Coyote Blog

Ilya Somin wonders why some top universities don't have law schools:

It recently occurred to me that there are several big-name
universities that don't have law schools, even though a law school
established at any of those institutions would probably do well.
Princeton arguably heads this list, along with Brown, Johns Hopkins,
Rice, and Tufts. Brandeis University also doesn't have a law school
(ironically, for a prominent university named after a Supreme Court
justice).

Why these universities haven't established law schools is a bit of a
mystery (at least to me). Law schools tend to bring in net revenue for
the university. This is even more likely to be true at a big-name
institution that can quickly attract good faculty and students. If
Princeton were to establish a law school tommorrow, appoint a credible
dean, and provide adequate initial financial backing, they could very
quickly turn it into a highly successful (and profitable) enterprise.
Many good students would come just because of the Princeton name, and
most outstanding scholars who are not already at top 20 or top 30
institutions might well be willing to move to Princeton if asked.

Princeton, by the way, does not have a law school or business school or medical school.  It really tries to hold itself up as primarily and undergraduate institution, and works hard to be the premier undergraduate school in the country.  It has graduate schools only in disciplines for which there is an undergraduate degree (e.g. math, economics, chemistry, history).  I have always suspected that they maintain these graduate programs mainly because they have to to attract top academic talent to be available for their undergraduates.  Unlike any other university with which I am familiar, and certainly unlike Harvard where I also attended, graduate students at Princeton feel themselves to be second class citizens.

Somin acknowledges this a bit when he says:

Various commenters suggest that these universities choose not to
have a law school because of their desire to focus on undergraduate
education. That may indeed be the right explanation, though several of
these institutions (including Johns Hopkins, Tufts, and Rice) have
other professional schools on campus. But it doesn't strike me as a
very compelling reason not to establish a law school. If the law school
were to drain resources away form undergrad education, there might
indeed be a conflict between the two. In fact, however, a law school is
likely to bring in net revenue that could be used to improve
undergraduate education. Moreover, some law school professors
(especially at elite schools) teach courses that undergraduates might
be interested in taking, as sometimes happened at Yale, when I was a
law student there.

Even if a law school adds resources to undergrad education instead
of draining them, it's possible that its presence could detract from
undergraduate education in some other, more subtle way. But it's hard
for me to see how. If Yale Law School were closed down tomorrow, would
undergraduate education at Yale improve? Are undergraduates at Yale
currently worse off than at Princeton in some way traceable to the fact
that Yale has a law school and Princeton doesn't? Possibly. But I
remain skeptical.

I would argue that there is an important difference that you can't just get at through incremental analysis.  That is, that the management and faculty of Princeton have a culture and focus on undergraduates that universities like Harvard do not have.  Somin is right that grad schools bring in lots of money -- and so the sum of a med school and a law school and a business school and all that tuition and grant and consulting money (not to mention resultant faculty egos) is hugely distracting for an institution.  Particularly in the case of Princeton where it does not really need incremental money anyway.  Take my word for it, having attended both Harvard and Princeton, there are enormous differences in their institutional foci which have real impacts, both substantial and subtle, on undergraduate life. 

I would love to do a poll.  Ask the faculty of both Harvard and Princeton, "Which would you give up first, your university's graduate program or undergraduate program,"  I bet I know what the answer would be.

But what do I know - we Princeton grads are all nuts, anyway.

I must say that I find this state Supreme Court decision from Washington State terrifying.  It is interesting that the State of Washington has exactly the same proprietary attitude over the garbage business as does the Mafia in New York:

In a decision released this morning, the Court stated that hauling
construction waste is not a private enterprise and "is in the realm
belonging to the State and delegated to local governments." The court
found specifically that the provision of waste hauling service is a
"government service" and constitutional protections do not apply to
government-provided services.

I don't know the Washington State constitution, so it may indeed mention "construction waste hauling" as an enumerated power of the government.  If it does not, and by "constitutional protections do not apply" they mean the US Constitution, then this is a stunning over-reading of said document.  Nowhere, in the US Constitution at least, is there a provision for the government providing services of any kind, much less construction waste hauling. 

The AP does a great job in this story reporting absolutely everything but the most important fact:

The Supreme Court has refused to offer help to Hurricane Katrina
victims who want their insurance companies to pay for flood damage to
their homes and businesses.

Wow, those insurance companies suck, and they have the Supreme Court in their pocket.  The only teeny-tiny fact missing is that the people suing had policies that very explicitly did not cover flood damage.    They sortof acknowledge this but say the insurance companies should pay anyway, because the flood was caused by a broken levee and that somehow is not really the same kind of flood, sort of.  Or whatever. 

Russell Pearce is the Arizona legislator who authored the AZ employer sanctions law.  Remember, that's the law that requires, among other things, employers to check the immigration status of current employees using an INS system that has federal rules in place that make it illegal to use this system to... check the immigration status of current employees.  His plan is to reduce a major source of labor in the Arizona economy which, by the way, has a 3.5%-4.1% unemployment rate over the last year, the lowest level in 30 years. 

Anyway, now Mr. Pearce has decided to target babies:

The newest front in the battle over illegal immigration is dragging health-care workers into the fray.

The Arizona Hospital and Healthcare Association is trying to kill a
proposal by Rep. Russell Pearce, R-Mesa, that would require its members
to check the citizenship of patients who deliver babies at Arizona
facilities.

If neither of the parents can prove citizenship, the hospital would be barred from issuing a regular birth certificate.

Babies of parents who are here legally but not citizens also would be denied regular birth certificates.

Beyond the obvious concerns about driving moms away from medical care for their deliveries, Mr. Pearce has a teeny-tiny Constitutional issue he must deal with in the 14th Amendment:

All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside.

Mr. Pearce is hoping that "subject to the jurisdiction thereof" can be stretched to say that such persons do not include immigrants.  In fact, the Supreme Court does not seem to have ruled on this specific issue (corrections welcome in comments) but historically they have been extremely loath to place limits on this.  And no one except Mr. Pearce and perhaps a few of his immediate family members believes that barring citizenship to children of legal immigrants will pass Constitutional muster.  And I am pretty sure that no matter how these questions come out, disallowing birth certificates would never survive a court challenge.  I don't think the immigrants' home country would issue a birth certificate in such a case so we would be creating people without a country.

