Division of Labour: Law Archives
April 24, 2012
On response to disaster c. 1912

From the April 23, 1912 NYT:

Ceaseless efforts are being made at Southampton to put enough boats aboard the Olympic before her sailing on Wednesday.

It is absolutely essential that this be done, for otherwise, it is understood, the passengers and crew insist that the sailing be postponed.

It has not been possible to get the necessary number of solid lifeboats in time, but thirty-five additional collapsible boats arrived aboard this afternoon, and five more are expected.

The boat deck will be almost entirely filled with boats.A thorough testing of all the life-saving appliances, and, possibly, an elaborate boatdrill will be held before the Olympic sails again.

The Olympic will take aboard at New York the lifeboats of the Titanic, which are now there.

This comes one week after the Titanic sank. While there are Congressional hearings under way and many proposals to change the regulations focusing on life boats, the market quickly began to put pressure on ship lines to ensure there were sufficient lifeboats to serve everyone on the ship (passengers and crew).

What I didn't know until reading about the immediate aftermath of the Titanic was that the White Star Line was in complete compliance with the rules of the time concerning the number of life boats on the ship. Essentially, it seems, the Titanic (and her sister ships) were given "lifeboat credit" for all of the watertight compartments the ships had. Thus, while it would seem that a ship would naturally carry enough life boats for all on board, if the assumption was that the ship could not sink and that water tight compartments essentially substituted for life boats, then this (in part) explains the lack of life boat capacity.

I wonder if this is a market failure or a government/regulatory failure?

Regardless of the regulatory environment in the US or the United Kingdom, the market immediately moved to a model of full capacity in lifeboats.

Posted by Craig Depken at 11:47 AM in Law

April 16, 2012
Free Martha, The Sequel

Bill Frezza asks, I suppose rhetorically: "Justice may be blind, but who works overtime to make it deaf, dumb, and stupid? "

Jon Corzine skates, but "marine biologist and whale watching ship captain Nancy Black faces 20 years in prison, not for "harassing" whales (which believe it or not is a crime), but because she has been charged with lying to Justice Department prosecutors investing allegations that some of her crew members whistled at a whale to keep it hanging around their boats."

Basis for the misconduct:

Title 18, Section 1001 of the United States Code is the successor to the False Claims Act of 1863, originally intended to punish crooked Civil War contractors. It has since metastasized into an all-purpose bludgeon that federal prosecutors routinely use to squeeze fines and plea bargains out of anyone unfortunate enough to become ensnared in one of the hundreds of thousands of regulations that govern everything from selling goldfish to the volume of your toilet flush.

As Supreme Court Justice Ruth Bader Ginsberg characterizes it, Section 1001 has conferred "extraordinary authority" for prosecutors to "manufacture crimes."

Posted by Wilson Mixon at 05:23 PM in Law

April 18, 2011
Best sentence this week

From (who else?) Don Boudreaux: Only the most naïve social creationist equates the dictates of strongmen (or of groups of strongmen, such as assemble in legislatures) with “law.”

I hope to make "naïve social creationist" a part of my lexicon.

Posted by Wilson Mixon at 01:53 PM in Law

April 03, 2011
Schools for Misrule

That's the title of Walter Olson's new book on America's dysfunctional legal education industry. Judge Douglas Ginsburg appeared with Olson at a recent Cato function to discuss the book. The 90 minute video is here. I strongly recommend it. I think most DoL readers will enjoy Ginsbrug's take-down of behaviorial law and economics.

Posted by Mike DeBow at 09:42 PM in Law

March 06, 2011
Are States Necessary?

From AlJazeera, "A Middle East without borders?"

We can probably find a plethora of reasons why a real political and economic union would not work in the Arab world. [. . .]
But, this would be to dismiss the thrust towards a common set of goals in the Arab world. Borders are increasingly irrelevant in this new equation. The means of mass communication, interdependency, pan-regional media, ease of access through improved infrastructure, the identification with a cause rather than a country, all suggest that the political awakening in the region may be conducive to a completely different set of political and economic realities.

The nation state as we know it, as it was imposed on the region by colonial powers, is ripe for change. The unleashing of people power has now opened up new possibilities for mapping the Arab world's future. While protesters across the region have been waving their respective national flags, the cause for which they are fighting and risking their lives extends well beyond their immediate borders.

Of course, we have developed a network of state-to-state coercion and support that will make any move in this direction unlikely to succeed.

Posted by Wilson Mixon at 09:14 AM in Law

November 17, 2010
Penn Gillette's latest on TSA

Last year's co-recipient of APEE's Thomas Jefferson Award, Penn Gillette, recounts a recent experience with TSA that we should all take as seriously as he does.

(How to become a) Federal V.I.P.

I'm boarding a flight in a few hours (in Guatemala) and will be mindful of Penn's example when going through TSA security on my connection in Houston.

HT: Jen Thompson
NB: The date on this post is not correct; Penn just posted it a few days ago...

Posted by Edward J. Lopez at 10:44 AM in Law

September 18, 2010
Do-it-yourself constitutional history webites

Hillsdale College requires all its students to take a course on the U.S. Constitution. "The Constitution Reader" for the course emphasizes source documents and an historical view. It has recently been put online and can be accessed by clicking here.

George Mason law school requires a course on The Founding as a prerequisite to the more traditional Con Law course. This wonderful innovation requires students "to read a large number of important original legal sources familiar to the founding generation, ranging from Magna Carta and the English Bill of Rights to the Federalist (and Anti-Federalist) Papers, along with constitutional debates at the Philadelphia Convention and in the First Congress. While a few law schools offer narrowly-focused elective classes dealing with constitutional history, none has a comprehensive, required course comparable to Constitutional Law: The Founding." For the syllabus, "online readings," and other course materials, click here.

(BTW, the new look on the GMU LEC website is pretty nifty!)

Posted by Mike DeBow at 03:15 PM in Law

September 16, 2010
An honest (and revealing) headline in a law school publication

Yesterday I received a copy of the latest issue of "The Law School Magazine," a publication of the NYU School of Law. I am not a graduate of that school. I assume I'm on their mailing list on the slim chance that I might be canvassed by US News & World Report in its annual law school ranking. At any rate, the NYU magazine is consistently among the most elaborate and expensive-looking of the many such publications I see. It is printed on expensive stock and is chock full of color photos; perfume advertising inserts would not look out of place.

All law schools engage in windy self-congratulation, and NYU is no exception. As I flipped through the mag yesterday, I saw story after story about faculty and alumni and current students of NYU and their many noble and important accomplishments. In the midst of all this hot air, the headline "The Libertarian Among Us" came as, well, a shock. Not only does the headline not laud its subject -- the indispensable Richard Epstein -- it can be read as evidence of a certain paranoia about having such a creature anywhere near the NYU law school. I mean, it sounds like the title of a '50s horror movie, doesn't it?

On the other hand, maybe I'm reading too much into this. Maybe the author of the profile wrote with his tongue (at least partly) in cheek. And, to give the author credit, both the title and the body of the article are nothing if not honest. Libertarians are exotic creatures in American law schools, alas. More's the pity.

Posted by Mike DeBow at 11:20 PM in Law

September 08, 2010
Government: A lying, threatening bully

You know something I really hate? Those nagging, threatening, lying government commercials. The worst all seem to come from the National Highway Safety and Transit Authority, a division of the U.S. Department of Transportation. You know the ones, like these for drunk driving: "There is no where to hide. We will find you. Cops all across the country are cracking down like never before."

Or especially these for seat belt usage: "From coast to coast, cops are cracking down on seat belt violations. Buckley up day and night, or expect a ticket. It doesn't matter who you are or where you live..."

Obviously, I don't support drunk driving, and I always, as a matter of choice and comfort, wear a seat belt. But these ads, to me, summarize everything wrong with government. Leaving aside the basic nanny state issue of the government requiring us to wear seat belts (older folks will recall how we were assured over and over that failure to wear a seat belt would never become a primary offense), these are just nagging and irritating. I'm not sure why I should pay taxes so that my government can threaten me. And they're lying too - cops are not "cracking down" everywhere, and most drunk drivers and seat belt non-users don't get caught.

I just find something really distasteful in having the government use my tax dollars to run these lying, bullying, threatening ads about what a wonderful police state they have, so I'd better buckle my damn seatbelt.

Posted by Brad Smith at 11:35 PM in Law

February 25, 2010
The Pinto Treatment

Frank correctly observes that Toyota is getting the Pinto treatment. Wikipedia provides a good summary of Gary T. Schwartz's review of the central case in that episode: "The number who died in Pinto rear-impact fires, according to Schwartz, was well below the hundreds cited in contemporary news reports and closer to the twenty-seven recorded by a limited National Highway Traffic Safety Administration database. Given the Pinto's production figures (over 2 million built), this was not substantially worse than typical for the time. Schwartz argued that the car was no more fire-prone than other cars of the time, that its fatality rates were lower than comparably sized imported automobiles, and that the supposed "smoking gun" document that plaintiffs claimed showed Ford's callousness in designing the Pinto was actually a document based on National Highway Traffic Safety Administration regulations about the value of a human life rather than a document containing an assessment of Ford's potential tort liability."

The original Rutgers Law Review article is here.

Posted by Wilson Mixon at 08:12 PM in Law

January 23, 2010
A great First Amendment win

The Supreme Court's decision this week in Citizens United v. Federal Election Commission is a wonderful blow in favor of free speech and free elections. I won't go into detail here - suffice it to say that it frees up tens of thousands of small businesses and union locals to participate directly in politics, speaking out on issues of importance to them as corporations and unions. And suffice to say that the government argued - I'm not kidding - that the Constitution allowed it to ban books, movies, Kindle downloads, if they were produced or distributed (as they all are) by corporations.

I've got a piece at the Wall Street Journal, one at USA Today, and a third up at AOL News. Collect them all!

You can check out the Center for Competitive Politics links here and here for more news and round up.

Also, here you can find my broadcast on NRA Radio last night. Look at the links on the right to go directly to my segment. I'll also be on NPR at 2:15 on Monday.

And finally, there is an important corporate law issue to this case, and I recommend you go to ProfessorBainbridge.com to read up on them - scroll down a bit, he's got several entries on the case.

Posted by Brad Smith at 11:38 AM in Law

December 01, 2009
New, improved (free) online sources for legal research

Google Scholar's move into case law retrieval is a big deal and also major bad news for Lexis and Westlaw. This competition should be very interesting.

The Federal Register dating back to 2000 has been converted into XML. Details here.

More to come.

Posted by Mike DeBow at 01:18 PM in Law

October 05, 2009
What are the 10 best Supreme Court decisions?

