The You Have Two Cows Challenge

by on October 5, 2011 at 7:37 am in Food and Drink, Law, Medicine | Permalink

No doubt you are familiar with the two cows guide to political philosophy.

  • Socialism: You have tTwo-Cowswo cows. The government takes one and gives it to your neighbor.
  • Communism: You have two cows. You give them to the Government, and the Government then sells you some milk.
  • Capitalism: You have two cows. You sell one and buy a bull.

So under what type of ism do you have two cows but the government says that you can’t drink their milk? Whatever we call such an ism it may help to know that it is the one we live under. In a recent case in Wisconsin, as summarized by the judge (earlier case here):

Plaintiffs argue that they have a fundamental right to possess, use and enjoy their property and therefore have a fundamental right to own a cow, or a heard [sic] of cows, and to use their(s) in a manner that does not cause harm to third parties. They argue that they have a fundamental right to privacy to consume the food of their choice for themselves and their families and therefore a fundamental right to consume unpasteurized milk from their cows.

In response, Judge Fiedler wrote:

No, Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd;

No, Plaintiffs do not have a fundamental right to consume the milk from their own cow;

No, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice…

So MR readers, here is the challenge: You have two cows. The government says that you cannot drink their milk. What ___ism?

My suggestions?

Paternalism is the obvious choice but I am going to go with Animal Farmism.

1 Patrick Stouthuysen October 5, 2011 at 7:44 am


2 JBaldwin October 5, 2011 at 7:49 am

Udder nonsensism.

3 Jonathan October 5, 2011 at 8:27 am

This was awesome.

4 jimi October 5, 2011 at 10:57 am

for the win. (in 12 minutes flat)

5 Becon October 5, 2011 at 12:15 pm

I love a good pun.

6 msgkings October 5, 2011 at 2:14 pm

Winner. Pencils down.

7 Bill October 5, 2011 at 7:51 am

I suggest students bring a cow to Alex’s class to demonstrate their rights to own a cow.

8 ziel October 5, 2011 at 8:37 am

Because obviously if someone has a right to own something he obviously therefore has the right to bring it to Alex’s class. Touche, Bill.

9 Andrew' October 5, 2011 at 12:42 pm

Let’s say the student did that and the cow even crapped on Alex’s carpet. Two things happen. First, Alex gets the kid to pay the $20 to clean up the mess, wait, $50, we are talking about a semi-public institution. Second, the kid goes to jail because he probably broke 20 laws.

10 msgkings October 5, 2011 at 12:47 pm

And GDP goes up by $50. Broken windows in everything.

11 Mike Huben October 5, 2011 at 7:52 am

It’s called epidemiology.

Snide jokes don’t protect you or your herd from brucellosis.

Oh, wait. You have two cows. You and your family drink their unpasteurized milk and die of brucellosis. That’s libertarianism.

12 Jay October 5, 2011 at 7:59 am

And all humans with STDs need to be spade or neutered…. Liberalism.

13 Adrian Ratnapala October 5, 2011 at 8:04 am

According to the Great Wiki “Transmission from human to human, through sexual contact or from mother to child, is rare but possible.”

We can ban unpasteurized breastfeeding too, and thus save as all from a global pandemic.

14 Jay October 5, 2011 at 8:08 am

When someone goes skydiving and dies is that libertarianism too? When someone dies while having sex is that libertarianism too?

There are a lot of things you liberals want to ban.

15 Andrew' October 5, 2011 at 8:31 am

Or, it’s an obscure non-threat disease for which forced pasteurisation doesn’t even follow in liberaltopia.

I.e. Bullshism.

16 Andrew' October 5, 2011 at 8:33 am

Also interesting is the government use of it as a biological weapon.

Important to keep in mind is that the government discontinued these biological weaponizations not because they are effective, but because they are mostly ineffective.

17 gil October 5, 2011 at 11:29 am

But Warren Zevon needed every syllable of it for “Play It All Night Long.”

18 Jim October 5, 2011 at 9:20 am

My family still drinks unpasteurized milk. We grew up on it. Does that make us evil rubes, subject to rubism?

I wonder how many Amish get sick from brucellosis.

19 Mike Huben October 5, 2011 at 10:10 am

From wikipedia:
Diseases that pasteurization can prevent include tuberculosis, brucellosis, diphtheria, scarlet fever, and Q-fever; it also kills the harmful bacteria Salmonella, Listeria, Yersinia, Campylobacter, Staphylococcus aureus, and Escherichia coli 157 [13][14] among others.

Like vaccination, we rely on preventing sources of spread of contageous disease. Public health regulation is one of the major failings of libertarianism. If libertarians ran the world, we’d still have smallpox.

20 Dan October 5, 2011 at 10:44 am

You didn’t read the case.

The plaintiffs claim they have the right to eat food of their choice. (They formed a private association to buy unpasteurized milk from a farm to sidestep the prohibition on sales of unpasteurized milk to the general public.) The state can override this if the state’s purpose meets the standards of strict scrutiny. The judge could have said that the plaintiffs have the fundamental right to eat food of their choice, but that the public health concerns meet the standards of strict scrutiny.

Instead, the judge says that this has nothing to do with a fundamental right. That goes way beyond public health regulation.

21 msgkings October 5, 2011 at 12:49 pm


Hardcore libertarians, like hardcore anybodies, always take their theories way past common sense.

22 Andrew' October 5, 2011 at 1:31 pm


23 Jan Steinman October 5, 2011 at 8:53 pm

@Mike Huben is a troll. Ignore him. Or go debate him on one of Bill Marler’s websites.

24 Noah Yetter October 5, 2011 at 9:49 am

Yes, actually, that is called libertarianism. The -ism where people are free to make choices and take risks, and accept the consequences thereof.

Somehow I suspect you favor making people’s choices for them by force. How barbaric.

25 Andrew' October 5, 2011 at 11:01 am

“If libertarians ran the world, we’d still have smallpox.”

Mike, it’s this kind of stuff that makes your worldview way more dumb than mine.

26 Andrew' October 5, 2011 at 11:15 am

First of all, don’t expand this to vaccination with its whole host of asinine practices as support for ag practices. No, you can’t label something “vaccine” and make everything smart (Rick Perry, I’m looking at you, dumbass), and you can’t call this close enough to vaccination to share its aura.

