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I Appreciate Justice Thomas

I Appreciate Justice Thomas →

Tamara Tabo writes at Above the Law.

Liberal critics frequently bash Thomas for haplessly following the lead of fellow conservative Justices such as Antonin Scalia, unable to form reasoned opinions on his own.

Thomas’s many dissents belie the criticism that he marches in lockstep. This Term, he holds the weakest voting relationships of any Justice with his or her fellow Justices. His rate of disagreement with Justice Sonia Sotomayor — currently 57% — is the weakest voting relationship of any two Justices on the Court. Even his agreement rates with Scalia and Roberts amount only to 77% and 66%, respectively — far cries from the 90+% relationships between some other Justices.

…Thomas’s dissents often represent radical departures from the fundamental approach of the rest of the Court. He’s not quibbling over factual judgment calls. He’s often applying an entirely different method of deciding the case. ​> …Clarence Thomas is either unafraid of correcting bad precedent, or he is flagrantly disrespectful of stare decisis, depending upon how one looks at it. His fidelity to text might seem downright obsessive, even to a fellow originalist like Justice Scalia. Thomas has the tunnel vision of a man sure of his method, regardless of what his colleagues see. ​ I've long appreciated Justice Thomas. He doesn't write with the wit and sarcasm of Justice Scalia. But his opinions are always principled and well reasoned.

I love his willingness to go with what's right, regardless of the precedent established by the errors of previous courts. When it comes to upholding the Constitution as written, Justice Thomas has no peers.

Free Speech in America is Pretty Absolute

Free Speech in America is Pretty Absolute →

Charles C. W. Cooke offers a quick primer on America's expansive free speech tradition. When I think of American exceptionalism, this is one of the areas that comes to mind.

As the Supreme Court has repeatedly ruled, under American constitutional law there is simply no such thing as “hate speech.” In Texas v. Johnson, the Court confirmed that “the government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable,” thereby echoing the insistence of a lower court that “the First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane.” Indeed, as FIRE’s Sean Clark noted in 2006, the government may not prohibit much at all:

The First Amendment allows you to wear a jacket that says “Fuck the Draft” in a public building (see Cohen v. California, 403 U.S. 15), yell “We’ll take the fucking street later!” during a protest (see Hess v. Indiana, 414 U.S. 105), burn the American flag in protest (Texas v. Johnson, 491 U.S. 397 and United States v. Eichman, 496 U.S. 310), and even give a racially charged speech to a restless crowd (see Terminello v. Chicago, 337 U.S. 1). You can even, consistent with the First Amendment, call for the overthrow of the United States government (see Brandenburg v. Ohio, 395 U.S. 444). This is not a recent development in constitutional law—these cases date back to 1949.

It is worth remembering that Madison did not believe that his Bill of Rights was necessary to protect speech at all. Because the Constitution is a charter of enumerated powers, he argued in Federalist No. 10, Congress enjoys no capacity to censor the press in the first instance and does not therefore need to be prevented from doing so:

Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.

This entry was tagged. America Free Speech

Tsarnaev and Miranda Rights

Tsarnaev and Miranda Rights →

Orin Kerr provides an interesting analysis, at the Volokh Conspiracy:

1) A lot of people assume that the police are required to read a suspect his Miranda rights upon arrest. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. The police aren’t required to follow Miranda. Miranda is a set of rules the government can chose to follow if they want to admit a person’s statements in a criminal case in court, not a set of rules they have to follow in every case.

There are questions of legality and questions or morality. Based on Kerr's analysis, it looks like it's legal to question Tsarnaev without reading him his Miranda rights. But is it moral? I think it is. I don't see the harm in allowing the police and FBI to interrogate Tsarnaev about this attack, if they aren't planning on using his statements against him.

This entry was tagged. Civil Liberties Police

Steubenville High School football players found guilty of raping 16-year-old girl

Steubenville High School football players found guilty of raping 16-year-old girl →

I'm a bit late on this, but I wanted to post it anyway.

From Dan Wetzel, at Yahoo! Sports:

Trent Mays and Ma'lik Richmond were soon arrested after that text exchange. Legendary coach Reno Saccoccia couldn't help them now. The power of Big Red, their families' good names, their otherwise clean pasts and strong futures, meant nothing.

A culture of arrogance created a group mindset of debauchery and disrespect, of misplaced manhood and lost morality.

