This is a Cato Special Podcast. I'm Caleb Brown. Just a day before a New York

city ban on large-sized sodas was about to go into effect, a state judge has shut the plan down.

Walter Olson, a senior fellow with the Cato Institute, says what's most notable about this ruling

from New York Supreme Court Judge Milton Tingling is just how sweeping it is.

As everyone has heard, Mayor Bloomberg wanted to ban large serving sizes of Sweden drinks in many New York outlets and this had rolled forward without a vote of the New York City Council but done through the Board of Public Health, which turned out to be important.

And the various people from the soft drink industry sued, Union and Chamber of Commerce and others,

and this had not gotten too much media attention, but on the eve of the band going into effect, a New York judge agreed with the challengers

struck it down not just temporarily, which is what you might expect at temporary injunction,

struck it down permanently saying that this was beyond the New York City Board of Public Health's powers.

It was even unconstitutional, he said, for them to behave that way.

He kept a very... he said for them to behave that way. He very skeptically scrutinized the factual basis for what they were doing and said that it was arbitrary and capricious to boot.

So New York City has now, it's a very interesting day because

Bloomberg has been struck down about four different ways. This judge left him

no choice but to appeal because he, it was very sweeping

ruling. What was the strongest basis for shutting this down? Well arbitrary and

capricious is the one that goes to the facts and the judge pointed out, as some of the critics have

pointed out, that it doesn't make any particular sense that it applies at some types of outlets but not others.

Here's the judge's reasoning here says the simple reading of the rule leads to the earlier

acknowledged uneven enforcement even within a particular city block much less the city as a whole.

The loopholes in this rule effectively defeat the state purpose of the rule.

Exactly. And that's a traditional kind of way in which judges can strike down regulation is to say you can't possibly justify the unevenness

of the application.

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