Just stick with the idea that pasteurization is the only way to prevent massive diseases. Epidemiology is about rates.

27 Jan Steinman October 5, 2011 at 8:51 pm

As US CDC’s own figures demonstrate, you are about twice as likely to be killed by lightening than to be sickened by carefully produced raw milk. Indeed, you are more likely to be injured in your car as you drive to pick up your raw milk than you are to be sickened by that raw milk — so let’s ban automobiles!

The US CDC documents only 42 cases per year of illness form raw milk intended to be consumed raw. But public health zealots confound those numbers by including cases of illness from pasteurized milk that has been contaminated by raw milk that was intended to be pasteurized, which is NOT a safe product!

Summary: there are two raw milks: that which is intended to be consumed raw, and that which in intended to be pasteurized. Don’t confuse the two.

Solution: legalize raw milk and certify producers. Otherwise, you just turn well-meaning people who are doing what they consider to be a healthy thing into criminals.

28 Norman October 5, 2011 at 11:32 pm


Actually, some studies in the 1970s found the probability of getting sick was actually *higher* in pasteurized milk due to sloppy handling practices. Raw milk, handled properly, is not more dangerous than raw beef, which people are allowed to purchase at any grocery store despite periodic outbreaks of very serious diseases.

And that’s all aside from the fact that there was no commerce or herding involved here! It is private use of private property, use and property which puts *no one* outside the decision-making household at risk, that is being banned.

29 Carsten Valgreen October 5, 2011 at 7:56 am

Big Motherism

30 scharfy October 5, 2011 at 8:02 am


31 Vladimir October 5, 2011 at 8:05 am

“Paternalism” assumes the goal is to protect people from unsafe milk. Given the context of American agricultural policy, protecting industrial-scale producers of pasteurized milk is a plausible compliment.

32 suffer October 5, 2011 at 8:05 am

Hey look, it’s bitchy Mike Huben. It’s called life. There is inherent risk everywhere. People have the right to take those risks. If they’re fully informed of those risks, what business is it of yours?

33 msgkings October 5, 2011 at 12:51 pm

If others taking risks increases MY OWN RISK without my consent, that’s what business it is of mine.

I’m guessing you are against helmet and seatbelt laws too?

34 Dan October 5, 2011 at 1:07 pm

Me not wearing a seatbelt in my car does nothing to your risk in your car.

35 Andrew' October 5, 2011 at 1:33 pm

Everything effects everything don’t you know, and since they are the pragmatic ones they get to draw the lines.

36 msgkings October 5, 2011 at 2:09 pm

Looks like Dan’s against them.

Well, when you get in that wreck and charge Medicare thousands of extra $ to fix you, or when Social Security pays your widowed spouse due to your untimely death, count me out of paying for it.

That’s what common sense is about. Yes, it ‘infringes’ on your precious freedom to wear a seatbelt, but the possible harm done is FAR WORSE than the ‘harm’ of just putting the damn thing on.

In other words, hardcore libertarian no-seatbelt-wearing unpasteurized milk-drinking crack-smoking-in-a-nice-restaurant walking-naked-down-the-street guy: grow up.

37 EDG reppin' LBC October 5, 2011 at 5:28 pm


38 Jan Steinman October 5, 2011 at 8:58 pm

But the jury’s still out, with lots of scientific evidence that raw milk has significant benefits, like the peer-reviewed paper that says it helps children with asthma or allergies.

So, when I drink raw milk, and have better health, and don’t go to a doctor as a result, do I get a rebate on my health insurance?

The problem with your argument is it’s based on a faulty premise.

Anecdote: my spouse used to have an asthma attack about once a week. Since we’ve been drinking raw milk, it’s gone down to a few times a year. I want a refund on my health insurance!

39 Dan October 6, 2011 at 12:47 am

Epic fail, as the kids like to say these days. you didn’t address the main point which was about RISK. You were talking about other’s people’s decisions affecting your level of risk (although this would be built in to YOUR risk level to begin with in a financial transaction). My not wearing a seat belt still doesn’t affect your RISK in that sense. You are talking about my choices causing a negative externality in your example (ie additional cost to society)

I have my health insurance through my employer and its a really great plan, and I’m in my late 20’s, not collecting SS and not married. My life insurance policy would clean up my debts and give my father a little boost to his retirement account if I were to pass. All of this is because I manage risk by buying insurance. Also Iv’e never tried crack but i’ll throw this in too: If I want to put crack in my body I should be able to do that.

What you actually seem to be against is the entire welfare system. I agree. The argument would follow that there is a great cost to society if I died in a car accident (you forgot to mention the money society saves later in life by not taking care of me in my old age though). Just as if I were to smoke crack, go broke, and live off of the taxpayers, there would be cost to society. But its the system that forces YOU to pay for MY non-seat belt wearing crack habit that is the problem, not my choosing to be unsafe.

Have a good night buddy!

40 Mogden October 5, 2011 at 4:20 pm

Completely incorrect. Wearing a seatbelt makes others less safe due to incentive effects.

41 msgkings October 5, 2011 at 5:00 pm

Classic libertarian bullshit, orthogonal as always to reality and common sense.

In your world all cars would have a giant metal spike stuck on the steering wheel pointed at your heart. Think of the ‘incentive effects’ to drive safely!

42 Steve October 5, 2011 at 5:01 pm

Since research has shown people drive more recklessly when belted in, if anything, you should favor a ban on seat-belt use, since it leads to “others taking risks increas[ing YOUR] OWN RISK without [your] consent.”

43 John Thacker October 5, 2011 at 8:05 am

Unfortunately, both of the linked sites don’t actually believe that people have a fundamental right to grow and consume what they wish. For example, the site of the second link also has pages urging the USDA not to approve Monsanto’s GM alfalfa.

They’ve already conceded that there is no fundamental right, and that the USDA and the FDA should block producers and consumers from the choice of certain agricultural products. They’re just arguing about what should be banned. Yes, they argue that science is on their side in both cases, but that’s still very far from arguing that it’s a fundamental right.

“Freedom for me but not for thee.”

44 AndrewL October 5, 2011 at 8:40 am

The problem with Monsanto’s GM crop is cross-pollination. There would be no trouble if the farmers who wanted to use this crop could prevent the crop from spreading on to their neighbor’s farm, or into the wild, but that is impossible. The GM crop is modified to be very hardy, and as a consequence would crowd out natural alfalfa through natural competition. Allowed to continue, it would replace natural alfalfa.