Drunk on their own small-town greatness, they operated unaware of common decency until they went too far, wrote too much, bragged too many times and, finally, on a cold Sunday morning, were hauled out of a small third-floor courtroom as a couple of common criminals.

Good. That's what equality before the law is about. Lex, rex.

This entry was tagged. Justice Lex Rex

Paleo Diet Lawsuit Dismissed By Court in Blow to Free Expression

Paleo Diet Lawsuit Dismissed By Court in Blow to Free Expression →

Does your free speech extend to sharing your opinion or can state licensing boards tell you to shut up? A federal court decided not to even think about it.

A state licensing board in North Carolina tried to suppress a blogger who talked up and advised people on the health benefits of the "paleo" diet (that is, eating as we think cavement ate, no grains or processed foods), telling him directly what he could or could not say about his belief that the high-meat, low-carb diet helped him with his diabetes. The case was dismissed by a federal court late last week.

Obama Overloads a Tale of Equal Pay

Obama Overloads a Tale of Equal Pay →

Victoria Toensing explains the Lilly Ledbetter Fair Pay Act, in the Wall Street Journal.

President Obama makes much of his concern for women's rights, particularly regarding equal pay, but he seems not to be aware that for nearly half a century we have enjoyed the protection of two laws requiring equal pay. The 1963 Equal Pay Act and Title VII of the 1964 Civil Rights Act combined to settle the matter in law.

Mr. Obama brags that the 2009 Lilly Ledbetter Fair Pay Act bestowed equal-pay rights for women. The act, he has said, "is a big step toward making sure every worker," male and female, "receives equal pay for equal work." No, it was a teensy step. It merely changed how the statute of limitations is calculated.

The Equal Pay Act of 1963 prohibits wage disparity between men and women who work in the same place and perform jobs that require substantially the same "skill, effort, and responsibility." The statute of limitations for filing suit is two or three years, depending on whether the discriminatory act is intentional.

Title VII of the 1964 Civil Rights Act covers discriminatory hiring, firing and promotions as well as pay. It requires filing a complaint with the Equal Employment Opportunity Commission within 180 days after an intentional discriminatory act.

Ms. Ledbetter didn't file suit until after her retirement, years after the discrimination ooccurred. The Supreme Court ruled against, stating the law's explicit 180-day statute of limitations.

Statutes of limitation are not technicalities. In Ledbetter, for example, the Supreme Court pointed to the dead witness, stating it is unfair to fail to put an adversary on notice within a specific time period because employers should not have to defend claims far in the past. The court reflected that it does not want to alter congressional deadlines.

In 2009, the Democratic-controlled Congress amended Title VII, allowing a suit to be brought within 180 days of any "discriminatory compensation decision"—in other words, any too-low paycheck. In its legislative "findings," Congress proclaimed that the Ledbetter Supreme Court decision "undermines . . . protections by restricting the time period . . . contrary to the intent of Congress."

So the Lilly Ledbetter Fair Pay Act was premised on the legislators' pretending that Congress was not responsible for the precise words of its own law setting the 180-day deadline.

Why Obama Strikes Out in Court

Why Obama Strikes Out in Court →

Ilya Shapiro writes in the Wall Street Journal abut the President's run-ins with the Supreme Court.

As the world awaits the Supreme Court's ruling on ObamaCare, there's a larger story that the pundits are missing: the court's rejection of the Obama administration's increasingly extreme claims on behalf of unlimited federal power.

This term alone, the high court has ruled unanimously against the government on religious liberty, criminal procedure and property rights. When the administration can't get even a single one of the liberal justices to agree with it in these unrelated areas of the law, that's a sign there's something wrong with its constitutional vision.

It's never a good thing to lose a case by a unanimous 9-0 vote, let alone 3 cases in 3 very different areas of law.

No "Fundamental Right" to Own a Cow, or Consume Its Milk

No "Fundamental Right" to Own a Cow, or Consume Its Milk →

Wisconsin Judge Patrick J. Fiedler, on your fundamental rights.

"This court is unwilling to declare that there is a fundamental right to consume the food of one's choice without first being presented with significantly more developed arguments on both sides of the issue."

"no, Plaintiffs to not have a fundamental right to own and use a dairy cow or a dairy herd;

"no, Plaintiffs do not have a fundamental right to consume the milk from their own cow;"

"no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice..."

