrates that in fact second-hand smoke is a risk, these activists ignore that individuals are free not to patronize businesses that allow smoking, and businesses are free to ban smoking if they choose to do so.

A Michigan restaurant owner explains:

“Eleven years ago, there were 2,200 smoke-free restaurants in the state,” Deloney said. “Now there are more than 6,000. That’s a 174 percent increase.

“They know exactly what their customers want,” he said. “It’s not rocket science. To believe that because there is no state law there are no choices for smoke-free dining is ignorant.”

A study conducted by the National Restaurant Association suggests that smoking bans significantly hurt sales for many restaurants. This finding is unsurprising, since presumably restaurants design policies to maximize their profits. If they think that the majority of their profits come from people who prefer non-smoking areas, restaurants would voluntarily adopt such a ban. In Ohio, some taxpayers are disturbed that the state has spent over $2 million to enforce smoking bans in a time of massive state budget shortfalls.

Smoking bans limit options for smokers and profits for those who wish to serve them. A current debate is raging in Brooklyn about whether or not bars should allow parents to bring their babies in. At present, this decision is left up to bar owners and market forces. Hopefully it will not be the next issue taken into the hands of state lawmakers.

Richard Epstein has a great new article in Forbes detailing his New Year’s resolutions for public policy. Despite the scuttlebutt on a second stimulus, health care, and all the other looming federal issues, he takes time to examine the local and regional policy problems that have proliferated recently; a sort of death-by-a-thousand-cuts:

On real estate, change the culture so that getting permits for yourself and blocking them for everyone else is no longer the preeminent developer’s skill. The government can still prevent buildings from falling down and fund infrastructure through general taxation. But don’t let entrenched landowners and businesses raise NIMBY politics to a fine art. Today our dysfunctional land-use processes too often build thousands of dollars and years of delay into the price of every square foot of new construction. The instructive requirements on aesthetics and handicap access should be junked, along with the crazy-quilt system of real estate exactions that asks new developments to fund improvements whose benefit largely belongs to incumbent landowners. And for heaven’s sake, learn the lesson of Kelo and stop using the state’s power of condemnation for the benefit or private developers.

On labor, state and local governments have to junk the progressive mindset in both the public and the private sector. State and local governments should never, repeat never, be forced to negotiate with local unions. The huge pensions garnered by prison guards in California or transportation workers in New York present the intolerable spectacle of requiring ordinary citizens to pay huge subsidies to union workers far richer than themselves. On the private side, don’t force developers to hire union workers on construction sites or to block the construction of new facilities that hire nonunion labor. If unions are really efficient–and they aren’t–let them compete like everyone else.

(H/T Matt Welch at Reason)

We’ve recently covered the real estate problem. Eileen and I have a forthcoming paper paper on just how monumentally screwed up public pension systems are.

The past year, California experienced its lowest population growth rate in over a decade. Furthermore, the state’s positive growth was maintained by foreign, rather than domestic migration. The San Francisco Chronicle reports:

Since [2005], more than half a million more people have left California than have moved to the state. They mainly have moved to neighboring Western states, said Mary Heim, chief of the demographic research unit at the Department of Finance. In past years, more of those people moved to Nevada, but last year saw an increase in people moving to Oregon and Washington, she said. Texas also attracts a large number of Californians.

The article quotes state policy analysts who suggest that the Golden State’s regulatory climate is driving jobs and residents to other states. Contrarily, a Newsweek article from earlier this year explained that California’s CO2 regulations, the strictest in the country, could help the state’s businesses:

California has led the way in demonstrating how market-savvy regulation, instead of stifling growth, can jump-start innovation. For instance, the state has revolutionized the way utilities are regulated: instead of making profits by building more power plants, the California Public Utilities Commission links utility profits to efficiency gains—and leaves it up to the utilities to decide how to do it most cost-effectively.

However, potential Republican gubernatorial nominee Meg Whitman sees the situation differently. She said of Governor Schwarzenegger’s energy regulation:

I applaud the goals of AB 32 and our Governor for forcefully advocating for a clean environment.  However, three years ago when the bill was signed, the unemployment rate was 4.9 percent with 883,000 Californians unemployed.  Today, we have 12.2 percent unemployment, with 2.2 million Californians out of work.  Simply, jobs must come first.

Whitman’s views are in line with the ALEC-Laffer analysis of the states’ business environments, which suggests that Americans are moving from states with higher regulatory burdens to those with more economic freedom.

Since the European’s Union establishment in 1993, the organization has taken steps to protect local and traditional culinary traditions.  This practice has reached a new heights in the United Kingdom, where the town of Stilton is challenging a ban against producing the cheese named after it.

The Wall Street Journal reports:

The EU’s protected list of more than 800 foods and drinks includes famous names like Champagne and Parma as well as lesser-known delicacies such as Moutarde de Bourgogne, Munchener Bier and a Spanish chili pepper called Asado del Bierzo. It even covers Foin de Crau, a hay for animals from the fields of Bouches-du-Rhône in southern France.

But to the chagrin of locals, no cheese made here can be branded as Stilton. That’s because a group of outsiders, called the Stilton Cheesemakers Association, raised a formal stink.

The association, whose members have been making the cheese for more than a hundred years, in 1996 sought to protect the “Stilton” name by applying for a Product Designation of Origin from the EU. In its application, the group wrote that “the cheese became known as Stilton because it was at the Bell Inn in this village that the cheese was first sold to the public.” The 17th-century inn, which still stands in the main street, is the village’s oldest.

