From SCOTUS blog:

A new vote for property rights?.

The Supreme Court refused on Monday, amid a flurry of orders, to reopen the heated controversy over the power of government to seize private property for a new economic development project, but owners of property appeared to have picked up a potential new ally on the Court. Justice Samual A. Alito, Jr., was the only member of the Court to note that he would have granted review of a significant Second Circuit Court ruling on property rights in the face of a massive new project in the Prospect Heights section of Brooklyn, N.Y.

SCOTUSblog has real time coverage of Supreme Court rulings as they are being issued, followed by analysis soon thereafter.

If your answer to either or both of these questions is "Yes," then I invite you to learn more about "American Law and Liberty: Structure and History," a one-day course designed primarily for students entering law school this fall and other "pre-law" students, by clicking here. It will be taught -- by yours truly -- on Friday, June 27, from 9:00 a.m. to 4:30 p.m., at the offices of the Alabama Policy Institute, 400 Office Park Circle, Birmingham, Alabama. There's a $25 registration fee -- but that covers lunch and a couple of very useful books, in addition to a fine short course. If you have any questions at all about the program, call me at (205) 726-2434 or email me at medebow [at] samford [dot] edu.

Thank you for your attention. Here endeth my shameless self-promoting post of the day.

Roger Koppl has a column in the new online and print editions of Forbes, called "What's Wrong with CSI". The editors also run this accompanying editorial. From the opening lines of Roger's column.

Forensic evidence is foolproof, right? It's how those clever cops on CSI always catch the killer. DNA evidence springs innocent men from prison. Fingerprints nab the bad guys.

If only forensics were that reliable.

Roger goes on to discuss error rates in fiber, paint, body fluids, fingerprints, and DNA testing, and then talks about a few of the many "horror stories" that come from these error rates. Roger then summarizes his economic and institutional analysis.

The core problem with the forensic system is monopoly. Once evidence goes to one lab, it is rarely examined by any other. That needs to change. Each jurisdiction should include several competing labs. Occasionally the same DNA evidence, for instance, could be sent to three different labs for analysis.

This procedure may seem like a waste. But such checks would save taxpayer money. Extra tests are inexpensive compared to the cost of error, including the cost of incarcerating the wrongfully convicted. A forthcoming study I wrote for the Independent Institute (a government-reform think tank) shows that independent triplicate fingerprint examinations in felony cases would not only eliminate most false convictions that result from fingerprint errors but also would reduce the cost of criminal justice if the false-positive error rate is more than 0.115%, or about one in a thousand.

As I've mentioned previously, one of Roger's studies that focuses primarily on fingerprinting standards is forthcoming in my book, Law without Romance (preview here). In fact, it's the study he cites above. In his chapter, Roger does the cost-benefit analysis to support his results, and he also lays out a series of institutional reforms to forensic science administration that would promote greater efficiency and fewer wrongful convictions. (Independent Institute will be sending the book to publishers soon, and I'll have more to say about the other chapters in due course.)

In the past six months or so, Roger has published a series of studies and op-eds and he's testified before the National Academy of Sciences. Congratulations to Roger for his increasing exposure on this important issue. For more, see his Institute for Forensic Science Administration website, with links to articles and other columns.

In today's WSJ, Amity Shlaes reviews The Dirty Dozen: How Twelve Supreme Court Decisions Radically Expanded Government and Eroded Freedom, by Robert Levy of the Cato Institute and Chip Mellor of the Institute for Justice.

Robert A. Levy and William Mellor, both constitutional lawyers, examine 12 notorious court opinions affecting everything from wartime internments and medical-school admissions to tax policy and the rights of the homebuyers. The starting point for their survey is 1933, their reasonable assumption being that modern American law began with the New Deal. They went about compiling their list by asking other lawyers and scholars to name the cases they considered to be the most damaging to our constitutional rights.

I haven't read this book yet, so I don't have a take on it. Do you? Comments open just in case.

Elsewhere, LAT columnist George Skelton tells Californians how to vote on Prop 98 and 99 (both aim to restrict takings powers).

The U.S. Sentencing Commission released its quarterly report providing "data concerning recent court decisions considering motions to reduce the length of imprisonment for certain offenders convicted prior to November 1, 2007 of offenses involving crack cocaine."

The AP story summarizes.

New guidelines cut sentences for 3,000 crack offenders By LARA JAKES JORDAN, Associated Press WriterThu Apr 24, 5:00 PM ET

More than 3,000 crack cocaine convicts have had their prison sentences cut since the federal government eased harsh penalties for drug crimes overwhelmingly committed by blacks. A U.S. Sentencing Commission study released Thursday says it is not immediately clear how many offenders have actually been released from custody after having their sentences reduced. In all, 3,647 crack offenders so far have applied for early prison release since March 3, when new federal sentencing guidelines were enacted.

Here is the full report.

A bit of perspective here. According to the 2007 World Prison Population List, published by Britain's Home Office:

The United States has the highest prison population rate in the world, some 714 per 100,000 of the national population, followed by Belarus, Bermuda and Russia (all 532), Palau (523), U.S. Virgin Islands (490), Turkmenistan (489), Cuba (487), Suriname (437), Cayman Islands (429), Belize (420), Ukraine (417), Maldive Islands (416), St Kitts and Nevis (415), South Africa (413) and Bahamas (410).

Over 2.5 million are behind bars and over 7 million are in jail, on parole or on probation. (DOJ's corrections statistics). So 3,000 is hardly a giant sum. But Crack Baby Steps, I guess.

Today's Memphis Commercial-Appeal has an article about the recent explosion of violence in Chicago. The purported reason--a breakdown in gang discipline--called to mind Sudhir Venkatesh's work on the dynamics of a poor Chicago neighborhood. My review of Venkatesh's excellent Off the Books: The Underground Economy of the Urban Poor is forthcoming in the Journal of Economics. Due to copyright restrictions, I can't post the review online, but I can quote the last paragraph:

A wise man once said: “Don’t hate the player. Hate the game.” While all social problems are no doubt shot through with moral culpability, perhaps the apparent moral failings of the urban poor are less important than the rules of the game that have created America’s urban nightmare. Perhaps the time has come to reexamine some of the policies that were implemented with good intentions but that appear to have produced disastrous consequences.