If Americans don't have a fundamental right to produce and consume the foods of their choice, what rights do they have?

Why 'Caylee's Law' Is A Bad Idea

Why 'Caylee's Law' Is A Bad Idea →

Because many people reacted with anger to the Casey Anthony verdict, lots of state legislators saw a chance to be a hero to parents everywhere. More than 30 states have pending legislation to implement “Caylee’s Law”—an attempt to make sure that the next Casey Anthony gets punished as harshly as everyone thinks the real Casey Anthony should have been punished.

"Caylee's Law," a proposed federal bill that would charge parents with a felony if they fail to report a missing child within 24 hours, or if they fail to report the death of a child within an hour.

Radley Balko points out the many reasons that such a law would be a stupendously bad idea, verging on being evil itself.

In an interview with CNN, Crowder concedes that she didn't consult with a single law enforcement official before coming up with her 24-hour and 1-hour limits. This raises some questions. How did she come up with those cutoffs? Did she consult with any grief counselors to see if there may be innocuous reasons why an innocent person who just witnessed a child's death might not immediately report it, such as shock, passing out, or some other sort of mental breakdown? Did she consult with a forensic pathologist to see if it's even possible to pin down the time of death with the sort of precision you'd need to make Caylee's Law enforceable? Have any of the lawmakers who have proposed or are planning to propose this law actually consulted with anyone with some knowledge of these issues?

What if a child dies while sleeping? When would you start the clock on the parent's one-hour window to report? From the time the parent discovers the child is dead, or from the time the child actually dies? If it's the former, can you really believe what a parent tells you if he knows a felony charge hinges on his answer? What if a parent or babysitter missed the deadline because she fell asleep at the time the child was playing outside and suffered a fatal accident? You could argue this is evidence of bad parenting or inattentive babysitting, but under those circumstances, do you really want to charge a grieving parent or heartbroken babysitter with a felony?

The portion of the bill that requires a parent to report a missing child within 24 hours is just as fraught with problems. When does that clock start? From the time the child actually gets abducted, gets lost, or is somehow killed, or at the time the parents noticed the child was missing? How do you pinpoint the time that they "noticed"? When teenager Rosie Larsen is abducted and murdered in the new AMC drama The Killing, it takes two days for her parents to notice she's missing. They thought she was spending the night at a friend's house, and she and her friends often rotated sleeping over at one another's homes on the weekends. The Killing is fiction, but this isn't an implausible scenario. Again, are we really so angry about the Casey Anthony verdict that we're prepared to charge grieving parents with a felony because it takes them longer than some arbitrary deadline to notice their child is missing?

The law and the attention it attracts could also cause problems of overcompliance. How many parents will notify the authorities with false reports within an hour or two, out of fear of becoming suspects? How many such calls and wasted police resources on false alarms will it take before police grow jaded and begin taking note of missing child reports, but don't bother investigating them until much later? How many legitimate abductions will then go uninvestigated during the critical first few hours because they were lost in the pile of false reports inspired by Caylee's Law?

It isn't difficult to come up with other scenarios where innocent people may get ensnared in Caylee's Law.

This entry was tagged. Justice

Bad Evidence in the Casey Anthony Trial

How confident are you that Casey Anthony was guilty? Now, what if I told you that a key piece of prosecution evidence—that she searched for information about “chloroform” more than 80 times—was wrong?

Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

The already weak circumstantial evidence for a “murder” verdict is now even weaker. I still think there’s plenty of evidence to convict Ms. Anthony of being a horrible parent. But that’s not the same thing as proving, beyond any reasonable doubt, that she acted with deliberate premeditation to commit murder. Losing this piece of evidence just makes those doubts all the more reasonable.

Gandolf’s words to Frodo, from the Fellowship of the Ring still ring hauntingly true.

Many that live deserve death. Some that die deserve life. Can you give it to them, Frodo? Do not be too eager to deal out death in judgment. Even the very wise cannot see all ends.

This entry was tagged. Justice

A Washington Power Breaker

A Washington Power Breaker →

CQ has a very nice profile of Randy Barnett, libertarian legal scholar. I’ve been a fan of Randy Barnett ever since I read his 2005 book Restoring The Lost Constitution. (Which, Amazon helpfully reminds me, I purchased on December 26, 2004.)

