Coyote Blog

Once and a while, I like to put in a plug for Overlawyered.com, which is a great place to keep up with the wacky and increasingly scary world of jackpot litigation and over-regulation. Just keep scrolling.

Catching my eye is this piece from Canada, concerning my "extended family":

"A Vancouver woman is suing the city and the B.C. government for
allegedly failing to keep the streets safe after her pet cat was killed
by two coyotes....In a statement of claim filed in B.C. Supreme Court,
[Judith] Webster says she's suffered and continues to suffer from
post-traumatic stress and/or adjustment disorder, loss of enjoyment of
life, and loss of past and future earnings."

Arizona has gotten a lot of press for its shoot to kill order on wild animals in inhabited areas, engendered by a similar suit against the state.  Environmentalists have made common cause successfully for years with the tort bar, but one wonders if these kinds of suits may drive a wedge between them.

By the way, did anyone see that guy in Pittsburg who had a heart attack in a bar when Jerome Bettis fumbled the ball late in the 4th quarter against Indy?  I wonder if he will be suing the Steelers for "post-traumatic stress and/or adjustment disorder, loss of enjoyment of
life, and loss of past and future earnings"?

The other piece that caught my attention was this, from New York:

"Last summer, [New
York City's] health department launched a campaign against trans-fats.
Often used by restaurants and in packaged foods, trans-fats are thought
to cause cholesterol problems and increase the risk of heart disease.
After restaurant inspectors found that 30 percent of the city's 30,000
eateries were using oils that contain trans-fats, the department began
urging a citywide ''oil change.'' Officials sent letters to food
service operators and started teaching workers about trans-fats along
with their required food safety training. The city plans another survey
this spring to measure the results of the project. Officials next want
to tackle portion sizes. Towering pastrami sandwiches, bagels with
gooey schmears of cream cheese and pizza slices that spill over paper
plates may be the city's culinary landmarks, but the health department
says the Big Apple is out of control."

Which makes the NYC health department officials the only New Yorkers I have ever heard complain about getting too much for their money.

Nearly every day brings new evidence of what a threat to free speech campaign finance "reform" laws have become.  I found this bit from Brian Anderson very depressing, but not surprising:

Consider what's going on in Washington State as an early warning.
Early in 2005, the Democrat-controlled legislature passed"”and
Democratic governor Christine Gregoire signed"”a bill boosting the
state's gasoline tax a whopping 9.5 cents per gallon over the next four
years, supposedly to fund transportation projects. Thinking that their
taxes were already plenty high... some citizens organized an initiative campaign,
as Washington law allows, to junk the new levy: No New Gas Tax.

Two popular conservative talk radio hosts, Kirby Wilbur and John
Carlson, explained why the gas tax was bad news and urged listeners to
sign the 225,000 petitions necessary to get the rollback initiative on
the November ballot, though they played no official role in the
campaign and regularly featured on their shows defenders as well as
opponents of the tax hike. With the hosts' help, the petition drive got
almost twice the needed signatures, but the ballot initiative, strongly
opposed by labor unions, the state's liberal media, environmental
groups, and other powerful interests, narrowly lost.

Meantime, however, a group of pro-tax politicians sued No New Gas
Tax, arguing that Wilbur's and Carlson's on-air commentaries were
"in-kind contributions" and that the anti-tax campaign had failed to
report them to the proper state authorities. The suit sought to stop
NNGT from accepting any more of these "contributions" until it
disclosed their worth"”though how the initiative's organizers could
control media discussions or calculate their monetary value remained
unclear. The complaint also socked NNGT with civil penalties,
attorneys' fees and costs, and other damages...

The real target of the suit was clearly Wilbur and Carlson, or, more
accurately, their corporate employer, Fisher Communications. If NNGT received the "contributions," that meant Fisher had sent
them by broadcasting Wilbur's and Carlson's support for the initiative.
Washington law limits contributions in the last three weeks of a
political campaign to $5,000. Depending on how one measured the dollar
worth of on-air "contributions," Fisher could thus face big fines and
criminal sanctions if it let Wilbur and Carlson keep talking about the
gas tax. "Thankfully, Fisher assured us that we could keep
talking about the subject on the air, and we did," Wilbur says. The
judge ruled in favor of the pro-tax pols, though he finessed the $5,000
limitation problem by ruling only on the "contributions" that occurred
prior to the campaign's last three weeks.

I find this offensive.  And expect similar "in-kind" donation logic to be coming to a blog near you.  And while Democrats may short-sightedly cheer as long as this logic is applied against conservative talk radio, this "in-kind" logic is a Pandora's Box that will be very hard to close.  For example, lets say my wife's reading club organizes 200 women to go out to a 3-hour rally to support Hillary Clinton.  In doing so, the club just mobilized 600 "man"-hours for Ms. Clinton, which at $10 an hour, which is a low value for a professional person's time, is worth $6000.  Have they violated the law?  Or, lets say a lawyer who normally bills $300 an hour spends all day Saturday and Sunday marching in a rally for George Bush.  Is he over the limit?

We are in the absolutely terrifying and historically unprecedented position of having had Congress pass a law that no citizen (except a few media people and a few government licensed political groups) can criticize a member of Congress by name within 60 days of an election.  And the Supreme Court signed off on this travesty!

I generally stay far away from the back-bench spitball fights that seem to go with Supreme Court confirmations (except for Harriet Meier's, but she was so spectacularly bad a choice I felt the need to chime in).  So I am late to the party in noting that apparently Alito came under some fire for being a member of the Concerned Alumni of Princeton.  Apparently, he has been tagged as a racist, sexist, blah, blah, blah for being a member of this organization.

First, it is worth observing the the Republicans asked for this guilt-by-organizational association stuff.  Long before the Federalist Society membership attack by Democrats was the attack on Dukakis as "a card carrying member of the ACLU".  This is just as dumb as can be.  I, for example, support the ACLU in a number of their endeavors at the same time I have grave problems with certain aspects of their work, particularly their refusal to acknowledge property rights as on equal footing with speech and privacy (which I guess is not surprising since they were founded by a Stalanist).  I am sure it is possible that Alito supports some of the goals of CAP without wanting to make Princeton all-male again.

My second reaction is just to laugh.  While at Princeton, it was always fun to take a shot at CAP for being racist or sexist, since their most public positions always seemed to be about opposing women on campus or affirmative action or similar stuff.  Then and since, though, I have gotten to know a bunch of folks in CAP and have found its really just a bunch of very conservative (little c) folks concerned that Princeton isn't the same as when they were there.  I sometimes agree with them, for example when they oppose political-correctness driven speech limitations, and sometimes disagree with them, particularly when they oppose any sort of dynamism in the school.  In general, I classify them as humans were classified in the Hitchhikers Guide to the Galaxy:  Mostly harmless.

My problem with CAP is that Princeton, like most of the Ivy League, needs to be more dynamic, not less.  Princeton has done a good job adjusting themselves to many challenges over the last 30 years:  Princeton has gone from no women to being majority women.  It has good representation from most ethnic groups, and it has all the money it could possibly need to make sure any student it wants in the University can afford to go.  Its got every building and piece of equipment a student could ever need, plus a few more.

But here is the real problem, as I see it:  Over the last 30 years, the undergraduate population at Princeton, as with all of the Ivy League, has hardly grown.  The University has become hugely wealthy over this time, has built tons of facilities, but it has all gone to increasing the educational and capital intensity for the same 5000 students.  The challenge as I see it is how do you make this same education available to say 15,000 people at a time instead of 5,000 without changing the heart of the institution. 

Because they aren't creating any new Ivy League schools, while an ever larger portion of the population has the wealth and basic education background and the drive and expectations to want an Ivy-League-quality college experience.  The result is that the admissions process has gotten to be crazy.  Ask any Ivy Leaguer who went to college 20 years or more ago, and ask them "Could you get admitted today" and they will probably answer "no" or at least "I'm not sure".  Education consultants - I have met these folks - are making fortunes coaching kids from the age of 9 or so on how to get a resume built that is Ivy-League-admittable, complete with an oddball hobby selection aimed at catching the admissions board's eye.  Everyone plays piano, so kids started trying the harp and banjo to be different, but even that is overdone so now its probably the bagpipes or something.  Football is out, and lacrosse is probably overdone now, so how about falconry?  Out west, private universities like USC are thriving by being able to offer top educations to much larger numbers of people.  The Ivy League needs to figure out how to do this as well.

Of course, every time I raise this idea at any Princeton forum, I get only negative reactions, being accused of trying to change the very fiber of the university.  You don't have to be born in 1930 to be conservative about the the university and change.  But I keep at it, noticing that the responses I get are identical to those heard when the University went coed.

update:  Well, Joe, I'm not really a big Joe Biden fan.

I generally don't get worked up by the memes that fly back and forth between various political blogs.  However, one of late is starting to irritate me.  I have seen it all over the place on conservative blogs, but I will quote from James Taranto because I saw it on Best of the Web most recently:

Related to the terrorism-is-no-big-threat claim is the argument that American lives are less important than the civil liberties of terrorists.