Libertarians generally tend to believe that the Supreme Court has largely failed to protect individual rights in accordance with the Constitution. Last year, Chip Mellor of the Institute for Justice and Robert Levy of the Cato Institute published "The Dirty Dozen: How 12 Supreme Court Cases Radically Expanded Government and Eroded Freedom," outlining Supreme Court decisions that, well, radically expanded government and eroded freedom.

But obviously, not all Supreme Court decisions are bad. Sometimes the Court has stood for freedom. So what are the Top 10 Supreme Court cases for freedom? I'll open comments - please share your thoughts on the 10 best Supreme Court decisions for liberty, with a few sentences, if you can, on why you think that.

Just to start, I'll name just one case that would be on my list - not necessarily at the top, but definitely on the list: Schecter Poultry Corp. v. United States. I think most Americans don't realize how close the United States came to adopting a fascist economic system during the Great Depression, and the extent to which the National Industrial Recovery Act (NIRA) threatened freedom. The Court's decision was instrumental in keeping the U.S. operating as, mainly, a market based economy. Additionally, people don't realize the extent to which the National Recovery Administration fostered populist, extra-legal assaults on all dissent from the system it sought to impose. When I tell students what the NIRA actually required, most can't believe that the U.S. would ever have adopted so fascist a system for production. The Court's invocation of the non-delegation doctrine (never invoked since) to strike down the NIRA is one of the few times the Court has stood against mass popular opinion to strike down a law grossly infringing on economic freedom.

So please, have at it. What are the Top 10 Supreme Court decisions for freedom? (More below the fold, and be sure to check out comments)

Read More »

Posted by Brad Smith at 08:43 PM in Law  ·  Comments (41)

July 30, 2009
Posner interviewed, "How Judges Think" reviewed

Yesterday I stumbled upon the webbed version of the April 2009 issue of the Duke Law Journal, which is devoted to empirical studies of judges and the judcial branch. If you scroll down, you'll find a most interesting interview of Richard Posner, and a review of Posner's most recent book by the dean at Duke.

Here's my favorite bit from Judge Posner: "It’s as if lawyers had absolutely no conception about the conditions under which [appellate] judges work. We don’t know that much in the first place and we don’t spend that much time preparing for the individual case."

Posted by Mike DeBow at 03:34 PM in Law

June 23, 2009
Scrap "judicial activism"? Pros and Cons

Can we say whether the Roberts Court exhibits "judicial activism"? Who cares. The term lacks coherence and ought to be scrapped, argues Jost on Justice. In certain cases of the current term, we have judicial restraint (District Attorney's Office v. Osborne), in others apparently activism (Herring v. United States, Gross v FBL Financial Services). Jost concludes:

Some critics might...accuse the Roberts Court of unacknowledged activism. The better view is to evaluate each ruling on its terms without resort to labels. Interestingly, that is the approach that Richard Epstein, a leading conservative law professor at the University of Chicago, urges in evaluating Judge Sotomayor’s rulings. The phrase judicial activism “tells you nothing,” Epstein remarked to the New York Times. “The term ought to be scrapped.”

That view seems persuasive, but does it also tempt us not to question the proper role of the judiciary? Whatever label you want to use, the judiciary best serves a free society when it checks the powers of the executive and legislative branches at the federal, state and local levels to their constitutional limits, while not overstepping its own constitutional authorities. Whether judges uphold this principle is partly a function of their incentive structure. Perhaps ironically, when judges have no incentive to rule one way or the other, their rulings are more likely to uphold (as they see it) the constitutional powers of the respective branches. "Because the outcome of a case decided by an independent judge does not affect his or her wealth or power, it costs judges no more to do what they think is right than to do what they know is wrong." (Cooter and Ulen Law & Economics, 4/e p.425)

Of course, judicial independence is itself a tricky issue (do we want a court that's free to indulge in ideological or fashionable views?) and different institutional arrangements achieve independence in different ways. To both simplify and further complicate, Andrew Hanssen (AER 2004) suggests that there is an optimal extent of independence (simple), which depends on how politically competitive the other branches are (complicated).

Similarly, in a free society there is an optimal extent of judicial activism, one that's very tricky to pin down. This trickiness probably explains why "judicial activism" is something of a bright line that divides political ideologies. Conservatives want courts to uphold laws that legislate morality; whereas libertarians are happy to see the courts uphold privacy and individual rights against factional mores. Liberals want activism for social justice; libertarians want the courts to protect economic rights. They're all arguing whether we're on the right side of the optimum, not too much unlike a Laffer curve in tax policy. This trickiness probably also explains the urge to drop the "judicial activism" label: let's move on already! Okay, let's. But while systematic patterns across a range of rulings may be elusive, it is still worthwhile to evaluate individual rulings vis-a-vis the proper role of the judiciary.

A few useful pointers I want to save:
- Clint Bolick presents a libertarian case for activism.
- Reason has a nice (IMO) essay by Damon W. Root connecting a principled activism with the benefits of a free society.
- Here is Richard Epstein on Justice Scalia's judicial activism
- Here is my former student Greg Rhemke on Scalia versus Epstein on judicial activism.
- Russ Sobel's and DOLer Josh Hall's new book, The Rule of Law (ch. 8), has a good discussion including the tidbit that Arthur Schlesinger coined "judicial activism" in the late 1940s. (While you're at it, check out my chapter 7 in that book, "The Law and Economics of Property and Contract".)

Posted by Edward J. Lopez at 10:36 AM in Law

May 30, 2009
Reviewing Stearns and Zywicki (forthcoming), Robinson Crusoe and the Constitution, Maryland's mobile millionaires

"Public Choice Concepts and Applications in Law" by Maxwell Stearns and Todd Zywicki is scheduled for publication this fall. Although aimed primarily at the law school market, it looks to me like it would be a great text for upper-level undergraduate and graduate courses in public choice and public policy. The authors have made the current draft available for review. If you're interested, contact Max for passwords and all that.

I just finished Bernadette Meyler's "Daniel Defoe and the Written Constitution" and can recommend it as an interesting and well-written law review article -- and you can't say that very often, friends. (Plus, Art, there's pirates!)

Finally, somewhere Charles Tiebout is smiling. The only remaining question is: What are the remaining two-thirds waiting for?

Posted by Mike DeBow at 01:58 PM in Law

May 29, 2009
Hasnas on Empathy

Here is a brilliant take on the role of empathy in law from John Hasnas, who spoke at Rhodes in the Fall and who was a fellow faculty member at last summer's "Liberty and Society" seminar at Bryn Mawr.

By its nature, justice has to be blind. As Hasnas ably demonstrates, replacing the rule of law with the rule of empathy--or even making a substitution at the margin--assumes the possibility of moral accounting that cannot be done because the necessary information cannot exist. The nature of the problem rules out the judge's ability to divine the outcome consistent with cosmic justice. For a theological perspective, I refer you to the Misesian/Hayekian Psalm.

As an added bonus, here's an excellent post by Greg Mankiw on whether we can have our philosophical cake and eat it, too: if we're going to admit certain notions of distributive justice, then consistency demands that we tax the tall and subsidize the short.

Double bonus: it's apparently John Hasnas Friday. Here's an excellent article by Sheldon Richman (HT: Sheldon Richman) that discusses one of Hasnas's papers entitled "The Myth of the Rule of Law."

Posted by Art Carden at 09:09 AM in Law

May 28, 2009
Sotomayor qua appellate judge

SCOTUSBlog has an excellent review of Judge Sonia Sotomayor's important cases and how the Supreme Court has ruled on her opinions.

Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases. To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed. In those two cases (and likely the third), Sotomayor’s opinion was rejected by the Supreme Court’s more conservative majority and adopted by its more liberal dissenters (including Justice Souter).

Reading through the excellent summaries that follow, I see a strain of legal pragmatism in her rulings, although as summarized by SCOTUSBlog she does frequently seem to treat consequences as secondary. She is not reluctant to curb government authority in speech, privacy and discrimination suits. One interesting exception is Leventhal v. Knapek, 266 F.3d 64 (2001) where she allowed a government employer to search an employees personal computer against his Fourth Amendment claim; quoting SCOTUSBlog, "Here, she explained, the search was permissible because it could have revealed employee misconduct." SCOTUS reversed a separate ruling (Malesko v. Correctional Services Corp., 229 F.3d 374 (2000)) in which her opinion allowed a man to sue a private prison operated under government contract for constitutional rights infringement. She was also reversed on her "most notable" environmental case (Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007)), which involved drawing intricate lines around the EPA's authority whether and how to use cost-benefit analysis. And here is the summary of an interesting case at the confluence of political and economic rights:

More recently, in Kraham v. Lippman, 478 F.3d 502 (2d Cir. 2007), she wrote an opinion holding that a rule prohibiting high-ranking political party officials from receiving court fiduciary appointments (such as appointments as guardians ad litem) in New York state courts did not violate the plaintiff’s right to freedom of political association. Sotomayor acknowledged that the rule required individuals to choose between holding a high-ranking party position and receiving court appointments, but she ultimately concluded that such an “incidental effect on individual decision-making, however, furthers the rational and legitimate goal of eliminating corrupt court appointments.”
Posted by Edward J. Lopez at 07:54 AM in Law

February 23, 2009
Eminent Domain Progress in California

City abused eminent domain to steal property, California court rules

Calling Stockton, California's 2003 seizure of Marina Tower a case of “condemn first, decide what to do with the property later,” that state's Third District Court of Appeals ruled that the city had no right to take the property and that municipal officials grossly abused their discretion with what amounted to a naked land grab. While a firm slap at Stockton's misconduct, the decision is less than a full victory for the property owners who have been awarded legal expenses but must go back to court for a final outcome in the case.

In its decision (PDF), the court pointed out that California eminent domain law requires government bodies to specify the public use to which they plan to put seized property. Instead, though, the city council "passed nondescript, amorphous resolutions of necessity" that named the taking of the land as the whole purpose of the eminent domain action.

This is significant for a state that routinely defines public use quite broadly. The pendulum swings slowly. Here is my paper with Tom Means and Ed Stringham on inclusionary zoning laws in California, arguing that they are a form of taking. Here is my paper with Todd Jewell and Noel Campbell analyzing the state legislative responses to the Kelo backlash. More about this latter paper to come.


Posted by Edward J. Lopez at 09:52 AM in Law

January 21, 2009
Pith & Wisdom for Bailout Nation

The best two sentences I've read today:

Every man must bear the loss of a bad bargain legally and honestly made. If not, he could not enjoy in safety the fruits of a good one.