This week the Supreme Court agreed to hear the case of Thomas Goldstein. At issue is whether Goldstein can sue former prosecutors in California for his wrongful murder conviction in 1979. The prosecution's case appears to have been based on little more than false testimony by a jailhouse informant, who struck a secret deal with prosecutors for reduced jail time. The Reuters story explains more.

Goldstein's attorney, Ronald Owen Kaye, said this happened even though the U.S. Supreme Court had ruled in 1972 that informant deals should be disclosed. Van de Kamp later became California attorney general. He still practices law in Los Angeles and is chairman of the California Commission on the Fair Administration of Justice, set up by state lawmakers to look at ways of preventing wrongful convictions. Van de Kamp and Livesay appealed to the Supreme Court after a trial judge and the 9th U.S. Circuit Court of Appeals said Goldstein's lawsuit could proceed. The case will be argued in the fall.

The jailhouse informant problem is not isolated to Thomas Goldstein or to murder cases or to California. The May 2008 issue of Reason chronicles the remarkable meltdown of what looked to be locktight drug trafficking case in Louisiana. The accused were convicted and spent four months in jail awaiting sentencing. From the article (HT: Josh Hall):

But in the ensuing months, the government’s case unraveled, exposing some unsettling truths about the way jailhouse informants are used in America’s courtrooms. In December 2006, all charges against the family were dismissed. The federal judge who presided over the trial was so upset about what happened in his courtroom that he has since taken the rare step of speaking out about it publicly.

The legal fiasco was partly attributable to familiar themes of racism and overly aggressive prosecution. But the Colomb story is mostly about the war on drugs. It shows how the absurd incentives created by the unaccountable use of shady drug informants by police and prosecutors can quickly make innocent people look very guilty.

The contributions to my forthcoming book, Law withtout Romance, discuss a variety of incentive problems in the legal system. See an earlier DOL post for discussion of prosecutor incentives in the chapter by Russ Sobel, Josh Hall, and Matt Ryan. Another chapter by Roger Koppl shows how the industrial organization of forensic science institutionalizes systematic biases to convict the innocent. For the flavor, see Roger's sidebar and related Reason story from the November 2007 issue. And for much more, this by email from Roger:

The Innocence Project has found that the snitch system is an important contributor to false convictions. Thus, we have some good evidence that the case of Thomas Goldstein is not an “isolated incident.”

For the rest of Roger's excellent critique, and positive suggestions, please see beneath the fold.

Comments open....

Read More »

Via a June 6, 2001 article from The Onion.

My former student Dan Alban has co-authored a brief in the DC gun ban case before the Supreme Court. Read it here.

From the Christian Science Monitor

Brilliant.

From the Jan. 22, 1908 NYT:

The thousands of women in New York who have never thought of smoking in public places are now prohibited from doing so by law. The Board of Aldermen yesterday passed the Sullivan anti-smoke ordinance by a vote of 73 to 0. Here is the new law:

Section 1. No person, firm, or partnership, corporation, or association, of whatever character, owning or controlling, either as proprietor, or manager, any hotel, restaurant, place of public entertainment, or other place of public resort, in the City of New York, in which people meet and congregate, whether for purpose of refreshment or entertainment, shall allow any female to smoke in any such hotel, restaurant, place of public entertainment, or other place of public resort, such an act being construed as in contravention of the provisions of Subdivision 14 of Section 49 of the Greater New York charter. [emphasis mine]

2. Any violation of the provisions of this ordinance, upon conviction thereof before a City Magistrate, shall be punishable by a fine of not less than $5 nor more than $25, or by imprisonment in the city prison, or by both, but no such imprisonment, however, shall exceed a term of ten days.

The only way to make an anti-smoking law more discriminatory is to make it apply only to one gender.

In 1995 and 2003, New York City made the anti-smoking law gender neutral.

In the Indiana voter ID case that was argued before the Supreme Court earlier this week, the attorneys challenging the law argued that it should be overturned even if imposes only a minimal inconvenience for a small percentage of voters. (Transcript here in pdf; see pp. 65-66.)

I happen to think that requiring ID for voting is a reasonable precaution against fraud. Yet, just think how much nuisance could be eliminated if we applied the same principle of not causing even minimal inconvenience to other government policies. Start with the tax system--anything other than a radical simplification of the current behemoth would run afoul of the minimal inconvenience criterion. (Indeed, a strict interpretation might allow for nothing more than a head tax.) Draft registration--gone. Invasive banking rules--gone. Oh the fun we could have if the Supreme Court buys into the minimal inconvenience doctrine!

Reuters carries the big story today: Judges given leeway in crack sentencing

WASHINGTON - The Supreme Court ruled Monday that federal judges can impose shorter sentences for crack cocaine crimes, making them more in line with those for powder cocaine...

Justice Ruth Bader Ginsburg, writing for the majority in the crack case, said a 15-year sentence given to Derrick Kimbrough was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.

How 'bout ZERO? Well, crack baby steps I guess.

Here is:
Douglas Berman on Booker, Monday's rulings, the imminent USSC vote, and sentencing law generally.
Earlier story with some background and Sentencing Commission vs. Justice Dept.
New Jersey task force recommends shrinking drug free school zones.

"If I could wave a magic wand ... I would wave it to secure some kind of merit selection of judges across the country," O'Connor said at a conference [yesterday].

Story here.

The judiciary has been a neglected area in public choice research. Although there are strong signs of a counter trend. Of course, Alex Tabarrok and Eric Helland have some nice work on this, summarized in their book Judge and Jury. Andrew Hanssen has some good papers, too (like this one). In addition, in my forthcoming book, Law without Romance, there is a nice chapter on judicial and prosecutor selection by Russ Sobel, Josh Hall, and Matt Ryan. They find (1) that false murder convictions spike around election of DAs and (2) that surveys of judicial quality are lowest in states with partisan election of judges, better in non-partisan elections, and best in appointment states. Currently I am at Clemson attending a Festschrift for Bob Tollison (more on this tomorrow), where I've learned that a promising graduate student is working on this as well.

I'm beginning to really like Justice O'Connor. However, institutional changes like this warrant a word of caution. See beneath the fold for a flavor why.

Read More »

A news item:

Ten Hispanic immigrants filed a lawsuit on Wednesday against a Connecticut city, its mayor and police chief, and federal agents who led a crackdown on illegal immigration last year.

Just for the record, I'm pro-immigration. For all I know (I didn't read beyond the first paragraph of the news story), these immigrants might have a legit cause of action. I just found it interesting that they had figured out the American way of doing things is to call in the lawyers.

