Mike Lotus Speaking to the Indianapolis Federalist Society Lawyers Chapter about America 3.0 on August 14, 2014
Posted by Lexington Green on 1st August 2014 (All posts by Lexington Green)
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Posted by Lexington Green on 1st August 2014 (All posts by Lexington Green)
Adrift without a map, we are, in the sea of current events. Especially after this last week, which brought us a ground war in Gaza and the shoot-down of a passenger airliner over Ukraine; both situations a little out of the depth of the past experience of Chicago community organizer, even one who spent his grade school years in Indonesia. Quite a large number of the blogs and commenters that I follow have speculated over the last couple of months – at least since last year – and have predicted disaster. They know not the day nor the hour, but they have read the various augurs according to their inclinations, suspicions and particular expertise, and gloomily speculate on the odds of various events occurring. There is something bad coming, the air is thick and heavy with signs and portents, never mind the cheery cast that the current administration and its public affairs division attempts to put on it. It’s like a makeup artist, plying the art on a six-months-dead corpse; it’s just not working.
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Yesterday here in Wisconsin, a (Jimmy Carter appointed) federal judge here in Dane County struck down the constitutional amendment that did not allow gay marriage. Immediately the clerks offices here in Madison opened up for extended office hours and began the ceremonies. Other counties did not follow suit, waiting for clarification.
The clarification is for the legal beagles to figure out. Some say you can start the gay weddings now, some say not. Of course the Dane County clerk doesn’t really care and off we go.
Glad they had extended office hours when conceal carry was decriminalized. Oh.
Me? Well, gay marriage is something that I never really cared that much about. Personally, I have no clue why the state is even involved in marriage, but that doesn’t seem to be the point. The gay marriage issue seems to me to be about the money. Of course, outside of being married, you can leave your assets to anyone you choose, assign powers of attorney and health care to anyone you choose, etc. etc. So to me, it is just about getting on someone’s insurance? Outside of that, I don’t see why so much time and energy was wasted on the gay marriage deal. In general, gays weren’t persecuted, like most Muslim countries where they are beheaded or stoned or whatever. So it is about insurance = money. Is that really it? Is it all about money?
That might be a bit cynical. But that’s me.
The constitutional amendment banning gay marriage passed 60% to 40%. That is pretty overwhelming. Now a judge overturns it. So much for the power of the people. But people need to be careful here. Don’t think that in the future, something else may be overturned. Anyone that can afford a good attorney can play this game.
It seems that the end game is in sight for gay marriage and honestly, I am somewhat happy. I am very tired of seeing gay pride marches, parades, and all the rest. All of this should now end, no?
I don’t care if anyone is gay. Just do your deal and live your life like the rest of the non gay people. I don’t go around parading my sexuality for everyone to see. It all seems so childish.
Cross posted at LITGM.
Posted by David McFadden on 4th June 2014 (All posts by David McFadden)
The word that liberals are assigned to use when writing about what the Supreme Court did to the Voting Rights Act of 1965 last term in Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), is “gut.” The Supreme Court “gutted” the Voting Rights Act, countless editorials, blogs, and articles say, while urgently pressing Congress to repair the damage. It’s not such a bad metaphor, actually, as gutting can mean removing the parts of a dead fish that are unwanted.
In the case of the Voting Rights Act, what the Court removed was Section 4(b) of the Act, an anachronistic test for the application of an extraordinarily intrusive (and theoretically temporary) provision, Section 5. Critics of Shelby County v. Holder obscure what those two sections actually say and do. If a state or political subdivision is covered by Section 5, it must obtain a declaration from the U.S. District Court for the District of Columbia or the attorney general of the United States that any change in a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” does not abridge voting rights. Without that declaration, no one “shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure.” Despite its text, this provision has been interpreted to mean that any change in a covered jurisdiction’s election law has to get preclearance from the Justice Department or the U.S. District Court for the District of Columbia—including laws that draw electoral districts, which are not a “procedure with respect to voting” and do not deny anyone the right to vote for failure to comply with them. (A voter can’t comply—or not comply—with an ordinance that says councilman shall be elected at large.)