That's from a famous 1855 case on mistakes & fraud in contract, Harris v. Tyson (24 PA. 347). Full text of the opinion is fascinating and pasted beneath the fold.

Read More »

Posted by Edward J. Lopez at 11:46 AM in Law

October 23, 2008
Eminent domain links

Another taking for private development is brewing in St. Paul, MN, whose port authority is threatening to take an equipment rental lot for private development.

A gem among the letters to the editor:

Governmental authority to use eminent domain must be restricted for use only when absolutely necessary for the country to function, such as for roads and bridges.

Here is Bruce Benson debunking the economic argument that eminent domain is needed even for roads and bridges.

Posted by Edward J. Lopez at 05:25 PM in Law

October 16, 2008
Brad Smith on Campaign Finance Reform

Another superb bit from the folks at reason.tv:

Posted by E. Frank Stephenson at 03:13 PM in Law

October 14, 2008

Wondering about the widespread allegations of ACORN shenanigans, I emailed several acquintances earlier today about the possibility of a RICO prosecution for ACORN. My question was timely as one friend pointed me to a civil RICO suit filed in Ohio:

The Buckeye Institute, a Columbus-based think tank, today filed a state RICO action against the Association of Community Organizations for Reform Now (ACORN) on behalf of two Warren County voters. The action filed in Warren County Court of Common Pleas alleges ACORN has engaged in a pattern of corrupt activity that amounts to organized crime. It seeks ACORN’s dissolution as a legal entity, the revocation of any licenses in Ohio, and an injunction against fraudulent voter registration and other illegal activities.
Posted by E. Frank Stephenson at 11:58 PM in Law

October 03, 2008
You can't cheat an honest man

Matthew Thornhill, while an assistant prosecutor in 2006, was negotiating a plea bargain with the attorney for one Mary Hart, who was charged with felony forgery. Hart's attorney, reports the St. Louis Post-Dispatch, "told Thornhill that Hart's godfather was former Pittsburgh Steelers quarterback Terry Bradshaw." Thornhill, who is a collector of autographed baseballs, asked the attorney "to have her get an autographed baseball from Bradshaw," in exchange for which he would reduce the charges against her. She duly produced a signed baseball, after which the charges against her were indeed reduced. They were later dropped.

Thornhill has now been reprimanded by the Missouri Supreme Court.

Oh, and the signed baseball that Mary Hart the accused forger produced? It turned out -- surprise, surprise -- to be a forgery.

Posted by Lawrence H. White at 11:35 PM in Law

June 23, 2008
Kelo redux.....(not)

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.

Posted by Edward J. Lopez at 01:39 PM in Law

June 12, 2008
LiveBlog on Supreme Court Decisions

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

Posted by Edward J. Lopez at 09:57 AM in Law

May 29, 2008
Are you headed to law school? Do you know someone who is?

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.

Posted by Mike DeBow at 01:13 PM in Law

May 15, 2008
Koppl in Forbes on Forensics

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.

Posted by Edward J. Lopez at 09:07 AM in Law

May 01, 2008
Review of The Dirty Dozen

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).

Posted by Edward J. Lopez at 01:07 PM in Law  ·  Comments (0)

April 25, 2008
Crack baby steps: update

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.

Posted by Edward J. Lopez at 09:04 AM in Law

April 23, 2008
Violence in Chicago

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.

Posted by Art Carden at 02:54 PM in Law

April 16, 2008
Bad incentives in the legal system

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 »

Posted by Edward J. Lopez at 02:50 PM in Law  ·  Comments (0)

February 14, 2008
Big Business Versus Mom-and-Pop

Via a June 6, 2001 article from The Onion.

Posted by Art Carden at 06:19 PM in Law

February 12, 2008
Good Work Dan

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

Posted by E. Frank Stephenson at 12:58 PM in Law

January 28, 2008
Security vs. Privacy

From the Christian Science Monitor


Posted by Craig Depken at 07:13 PM in Law

January 22, 2008
Anti-smoking ordinances c. 1908

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.

Posted by Craig Depken at 01:31 PM in Law

January 11, 2008
Maybe They're Onto Something

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!

Posted by E. Frank Stephenson at 12:08 PM in Law

December 11, 2007
Crack Baby Steps

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.

Posted by Edward J. Lopez at 12:50 PM in Law

November 08, 2007
Sandra Day O'Connor on election of judges

"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 »

Posted by Edward J. Lopez at 08:48 AM in Law  ·  Comments (0)

September 27, 2007
Sign of Assimilation?

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.

Posted by E. Frank Stephenson at 08:17 AM in Law

August 10, 2007
Asking the Wrong Question

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.

Posted by E. Frank Stephenson at 02:44 PM in Law

June 29, 2007
Robert Bork interview

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).

Posted by Mike DeBow at 02:22 PM in Law

June 28, 2007
A sunny day for the Chicago School

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.

Posted by Mike DeBow at 12:20 PM in Law

June 11, 2007
How's your liberty?

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.

Posted by Edward J. Lopez at 01:48 PM in Law

June 07, 2007
Expanding Gasoline Prompts Lawsuit

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.

Posted by E. Frank Stephenson at 09:21 AM in Law

May 21, 2007
Indefinitely renewable rent seeking

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.

Posted by Edward J. Lopez at 01:03 PM in Law

May 01, 2007
How SARBOX may be creating MORE white collar crime

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.

Posted by Edward J. Lopez at 11:00 AM in Law

April 27, 2007
Justices on McCain-Feingold

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?"

Posted by Edward J. Lopez at 12:16 PM in Law

April 24, 2007

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.

Posted by Mike DeBow at 12:24 PM in Law

April 18, 2007
Brentwood Academy vs. Tennessee

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!!!

Posted by Edward J. Lopez at 04:20 AM in Law

April 12, 2007
Randy Barnett Lecture in Columbus tomorrow

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

Posted by Robert Lawson at 01:55 PM in Law

February 06, 2007
An Eminent Domain Victory

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.

Posted by E. Frank Stephenson at 09:53 AM in Law

January 03, 2007
Trends in U.S. Tort Costs

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.

Posted by Craig Depken at 07:51 PM in Law

December 28, 2006
Caveat Emptor c. 1906

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.

Posted by Craig Depken at 11:45 AM in Law

December 12, 2006
The perfect crime c. 1906

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.


* Rather than "like bandits"

Posted by Craig Depken at 02:30 PM in Law

November 30, 2006
Fair Trade, Fair Speech

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.

Posted by Wilson Mixon at 01:09 PM in Law

September 27, 2006
Funny Moment

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.

Posted by E. Frank Stephenson at 03:25 PM in Law

IJ Props

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.

Read More »

Posted by Edward J. Lopez at 03:10 PM in Law

September 26, 2006
Yarn Stealing Granny

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.

Posted by E. Frank Stephenson at 09:36 AM in Law

September 25, 2006
John Lott Will Love This

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.

Posted by E. Frank Stephenson at 09:41 AM in Law

September 24, 2006
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

Posted by Craig Depken at 05:59 PM in Law

September 11, 2006
Why Private Gun Ownership is Important

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.

Posted by E. Frank Stephenson at 02:59 PM in Law

August 30, 2006
Korean grocers sue Young, Wal-Mart

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.

Posted by E. Frank Stephenson at 02:04 PM in Law

August 18, 2006
Big Tobacco - get it outta here!!

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)

    Read More »

    Posted by Craig Depken at 12:22 PM in Law

    July 31, 2006
    Quote of the day
    In democracy it's your vote that counts; In feudalism it's your count that votes.

    Mogens Jallberg

    Posted by Craig Depken at 02:43 PM in Law

    June 16, 2006
    Judge Alex Kozinski: Hot Libertarian?

    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?

    Posted by Edward J. Lopez at 11:46 AM in Law  ·  Comments (4)

    May 09, 2006
    Must Love Dogs

    "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.

    Posted by Brad Smith at 01:44 PM in Culture ~ in Funny Stuff ~ in Law ~ in Misc. ~ in Politics  ·  TrackBack (0)

    April 11, 2006
    Rent-seeking observed

    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?

    Posted by Mike DeBow at 10:19 PM in Law  ·  TrackBack (0)

    March 31, 2006
    A Libertarian Perspective on Suicide

    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.

    Read More »

    Posted by Joshua Hall at 12:38 PM in Law

    Public utility follies in Maryland

    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.

    Posted by Mike DeBow at 08:45 AM in Law  ·  TrackBack (0)

    March 02, 2006
    Act Now to Keep Internet Political Discussion Unregulated

    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.

    Posted by Brad Smith at 03:13 PM in Law ~ in Politics  ·  TrackBack (0)

    February 21, 2006
    On lobbying and campaign finance reform

    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.

    Posted by Brad Smith at 09:21 AM in Law ~ in Politics  ·  TrackBack (0)

    February 06, 2006
    Paul Krugman, MD--A Follow-up

    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."

    Posted by E. Frank Stephenson at 01:37 PM in Law  ·  TrackBack (0)

    January 24, 2006
    Silly rabbit, litigiousness is for kids!

    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.

    Posted by Tim Shaughnessy at 01:36 PM in Law  ·  TrackBack (0)

    January 23, 2006
    Alito and the Unitary Executive

    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...

    Read More »

    Posted by Brad Smith at 09:21 AM in Law ~ in Politics  ·  TrackBack (0)

    January 13, 2006
    The Dishonesty of Judicial Confirmation Hearings

    Stuart Taylor, one of the true gentlemen of Washington politics and also one of the most thoughtful commentators around, offers up a typically superb column today at National Journal on what has gone wrong with the judicial confirmation process. Unfortunately National Journal is for subscribers only - C'mon Stuart, National Journal has a certain intellectual prestige, but we need you writing for something people outside the beltway can see. Here are a couple fair use excerpts below the fold.

    Read More »

    Posted by Brad Smith at 09:23 AM in Law  ·  TrackBack (0)

    January 11, 2006
    Good News from the Alito Hearings

    The Alito hearings have really brought good news to Americans. Many of my fellow bloggers on this site are worried about the Court's decisions in the realm of government takings of property; intellectual property; regulatory authority; criminal law; and much, much more.

    But watching a few days of hearings, I've come to realize that the only issue facing the Supreme Court is abortion. Apparently, there are no other legal doctrines in dispute.

    This is certainly good news, is it not?

    Posted by Brad Smith at 11:05 PM in Law  ·  TrackBack (0)

    Illegal annoyances

    The slope seems to be getting slipperier. An earlier post discussed the risk to one's tenure chances of blogging on topics deemed controversial to a university's higher-ups. But now, it would seem, some of us may have even more to worry about when we speak our minds.

    It apparently is now against the law to annoy someone over the internet:

    "Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."