Its not the lives vs. liberties part that works me up -- there probably is a real trade-off in there somewhere.  What irks me is portraying concerns about the Patriot Act, indefinite detentions without trial, and eavesdropping outside of the normal separation of powers checks and balances as "concern for the civil liberties of terrorists".

I am sure that there is a name for this kind of semantic trick, though I can't remember it, but I will say its bush league, right out of high school debate.  You could just as easily stump for repeal of the fourth amendment because it is only concerned with the "civil liberties of criminals".

No one except a few crazies cares much for the civil rights of convicted criminals and terrorists.  After all, what could be more of a violation of their civil rights than incarcerating them, but I have seldom seen a bond issue for more prisons that people won't vote for.

No, the problem is with the civil rights of the rest of us who are innocent.  We don't want our email read just in case we are terrorists.  We don't want our houses broken into at night just in case we are drug dealers.  And if we find ourselves in police custody, we want our habeas corpus rights respected and we want to get our due process or be released.

You see, that's the nagging little problem.  Because the people the administration and their law enforcement arms are detaining and eavesdropping on are only "suspected terrorists", or I will even grant you "strongly suspected terrorists".  And there is a whole great world of difference between even a strongly suspected terrorist and a convicted terrorist.  That is what due process and the presumption of innocence is all about.  We have a legal term for a person "suspected" by the police of crime or terrorism:  Innocent citizen.

Yes, I understand that for the police to do their business, they need to be able to investigate suspected criminals.  As I wrote here, we have a process for that - the legislature sets the rules for investigations and searches, the Supreme Court tests the rules against the Constitution, the administrative branches follow the rules, and the courts have various review roles, from approving wiretaps and search warrants to being a source of appeal for habeas corpus violations.  That is why I stated that though I opposed provisions of the Patriot Act, at least it followed this separation-of-powers script.  It is when the administration claims new powers for itself without legislative authority or judicial review that really gives me the willies.

And yes, I know that the counter-argument is that we are at war and the administration and the President as commander-in-chief have the abilities under their powers to do, uh, whatever it takes I guess to prosecute a war.  After all, you can't run to Congress for a vote every time you want to move the troops in a war, can you?

There is a major problem with this argument.  To the extent that the President has all this extra wartime power, the founding fathers put in a very sensible Constitutional provision that the Senate must make a declaration of war before the President has these wartime powers.  And you know what -- the Senate of this country has not declared war since about 1941 on anyone.  Even if I give GWB credit for all the best motives in the world, we cannot have a government where the President can assume all kinds of magic wartime powers AND unilaterally declare war himself (and no, the Senate authorization for military action in Afghanistan was not a declaration of war, at least in this sense).  Effectively the Administration is asking us to a) allow the Administration to define when and who we are at war against; b) allow the Administration to identify, without outside review, who the combatants are in this war; and c) allow the Administration to search or indefinitely detain these combatants that they identified, indefinitely and without review outside of Administration-controlled organizations.

No way.  And I don't think a President has these powers to arbitrarily name who is a threat and detain them without due process even in a declared war - I mean, does anyone remember the embarrassing Japanese internments in WWII?  Were the Japanese internments any different, except in scale, from the powers the administration is claiming today?

Supporters of the war in Iraq have defended that Iraq is better off despite the high ongoing civilian death toll from terrorist acts.  They argue that the people of Iraq are willing to pay the price of dealing with these terrorist attacks in order to gain the status of a free and open state.  I would ask, then, aren't we in the US just as willing to deal with some increased risk of terrorism in order to maintain a free and open state?

I don't consider myself a tinfoil hat guy.  I think many of the security concerns behind the administration's actions can be addressed with some respect to separation of powers, if the administration was just willing to try.  However, it is my observation that the administration gave up trying to work with Congress about 2 years into his first term.  GWB hasn't tried to push any kind of legislative agenda.  He hasn't tried to bring any adult supervision to the gross display of spending excess going on.  He hasn't even used his veto pen once.  It strikes me that the Bush administration decided in about 2002 that Congress wasn't serious (I can sympathize with that) and that they were going to go off on their own and run things by themselves.  Sorry, but no matter how good your intentions, it does not work that way.

Every once in a while I post something off the cuff and find retroactively that I have tapped into a rich source of blogging material.  Such is the case with my post a couple of days ago about technocrats on the left regretting loss of control of the statist institutions they created.  In that article I cited examples of the left freaking out over a conservative-controlled FDA halting over-the-counter approval of the Plan B morning after pill and the injection of certain conservative dogmas (e.g. intelligent design) into public schools.  The moral was that the left is lamenting the loss of control, when they should be reevaluating the construction of the regulatory state in the first place.

David Bernstein at Volokh brings us another example with the Solomon Amendment, the legislation that requires universities that accept public funds to allow military recruiters on campus.  Folks on the left hate this act, many because they oppose the military at all junctures while others more narrowly oppose recruiting as a protest against the Clinton-era "don't ask, don't tell" policy law brainchild.  Eskridge and Polsby debate the pros and cons at the ACS Blog.  I tend to be sympathetic to the private universities, who rightly don't feel like acceptance of federal money or research grants should negate their control of their institution.

But my point is not the merits of the Solomon Amendment, but to point out the irony, very parallel with the FDA and public schools examples previously:  The Solomon Amendment is built sturdily on the precedent of Federal Title IX legislation, legislation that is a part of the bedrock of leftish politics in America.  Title IX first established the principal that the Federal government could legally override the policy-making and decision-making at private universities if they accepted any federal cash.  It was the left that fought for and celebrated this principal.  The left ruthlessly defended the state's right to meddle in private universities in substantial ways, and passed legislation to shore Title IX up when the Supreme Court weakened state control (from the Bernstein post):

The Court's attempt to preserve some institutional autonomy for universities
from anti-discrimination laws caused uproar among liberal anti-discrimination
activists. They persuaded Congress to pass the "Civil Rights Restoration Act."
This law ensured that if a university receives any federal funds at all,
including tuition payments from students who receive federal aid, as in Grove
City's case, all educational programs at that university are subject to Title
IX.

The Solomon Amendment is modeled after the Civil Rights Restoration Act's
interpretation of Title IX.

In fact, in the linked articles, Solomon is being attacked by the left precisely because it does not allow universities the freedom to set their own anti-discrimination policy (in this case, banning recruiters judged discriminatory to gays), when the whole issue of Title IX was precisely to override a university's chosen anti-discrimination policy (or lack thereof).  So again we have the case of the left building an government mechanism to control private decision-making, and then crying foul when their political enemies take control of the machinery.

In my naive youth, I would have assumed that this contradiction would quickly be recognized.  However, the left (and the right too, but that is for another post) has been able for years to maintain the cognitive dissonance necessary to support the FDA's meddling in every single decision about what medical procedures and compounds a person can have access to while at the same time arguing that abortion is untouchable by government and that a woman should make decisions for her own body.  In this case, it will be interesting to see if the left is able to simultaneously decry state control of discrimination policies at private universities in Solomon while continuing to support state control of private university discrimination policies as essential in Title IX.

Correction: You learn something every day.  I called don't-ask-don't-tell a "policy, as I had assumed that it was merely an internal military policy.  Apparently it is a law.

I have addressed abortion and the court more seriously here and here, among other places.  Basically my premise has been that I accept a privacy right, and accept a woman's control of her body, but wonder why the Left (which coined these terms and defends them as moral high ground) doesn't believe that this privacy and decision-making control extend to other areas like breast implants, using Vioxx, seat belt use, helmets, use of tanning booths, smoking, fatty food consumption, make wage agreements, pricing products and services, etc. 

But, I must admit, I am having SCOTUS nomination process fatigue, and, as such, Jane Galt aka Megan Mcardle found this wonderful post from Glen Wishard that sums up my current thinking on abortion vis a vis the Supreme Court perfectly:

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.

ROFL

I have never really waded into a debate about Supreme Court nominees before.  On John Roberts, my only comment was to laugh at how stupid the Senate confirmation hearings were.

This time, I feel the need to make an exception on Hariett Miers.  In a previous post, I called her the anti-libertarian, and more than ever I am convinced that that assessment is correct.  Everyone inside of the beltway seems to love talking points, so here are mine:

• She does not meet any sort of minimum qualification level to be a Supreme Court judge, politics notwithstanding.  This is a crony pick, pure and simple.  From George Will:

Furthermore, there is no reason to believe that Miers's nomination
resulted from the president's careful consultation with people capable of such
judgments. If 100 such people had been asked to list 100 individuals who have
given evidence of the reflectiveness and excellence requisite in a justice,
Miers's name probably would not have appeared in any of the 10,000 places on
those lists....

It is important that Miers not be confirmed unless, in her 61st year,
she suddenly and unexpectedly is found to have hitherto undisclosed interests
and talents pertinent to the court's role. Otherwise the sound principle of
substantial deference to a president's choice of judicial nominees will dissolve
into a rationalization for senatorial abdication of the duty to hold presidents
to some standards of seriousness that will prevent them from reducing the
Supreme Court to a private plaything useful for fulfilling whims on behalf of
friends.