While home for lunch, I briefly had the tv tuned to CNN and Fox News. Both networks were covering the arrest of someone for some killings in New Jersey. Apparently the suspect is an illegal immigrant who allegedly committed the shootings while out on bail after being charged with 31 counts including the rape of a 5 year old. Both networks' anchors questioned guests or reporters about why an illegal immigrant had been released on bail. Seems to me that's the wrong question--if I was living in NJ I'd like to know why someone, whether legally in the country or not, could be released on bail when facing charges on 31 counts including rape. Regardless of immigration status, someone facing such severe charges should stay behind bars until his trial.

The Federalist Society sponsored a day-long conference this past Tuesday in honor of Robert Bork's 80th birthday. The luncheon program was a wide-ranging interview of Bork by Judge Ray Randolph of the D.C. Circuit. (I was in attendance and enjoyed it immensely. I was lucky enough to have Bork for both Con Law and Antitrust while a law student.) The video of the program is now available online on the Society's website. Running time is 1 hour, 4 minutes. Watching this is a nice way to celebrate the Leegin Creative Leather decision (see below).

The Supreme Court's 5-4 decision today in Leegin Creative Leather Products is a very big deal in the antitrust treatment of vertical restraints. It explicitly overrules the Court's ancient Dr. Miles precedent (1911), so that henceforth resale price maintenance will be subject to the "rule of reason" rather than treated as a per se violation of the Sherman Act. Justice Kennedy wrote for the majority; Justice Breyer, for the dissenters.

A step in the right direction for due process and habeus corpus.

Man labeled "enemy combatant" wins court case

WASHINGTON (Reuters) - President George W. Bush cannot order the military to seize and indefinitely detain a Qatari national and suspected al Qaeda operative, the only person being held in the United States as an "enemy combatant," an appeals court ruled on Monday.

In a major setback for Bush's policies in the war on terrorism adopted after the September 11 attacks, the appellate panel ruled 2-1 the U.S. government had no evidence to treat Ali Saleh Kahlah al-Marri as an "enemy combatant." The court ordered him released from military custody.

"The government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely," Judge Diana Gribbon Motz wrote.

Al-Marri has been held in a U.S. Navy brig in Charleston, South Carolina, for about four years without any charges.

The ruling sent the case back to a federal judge in South Carolina with instructions to direct the secretary of defense to release al-Marri from military custody within a reasonable period of time.

Here is SCOTUSblog on the ruling:

The panel majority ruled that Congress has not taken away the legal right of Ali Saleh Kahlah al-Marri to challenge his detention, thus limiting the reach of the Military Commissions Act's court-stripping provisions. "As an alien captured and detained within the United States," the Court said, "he has a right to habeas corpus protected by the Constitution's Suspension Clause." The Court said, though, that it was avoiding "difficult constitutional questions" about the MCA's court-stripping provision, finding that it could interpret the MCA to stay clear of those issues. It found that the MCA withdraws habeas only for those properly detained as enemy combatants, and it ruled that al-Marri's detention did not meet that test because of the lack of presidential authority.

The MCA is just the latest iteration in a string of attempts to limit habeus corpus, which goes back to 1996 when the Clinton Administration put the first limits on habeus corpus since Lincoln.

Don't worry, they're probably not after you. And if by strange occurence that changes, you always have recourse in the Chief Privacy Officer at Homeland Security. Don't forget to encrypt your messages to the CPO in case the guys down the hall are listening in.

From today's Rome News-Tribune:

Plaintiffs claim retailers are paying taxes on gallons of colder gasoline, which take up less space, and then keeping extra taxes when heat expands the fuel into more, less-efficient gallons at the pump.

Even a federal lawsuit filed in Rome has raised the issue of how the temperature of fuel when pumped can cost consumers — especially those in warmer states.

National Institute of Standards and Technology data shows temperatures of fuel at gas stations around the country average about five degrees warmer than the federal standard temperature of 60 degrees at which gas is priced to sell.

At Georgia gas stations, according to the federal agency that presented the data, that temperature is 12 degrees higher at 72 degrees.

The physics behind the problem is fairly simple.

At 60 degrees, a 231-cubic-inch gallon of fuel delivers a certain amount of energy.

At 90 degrees, however, the same gallon of fuel expands to more than 235 cubic inches.

Because consumers are still paying for 231-cubic-inch gallons they are forced to spend more money — and pay more tax — for the same amount of energy.

In practical terms, this means a Roman who pumped 10 gallons of gas into his truck at 90 degrees would be able to drive 196.6 miles, if the vehicle is supposed to get 20 miles per gallon.

A pdf of the suit is here.

ADDENDUM: links are fixed. Thanks!

Mark Helprin, a novelist and senior fellow at The Claremont Institute, has this NYT op-ed arguing that Congress should continue to extend the term of copyright.

At Volokh Conspiracy, Ilya Somin critiques on the important distinctions between real and intellectual property and unconstitutionality of the proposal.

At PrawfsBlawg, James Grimmelmann critiques on wealth redistribution.

The idea is similar to Landes & Posner proposal for indefinitely renewable copyright.

In the Landes & Posner proposal, depreciation of creative works over time softens the incentive effect that copyright supposedly has on innovation. In fact, unlike Landes&Posner, Helprin pays no attention to the supply elasticity of innovation. His argument is geared toward maximizing the wealth that accrues to descendants of the innovator/artist. Interpretation? Simple. The debate over copyright ain't about innovation; it's all about rent re-distribution. See also:

a) Lawyers for big time chefs are angling to protect recipes and cooking techniques. See this Food and Wine article on Hector Cantu, chef at Chicago's famous Moto. With a normative case here:

after all, chefs are certainly as creative as any other artists, but they receive no royalties, there are few ways of making serious money from cooking, and only a handful are good enough at both art and business to create a restaurant empire. And is creating an empire the solution?

b) The Design Piracy Protection Act would extend copyright protection to fashion designers for a period of three years. The fashion industry is historically well organized, cohesive almost. See Fashion Originators Guild of America v. Federal Trade Commission (1941), case here. (HT: Tanya Birman, my student)

Here's a good overview of the normative arguments by Wendy McElroy.

The neoclassical law and econ story says increasing fines and reducing monitoring/prosecution costs is an efficient enforcement strategy--same amount of crime, less prosecution and incarceration costs. Lots of research has shown that SARBOX simply shifted and increased compliance costs. Add selection effects to the pool of potential criminals, however, and SARBOX can lead to more white collar crime. From this new SSRN working paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981064.