    This could pretty much cover every email I send to my students that starts with "Why did you miss class yesterday?" There is a lot of commentary one could make about this; who determines what is annoying, isn't there such a thing as the first amendment, should the internet be regulated, if the annoyer doesn't disclose his identity how do the police know who to arrest, does this mean the entire population of Nigerian assitant Treasury secretaries will be imprisoned for two years, etc. But I just had a big lunch and am going home to take a nap. Besides, my commentary would probably be deemed annoying to certain readers, and I've seen Shawshank Redemption.

    P.S. They stole my idea anyway. In the interests of efficiency and internalizing externalities, I've wanted to begin a program where I charge people for annoying me and thus lowering my utility. "You talked on your cell phone for five minutes while my girlfriend and I were watching the movie. That will be two dollars, please."

    Posted by Tim Shaughnessy at 02:26 PM in Law  ·  TrackBack (0)

    December 07, 2005
    On Police Uniforms c. 1905

    The Dec. 7, 1905 NYT has a letter to the editor titled "Value of Police Uniforms":

    Which is the more important function of a police officer, the apprehension of wrong-doers in the act, or the prevention of crime and disorder? We must admit it to be the latter, if there is anything in the old adage, "An ounce of prevention is worth a pound of cure;" and of the deterrent effect of a uniformed representative of the law in any public place there should be little doubt. Ask the policeman under which condition he finds the maintenance of his authority easier, and his answer, if honestly given, will be "in uniform."

    This is an interesting question. Would plainclothes police do better to deter crime? This is akin to the concealed carry debate - do concealed carry permits, where it is not apparent who is armed and who is not, deter criminal behavior?

    Two events show that the uniform, or lack thereof, is not a guarantee either way. Last week in Dallas, a plain-clothes detective, working undercover, was shot during a mugging/robbery after the assailant saw the detective's badge. Also last week, a Fort Worth officer was shot and later died when he tried to serve a warrant against a local man - the shooter claims that he did not know that the man knocking on the door was a police officer. This despite the police wearing uniforms.

    As a signal of who exactly is the "authority," the police uniform provides value to society and likely helps the police do their job. However, the uniform can also provide a valuable check on the actions of the police. When a beating, shooting, or some other event occurs and those engaged are wearing police uniforms, the community outcry is immediate and loud. This, in turn, likely deters bad behavior on the part of the police. The value of the police uniform is likely more than the letter-writer suggests; the uniform helps keep the "bad guys" as well as the "good guys" in check.

    Some other thoughts: Having police wear uniforms deters vigilante law enforcement. Why is impersonating a police officer a crime? Could it be because the police want to protect their "reputation" as much as possible; letting any hayseed put on a uniform and bust heads is likely not good for the rest of the force. On the cynical side, keeping the hayseeds from impersonating an officer protects the extortion monopoly (think "Gangs of New York").

    Posted by Craig Depken at 12:14 PM in Law  ·  TrackBack (0)

    December 05, 2005
    David Friedman, Legal System Traveler

    Hi, folks. Ed Lopez here. Long time reader first time blogger. Thanks to Frank for the introduction.

    As noted, I'm at San Jose State now. My colleagues Ben Powell and Ed Stringham host an informal but serious discussion group called the Saturday Night Anarchy Club. At last night's meeting, David Friedman gave a talk called "Legal Systems Very Different From Ours," covering fascinating aspects of any non-U.S. legal system worth mentioning. As one example, you have your private criminal law in Saga Iceland (see David's well-known work on this), but also you have its polar opposite in Imperial China, which had only government prosecution even for torts. He told some neat stories about Athenian, Cheyenne, 18th C. English, and especially Gypsy law, too.

    A challenging question that occurs to me after David's talk is: what makes a successful legal system? Certainly we can talk about minimizing rent seeking. More broadly, I wonder if it is too simplistic to say that a successful legal system is one that creates (or allows) opportunities for positive sum interaction. If so, I wonder how the modern U.S. tort system would stack up? Also, we can talk about what kinds of evidence shows that a legal system is successful. Is it merely longevity? If the society dies does that mean its law failed? Can a system even last a long time if it generally creates negative sum interaction? Big questions.

    David said that the material for the talk is based on a class he teaches (at the Santa Clara law school). As he digs deeper into the various systems and develops a framework for comparing/contrasting, he plans to put it together as a book. I, for one, look forward to it.

    Posted by Edward J. Lopez at 01:43 AM in Law  ·  TrackBack (0)

    November 22, 2005
    Great Reporting from Matt Welch

    Reason Associate Editor Matt Welch does some great reporting on eminent domain in the LASD. He finds ample space nearby a proposed eminent domain taking. The school district says it wants space farther away from the freeway than the land for sale. How much farther away are the homes slated for demolition? One-tenth of a mile.

    Posted by Joshua Hall at 08:03 PM in Law

    Frivolous law suits c. 1905

    Tort reform becomes a political issue every now and then, usually with a couple of extreme examples of people suing for lots of money for seemingly little damages. Over at The Club for Growth's blog Andrew Roth posts about a new coffee-burn lawsuit against Dunkin' Donuts (for a measly $10m). Sounds a little high, but heck, let a jury decide (personally, I favor arbitration in these cases - if the arbitrator feels there is gross negligence on the part of DD then perhaps it goes to the courts? This previous post suggests instantaneous arbitration might not be so good.).

    The Nov. 22, 1905 NYT reports on what I think is an even better suit (not giving anyone ideas, mind you):

    DES MOINES, Nov. 21 - Miss Ella Hamilton thinks the kiss she alleges that Hayden Marquis, a wealthy young man, stole from her is worth $10,000. That is the amount of damages she demands in a suit filed to-day in the District Court. The suit will come to trial at the January term.

    I have a suspicion we won't see any more references to this case. However, from EH.net, the $10,000 in 1905 would be worth:

    $207,607.55 using the Consumer Price Index
    $167,450.44 using the GDP deflator
    $958,117.58 using the unskilled wage
    $1,210,103.71 using the GDP per capita
    $3,926,695.46 using the relative share of GDP

    Ouch. However, this does support my working practice of never kissing women who have not offerred to be kissed (hence no stealing).

    Tort reform? Perhaps it is a problem that is a hundred years old and needs to be resolved. Do frivalous lawsuits such as this, and coffee burns, increase when the economy is up or when the economy is down?

    (HT: Darren Grant asks how do you prove the kiss? CD's comeback - how do you prove possession of stolen goods? Mike Ward asks if it's truly frivolous - virtue was important back then.)

    Posted by Craig Depken at 01:03 PM in Law  ·  TrackBack (0)

    October 14, 2005
    Legal Entrepreneurship--Sales Tax Lawsuit Edition

    From the WSJ:

    CHICAGO -- Like many shoppers, attorney Stephen Diamond buys lots of stuff online. But unlike other consumers, he sues retailers that don't charge him state and local sales taxes -- and is making a profit doing it.

    Using a state whistle-blower law, Mr. Diamond since 2002 has filed about 95 suits in Cook County court here against retailers that failed to charge him taxes on Internet sales, alleging that they broke the law. In cases where the state of Illinois joins the suits and prevails, he is entitled to up to 25% of the financial damages, with the rest going to state coffers.

    Posted by E. Frank Stephenson at 11:02 AM in Law  ·  TrackBack (0)

    October 13, 2005
    Drug War Follies--Operation Meth Merchant

    In June, police agencies in NW Georgia staged Operation Meth Merchant and arrested some 49 people for selling meth ingredients. It turns out that some of the arrests are suspect:

    Federal charges against a Whitfield County man arrested during Operation Meth Merchant have been dropped.

    Ringgold attorney Ken Poston said his client Sidhharath Patel was wrongly identified.

    Patel was among 49 people and 16 corporations charged in the operation, which targeted businesses in Catoosa, Chattooga, Floyd, Whitfield, Walker and Dade counties allegedly selling ingredients used to make methamphetamine.

    The 20-year-old American citizen was arrested at an airport in New Jersey on July 18, 2005, as he returned from his wedding in his native India, and he was held for 12 days in various facilities in New Jersey, Oklahoma and Georgia, Poston said.

    Poston said his client was working in a sandwich shop in Hicksville, N.Y., on July 23, 2004, when government agents claimed he was in a Varnell, Ga., store selling matches, Coleman fuel and other items used to manufacture meth.

    This is not the first misidentification in the operation.

    Charges against Malvika Patel (no relation to Sidhharath) also were dropped when she was incorrectly identified as selling meth-making materials in a Fort Oglethorpe store. Her attorneys produced evidence she was picking up her child from daycare at the time. Poston also represented Malvika Patel.

    This makes the third citizen of Indian heritage misidentified by the same undercover informant, said Poston, who said Malvika’s husband Chirag “Chris” Patel also was falsely accused.

    Hmmm ... seems the keystone kops should have called it Operation Indian Merchant since that seems to have been their target. Jay Bookman of the AJC sure thinks so.

    Posted by E. Frank Stephenson at 12:59 PM in Law  ·  TrackBack (0)

    October 06, 2005
    Giving a new meaning to "stealing home"

    Not only is baseball boring (this from a soccer player, who knows something about boring sports), but it's succumbing to eminent domain abuse:

    The District [of Columbia] will begin using eminent domain to acquire parcels of land at the site of the Washington Nationals' ballpark by the end of this month, after unsuccessful negotiations with nearly half of the landowners.

    The people who unfortunately decided years or decades ago to live on what would be the wrong plot of land will have until the end of the year to move. You have to love how the alternative to an "unsuccessful negotiation" is to basically kick you off your land at gunpoint.

    My favorite Washington Nationals moment: concluding an NPR story on the team a few months ago, the host says "Go Nats!"

    Posted by Tim Shaughnessy at 01:05 PM in Law  ·  TrackBack (0)

    October 03, 2005
    Another Eminent Domain Abuse

    From the Washington Times:

    Florida's Riviera Beach is a poor, predominantly black, coastal community that intends to revitalize its economy by using eminent domain, if necessary, to displace about 6,000 local residents and build a billion-dollar waterfront yachting and housing complex.

    HT: Wilson Mixon

    Posted by E. Frank Stephenson at 09:56 AM in Law  ·  TrackBack (0)

    September 19, 2005
    Eminent Domain Use

    News item:

    The groundbreaking ceremony Sunday afternoon was supposed to celebrate the start of construction of the private Jewish high school's 18-acre campus in Sandy Springs.

    Instead, a mood of uncertainty and apprehension mixed with the hot late-summer air as parents and school officials grappled with the realization that all the plans they've made may be in jeopardy.