In recent memory, Stilton cheese has been produced outside of the village, but the Journal explains, a historian recently found evidence of the cheese being made within the eponymous municipality in the 18th century. The record failed to sway current cheese producers who assert that the recipe has most likely changed since then. This suggests the question — in their effort to preserve historical practices, how far back should bureaucrats look?

Advocates of limiting food production suggest that it protects gastronomic quality and heritage. The darker, unseen consequences, however, are government-sponsored monopoly food production and quantity restriction.  Paradoxically, earlier this spring, the EU increased enforcement of its antitrust regulations. The international governing body is becoming increasingly involved in the private sector by taking it upon itself to decide politically acceptable business practices.

New York’s highest court recently decided two separate cases that centered around eminent domain abuse and the Fifth Amendment. In late November, the court allowed basketball tycoon Bruce Ratner to appropriate a good sized section of a Brooklyn, furthering his plan to move the New Jersey Nets franchise to a new arena. Last week, the intermediate appeals court stopped Columbia University’s attempt to gobble up much of the Manhattanville neighborhood north of Midtown. [Corrected 12/08.]

These cases highlight just how much of a mess eminent domain proceedings are in the wake of 2005’s U.S. Supreme Court decision Kelo v. City of New London. Supreme Court decisions are no stranger to controversy, but the outrage surrounding Kelo transcended party or ideology, and led to forty-three states adopting restrictions on their own eminent domain powers.

In the Brooklyn case, the issue is identical to Kelo. Bruce Ratner wants to tear down a significant portion of a vibrant neighborhood, and replace it with private economic developments including office towers, a shopping complex, and a basketball arena, which will likely be financed with a significant public subsidy.

Reason Magazine’s Damon Root has an excellent analysis of the private property rights that Ratner and the Empire State Development Corporation trampled over:

Not only does this disastrous 6-1 decision put every property holder in the state at risk, it represents the court’s utter failure to serve as an independent tribunal of justice. Rather than judging the facts and, if necessary, voiding an illegal state action, the court punted, arguing that determining whether or not the properties in question were actually blighted—as New York dubiously asserts—is not “primarily a judicial exercise.”

[...]

In his excellent dissent, Judge Robert Smith takes a very different view of the court’s role, reminding his colleagues in the majority that they have a fundamental responsibility to protect individual rights from state abuse:

The right not to have one’s property taken for other than public use is a constitutional right like others.  It is hard to imagine any court saying that a decision about whether an utterance is constitutionally protected speech, or whether a search was unreasonable, or whether a school district has been guilty of racial discrimination, is not primarily a judicial exercise. While no doubt some degree of deference is due to public agencies and to legislatures, to allow them to decide the facts on which constitutional rights depend is to render the constitutional protections impotent.

That is exactly right. It’s also essential to remember that the Empire State Development Corporation (the state agency empowered to seize property via eminent domain) didn’t even start talking about blight until two years after the project was first announced. By that point, developer Bruce Ratner had already acquired many of the properties in the neighborhood (thanks to the state’s threat of eminent domain) and then left them empty, thus creating much of the unsightly neglect visible today. Moreover, the ESDC’s highly controversial blight study cited things like “weeds,” “graffiti,” and “underutilization” in the holdout properties, none of which actually constitute blight.

The majority’s reliance on the ESDC study is quite controversial, because it’s quite possible that the ESDC has significant conflicts of interest, if not outright corruption.  These problems came to light in the Columbia University case.  Again from Root:

[T]here is overwhelming evidence that the Empire State Development Corporation (ESDC) actively colluded with Columbia in order to produce the very conditions that would then allow ESDC to seize property on the university’s behalf. At the time of ESDC’s 2006 blight study, for instance, Columbia owned 76 percent of the neighborhood and was thus directly responsible for the overwhelming majority of blight that the report alleged, ranging from overflowing basement trash heaps to major roof and skylight leaks. As numerous tenants have reported, the university refused to perform basic and necessary repairs, which both pushed tenants out and manufactured the ugly conditions that later advanced Columbia’s long-term interests. Preliminary findings delivered to the ESDC admitted as much, noting “Open violations in CU Buildings” and “History of CU repairs to properties” among the “issues of concern.”

Thankfully, the New York court recognized this shameful mess for what it is: eminent domain abuse. As Justice James Catterson wrote for the majority:

“the blight designation in the instant case is mere sophistry. It was utilized by ESDC years after the scheme was hatched to justify the employment of eminent domain but this project has always primarily concerned a massive capital project for Columbia. Indeed, it is nothing more than economic redevelopment wearing a different face.”

Ratner ’s case is likely headed to the Supreme Court and it will be interesting to see how the findings of ESDC collusion in the Columbia case affect that decision. The Court could use the case to repair some of the damage the Kelo decision has caused to private property rights and the rule of law.

The French bureaucracy is notorious for being one of the most onerous and challenging to navigate of developed countries. Those in favor of the current system explain that it helps to maintain tradition and the French way of life, known for its emphasis on fine wine and food — the country where the Slow Food movement was instituted.

However, in the ultimate of unintended consequences, Susan Stamberg on Morning Edition reports that the complex legal environment may be pushing many of France’s best chefs and restaurateurs to take their services to countries that are more hospitable toward businesses. Author Michael Steinberger explains:

Bread, wine and cheese makers have all faced problems, and high taxes and bureaucracy make running a restaurant so difficult that many of Paris’s top young chefs have defected to London or New York.

Instead of the traditional haute cuisine for which French chefs are known, many of the country’s entrepreneurs are instead moving toward bistronomy in restaurants that serve quality food in a more casual and affordable setting. Rather than protecting the French way of life, bureaucrats may be helping their traditions spread to other parts of the world and creating opportunities for new, less “French” businesses at home.