• She threatens to be a judicial Pat Buchanon:  Conservative on social issues, interventionist on economic issues.  In other words, the anti-libertarian.  From John Fund:

One White House
source says the positions she took in staff meetings might surprise her
business supporters. He said she leaned conservative on social
questions and liberal on economic issues. Bruce Packard, a former
partner at Ms. Miers' law firm, also cautions that she may be more
complicated than people expect. 'She is very reticent to ever discuss
her own views and liberal on issues other than abortion,' he told me."

• Though not discussed very much, her leadership of the Texas Bar Association, which is touted as perhaps her highest judicial qualification (interesting, since its just a bureaucrat job) makes me very very nervous.  Someone is going to have to try to get control of the tort situation and start resetting the rules of courtroom procedure to bring more sanity to liability trials.  I guarantee that a person who headed the Texas Bar Association, home of some of the most outrageous millionaire tort lawyers in the country, is not going to do anything to bring sanity to tort law.

As a note, I don't really cast my vote one way or the other based on abortion -- I have a viewpoint on it, but its not my hot-button, or even in my top 10, issues.  However, I kind of hope Miers turns out to be clearly anti-abortion so that Democrats will find a reason to join some Republicans in opposing her.  Until that happens, Democrats seem to be following Napoleon's dictum of not interrupting your enemy when he is making a mistake.

Update:  Dahlia Lithwick and I would probably not agree on the reasons for opposing Miers, but you have to love this quote, explaining why she gets paid and I do this for free:

So I am begging now. This is embarrassing. End it. Karl Rove: Either plant the
500 pounds of cocaine you keep for such occasions in Miers' car, or trot out
some actress to play her bitter, gay ex-lover. You have the power to end this.
So do whatever it is you do. But end the unnecessary pain and suffering now,
before someone really gets hurt.

Update #2:  I oppose the Miers nomination.  Hopefully, this gets me registered for this page by NZ Bear, tracking blog positions.

I hate to be the only one in the blogosphere who does not link it, and since this is the only blog my mom reads, here is George Will's take on the Harriet Miers choice.  I am not sure there is much more to say than this.  First, he dispatches the Bush "trust me" argument:

It is not important that she be confirmed because there is no evidence that she
is among the leading lights of American jurisprudence, or that she possesses
talents commensurate with the Supreme Court's tasks. The president's "argument"
for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments
about competing approaches to construing the Constitution. Few presidents
acquire such abilities in the course of their pre-presidential careers, and this
president particularly is not disposed to such reflections....

In addition, the president has forfeited his right to be trusted as a
custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in
a private act betokening an uneasy conscience, he signed the McCain-Feingold law
expanding government regulation of the timing, quantity and content of political
speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a
considered response from him, he had been told in advance that he would be asked
-- whether McCain-Feingold's core purposes are unconstitutional. He
unhesitatingly said, "I agree." Asked if he thought presidents have a duty,
pursuant to their oath to defend the Constitution, to make an independent
judgment about the constitutionality of bills and to veto those he thinks
unconstitutional, he briskly said, "I do."

Then he takes on Miers's credentials:

Furthermore, there is no reason to believe that Miers's nomination
resulted from the president's careful consultation with people capable of such
judgments. If 100 such people had been asked to list 100 individuals who have
given evidence of the reflectiveness and excellence requisite in a justice,
Miers's name probably would not have appeared in any of the 10,000 places on
those lists....

It is important that Miers not be confirmed unless, in her 61st year,
she suddenly and unexpectedly is found to have hitherto undisclosed interests
and talents pertinent to the court's role. Otherwise the sound principle of
substantial deference to a president's choice of judicial nominees will dissolve
into a rationalization for senatorial abdication of the duty to hold presidents
to some standards of seriousness that will prevent them from reducing the
Supreme Court to a private plaything useful for fulfilling whims on behalf of
friends.

Quoting Bill Paxton:  "That's it man, game over man, game over".  I understand that politicians want to reward their supporters, but that's what ambassadorships to friendly countries are for.  Not FEMA.  And certainly not the Supreme Court.

  Is it too late to nominate Billy Carter to the high court?

Via Instapundit comes the separation of powers is slowly starting to work, with the Senate starting to reign in the Administration:

In a break with the White House, the Republican-controlled Senate
overwhelmingly approved a measure Wednesday that would set standards for the
military's treatment of detainees, a response to the Abu Ghraib scandal and
other allegations that U.S. soldiers have abused prisoners.

Sen. John McCain, R-Ariz., a victim of torture while a prisoner during the
Vietnam War, won approval of the measure that would make interrogation
techniques outlined in the Army Field Manual the standard for handling
detainees in Defense Department custody and prohibit "cruel, inhuman or
degrading" treatment of U.S.-held prisoners.

Its good to see Congress getting off its butt and seeing it stop relying on the Supreme Court to deal with these issues.  I thought this was overdue a while back when I posted this.

Of course GWB, who is the only president in history to go 5 years without vetoing anything, is threatening a veto of this sensible regulation:

The White House has threatened to veto the $440 billion military spending
bill to which the measure was attached, and Vice President Dick Cheney has
lobbied to defeat the detainee measure. White House spokesman Scott McClellan
objected that the measure would "limit the president's ability as
commander-in-chief to effectively carry out the war on terrorism."

Uh, how?  Glenn Reynolds responds:

This resistance seems to me to be a mistake. First -- as Lamar
Alexander noted on the Senate floor, in a passage I heard on NPR
earlier this morning -- it is very much the Congress's responsibility
to make decisions like this; the President might do so in the first
instance, but we've been at war for more than four years and Congress
is actually doing its job late, not jumping in to interfere. If the
White House thinks that the Senate's approach is substantively wrong,
it should say so, but presenting it as simply an interference with the
President's Commander-in-Chief powers is wrong. Congress is entitled,
and in fact obligated, to set standards of this sort. It's probably
also better politically for the White House, since once the legislation
is in place complaints about what happened before look a bit ex post facto.

Perhaps current practices are producing a treasure trove of
intelligence that this bill would stop, but I doubt that -- and if I'm
wrong, the Administration should make that case to Congress, not stand
on executive prerogatives. And this bill seems to be just what I was calling for
way back when -- a sensible look at the subject by responsible people,
freed of the screeching partisanship that has marked much of the
discussion in the punditsphere. That should be rewarded, not blown off.

A Bush veto of this measure is likely to touch off the perfect political storm within his own party.  This would make the trifecta of alienation from the more sober parts of the Republican Party, following on his profligate spending tendencies as revealed post-Katrina and his cronyism as reveled first at FEMA and now with his recent Supreme Court nomination.

I know nothing about Bush Supreme Court nominee Harriett Miers other than she adds yet another possible way for people to misspell my last name.  Todd Zwycki at Volokh has this take, and it doesn't sound too good:

These appointments thus seem to confirm a common criticism of this
President--that he is uninterested in ideas and interested only in
power. While they may both turn out to be perfectly fine Justices, both
Roberts and Miers appear to be both uninspired and uninspiring in terms
of providing intellectual leadership on the Court. The Administration
seems to be narrowly obsessed with winning minor tactical victories
(here, an easy confirmation of a stealth candidate) while consistently
failing to follow-through with meaningful long-term strategic victories
(an opportunity to change the legal culture).

In the end, of course, the lack of a strategic vision means that
even the tactical victories tend to be reversed (for instance,
temporary tax cuts will likely fall victim to the inability to control
spending). As Reagan understood, you have to first have the long-term
strategic vision in mind so that you know when to make tactical
compromises. Ideas are the long-run motivating force of history.
Tactics without strategy, by contrast, leaves you rudderless.

Beyond his evaluation of Miers, I really like his assessment of Bush, which strikes me as dead-on.  I still think Janice Rogers Brown was the choice.

Update:  Apparently, she was on the Dallas City Council when I lived there in the early 90's, but I sure don't remember having heard of her.  And how serious a candidate can anyone be for the Supreme Court if they were on a freaking city council a decade ago -- can you see any of your city council members on the Supreme Court in 10 years?  And by the way, what are the odds that Bush's personal friend and lawyer will do anything to reign in the new powers to suspend habeas corpus that the administration has granted itself.

Preface:  Over the years, technocrats have always had a distaste for capitalism.  Their desire has always been the curb to bottom-up disorder and inherent chaos of succesful capitalism with top-down order and control.  In the early half of the 20th centruy, the leading economic argument against capitalism was technocratic-fascist:  That capitalism and competition were wasteful and disorderly and should be replaced with a more orderly state control.  The ultimate legislative result of this thinking was FDR's National Industrial Recovery Act, his emulation of Mussolini-style corporate fascism which was fortunately struck down by the Supreme Court.