In less than two years, Barnett, 59, has accomplished what few law professors ever manage to do: make an arcane constitutional argument so compelling and clear that it becomes part of the national conversation.

But what makes Barnett unique is how his influence has extended beyond the elite circle of litigators fighting the health care law and into the grass roots. He has helped members of the tea party movement and supporters on Capitol Hill formulate a proposed constitutional amendment that would authorize the repeal of laws enacted by Congress to which two-thirds of the states object. While its chances of being adopted are slight, that effort, and his work against the health care law, has made Barnett an intellectual favorite of House Republicans.

Congress Can Regulate Your Thoughts

Congress Can Regulate Your Thoughts →

That, at least, appears to be the logical outcome of Tuesday's ObamaCare ruling, from Judge Gladys Kessler, of the D.C. District Court.

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress's power…. However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

So, if you don't make the "right" choice on your own, Congress can step in to mandate that you do make the right choice. If that's not thought regulation, I don't know what is.

This entry was not tagged.

Did the Madison Union Strike Illegally?

This morning, on Facebook, I said that I was glad that the teachers would be ending their illegal strike tomorrow. But have Madison's teachers been illegally striking? After further research and reflection, I don't think they have been but I do think their actions came very close to a strike. A strict reading of the law kept their actions from being a de jure strike. I do believe that their actions constituted a de facto strike, however and violated the spirit of the law that allows public sector employees to unionize.

Wisconsin law governs public sector unions. Specifically, Chapter 111 governs Employment Relations. Subchapter I deals with keeping the peace, Subchapter IV deals with municipal employment relations, and Subchapter V deals with State employment relations.

Chapter 111.01 deals with the general goals of the law. One of the primary goals is to keep the peace between workers and employers, to the benefit of everyone else.


Industrial peace, regular and adequate income for the employee, and uninterrupted production of goods and services are promotive of all of these interests. They are largely dependent upon the maintenance of fair, friendly, and mutually satisfactory employment relations and the availability of suitable machinery for the peaceful adjustment of whatever controversies may arise. ... It is also recognized that whatever may be the rights of disputants with respect to each other in any controversy regarding employment relations, they should not be permitted, in the conduct of their controversy, to intrude directly into the primary rights of 3rd parties to earn a livelihood, transact business, and engage in the ordinary affairs of life by any lawful means and free from molestation, interference, restraint, or coercion.

It's pretty clear that one of the goals of allowing public employees to unionize was to ensure that disputes could be handled in an orderly way, without inconveniencing everyone who depends on the work that the state and municipal employees do.

As the law continues, Chapter 111.06 starts to lay out what "unfair labor practices" are, both for the employer (1) and for the employee (2). I'll quote some of the unfair labor practices, for employees.

(c) To violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award.

I'd argue that, per the terms of the CBA for Madison's teachers, calling in sick to attend a protest meet this definition of an unfair labor practice.

(e) To cooperate in engaging in, promoting or inducing picketing that does not constitute an exercise of constitutionally guaranteed free speech, boycotting or any other overt concomitant of a strike unless a majority in a collective bargaining unit of the employees of an employer against whom such acts are are primarily directed have voted by secret ballot to call a strike.

Given that no strike has been called, I think the teachers who -- by their absence -- forced schools to close have engaged in unfair labor practices towards their fellow teachers. The teachers are arguing that their actions are merely an exercise of constitutionally guaranteed free spech. I don't know that I agree. Not when a large minority of teachers are acting collectively, with the approval and encouragement of the union, to shut down the schools.

Now, let's move specifically to Subchapter IV, Municipal Employees. Section (1)(i) and (1)(j) make it clear that teachers are muncipal employees since they are employed by school districts. Section (1)(nm) defines a strike, for municipal employees.

"Strike" includes any strike or other concerted stoppage of work by municipal employees, and any concerted slowdown or other concerted interruption of operations or services by municipal employees, or any concerted refusal to work or perform their usual duties as municipal employees, for the purpose of enforcing demands upon a municipal employer. Such conduct by municipal employees which is not authorized or condoned by a labor organization constitutes a "strike", but does not subject such labor organization to the penalties under this subchapter.