Although the common law's embrace of a mens rea requirement in the criminal law reflected an advance - on both moral and efficiency grounds - over ancient law, recent legal developments suggest an unfortunate return to what are, in effect, strict liability crimes. Some modern criminal laws have explicitly abandoned any mens rea requirement, creating de jure strict liability; more commonly and insidiously, criminal laws applicable to many regulated industries are so ambiguously drafted, and entail such severe penalties, that the effect of the law is what we call de facto strict liability. In this article, we argue that these two trends - soaring penalties for corporate crimes and dilution of a mens rea requirement - could have the paradoxical consequence of creating more corporate crime and not, as the standard story goes, less.

We conceive of the competition for corporate control as waged by three human �types� - ideal entrepreneurs (who are risk-neutral with respect to business decisions, but risk-averse with respect to compliance with the criminal law), swashbucklers (who are risk-neutral with respect to both business decisions and criminal law compliance) and bean counters (who are risk-averse on both of these margins). From society's perspective, the optimal environment is one that allows the ideal entrepreneur to thrive. Unlike bean counters, she is willing to take entrepreneurial risks that benefit society. Unlike swashbucklers, she is hard-wired to comply with the criminal law even at substantial cost. But as the criminal law becomes increasingly draconian, and its application unpredictable - that is, as it becomes one of de facto strict liability - our model demonstrates that she will flee for other environments. As every increase in criminal penalties more thoroughly drives away the ideal entrepreneurs, adverse selection operates, and swashbucklers more completely dominate the field. The ultimate irony is that the indeterminate widening of the scope of white-collar criminal law, and the penalties that attach for its violation, may drive away the very people most susceptible to being deterred by the criminal law.

From the AP, Supreme Court eyes McCain-Feingold limits on ads.

The case before the court Wednesday involved advertisements that Wisconsin Right to Life, an anti-abortion group, was prevented from broadcasting during the 2004 campaign. The ads asked voters to contact the state's two senators, Democrats Russ Feingold (news, bio, voting record) and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.

Three interesting, perhaps telling, remarks:

Sam Alito (questioning defense): "What do you make of the fact that there are so many advocacy groups that say this is really impractical?"

Antonin Scalia: "This is the First Amendment," Scalia said. "We don't make people guess whether their speech is going to be allowed by Big Brother or not."

John Roberts: asked whether the burden should be "on the challenger to prove that they're allowed to speak, as opposed to the government to prove — to carry the burden that they can censor the speech?"

The March issue of the Harvard Law Review marks the 25th anniversary of Richard Posner's appointment to the US Court of Appeals for the 7th Circuit. The issue (available in full-text online, here) contains a brief intro by Dean Kagan and short essays on thirteen of Judge Posner's judicial opinions, written by Harvard Law professors. Well worth a look.

Just a reminder: All of Judge Posner's opinions are collected online (and searchable!) at Project Posner.

In a ten year old dispute, Brentwood Academy and the Tennessee Secondary State Athletic Association are gonna tangle in the Supreme Court......for the second time! AP story here.

WASHINGTON - A long-running dispute over recruiting high school athletes has reached the Supreme Court, where justices are being asked to decide whether a Tennessee school's free-speech rights outweigh rules limiting contacts with student athletes.

The case involves Brentwood Academy, a wealthy private school south of Nashville, and the Tennessee Secondary School Athletic Association, which governs high school sports in the state.

Brentwood Academy sent a letter inviting 12 eighth-graders to attend spring football practice in 1997. The students' parents already had signed contracts and paid deposits to attend the high school.

The athletic association said the letter violated rules against recruiting high school players, and it hit the school with a $3,000 fine and four years' probation. School officials unsuccessfully appealed twice before suing.

Arguments scheduled for Wednesday will be the second the Supreme Court has heard in the Brentwood Academy case. In 2001, the court ruled 5-4 in favor of Brentwood, saying the athletic association acted in a quasi-governmental capacity and could be sued.

That could make for some awkward awards banquets. Which there'd be plenty of for Brentwood, with sixteen state championships the past decade!!!

The 28th Annual John E. Sullivan Lecture
Friday, April 13, 2007 at 2:30 pm
Columbus Museum of Art Auditorium
480 E. Broad Street, Columbus, Ohio

Professor Randy Barnett
Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

The People or the State?: Chisholm v. Georgia and Popular Sovereignty”

Click here to register online.

Professor Barnett will be delivering the lecture, “The People or the State?: Chisholm v. Georgia and Popular Sovereignty,” on Friday, April 13, 2007, at the Columbus Museum of Art Auditorium, 480 E. Broad Street, Columbus, Ohio. The lecture will run from 2:30 – 4:30 pm and a reception will follow at the Museum.

As a legal practitioner, Professor Barnett has appeared before the U.S. Supreme Court and the Ninth Circuit to argue the medical cannabis case of Gonzales v. Raich, and he coauthored an amicus brief to the Supreme Court in the case of Lawrence v. Texas. Professor Barnett has published more than 80 articles and reviews and seven books. His book, Restoring the Lost Constitution: The Presumption of Liberty, was awarded the Lysander Spooner Book Award for the best book on liberty for 2004. Professor Barnett also has appeared on television and radio programs such as the CBS evening news, The News Hour on PBS, Talk of the Nation on NPR, and the Ricki Lake Show.

This year’s lecture is co-sponsored by the Capital University Law Review and The George H. Moor Chair at Capital University.

For more information, contact: Jessica Poprocki, Director of Communications & Special Projects, at (614) 236-6377, or vie e-mail at jpoprocki@law.capital.edu

From the AJC:

Stockbridge officials say they will drop their two-year effort to condemn and seize a flower shop in the Henry city for a town center project.

Stockbridge officials wanted Mark and Regina Meeks' Stockbridge Flowers and Gifts property for a town center project that would give Henry's largest town a true downtown.

City officials offered the Meeks money but balked at the couple's counteroffer.

The two sides reached a deal instead for the city to buy the property and give the couple retail space in the new town center. But the city backed out of that deal and decided instead to use eminent domain laws to condemn and acquire the property.

A Henry County judge ruled in 2006 that the city went too far in using eminent domain laws because it didn't prove the couple's property would be used for public purposes.

The Georgia Court of Appeals affirmed that ruling on Jan. 31.