Section 5 was supposed to be a temporary, emergency provision expiring five years after the Voting Rights Act was adopted in 1965. It applied to states and political subdivisions that met two criteria set out in Section 4(b). The first was that the attorney general determined that on November 1, 1964, the jurisdiction had a “test or device” requiring a voter to prove his education, character, or morals. The second was that less than 50% of voting age citizens in the jurisdiction were registered on November 1, 1964 or less than 50% of such persons voted in the 1964 presidential election. At the time, this coverage formula was a good measure of whether blacks were being kept from voting. Southern states had been very resourceful in finding ways to do that without violating earlier civil rights laws.
Early on, these provisions were found to be within Congress’s constitutional powers. The Fifteenth Amendment says that the right of citizens to vote “shall not be abridged by the United States or by any State on account of race. . . .” Section 2 of the Fifteenth Amendment gives Congress the power to enforce the amendment “by appropriate legislation.” In 1966, the Supreme Court held that Section 5 of the Voting Rights Act, although “an uncommon exercise of congressional power,” was appropriate under the “unique circumstances” of the time, namely, pervasive defiance of voting rights that previous congressional remedies had been unable to stop. South Carolina v. Katzenbach, 383 U.S. 301, 309-10, 335 (1966). The Court found that Section 4(b)’s coverage formula “was relevant to the problem of voting discrimination” and was “rational in practice and theory.”
It did not remain rational in practice or in theory. Section 5, the eternal temporary provision, was renewed in 1970, 1975, 1982, and finally was renewed once more in 2006—until 2032! Although Congress repeatedly renewed Section 5, it never updated the coverage formula in the sense of basing it on recent conditions alone. In the first two renewals, Congress overlaid upon Section 4(b) the same tests with different years. So in 1970 jurisdictions that had a literacy test in November 1968 or less than 50% registration and turnout in the 1968 presidential election became subject to preclearance, in addition to jurisdictions already covered. In 1975, jurisdictions that had a literacy test in November 1972 and less than 50% registration or turnout in the 1972 presidential election also became subject to preclearance, in addition to jurisdictions already covered. The coverage formula was not changed when Section 5 was renewed in 1982 and 2006. All of the tests, including those based upon events long past, remained in effect.
The only way a jurisdiction entrapped by one of the tests could get out was to prove to the satisfaction of the D.C. District Court that no test or device had been used in the jurisdiction for ten years, that it had not committed any other voting rights violation, and that it had made an effort to eliminate intimidation and harassment of voters.
This “bail out” provision allowed the Supreme Court to avoid deciding whether the preclearance requirement was still appropriate in 2009. That happened after a Texas utility district filed suit in the D.C. District Court seeking a declaration that it could bail out or, in the alternative, that Section 5′s preclearance requirement was unconstitutional. On appeal, the Supreme Court held in Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009), that the utility district was eligible to bail out and, as a result, avoided deciding whether Section 5 or Section 4(b) was constitutional. But the Court had plenty to say about it nonetheless. Writing for the Court, Chief Justice Roberts cast doubt on the constitutionality of the preclearance requirement. The chief justice discussed the dramatic increases in registration and election of minorities (for which the Act deserves credit), the substantial federalism costs imposed by preclearance, and the antiquity of the coverage formula. Justice Thomas, concurring in part and dissenting in part, contended that the Court should have reached the constitutional questions and held Section 5 unconstitutional. No one wrote separately to defend Section 5. Justice Thomas wrote, “The Court quite properly alerts Congress that § 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional.”
Congress ignored the warning and left Section 5′s preclearance requirement and Section 4(b)’s coverage formula unchanged. Rep. Robert Scott (Democrat of Virginia) even issued an obtuse press release boasting that the decision validated Congress’s work in establishing the continuing need for Section 5.
