Getting accurate information to market - by Judge Jim Gray

In many ways, one of the functions of government is to establish systems whereby accurate information can get out into the marketplace. What people do with the information most of the time should be none of the government’s business, but the information should be publicly available. Along those lines, Abraham Lincoln showed his faith that the public would choose wisely when given accurate information when he said: “I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts.”

There is now an opportunity to put this faith into practice, because a bill is pending in Washington that would require restaurant chains that have more than 20 outlets conspicuously to list the number of calories that are found in their regular menu items. We should all contact our representatives in Washington in support of this measure. California already has a similar law on its books that is scheduled to go into effect in 2011.

Once it is passed into law nationally, that should be sufficient. We do not need — nor want — to establish the “food police,” although there should be some sanctions for knowingly posting false information. And we should not impose extra taxes on high-calorie, high-fat or sugary foods. Just placing accurate information conspicuously in the marketplace is sufficient.

What would happen if this occurs? As a matter of course, one restaurant chain that serves lower calorie foods, whether fast food or otherwise, will soon take advantage of the situation, and begin to advertise that their hamburgers, tacos, etc. taste just as good or better than their competitor’s, but have only two-thirds the saturated fat or calories. Or whatever.

Will everyone stop going to the places with the less healthy choices? No, at least not at the beginning. Obviously this action will affect some people more than others. And I acknowledge that the lower fat and slightly higher cost experiment at McDonald’s with the McLean’s burgers about a decade ago was not successful. But slowly people’s awareness and understanding have been changing. Those changes will continue, and this legislation will hasten the process. Soon not only will it be fashionable to choose more healthy meals, it will also become more generally accepted.

Why would a Libertarian favor this legislation? Why not simply rely upon adults to make nutrition decisions for themselves and their children? In fact, some of my friends said that if I publish this column they would figuratively seek to revoke my Libertarian card. The answer is that I do it because obesity is expensive. And the cost of obesity to all of us is increasing quickly, to the degree that today it accounts for about 9% of national health-care spending, which is up from about 6.5% just a decade ago.

Similar to the passage of helmet laws for people riding motorcycles, if those riders want to take a risk with their own safety, that would be fine with me — as long as I am not required to pay for their injuries. But in today’s world, the health-care costs are not restricted just to those risk-takers, but are spread to the rest of us as well. Therefore under these circumstances, the public has a right to impose these safety requirements.

The costs for publishing information about the nutrition of the menu items would be almost insignificant. There are several simple computer programs that can easily compute the calorie and fat information, and for restaurant chains that have the same menus, the computation would only have to be done once. Yes, most menus would have to be reprinted, and the boards above the counters at the fast food outlets would have to be supplemented, but these would not be material costs, particularly because there would be a phase-in period. But the benefits could be substantial. So any cost/benefit analysis should come down in favor of taking this action.

But this approach should not simply be restricted to passing laws. Each of us should do what we can to make healthier food choices available for people we are involved with. The first and most obvious place to start is in our schools. If you see that your child’s school still has cafeterias, snack stands or vending machines that sell soda pop, potato chips, cookies and other “foods” high in sugar, calories and fats, use whatever influence you have for those items to be replaced with things like juices, vitamin waters, yogurts, apples and other more healthy alternatives. Yes, many of these more nutritious foods cost somewhat more, and have a shorter shelf life, but that is a small price to pay for materially greater health for our children.

Happily, many caring schools have already taken this action, and so have several institutions like the YMCA. But we should also not neglect the snack stands at events like school concerts and recitals, as well as soccer, basketball and little league baseball games.

This will go a long way to put peer pressure in favor of more nutritious eating.

In a similar manner, I am encouraging the managers at my alternative dispute resolution office to stop furnishing potato chips, corn nuts, cookies and other junk food to our clients, and to replace them with more healthy offerings. I have told the story that when I was in junior high school I had a package of corn nuts with almost every lunch. But I had not eaten them since that time, until I retired from the bench and began with my mediation business, where those packages of corn nuts were always there on the tables, just looking at me. So I confess that I sometimes weakened and ate some. But had they not been there, I would have never missed them. So the bottom line is that most people have a weakness, but if caring people “remove us from temptation,” we will all be assisted in making healthier choices.

So please consider doing everyone a favor in this area. Accurate information and a little thoughtful caring can and will go a long way to reduce obesity in us and our children, and will also reduce an appreciable amount of our health-care expenses along the way.



JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at jimpgray@sbcglobal.net or via his website at www.judgejimgray.com .

“COMPETITION MAKES BETTER SCHOOLS” by Judge Jim Gray

“COMPETITION MAKES BETTER SCHOOLS” by Judge Jim Gray 02/11/08

The first time I met Dr. Milton Friedman I heard him talking informally about the general failures of our “government schools.” He called them government schools because they are run as virtual monopolies by the government.  


In their place, Dr. Friedman recommended we use a system of vouchers in which parents could spend the money that the government allots for the education of their children at whatever school they choose. The chosen schools would simply be required to satisfy certain minimum standards set forth by the appropriate governmental unit.


  Having been a product of the public school system myself, and having been raised by parents who strongly supported public education, I told Friedman that I was concerned that this approach would undermine the public education of our children. He responded by asking me two questions, which I now pass along to you.