Monsanto owns the patents to the GM alfalfa, and they go around to random farms near one of their customers and test the alfalfa crops to see if even one alfalfa plant is one of their products. If it is, they demand exorbitant licensing fees for use of their crop or take the farmer to court for patent infringement. Of course Monsanto would love to own the entire species of alfalfa plant so that no farmer anywhere can grow any alfalfa without Monsanto taking a cut, so they are not too concerned about their GM crop spreading. Farmers who do not want Monsanto’s GM alfalfa cannot even separate out the offending plant because the only way to identify it is via genetics test, and even if you could identify it, there’s no way to control it. Monsanto also makes pesticides (round-up) that can kill all other plants except its own GM crops.

The difference with the cows is that the cows stay on the owners property, no similar guarantees about GM alfalfa can be made.

45 Borealis October 5, 2011 at 9:02 am

You do know that is an urban legend, don’t you?

46 Nick October 5, 2011 at 9:10 am

Citing the culprit in the story above doesn’t make for a good argument. Do you have an outside view that agrees with Monsanto’s page? Someone closer to objective, because you just essentially said, “they don’t kill people, because they told me so.”

47 Borealis October 5, 2011 at 10:02 am

Actually it is the perfect citation. Monsanto denies filing any lawsuits like you claim and says on its website it has policies to never do that. Thus if they ever do file such lawsuits, the defendants would just cite to the Monsanto website. But you never see that in the news, do you?

Also, any citation beats no citations.

48 Murray Hewitt October 5, 2011 at 9:10 am

Oh, phew! Monsanto says they don’t and won’t do this. That settles that. What a relief.

49 Andrew' October 5, 2011 at 9:11 am


50 Borealis October 5, 2011 at 9:42 am

I would have cited the Canadian Supreme Court, but then you would complain that is too long or that they are less believable than internet chain letters.

51 Andrew' October 5, 2011 at 9:56 am

That is big-time moving the goal posts.

There is a possibly meaningful difference between breeding and patented genetic engineering and licensing of life forms (“he illegally kept seeds” which on it’s own could get a WTF?). It is Monsanto that should be liable for their externality, not the other way around. Do they also believe that?

Whether there was cross-pollination is in fact the point of contention, requiring the legal ruling. This itself says that cross-pollination is a big problem. Courts don’t actually keep the wind from blowing.

52 Jan Steinman October 5, 2011 at 9:01 pm
53 RP October 5, 2011 at 9:16 am

“Allowed to continue, it would replace natural alfalfa. ”

There is no such thing as natural alfalfa on farms. It would not exist in the modern form without man. Otherwise, I agree with you.

Of course, there is an easy solution. Require monsanto to find an alfalfa plant in the field that is homozygous for the RR transgene in order to win the court case. The seed monsanto sells is almost certainly not a heterozygote at the transgenic locus. The farmer buys non-transgene seed. If transgenic pollen happens to fertilize a non-transgene plant, it would be a heterozygote. If it was really bootleg seed, there would be some homozygous transgenic seed produced in the field. Of course, alfalfa is an autotetraploid complicating matters a bit, but same principle.

What I don’t get is the need for herbicide resistant alfalfa. Weeds really are not a problem in alfalfa.

54 Jim October 5, 2011 at 9:27 am

Great explanation.

I still wonder about the licensing story though. Even if it were true, how could Monsanto enter private property and claim the farmer did anything illegal? Is there actually precedent for that? It seems irrational that it would stand up in court.

55 Right Wing-nut October 5, 2011 at 10:10 am

> What I don’t get is the need for herbicide resistant alfalfa. Weeds really are not a problem in alfalfa.

Alfalfa is already hard enough to plow under. Herbicide-resistance in alpha is creepy at best.

56 bob October 5, 2011 at 12:44 pm

The reasom for bt alfalfa is the search for even higher yields. If the difference is minimal, the farmer can choose another seed. This is an area where the market can actually decide.

The problem is not with the seed but with practices against competition: Using contracts to enforce lock in is not all that great for the market.

57 RP October 5, 2011 at 1:23 pm

But it is not BT alfalfa. It is roundup ready, which makes no sense to me since weeds are a very minor issue in alfalfa farming, and then only in the first year you plant it.

They don’t use the license to block competition. There are tons of competitors, though they are using different herbicide resistances. For instance, Bayer CropScience has Liberty link corn that is resistant to the herbicide liberty. The contract, which is actually a seed use license, is simply saying that you cannot keep their seed for re-use the next year. In corn, this doesn’t matter since corn outcrosses heavily and nobody keeps seed. In soybeans, seed cleaning and replanting is common so it is an issue. They don’t force you to buy roundup ready the next year either, you are free to go back to conventional plowing or a competitors herbicide resistance. Now that overuse has created roundup ready weeds, switching herbicides is common.

58 Borealis October 5, 2011 at 10:20 am

If you just think this through you will realize this is an urban legend.

The Monsanto GM seeds are modified to be Roundup Ready — i.e. the farmer can apply a strong herbicide to kill weeds and it won’t kill these plants, but it would kill regular alfalfa. Thus the GM plants are only of value if the whole field is planted with GM seeds and the farmer knows this and deliberately applies the strong herbicide.

Monsanto sues farmers who knowingly plant whole fields of their patented GM seeds or farmers who deliberately sell GM seeds for a premium price. That is just not much different from any other patent. All these scare stories are just urban legends. Do you notice that no one can cite to a particular lawsuit?

59 AndrewL October 5, 2011 at 10:38 am

Most farmers settle becuase they cannot afford to go up against Monsanto:

60 Andrew' October 5, 2011 at 11:12 am

When I first heard that Monsanto sued someone because they inadvertently got “Monsanto’s” seeds I said “that can’t possibly be right.” When I learned that it wasn’t exactly right that only got me back to zero. It doesn’t address the issues, such as what happens when seeds become hybridized, how to kill stray seeds (obviously can’t use Roundup), can these genes spread, who knows? This isn’t just an extension of patent law, this is a whole new world, literally.