From the Associated Press:

The U.S. Supreme Court declined Monday to hear a challenge to
Alabama's ban on the sale of sex toys, ending a nine-year legal battle
and sending a warning to store owners to clean off their shelves.

An adult-store owner had asked the justices to throw out the law as
an unconstitutional intrusion into the privacy of the bedroom. But the
Supreme Court declined to hear the appeal, leaving intact a lower court
ruling that upheld the law.

Sherri Williams, owner of Pleasures stores in Huntsville and
Decatur, said she was disappointed, but plans to sue again on First
Amendment free speech grounds.

"My motto has been they are going to have to pry this vibrator from my cold, dead hand. I refuse to give up," she said.

The appeals court made this distinction:

Williams had asked the Supreme Court to review a decision by the
11th U.S. Circuit Court of Appeals that found Alabama's law was not
affected by a U.S. Supreme Court decision knocking down Texas' sodomy
law.

The
Texas sodomy law involved private conduct, while the Alabama law
regulated commercial activity, the appeals court judges said. Public
morality was an insufficient government interest in the Texas case but
was sufficient in the Alabama case, they said.

Now, I don't in any way shape or form see any differences between "private conduct" and "commerce."  How in the hell can sexual decisions between consenting adults be any different, legally, than commercial transactions between consenting adults.  It is a distinction that socialists have been succesful in introducing in the US, and to which many now cling.

The interesting part is to consider the folks who are fighting the sex toy ban.  My wild guess, which may be off the mark, is that this is not a bunch of Christian conservative Republicans.  My guess is that these folks are probably a bit left of center, and further, that many of them accept and support the notion that the government has every right to regulate dirty old commerce, but no right to regulate one's "private life."  Well, maybe now it will be clearer, at least to some, how dangerous this distinction is.   As a parting note, it has been two years now since we saw the irony of left-leaning members of the Supreme Court overrule state laws allowing medical marijuana use based on the commerce clause.

Here they go again.  Another company is attempting to commit public relations suicide by blowing up the negative commentary of a small, low-traffic blogger into a national story.

An unlikely Internet frontier is Paris, Texas, population 26,490,
where a defamation lawsuit filed by the local hospital against a
critical anonymous blogger is testing the bounds of Internet privacy,
First Amendment freedom of speech and whistle-blower rights.

A state district judge has told lawyers for the hospital and the
blogger that he plans within a week to order a Dallas Internet service
provider to release the blogger's name. The blogger's lawyer, James
Rodgers of Paris, said Tuesday he will appeal to preserve the man's
anonymity and right to speak without fear of retaliation.

Rodgers said the core question in the legal battle is whether a
plaintiff in a lawsuit can "strip" a blogger of anonymity merely by
filing a lawsuit. Without some higher standard to prove a lawsuit has
merit, he said, defamation lawsuits could have a chilling effect on
Internet free speech.

"Anybody could file a lawsuit and say, 'I feel like I've been defamed. Give me the name,' " Rodgers said.

The blog about problems at Essent Healthcare is here, called The-Paris-Site.

Interestingly, the hospital, owned by a company called Essent Healthcare, appears to be using the medical privacy act HIPPA as a bludgeon to try to stifle criticism.  To make a case against the hospital, general criticisms about poor care and medical mistakes are best backed up with real stories.  But the hospital is in effect saying that real stories can't be used, since doing so violates HIPPA.  I don't know if this is or is not a correct application of HIPPA, but it is a danger of HIPPA that I and others warned about years ago.  The hospital goes on hilariously about how they are not really worried about the damage to their reputation, but for the poor patients whose medical details ended up in the blogger's hands.  Memo to health care workers in the future:  If you think the hospital screwed up my care, you have my blanket permission to release the details of said screw-up.

Before starting my own company, I have worked in a number of senior jobs at publicly traded companies and a few soon-to-be-f*cked Internet ventures.  In several of these cases, I and my fellow managers came in for pretty rough and profane criticism.  In many cases the posts were hilarious, positing well-oiled multi-year conspiracies from a management team that was just trying to survive the day.  Most of us were pretty rational about these sites - the more you try to respond to them, the more attention you give them.  The best response is to ignore them except maybe on Friday night when you can drink some beers and laugh out loud reading the commentary.  But there were always a few folks whose ego just got inflamed by the comments, even though they were seen by maybe 12 people worldwide.  They wanted to put a stop to the commenters.

I am sure that this is what is happening here.  Because any good PR person who has been in the business for more than 5 minutes would tell you that the worst thing you could do for a critic with a small audience is to a) turn them into a martyr and b) increase their audience about a million-fold.  These guys at Essent are just nuts, and in the heat of ego preservation are in the process of making a massive mistake.

I am reminded of TJIC's response when a lawyer threatened to file a BS copyright suit against him:

With regards to your statement that you've been "looking forward for a
class action lawsuit on a case like this", I, too, would enjoy such a
lawsuit. The publicity that we would derive from defeating your firm in
court over a baseless allegation of copyright infringement, brought
about by a law firm and a lawyer that does not understand the First
Sale doctrine, and which are entirely ignorant of the Supreme Court
case law on the topic, would be of incalculable value to us, and would
be a very cost efficient way to further publicize our service.

Hat Tip to Overlawyered for the link.

Update: The blogger appears to have been around since 2005.  The article said that as of June, or after about 2 years of operation, he had 170,000-ish page views.  He now appears to be at about 230,000 just three months later and only a few weeks after the story went public.  Q.E.D.

Update #2:  I forgot to include my opinion on the case.  There has got to be some higher legal bar to be cleared to strip the anonymity of a blogger than just asking for it to happen during discovery on a lawsuit.  If the legislature is not going to establish this bar, then a higher court is going to have to do so. 

So I guess the Democratic response to the Bush administration's 8-years of disrespect for the separation of powers is to one-up him?

On the op-ed page of the New York Times,
Jean Edward Smith argues that if the Roberts Court keeps on its current
path, a future Democratic President and Democratic Congress should
consider a court-packing plan and add Justices to ensure a liberal
majority on the Supreme Court. This might be necessary, Smith contends,
because the Roberts Court has "adopt[ed] a manifestly ideological
agenda," "plung[ing] the court into the vortex of American politics"
where it now decides political questions rather than the purely legal
decisions of the Warren Court.