    The Fulton County school system wants to buy the Weber School site and use the land to build a new elementary school. In a strongly worded letter sent earlier this month, the school district indicated that unless Weber sold the property by today, the school board would use eminent domain to obtain the land.

    Posted by E. Frank Stephenson at 03:10 PM in Law  ·  TrackBack (0)

    September 16, 2005
    Why NOT to be a Government Lawyer

    Attention prospective lawyers, my former student Dan Alban has a nice take on why not to be a government lawyer.

    Posted by E. Frank Stephenson at 02:15 PM in Law  ·  TrackBack (0)

    August 24, 2005
    Tip or Service Charge? Part II

    After my previous post on this subject, I received the following email from Gary Reed. He makes some really good points about the difference between a tip and a service charge. Thanks Gary
    Boy, isn't that the question? Is a tip a service charge? That's what many restaurants want us to believe, isn't it?
    What does replacing voluntary tips with a service charges actually mean?

    Lets start off by understanding that tips and service charges are both defined under federal law. Did you know that federal regulations state that a tip is to be distinguished from a payment of a charge, if any, made for the service? Do you know why? You see it would be fraud if a customer gave a tip to an employee and the business owner kept it for himself or controlled that money to his own benefit. Service charges are not tips. Service charges may be kept by the business owner. Did you know that?

    Read More »

    Posted by at 10:33 PM in Economics ~ in Law  ·  Comments (5)  ·  TrackBack (0)

    We are a much-governed people

    From Aug. 24, 1905, NYT is a report of the twentieth annual American Bar Association meetings in Narragansett Pier, R.I. The key-note speech was given by president Henry St. George Tucker who had the following nuggets:

    We are a much-governed people, and there is nothing which affects the American citizen, from infancy to the grave, awake or asleep, in motion or at rest, at home or abroad, in his personal, social, political, or property rights which is not the subject of regulation by the State.

    The home is no longer a man's castle, but it may be a prison house, with the Board of Health as jailer. When the State as parens patriae steps in and assumes control by boards and Commissioners and other agencies of the safety of society, of the health and morals of the people as well as their property rights, special care must be taken not to endanger any of those inalienable rights of 'life, liberty, and property' guaranteed to every citizen under 'the law of the land.' For it must be remembered that these are rights which do not proceed from government but are antecedent to government, and are those for the preservation of which Governments are ordained.

    Wow. What would poor Mr. St. George Tucker have to say about the society an additional hundred years of regulation and control has created?

    What are the chances that any president of the ABA could give a speech containing these two paragraphs at a national ABA meeting without being booed off the stage and having his/her reputation and intentions dragged through the mud by the pundits and talking heads?

    Why can't we have rhetoric such as this and not what we get today?

    Posted by Craig Depken at 10:20 AM in Law  ·  TrackBack (0)

    August 23, 2005
    That which is not mandatory will be banned

    Said by a wise man. In Turkmenistan:

    He [the president] has outlawed opera and ballet and railed against long hair and gold teeth, but now Turkmen President Saparmurat Niyazov is determined to wipe out another perceived scourge: lip synching.

    Yep, that's the problem. The CIA World Factbook estimates the country's per-capita income of $5,700. Somehow I don't think banning lip synching is the silver bullet to development.

    Posted by Craig Depken at 07:04 PM in Law  ·  TrackBack (0)

    July 26, 2005
    Would Sh*thead be OK?

    Story here

      "A good name," wrote Cervantes, "is better than riches."

      Mamdouh El-Hakem would agree. After spending years fighting a former employer who thought his name wasn't good enough, El-Hakem was vindicated by the 9th U.S. Circuit Court of Appeals last week with a modest amount of money -- and an opinion that reaffirms the value of his name.

      In a ruling that bolsters plaintiff arguments that discrimination can take many forms, the 9th Circuit said that Gregg Young, the CEO of BJY Inc. should not have insisted on calling El-Hakem "Manny." Or, for that matter, "Hank."

    Posted by at 08:26 AM in Law  ·  TrackBack (0)

    July 06, 2005
    To Kelo or not-to-Kelo? or "Shut-up and learn to love Kelo"

    The land grab in Arlington is likely to get ugly in the next few weeks. In today's Star-Telegram:

    Owners of 26 properties in the path of the Cowboys stadium project could face condemnation if they don't make a deal with the city soon.

    The City Council voted unanimously Tuesday to begin condemnation proceedings on the properties. Those owners have had at least 30 days to review the city's offers.

    Thank you Justice Souter, et al. The city admits it doesn't want to resort to eminent domain, but they have no choice. The voters voted for a stadium (before we knew where it would be located), the city/team decided where the stadium would go (acting as our delagates or trustees?), and these folks need to "get over it" and move on. Sound familiar? Did the Court anticipate that the language in Kelo would have such direct relevance so soon?

    However, there was a nice quote from one of the non-annointed, i.e., not a Supreme Court Justice:

    Norma Matthews, who lives in south Arlington, said the city is usurping the property rights of residents.

    "It is not the American way to bully the poor, to take their homes away from them and give them to a billionaire," she said.

    Alas, Norma, you are so naive. Arlington is not stealing property from Person A and giving it to Person B. As our mayor has so often repeated, Arlington will own the $700 million dollar stadium and will rent it to Jerry Jones for two million per year (the equivalent to renting a $100,000 house for $285 per year - not likely a profit-earning move on the part of the house owner but a great deal for the renter!).

    Norma, embrace Kelo, learn to understand the benefits of Kelo, make "a deal" with Kelo

    The siezed property isn't going to be given to a billionaire, just rented to a billionaire for the next thirty years - after which the billionaire would have the option to purchase the then-dilapidated stadium for a cool million dollars (today the 75 acres for the stadium is appraised at $27.1 million).

    There's a bit of irony there that I haven't thought about before. Today, a run-down neighborhood and a trailer park has a taxable value of $27.1 million. After building a $700 million stadium, allowing it to depreciate over 30 years, and internalizing the specific-asset nature of the stadium, the best deal the city can strike with the team is to sell it for $1 million? Arguably the land will be worth more than $1 million in 2040, which is evidence of the massive rent transfer from the good folks of Arlington to Jerry Jones. However, assume the city extracted all of the residual value of the stadium in the $1 million deal, what would this say about the "value" of a stadium?

    Okay - off to grade.

    Posted by Craig Depken at 11:22 AM in Economics ~ in Law ~ in Sports  ·  TrackBack (0)

    June 29, 2005
    Why stop at one property

    Following up on Robert's post below, I can see a whole new chain of hotels, called "Souter Inns" which could be built on every property that Justice Souter (and the others on the court who joined in the Kelo opinion) owns in the United States. The opinion specified only "well thought out" economic development plans and a positive probability that there would be increased jobs and taxes as a result of any development option that a city would consider. Why stop at one property?

    Here in Arlington, where we have our own land grab underway for the Cowboys stadium project, there was an audible sigh of relief from the powers-that-be when the Court decided in favor of localities taking property. However, our esteemed mayor stated that the court case really had little connection to what is going on in Arlington because the city will own the stadium and lease it to the team.

    Thus, even if the court had come down on the other side it would have left open the question of public takings for "publicly owned" development that is, in turn, leased to a private enterprise for well below market value. Who exactly is the residual claimaint of development?

    What's to stop house-farm developers from refusing to pay market value for farm land on the edges of town (here land is going for 50-60k per acre in some parts) when they can pressure the localities to pay a lower price? There is no "hold out" in that case - no individual or few individuals standing in the path of "progress" - and yet the court's opinion would still seem to prevail.

    Posted by Craig Depken at 06:08 PM in Law  ·  TrackBack (2)

    June 27, 2005
    What Free Market?

    In one of today's Supreme Court decisions, the court sided with the FCC by saying the FCC could decide whether or not high-speed cable internet services were "information services" or "telecommunications services." The FCC had previously ruled cable internet to be "information services" and thus unregulated and not subject to the common carrier rules that regulate phone lines (and hence DSL internet). A lower court disagreed with the FCC and the Supreme Court today reversed saying it was up to the FCC to decide because the statute was ambiguous. (If the FCC had decided cable internet was "telecommunications", then that would be ok too.)

    Interestingly, Justice Thomas wrote the majority decision and Justice Scalia wrote the dissent (proving yet again that Thomas is not Scalia's lapdog as most lefties believe).

    The NYT had this to say in reference to Scalia's dissent: In a dissent, Justice Scalia, wrote that the commission's ruling was trying to further a free-market agenda through "an implausible reading of the statute, and has thus exceeded the authority given it by Congress."

    I haven't read Scalia's dissent in its entirety (here are the opinions if you want to read them) but I'm trying to figure out why the Times had to drag the "free-market agenda" stuff into the article. Scalia's point (right or wrong -- I don't know or really even care that much) is that the FCC misread the statute. Whether or not the FCC's decision was pro-free-market or anti-free-market was not Scalia's concern. His concern was the statute and the FCC's (mis)interpretation of it.

    But the NYT never misses a chance to take a shot at the "free-market agenda".

    Posted by Robert Lawson at 09:36 PM in Law  ·  TrackBack (1)

    June 23, 2005
    The solution to illegal immigration?

    Now, I am no big-city lawyer, but I have been perplexed at the lack of action on the part of anyone up in D.C. as we absorb up to 60,000 illegal transfers across our southern border each month. (Would we care if they carried AK-47's? Just a question.) I was beginning to think that there simply was no plan to do anything about the borders, but maybe there is a plan after all.

    Perhaps, knowingly or not, two of the three branches of government are not-so-slowly solving our illegal immigration problem. Remembering that there were few people sneaking East over the Soviet frontier, arguably because just about anywhere else in the world was better than being in the Soviet Union, we can make the U.S. a very inhospitable place, thereby reducing the number sneaking North across our frontier.

    We might have to change the name of the country to make the signal crystal-clear, why not F.U.S.A.? Fascist (or your other favorite 'f' word) United States of America?

    Part (1)

    "The Congress shall have power to prohibit the physical desecration of the flag of the United States." (Proposed "flag burning" amendment passed U.S. House June 22, 2005)

    Message? Your private property is not your's, especially if destroying it will hurt someone else's feelings. Don't come to El Norte because whatever you think you are going to earn, keep, or send home is really not yours to begin with. The government can put you (us) in jail for doing something with your property that can only hurt "feelings?"