And yet, we are left to believie the court decision and Monsanto (who might have had a little something to do with how the cases turn out, just sayin’) that the absurd didn’t happen. Let’s say we do believe it. Proving this one case only proves this one case. If Monsanto could get away with suing people they would do it. One case doesn’t make me feel any better.

61 Jan Steinman October 5, 2011 at 9:04 pm

“Monsanto sues farmers who knowingly plant whole fields of their patented GM seeds or farmers who deliberately sell GM seeds for a premium price… All these scare stories are just urban legends. Do you notice that no one can cite to a particular lawsuit?”

I’m not going to do your homework for you. Google for “Percy Schmeiser.” And look at the documentary “The World According To Monsanto:”

62 Borealis October 6, 2011 at 8:57 pm

This is why urban legends live on. I already linked to Monsanto Canada Inc. v. Schmeiser above — it is the case before the Supreme Court of Canada.

If you actually read court decisions, and not just believe vague assertions in far left wing videos and magazines, then you would know the entire Supreme Court of Canada (and all previous courts) thought this guy was lying about the cross-fertilization. The Supreme Court did divide on the legal issues, but a majority ruled in favor of Monsanto.

Here is a link to the Supreme Court of Canada findings of fact in Monsanto Canada Inc. v. Schmeiser which are entirely different than what far left wing urban legends tell you.

63 Brent R October 5, 2011 at 10:40 am

Here is the crux of the argument, I like the way wiki put it:

“Regarding the question of patent rights and the farmer’s right to use seed taken from his fields, Monsanto said that because they hold a patent on the gene, and on canola cells containing the gene, they have a legal right to control its use, including the replanting of seed collected from plants with the gene which grew accidentally in someone else’s field. Schmeiser insisted his right to save and replant seed from plants that have accidentally grown on his field overrides Monsanto’s legal patent rights.”

Valid legal question if you ask me: pitting Intellectual Property rights against personal property rights. I think that the ruling is in line with years of IP jurisprudence, but could see it going either way in US courts. Monsanto probably has very low motivation to test this in US courts unless they have a pretty blatant case of a bad actor.

64 Borealis October 5, 2011 at 11:39 am

According to this urban legend, the evil Monsanto spends millions of dollars on investigators and lawyers to go around the country suing farmers who accidentally get a few of the patented genes in their crop. They also find corrupt judges all over the country because they win all the lawsuits. The only reason Monsanto does this is to be mean, because the money they recover from the lawsuits are donated to charity.

Doesn’t this sound like the urban legends about Microsoft going around suing everyone who made back up copies of their software?

65 Andrew' October 5, 2011 at 1:34 pm

Who keeps bringing up these urban legends?

66 King Cynic October 5, 2011 at 8:07 am

Since what you describe is the opposite of libertarianism, I suggest we call it what it is: common sense.

67 msgkings October 5, 2011 at 12:54 pm

Boom goes the dynamite.

68 Matt October 5, 2011 at 8:07 am

Treating no cow as a mere means.

69 Tomasz Wegrzanowski October 5, 2011 at 8:07 am

You have one blog. You misrepresent legal issues to better fit your ideology.

What ___ism is that?

70 tom October 5, 2011 at 8:18 am


71 ziel October 5, 2011 at 8:33 am

You’re a commenter – you toss off a rebuttal without any backup or explanation – what “ism” is that? Ah, of course, “glib-ism”.

72 Andrew' October 5, 2011 at 8:51 am

We are to believe that there is good reason for protecting people from unpasteurized milk. Mike above offers an obscure disease that is basically wiped out and not that bad to begin with and incapable of human contagion, pasteurizing milk doesn’t stop zootropic spread and it’s probably not very transmissable from human back to cow I guess unless you really really love your cow, and for which pasteurization is not even required for prevention. The disease is spread from animals (mostly from government Yellowstone park) not by drinking milk. It is prevented by testing and culling, again not by pasteurizing milk.

If you don’t have anything better than that, then you are wrong.

73 James October 5, 2011 at 8:17 am


74 David Clayton October 5, 2011 at 8:20 am

Lactose intolerantism.

75 question the question October 5, 2011 at 8:55 am


76 jangalka October 5, 2011 at 8:27 am

hyperchondrism or hyperchonderkraty

77 David Pinto October 5, 2011 at 8:35 am

It’s maternalism. Your father doesn’t care if you drink your milk.

78 altamira16 October 5, 2011 at 8:59 am

That’s sexism

79 Right Wing-nut October 5, 2011 at 10:12 am

Nope, it’s truthism. Men and women are different (and my have even been born that way). Dad’s response is FAR more likely to be “well, you shouldn’t have done that”.

80 altamira16 October 5, 2011 at 1:06 pm

The baby’s allergic to milk, and dad doesn’t know what to do in case of an allergic reaction without mom’s help.

81 Right Wing-nut October 6, 2011 at 9:46 am

I’m pretty sure you just made my point.

82 Brent R October 5, 2011 at 10:43 am

winner winner chicken dinner

83 Steve Massey October 5, 2011 at 8:38 am

I’d call it Democracy.

84 Helen October 5, 2011 at 8:43 am

Here’s the other side of the argument:

The basic principle of libertarian thought is that you should be able to make whatever decision you wish for yourself, but you need to be responsible for the externalities. In the case described above, at least two children were seriously sickened (I think this article mentions only one) — to the point that they experienced kidney failure and will require dialysis long term — even though they had not themselves consumed the unpasteurized milk. They were exposed to a neighbor child who had drunk the milk. If such milk poses a health threat to those who do not themselves consume it, it is a public health threat and legitimately subject to regulation.

This is a newspaper article, but there are also peer-reviewed papers in the professional epidemiologic literature that document this case.

85 Andrew' October 5, 2011 at 9:15 am

“Erin Barringer of West Hartford, whose daughter contracted E. coli from a child who drank raw milk, according to health officials, is helping to campaign for the stricter legislation. “It can be frustrating at times because I think everybody’s lost sight of who the victims are,” said Ms. Barringer, whose daughter, Emma, was 2 years and 10 months old when she got sick, even though she herself never drank raw milk. ”

A toddler got E. Coli. Sounds pretty sketch to me.

86 Michael K October 5, 2011 at 9:30 am

It may be sketchy as a specific example, but if we are debating the principle, the point is, it *could* be the reason for such regulations to be reasonable, even if they sound ridiculous at first glance. Now, clearly, whether the details corroborate this or not, is an entirely different matter.