While numerous large-scale failures of state economic control have mostly beaten back the technocratic argument, we can still see the fundamental failure of this approach in the last few weeks with the government's handling of the Katrina recovery:

A few days ago I had thoughts on top-down vs. bottom-up approaches to hurricane relief.  After watching the relief effort over the last couple of days, I am more convinced than ever that part of the problem (but certainly not all of it) with the relief effort is the technocratic top-down "stay-in-control" focus of its leadership.  Take stories like this:

Lots of
people including yours truly have volunteered to bring (including food,
generators, food, etc., to be self sufficient for a week or so) the most
important thing which is a boat but have been told NO under no uncertain terms.
"My" town is under water, people are in critical condition, and I have skill
sets and assets - including a boat which will come out of the hole in 14 inches
of water - and we are being denied the opportunity to help. And quite frankly,
that REALLY PISSES ME OFF.

And this:

A visibly angry Mayor Daley said the city had offered emergency,
medical and technical help to the federal government as early as Sunday
to assist people in the areas stricken by Hurricane Katrina, but as of
Friday, the only things the feds said they wanted was a single tank
truck.
[...]
Daley said the city offered 36 members of the firefighters' technical
rescue teams, eight emergency medical technicians, search-and-rescue
equipment, more than 100 police officers as well as police vehicles and
two boats, 29 clinical and 117 non-clinical health workers, a mobile
clinic and eight trained personnel, 140 Streets and Sanitation workers
and 29 trucks, plus other supplies. City personnel are willing to
operate self-sufficiently and would not depend on local authorities for
food, water, shelter and other supplies, he said.

While turning down offers to help, when everyone agrees not enough is being done, may seem unthinkable, these are actually predictable outcomes from a bureaucracy of technocrats.  Technocrats value process over results, order and predictability over achievement.  More important than having problems fixed is having an ordered process, having everything and everyone under control.  In this context, you can imagine their revulsion at the thought of having private citizens running around on their own in the disaster area trying to help people.  We don't know where they are!  We don't know what they are doing!  They are not part of our process!  Its too chaotic! Its not under control!

Nearly everyone who is in government has a technocratic impulse - after all, if they believed that bottom up efforts by private citizens working on their own was the way to get things done, they would not be in government trying to override those efforts.  But most emergency organizations are off the scale in this regard.  99% of their time, they don't actually have an emergency to deal with - they are planning.  They are creating elaborate logistics plans and procedures and deployment plans.  Planners, rather than people of action, gravitate to these organizations.  So, once a disaster really hits, the planners run around in circles, hit by the dual problem of 1) their beautiful plans are now obsolete, since any good general can tell you that no plan ever survives first contact with the enemy and 2) they are by nature still planners, trying to get order and process underway and create a new updated plan, rather than just getting every possible resource out there fixing the dang problem.

The army has had to deal with this conundrum for years.  How do you have soldiers who are good planners before a battle, but men of action and initiative once the battle is underway?  How do you run a fundamentally top-down organization such that when it matters, individuals will take the initiative to do what needs to be done?  Its a really hard problem.

Unfortunately, I fear that the lessons from this hurricane and its aftermath will be that we need more top-down rules and authority rather than less.  It is the technocrats on the sidelines who are most appalled by the screw-ups, and will demand more of whatever next time.

Here is an example of what I think we should do instead.  Let's accept that we can't plan for everything, can't have every resource stockpiled for an emergency, and that our biggest resource is our private citizenry.  Let's provide rules of engagement for 3rd parties to come into the disaster area and help with minimum supervision.  There might be different rules for trained rescue people and untrained private citizens.  Here is an example of the type of thing that might work better:

Every private citizen with a boat larger than X and a draft less than Y who would like to help can bring their boat and three days food and clothing to such and such boat ramp.  All municipal firefighters and rescue teams that want to help, come to such and such building, check in, and we will assign you a sector.  Rescue crews need to bring their own food, equipment, and waterproof paint to mark the buildings you have searched.  Then, go out to the boat ramp, find a boat and driver in the pool there, and go.  FEMA will bring in a fuel truck to refuel boats and will indemnify all boat owners for damages.  All survivors found should be brought back to the dock, and ambulances will be standing by.

Update: OK, I know some of you don't believe that this is a control issue for the bureaucrats.  Well, here is more evidence, from the Red Cross web site, via Instapundit.

Hurricane Katrina: Why is the Red Cross not in New Orleans?

• Access
  to New Orleans is controlled by the National Guard and local
  authorities and while we are in constant contact with them, we simply
  cannot enter New Orleans against their orders.
• The state Homeland Security Department had requested--and
  continues to request--that the American Red Cross not come back into
  New Orleans following the hurricane. Our presence would keep people
  from evacuating and encourage others to come into the city.

Update #2:  Still reluctant to believe that control over the process is more prized by bureaucrats than results?  Try this, from CNN and via Instapundit:

Volunteer physicians are pouring in to
care for the sick, but red tape is keeping hundreds of others from
caring for Hurricane Katrina survivors while health problems rise.

Among
the doctors stymied from helping out are 100 surgeons and paramedics in
a state-of-the-art mobile hospital, developed with millions of tax
dollars for just such emergencies, marooned in rural Mississippi.

"The
bell was rung, the e-mails were sent off. ...We all got off work and
deployed," said one of the frustrated surgeons, Dr. Preston "Chip" Rich
of the University of North Carolina at Chapel Hill.

"We have
tried so hard to do the right thing. It took us 30 hours to get here,"
he said. That government officials can't straighten out the mess and
get them assigned to a relief effort now that they're just a few miles
away "is just mind-boggling," he said....

It travels in a convoy that includes
two 53-foot trailers, which as of Sunday afternoon was parked on a
gravel lot 70 miles north of New Orleans because Louisiana officials
for several days would not let them deploy to the flooded city, Rich
said....

As they talked with
Mississippi officials about prospects of helping out there, other
doctors complained that their offers of help also were turned away.

A
primary care physician from Ohio called and e-mailed the U.S.
Department of Health and Human Services after seeing a notice on the
American Medical Association's Web site about volunteer doctors being
needed.

An e-mail reply told him to watch CNN that night, where
U.S. Health and Human Services Secretary Michael Leavitt was to
announce a Web address for doctors to enter their names in a database.

"How crazy is that?" he complained in an e-mail to his daughter.

Dr.
Jeffrey Guy, a trauma surgeon at Vanderbilt University who has been in
contact with the mobile hospital doctors, told The Associated Press in
a telephone interview, "There are entire hospitals that are contacting
me, saying, 'We need to take on patients," ' but they can't get through
the bureaucracy.

"The crime of this story is, you've got millions
of dollars in assets and it's not deployed," he said. "We mount a
better response in a Third World country."

Update #3:  Yes, there's more.  The Salvation Army has also been blocked, and the reason?  Their efforts did not fit snugly into the technocrats plans (via Cafe Hayek):

As federal officials tried to get some control over the deteriorating
situation in New Orleans, chaos was being replaced with bureaucratic rules that
inhibited private relief organizations' efforts.

"We've tried desperately to rescue 250 people trapped in a Salvation Army
facility. They've been trapped in there since the flood came in. Many are on
dialysis machines," said Maj. George Hood, national communications secretary for
the relief organization.

"Yesterday we rented big fan boats to pull them out and the National Guard
would not let us enter the city," he said. The reason: a new plan to evacuate
the embattled city grid by grid - and the Salvation Army's facility didn't fall
in the right grid that day, Hood said in a telephone interview from Jackson,
Miss.

"No, it doesn't make sense," he said.

Update #4:  I can't help myself.  Here is another:

The Fox News Channel's Major Garrett was just on my show extending the
story he had just reported on Brit Hume's show: The Red Cross is
confirming to Garrett that it had prepositioned water, food, blankets
and hygiene products for delivery to the Superdome and the Convention
Center in the immediate aftermath of the hurricane, but were blocked from delivering those supplies by orders of the Louisiana state government, which did not want to attract people to the Superdome and/or Convention Center.

Update #whatever-I-am-up-to: Welcome Instapundit readers!  I have posted a follow-up on big government and disaster preparedness here.

Technorati Tags:  Katrina, Economics

I could fill this blog with litigation horror stories, but there is no need when Walter Olson does such a good job.  If you read his blog much, one of the themes than runs through the cases he highlights is the ever widening search in every case to find the deep pockets.  Unfortunately for trial lawyers, the person who is truly at fault, ie the drunk driver that runs down a pedestrian, seldom has deep enough pockets to produce a really satisfying fee.  So you gotta be creative.  This is to be expected.  What is not to be expected is the lengths to which the judicial system goes to validate this search (via Overlawyered):

The state Supreme Court has ruled that store owners can be sued for causing
injuries in a drunken driving accident if they sold gas to an intoxicated
driver.

The court ruled in a lawsuit filed by two men who were severely
injured in 2000 when they were struck head-on by Brian Lee Tarver, who later
pleaded guilty to vehicular assault and driving under the influence.
Before the accident, Tarver bought gas at an Exxon owned by East
Tennessee Pioneer Oil Company.