And by the way, I would have said that the Roberts court has followed a distinctly non-ideological agenda.  In fact, I can't figure out how they are making decisions from one case to the next.  This court bears the hallmarks of one that is really evenly divided, with backroom negotiating going on to get a majority that reeks of compromise rather than anything either ideological or Constitutional.  Every major decision seems to have five or six written opinions.

I have written a number of times about universities establishing a "right not to be offended" that supersedes free speech.  This is a bit old, but apparently our confused state of Arizona has done the same thing:

The Arizona Senate has unanimously passed
a resolution banning the "Bush Lied, They Died" t-shirts from sale in
the state. The shirts include the names of hundreds of U.S. troops
killed in Iraq in fine print, which legislators apparently find
unseemly, and which they say makes the shirts commercial speech,
instead of political speech, which the Supreme Court says enjoys more
First Amendment protection.

This theory is absurd.  Printing it on a T-Shirt and selling it for money no more converts this into commercial speech than printing Maureen Dowd's column on paper and selling it for money makes her editorials unprotected.   The law makes it

punishable by up to a year in jail to use the names of deceased
soldiers to help sell goods. The measure, SB 1014, also would let
families go to court to stop the sales and collect damages

Here is a question - about every person in Phoenix, including me, has bought some sort of Pat Tillman shirt or jersey, to memorialize our local football player killed in action.  Are those now illegal?  The AZ Republic makes money selling papers in Phoenix that contain the
names of deceased soldiers all the time -- are they going to jail?  Does this mean that no one can sell Glen Miller albums in Arizona?  And if it is determined to be OK to sell shirts memorializing soldiers or reporting on their deaths but not to criticize the president, well, that is pretty much selective enforcement based on political views, is it not.

As an aside, I have never really like the Bush Lied meme, though perhaps not for the reasons his supporters hate it.  I don't like it because it's purpose seems to be to relieve every other politician of both parties from any responsibility for the war;  ie, since they were all victims of lies, they bear no responsibility for their actions (or their votes).  I don't buy that.

Update: Volokh has a much more complete analysis here, which include exceptions to the law.  It appears that at least the Arizona Republic and Glen Miller are safe, but Pat Tillman jerseys still seem to be in the gray zone.  However, interestingly, the law seems to exempt many forms of commercial speech but ban political use of the names.   Wither the first amendment.

On the positive side, the Supreme Court has struck down portions of the BCRA, also known as McCain-Feingold:

The Court concluded that Wisconsin Right to Life's ads, which urged
people to contact their senators (including one who was up for
re-election) about the confirmation of judicial nominees, did not
constitute either. The majority said "a court should find that an ad is
the functional equivalent of express advocacy only if the ad is
susceptible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate." To put it another way,
BCRA's pre-election blackout cannot be constitutionally applied to a
spot that reasonably can be viewed as an issue ad, which means interest
groups are once again free to engage in public policy debates on the
air, no matter what time of year it is.

By the way, does anyone on the left feel at all worried that the four liberal judges were on the "limit speech" side of this issue?

But at the same time, the Supreme Court upheld speech limitations against High School students based on the content of the speech.  The rights of non-adults is a complicated issue, but precedent has been set that student speech is generally protected unless it is significantly disruptive of the school's functioning.  Except, it appears, when it is related to drugs.  This is part of a disturbing trend where an increasing number of topics, from "hate" speech to drug legalization speech are considered to be exceptions to the First Amendment.  However, almost everyone on the court seemed to have a different view on this, so it may be hard to generalize here.  Even the concurring opinions ranged the gamut from "this is narrowly aimed only at speech about narcotics" to "there is no free speech right in schools for minors."

And, speaking of hate speech, out in wacky Oakland, the world leader in Ebonics studies,

Marriage is the foundation of the natural family and sustains family
values. That sentence is inflammatory, perhaps even a hate crime.

At least it is in Oakland, Calif. That city's government says those
words, italicized here, constitute something akin to hate speech and
can be proscribed from the government's open e-mail system and employee
bulletin board. ...

Some African American Christian women working for Oakland's
government organized the Good News Employee Association (GNEA), which
they announced with a flier describing their group as "a forum for
people of Faith to express their views on the contemporary issues of
the day. With respect for the Natural Family, Marriage and Family
Values."

The flier was distributed after other employees' groups, including
those advocating gay rights, had advertised their political views and
activities on the city's e-mail system and bulletin board. When the
GNEA asked for equal opportunity to communicate by that system and that
board, it was denied. Furthermore, the flier they posted was taken down
and destroyed by city officials, who declared it "homophobic" and
disruptive.

The city government said the flier was "determined" to promote
harassment based on sexual orientation. The city warned that the flier
and communications like it could result in disciplinary action "up to
and including termination."

We might as well just repeal the First Amendment now and save time if we continue to believe that the government should ban any speech that offends someone.

Oh, and while we were talking about kids and drugs, check out this awesome rant by Mayor Cory Booker of Newark.

He wants to reserve prison cells for those who do violence and
divert the nonviolent drug offenders into treatment programs and
halfway houses.

He wants to change the New Jersey laws that
bar many ex-cons from getting a driver's license. He wants a black kid
from Newark who sells marijuana to clear his record as easily as the
white kid from the suburbs who buys it.

He wants to stop banning ex-cons from such a long list of jobs, including warehouse jobs at the nearby airport.

The scale of the problem is staggering: About 1,500 convicts are
released from state prison to Newark each year, and 1,000 of them will
likely be arrested again within three years -- mostly for drug crimes.

"The drug war is causing crime," Booker says. "It is just chewing up young black men. And it's killing Newark."

Good, its about time.  Not to be misunderstood, I would kick my kid's asses from here to the moon if I found them doing hard drugs.  But I want the responsibility to mold and repair their behavior to be mine, an option that is cut off if they get thrown in jail (which they probably wouldn't, since my kids are well off and white).  It is fine and fairly rational that we have determined as a society that kids can mess up their life doing drugs.  It is insane -- totally insane -- that our response is that we will respond by ... messing their life up even worse by throwing them in jail.

Freedom of Association is not explicitly listed in the First Amendment, but the Supreme Court has never-the-less upheld association rights in expressive organizations and for intimate associations, such as the family and more broadly in private social clubs.