87 Andrew' October 5, 2011 at 9:58 am

See the debate below. Could doesn’t mean should…except with our government.

88 Gabe October 5, 2011 at 11:10 am

Sounds like she got e-coli from government inspected beef to me. This would be a good reason to get rid of the USDA.

89 Norman October 5, 2011 at 11:41 pm


90 Silas Barta October 5, 2011 at 2:54 pm

Riiiiiiiiight, I’m sure they never drank the milk, I’m sure they’re not just trying to blame someone else or anything. *jerk-off gesture*

91 Roy October 5, 2011 at 3:53 pm

Kimberly Bergalis comes to mind

92 Sandeep October 5, 2011 at 8:50 am

Assuming we may go by just the quoted excerpt, Prof. Tabarrok is misinterpreting the judge, and so are all or most of the commentators above.

The point is not whether you have such a right or not, but whether the right is fundamental or not. Quoting from the wikipedia article just linked : “…the classification of a right as fundamental invokes specific legal tests used by courts to determine the carefully constrained conditions under which the United States government and the various state governments may impose limitations on these rights.”

93 Jim October 5, 2011 at 8:52 am

It’s just crony capitalism. See also: Solyndra, GM.

Big agriculture gives money to Wisconsin Democrats; Democrats appoint their other favored donors to be judges; judges make sure that no one trespasses on the turf of big agriculture. (Big Milk?)


94 dbeach October 5, 2011 at 3:52 pm

Um. “Big agriculture gives money to Wisconsin Democrats.” No, that is not how it goes, at all. Big Ag undoubtedly gives a lot of money to politicians from both parties in these farm states, but nearly two-thirds (62%) of those contributions go to Republicans.

95 Arend October 5, 2011 at 8:52 am

Consumers collectively challenging big corporate farming by executing their natural rights as a no-go? I’d call that a illustration of corporatism, also called fascism. Yep I said the F-ism word.

96 Jdetalia October 5, 2011 at 8:54 am
97 Ray October 5, 2011 at 8:55 am

I’m not wading into the Wisconsin regulatory scheme too far, but it’s important that the plaintiffs were asking for a declaratory judgment, being denied which is not the same as being convicted of any violation. Even still, the judge clearly understood that plaintiffs had developed a scheme to avoid the regulatory scheme and he saw through that and called it as it is. Plaintiff’s are selling/distributing milk in violation of state law. The judge is just enforcing the laws as they’re clearly written. (In other words, change the laws). There are also several differently situated plaintiffs, but even the Zinnikers are not just a farmer and his drinking milk on their farm. Such a case would not violate the statute, since there would be no distribution.

The judge is completely bound here by the state’s laws (about which I’m neutral).

98 Erik Olson October 5, 2011 at 3:43 pm

We already worked to change the law (note: when Democrats had all the majorities), but the governor vetoed it after promising to sign it, based on last minute advice from health officials. This came as a surprise to those of us who looked forward to the possibilities for cheesemaking, chocolate making, etc. On the other hand, regulating milk products for export has been a progressive cause since the 1840s.

I wish all you outsiders would try to be empirical, rather than ironical, about a case that has deep local roots in Wisconsin. Candidates for governor were asked for their position on raw milk at campaign stops during the last election.

99 midhenry October 5, 2011 at 9:00 am

Hmmmm…… seems to me you grossly misrepresented the case. Having read the provided link to the case summary, my take is: the defendants simply sought to circumvent state law prohibiting the sale of raw milk by setting up joint ownership clubs. In effect, basically anyone could, for a fee, get raw milk.

I did not see anything in the judgement that would prevent a person from owning a cow and drinking it’s raw milk. (This is the “grossly misrepresented” part).

These folks were simply trying to skirt a state law and managed to step out of bounds.

100 Will October 5, 2011 at 9:09 am

How about bad reporting? This case is not about a case where a person who actually owns the cow gets to drink its milk. That is explicitly exempted from the statute, Wis. Stat. § 97.24(3)(“No person may sell or distribute unpasteurized milk or fluid milk products to consumers . . .this section does not prohibit: . . . (2) the distribution of unpasteurized milk produced on a dairy farm to any of the following: (a) the milk producer . . . (b) an individual who has a bona fide ownership interest in the milk or (c) a family member or nonpaying househould guest who consumes the milk at the home of the individual operator.”) Instead, this is a case where someone wants to get around the restriction of selling unpasteurized milk by trying to create a fake ownership interest in the milk by creating an association that supposedly “owns” the milk and the association’s members can purchase unpasteurized milk even though they don’t act like owners in any way. If the government was to allow this interpretation of the law to stand, then there really would be no restriction to selling unpasteurized milk because one could just sell a membership card along with the purchase of the milk. You may not like consumer protection laws in general, but this one does not seem to be a harsh restriction on liberty; just a restriction on those that want to work the system.

101 Justin Kueser October 5, 2011 at 11:05 am

Exactly. The relevant section in the decision, for those who would prefer to know a little bit about it before rushing to condemn it:

“Plaintiffs’ arguments are wholly without merit. The DATCP’s interpretation of Wis. Stat. SEC 97.24(2) does not affect or interfere with a fundamental right and therefore is not subject to strict scrutiny. While the Plaintiffs have recited a plethora of cases involving a variety of constitutional rights, no case cited stands for the propositions that the Plaintiffs have asserted herein. Arguments unsupported by references to legal authority will not be considered. Post v. Schwall, 157 Wid. 2d 652, 657, 460, N.W.2d 794 (Ct. App. 1990). Plaintiffs’ arguments are nothing more than an attempt to misconstrue the issues in this case. They do not simply own a cow that they board at a farm. Instead, Plaintiffs operate a dairy farm. If Plaintiffs want to continue to operate their dairy farm then they must do so in a way that complies with the laws of Wisconsin.”
from p 22-23

102 Benny Lava October 5, 2011 at 1:57 pm

So we will call this “sensationalism”?

103 Noumenon October 6, 2011 at 1:20 am

If these comments were on Reddit I would have gotten to read this one first before wasting my time with all these other crappy posts that whould’ve been downvoted.

104 Anderson October 6, 2011 at 7:14 pm

The facts don’t matter to Tabarrok. They never have.