    (Side note: The proposed amendment is a disaster in the making - what constitutes a flag? Is a flag made out of fireworks on the fourth of July out of the question? If my flag has 55 stars and 14 stripes, can I burn it? Is my flag my property or not? rrrrr)

    Part (2):

    Though the city could not take petitioners' land simply to confer a private benefit on a particular private party...the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted “to benefit a particular class of identifiable individuals...The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." (Kelo v. New London, June 23, 2005)

    Message? The government does know what is the best use of your property, even if more than YOUR feelings are damaged in the process, e.g., there are real economic damages. All the government needs is a "carefully considered" and "carefully formulated" plan that has someone's seal of approval that it might (maybe, perhaps, could be, when pigs fly) create new jobs AND TAX REVENUE!!! Oh, the court came up with a good one there. As long as the beast can feed, which the court has now told us is an unambiguously good thing, then all bets are off.

    With a few more good ideas like this we are on our way to reducing freedom in this country to the point that others won't want to come here - hey at least the local plumber will keep his job, but only if it generates tax revenue!

    Part (3):

    Of particular relevance here is Wickard v. Filburn, 317 U. S. 111, 127–128, where, in rejecting the appellee farmer’s contention that Congress' admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee’s own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself "commercial," i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

    For those of you who don't recognize this quote, it comes from Gonzales v. Raich (June 6, 2005) better known as "Medical Marijuana." The court goes one better in the very next sentence:

    In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

    What? The wheat industry has been cartelized (by Congress!!) like the marijuana industry and Farmer Filburn undermines the wheat industry by growing a few bushels on the side for him and the missus? This is simply not credible given the facts.

    Moreover, the statement implies that somehow Raich and Mason (the two folks who sued) growing their own marijuana would "upset" the market for marijuana. In Filburn, regulating wheat production was assumed to be aimed at maintaining a high price for wheat - I suppose for the sake of farmers, because who cares about consumers (oh, the dead weight loss)? Is the Controlled Substances Act intended to maintain a high price for illegal drugs?

    (Side note: The Gonzales vs. Raich case centered on the DEA destruction of SIX marijuana plants. Hardly a threat to the cartels in Ol' Mexico and elsewhere. Farmer Filburn harvested nearly 12 acres of wheat above his allotment. - Old Farmer Filburn was hardly a threat to the world wheat industry.)

    Message from Gonzales vs. Raich? Congress has known what's best for you to put in your stomach and lungs (but not beside them), going on 70 years. Remember, Congress decides what you will do with your private property. Besides, there is a chance you might sell your private property to someone else and we can't have that.

    Yep, the F.U.S.A. - we are well on our way. Come a few more years when our freedoms are about the same as Ol' Mexico, El Norte won't look so appealing.

    Posted by Craig Depken at 09:40 PM in Law  ·  Comments (13)  ·  TrackBack (1)


    The Kelo decision is now available.

      The U.S. Supreme Court, in a 5-4 vote, rules that the "Takings Clause" in the U.S. Constitution permits local governments to seize residential and commerical property for private development. In a strongly worded dissent, Justice O'Connor rebukes the majority's conclusion, asserting that "the beneficiaries are likely to be those citizens with disproportionate influence and power in the political process," giving government a "license to transfer property from those with fewer resources to those with more."

    Links at Findlaw

    Majority Opinion
    Justice O'Connor's Dissent
    Case Docket
    Attorney For Petitioners
    Attorney For Repondent

    Doesn't look good. Any comments?

    Posted by at 03:35 PM in Law  ·  Comments (1)

    June 20, 2005
    DUI Laws in Ohio

    In a working paper of mine that investigates the impact of lowering blood alcohol limits (available here), I mention some seemingly bizarre drunk driving laws in various states, including the fact that it is illegal to drive a lawn mower or a snow mobile while intoxicated. I mention the laws in passing, suggesting that many DUI laws are aimed at an extreme minority.

    Nevertheless, the law is on the books and the law can be enforced. From Delhi, Ohio comes this story:

    They arrested 22-year-old Joseph Mundy early Wednesday morning and charged him with drunken driving. The odd part: Mundy was behind the wheel of a riding lawnmower.

    Police say he and a companion drove the mower down the middle of Covedale Avenue.

    He was reportedly headed to the Kroger on Delhi Pike, some three miles from his house.

    Police say Mundy's blood alcohol level was more than twice the legal limit for driving.

    Ignorance of the law, or of my paper, is no excuse young man.

    Posted by Craig Depken at 11:20 AM in Law  ·  TrackBack (0)

    June 15, 2005
    Why we need tort reform...

    A 4-year old boy tragically dies after riding Disney Epcot's Mission: Space ride. My prediction: Disney pays a multi-million dollar settlement even though there was nothing wrong with the ride. Ultimately the ride may not survive as an attraction.

    (Btw, this is a seriously cool ride. If you're ever there, be sure to go on this. But do take the warnings seriously! I felt ill for a solid half hour after getting off the ride.)

    Posted by Robert Lawson at 09:12 AM in Law  ·  TrackBack (30)

    June 10, 2005
    ‘litigate by day and copulate by night.'"

    Continental Insurance denied enhanced benefits to an individual who had been hurt on a boat owned by one of its insureds. Stephen Gimopoulos had been cohabitating with the boat owner. Continental Insurance argued that he was a household member and therefore, according to the terms of the insurance contract only entitled to reduced benefits.

    The majority on a Florida appeals court disagreed, which raised the ire of a dissenting Judge Hill

      "[I]t appears that Mr. Gimopoulos and Ms. Roberts have successfully attached more importance to a single piece of paper -- a marriage license -- than they have ever before," wrote Hill. "For quite some time, they have dwelt under the same roof. They have bedded down together in the same bed. ... The couple apparently felt that they did not need this single piece of paper to enjoy all the bliss of conjugal life. Nevertheless, they earnestly maintain that a marriage license vel non is of great importance to the Continental Insurance Company."

      Noting that Gimopoulos had sued Roberts -- and that Roberts' counsel had advised her to "confess judgment" in that action -- in their efforts to extract money from the insurer, Hill quoted Holt v. Holt, 77 F2d 538, a 1935 appellate decision from the District of Columbia.

      "In essence," he wrote, "they undertake to ‘litigate by day and copulate by night.'"

    See Law.com for article

    It appears that insurance companies must be more specific in their contracts as to who is a household member and who is not.

    Posted by at 10:40 AM in Law  ·  TrackBack (0)

    June 07, 2005
    Sarbanes Oxley Causing Banks to Go Private

    From today's AJC:

    Walter G. Moeling IV, an Atlanta banking attorney who has followed the industry for 37 years, says that since January 2003 at least 41 banks across the country, including four in Georgia, have gone private or are in the process of doing so.

    "They're going to their shareholders and saying, 'Look, our rules have changed, our costs have changed, and it's getting too expensive to stay public,' " said Moeling, who heads the financial institutions practice of Powell Goldstein LLP. "It's a great example of the unintended consequences."

    Posted by E. Frank Stephenson at 10:54 AM in Law  ·  TrackBack (22)

    "A really cold case: Fulton tries to prosecute dead man"

    The latest follies from the Fulton County (Atlanta):

    "Jason Warner was killed last fall, but that didn't stop Fulton County prosecutors from bringing drug charges against the Atlanta man this spring."

    Posted by E. Frank Stephenson at 10:33 AM in Law  ·  TrackBack (29)

    June 06, 2005
    An Argument for Private SS Accounts?

    From CNN:

    Police say granny, 80, ran prostitution ring
    Claims she needed to supplement Social Security checks

    Posted by E. Frank Stephenson at 03:45 PM in Law  ·  TrackBack (16)

    May 27, 2005
    UK Doctors Imitate the Onion

    From the BBC:

    "[British emergency] doctors are calling for a ban on long pointed kitchen knives to reduce deaths from stabbing."

    And a classic from The Onion:

    "WASHINGTON, DC--Vowing to "vigilantly defend the Second Amendment and preserve our most basic civil liberties," the National Machete Association denounced congressional efforts to enact machete-control legislation Monday."

    Posted by E. Frank Stephenson at 11:33 AM in Law  ·  TrackBack (0)

    May 24, 2005
    Interesting use of Google Maps

    Reported Chicago Area Crimes.

    Most homicides occur on the street (23 according to the database). As for Aggravated assault: Hands, feet, fists, there have been 247 reported assaults of this type in Chicago public schools and only 3 in private schools. Perhaps there is a reporting bias with the private schools. After all, aggravated assualt doesn't look good on the private school's recruiting brochure.

    Here's the map for fake checks. Is there something about the South Side of Chicago? Must be White Sox Fans (he he he). It is not surprising that most reported fake checks come from banks (34 versus 4 at department stores), what is surprising is that 34 folks would try to put one over on a bank.

    The Dallas Police Department has a similar set of maps showing Dallas city crimes. Here's one on homicides in Dallas.

    Posted by Craig Depken at 10:49 AM in Law  ·  TrackBack (2)

    May 16, 2005
    A Toast to Freedom

    The Supremes today struck down laws restricting interstate wine commerce. IJ played a major role in the case; here's part of its press release:

    Washington, D.C.-In a case with huge implications for interstate and electronic commerce, the Washington, D.C.-based Institute for Justice and its clients today hailed the U.S. Supreme Court’s decision striking down laws that forbid the direct interstate shipment of wine to consumers. IJ represents family winery owners Juanita Swedenburg from Virginia and David Lucas from California, as well as New York consumers who would like to purchase their wines. The Institute and its clients issued the following statements after learning of today’s decision:

    “This is the best day for wine-lovers since the invention of the corkscrew,” said Clint Bolick, the strategic litigation counsel for the Institute for Justice. “This landmark ruling is a victory for consumers and small businesses and a defeat for economic protectionism. It demonstrates that in the era of the Internet, the Court will vindicate the principles of free trade that made this country great.”

    I'm not much of a wine drinker (though I've recently developed a fondness for Sauvignon Blanc from the Marlborough region of New Zealand), but I'll raise a glass to any victory for individual liberty.

    Hat tip: Dan Alban

    PS: No doubt this is a triumph of hope over reason but maybe the winery ruling is a good omen for the Kelo eminent domain case.

    Posted by E. Frank Stephenson at 01:43 PM in Law  ·  TrackBack (2)

    May 09, 2005
    One Cat, Priceless

    How much is your pet worth? No doubt, your subjective value on your best friend is significantly greater than replacement cost. The same probably holds true for the home you live in, which is why eminent domain is typically a bad deal.

    Economists are not good at estimating subjective values and typically reject attempts at contingent valuation. However, juries are often called upon to value subjective preferences. In cases involving negligence and the accidental death of pets, courts have typically restricted damages to replacement cost. That may be changing. In a pervious post I pointed to a news article on Lucky. It discusses a negligence case in which plaintiff’s lawyer intended to ask for Lucky’s subjective value.