Fortunately, I guess, Exxon is used to getting sued for damages by drunk drivers. 

This case I wrote about previously is one of the best examples I have seen of how liability goes to the deep pockets, not the guilty:

Car veers into
truck's lane...and so a jury has ordered the trucking company, Auction
Transport Inc., to pay $22.5 million over the resulting injuries to a
young passenger in the accident, which occurred at rush hour on Kansas
City's I-435. Mary Coleman's car, allegedly sideswiped by a third
vehicle, had careened in front of the truck, but attorneys argued that
the truck driver had been "driving too fast in congested traffic and
not watching the road." The jury found the trucking company responsible
for just less than half the fault of the accident -- a greater share of
fault than the allegedly sideswiping driver -- and Coleman for hardly
any of it.

So, surprisingly enough, three
vehicles involved, two with limited resources and one with deep
pockets.  Guess who is liable - the deep pockets of course, despite the
fact that he was the only driver among the three who stayed in his lane!

Now, here is the thought experiment.  Move the truck with
deep pockets into any of the other two roles.  Imagine first that it
was the car that nudged the plaintiff into the other lane.  Imagine
next that the truck was the one nudged into oncoming traffic and hit
the plaintiff.  In these two cases, if they had gone to trial, who
would have gotten the blame?  I would bet you that in either case, the
truck with the deep pockets would have been given most of the blame in
either of these cases.

So where is the fairness?  Why should blame be based on
bank account size, and not actual actions?  Is there anything more than
coercive wealth transfer going on here?  Does this constitute justice?

Law

The town of New London, CT, is assessing nearly 5 years back rent on Susette Kelo and other property holders whose land the Supreme Court recently allowed the city to confiscate.  As it stands, if New London has its way, Kelo will not only lose her house, she will also be wiped out financially, all for the crime of owning the land where New London wanted condos and hotels.

The U.S. Supreme Court recently found that the city's original seizure of
private property was constitutional under the principal of eminent domain, and
now New London is claiming that the affected homeowners were living on city land
for the duration of the lawsuit and owe back rent. It's a new definition of
chutzpah: Confiscate land and charge back rent for the years the owners fought
confiscation.

In some cases, their debt could amount to hundreds of thousands of dollars.
Moreover, the homeowners are being offered buyouts based on the market rate as
it was in 2000...

The New London Development Corp., the semi-public organization hired by the
city to facilitate the deal, is offering residents the market rate as it was in
2000, as state law requires. That rate pales in comparison to what the units are
now worth, owing largely to the relentless housing bubble that has yet to burst.

"I can't replace what I have in this market for three times [the 2000
assessment]," says Dery, 48, who works as a home delivery sales manager for the New London Day . He soothes himself with humor:
"It's a lot like what I like to do in the stock market: buy high and sell low."

And there are more storms on the horizon. In June 2004, NLDC sent the seven
affected residents a letter indicating that after the completion of the case,
the city would expect to receive retroactive "use and occupancy" payments (also
known as "rent") from the residents.

In the letter, lawyers argued that because the takeover took place in 2000,
the residents had been living on city property for nearly five years, and would
therefore owe rent for the duration of their stay at the close of the trial. Any
money made from tenants, some residents' only form of income, would also have to be
paid to the city....

An NLDC estimate assessed Dery for $6,100 per month since the takeover, a
debt of more than $300K. One of his neighbors, case namesake Susette Kelo, who
owns a single-family house with her husband, learned she would owe in the
ballpark of 57 grand. "I'd leave here broke," says Kelo. "I wouldn't have a home
or any money to get one. I could probably get a large-size refrigerator box and
live under the bridge."

I want to barf.  Hat tip to Reason's Hit and Run.

I have written a number of times about the broader implications of a privacy right embodied in decisions like Roe v. Wade.  In particular, I have wondered how such a right can cover abortion decisions, but not a range of other individual decisions.  I make this argument not as someone who wants to use regulatory precedent to ban abortions, but just the opposite:  I would like to see the privacy right in Roe v. Wade broadened to invalidate more areas of government intervention in individual lives.  I have discussed the conundrum that liberals face in defending this privacy right while opposing privacy rights in other areas of individual decision making (here and here).

Well, I did something last night I should have done long ago, and I bet very few others have actually done:  I read in its entirety, including supporting and dissenting opinions.  Five years ago, I would have been cowed into silence on commenting in detail on such decisions by the legal intelligentsia, who will likely insist that as a private citizen I am not trained or experienced enough to understand what's really going on in these opinions.  To which I say today:  Take a hike.  The US Constitution is successful, and the European one is not, in no small part because the US Constitution fits on the back of a cereal box (rather than being 9000 pages long) and is accessible to every American. 

Anyway, reading Roe v. Wade, I was struck most by just how much careful tightrope walking the majority opinion goes through to avoid just the dilemma I mentioned above: How to grant an unlimited, unassailable right to an abortion (at least in the first trimester) with no possibility of state intervention without at the same time invalidating half the regulatory structure of the US Government, from the FDA to the DEA to the NHTSA.  In the rest of this post, I will discuss the basis the Justices claim for this distinction, which I found to be uncompelling.

The first, most interesting observation for me was that none of the judges, either in the decision or the dissent, were willing to grant a strong and/or broad privacy right.  The majority opinion uses the interesting term "zones of privacy", which immediately set off alarm bells for me since the term is so similar to the "free speech zones" term I find repugnant (the whole country should be a free speech zone, not little patches of ground with ropes around them).  Apparently, these "privacy zones" fairly narrowly include marriage, sex and procreation, children's education and pregnancy.  I can't think of any compelling reason that those decisions and interactions between two adults should be "private" while eating, smoking, taking drugs and medications, getting breast implants, negotiating a wage, wearing a seat belt, using a tanning booth, getting a tattoo, or using a motorcycle helmet are not "private". 

The key phrase the Justices use is "compelling state interest".  What I find fascinating in this decision, and really I guess in most recent Supreme Court Jurisprudence, is that that somehow the 9th amendment, which retained to the people all powers and rights not specifically enumerated for the government, has gained this modifier.  Effectively the 9th amendment has been rewritten "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people, unless some random politician can demonstrate a compelling state interest and then the government can do whatever the hell it wants".   

Rehnquist actually notes something similar in his dissent:

If the Court means by the term "privacy" no more than that the claim of
a person to be free from unwanted state regulation of consensual
transactions may be a form of "liberty" protected by the Fourteenth
Amendment, there is no doubt that similar claims have been upheld in
our earlier decisions on the basis of that liberty. I agree with the
statement of MR. JUSTICE STEWART in his concurring opinion that the
"liberty," against deprivation of which without due process the
Fourteenth
[410
U.S. 113, 173]

Amendment protects, embraces more than the rights found in the
Bill of Rights. But that liberty is not guaranteed absolutely against
deprivation, only against deprivation without due process of law. The
test traditionally applied in the area of social and economic
legislation is whether or not a law such as that challenged has a
rational relation to a valid state objective.

In some strange way, the Fourteenth Amendment, which was originally meant to add increased protection to citizens, has been turned around to justify government interventionism, just as long as some sort of "due process" has been followed.  Rather than buttress the 9th amendment, this modern interpretation of the 14th seems to gut the 9th amendment.

Just what is "a compelling state interest"?  Could there possibly be a more amorphous term, abusable term?  More importantly, who defines
it?  Remember that whoever gets to define compelling state interest becomes our de
facto ruler.  I think there is a really good reason that the framers of the Constitution did now write that "the government has all powers that there is a compelling state interest to have".  This line would have made the document a license for totalitarianism, but for some reason, our courts have basically rewritten the Constitution to read just this way. The only thing stopping us from being a totalitarian state today are judges that are willing to read "compelling state interest" narrowly.  And these judges just slow the process of creeping statism.  It only takes one decision, like Kelo, to expand the definition of state interest, and all case law afterward seem to follow this expanded view of government.  This statism is like entropy or time, a process that only proceeds in one direction, towards expansion of government power, never to its narrowing.  The Left in particular has gotten good at using the Stare Decisis concept to try to disallow revisiting any decision that expanded the scope of government (Roe v. Wade interestingly again being the one exception, since it is a limitation rather than expansion of state power).

This reading of the 9th and 14th amendment, and this concept of "valid state interest" appear to stem out of the Lochner case, which will be my next reading project.  I will try to report back next week.  However, even without reading this case, I will say that I have no patience for legal scholars who say that some bad outcome came from this case, which was based on a precedent in this case, which came out of that case, etc.  Have you ever taken a document, and copied it, and then made a copy of the copy, and then a copy of that copy, etc. for 20 or so generations?  On the 20th or so generation copy you will find spots and lines and such that were not in the original, but just appeared and then strengthened over time through generations of copying. In some cases, the original writing may be illegible. Sometimes, you have to ignore all the copying and go back to the original.  This is my position as an ordinary citizen on Supreme Court cases - at some point I get exasperated by these government powers that appear and evolve over time through generations of court cases - I just want to go back to the original (ie the Constitution) and point out that those powers are not supposed to be there.