105 BB October 5, 2011 at 9:13 am

Tabarrok-got-schooled-ism? (Dumb but accurate)

Nice work, Will, midhenry!

106 Andrew' October 5, 2011 at 9:35 am

Nope. Wrong.

Page 9


Emphasis mine.

107 Will October 5, 2011 at 9:51 am

Not sure what you are saying is wrong. The Store defended itself by arguing that “its members were not consumer or members of the public” and thus they were not “selling” unpasterized milk. The DATCP responded with a new interpretation of the statute that stated that “for an ownership interest to qualify as a ‘bona fide ownership interest in the milk producer,’ the ownership interest must have been acquired with an expectation of financial profit. ‘It does not include ‘cow shares,’ ‘license shares’ or other devices that are merely designed to facilitate the illegal sale or distribution of raw milk to consumers who do not have a genuine ownership interest . . . ” I think that seems like a pretty straightforward interpretation of the ownership exemption. Again, you you may not like the idea of consumer protection laws that bar the right of manufacturers to sell unpasterized milk, but if you allow the types of exceptions that the Store was alleging, then there really is no bar to selling unpasterized milk. If that is what you want, that’s fine. But don’t pretend that what you are arguing about is the right of people to drink their own cow’s milk.

108 Rich October 5, 2011 at 11:12 am

Will has convinced me.

109 Hasdrubal October 5, 2011 at 12:15 pm

So, I don’t have a legitimate ownership interest if I buy a share in an airplane to fly it one weekend a month, or a share in a horse to ride it on occasion, or a share in a timeshare condo so I can stay there 2 weeks a year?

The ONLY legitimate ownership is for the purpose of revenue, enjoying the actual output of an asset is not legitimate?

110 Andrew' October 5, 2011 at 1:36 pm

Exactly. The bureaucracy CHANGED the law.

111 Andrew' October 5, 2011 at 1:38 pm


It is their cow. That is why they had to change (interpretation of) the law.

And yes, there is still a barrier to buying milk if you have to buy into a business to get the milk. Don’t pretend their isn’t.

112 Jim October 5, 2011 at 9:15 am

Haha. This reminds me of a true story.

A government agency gave us money to purchase a cow herd for an Indian tribe as a means to self-sufficiency. We purchased 100 cows and a bull.

The tribe was so ecstatic they had a big feast the night of the herd’s arrival. They slaughtered and ate the bull.

What government ‘ism’ is that?

113 Sam Izdat October 5, 2011 at 12:03 pm

Cultural relativism.

114 PrometheeFeu October 6, 2011 at 3:20 pm


115 Nick October 5, 2011 at 9:15 am

I’ll have to dig around again, because it’s been awhile since I’ve seen it but don’t fewer people die from unpasteurized milk than pasteurized milk each year? I still don’t get what the big deal is. Maybe someone can explain it.

116 Brandon Berg October 5, 2011 at 2:56 pm

Probably. But there are like a hundred times more people drinking pasteurized milk than there are people drinking unpasteurized milk.

117 dbeach October 5, 2011 at 4:00 pm

A hundred times? More like a hundred thousand times. Unpasteurized milk is barely available anywhere. You can get raw milk cheese, but that’s about it.

118 Nick October 6, 2011 at 1:17 pm

I meant as a %. We can get it right down the road, but in Texas you have to buy it direct from the farm. Which is interesting because it gives the farmers a storefront to sell direct.

119 Tyler Craft October 5, 2011 at 9:16 am

I’m going with utilitarian paternalism. The idea being that it is better for the entire population of Wisconsin to prevent anyone from drinking unpasteurized milk since there is an increased risk of disease, which leads to healthcare expenses, which leads to a higher propensity to declare bankruptcy, which leads to a reduction in tax base.

120 Gabe October 5, 2011 at 3:24 pm

+1, well done. If there is a threat to any reduction in the tax base then any action from the government is justiifed(including crushing childrens testicles).

121 Adam October 5, 2011 at 9:29 am

“Fundamental rights” are those guaranteed by the Constitution. It’s a legal term of art that determines what level of scrutiny courts apply when deciding if laws violate the Constitution. You all know that, correct? As some pointed out, the judge essentially ruled that a state had a rational basis in making the law

122 Andrew' October 5, 2011 at 9:46 am

Okay. And we can disagree with him. Especially on the eating what we want part. It’s also not my fault people can’t sue for spread of disease.

Oh, if only “no right” meant exactly that and not “go right ahead government and regulate” because “Application of the rational basis test almost always means a ruling favorable to the government, ”

123 Andrew' October 5, 2011 at 9:50 am

Btw, the way you legal types do stuff strikes me as kind of farcical. Apply a rational test does not actually makes rational. Just because a judge thinks the government may have acted in good faith doesn’t mean they acted effectively and blamelessly.

No, I don’t necessarily want the court to overturn a law that was voted on, but passing a test that a government can do something should not be construed that they should do something, especially when considering the judgment involves things like letters from bureaucracies containing “new interpretations”.

124 Alan Crowe October 5, 2011 at 9:55 am

There is irony in “Fundamental Rights” being a legal term of art that determines what level of scrutiny courts apply when deciding if laws violate the Constitution.

There was an argument against having a bill of rights tacked on to the end of the Constitution. The argument was that, having enumerated some rights, later lawyers would treat the enumeration as exhaustive, and one would lose rights not expressly listed. One might even lose rights so basic that no-body at the time thought it necessary to include them in the list. That argument was ended, for the time, by the ninth amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Current legal practice treats freedom of speech as a Fundamental Right (and thus stronger than, say, the right to eat what you want) because it is an enumerated right. This practice directly contradicts the ninth amendment. What a mess.

125 Andrew' October 5, 2011 at 1:44 pm

Interesting that the lawyers draw the opposite conclusion here.

By stating that there is no fundamental right, the court is being activist, not humble in its ruling.

Note this also in the conclusion: “The public health value of pasteurization is a significant factor in the prevention of disease which may be transmitted through consumption of raw milk.”

You law types never know what you are talking about do you?

126 Highgamma October 5, 2011 at 9:32 am

It’s fascism: a political philosophy, movement, or regime (as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition.

127 Gabe October 5, 2011 at 11:08 am

Agreed. Especially when it is the tight relationship between big business and the government who creates regulations that act to prevent smaller/newer entities from creeping in and taking market share from the big politically connected firms.