    We now have the case of Yofi in which a judge has already decided the issue of subjective value. Yofi, a feline, was mauled by the neighbor’s dog. Seattle District Court Judge Barbara Linde ordered the dog's owner to pay $45,480.12 in damages. The dog owner, “thought the punishment was excessive considering that dogs and cats are natural enemies. "Cats eat birds and dogs eat cats," he said."”

    I am sure Ms. Roemer, the cat’s owner, suffered emotional stress, but isn’t this a little excessive? I can replace my cat for about $100 with shots. I like my cat and I would not part with her at that price. But, at any offer over $1,000 that cat is gone.

      Roemer still has the company of her other animals, a Husky mix named Ginger and three black-and-white cats, including the latest addition, Patsy Cline. She adopted that cat several months after Yofi died, when it cried one day as she looked at it.

    Posted by at 01:28 PM in Economics ~ in Law  ·  Comments (1)  ·  TrackBack (19)

    April 23, 2005
    Who owns the family name?

    Looking at vehicles on the web, I wanted to check out the Nissan Murano. www.nissan.com is not the home of Nissan motor company.

    Posted by Craig Depken at 07:25 PM in Law  ·  TrackBack (3)

    April 21, 2005
    Religion, Conscience, and the Workplace

    "In December, a four-year-long court battle came to an end when a U.S. Court of Appeals dismissed a $2 million religious discrimination lawsuit brought against Costco, the nation’s largest wholesale retailer, which logged some $47 billion in sales last year.

    The case, brought by West Springfield, Massachusetts, employee Kimberly Cloutier, was certainly not your average religious discrimination matter. Provoked by a change in the wholesaler’s dress code policy, it pitted facial piercings against professional appearance, and involved, among other things, an eyebrow ring and a small church [The Church of Body Modification] that few people have ever heard of."

    Full story here.

    Sorry but religious freedom shouldn't guarantee one a job because it infringes on employers' freedom of association. Likewise, even though I think abortion is murder, I don't support state laws guaranteeing pro-life pharmacists jobs. Instead they should find (or start!) pro-life pharmacies that will employ them without requiring that they distribute medications that offend their consciences. (Many states, including my own, have passed laws making it illegal to fire pharmacists who refuse to fill scripts on conscience. At least one state, IL, has passed a law mandating that pharmacists fill abortion pill scripts. Some background is here and here.)

    Posted by E. Frank Stephenson at 02:57 PM in Law  ·  TrackBack (27)

    April 14, 2005
    Blind Justice

    Tennessee passed a law prohibiting retail optical companies from leasing space to optometrists to perform eye exams in their retail eyewear stores. Lenscrafters challenged the law as being unconstitutional. The law clearly had a discriminatory purpose aimed at protecting local optometrists. Of course, nothing in the act prohibits optometrist from selling eyewear to their patients.

    This case was just decided by the 6th Circuit Court of Appeals. The majority found Lenscrafters arguments unpersuasive. The law may be constitutional, but there is certainly nothing wrong with Lenscrafters’ economic reasoning. This is an unhealthy combination of vested interests, politicians looking for political contributions and local optometrists looking for protection. No doubt Lenscrafters will be hurt by this law, but the real losers are the people from Tennessee. Tennessee definitely needs consumer protection, but it is not from the likes of Lenscrafters. They need protection from their own politicians and their parasitic local businesses.

    Posted by at 08:12 PM in Economics ~ in Law  ·  Comments (1)  ·  TrackBack (18)

    April 13, 2005
    Where's Coase When You Need Him?

    A property rights tiff in Atlanta.

    Posted by E. Frank Stephenson at 10:39 AM in Law  ·  TrackBack (26)

    April 01, 2005
    Junk Science Bankruptcy Study

    Recently I took issue with a study purporting to find that 50% of bankruptcies are caused by medical expenses--I find this possibility implausible given the wide variation (a factor of 4) in bankruptcy rates across states. Now Todd Zywicki links to the source of the dubious study and some other research gems from the same authors.

    Posted by E. Frank Stephenson at 09:28 AM in Law  ·  TrackBack (33)

    March 31, 2005
    Bankruptcy Reform

    Perhaps I've just missed it, but here's a feature of the recent bankruptcy reform legislation that seems to have passed unremarked. My bankruptcy attorney neighbor tells me that the most significant feature of the legislation is a new requirement that attorneys certify financial statements that their clients make. For example, at the risk of penalty to themselves, attorneys would have to attest that their clients have no hidden assets. My neighbor predicts this will have a chilling effect on bankruptcy attorneys' willingness to take on clients. Indeed, he plans to switch his field of practice.

    Posted by E. Frank Stephenson at 08:35 PM in Law  ·  TrackBack (3)

    March 29, 2005
    We're from the Government and We're Here to Help

    A new NBER working paper finds:

    "Segregation in schools might have declined had it not been for the actions of federal courts."

    Posted by E. Frank Stephenson at 04:50 PM in Law  ·  TrackBack (7)

    March 25, 2005
    Property Rights to the Letter 'Q'?

    Who owns it? Nissan or Audi? Neither?

    Evidently some judge will determine the answer.

    I wonder why Nissan didn't sue the folks who wrote Star Trek: Voyager?

    Posted by Craig Depken at 06:15 PM in Law  ·  TrackBack (2)

    Novel Use for Gun Locks

    John Lott links to a story about farmers using federally provided gun locks to fasten their gates. Another great nanny state scheme for taxpayer dollars ...

    Posted by E. Frank Stephenson at 10:47 AM in Law  ·  TrackBack (3)

    March 24, 2005
    Skate Around the Truth

    In a previous post I listed the risky activities that my generation engaged in. We did not have skateboard parks. In fact, we didn’t even have skateboards. What we did was take an old strap-on skate and nail it to the bottom of an orange crate. We then pedaled this contraption in the middle of traffic on New York streets.

    The current generation uses skateboards and practices their art in skate parks. Unfortunately, this mildly risky behavior is also likely to disappear. A New Jersey appeals court in Hojnowski v. Vans Skate Park has decided that parents cannot waive in advance their children's right to sue for injuries at skate parks.

      The 2-1 majority in Hojnowski v. Vans Skate Park, A-2028-03T5, invalidated a waiver signed by the mother of a boy who was then hurt at the park, finding that the rights of children to seek legal remedies trumps parental rights to choose a child's activities.

    By interfering with the right to contract, the court forces the skate park to bear the full liability of future accidents. This means they must pass on that cost in higher ticket prices. Therefore, the less accident prone must now subsidize the risk takers if they wish to visit the skate park. If enough customers are unwilling to pay the higher cost, the skate parks may close. Assuming that illegal skateboarding is a substitute for legal skateboarding, skateboarding on the public streets should increase with a concomitant rise in auto-skateboard injuries. Is this another example of perverse incentives?

    MP3 Skate Around the Truth – Andy Dimacale

    Posted by at 10:31 AM in Economics ~ in Law  ·  Comments (0)  ·  TrackBack (2)

    March 19, 2005
    No sense of irony in Florida?

    As Terri Schiavo starves to death (technically I suppose she will die of dehydration long before she starves), a Florida rancher has been arrested for starving 120 cows.

    What if he claims that the cows, in a private moment, indicated the didn't want to live anymore?

    These are bizarre times.

    Posted by Craig Depken at 06:51 PM in Law

    March 18, 2005
    Russ Roberts on Gender Pricing Laws

    Russ Roberts reports on a Canadian attempt to impose pricing parity for dry cleaning, haircuts, and the like. I wonder if the folks behind such parity laws would also like to impose them on catalog retailers. It seems as though the "Overstocks" section the Lands End catalog that lands in our mailbox every so often is disproportionately loaded with discounted women's items. Men's discounts, by contrast, are confined to shirts in odd size/color combos. Sauce for the goose, sauce for the gander.*

    Of course, I would oppose such a law even if it included catalog discounts; my point is simply that sometimes these things seem to favor men and other times they seem to favor women. (I say seem b/c as Roberts points out the typical men's haircut is not the same as the typical women's haircut.) Such is the nature of the marketplace.

    *We could have the same discussion about registering for the draft. Registration should be abolished, but if it isn't then why shouldn't women register?

    Posted by E. Frank Stephenson at 12:47 PM in Law

    March 17, 2005
    Taxed to Death

    Supreme Court Asked to Bury Oklahoma Casket Law
    Powers v. Harris, No. 04-716, a case from the 10th U.S. Circuit Court of Appeals upholding Oklahoma's Funeral Services Licensing Act.

    Consumers need protection, but they need it from the state and not the seller. If you want to sell a casket in Oklahoma the state “requires two years of college coursework and graduation from an accredited mortuary science program, two exams, and a one-year apprenticeship in a funeral home, during which the apprentice embalms at least 25 bodies.”

    Yes, I said sell. We are not taking about becoming a mortician. We are talking about the requirements to sell a box. No doubt, vested interests had a major part in erecting these ridiculous barriers to entry. As stated in the linked article, “funeral directors regularly mark up a $1,000 wholesale casket to $6,000.”

    Let's hope the SC puts this law to rest.

    Posted by at 08:17 AM in Economics ~ in Law  ·  Comments (1)  ·  TrackBack (14)

    March 16, 2005
    Mike Lester on Justice Kennedy

    The Rome News-Tribune's Mike Lester has another excellent offering today.


    Posted by E. Frank Stephenson at 09:51 AM in Law

    March 15, 2005
    Georgia School Finance Lawsuit

    Georgia, like most other states, is experiencing the great joy of having a bunch (51 of 180) of school systems sue the state for insufficiently funding government schools. The plaintiffs have a website here.

    The bone of contention is that these school systems are too poor to adequately fund education on their own and that the big meanie state isn't stepping in to remedy the situation. I decided to take a look, using data from the website linked above.

    The plaintiffs are right about one thing--they are poorer jurisdictions. Taxable wealth (i.e., the value of property subject to ad valorem taxation) is lower in the lawsuit jurisdictions--about one third or $35,000 per full time equivalent student lower.

    Now for the kicker--if these jurisdictions are so constrained by the lower tax bases and miserly state funding then one would expect them to have higher millage rates. Guess what? THEY DON'T! Millage rates are nearly a mill lower on average in the lawsuit counties than in the non-lawsuit counties; this difference is statistically significant at the 5% level. Moreover, one might expect to find many of these poor counties at or near the state limit of 20 mills of property tax for education funding. Guess what? THEY AREN'T. Only 1 of the 51 lawsuit school systems has a millage rate above 17 mills (Lanier county at 17.09 mills). Hence, the premise that state funding and meager tax bases cause the lawsuit counties to have higher millage rates just isn't true. And, to the extent that schools are inadequately funded in the lawsuit counties, the citizens of those jurisdictions and their elected leaders bear at least as much responsibility as the state legislature. If schools in the 51 lawsuit systems are poorly funded, it's a political decision of those jurisdictions.