The issue returned to the Court four years later in a case brought by a county that was ineligible to bail out. In Shelby County v. Holder, the Court could not avoid the constitutional issues, or not all of them.
The Court wasn’t ready to declare Section 5 preclearance unconstitutional (although Justice Thomas was), but it did declare Section 4(b)’s coverage formula for preclearance unconstitutional. Again Chief Justice Roberts wrote the majority opinion. He said that preclearance is extraordinarily intrusive into the reserved powers of the states under the Tenth Amendment. It reverses the burden of proof, requiring some of the states to come, hat in hand, before the civil rights division of the Justice Department or a distant court to prove that a new law does not violate the Act and to beg for permission to implement it. Only some states are subject to this indignity despite the equal sovereignty of the states.
The purpose of the Fifteenth Amendment (often ignored in discussions of the Voting Rights Act) is to prevent denial of suffrage based on race. “To serve that purpose,” Chief Justice Roberts wrote, “Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in the light of current conditions.” Apparently that’s the standard of review the Court used. If so, the Court side-stepped a question the lower courts debated and Northwest Austin acknowledged. The Court’s precedent had suggested that the test for whether a law was within Congress’s power under section 2 of the Fifteenth Amendment was either that the law was congruent and proportional to the constitutional violation or just that it was a rational means to enforce the Fifteenth Amendment. Foregoing the choice between the two, the Court seems to have created a special test for laws that divide the states, i.e., they must “makes sense in the light of current conditions.”
Section 4(b) failed that test miserably. The House Report acknowledged progress made in minority registration, turnout, and office holding; yet Congress reauthorized the same requirements and coverage formula as if nothing had changed. Congress compiled a voluminous record full of stories about “second-generation barriers,” that is, electoral districts that allegedly dilute minority voting strength. Those so-called barriers did not bar anyone from voting and aren’t even prohibited by the terms of the Voting Rights Act. More to the point, such barriers as there are today did not inform the design of the test. The coverage formula based upon literacy tests no longer in force and turnout in the 1964-72 presidential elections was reenacted as if out of habit.
While that’s hardly sensible policy, how it adds up to a violation of some constitutional provision or other is not exactly clear. After completing his critique of the coverage formula and relating the unheeded warning in Northwest Austin, the chief justice simply announces that Congress’s “failure to act leaves us today with no choice but to declare §4(b) unconstitutional.” We’re not told if by some measure Congress exceeded its power under the Fifteenth Amendment or the Fourteenth Amendment or if Section 4(b) violated the Tenth Amendment, which Shelby County also argued. In this respect, the opinion is as bad as the one the Court rendered the next day in United States v. Windsor, 133 S. Ct. 2675 (2013), in which Justice Kennedy follows his social and sentimental objections to the Defense of Marriage Act with “legalistic argle-bargle” abruptly leading to the conclusion that the Defense of Marriage Act violated the Fifth Amendment’s due process clause, the equal protection component of the Fifth Amendment’s due process clause or of the Fourteenth Amendment, or something like that.
The declaration of the unconstitutionality of Section 4(b) is followed by dicta that have been misinterpreted as an “invitation” to Congress to come up with a better formula. Actually, the Court said, “Congress may draft another formula based on current conditions. Such a formula is a prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.’” Shelby County, 133 S. Ct. at 2631 (quoting Presley v. Etowah County Comm’n, 502 U.S. 491, 500-501 (1992)). A new coverage formula is not a goal the Court is setting for Congress; it’s a prerequisite to deciding whether Section 5’s preclearance requirement remains constitutional even with a sensible test for its application. If Congress were to establish that prerequisite by devising a new coverage formula and then the Court were to strike down the whole preclearance edifice, the howls of the Left that the Court had played whack-a-mole with the civil rights community would be entertaining indeed.
The president has shown uncharacteristic respect for the separation of powers by refraining from enacting a new coverage formula by his own fiat. And true to form, the 113th Congress, one of the best Congresses ever (using the correct metric of fewest bills passed), hasn’t enacted anything either.
