No to Near Beer!

You make some good points, but the nightmare scenario you propose simply will not come to pass. Why? As you and I can attest, people HATE 3.2% beer. No one wants to drink it. Liquor companies will surely respond to this overwhelming dislike of their product and raise the alcohol quantity in those states which allow them to do so.

In fact, I think your example actually proves my point. In the absence of fedeal regulation of alcohol content, states are independently regulating beer. And companies are dealing with that by selling certain products in one state and other products in other states. There is a patchwork of regulation. The Republic still stands.

Companies can certainly choose to limit the amenities (and I use that word loosely -- all we're talking about here are clean toilets and water) to people trapped on airplanes in other states. Or they can choose to make this standard the standard for everybody. But don't give us some namby-pamby "patchwork of regulation" argument as the reason this regulation will hurt you. Companies choose whether it's a patchwork or not.

I don't see why making companies deal with different regulations in different states is any reason to prohibit states from making regulations. The companies should be adapting to the state's needs, not the other way around.

Re: Remind Me to Never Get Stuck on a Tarmac

I like your idea of the Federal law providing a floor and not a ceiling, but without clear guidance in the Federal law, wouldn't it be somewhat problematic to have the courts decide what counts as an improvement over existing regulations and what doesn't? Would a law requiring cars to run on Ethanol be better? Or worse? It depends on what you think about the environmental claims of Ethanol. The same goes for any number of regulations.

Furthermore, while it sounds fine for companies to simply "use the higher standards as the de facto regulation for the entire country", that kind of situation is exactly what the courts are concerned about, as it completely undercuts the point of federal sovereignty over these issues and gives the most extreme states control over the entire country's regulations.

Take Utah. Utah applies fairly stringent public health regulations to some of its consumer products. These regulations have proven effective at reducing automobile fatalities and health complications, so by those accounts the regulations are "better." Modifying the product for the Utah market imposes a substantial cost on the manufacturers of the product, so by your logic, those manufacturers should simply use Utah's regulation for their product for the entire country.

And now we're all drinking 3.2% beer. Be careful what you wish for.

Remind Me to Never Get Stuck on a Tarmac

Federalism just took another punch in the teeth from the courts.

The Second Circuit struck down New York's new Airline Passenger Bill of Rights, citing concerns about states regulating in areas that should be under federal control. Deregulation is a complicated area of law -- I sure as hell don't understand it -- but I'm seeing some parallels between this decision and the EPA's recent smackdown on California's stricter emissions standards. In both cases, the decisionmaker said that federal laws preempted tougher state regulations.

Well, pooey to that.

Particularly when dealing with health and safety concerns -- and I'd put both auto emissions and airplane toilet accessibility in that category -- the federal government should be providing the floor, not the ceiling. California's citizens breathe some of the worst air in the country. New York airline passengers suffered interminable waits on tarmacs with no water and overflowing toilets. Their local governments should be able to pass laws that make their lives better. And if Michigan and Texas don't feel the need to do the same, well, that's their prerogative.

The counter, of course, is that national companies -- like airlines and automakers -- will have to suffer the expense of creating different cars for California and different accomodations for Kennedy Airport. But the companies actually have a choice. They can either create two sets of products, or use the higher standards as the de facto regulation for the entire country. So this "incosistent regulation" argument really doesn't make sense. The companies can choose to eliminate the patchwork altogether.

I've got no problem with placing that small burden on the shoulders of large corporations. The federal government clearly thinks differently.

Scrabulous Is Fabulous

From the DC gun case to less life-threatening topics ...

As any Facebook participant will tell you, Scrabulous is one of the social network's most addictive features. Here's how it works: A player can challenge friends to online Scrabble games, complete with an exact Scrabble replica, a virtual dictionary and Wikipedia link to the rules of Scrabble.

The problem? This is one huge copyright infringement.

Hasbro and Mattell jointly own the rights to Scrabble. They do not take kindly to others making money off of their product.

Of course, anyone can understand authors wanting to retain control over their products. That's the whole point of copyright -- Congress and the Framers of the Constitution hoped to spur creativity by giving authors protection for their work. At the same time, the laws put a time limit on how long an author holds that exclusive right. This balance recognizes that creativity often begets creativity, and every creative work, at some point, must become a public good.

Scrabulous, unfortunately, came out too early, well before the copyright in Scrabble expired. But despite its fairly blatant infringement of the Scrabble copyright, there is no indication that the popularity of Scrabulous has harmed the sales of Scrabble. In fact, many users of Facebook say that they bought Scrabble only after playing Scrabulous.

So, Scrabulous is increasing sales of Scrabble. And yet Mattell and Hasbro can still sue? Under the twisted copyright regime, yes. Unlike with most lawsuits, Mattell and Hasbro do not have to show that the defendants are harming them right now. They only have to show a theoretical harm to their ability to use their copyrighted product in a market (like the online market), which they haven't yet entered, but very well might.

Therein lies the problem.

When copyright holders can stifle creativity, even in the absence of any actual harm, our copyright laws are not striking the right balance.

Barring divine (or congressional) intervention, the only hope for Scrabulous is a licensing agreement with Mattell and Hasbro. Let's hope the companies come to their senses and realize that Scrabulous is the best thing to happen to Scrabble since the invention of the triple-word score.

Gun Rights and Barack Obama

In his speech yesterday, Barack Obama challenged each and every one of us to commit ourselves to building a better society. He gave us hope for the future.

At almost the same moment, just a few hours south from Philadelphia, the Justices of the Supreme Court explained exactly why our hope may be misplaced.

During oral argument in District of Columbia v. Heller, the Justices gave every indication that they would uphold an individual right to bear arms. Struck down in the process: D.C.'s near-ban on handguns.

Let me repeat that -- the unelected Justices will strike down a handgun ban that was passed by an elected city council. That was passed in response to the public's concern about an epidemic of crime. That was passed in a city with one of the highest murder rates in the nation.

Judicial restraint? Out the window.

But the hypocrisy of certain members of the Court is not even the issue here. Remember, this is the same Supreme Court that struck down local school desegregation plans. We shouldn't be surprised.

The problem is the real impact of these decisions. On the streets surrounding the Supreme Court, just blocks away from that imposing marble structure, Americans live in deep poverty. They attend segregated schools. Their neighbors have guns. And the Supreme Court just made their lives a little more dangerous.

Barack Obama showed us that underclass yesterday. He acknowledged America in all its ugliness and beauty. He told us we have the power to change our society for the better.

But as long as an unelected institution continues to make decisions without regard for their real-world impact, the time for change may never come.