However, you I hope see the quandary in which all this leaves abortion supporters on the left.  Much of their philosophy and political agenda rests on this notion of "a compelling state interest" in nearly every facet of human endeavor.  The left pushes constantly for expansion of government regulation into every corner of our lives.  They are trying to walk a line, a line so narrow I don't think it even exists, between there being no state interest in 16 year old girls getting abortions without their parents' knowledge or consent and there being a strong state interest in breast implants, painkillers, seat belt use, bike helmets, tobacco use, fatty foods, etc.  They somehow have to make the case that that a woman is fully able to make decisions about an abortion but is not able to make decisions, without significant government regulation and intervention, about her retirement savings, the wages she accepts for her work, her use of a tanning booth, and her choice of painkillers. I personally think she can handle all these, and more.

As a final note, it is more clear to me why abortion supporters fear a re-hearing of Roe v. Wade by the Court.  I must say that before reading the decision, I was taken in by their public comments that their fear was of conservatives reversing the decision on ideological grounds.  Having read the decision, though, their fear must be more fundamental:  Roe v. Wade in some sense stands athwart the inexorable march of government interventionism that the left generally applauds.  As such, a rehearing, however the case is decided, could only be a setback for the left:  Either Roe v. Wade is overturned, and the left is hoist on its own petard of creeping government intrusiveness, or Roe v. Wade is confirmed, and in fact is used as a precedent to strengthen the privacy right and thus provide a basis for overturning other statist regulatory infrastructure.  I am rooting for the latter.

I had an interesting discussion with my father-in-law about the term "judicial activism" which has led me to eschew the term.  Here's the reason:  He made the observation, I think from a story on NPR, that though conservatives seem to complain the most about liberal activism from the bench, in fact majorities of conservative judges on the Supreme Court have struck down more laws than their liberal counterparts.  It was the striking down of laws they considered "activist".

After thinking about this for a moment, it made me realize that he, and I guess NPR, used the term judicial activism differently than I do.  As a fairly strong libertarian, when I have referred negatively to judicial activism, I generally am thinking about judicial decisions to create new powers for the government and/or, from the bench, to put new restrictions on individual behavior.  In that sense, I think of decisions like Raich to be activist, because they sustain expansions of federal and government power.  As I have listened to both liberals and conservatives now, I realize that my usage of judicial activism is, ahem, out of the mainstream, and therefore confusing.  My personal concern is how the courts have ignored the 9th amendment and thrown the commerce clause out the window. 
I have decided that, as most people use the term, I am neutral to positive on what the majority refer to as judicial activism.  I think a lot more laws should be thrown out as unconstitutional, and if
this is the accepted definition of activist, them I like activism.  For example, I wish they had been more active in striking down laws and government activities in Raich and Kelo. 

Until I come up with a better term, I now describe myself as being against judicial expansion of federal power.  Maybe I can coin the term "judicial expansionism"?

Several times on this blog I have found myself defending "hate speech".  Not because I agreed with it, but because I am deeply concerned that the effort to label certain speech "hate speech" is part of a general campaign to limit first amendment rights.  If speech limiters are successful in establishing the principal that certain speech is so bad that it is not protected by the first amendment, then we are suddenly at the mercy of whoever is in charge of defining "bad" for our speech rights.  Universities, ironically at the forefront of the "free speech" movement of the 60's, have been at the forefront of "hostile environment" limitations on speech in this decade.

There are many such examples.  The group FIRE, which fights speech limitations on campus, has a blog and a university rating system that is a great resource.  One recent example from their files is of Mr. J. Daniel at William Patterson University in New Jersey.  A couple of facts first, and then a fantastic letter in his defense from Rutgers professor Norman Levitt.  The background:

Mr. Daniel was one addressee of a mass mailing from Prof. Scala publicizing a
film she was about to show, a documentary that presented a positive view of
lesbian relationships. Mr. Daniel, who espouses religious doctrines deploring
homosexuality, responded with a request not to be sent similar notices in the
future, along with a few brief sentences summarizing his general views. It is
notable that he did not threaten Prof. Scala directly or by implication, nor did
he deny her right to show the film. He did not publicize the exchange. He did
not use the incident to launch a campaign of ridicule or vilification against
homosexuals or anyone else. He merely counterposed his ideas to those she was
presumably promoting, in a purely private way and in response to an unsolicited
message directed to him.

What Prof. Scala actually did was engage her university president in a joint effort to censor and punish Mr. Daniel.  I have read Mr. Daniel's comments, which I don't happen to agree with.  However, the response he got to his very reasonable actions is very scary.  Prof. Levitt describes the rest:

Prof. Scala, however, seems to regard disagreement with her position as a
punishable offense. In this respect, she has embraced peculiar dogmas that have
become all too prevalent on campuses throughout the nation. These hold that
there are certain groups who, by reason of a presumed history of oppression, are
to be safeguarded from opinions that they find distressing or uncomfortable. The
rights of others to hold, or at least to express, such dissonant views are
supposedly nullified by the new-minted "right" of the protected groups to be
shielded from discomfort and distress. Both the ethic of free speech and the
constitutional guarantees that bolster it are supposedly trumped by the duty to
shield the tender sensibilities of the officially recognized victim class. If,
by chance, someone utters a sentence or two, even in the context of private
discussion, that affronts these sensibilities, terms like "harassment" and
"hostile environment" are immediately trotted out to justify retribution against
the offending speaker. In short, the assumption is that colleges and
universities have both the right and the positive duty to require students,
faculty, and employees to uphold official doctrine on these matters, if only by
silencing themselves if they happen to disagree.

Wow, I wish I could write like that.  There is much more, all on point and very well written here.

The NJ Attorney General has chimed in and said... wait for it ... that Ms. Scala is entirely in the right and that Mr. Daniel is probably guilty of harassment and discrimination under NJ law as well for expressing his opinions.

By the way, if you think that Professor Levitt was exaggerating for saying that speech is condemned merely if it hurts the feelings of someone in a protected group, here is a very typical quote from a college speech code (I just grabbed the first one I found on the FIRE site):

The Albertson College
Student Handbook's harassment policy states that "[a]ny comments or conduct
relating to a person's race, gender, religion, disability, age or ethnic
background that fail to respect the dignity and feelings of the individual are
unacceptable." The Handbook also provides that "[a]ll inappropriate behaviors
may not be specifically covered in the misconduct definitions, and students will
be held accountable for behaviors considered inconsistent with the standards and
expectations described in this handbook."

Just to prove this is not an aberration, here is another:

The Rhodes College Policy on Discrimination and Harassment states
that "[f]reedom of expression does not include the right to intentionally and
maliciously aggravate, intimidate, ridicule or humiliate another person." Now,
we at FIRE know that all too many university administrators believe this
statement to be true; this is apparent from the way speech codes are enforced on
campuses across the country. However, few colleges and universities are bold
enough to make an explicit statement about free expression that directly
contradicts U.S. Supreme Court precedent. The administrators of Rhodes College
need to read the Supreme Court's decision in , in which the Court upheld
Hustler's right to publish a parody suggesting that Jerry Falwell's first sexual
experience was a drunken tryst in an outhouse with his own mother. Parody and
satire"”which often intentionally and maliciously ridicule and humiliate their
targets"”enjoy the strongest constitutional protection.

Update:  By the way, here is the whole text of the email in question.  Don't agree with him, but I have a hard time seeing anyone threatened and certainly can't fathom kicking the guy out of school and threatening him with prosecution for it.  More evidence that the promotors of diversity don't actually want diversity.

As a libertarian, I am generally quite content to have Congress go on a 364 day a year vacation.  Maybe they can get together once a year and declare a national asparagus day or a national DVD rental day or whatever.

However, I will say that the debate about rules for military prisoner interrogations and detentions at Gitmo have caused me to make an exception to my general Lassaiz Faire approach.  One of the reasons we struggle with these issues is that, because we are facing the relatively new situation of having our military battle with non-uniformed insurgents not associated with any particular government or military force, the rules to be applied are fuzzy or non-existent.  Without rules, the administration has been making up its own, which activists of various stripes have been challenging in court.

And what is Congress doing?  Most of Congress has spent its time shouting out support or criticism (as the case may be) of the administration, and arguing about which judges should be selected to make sure that the administrations rules are or are not struck down.   I could have sworn that Congress has the primary responsibility for creating rules for these situations, to be enforced and interpreted by the Administration and courts.  Why is it, when there are no clear rules, Congress is the only branch of the government doing nothing?

Isn't it about time that Congress stop shouting encouragement or criticism from the shore and actually wade in with some legislation on these issues?  While I certainly have never been one to accept the Gitmo torture hysteria, its certainly a reasonable role for Congress to set standards for treatment of the type of non-military prisoners we are collecting.  For example, while the rules of Habeus Corpus for such a detainee are not necessarily the same as for a prisoner in the US, there certainly need to be some rules beyond the Administration's current ridiculous position that amounts to "we can hold them at our pleasure for as long as we want".