This report indicates that after a regime shift in the 1980s, the dollar cost of the U.S. tort sytem has been relatively steady at about 2% of GDP:

Still, spending $800 for each man, woman, and child seems a little high, although I doubt the total costs of the tort system are equally spread across the population. One way to interpret this, however, might be whether individuals would be willing to spend $800 per capita ($3,200 for a family of four) for the right to sue if economic or physical damages are incurred. I think if the question were put in that context, people would think some reform (I am not sure what) might be warranted.

The Dec. 28, 1906 NYT reports from St. Louis:

Because the baby she took from a foundling home cried when she says it was guaranteed not to cry, Mrs. Bessie Buehler of 2,215 Locust Street wants to return it, and she doesn't want another in its place. One night's care of the infant was enough to convince Mrs. Buehler that it had good lungs and was determined to use them.

Such a baby, to her mind, could not take the place of her own child, who died in September. Mrs. Buehler, after being refused at the Foundling Home, went to the Four Courts and told Capt. Reynolds that when she took the child she asked for one who would keep still, and that the one given her was guaranteed to make no noise. The Captain sent a policeman with Mrs. Buehler to the home but she did not get any satisfaction.

Here's the Google Maps depiction of 2215 Locust Street. It's not too far from the stadium district.

In the Dec. 12, 1906 NYT is an article titled "A $40,000,000 Mail Graft." That's a headline to grab your attention. In 2005 dollars, the headline would read "A $895,871,559.63 Mail Graft" - okay, not down to the penny, but you get the point.

What's going on? The article explains that:

...in 1905, the New York Central Railroad was overpaid for carrying mails to the extent of $270,000, and that within the last ten years the Government has overpaid for the carriage of mails about $40,000,000...

How could this large overcharge occur year after year? Thanks to a little clever government math, the railroads were making out like, well, railroads being paid by the government^*:

The cause of these overpayments. Mr. Murdock laid to the antiquated system under the present law, which is thirty-three years old. He said it is the practice to take the daily weight of mail carried for a number of successive working days in order to get the average for the year. The Sunday weight of mail would be included in the grand total, but when the average was taken the Sundays would be stricken from the total o fdays, thus reducing the divisor without a corresponding reduction of the dividend.

For those who don't understand, the average weight per day would be calculated as

Average = Total weight / # days

The weight was calculated as if all days in the week, and hence, year were included. However, the number of days was calculated by taking away the Sundays. The result? The calculated average weight of mail per day would be overstated, the railroads were paid based on average weight carried, and hence the railroads were overpaid.

Let's take an example. Assume the government/railroad honestly measured the total weight of mail carried over the course of one week to be 100 tons. If all seven days were correctly included in the calculation of the average the result would be 100/7 = 14.28 tons per day. If, instead, only six days were used in the denominator of the ratio, the "average" would be biased upward to 16.66 tons per day! The correct average would be calculated as 85.72/6 = 14.28, that is, it wouldn't change.

Was this fraud? I am no lawyer, but I don't think so. After all, the government established the payment system through legislation - which is genius. If the railroads were purposefully overstating how much actual mail was being carried, that would seem fraudulent. Yet, if the railroads were already making 16% more through the "new math" of the government, perhaps they were less prone to engage in fraud that could actually get them in trouble.

Incredible.

* Rather than "like bandits"

Don Boudreaux poses a sensible retort to those who oppose trade that is not "fair": They should "ask themselves if they would trust government with the power to distinguish 'fair' from 'unfair' speech and to suppress or penalize all speech declared to be 'unfair.'" I'm sure Don meant this as a legitimate rhetorical question. Unfortunately, though, many do wish to limit speech that is not "fair" and doing so was enshined in the Fairness Doctrine (1959 - mid1980s). Many, Fairness and Accuracy in Reporting among them, would welcome its revival.

In addition to my job at Berry, I do some forensic economics consulting. Mostly I estimate lost earnings in personal injury or wrongful death cases. (To those who think the legal system has some abuses, I agree. However, I think abuses are mostly in class action cases. I also think people have a right to seek damages for injuries they suffer, and I mostly agree with Alex of MR about the incentives facing contingent fee lawyers.)

To the point, I had a deposition earlier this afternoon. I entered the lawyer's office at the same time as one of the defense attorneys who was deposing me. We both told the receptionist that we were there for the deposition, we gave her our names, and we sat down. The lawyer then introduced himself to me and I introduced myself to him. He had now heard my name twice, and one would have thought that he would have recognized my name from the damage report I prepared. But no.

Presumably thinking that I was the other defense attorney coming for the deposition, he proceeded to tell me that he had an economist look over my report and that I had gotten the numbers about right (though in the other economist's opinion, my estimates in one part of the report were too high and my estimates in another part of the report were too low). I was inclined to reintroduce myself, but he blurted out his comments too quickly. About that time, though, the other attorney arrived. He recognized my name as we introduced ourselves and said something like "you're the one we're deposing right?" The look on the first attorney's face was priceless.

We have our merry band of bloggers here at DOL. I would guess that most readers are familiar with The Institute for Justice, which has their merry band of litigators defending individual rights and the rule of law. IJ has always done important work, but recently they've landed an impressive string of blows in the proverbial good fight.

You know about the Kelo case, which was a nominal defeat but fueled a backlash that, by the time it runs its course, may end up strengtheninig property rights. More detail on this below the fold.

Since Kelo, IJ has won a development takings case before Ohio's Supreme Court, Norwood v. Horney, the first of its kind to reach a state supreme court after Kelo. If you're into the whole Stackelberg leader idea, this is an important signal to courts in other states.

IJ has also meticulously documented the extent of eminent domain "abuses" (roughly, takings for economic development purposes). Two reports by IJ senior attorney Dana Berliner, one pre-Kelo and one post-Kelo, count the state-by-state filings of eminent domain for economic development, from 1998 through middle of 2006. Good stuff.

IJ's current splash is their new lawsuit against the city of Riviera Beach, Florida. The scenario is familiar. The mayor and city council expanded the city's redevelopment area, hired a big developer to put in a new fashionable multi-use complex, and threatened eminent domain on lont-time property owners to pave the way. IJ filed suit on behalf of four property owners yesterday.

Last week, IJ Senior Attorney Scott Bullock was out at San Jose State to give a Kelo lecture. He did a great job fielding questions, everything from Austrian-subjectivist critiques of "just compensation", to 14th Amendment selective incorporation stuff, to how the Roberts Court might have decided Kelo.