  The first question was: “If you were the parent of college-age students, what country would you send them to in order to receive the best education possible?” My response was that it was probably the United States. He agreed. The second question was: “If you were the parent of high school-age students, what country would you send them to in order to receive the best education possible?” My response was that I was not sure, but it was probably not the United States.  


He agreed again. Then he said that the reason for this result was that we have a choice in where we spend our money with our colleges and universities, but we do not have that same choice in our high schools because the government makes those decisions for us. Therefore we have competition in colleges, but we do not in our high schools. From that moment on, I have been a supporter of school choice.


A similar question that explains the reason why Dr. Friedman’s proposed programs work is the following: “Who is better able to decide how your child should be educated, you or the government?” I believe this is an easy question to answer.


So we should take steps for decisions about the education of our children to be made as locally as possible. That means that parents, local schools and support groups like the PTAs should be able to say how and where the money for the education of students is spent. Of course, that also means that the federal government should have no say whatsoever in these matters. Similarly the states’ decision-making powers should also be severely curtailed.


What will happen with a system like this? Schools that are not performing will start losing their students to those schools that are meeting or exceeding parental expectations. So the failing schools will either change their ways and begin to perform, or they will either go out or business or will be taken over by others who will adopt better methods. In other words, competition in our schools will bring responsibility for the educational results, which will in turn bring quality instruction, innovation and success.  


Under school choice, if your child is not interested in preparing for a university-trained career, but would be successful with a career in the performing arts, you as the parent would have the choice to use your child’s educational funds to pay for that type of schooling. The same would be true for other marketable skills like industrial arts, computer programming or nursing.


So why cannot the government schools perform as well as schools that are forced to compete? Because conceptually the government schools are funded from the top down – their funds come from the government. This means there is no competition for the money. Furthermore, in that system the administrators naturally have a tendency to funnel more of the money toward administration. The better teachers see this, and naturally seek promotions into administrative positions for the higher pay.  


In addition, once they are established, bureaucracies naturally tend to make more and more rules for the schools to follow, which, in turn, justifies more of their bureaucracy. If you want proof, just find a copy of the Education Code for the State of California, which is the largest code of statutes in the state.  


To further hammer home this point, look at the schools in our nation’s capital. Out of the 100 largest school districts in our country, Washington DC ranks third in what it spends for each student, which is $12,979. But of that money, a full 56 percent is spent on administration, and the government schools are notoriously of poor quality.  


But parental choice is conceptually the reverse of government schools. This system funds the schools from the consumer upward, just like in any other competitive business. So if the consumers are not satisfied, they will take their business elsewhere. And parents learn fast which schools are working, and which are not. It also avoids the inequity of forcing parents to pay twice: once for the mandated government system, and a second time for their child’s tuition at a private school.


Therefore, I believe that most of our state’s Education Code should be repealed. That would leave the local school districts to be at liberty to formulate and follow their own rules, again within certain minimum standards.  


Of course this is a complicated area, and there are going to be problems. For example, should all students be allocated the same amount of money for their education? No, probably special needs children would be allocated larger amounts, within reasonable limits. In addition, as students get older, they usually require more funding for things like chemistry labs, foreign languages and higher mathematics training, so each grade level might receive different funding. But all students in each grade level will receive the same allotment. Of course, that funding could be also be augmented by the parents if they so choose and are able. So will the wealthy have access to better education? Yes, but that has been, and always will be true, and no system can change that reality.


Another problem area is that if schools must perform, they might be susceptible to “teaching for the test,” in order to show the parents that their children are achieving. But in reality, we already have these same problems under our present system. So what else is new?


The final perceived problem area is that many people fear that the parents of the economically poor students will not care enough to find and utilize the better schools. That may be true for some, but not for most. Actually when different “gate” school opportunities have been available to parents in the poorer economic areas, large numbers of those parents responded by camping out for days so they could obtain those special positions for their children. So as a natural matter, if the parents who are not so motivated see that their neighbor’s children are leaving a failing school for a different one, they will probably follow along.  


School choice programs are working today in Milwaukee, and have been for fifteen years. So today a student in Milwaukee can receive a quality “public education” from government, independent or religious schools. Failing schools have been closed, and more than half of the public school’s 90,000 students attend classes that did not even exist in their current format fifteen years ago.  


As a final point in this area, in my view parents choosing to use their allotted money to pay tuition for their children at a religious school is no more a violation of the Separation of Church and State than Veterans of our armed forces using their G.I. benefits to go to a religious college. Why? Because it is the individual people that are spending the money, not the government.


So who is against the idea of competition in our schools? Well, in the first place it is against the “common wisdom.” But in my view, that will be counteracted simply by explaining to everyone the inherent advantages of the bottom-up as opposed to the top-down system. Once people understand those benefits they will change their views and demand a change.  


Then the only major source of resistance to the idea will come from the present administrations and the teacher’s unions that now control the government schools. It is not in their economic interest for change to occur, particularly the unions, which have selfishly resisted any reforms in favor of merit pay for more effective teachers, or to make it easier to terminate teachers who are not performing.  


So for the reasons outlined above, let us follow the lead of Milwaukee by prying the control of our schools away from the governmental and union bureaucrats, and return that control to parents and more local agencies where it will be used more effectively and economically. If we do that I am convinced that only good things will follow for all of our children.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.