What we had in Madison last week was a concerted stoppage of work by municipal employees for the purpose of enforcing their demands that the Governor alter the Budget Repair Bill. Because the unions didn't call a strike, the union itself isn't subject to penalties but individual teachers could be. Because the teachers were demonstrating against the State, not the municipal employer, their actions do not directly meet the definition of a strike.

Section (3)(b)(4) repeats the general prohibition against violating the current CBA. Section (4)(L) bans strikes by municipal employees.

Except as authorized under par. (cm) 5. and 6. c., nothing contained in this subchapter constitutes a grant of the right to strike by any municipal employee or labor organization, and such strikes are hereby expressly prohibited. Paragraph (cm) does not authorize any strike after an injunction has been issued against such strike under sub. (7m).

Section 7m lays out the process for ending a strike.

Section (7m)(a)

At any time after the commencement of a strike which is prohibited under sub. (4) (L), the municipal employer or any citizen directly affected by such strike may petition the circuit court for an injunction to immediately terminate the strike. If the court determines that the strike is prohibited under sub. (4) (L), it shall issue an order immediately enjoining the strike, and in addition shall impose the penalties provided in par. (c).

Section (7m)(c)(2)

‘Individuals.’ Any individual who violates sub. (4) (L) after an injunction against a strike has been issued shall be fined $10. Each day of continued violation constitutes a separate offense. After the injunction has been issued, any municipal employee who is absent from work because of purported illness is presumed to be on strike unless the illness is verified by a written report from a physician to the municipal employer. The court shall order that any fine imposed under this subdivision be paid by means of a salary deduction at a rate to be determined by the court.

The Madison School District thought that these sections of law applied. They filed suit on Friday, in Dane County Circuit Court, to have the work stoppage declared a strike and to get an injunction against the strike. MTI, the local union, did argue that the stoppage wasn't a strike.

In court, MTI lawyer Lester Pines argued it was not a strike because the union made no demands against the district, a requirement for a strike under state law.

Instead, he said, teachers were exercising their First Amendment right to express their feelings about Gov. Scott Walker's plan to limit collective bargaining.

"To do so they may be subjecting themselves to discipline, to having their pay docked, but they are making that choice individually," Pines argued.

A hearing was scheduled for Monday morning but it was canceled / postponed when the teachers indicated that they would return to work on Tuesday.

I'm forced to agree that the teachers weren't technically striking, since they were protesting the actions of the State not the actions of the Madison School District. Morally, I believe the unions did engage in a strike. It didn't, quite, meet the legal definition of a strike but it came right up to the boundary. The State doesn't directly employ teachers but it does set the overall policy and rules for how school districts employ teachers. Thus, I think of the State as a related employer (a grandparent employer?). The arguments presented during the last 6 days of protest certainly sound like the arguments that striking employees would make against an employer. These demonstrations were done for the purpose of demonstrating the unions' power and attempting to force the government -- at all levels -- to agree to their demands.

I do believe the individual teachers are guilty of violating 111.70(3)(b)4. They're only innocent of violations to 111.06(2)(e) because their demonstrations were against the State instead of the municipal government.

So, I was wrong. Legally, the unions are clear. The individual teachers are guilty only of violating their own collective bargaining agreement.

More Gun Rights Coming, but Slaughter-House Will Remain

I really should start posting my predictions publicly. Not only would it vindicate me when I'm right, it would keep me honest when I'm wrong.

Last week, I predicted that Justices Scalia and Roberts would be very negative towards the idea of resurrecting the "Privileges or Immunities" clause of Section 1 of the 14th Amendment. From reading his past opinions, I know that Justice Scalia isn't a big fan of overturning precedent, especially when said precedents have been around for 140 years. (The Privileges or Immunities Clause was strangeled by the Supreme Court just moments after birth, in the Slaughter-House Cases.) Everything I've read about Chief Justice Roberts says that he's a cautious incrementalist who prefers to make changes to the law in the smallest way that's likely to be effective. I was pretty sure that both Justices would be in favor of expanding gun rights but would be hostile to doing so through the Privileges or Immunities clause.

It turns out, I was right. Here's what happened during oral arguments this morning, in McDonald, et al., v. Chicago, et al..

The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, Virginia, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.” And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquiesced in that.”

The "bank tax" is unconstitutional and illegal

I listen to the President's Weekly Radio Address every week. It's usually a painful process, since I almost always disagree with the President. (That's been true for both President Bush and President Obama, in case you're wondering.)