Like Richard Posner, IJ seems to be okay with eminent domain for "traditional public uses" under holdout problems. Others are more hawkish, such as Bruce Benson's article in The Independent Review undermining the holdout justification. Even for right-of-way, holdout-likely, traditional public uses, eminent domain poses serious problems for efficiency and for giving property owners the right incentives. Yesterday in Tehachapi, California, a homeowner had this to say about his struggle with the city over a proposed road (article).

“We’ve been notified that the road [Pinon Street] goes through our garage and the city has told me there’s nothing I can do about it,” Timothy Dunn said to the council...."If you take my garage, you take my whole property. Someone’s going to pay for the stress,”...

IJ has a knack for choosing sets of facts that will lead to larger ramifications when brought to court. In general, I think IJ deserves a fresh round of props for doing good work on many fronts, including and especially to stem the tide of development takings.

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From the AJC:

A woman prosecutors called a serial yarn thief will spend a year in jail after pleading guilty to shoplifting Monday in DeKalb County.

Audrey Yandel, a 70-year-old Atlanta grandmother and a retired nurse, has been convicted 12 times in the past two decades, mostly for stealing yarn, according to DeKalb Deputy Chief Assistant District Attorney John Melvin.

In the DeKalb cases, Yandel was caught stealing yarn at a Decatur shop in January 2005 and knitting needles at a Dunwoody business in May 2006.

Kidding aside, I doubt spending perhaps $25k to lock up a serial yarn thief is good use of taxpayer funds. This is a crime that seems more appropriate to punish via a stiff fine.

Greenleaf, Idaho -- All Americans have the right to bear arms. Some towns have even gone as far as to require each household to have a gun. Now a small Idaho town is contemplating a similar idea-- it's called the Civil Emergencies Ordinance. And although gun ownership is just one piece of this ordinance, it's the part that's getting the most attention.

"We've blessed to be a fairly rural area of the state, so we don't have a lot of crime and I think we'd like to keep it that way," said Lee Belt, Greenleaf city clerk.

Drive about 10 minutes west of Caldwell and you'll run into Greenleaf, Idaho, population 860. If city council member Steve Jett has his way, each head of household that can legally own a gun, will. Along with that they're encouraged to have ammunition and appropriate training.

Story here. Chuckles aside, the right to own a gun is a good thing but folks should not be required by law to do so.

Judge Robert G. James of the United States District Court, Western Division of Louisiana, has said that it is criminal trespass for the American boating public to boat, fish, or hunt on the Mississippi River and other navigable waters in the US.

Judge James ruled that federal law grants exclusive and private control over the waters of the river, outside the main shipping channel, to riparian landowners. The shallows of the navigable waters are no longer open to the public. That, in effect, makes boating illegal across most of the country.

"Even though this action seems like a horrible pre-April fools joke, it is very serious," said Phil Keeter, MRAA president, in a statement. "Because essentially all the waters and waterways of our country are considered navigable in the US law, this ruling declares recreational boating, water skiing, fishing, waterfowl hunting, and fishing tournaments to be illegal and the public subject to jail sentences for recreating with their families."

Found here.

more here

From CNN.com:

NEW YORK (AP) -- Margaret Johnson might have looked like an easy target.

But when a mugger tried to grab a chain off her neck Friday, the 56-year-old Johnson, while riding in her wheelchair, pulled out her licensed .357 pistol and shot him, police said.

"There's not much to it," she said in a brief interview. "Somebody tried to mug me, and I shot him."

Deron Johnson was taken to Harlem Hospital with a single bullet wound in the elbow, police said.

See also this John Derbyshire article.

From the AJC:

A California Korean grocers group is suing former U.N. Ambassador Andrew Young and Wal-Mart Stores Inc., alleging libel over Young's derogatory comments about small grocery stores in urban communities.

Young resigned as head of a Wal-Mart advocacy group Aug. 18 after saying Jewish, Korean and Arab grocers "ripped off" blacks by overcharging them for "stale bread and bad meat and wilted vegetables."

The suit, filed in Los Angeles County Superior Court last week by Paul Park, the president of the California Korean American Grocery Retailer Association and his group, seeks $7.5 million in general and special damages and an unspecified amount in punitive damages.

Young's comments were not only false, according to the suit, but they injured the reputations of Korean American grocers, hurt their sales and therefore also damaged the association.

Eugene Volokh, a law professor at the University of California, Los Angeles and an expert in libel law, said the plaintiffs are not likely to succeed.

"As a general matter, you can sue if someone makes false statements about you personally," Volokh said.

"You can sue if someone makes false statements about a small group of people, including you," he continued. "But when statements are made about a very large group, no particular member of that group can sue for libel."

Wal-Mart didn't make the statement, Andy Young did. I'm wondering if this is really about taking a crack at Wal-Mart's deep pockets.

Advertising Age reports on a sweeping legal decision against big tobacco concerning the sale of "lights" and "ultralight" cigarettes. Specifically, it seems one U.S. District Court Judge Gladys Kessler has decided that the cigarette companies cannot sell light cigarettes. I take this to mean that instead of "Camel Lights" the cigarettes will be called something else that all smokers will associate with "Camel Lights" but that the title does not convey.

From the article:

Judge Kessler's 1,742-page decision -- the order was another 18 pages --included sweeping limits on tobacco makers. Among them:

the use of the terms "low tar," "light," "ultra light," "mild" and "natural" are banned;

for two years, big tobacco is required to buy full-page corrective advertising monthly in the Sunday editions of more than two dozen major newspapers with the schedule alternated so the ads appear at least weekly;

major tobacco makers are ordered to run 15-second corrective TV spots once a week during prime time for a year;

packaging and in-store signs must carry new corrective advertising.

What exactly is a 15-second corrective spot? What exactly is corrective advertising? What exactly has been the harm? Is anyone going to read a 1700 page legal opinion? (here it is if you want to try)

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In democracy it's your vote that counts; In feudalism it's your count that votes.

Mogens Jallberg

The July print edition of Reason interviews (no link yet) Alex Kozinski, federal judge on the 9th Circuit Court of Appeals. Reason argues that a series of famous dissents from both liberal and conservative majorities "has earned him a reputation as one of the most libertarian judges in the country." Yet Kozinski argues for broad state powers and attenuated individual rights in many situations, especially where there is a security threat. The interview is far reaching and a good read. I was particularly drawn to the dialogue on Kelo v. New London.

