Freedom in the 50 States

The term mala prohibita refers to acts defined as criminal in statute, even though they are not harms in common law (mala in se). This category is a grab bag of mostly unrelated policies, including raw milk laws, fireworks laws, prostitution laws, physician-assisted suicide laws, religious freedom restoration acts, rules on taking DNA samples from criminal suspects without a probable cause hearing, trans-fat bans, state equal rights amendments, mixed martial arts legalization, and bans on racial preferences in the public sector.¹

Of these, the policies with the greatest potential cost by our method are racial preferences in the public sector (more than half of this category), prostitution prohibition, and trans-fat bans, which are now federal and nationwide.

The biggest effect of state affirmative action bans appears to be in public university admissions.² White and Asian enrollment appears to grow by about 5 percent when affirmative action is banned. The annual benefit to these students of attending a preferred college is probably on the order of, say, $5,000—that is, a fraction of typical public tuition. Since the closing date of our study, a Supreme Court decision (Students for Fair Admissions v. Harvard³) has nationalized this policy, but it remains to be seen what impact the decision will have on admissions decisions given the possibility of administrative evasion.

If Nevada-style policies legalizing but regulating brothels were in effect nationwide, the industry would garner an estimated $5 billion in revenue, a comparatively small sum compared with other vice industries, such as alcohol, gambling, tobacco, and even marijuana.⁴

After racial preferences in the public sector and prostitution prohibition, the next most important is the trans-fat ban, which may have cost consumers—at a reasonable estimate—more than $3.5 billion worth of pleasure a year.⁵ Next is the legalization of raw milk, then legalization of mixed martial arts, followed closely by fireworks laws. Then comes physician-assisted suicide, which receives the “times 5” constitutional weighting factor, since the Montana Constitution has been held to protect a right thereto. Rounding out this category, in order, are state equal rights amendments, state DNA database laws, and religious freedom restoration acts.