The State of California continues its attack on Craigslist and Roommates.com trying to make these organizations liable for California Fair Housing Law violations when they publish a classified ad that breaks the law.  In short, it is illegal in California (and some other states) to advertise for a roommate who is a specific gender or race or religion, even if there are strong compatibility reasons for doing so (As in most states, it is A-OK to discriminate against smokers).

I won't get into the whole legal argument about these listing services, except to say that it is absurd to hold third parties accountable for other people's speech.  I want to ask a more general question.  How do laws that prevent me from choosing a roommate (however I want to) pass constitutional muster?  Taking on a stranger for a roommate is a scary proposition, especially in states like California that make it well nigh impossible to evict someone once they have moved in.  Short of marriage, it is hard to imagine a more intimate relationship -- in fact, many roommates probably see more of each other than some spouses.  On average, most people are probably not a compatible roommate for me.

Beyond this, most of the people who run afoul of the housing law do so with their speech, not the actual selection of a roommate.  Most fair housing complaints are against people's advertisements or public statements.  This strikes me as a double violation - the banning of speech about my association preferences. 

A while back, I wrote about wealthy, legally savvy parents exploiting disabled-education funds to get their high achieving kids into private schools, paid for by the state.  Apparently we can't get $6000 vouchers, but this is legally OK, if you are persistent enough in gaming the system:

In Sonoma County, for example, a family recently enrolled its child in an
out-of-state boarding school, then billed its district not only for tuition,
but airfare, car rental, hotel, cell phone calls, meals, tailoring, new
clothes, an iBook computer, stamps, tolls, gas and 13 future round-trip visits.
Total tab: $67,949....

Here is the mom, in this case, explaining her son's "disability" which justified this largess

"He was not offered the classes that I thought he needed," the mother
said. "If my son didn't get what he needed, my fear was that he would drop out
of school.'' 

She acknowledged he had never been a discipline problem. The hearing
records describe him as a "young adult who is likable, friendly, energetic and
highly motivated. He is physically active, plays lacrosse and soccer, and
enjoys wakeboarding and snowboarding."

"He's a model child," she said. "However, his frustration and anxiety were
so high that I could see that this is the type of person who, out of
frustration, turns to drugs or something that he shouldn't be doing."

Well, the good news, I hope, is that the Supreme Court is set to review this kind of legal abuse of the ADA and other disable rights legislation:

the Supreme Court has accepted for review a case in which, according to
the New York Times's account, a former chief executive of Viacom did
not even give a public school program a try before enrolling his son in
a private school and demanding that New York City pick up much of the
resulting bill. The New York Times's account is distinctly
unsympathetic toward the parent, and quotes Julie Wright Halbert,
legislative counsel for the Council of the Great City Schools, as
saying: "Many wealthy, well-educated people are gaming the system in
New York City and around the country."

Let's have school choice for everyone, not just for the well-connected, legally savvy, or downright irritating.

From Glen Wishard:

Make no mistake, then - the Supreme Court is no longer the Supreme
Court of past fame. It is now the National Abortion Tribunal, and its
members are no longer jurists, they are the Keepers of the Abortion
Toggle Switch.

-----0-->0-----

Fig. 1A. Abortion Toggle Switch, closed.
Suction motors will engage.

As we can see from the schematic diagram above, the Abortion Toggle
Switch is currently in the closed (ON) position. The entire purpose of
the so-called Supreme Court, as current wisdom understands that
purpose, is to stare at this switch all day wondering whether they
should play with it or not.

Now this is a sad state for this once-great court to have fallen to,
and makes me wonder if we don't need another court to assume the
neglected responsibilities of the current one. Then the Abortion Toggle
Switch could be moved to some remote corner of the public's attention,
and the various abortion partisans could play their endless game of
Keep Away without buggering up the entire constitutional process.

For those who still can't accept that the current ruling conservatives have shed any last remnants of their libertarian / small-government allies, here's this (sorry, I am a little late on this one):

The latest property rights case to hit the U.S. Supreme Court is a
doozy. Quick background: Harvey Frank Robbins bought a piece of land in
Wyoming. The previous owner had agreed in principle to give the federal
government an easement over the land. But the government agents
neglected to record the easement, so Robbins obtained the land without
it. The federal government came back to reclaim the easement, and
Robbins refused.

In the Legal Times  Tim Sandefur explains what happened next:

"The
federal government doesn't negotiate," one official told him. Instead,
they promised that Robbins' refusal would "come to war" and that they
would give him a "hardball education." Then they began a vendetta
against him that would last to the present day.

They cancelled
his right of way over government-owned land, repeatedly harassed the
guests at his ranch, cited him for minor infractions while letting
similar violations by his neighbors go unnoticed, and brought him up on
criminal charges of interfering with federal agents during their
duties. The jury acquitted him after deliberating for less than 30
minutes.

After enduring years of such treatment, Robbins sued,
arguing, among other things, that the BLM agents had violated his Fifth
Amendment right to exclude others from his property.

The
10th Circuit ruled for Robbins, but the federal government appealed.
Conservatives in particular should take note of the stunning argument
from U.S. Solicitor General Paul Clement:

"No
court," said Solicitor General Paul Clement in his brief, has "ever
recognized a constitutional right against retaliation . . . in the
context of property rights."

The Supreme Court has ruled that your breath is a pollutant.  And not just because you ate that garlic bread for lunch.  From my Princeton classmate Henry Payne:

Almost every piece of government waste paper I have to fill out has the power to irritate me  (and doing business in 13 states, I get a lot of such garbage).  But the one thing that sets me off more than any other is when I get forms from a state government that say I owe a tax for the "privilege" of conducting commerce.  Arizona calls their sales tax a "transaction privilege tax" and Texas calls their franchise tax a "privilege" tax.  In fact, the Texas form is covered with the word "privilege" -- for example, the form I am looking at covers the "privilege period" of January-December 2007.

By calling commerce, and by extension property, a privilege that can only be exercised with a license from the government, the government is saying that the right to trade and make transactions with other people flows not from our humanity, but from the government.  These "privilege" taxes and licenses are based on the theory that man does not have any inherent right to trade freely with other men, and that ability can only be granted (or taken away) at the whim of our masters in the state government. 