Update:  OK, I am obviously not keeping up.  I just got emailed a couple of links to some action on this front.  Reason has this:

A handful of Republican senators would like to determine:

(i) What is the definition of an "enemy combatant" who may be
detained by the military outside the ordinary civil justice system?; (ii) What
procedural rules should be employed by military tribunals?; and (iii) Which
interrogation techniques should be authorized, and which
prohibited?

Since these are questions the Supreme Court declined
to answer in its rulings on prisoner detention, it's nice to see that other
branch of government assuming a slightly less supine position--almost as if the
Constitution established it as a counterweight against the executive and the
judiciary.

Apparently the Bush administration, which could not manage to find the veto pen when the huge expansion of the already bankrupt Medicare system was in front of them, is announcing itself ready to veto anything:

that would restrict the President's authority to
protect Americans effectively from terrorist attack and bring terrorists to
justice, the President's senior advisers would recommend that he veto the bill.

Marty Lederman has much more analysis here.  His observation:

Heaven forbid Congress should have the nerve to actually exercise its
authorities under Article I, section 8, clauses 10, 11 and 14 of the
Constitution"”which empower Congress to define and punish Offences against the
Law of Nations, to make Rules concerning Captures on Land and Water, and to make
Rules for the Government and Regulation of the land and naval Forces. For to do
so will invariably hamper the Executive's ability to keep the Nation safe from
terror.

Isn't this just a tad too much arrogation of power, even for this President?

In Raich, the Supreme Court determined that marijuana grown, harvested, and consumed at the same house in California constituted interstate commerce and therefore was subject to federal rather than state regulation (via the Consitution's commerce clause).

However, apparently cigarettes purchased over the Internet from an Indian Nation within the boundaries of NY state and consumed in Washington state are not interstate commerce and are therefore subject to Washington State sales tax:

On Thursday, a federal judge ordered tribal Internet
cigarette vendor Scott Maybee to turn over his list of Washington
customers who purchased cigarettes through his Web site,
SmartSmoker.com between November 7, 2004 and April 1, 2005, writes the Buffalo News.
The Washington Department of Revenue is sending letters to those
appearing on Maybee's list asking for full payment of uncollected taxes
from their purchases.

Actually, it is probably not sales tax involved but "use tax", the cutesy way most states get around limitations on taxing interstate commerce.  Basically, they invented a thing called use tax that applies only on goods that you use in state and on which no sale tax was paid to any state.  While the use tax legal evasion is common to most states,  I have written before about other such cute evasions Washington State uses to collect taxes where they are not supposed to.

Readers of this blog will know that every time I have read condemnations of Janice Rogers Brown with quotes from her that are "out of the mainstream", I have become more enamored of her. 

JRB is opposed by the left and the Democratic Party because she is a strong supporter of property rights against government intervention.  Reason has an interesting article noting that while Democrats in Congress were quick to attack her small government libertarianism, Republicans pointedly did not in turn embrace it.  First, a reminder of why Brown makes everyone nervous:

Property and contract are, for her, the lifeblood of liberty; and when, in
the late 1930s, the country and the Supreme Court began treating property
rights cavalierly, they set loose an inexorably advancing leviathan state.
To Brown, moreover, it makes no sense to treat speech and privacy rights as
sacrosanct but property rights as trivial, when the Founders viewed all
those rights as of a piece.

More striking than Brown's philosophy is her tendency to express it in
language reminiscent of Barry Goldwater in his intemperate prime. In a 2000
speech to the Federalist Society in Chicago, she said, "We no longer find
slavery abhorrent. We embrace it. We demand more. Big government is not just
the opiate of the masses. It is the opiate: the drug of choice for
multinational corporations and single moms; for regulated industries and
rugged Midwestern farmers and militant senior citizens." She spoke of the
Supreme Court's belated acquiescence to the New Deal as "the Revolution of
1937," resulting today in "a debased, debauched culture." There is much more
in this vein, and not just in her speeches. In a 2002 dissent involving a
San Francisco housing regulation, she declared that private property "is now
entirely extinct in San Francisco," replaced by "a neo-feudal regime."

And the Republic response?

Otherwise, Republicans ran away from Brown's ideas as fast as their legs
could carry them. Specter listed, approvingly, government regulations she
has upheld. Sessions: "She has ruled on hundreds of cases affirming
government regulations, for heaven's sake." Sen. Jim DeMint, (R-S.C.):
"While she would likely describe herself as a person who believes in small
government and limited regulations ... Justice Brown has voted consistently
to uphold economic, environmental, consumer, and labor regulations." Lott:
"She has consistently voted to uphold regulations in every walk of life."
You would almost think she was Walter Mondale.

It is depressing to me to think the Republican party is returning to its 1970's big-government conservative roots.

This is another in a series of my lamentations on this country not having a strong and credible opposition party.  Previously, I have derided the Democrats for not coming up with a viable foreign policy alternative, but they appear just as week on domestic policy issues.

I have made my disdain for Kelo fairly clear.  It has taken a while, but someone other than a major beneficiary of eminent domain (e.g. the NY Times, which got their new HQ building courtesy of an eminent domain condemnation) has tried to defend it.  The defender is Nancy Pelosi, and boy has it become clear why we don't have a stronger opposition party in this country.  The Democrats have chosen this mental midget as their Congressional leader?  Check out this interview, via NRO:

 

"Q: Later this
morning, many Members of the House Republican leadership, along with
John Cornyn from the Senate, are holding a news conference on eminent
domain, the decision of the Supreme Court the other day, and they are
going to offer legislation that would restrict it, prohibiting federal
funds from being used in such a manner.

Two questions: What was your reaction to the Supreme Court decision
on this topic, and what do you think about legislation to, in the minds
of opponents at least, remedy or changing it?

Ms. Pelosi: As a Member of Congress, and actually all of us and
anyone who holds a public office in our country, we take an oath of
office to uphold the Constitution of the United States. Very central to
that in that Constitution is the separation of powers. I believe that
whatever you think about a particular decision of the Supreme Court,
and I certainly have been in disagreement with them on many occasions,
it is not appropriate for the Congress to say we're going to withhold
funds for the Court because we don't like a decision.

Q: Not on the Court, withhold funds from the eminent domain purchases
that wouldn't involve public use. I apologize if I framed the question
poorly. It wouldn't be withholding federal funds from the Court, but
withhold Federal funds from eminent domain type purchases that are not
just involved in public good.

Ms. Pelosi: Again, without focusing on the actual decision, just to
say that when you withhold funds from enforcing a decision of the
Supreme Court you are, in fact, nullifying a decision of the Supreme
Court. This is in violation of the respect for separation of church --
powers in our Constitution, church and state as well. Sometimes the
Republicans have a problem with that as well. But forgive my
digression.

So the answer to your question is, I would oppose any legislation
that says we would withhold funds for the enforcement of any decision
of the Supreme Court no matter how opposed I am to that decision. And
I'm not saying that I'm opposed to this decision, I'm just saying in
general.

Q: Could you talk about this decision? What you think of it?

Ms. Pelosi: It is a decision of the Supreme Court. If Congress wants
to change it, it will require legislation of a level of a
constitutional amendment. So this is almost as if God has spoken. It's an elementary discussion now. They have made the decision.

Q: Do you think it is appropriate for municipalities to be able to use eminent domain to take land for economic development?

Ms. Pelosi: The Supreme Court has decided, knowing the particulars
of this case, that that was appropriate, and so I would support that.

(emphasis added)

This is just crazy.  I guess as a Kelo-hater, I should be happy in this case that the opposition is so weak, but my god it is a depressing revelation for the future on other issues.

In a previous post, I expressed my frustration with the argument over blogs and campaign finance rules:

These past few weeks, we have been debating whether this media
exemption from speech restrictions should be extended to bloggers.  At
first, I was in favor.  Then I was torn.
Now, I am pissed.  The more I think of it, it is insane that we are
creating a 2-tiered system of first amendment rights at all, and I
really don't care any more who is in which tier....

I
have come to the conclusion that arguing over who gets the media
exemption is like arguing about whether a Native American in 1960's
Alabama should use the white or the colored-only bathroom:  It is an
obscene discussion and is missing the whole point, that the facilities
shouldn't be segregated in the first place.

Currently, in the wake of the recent Supreme Court decision ruling against a Constitutional journalistic privilege to withhold evidence from prosecutors.  Glenn Reynolds has a nice editorial in the USA Today echoing the point that we should not:

claims of privilege turn the press into a
privileged class. If ordinary people witness a crime, they have to talk
about it. If they participate in a crime "” say, by receiving classified
documents "” they have to say where they got them. Journalists want to
be treated differently, but the First Amendment doesn't create that
sort of privilege. Nor should we.