    A FOOTNOTE: The notion of "inadequate funding" is pretty dicey. For example, the simple correlation between per pupil spending and a measure of student performance on Georgia's standardized test is -0.25. (The data are obtained from the same website linked above.) Yup, more money is correlated with lower scores--higher spending districts don't seem to give taxpayers and students much return on their tax dollars.

    Of course, the ultimate way to equalize spending is to provide a flat per pupil voucher ...

    Posted by E. Frank Stephenson at 12:35 PM in Law  ·  TrackBack (20)

    What Price Lucky?

    Lucky was a sheepdog. The vet that operated on Lucky is now being sued for malpractice. The lawyer for Lucky’s survivors – his human family- wants to sue for Lucky’s subjective value to the previous owners. I assume this would include pain and suffering and lost society and companionship. The defense, of course, wants Lucky valued at replacement cost. And like a car, Lucky’s market value should be depreciated for wear and tear.

    What do you think? Subjective value or replacement cost?

    Posted by at 09:05 AM in Economics ~ in Law  ·  Comments (2)  ·  TrackBack (26)

    March 14, 2005
    Kritocracy Expands Its Rule

    The kritocracy has again attempted to extend its rule by declaring that a ban on gay marriage is unconstitutional under California law. The failure to constitutionally ban a right now makes any unstated right a positive right. Under this interpretation how can governments ban most things? This is actually a libertarians dream come true.

    What strikes me as strange is that I don’t think any of these state governments have recently banned gay marriage. What they have done is prohibit non-traditional civil marriages? Civil marriages define a civil contract and define the obligations of the contracting parties. They have nothing to do with sanctifying a marriage. That is done in a church and it is not the business of government. The joyous celebration of marriage has historically occurred in a religious context. To see couples celebrating on Caesar’s steps because their names may be joined on the tax roll seems odd to me.

    This whole topic is blurred in the press where civil marriage is presented as a moral question. The appropriateness of a church marriage is a question that should be answered by one’s religion. That’s the moral question. The legal question is whether or not the rights and obligations of the civil marriage contract should be extended to gay partners, or for that matter any two or more individuals. After all, we can’t ask same sex couples to prove they are gay before they marry.

    The question should be, what are the benefits and cost of permitting same sex marriage? Assuming that the law has no impact on church marriage, potential same sex civil marriage couples must perceive that the benefits of a state approved marriage outweigh the costs. What are those benefits? They must believe that they will be receiving additional state mandated benefits if they are civilly joined. These might include access to fringe benefits, social security benefits or other federally or state funded programs. In other words, the rest of us are going to pay to support same sex marriage.

    Posted by at 05:56 PM in Law  ·  Comments (1)  ·  TrackBack (39)

    March 11, 2005
    Slow Down in Class or You'll Be Sued

    Story here; a couple of excerpts:

    "A former UNLV student is suing the university after losing an appeal over a low grade."

    "According to the complaint, he received the grade because of Moehring's fast-paced lectures that prevented him from taking complete notes. He said Moehring criticized his conservative bent in papers and gave him a grade that damaged his grade-point average and made him ineligible for student loans."

    Posted by E. Frank Stephenson at 12:00 PM in Law

    The Greedy Hand of Government--Red Light Camera Edition

    In a recent article in The New Republic (subscription required) Gregg Easterbrook writes on local governments' use of red light cameras as a funding source. Here's an excerpt cribbed from the Market Center Blog:

    "Many states and local governments are installing ticket-issuing cameras, ostensibly for safety but more likely as a clandestine tax on driving. Take the District of Columbia as an example. It's been mounting automated-ticket cameras since 1999, and soon will have 49 that issue tickets for running red lights, plus 15 photo-radar devices that issue speeding tickets. In 2004, the District realized $54 million in revenue from roughly half a million tickets assessed by these devices. ...automated tickets are a minor matter. But can it be wise to establish a principle that when a machine says you did something illegal, you are presumed guilty? This is an extremely dangerous idea that may someday be applied to circumstances that are not minor. ...The next worry about ticket-issuing cameras is that they are pretty obviously intended to reach into citizens' pockets. From a practical standpoint, the District government knows that no one can afford to take a day off from work to contest a $75 automated fine, the most common levy. It's a fabulous money-making scheme for government. Nearby Maryland and Virginia have noticed the District's income windfall from automated ticketing and are installing the cameras like crazy. Other local governments around the country are doing the same. If the District, Maryland, Virginia, or any other government entity wants more money from motorists, it should impose higher vehicle-registration taxes and take the political heat for doing so. Issuing people automated fines for using the roads their taxes built in the first place is not only politically devious, it is government raising its middle finger to average citizens. ...the company that operates the District's automated ticket devices gets a bonus when tickets issued exceed a target level. If the real goal were to reduce speeding and red-light running, the District would be happy when the number of tickets declined, because that would mean fewer violations. Instead the program is structured to increase the number of tickets issued, because the real goal is seizing money. ...three years ago a red-light camera was installed at the intersection of two streets called Old Georgetown Road and Edson Lane. The yellow lamp was re-timed to last only two seconds, meaning a steady stream of drivers expecting the standard four-second yellow ended up running the light."

    This all hits close to home because Rome installed a camera about a year ago at its busiest intersection. The results--lots of cash for the government and more fender benders caused by people slamming on brakes to avoid the lights. There are also suspicions that the yellow light phase at that intersection has been shortened. Of course, the whole safety rationale for installing cameras is specious--if the Rome had been so concerned about accidents caused by people running the light it could have stationed an officer at the intersection to issue tickets the good old fashioned way.

    In case you're wondering--no neither my wife nor I have gotten a ticket from the camera.

    Posted by E. Frank Stephenson at 09:33 AM in Law

    March 08, 2005
    Organ Ownership

    A New York State judge has decided you don’t own your kidneys (Law.com). Robert Colavito had a kidney donated to him by a dying friend. It was alleged in the complaint that the kidney meant for Colavito was found unusable after the other donated kidney had already been transplanted into another patient. Colavito sued the hospital for misdirection of the kidney. (See the comment below for additional information on the complaint.)

    Judge Dora Irizarry decided that Colavito did not have a cause of action because public policy discourages the treatment of organs as private property. Consequently, not only is it illegal for you to sell your body parts, you also cannot gift your organs to a specific individual or, I would assume, a specific purpose.

    It is likely that this decision, which may well be a reasonable interpretation of the present law by Judge Irizarry, will further decrease the supply of transplantable organs by reducing the related non-pecuniary benefits of a directed donation. It is certainly not clear how society benefits by mandating a zero price on body parts.

    Additional report in Newsday

    Read More for selected excerpts from the court decision.

    Read More »

    Posted by at 09:07 AM in Economics ~ in Law  ·  Comments (5)  ·  TrackBack (6)

    March 07, 2005
    Elasticity of Legal Damages

    The legislatures of several states have attempted to limit damage awards by placing caps on non-economic damages. (Of course this is a misnomer to an economist who perceives all damages as economic.) A recent article in the New York Times, “Go Ahead. Test a Lawyer's Ingenuity. Try to Limit Damages” (free registration required) discusses the ability of lawyers to substitute one type of damages for another.

    There are apparently two types of substitution effects. The first is the additional emphasis on economic damages as opposed to non-economic damages, especially if there is a link between economic damages and the permissible amount of non-economic damages. For example the Supreme Court in BMW v. Gore has indicated that there should be a reasonable multiple between economic harm and punitive damages. The second is the substitution of one type of case for another. A case that largely relied on economic damages might have been previously rejected in favor of one that appeared to offer a little more in non-economic damages. A complaint that requested primarily economic damages might now be tried first.

    The result is that damage caps may be much less successful than we might expect in reducing total damage awards. As reported in this article,

    “The new study, by Catherine M. Sharkey, a law professor at Columbia, may change that. The study, to be published in the New York University Law Review in May, analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider cases settled out of court. It found that the median compensatory award in states with caps on damages was $324,000, compared with $387,000 elsewhere - figures that Professor Sharkey found were roughly equivalent after the data was adjusted for variables like the kind and number of plaintiffs and defendants, the percentages of local doctors and lawyers, and jurors' wealth and ages.”

    Copies of Professor Sharkey's papers can be found on the Social Science Review Network

    Posted by at 10:59 AM in Economics ~ in Law  ·  Comments (0)  ·  TrackBack (3)

    March 03, 2005
    Unconscionable Constitution

    George Neumayr at the American Spectator has an interesting point. If the government doesn’t respect the constitution, why should the people?

    "The Supreme Court's judicial activists are cutting off the branch on which they sit. By rejecting the law and putting their personal opinions in its place, the justices invite the people to imitate them and disregard their decrees with the same willfulness they disregard the Constitution. If Anthony Kennedy isn't bound by the framers' words, why are the people bound by his?"

    A constitution has been viewed as a contract among the people, and between the people and their government. Contracts often need interpretation. It is impossible for a written contract to include remedies for all potential contingencies. When the courts fill unavoidable gaps in contracts they often look to the intentions of the parties when they signed the contract. It should be obvious that the intentions of those who were not parties to the contract should be irrelevant.

    We the people of these United States are the parties to the U.S. Constitution. Therefore, it is pretty much irrelevant how the Europeans, the Chinese or the Africans might intend this contract to be performed. Even worse, when the Supreme Court looks to the desires of non-signers in order to impose their own tastes on contract performance, then they abrogate the contract. A contract that is so one-sided that the party with market power can interpret the contract any way they desire and impose whatever costs they want on the other has been deemed by the courts as unenforceable. It is an unconscionable contract; it offends the conscience of the court. But what happens when the court is the party that imposes its unconstrained will on the terms of the contract? What happens when the court is guilty of unfair surprise? It discovers clauses in the fine print of the contract that the people had no idea they were agreeing to. Were the original signers tricked into giving away state’s rights because they didn’t read the fine print? At what point do the people say, “We didn’t sign that.”

    Posted by at 10:42 AM in Law  ·  Comments (0)  ·  TrackBack (1)

    The statesman who should attempt to direct private people in what manner they ought to employ their capitals would not only load himself with a most unnecessary attention, but assume an authority which could safely be trusted, not only to no single person, but to no council or senate whatever, and which would nowhere be so dangerous as in the hands of a man who had folly and presumption enough to fancy himself fit to exercise it. -Adam Smith

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