The Supreme Court is acknowledged to have the power to strike down laws it deems to be in conflict with our Constitution.  But what about laws that violate something more fundamental than the Constitution?  What about laws that violate the very theory of government on which the United States was founded?    We often think about the Constitution as the top of the legal hierarchy, but I would suggest that sitting even higher than the words of the Constitution is the idea that our rights flow from God, or in a more secular interpretation, from the very fact of our humanity, and what power government has is given to it (and can be taken away) by its citizens, NOT THE OTHER WAY AROUND.

The more correct statement, then, would be that we citizens have given government officials the privilege of regulating and taxing commerce  (a privilege, I might add, that they have abused and we should take away).

Update: 

"Freedom is not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God and nature."  --- Ben Franklin

For several years, I have been wondering why punitive damage awards like this one, that punish a company for various misdeeds, don't create a double jeapardy situation where defendents must pay over and over for the same "crime" (since the next individual suing also gets punitive damages).

Here's the problem:  A jury in Texas already hit Merck with $259
million in punitive damages*.  This number was based on a lot of
testimony about Merck's sales and profits from Vioxx, so it was
presumably aimed at punishing Merck for "errors" in their whole Vioxx
program.  So if that is the case, how can Merck end up facing a jury
again coming up with a separate punitive damage award for the same
"crime"?  Sure, it makes sense that Merck can owe actual damages to
individual claimants in trial after trial.  But how can they owe
punitive damages for the whole Vioxx program over and over again?
Aren't they being punished over and over for the same misdeed,
violating their Constitutional protection against double jeopardy?

In the recent Supreme Court decision involving a judgment against Philip Morris, the SCOTUS didn't really take this issue on, but did take on a related issue, arguing that punitive damage awards that take into account damages against more than just the defendant violate due process, since these other damages were not tried on the facts in that case.

Today, in a decision involving an astonishing $79.5 million punitive
damage award to the widow of an Oregon man who died of lung cancer
after smoking Marlboros for 42 years, the U.S. Supreme Court ruled
that a jury in a civil case may not punish a defendant for harm to
people who are not parties to the case. To do so, the five-justice
majority said,
violates the defendant's right to due process because he cannot defend
against hypothetical damage claims by people who are not involved in
the lawsuit. Furthermore, the Court said, "to permit punishment for
injuring a nonparty victim would add a near standardless dimension to
the punitive damages equation." Although this makes sense to me, the
Court's proposed solution"”that juries may consider harm to nonparties
in judging the "reprehensibility" of a defendant's conduct but not to
"punish a defendant directly" for that harm"”seems untenable.

I didn't think much could top some of the ridiculous stuff I have read of late on the government abuse and rent-seeking front;  the milk cartel, for example, seemed hard to top.  But I think this has jumped into the lead:

In Didden v. Port Chester, the government decided to redevelop
an area of the city, and chose a developer who drew up development
plans. One of the property owners, Bart Didden, owned a piece of
property that he wanted to lease to CVS to build a pharmacy. The
developer, on the other hand, wanted to use the land for a Walgreen's
instead. So the developer told Didden that if he would pay the
developer $800,000 and give him a percentage in the CVS, that he
wouldn't condemn the property. Didden, of course, rejected this
offensive offer, and the next day, the city condemned the land to give
to the developer.

This is much worse than Kelo, and I thought that case was bad.  Didden lost his appeal, but is trying to get the Supreme Court to hear the case:

"What the developer and Village of Port Chester did is nothing short of
government-backed extortion," said Didden. "I had an agreement to
develop a pharmacy, a plan fully approved by the Village, and in the
eleventh hour I was told that I must either bring this developer in as
a 50/50 partner or pay him $800,000 to go away. If I didn't, the City
would condemn my property through eminent domain for him to put up a
pharmacy. What else can you call that but extortion? I hope the Supreme
Court sets things right."

I guess the case has a bit of utility -- it does set a market value on government pull.  In this case, the developer has priced his "in" with the local city establishment at $800,000.   

To my untrained eye, this case seems not to be covered by the Kelo logic.  In Kelo, the justices (insanely) decided that a valid public purpose for eminent domain was to replace one landowner with another who will pay more sales and property taxes.  But its hard to argue that a CVS pharmacy would pay more or less than a Walgreen's pharmacy.  In addition, Didden's supporters are hoping that the Supreme Court will finally rule on the more general issue of "exactions":

What's interesting is how this case parallels something called
"exactions," which we see in a lot of cases involving building permits:
government demands that a property owner give up some value to the
government"”a portion of the land, or sometimes outright cash"”in
exchange for a building permit. Now, this case didn't involve a
building permit, but the issue is the same: in exchange for the right
to use the property, you have to give up your property rights. That is
what the "an out and out plan of extortion."

These exactions are rampant throughout America. They're causing housing prices to soar.
And yet despite PLF's repeated requests, the Supreme Court has refused
to take one of these cases to clarify that they do violate the
Constitution. Meanwhile, we hear that the Supreme Court can't find
cases to fill up its docket! Here's hoping the Court grants cert. in
this case and declares once and for all that government can't use its
power to regulate land use as leverage to demand money from property
owners.

Great editorial from George Will:

Seattle"”as the comprehensive and sustained attack on Americans' freedom
of political speech intensifies, this city has become a battleground.
Campaign-finance "reformers," who advocate ever-increasing government
regulation of the quantity, timing and content of political speech,
always argue that they want to regulate "only" money, which, they say,
leaves speech unaffected. But here they argue that political speech is
money, and hence must be regulated. By demanding that the speech of two
talk-radio hosts be monetized and strictly limited, reformers reveal
the next stage in their stealthy repeal of the First Amendment.

I was living in Seattle at the time.  These were not political operatives, like a James Carville, moonlighting as talk radio hosts.  They were just radio guys who found an issue, no more or less than say Oprah when she focuses her audience on Alar or BGH or whatever.  Read the whole thing, but note that, in the name of campaign finance reform which is ostensibly about not letting money rule politics, the government is going after the side that was outspent five to one.  But this is not about campaign finance reform.  This is about protecting the government and its officials from criticism.

This is the America produced by "reformers" led by John McCain. The
U.S. Supreme Court, in affirming the constitutionality of the
McCain-Feingold speech restrictions, advocated deference toward elected
officials when they write laws regulating speech about elected
officials and their deeds. This turned the First Amendment from the
foundation of robust politics into a constitutional trifle to be
"balanced" against competing considerations"”combating the "appearance
of corruption," or elevating political discourse or something. As a
result, attempts to use campaign regulations to silence opponents are
becoming a routine part of vicious political combat.