Of course the NYT will step in and defend the fascist, just as they helped cheer on the wars aroudn the world we are now involved in.

128 Slocum October 5, 2011 at 9:45 am

Nannyism is pretty obvious — How about Nurse Ratchetism (she’s an appropriate mascot, anyway, for the people making, enforcing, and supporting these laws).

Will: Instead, this is a case where someone wants to get around the restriction of selling unpasteurized milk by trying to create a fake ownership interest in the milk by creating an association that supposedly “owns” the milk and the association’s members can purchase unpasteurized milk even though they don’t act like owners in any way.

They act like owners in the only way that matters — they’ve paid to take an equity stake. If I own stock (regardless of how what fraction of the company I own), I’m a ‘real’ part owner of the company even though I’m not involved in operations or have never set foot in any of its offices or met any of the workers. The same is true if I’m a ‘silent partner’ in a partnership (not involved in operations but an owner nonetheless).

But the real point is that these ‘fractional cow owners’ are people who are so strongly motivated to buy raw milk that they’ll go to the trouble of seeking out a farmer and entering into such an equity arrangement — and the government is telling them they are not allowed to make such decisions about what to put in their own bodies (lefties would NEVER IN A MILLION YEARS permit such nannyism if this came to outlawing certain types of sex acts between consenting adults which the government deemed less safe — or would you support mandatory condom-use laws? Or anti-sodomy laws justified on public health rather than moral grounds?)

And, of course, it’s not just milk:

129 Andrew' October 5, 2011 at 9:52 am

You are not allowed to be an “accredited” milk investor.

130 Gabe October 5, 2011 at 11:14 am

sodomy COULD cause the spread of disease…I can almost hear the cognitive dissonance exploding in the minds of the knee-jerk statist here.

Knee jerk statist and lovers of the NYT here will hate anti-sodomy laws if a republican is in office and act as if they don’t see the anti-sodomy law if a democrat is in office. kinda like torture and drone attacks.

131 PrometheeFeu October 6, 2011 at 3:23 pm

What torture and drone attacks? Bush is gone so obviously, everything is fine…

132 Marc Roston October 5, 2011 at 9:50 am

While I don’t have a good “ism” I have a solution to the problem.

If it is the case that actual ownership of the cow solves the problem of consuming unpasteurized dairy products, financial engineering can help!

If we securitize the bovines via a CDO (hmmm…COW debt obligation??) then with a couple dozen low risk securities, you could own very many dairy cows. Then, with a handful of synthetic CDO^2 securities, you could own all the cows in the land.

133 8 October 5, 2011 at 9:52 am

Sounds like prism.

134 Nickolaus October 5, 2011 at 10:00 am

Regulatory Nightmarism

135 Ed October 5, 2011 at 10:15 am

If we extend this silly analogy, capitalism as it has been working recently is you sell both cows and buy a bull.

136 Luca October 5, 2011 at 10:17 am

Capitalism the Wall Street way: you put the 2 cows to a bank that with those 2 pretends it owns 2 bazillions of them.
Then you ask your 2 cows back but they sold them to print the 2 bazillions paper-cows and now they have no cows at all, but in the end this is your problem: it’s you who’ll end up with no cows at all

137 bill rich October 5, 2011 at 10:41 am

Socialism with Chinese characteristics: You have two cows. Government takes away both, and sells you tainted milk. If you complain, the government makes you disappeared, or suicide.

138 Mark October 5, 2011 at 10:48 am

Maternalism. There are things that Dad just doesn’t care about, but today’s mom, she’d everywhere.

139 Dan October 5, 2011 at 10:56 am


140 Chandran October 5, 2011 at 11:00 am

According to the above the answer is “environmentalism”.

141 Damon October 5, 2011 at 11:00 am

Since there’s some avoiding the actual challenge, here’s my response.

fascism. Private ownership but public control of the means of production. You own the cows…but you get no control over their use.

course, without a bull, you get no new calves. Without calves, the cow doesn’t produce milk. Eventually, she goes dry.

142 Jim October 5, 2011 at 11:15 am

For those trying to change the subject — please try to focus on the subject.

A Wisconsin judge sat down, summoned the full might of his authority and intellect, and wrote these words:

>>>”No, Plaintiffs do not have a fundamental right to consume the milk from their own cow”

Try to defend him. Please. Go ahead and try. Thank you.

143 Bill Rich October 5, 2011 at 11:31 am

Consuming milk from any cow is not a fundamental right, much less milk from one specific cow. Furthermore, cow ownership is only owning of the cow, not the milk, just like mineral underground. The cow owner cannot dictate how the milk he doesn’t own is used. Furthermore, the government has the responsibility and authority to protect you from poisoning yourself with uninspected milk.

144 Matthew C. October 5, 2011 at 2:42 pm

The mafia has the right to protect you from purchasing garbage service from an unapproved garbage collection company. . .

145 PrometheeFeu October 6, 2011 at 3:31 pm

And just like the mafia, they’ll use violence if you don’t comply with their orders. I believe the term is “despicable jerkism.”

146 dbeach October 5, 2011 at 4:18 pm

“Fundamental right” is a technical term. From wikipedia: “[T]he Supreme Court has held that some rights are so fundamental, that any law restricting such a right must both serve a compelling state purpose, and be narrowly tailored to that compelling purpose.” By that standard, even owning the cow is not a fundamental right. The legal issue at hand is whether the law is subject to “strict scrutiny” or simply “rational basis” — and note that “rational basis” does not have to be a correct rational basis.

Now, as far as I’m concerned, this is kind of a dumb law and they should get rid of it. But just because the government makes a dumb law that restricts a person’s ability to do something or other doesn’t mean his “fundamental rights” have been violated.

147 PrometheeFeu October 6, 2011 at 3:32 pm

It is true that the Supreme Court has transformed property rights into a joke.

148 RM October 5, 2011 at 11:44 am

As long as we are on this libertarian discussion, see Here a woman was charged with the vehicular homicide of her kid as they jaywalked across a busy Atlanta street.

149 Doc Merlin October 5, 2011 at 12:04 pm

Yet another reason to move to Texas.
Its legal to drink your own raw milk here.
Furthermore, its also legal to sell raw milk.

Yay! Texas!

