Jonathan Adler just pointed to  a statement released by The Amethyst Initiative ("chancellors and presidents of universities and colleges across the United States") relating to the legal drinking age:

Twenty-one is not working

A culture of dangerous, clandestine “binge-drinking”—often conducted off-campus—has developed.

Alcohol education that mandates abstinence as the only legal option has not resulted in significant constructive behavioral change among our students.

Adults under 21 are deemed capable of voting, signing contracts, serving on juries and enlisting in the military, but are told they are not mature enough to have a beer.

By choosing to use fake IDs, students make ethical compromises that erode respect for the law.

How many times must we relearn the lessons of prohibition?

We call upon our elected officials:

To support an informed and dispassionate public debate over the effects of the 21 year-old drinking age.

To consider whether the 10% highway fund “incentive” encourages or inhibits that debate.

To invite new ideas about the best ways to prepare young adults to make responsible decisions about alcohol.

We pledge ourselves and our institutions to playing a vigorous, constructive role as these critical discussions unfold.

Now I may not be in the best position to address this topic, having attended the university that was named the "No. 1 Stone-Cold Sober University in U.S." for the 11th year in a row by the Princeton Review, but I also attended high school in rural Wisconsin when the legal drinking age was 18. And I taught at the University of Wisconsin. Surely all of that is worth some street cred.

My problem with this statement is not the substance. Indeed, the evidence on the effect of raising the minimum legal drinking age seems, at best, mixed and, at worst, quite negative. But if you were interested in starting a public debate, why not lead with this:

The preponderance of evidence indicates there is an inverse relationship between the [minimum legal drinking age (MLDA)] and two outcome measures: alcohol consumption and traffic crashes. The quality of the studies of specific populations such as college students   is poor, preventing any conclusions that the effects of MLDA might differ for such special populations.

Instead, the drafters of the statement cite the development of a "culture of dangerous, clandestine 'binge-drinking'." What part of this culture new as a result of the age-21MLDA? Certainly not binge drinking. Certainly not that binge drinking is dangerous. That binge drinking on campuses is now clandestine? Is that a separate cause of harm?

The clandestine nature of drinking may make changing the culture of drinking more difficult, and if that is what the chancellors and presidents intended, that seems reasonable. But the argument reminded me of Larry Lessig's excellent talk on TED entitled, "How creativity is being strangled by the law." I have embedded the video, and if you go to the end (around 17:36), you will hear Larry talking about the corrosive effect of characterizing our youth as "pirates" for "re-creating" culture by using copyrighted material as building blocks:

The money moments:

You can't kill the instinct that technology produces, we can only criminalize it. We can't stop our kids from using it, we can only drive it underground. We can't make our kids passive again, we can only make them 'pirates.' Is that good? We live in this weird time, in an age of prohibitions. In many areas of our lives, we live life constantly against the law. Ordinary people live life against the law. That's what we are doing to our kids. They live life knowing they live it against the law. That realization is extraordinarily corrosive, extraordinarily corrupting, and in a democracy, we ought to be able to do better. Do better at least for them....

Obviously, the difference between Larry's argument and arguments about the MLDA is the object of regulation (technology/copyright v. alcohol), and perhaps that makes all the difference. But I was struck by the parallels between these two situations. How might that difference lead to different regulatory results? How far does this argument take you -- "You can't kill the instinct that [X] produces, we can only criminalize it"?

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