Eight days from now, all of our first amendment rights will be put away in a box for 60 days, hopefully to be retrieved after the election is over.  During those 60 days, and in an astronomical violation of the intent of our Constitution and Bill of Rights, none of us, unless we are operating under the banner of certain organizations like official political parties, will be able to pay to publicly criticize the *cough* fine *cough* men and women who serve as elected officials in this country.  Once the election is over and their jobs are safe and the criticism is moot, then you will get your speech back.

Thank you very much John McCain, Russ Feingold, all the Congressmen who voted for this, GWB who signed it, and the Supreme Court who astoundingly declared it constitutionally A-OK.

Update: Here is an example.  I use it because the people involved are try to fund ads to support a law I absolutely oppose (I have no desire to give the Feds more power over the free movement of US citizens across state lines).  But I totally support their right to advocate their position on TV.  In this case, their public speech is great even for folks like me who oppose what they support, because I didn't even know this proposed legislation existed until they started talking about.  Their ad informs me, even if it is sending me the message that I need to counter their message.  And that is what political dialog should be in a free society.

I am constantly irritated by efforts to ban a certain speaker from speaking or to drown out their message with taunts and chanting.  If you think someone is advocating something so terrible - let him talk.  If you are right in your judgment, their speech will likely rally people to your side in opposition.  As I like to tell students who want to ban speakers from campus -- Hitler told everyone exactly what he was going to do if people had bothered to pay attention.

For those who, like me, have trouble decoding why certain SCOTUS justices make the rulings that they do, Richard Epstein propounds an interesting theory in the WSJ ($) today.  He says that you can't relay on traditional conservative or liberal monikers to predict when a justice will back an expansion of government and when she/he will rule to reign it in.

In principle, it would nice if both sides of the
ideological spectrum displayed a sound and consistent position on
statutory construction. Unfortunately, each bloc is opportunistic. The
litmus test for this erratic behavior boils down to a factor not found
in any statute: trust.

The court's two wings share one trait: They defer only
to the government officials they trust. Otherwise, they read a statute
carefully to rein in the authority of officials they don't trust. The
two factions don't differ in their philosophy of language, or in their
on-again, off-again adherence to the rule of law. Rather, the court's
liberal wing profoundly distrusts this president, but has great
confidence in the domestic administrative agencies that regulate
matters such as the environment. The conservative wing of the court
flips over. It willingly defers to the president on national security
issues while looking askance at expansionist tendencies of the
administrative agencies.

This feels as right as any theory I have read of late.  And I certainly can get behind this:

Our Constitution starts out with a presumption of distrust of all
government actors, which is why it drew a sharp line between the
legislative and executive branches. We can argue until the cows come
home whether national security or environmental protection presents the
greater threat of executive or administrative misuse. But that ranking
really doesn't matter, because there is no reason why the Supreme Court
has to defer to overaggressive public officials in either context.
Justice Stevens rightly chastised the president for flouting the rule
of law in Hamdan. But he was tone deaf on the easier question
of statutory construction when blessing the Corps' extravagant reading
of the statute in Rapanos.

Julian Sanchez revisits Smith vs. Maryland, the Supreme Court case currently used to justify letting the government take about any data they want on your life without a warrant.  Sanchez questions the logic of the case, particularly in light of sweeping technology changes since the early 70's:

Part of the problem here is that since the late '70s, we've gone a long way
toward a world in which a huge amount of our most private information is held by
third parties. A huge chunk of my e-mails from the last couple years are stored
on some server owned by Google, where ad-generating software sifts through my
private communications looking for keywords that will allow the company to
display personally-tailored advertisements for me. Now, maybe I'm naive to have
any expectation of privacy in the e-mails sitting on that server, but I do
pretty much expect that nobody at Google is actually looking through my
correspondence and passing it around to their friends. And I at least
didn't expect until recently that some government program would be
sifting through those e-mails to see whether I used the word "jihad" some
suspicious number of times in letters to people in Saudi Arabia.

I had similar concerns about Smith v. Marlyand here.  One of my arguments was:

This exact same logic [used in this case] seemingly applies to any piece of data submitted
to any private third party unless the data is specifically protected
(e.g. medical records).  Sorry, but this is wrong.  I should be able to
have commercial transactions with third parties without the expectation
that the government can take the records for its own use without any
kind of a warrant....

The implication is that by giving a company data for use in a
transaction, we are giving them an unwritten license to do whatever
they want with the data.  Do you believe you are granting this?  Is it
true that you "entertain no expectation of privacy" in such
transactions?  If you agree with this ability, then I assume you also
agree that the government should be able to see all your:

• Credit card bills
• Records of who you have emailed
• Records of which Internet sites you have visited
• Records of what searches you made in search engines

I also pointed out that since many people spend a lot of money to keep information private (e.g. anonymous surfing software), the market has demonstrated clearly that people, unlike the SCOTUS asserted,  do have an expectation of privacy with such data.

Just before my body decided to purge itself for a few days, USA Today ran a story that the NSA was doing more than just listening in on overseas calls to suspected terrorists.  It claimed that the NSA was also compiling a database of domestic call records.

The National Security Agency has been secretly collecting the phone
call records of tens of millions of Americans, using data provided by
AT&T, Verizon and BellSouth, people with direct knowledge of the
arrangement told USA TODAY.

This bothers me, as much for separation of powers issues that I will describe below as for any  worry about the data being collected.  Conservatives, however, immediately criticized the article, as summarized well here, making a number of points:

1.  Its old news
Shame on conservatives.  This is the same tired line that Clinton used to drive them crazy with.  The theory here is that once a story has run a full news-cycle, it is then too late to report on it or show any further outrage about it.  Once the political boil is lanced, its time to "move on".  Sorry, I don't buy it.

2.  USA Today is exaggerating
The USA Today and those who picked up on the story  are indeed sloppy, perhaps purposefully to make a better story, in blurring the line between collecting phone numbers and eavesdropping.  To date, the evidence is only that phone numbers were collected, which is in fact less intrusive than eavesdropping.  It still pisses me off, for reasons below.