Reason: What did you think of the Supreme Court's ruling in Kelo...?

Kozinski: I was really surprised by all the uproar over Kelo. I just can't imagine how it could have come out any other way.

Reason: You don't see a problem with government dispossessing people--

Kozinski: They were paid for it. They were not dispossessed.

Reason: But they didn't want to be moved. They didn't want to be paid off. You don't see a problem with government taking away private property, not for a public use like building roads, but for other private uses?

Kozinski: What's the difference between taking property for public roads or anything else? Do only public automobiles travel on public roads? I don't understand why it's a problem. If the government thinks the city will benefit by having a road there instead of having your house so that people can drive their private cars on it, then it has to make that decision. Who owns the road really doesn't matter. What matters is that it makes it easier for other people to get from point A to point B using their private vehicles for private purposes. You could say "but it's my house and my private purpose is more important than your private purpose." But we live in a society.
When you have people living in such close proximity, someone has to decide the question of whether you get to use your house for your purposes or whether other people use it to drive to work or other people use it to run a business, and it is not completely up to you. You are objecting to Kelo because property was taken for privately owned businesses. But the businesses provide services to lots of people. so if the city thinks there should be a private business instead of a private house, it has to make that decision. If you want to decide on your own, you can go live in a forest.

Reason: And you're comfortable with government making the decisions in the way that it does?

Kozinski: I don't see who else could make them. Would you rather have courts make those decisions? The Constitution clearly says that the government can use its eminent domain power to take away property.

Reason: Is there any limit to when and how the government can take property?

Kozinski: It has to pay for it. And it has to go through the normal process of government to make a decision and follow the due process.

Elsewhere in the interview Judge Kozinski says he was influenced by Milton Friedman and Adam Smith while studying economics as a UCLA undergraduate. One could search a long time for that influence in Kozinski's Kelo argument, which seems to wholly ignore the price system as a rationing device. If a society would be better off with a business on the site of your house, then it's the job of that business to come pay you for your property. (I believe that's how Milton Friedman might put it.) Kozinski seems to think the only entity capable of paying someone for their property is the government, and then only because the framers included just compensation in the 5th Amendment.

A few more notes:
1. Property may not flow to its highest valued uses through private transactions when the seller has a very high sale price. As Richard Posner argues, land heterogeneity and reloaction costs can cause owners to have a high "idiosyncratic value," which may exceed developers' willingness to pay even though they have a better use for the land. In practice, however, there often exist sufficient gains from exchange that owners can get the market value of their home (qua home) multiplied several times over. Here are a series of examples in one town embroiled in the eminent domain issue.

2. There is also the well-worn hold out problem. See the incomparable Bruce Benson, arguing in The Independent Review that even roads do not necessarily justify eminent domain, even in the presence of a hold out problem.

3. Here is SC Justice Thomas arguing that "The Takings Clause is a prohibition, not a grant of power."

4. Actually the residents in the Kelo case, Susette Kelo and others, are still in their homes in Fort Trumbull, CT. Due to legal wranglings and forthcoming state legislation, they will likely get to stay.

5. As for Kelo itself, next Friday is Jue 23, the one year mark of the infamous ruling.

Kozinski's lighter side is alluring. Asked what he thought of Romanian communism, which he lived through until emigrating at age 12, he told Reason:

I was a very committed communist when I was there. I believed in communism, and I thought it was the wave of the future. When my parents applied to leave, I thought it was a good thing because I'd be able to educate the workers of the West that they were being enslaved by capitalist exploiters. When we arrived in Vienna, I discovered bubblegum and chocolate. These things were nonexistent in Romania, and I immediately became a capitalist. I was easily bought off.

Maybe it's his charm, but according to federal judiciary "tablog" Underneath Their Robes, Kozinski is up there with Chief Justice Roberts and 6th Circuit Jeff Sutton in the "Superhotties of the Federal Judiciary" ranks. Well, well. Comments?

"No man's life, liberty or property are safe while the legislature is in session," goes an old saying. But now and then a legislature does something right, even if it is only correcting something the legislature did before.

The Florida legislature closed out its session last week by passing legislation allowing dogs to join their owners in outdoor seating at restaurants. The law had formerly prohibited their presence, even in these outdoor areas. Yeah! One thing I always liked about living in Ecuador many years ago was the ability to take my dog into restaurants. This is the kind of thing that really has little to do with public health, and that the market is perfectly good at regulating. This small step to increase freedom will make the lives of thousands of Floridians just a little bit more enjoyable.

And note, too, that the legislature also did away with a per drink tax on alcoholic beverages, and named a state pie - the former being an objectively good thing, the latter a better use of time than many other things they could have done. They provided for voter registration at bait shops and gun shops, which for some reason the St. Pete Times doesn't like - presumably, the paper is all for easier registration, just not of gun toting, fishing yahoos.

On bigger things, the legislature's record was mixed. But allowing dogs into restaurants - well, I'm thinking of moving south.

The first two paragraphs of "Wal-Mart stoppers mob hearings" in today's Washington Times paint an ugly picture:

A stream of officials from the banking industry, unions and consumer groups -- allies for once -- urged federal regulators yesterday to reject a bid by Wal-Mart Stores Inc. to expand its empire into the banking business.
A company official, meanwhile, assured the Federal Deposit Insurance Corp. that the nation's largest retailer had no plans to compete with community banks, including branches within its megastores.

Now that's a relief, eh?

I was clearing things off my hard drive while getting ready for APEE and I came across this essay I wrote some time ago on suicide. I wrote it for an essay contest and so was severly limited on space and what exactly I could say (hence the random book mention). I am not sure how much I am persuaded by the arguments I put forth, but I thought I'd share it regardless. I've put the essay below the fold.

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Hoo-boy! First the Maryland General Assembly directs Wal-Mart to follow its wishes as to employee health benefits, now it's getting into the business of merger "review." Yesterday the Legislature passed a bill designed to derail the proposed merger of Constellation Energy and FPL Group. Constellation is, among other things, the parent of Baltimore Gas & Electric (BGE). According to the Washington Times, the merger "does not figure in BGE's 72 percent rate increase, which is expected to jolt the utility's 1.1 million customers beginning July 1.

But lawmakers, most of whom are seeking re-election, have threatened to delay the merger to persuade utility executives to lower the increase. The bill would establish a special counsel who would review utility mergers and report to lawmakers, thereby delaying the merger by at least a year."