150 dbeach October 5, 2011 at 4:09 pm

It’s legal in California too.

151 nnn October 5, 2011 at 6:38 pm

But isn’t california now a nightmare landscape of dying and diseased people from the spread of raw milk?

152 Sam Izdat October 5, 2011 at 12:04 pm

There is already an analogous prohibited agriculture in marijuana.

This is prohibitionism.

153 Doc Merlin October 5, 2011 at 12:07 pm

And I agree with those who said Fascism.

154 Hasdrubal October 5, 2011 at 12:16 pm

Wickardism is the first thing to come to mind.

155 CW October 5, 2011 at 1:17 pm

Technocratic despotism.

156 Kevin Outterson October 5, 2011 at 1:23 pm

I read the pdf and couldn’t find the quotes you attribute to the judge.

The case was about selling and distributing unpasturized milk, not owning cows. The plaintiffs were making “fundamental rights” claims that didn’t involve the statute.

A nice work of political theater, but not MR quality if presented as actual blogging on a case

157 Jake Solomon October 5, 2011 at 6:27 pm

See top of page 4 of the summary (

Here’s another select quote from the summary: “The court is unwilling to declare that there is a fundamental right to consume the food of one’s choice without first being presented with significantly more developed arguments on both sides of the issue.”

158 Carl the EconGuy October 5, 2011 at 2:49 pm

What many of you seem to forget is that the judge was correct. Under the modern interpretation of the Commerce Clause, Congress can regulate any economic activity, including private acts that may affect interstate commerce (yes, I know we’re still awaiting a SCOTUS decision on PPACA). States can pretty much regulate what they want and, in Wisconsin, the legislature controls anything that goes on a dairy farm, perfectly legally. The only fundamental rights you have are those that, when infringed upon, are protected by the courts. This includes free speech, within limits, and access to the ballot box, within gerrymandered limits, of course. This is called constitutionalsm.

159 steve October 5, 2011 at 2:50 pm

I skimmed through the comments, and I am surprised no one suggested “Corporatism”.
As always, in everything, follow the money. It very well may not be corporatism in this case, but I would suggest it is always a prime suspect.

As far as the safety issue is concerned, no doubt pasteurized milk is safer, But on the other hand, I don’t hear these same people squaking for the irradiation of things like Melons which have been shown carrying Listeria in the news lately. And no, the radiation doesn’t stick to the melon.

160 Brandon Berg October 5, 2011 at 2:51 pm


161 akaCG October 5, 2011 at 2:57 pm

Dialactical Maternalism

162 akaCG October 5, 2011 at 2:59 pm


163 Matthew Taylor October 5, 2011 at 3:28 pm

Totalitarianism, obviously.

164 crake October 5, 2011 at 4:00 pm


165 Adam October 5, 2011 at 4:04 pm

While amusing, and a great opportunity for puns, this is a not a real issue of economics. I don’t know why I am responding, other than boredom, but here is the deal.
It’s illegal in most places to sell unpasturized milk. This is a good thing. Milk contains nearly everything a human needs to live. Unfortunately it also provides a perfect environment for several nasty bugs. The state, with good intentions, wants to protect people from this.
Now, you can argue that unpasturized milk isn’t really bad for you. My father grew up drinking it from the family farms milk cow. Amish, and similiar, communities live on it. Lots of people do. The difference between those people and the members of these co-ops is that the former know how to raise cattle and use raw milk appropriately and the latter have mostly just decided it is a good idea. They don’t consume the product immediately. They don’t know when it is time to get rid of it. Ever taken a whiff of past-date milk and decided to chance it in your cereal? You are taking this risk on the basis of a lifetime of experience with pasturized milk. Try it with raw and you have to make different assumptions.
A number of people failed to make those assumptions and got sick. Maybe they didn’t die. Maybe they were making an informed choice and should be allowed to do so. If the cow was in their backyard, that is their call. But this is not the government telling a small farmer he can’t own his/her own cow and consume it how he wants. This is a judge rejecting (correctly) the claim that a group of people who have clearly formed a shell company to circumvent established law do not have the same rights as that farmer.


166 landware October 5, 2011 at 5:11 pm

This is a quintessential example of republicanism. It falls squarely within the inherent police powers of the states. This isn’t the federal government. Any charge of paternalism, or other similar isms, is mistaking federal action, which requires a constitutional grant of power, for state action, which does not.

167 Jon Biggar October 5, 2011 at 5:35 pm

How about ‘asylumism’ as in the inmates are running the asylum?

168 stataTheLeft October 5, 2011 at 6:45 pm


169 Jay October 5, 2011 at 7:04 pm

Next up…. Liberals want to ban eating pussy to prevent the spread of HPV. Be careful who you kiss!

170 Mark Price October 6, 2011 at 5:11 am

The government established the Pasteurized Milk Ordinance to govern interstate distribution, there is no jurisdiction within the state’s boarders. The Amish don’t have to pasteurize the milk they consume, only what they sell. The ruling needs to be appealed. This guy overstepped his authority. Typical of liberal judges- they legislate from the bench. I would call it hyper legalism.

171 Garth Wood October 6, 2011 at 8:52 am

This calls for a neologism. Since the judge’s name was Fiedler, I suggest “Fiedlerism.”

172 Urso October 6, 2011 at 12:51 pm

Many people seem to think that the judge is the one making up these regulations. Your vim is more aptly targeted at the legislature who passed the law, not the judge who has no choice but to apply it. Had he declared raw milk a “fundamental right,” that would have been a perfect example of that other bogeyman of an ism I hear so much about, judicial activism.

173 David October 7, 2011 at 6:34 am

Louis Pasteur was a genius, and Pasteurization one of the greatest public health innovations of all time. LOTS of people used to get sick from diseases that came from unpasteurized milk.

A side effect of our near-total victory over infectious diseases, through things like pasteurization and vaccination, is that many people have never experienced how devastating these diseases can be. I am old enough to remember people who contracted polio, and have heard how a child with whooping cough suffers. My grandmother’s sister died of TB contracted on a dairy farm. Since these diseases are now (fortunately) outside our everyday experience, we truly underestimate their cost.

I wonder how Tyler would feel if his child caught resistant TB from a neighbor who insisted on his right to drink unpasteurized milk.

Frankly, this is all just arguing whether people have the right to be dangerously stupid.

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