 3.  The IRS already has more data
Yes, and that bothers me too.  Does anyone really doubt that IRS data has been peeked at and used for political purposes?  And I am flabbergasted at how far conservatives have wandered over the last several decades that they hold up the IRS as a model to be emulated.  But here is the key difference that I will get into in a minute:  The IRS is allowed to collect this data by legislative statute passed by Congress.  This statute includes rules for data management and access, with steps for judicial review and criminal penalties for its violation.  The NSA data base has ... none of this.  No legislative authorization.  No process and privacy protections.  No penalties for misuse of data.  No judicial review steps.

4.  Its no big deal, and its good for you
Maybe.  Or maybe not.  The trouble is that we are only getting tiny leaked glimpses into whatever the administration is doing.  The President has created the theory that he can declare war against a vague and in fact impossible to define target, and then take on absolute dictatorial non-reviewable powers to prosecute this war in any way he likes, and that any steps taken in this war can be considered legitimate steps (rather than overstepping his bounds) based on his say-so alone. 

The problem is not the database per se, but the fact that the NSA and this administration feels it can do anything it wants outside the bounds of traditional separation of powers.  If the NSA needs a phone call database, then the President can go to Congress and solicit such an authorization.  A well-crafted piece of legislation would put strict limits on how the data is used, would provide some sort of outside review of its use, and would provide for stiff penalties for its misuse.  This is what I wrote previously:

Here is how we have generally interpreted the 4th amendment:  The
legislative branch sets the ground rules, as followed by the
Administration.  The administrations selection of targets is reviewed
by the Judiciary (warrants) and is also subject to later review at
trial (via the admissibility of evidence).  What we try to avoid is
allowing the same person to set the rules, choose the target, and
perform the surveillance, all in secret and without outside review.
The problems with the NSA wiretapping program is not that it is wrong
per se, but that it may violate this process.  The administration is
claiming the right to choose the target and perform the surveillance
under the own rules and in secret with no possibility of review.   

What really irks me about this is the crass politics going on.  Does anyone doubt that if a Clinton White House had been revealed doing this that Conservatives would have been screaming in outrage?  And liberals are, if anything, even funnier.  These are the folks that trust the government but distrust corporate America.  So why is it that they are upset about a transfer of phone records from evil old AT&T to benevolent old Uncle Sam?  Except, of course, because it is being done by a Republican.

More on eroding separation of powers here and here.

Update: This database may be being used to see who reporters are talking to in order to root out leaks.  Anyone uncomfortable now?  And this is priceless:

Under Bush Administration guidelines, it is not considered illegal for
the government to keep track of numbers dialed by phone customers.

Duh.  Under Bush Administration guidelines, nothing the administration wants to do is considered illegal.

More: Several sources have used the Supreme Court decision to make the case that collection of the phone records is legal without a warrant.  Here is a key passage:

Petitioner in all probability entertained no actual expectation of
privacy in the phone numbers he dialed, and even if he did, his
expectation was not "legitimate." First, it is doubtful that telephone
users in general have any expectation of privacy regarding the numbers
they dial, since they typically know that they must convey phone
numbers to the telephone company and that the company has facilities
for recording this information and does in fact record it for various
legitimate business purposes. And petitioner did not demonstrate an
expectation of privacy merely by using his home phone rather than some
other phone, since his conduct, although perhaps calculated to keep the
contents of his conversation private, was not calculated to preserve
the privacy of the number he dialed. Second, even if petitioner did
harbor some subjective expectation of privacy, this expectation was not
one that society is prepared to recognize as "reasonable." When
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information  to the police,

First, it would be interesting to see if the SCOTUS would agree that this ruling extends to sharing such information with non-law-enforcement branches of the government (NSA is not a law enforcement arm).  Second, it would be interesting to see if the Court came to the same conclusion if the target for the the data sweep was "every citizen in the US" and not just targets of law enforcement investigations.

Third and most importantly, this decision seems to suck.  This exact same logic seemingly applies to any piece of data submitted to any private third party unless the data is specifically protected (e.g. medical records).  Sorry, but this is wrong.  I should be able to have commercial transactions with third parties without the expectation that the government can take the records for its own use without any kind of a warrant. 

Also, the premise that this ruling is based on is provably false, though only by technology instituted after the decision.  There is an entire industry of phone company services and 3rd party technologies aimed right at this area of phone call (and email; and Internet surfing) anonymity and privacy.  With the Internet for example, there is a very, very clear expectation that sharing information with a company for one purpose (e.g. to complete a transaction) does NOT authorize the company to use or share the data for any other purpose.  This use of transaction data and its limits is a CRITICAL and front-of-mind issue for modern communicators.  It is absurd to say, as the justices did, that:

When
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information  to the police

The implication is that by giving a company data for use in a transaction, we are giving them an unwritten license to do whatever they want with the data.  Do you believe you are granting this?  Is it true that you "entertain no expectation of privacy" in such transactions?  If you agree with this ability, then I assume you also agree that the government should be able to see all your:

• Credit card bills
• Records of who you have emailed
• Records of which Internet sites you have visited
• Records of what searches you made in search engines

These are all 100% amenable to the logic the Justices used in this decision.

I don't mean that law enforcement shouldn't be able to subpoena these records ever.  But they need to at least go to a judge and say "we want to see Warren's phone records from X to Y date because we suspect him of Z for the following reasons."

The Supreme Court refused to review the Padilla case:

The Supreme Court on Monday refused to hear the appeal of Jose
Padilla, a U.S. citizen held in a military jail for more than three
years as an "enemy combatant." The Court, however, declined to dismiss
the case as moot, as the Bush Administration had urged. Only three
Justices voted to hear the case, according to the order and
accompanying opinions. The case was Padilla v. Hanft (05-533).

The decision was a victory for the Bush Administration in one
significant sense: by not finding the case to be moot, the Court leaves
intact a sweeping Fourth Circuit Court decision upholding the
president's wartime power to seize an American inside the U.S. and
detain him or her as a terrorist enemy, without charges and -- for an
extended period -- without a lawyer. The Court, of course, took no
position on whether that was the right result, since it denied review.
The Second Circuit Court, at an earlier stage of Padilla's own case,
had ruled just the opposite of the Fourth Circuit, denying the
president's power to seize him in the U.S. and hold him. That ruling,
though, no longer stands as a precedent, since the Supreme Court
earlier shifted Padilla's case from the Second to the Fourth Circuit.