Last week's address was particularly painful. It was almost scary to listen to. The President spoke quite passionately about his desire to tax big banks to pay for the assistance they've received over the past 2 years. This is part of what he had to say (emphasis added by me).

Much of the turmoil of this recession was caused by the irresponsibility of banks and financial institutions on Wall Street. These financial firms took huge, reckless risks in pursuit of short-term profits and soaring bonuses. They gambled with borrowed money, without enough oversight or regard for the consequences. And when they lost, they lost big. Little more than a year ago, many of the largest and oldest financial firms in the world teetered on the brink of collapse, overwhelmed by the consequences of their irresponsible decisions. This financial crisis nearly pulled the entire economy into a second Great Depression.

As a result, the American people - struggling in their own right - were placed in a deeply unfair and unsatisfying position. Even though these financial firms were largely facing a crisis of their own creation, their failure could have led to an even greater calamity for the country. That is why the previous administration started a program - the Troubled Asset Relief Program, or TARP - to provide these financial institutions with funds to survive the turmoil they helped unleash. It was a distasteful but necessary thing to do.

Many originally feared that most of the $700 billion in TARP money would be lost. But when my administration came into office, we put in place rigorous rules for accountability and transparency, which cut the cost of the bailout dramatically. We have now recovered most of the money we provided to the banks. That's good news, but as far as I'm concerned, it's not good enough. We want the taxpayers' money back, and we're going to collect every dime.

That is why, this week, I proposed a new fee on major financial firms to compensate the American people for the extraordinary assistance they provided to the financial industry. And the fee would be in place until the American taxpayer is made whole.

Reading the President's address now, it sounds bland and reasonable. But listening to it was a different experience. The President sounded angry and distinctly sounded like he wanted to punish the banks for ever daring to make trouble. He sounded like what he really wanted was to make the banks pay for the entire cost of the stimulus bill. I was deeply disturbed, as I listened to the speech, to the hear the President so angrily attacking and villianizing a specific industry.

Here's the thing. Not all of the banks that received government help wanted government help. Some of them were strong-armed into accepting the help. The President's new "fee" doesn't account for that. Nor does it account for the fact that not all large banks even received help. Nor does it account for the fact that some banks were healthy throughout the crisis and had no rule in causing the crisis. No, the President's "fee" taxes all banks equally, just for the sin of being big.

As I listened to the speech, I wondered if the plan was even Constitutional. As I said, it sounded like he really wanted to lay into the banking industry, to punish it. And the Constitution specifically forbids a "bill of attainder". What's that? It's when Congress passes a bill declaring someone guilty of a crime -- and punishing them -- without giving that person the benefit of a trial. And the President's language and tone sounded dangerously close to someone who wants to declare the entire banking industry guilty of "crimes against America" and then punish them.

It turns out, that I'm not the only person to think this is un-Constitutional. John Carney writes in The Business Insider Law Review that he's recently concluded that the proposed bank tax is an illegal bill of attainder.

Read his full piece for a much better explanation of the concept of a "bill of attainder", as well as some great examples. Here is his conclusion.

The Financial Crisis Responsibility Fee is unconstitutional on its face. It is as if the Obama administration had urged a tax called "The Fee That Violates Nonattainder Principles." Assigning responsibility after the matter and levying penalties is reserved for the judicial branch that is restricted to using already existing laws and treating similarly situated people equally. The Obama administration wants to assign responsibility for the financial crisis and levy a fee, while exempting its favored automakers. This is exactly the sort of thing the Attainder Clause was put in place to prevent.

Sotomayor Against Property Rights

Law professor Richard Epstein doesn't like Judge Sotomayor either. He points out that she issued a lousy opinion trampling all over property rights.

Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the "public use language." Of course, the takings clause of the Fifth Amendment is as complex as it is short: "Nor shall private property be taken for public use, without just compensation." But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion--one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

She may be empathetic towards plaintiffs but I'm not sure how that's suppose to reassure me. I didn't grow up poor and I didn't graduate from Yale law school, but Greg Wasser's demand sure sounds a lot like extortion to me. If her court will allow rich, politically connected developers to use government connections to demand payoffs from politically weak property owners -- where exactly does that leave the poor?

Was Bart Didden's case just not sympathetic enough for her?