The governor is considering whether to veto the bill.

The combined Constellation-FPL, according to the firms' press release, would have annual revenues of $27 billion, $57 billion in total assets, and a market cap (based on current market values) of $28 billion -- "the nation's largest competitive energy supplier and its second-largest electric utility portfolio." The reach of the new company would extend well beyond Maryland and Florida customers. Specifically:

"Its competitive wholesale and retail businesses will serve thousands of commercial, industrial and utility customers, including 72 of the FORTUNE 100 companies. Its generation portfolio will be the nation's largest, exceeding 45,000 megawatts of capacity. It will be the third-largest nuclear plant operator in the United States, owning and operating seven nuclear power stations with eleven units, including FPL Group's pending acquisition of the Duane Arnold nuclear station."

So what we have here is a state legislature attempting to sink a merger that would have a clearly significant national impact. Whether you call it extortion or simply hardball is up to you, but I don't think you can deny that it is state parochialism in either case.

Word is that H.R. 1606, the On Line Free Speech Act, will brought to the House for a vote next Thursday.

This bill preserves an exemption for most internet communications - including group blogs such as this one - from regulation under the McCain-Feingold campaign finance bill. The exemption was originally adopted by the Federal Election Commission after McCain-Feingold passed four years ago, but last fall a federal judge, at Senator McCain's urging, held that this was an impermissible interpretation of the statute, and ordered the FEC to write new rules regulating the internet. So all H.R. 1606 attempts to do is preserve the status quo from efforts to regulate more (yeah, that's the problem with politics today - too many people blogging and sending emails around!).

Last fall the bill came before the House and got a majority of the votes, 225-182, but because it was brought up under a special rule, it needed a two-thirds majority to pass. This time, a bare majority will do, the "reformers" are working overtime to kill it, with a variety of misrepresentations, as former FEC lawyer Allison Hayward notes here. If it passes the House, it looks good in the Senate - both Harry Reid and Bill Frist have endorsed it.

This bill deserves the support of anyone and everyone who cares about free political speech on the web. But a major scare campaign is underway from the campaign finance "reform" community (to which I respond here). Congressmen and Senators need to hear from folks - especially here in Ohio. Last time out, six Ohio Republicans voted against the bill: Hobson, Schmitt, LaTourette, Turner, Regula and Gilmore. Only 35 Republicans voted no overall.

Steve Hoersting, Executive Director of the Center for Competitive Politics, and I have this piece up on National Review Online. We note that as part of "lobbying reform," Congress appears poised to place restrictions on "grassroots lobbying," i.e. "call your congressman" type stuff aimed at stimulating voter to legislator contact. We think this is exactly the wrong way to go. The op-ed is adopted from this longer primer released by the Center. By the way, the Center is a new 501(c)(3) organization; you'll see the website substantially upgraded soon.

I've been a busy boy of late, also writing these three posts on campaign finance reform for the popular political blog Redstate. My basic argument: Republicans are stupid, and in their myopic desire to regulate George Soros funded "527" organizations they are a) shooting themselves in the foot, and b) squandering an opportunity to repeal at least portions of McCain-Feingold.

Last week I took a swipe at Paul Krugman's desire for government to decide on the medical treatment that people receive. Hopefully Krugman will take a peek at his NYT colleague John Tierney's piece on the federal government's prosecution of docs who prescribe pain meds. An excerpt:

The Supreme Court agreed with her this week in upholding the Oregon law. In the majority opinion, Justice Anthony Kennedy said the federal drug law did not empower the attorney general "to define general standards of medical practice." It merely "bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood."

That's news to the D.E.A. and the federal prosecutors, who have gone way beyond any "conventionally understood" idea of drug trafficking. They've been prosecuting doctors for prescribing painkillers like OxyContin, even where there's no evidence of any of the drugs being resold on the streets. It doesn't matter that the doctor genuinely believed that the patient needed the drugs and was not abusing them. It doesn't matter that the patient was in pain.

No, doctors are now going to prison merely for prescribing more pain pills than the D.E.A. and prosecutors deem a "legitimate medical purpose." These drug warriors are not troubled by the enormous range in the level of pain medication that different patients need.

...a pain specialist might have a one-in-three chance of being investigated for prescribing opioids.

Faced with those odds, doctors are understandably afraid. As noted in The New England Journal of Medicine this month, the D.E.A. has made doctors reluctant to give opioids to desperately ill patients, even when these drugs are the most effective pain treatment. The article warned that a victory for the Bush administration in the Oregon case, besides affecting terminally ill patients in Oregon, could cause doctors across the country to "abandon patients and their families in their moment of greatest need."

Watched CNN yesterday while eating lunch, and they had a story about parents and "advocates" suing Viacom and Kellogg for the advertisement of unhealthy cereal and snacks. Who are the "advocates?" Even though they may not have convinced us all to give up 2% milk or Mexican food, it's the Center for Science in the Public Interest. I guess public interest science is defined as legal representation in lawsuits.
They will ask a Massachusetts court to enjoin the companies from marketing junk foods to audiences where 15 percent or more of the audience is under age eight, and to cease marketing junk foods through web sites, toy giveaways, contests, and other techniques aimed at that age group.
Why eight? Why 15 percent? Does CSPI not care about the other 85%? Or about obese nine-year-olds?
'As a parent, I do my best to get my kids to eat healthy foods,' said Sherri Carlson, a plaintiff and mother of three. 'But then they turn on Nickelodeon and see all those enticing junk-food ads...This irresponsible marketing to young children undermines my efforts as a parent and must be stopped.'
I suppose if your efforts as a parent are so weak that you can't either a) monitor what your kids watch on TV (get a TiVO and skip past the sugary ads!) or b) resist your kids' pleas in the grocery store, you probably do need help from enlightened advocates and the police power of government.

Ford closes a bunch of plants and people are in an uproar. On Kudlow & Company yesterday, Larry wondered whether the government will ever close up any of its obsolete or inefficient operations for cost-cutting.

One of the more curious lines of questioning during the Alito hearings was on the "Unitary Executive." Some Democrats seemed to think that this was the equivalent of a secret handshake among conservatives out to destroy the constitution.

Exhibit A of this conspiratorial mindset is an article by Jeffrey Rosen in the New Republic. (Unfortunately, the full piece is subscription only). I single out Rosen because he is generally smart and fair, and the New Republic equally so - making the attacks all the more curious.

Analysis below the fold...

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