I don't even pretend to understand all the procedural stuff, but I find it amazing that the effective suspension of habeas corpus, particularly when the "war" and "enemy" that is used as its justification is so amorphous and open-ended, isn't something the Supreme Court would like to sink its teeth into.

Apparently, the Justices were reluctant to address the case since it has now been made "hypothetical" by the transfer of status of Padilla from enemy combatant held incommunicado indefinitely to a more mainstream justice track.  However, this transfer occurred, as the appeals court pointed out angrily, in a transparent effort by the Bush administration to avoid judicial review of indefinite detentions.  Which raises the possibility that the administration could hold hundreds of people in such detention, systematically changing the status of any individual whose case comes for review, thereby avoiding review of the program in total.  As Ruth Bader Ginsburg wrote, "Nothing prevents the Executive from returning to the road it earlier constructed and defended."

One wonders by this logic if the segregationist south could have indefinitely postponed Supreme Court review via Brown vs. Board of Education just by letting individuals like Linda Brown individually into white schools whenever their cases got to the Supreme Court.

And still I ask, as I did here, where the hell is Congress?  I am sorry the Supreme Court failed to review this but the Constitution created this group called the legislative branch that is supposed to have the power to change the law.  If law is unclear here, they could make it clear.

I must say I was not at all surprised that the Solomon amendment (requiring private universities that accept federal funds to also accept military recruiters) was upheld by the Supreme Court.  I predicted months ago that the left had made its bed on this issue with its strong support of Title IX.

Various law school faculties argued in the case that the Solomon Amendment unconstitutionally violated their rights to freedom of association (by taking away their choice of who can and cannot recruit on campus) and of speech (by forcing the university to support speech, such as military recruiting pitches, that it does not agree with).  I must say that I am both sympathetic and unsympathetic to their argument.  Sympathetic, because there are in fact free speech and association issues here.  The majority opinion notwithstanding, its impossible to make a razor-sharp distinction between prohibitions on "conduct" and prohibitions on expression.  I can't accept Robert's blanket statement that "unlike a parade organizer's choice of parade contingents, a law
school's decision to allow recruiters on campus is not inherently
expressive."  What if, say, Al Qaeda wants to set up a booth?  My accepting their booth would sure as hell be a form of expression, one that I am sure the Right would blast me for. 

I do understand that there is money involved, and the fatuous answer is that "well, they can just turn down federal funds."  Bullshit.  Like it or not (and I don't) the feds have made themselves so ubiquitous, particularly in certain research areas where they have crowded out all private funding, that it is unrealistic to tell them to take a hike.  Though I must say that it is interesting to see the left, which built this huge federal machine, hoist on their own petard.  Besides, the majority opinion said that the funding tie-in was not necessary to pass constitutional muster -- that the government had the power to just straight out compel private universities to accept military recruiters.

However, mostly I am unsympathetic.  Why?  Because these very same ivy league and faculty intellectuals have felt free in the past to step all over the free speech and association rights of the rest of us in similar ways.  As George Will asked in recent column, it would be fascinating to see what percentage of these same people who brought this suit in turn vehemently support, say, McCain-Feingold?  Or, public funding of election campaigns. 

As a business person, this ship sailed years ago.  Freedom of association no longer applies to business people.  The reason?  Well, freedom of association implies the reverse right of not associating with anyone you choose.  But there are phone-book-sized bodies of legislation today with detailed regulations telling me all the people and circumstances in which I cannot choose whom I associate with, or don't associate with (via employment decisions, for example).  For example, my business employs RV'ers who live full-time on the road and form a large transient labor force.  I have tons of applications every year from Canadian and Mexican citizens who would like to work for me, but I cannot hire them.  On the other side of the coin, I have had to actually go to court from time to time to justify why I chose not to hire or to fire someone who is a woman, or older, or handicapped.

And forced speech with which I don't agree?  My company has to, by law, maintain bulletin boards full of posters, messages, statements, etc. that I don't necessarily agree with but are legally required to post on my property as communication to workers.  And these bulletin boards have to be made a bit larger every year.  I don't have to accept any federal money to be absolutely required, at the penalty of heavy fines, to post these communications.

I would be a bit more enthusiastic in my support for these law faculty if I didn't suspect that they have been the very people out in the forefront of trashing my first amendment rights as a business person.

Postscript: By the way, is this even a problem anyway?  At Harvard Business School, the largest recruiters eschewed campus altogether, and conducted all their interviews at offsite hotels.  I would think the military could pretty easily work around these law schools prohibitions. 

The separation of powers concept, so fundamental in our Constitution to checking government power grabs, seems to be on life support.  The reason I say this is that for separation of powers to work, each branch of the government has to, you know, actually monitor and try to check power grabs in other branches.   What I see today are three branches that have kind of reached some sort of peace treaty, agreeing to let the others run amok as long as it is allowed to do so itself.  To support this hypothesis, I make the following observations:

• The executive branch continues to try to accumulate power, adding "indefinite detentions without trial" and "warrantless searches" to its arsenal, justifying nearly anything with the blanket argument that "the world is different post 9/11."  The Supreme Court has generally proved itself unwilling to do anything about it, which should be all the more the case in the future since both Bush appointees seem very comfortable with accretions of executive power.  Even the opposition party, though willing to make verbal assaults, seems unwilling to take any real measures.

• Congress seems perfectly willing to spend their time wallowing in pork and dreaming up new earmarks to satisfy prominent donors.  The current budgeting process is a fiasco, and the executive branch seems unwilling to exercise any adult supervision, including an incredible record of zero vetos is nearly 6 years.  Congress has shied away from working on any issues of any seriousness (e.g. Social Security) which is perhaps good for us, since their only attempt to fix runaway spending in Medicare resulted in them adding an expensive and ridiculously complex drug benefit.  Congress and the President conspired to pass the egregious McCain-Feingold speech limit bill, which effectively helps protect the job of Congressional incumbents and protects them from 3rd party criticism when approaching an election.

• With Congress unwilling to address any legislative issues of substance, the judiciary seems perfectly happy to take their place, creating new law in hundreds of areas.  And Congress seems willing to let them.  It can only be dangerous for a Congressperson to deal with hot-button issues like gay marriage and abortion - its much better to let the judiciary do it for you.  Often Congressman can get the outcomes they want, without actually having to create a legislative record on the issue that might come up in a campaign.

The whole situation depresses me just writing about it.