I Don't Like Judge Sonia Sotomayor

President Barack Obama nominated appeals court judge Sonia Sotomayor to the Supreme Court today. I don't like her, as a judge.

Here's what I mean. The Law is the bedrock foundation of society. It is the set of rules by which society operates. For a society to be just, it must have one set of rules that applies to all people. Judges apply the rules to individual events as cases are brought before them.

For a society to be just, the judges must apply the Law the same way every time. It doesn't matter if the plaintiff is rich or poor, young or old, of minority or majority race, male or female, popular or unpopular, respectful or vulgar, thin or obese, short or tell, blonde or brunette -- it doesn't matter. The justice must apply the Law the same way to everybody. Any other standard is an injustice.

Now, it's true. Certain legislation may lead to unjust outcomes. But that is a political issue, not a legal issue. People must work through their government representatives to change the Law. Judges can only apply the Law as it is written. If each judge hands down the opinion that he or she feels is most "right", a person's rights and privileges depend not on impartial Laws but on the whims of powerful, unaccountable individuals.

I don't think that Justice Sotomayor meets that standard. She has fallen short in both her words and her previous judicial rulings.

In 2001, she gave a speech entitled A Latina Judge's Voice. She said:

Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Here she is explicitly saying that "wise" judicial rulings don't come from an impartial application of the rules. Instead, she believes that "wise" judicial rulings depend on one's gender and cultural background. Apparently, she believes that the Law changes with each person ruling on a case, that there is no fixed standard. That scares me.

While speaking at Duke University in 2005, Judge Sotomayor said that the Federal Appeals courts are "where policy is made". She didn't see her job as an impartial application of rules. She saw it as a place to decide what the rules are. If you're going before Judge Sotomayor, you can't know in advance what to expect. You can expect her to decide what the Law is based on who you are and how sympathetic she is to your case. That's a recipe for tyranny, not liberty.

So how has she decided cases? Well, let's take a very recent example: Ricci v. DeStefano.

In 2003, the New Haven, Connecticut, Fire Department sought to fill captain and lieutenant positions. Because its union contract required promotions to be based upon examinations, the City contracted with Industrial/Organizational Solutions, Inc. ("IOS") to develop exams, which were administered to qualifying applicants.

Pursuant to a City regulation known as the "rule of three," once test results are "certified," the Department must promote from the group of applicants achieving the top three scores. Immediate application of the "rule of three" to these exams would not have allowed for the promotion of any black firefighters. More broadly, black applicants' pass rate on the lieutenant exam was approximately half of the rate for white applicants - a disparity more marked than for prior exams. However, if additional vacancies opened, black applicants would have been eligible to be considered for those promotions, based upon these exams' results.

Because of these outcomes, the City's independent exam review board, which must vote to certify test results, held hearings to consider the possibility that the tests were racially biased. The board heard from a representative of an IOS competitor, who testified that the results showed "adverse impact" and that he could design tests with less disparate results and better measuring the jobs' requirements. He also conceded that the City's tests did not show an adverse impact greater than that allowed by law. Another witness, an experienced firefighter, testified that the exams were comparable to those he had taken in the past.

A City official testified that if the board chose to certify the results, then the city could be subject to a disparate impact suit from the minority applicants who did not qualify for promotions. Yet, his testimony may have been contradicted by IOS's "technical validity report." There is some evidence to suggest IOS was prepared to issue such a report, which might have "establish[ed] the City's lawful use of the test results." However, the City argues that IOS never offered to prepare the report nor would the report have "proved" the legality of the test.

Because the exam review board split evenly, 2-2, on whether to certify the exam results (with one member recusing herself based upon a conflict of interest), they were not certified.

A group of white firefighters, one of whom is also Hispanic, who scored some of the highest results on the administered exams, filed suit against the City and its officials, alleging that the City's action violated Title VII and the Equal Protection Clause. On cross-motions for summary judgment, the district court granted the City's motion, agreeing that the City did not need to certify the results because doing so could subject it to litigation for violating Title VII's disparate impact prohibition.

Basically, the District Court threw out the case saying that even though the firefighters had met the stated criteria for promotion, the city did not have to promote them if the promotion would unduly benefit one racial group over another. The firefighters appealed their case to the Second Circuit Court of Appeals.