Many people who support these privileges say
that they would be limited to "real" journalists. But who decides when
a journalist is real? If the government decides, isn't that like
licensing the press, something the First Amendment was designed to
prevent? And if journalists decide, isn't that likely to lead to a
closed-shop, guild mentality at exactly the moment when citizen
journalism by non-professionals is taking off? All sorts of people are
reporting news via Web logs and the Internet. Shouldn't they be
entitled to the same privilege?

Press freedom is for everyone, not just professionals. James Madison wrote about "freedom in the use
of the press," making clear that the First Amendment is for everyone
who publishes, not just members of the professional-media guild.

Yes!  It is ridiculous to be creating two classes of citizen.  Why should Giraldo Rivera have different or even enhanced rights over, say, Martha Stewart, who went to jail for not being forthright with investigators?  This is a very disturbing trend in this country.  Already in the last week, the Supreme Court has ruled that developers, Walmarts, and Crate & Barrells have more and different property rights than homeowners, churches, and small retail establishments.

Before you read any further, look at the houses here.  Here is an example:

They look like normal, everyday Midwestern houses, right?  I mean, some are kind of small but several look pretty nice and all of them are in good shape with well-kept lawns, etc.

So what do these houses have in common?  They have all been condemned as "blighted" by Norwood, Ohio.  They have been seized from their owners by the city government and now, thanks to the Supreme Court's disastrous Kelo decision, they will be torn down.

OK, what's the real reason?  The real reason is that Norwood, Ohio wants a Crate & Barrel store where these houses are.  They think the Crate & Barrel is a better use of the land, and they are pretty sure that C&B will pay them more taxes than these homeowners, so they are taking people's homes and giving the land to the developer.  More here and here on this story, and Cato has a whole bunch of articles on abuse of the Constitution's takings clause here.  And you can find my Kelo articles here, here, and here.

Today, on the final day of their 2006 term, the Supreme Court ruled in the Olek vs. New London case:

Washington --  The Supreme Court on Thursday ruled that
local governments may seize people's advertising space -- even
against their will -- for alternate advertisers who promote economic development or higher taxes

It
was a decision fraught with huge implications for a country with many
areas, particularly the rapidly growing urban and suburban areas,
facing countervailing pressures of government budget deficits and free speech
rights.

The 5-4 ruling represented a defeat for some Connecticut
residents whose advertisements in the local paper against recent property tax hikes were rejected by the city council in favor of ads for several pro-taxation groups.

As a result, cities have wide power to replace advertising that might favor lower taxes or oppose certain community projects with messages more in the public interest.

Local officials, not federal judges, know best in
deciding whether speech will benefit the community,
justices said.

"The city has carefully formulated an economic
development that it believes will provide appreciable benefits to the
community, including -- but by no means limited to -- new jobs and
increased tax revenue," Justice John Paul Stevens wrote for the
majority.  "We established in Kelo that local governments have broad power to seize property when that seizure serves to maximize taxation, and certainly this applies equally well to unwanted advertising that might work against maximizing tax revenues."

He was joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

At
issue was the scope of the Fifth Amendment, which allows governments to
take private property through eminent domain if the property is for "public
use."  The majority observed that using advertising space in favor, rather than against, public policy certainly qualified as "public use".

Fred Olek and several other homeowners in a
working-class neighborhood in New London, Connecticut, filed suit after
city officials announced plans to remove their newspaper advertisements opposing the upcoming ballot initiative to raise property taxes.

New London officials countered
that the tax initiative served a public purpose of boosting
economic growth that outweighed the homeowners' speech rights, even
if the area wasn't located in North Korea or Cuba.

Justice Sandra Day O'Connor, who has
been a key swing vote on many cases before the court, issued a stinging
dissent. She argued that "This makes me so mad, I could, I could... aw, forget it.  I'm retiring this year to a Pacific island anyway, so y'all are free to screw up this country as much as you want".

Justice Scalia wrote a separate dissent, making the argument that "I have no problem with government limitations on speech per se, but given the fact that 3 readers of this paper lived out of state, such powers per Raich reside with Federal and not local authorities"

Local authorities were careful to point out that Olek was fully compensated at market rates for the removed advertising.  Olek shot back that he was in no way compensated for his loss of free speech rights or participation in the democratic process.  Justices in the majority were unpersuaded by Olek's argument, however, pointing out that in Kelo, the homeowners were in no way compensated for their emotional attachment to their homes nor for their loss of the right to dispose of their property as they wished, "so there".

Today, the Supreme Court ruled 5-4 in the Kelo Decision that local officials can seize nearly anyone's private property and hand it over to their favorite developer:

The Supreme Court on Thursday ruled that
local governments may seize people's homes and businesses -- even
against their will -- for private economic dvelopment.

It
was a decision fraught with huge implications for a country with many
areas, particularly the rapidly growing urban and suburban areas,
facing countervailing pressures of development and property ownership
rights.

The 5-4 ruling represented a defeat for some Connecticut
residents whose homes are slated for destruction to make room for an
office complex. They argued that cities have no right to take their
land except for projects with a clear public use, such as roads or
schools, or to revitalize blighted areas.

As a result, cities
have wide power to bulldoze residences for projects such as shopping
malls and hotel complexes to generate tax revenue.

This is a really, really bad decision.  Most of my thoughts on this subject are here.  The Economist, quoted in that post, framed the issue well:

Put simply, cities cannot take someone's house just because they think
they can make better use of it. Otherwise, argues Scott Bullock, Mrs
Kelo's lawyer, you end up destroying private property rights
altogether. For if the sole yardstick is economic benefit, any house
can be replaced at any time by a business or shop (because they usually
produce more tax revenues). Moreover, if city governments can seize
private property by claiming a public benefit which they themselves
determine, where do they stop? If they decide it is in the public
interest to encourage locally-owned shops, what would prevent them
compulsorily closing megastores, or vice versa? This is central
planning.

Sandra O'Connor echoed these thoughts in her dissent, and made the obvious point: This is not about condemning land for the public good.  This, in effect, will be about condemning land for the benefit of those with the most political pull:

Justice Sandra Day O'Connor, who has been a key swing vote on many
cases before the court, issued a stinging dissent. She argued that
cities should not have unlimited authority to uproot families, even if
they are provided compensation, simply to accommodate wealthy
developers....

"Any
property may now be taken for the benefit of another private party, but
the fallout from this decision will not be random," O'Connor wrote.
"The beneficiaries are likely to be those citizens with
disproportionate influence and power in the political process,
including large corporations and development firms."

While Bush, sometimes rightly, gets bashed by the Left for trying to create a corporate state, it is in fact the left side of the Supreme Court that has struck the strongest blow now in that direction.  This decision in a stroke gives local authorities nearly unlimited ability to engage in Soviet-style planning of their local economy.

Find much more at SCOTUSblog here and here.

Update: Professor Bainbridge feels my pain.  Glenn Reynolds has updates here and here.  Reason's Hit and Run opines:

the majority opinion says, quoting an earlier decision, the "Court
long ago rejected any literal requirement that condemned property be
put into use for the ... public." Which is to say, they've rejected the
notion that "public use" means anything more stringent than:
"legislators want to do this." The Court's view is that any "public
purpose" will do, and such purposes apparently include increased tax
revenue. The straightforward implication is that any taking of
a private residence to hand it over to a business, or just from a poor
person to a wealthy person, will be a taking in service of a public
purpose: As a general rule, the rich pay more taxes than the poor, and
businesses pay more taxes than households.

Arguing with Signposts has a huge roundup here.  And I would love to all get behind this idea from Right Thinking:

Here's a thought: How about the GOP-controlled Congress puts the flag
desecration amendment on the back burner and gets to work on an
amendment limiting the power of the state to seize private property
from citizens?

The Left seems split on the decision.  Half are thrilled by the subjugation of property rights to government whim, while the other half are appalled that "public use" has come to be defined as maximizing property values.  It is a strange place we are in when we have lefties like Kos actively supporting a decision that allows government to take land from citizens so long as a wealthier resident replaces a poorer resident on the land, or so long as a commercial enterprise replaces a non-commercial one.

UPDATE:  Strata-Sphere has a roundup of some of the wacky things that local governments are doing with their newly-confirmed Kelo powers.

Yesterday I wrote that this Supreme Court confused me - I couldn't find a consistent thread in their federalism-related rulings.  Orin Kerr at Volokh has an explanation that makes more sense to me than any other.  He explains where each justice is coming from, and concludes:

The mathematics of federalism on today's Supreme Court, then, is that the four
Justices who do not favor judicial enforcement of federalism constraints only
need one additional vote to form a majority. Conversely, for the Court to rule
in favor of a federalism limitation, common ground must exist that ties together
the differing viewpoints of all five of the right-of-center Justices. The odds
are that the former will happen more often than the latter, which is why
victories for federalism principles have tended to be rare and on relatively
narrow (that is, symbolic)
issues

The Mises Blog informs me that this notion of "affecting" interstate commerce being sufficient to justify federal intervention originated in 1942 with Wickard v. Filburn.  Apparently the majority was accepting Wickard, though Thomas's dissent that I quoted in my earlier post sure points out how Wickard pretty much demolishes the commerce clause.