Judge Sotomayor was one of three judges who upheld the decision of the District Court. Judge Sotomayor failed to engage the Constitutional issues at stake and failed to defend the firefighters who had played according to the rules. By signing on to the flimsy opinion of the majority, she upheld a racial ruling instead of making a colorblind ruling according to the Law.

Justice should be blind. Judge Sotomayor has shown a willingness to take off the blindfold and decide which side of the scales she likes better. For that reason, I consider her unfit to serve as a United States Supreme Court Justice.

Alienation of Affections: Using Tort Law to Protect Marriage

I take the institution of marriage very seriously. It pains me to see people treat marriage casually, as something to be jumped in and out of. It pains me even more to see marriages where one partner takes the marriage seriously and the other treats it as a disposable commodity. It hurts me even more to see someone deliberately trying to interfere with a marriage. So wouldn't it be a good thing to make it illegal to interfere with marriage? How about letting a jilted spouse sue whomever interfered with the marriage? What's wrong with that?

Well, Eugene Volokh discussed that very topic over at The Volokh Conspiracy earlier this week.

  1. The statute would literally apply to someone who urges a friend to leave an abusive -- or unfaithful or just unsuitable -- spouse, or (say) a mother who effectively badmouths her son-in-law to her daughter.

  2. And of course let's not forget the obvious problems of proof and risk of perjury. Was there an act of adultery? Should the defendant have known the other person was married? Much of the time this will depend on what was said and done behind closed doors, and who seems more trustworthy and appealing to the jury. And this is even more so today than in the past, given that men and women have innocent friendships more often than decades ago; evidence of dinners together will no longer be particularly probative, and it will be all a swearing match among three people who may have all sorts of financial and emotional motives to lie. That's in fact one reason the alienation of affections tort has mostly been abolished.

As I said, you can love marriage and hate adultery without thinking that more tort liability will make things better.

In between those two examples is a host of other problems. As somewhat of a social conservative, I'm interested in using the law to protect what people hold dear. On the other hand, the law needs to be used wisely. This is a tricky area that requires very well thought out legislation.

This entry was tagged. Marriage

Justice Thomas on the Constitution

Last week, Justice Clarence Thomas spoke on the Constitution. Here are part of his remarks. How to Read the Constitution - WSJ.com

As I have traveled across the country, I have been astounded just how many of our fellow citizens feel strongly about their constitutional rights but have no idea what they are, or for that matter, what the Constitution says. I am not suggesting that they become Constitutional scholars -- whatever that means. I am suggesting, however, that if one feels strongly about his or her rights, it does make sense to know generally what the Constitution says about them. It is at least as easy to understand as a cell phone contract -- and vastly more important.

The Declaration of Independence sets out the basic underlying principle of our Constitution. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ..."

The framers structured the Constitution to assure that our national government be by the consent of the people. To do this, they limited its powers. The national government was to be strong enough to protect us from each other and from foreign enemies, but not so strong as to tyrannize us. So, the framers structured the Constitution to limit the powers of the national government. Its powers were specifically enumerated; it was divided into three co-equal branches; and the powers not given to the national government remained with the states and the people. The relationship between the two political branches (the executive and the legislative) was to be somewhat contentious providing checks and balances, while frequent elections would assure some measure of accountability. And, the often divergent interests of the states and the national government provided further protection of liberty behind the shield of federalism. The third branch, and least dangerous branch, was not similarly constrained or hobbled.

Fact Checking the Supreme Court

Apparently, Justices no longer have to fact check their Supreme Court opinions or dissents. Justice Stevens' dissent had two rather major errors:

Comment on to previous post points out at p.2 of the Stevens dissent he refers to NFA and US v. Miller: "Upholding a conviction under that Act, this Court held that..."

Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted -- commentators noted this was pretty suggestive the court hadn't bothered to read Miller before citing it. First thing you look for in reading a case is what happened below, and what the Court do to that. Very first thing.

I'd add that at 41 he refers to:

"In 1901 the President revitalized the militia by creating the 'National Guard of the several States,' Perpich 496 U.S. at 341 and nn. 9-10."

Reading that part of Perpich v. Dodd: It says in 1901 President Roosevelt called for reforming the militia. He didn't create the National Guard (where would he have had the authority?)

How much should I trust the rest of his dissent?

This entry was tagged. U.S. Constitution