There have been proposals, though, ranging from the ridiculous to the not terrible. On the ridiculous end of the spectrum, Michael Lind in Salon and Dylan Matthews in the Washington Post‘s Wonkblog imagined that the Court would have no choice but to uphold blanket coverage of all fifty states. On the contrary, the Court’s choice would be easy: imposition of the extraordinary burdens of Section 5 on each state, regardless of whether pervasive violations of the Fifteenth Amendment or none at all occurred in the state, would not survive any constitutional standard that the Court would apply.
More seriously, Sen. Patrick Leahy (Democrat of Vermont) and Rep. Jim Sensenbrenner (Republican of Wisconsin) introduced in January a bill (S. 1945 and H.R. 3899) prescribing a coverage formula based on violations of the Voting Rights Act and low turnout in the last fifteen years. Violations resulting from a requirement that voters present a photo ID would not count. That’s a welcome concession, but Republicans should insist that the bill clarify that statutory voter ID requirements are not a violation of the Voting Rights Act at all. To its discredit, the bill also imposes on the states meddlesome reporting requirements regarding polling places, changes in election laws, registration, and election results.
In March the bill was referred to the House Subcommittee on the Constitution and Civil Justice. It was referred to the Senate Judiciary Committee in January. Neither committee has held hearings. That’s just as well. It is past time to allow Section 5 to expire, but Congress has never had the courage to let that happen. Inaction on the coverage formula is the next best thing, at least until Republicans control more than the House of Representatives. What we need now is a do-nothing Congress.
This would appear to be the new theme song for the Fed-Gov’s Bureau of Land Management – that bane of ranchers like Cliven Bundy – as well as a whole lot of other ranchers, farmers, loggers, small landowners, and owners of tiny bits of property on the edge of or in areas of spectacular natural beauty, west of the Mississippi and between the Mexican and Canadian borders.
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-Will Israel Be the Next Energy Superpower? – A balanced, thoughtful look at recent developments from Arthur Herman. There is cause for optimism.
-Wildlife photographer pleads guilty to violating Endangered Species Act – The gist of the story is that some guy was photographing “endangered” birds from less than 500 feet away, which apparently is a violation of the Endangered Species Act, and was turned in to the feds by zealous environmentalists who saw him do this. Of course he copped a plea. If he had taken his chances in court he could have ended up in jail for years. As it is he may still do time and will end up with a felony conviction and probably a big fine to make an example of him. The birds he supposedly harassed aren’t even rare, merely locally rare in Florida, and he didn’t harm any of them. At most he should have been fined a few hundred bucks and warned to stay farther away from the wildlife. But nowadays everything is a federal crime with draconian penalties, and you can’t fart in a wetland without violating some rule. And the enforcement agencies have to justify their budgets. He should have left the birds alone, but his punishment is cruelly excessive. Some of the comments in response to the article are remarkably heartless. Not just the EPA but also the Fish and Wildlife Service and the Park Service deserve substantial defunding.
The “Affordable Care Act,” aka Obamacare, seems to be full of surprises. For example, it seems that many Americans are being forced onto Obamacare exchanges where most plans provide only local medical coverage…a bit of a problem for people who travel, change jobs, or have vacation homes. To take another example, this Washington Post article says Obamacare may make it impossible for people living in American territories (such as Guam and the Northern Mariana Islands) to purchase health insurance policies at all. “Unexpected!” results of Obamacare seem to be almost daily news.
These surprises especially strike those ordinary Americans who are the targeted users of Obamacare, of course…but also, they seem to strike many of the creators of the program. Some members of the government classes, of course, simply lied about Obamacare’s effects…first and foremost this is notoriously true of Obama himself. But I also feel sure that there are many among those CongressCreatures who voted for this 2000-page bill who have been genuinely surprised by some or many of its outcomes. It is simply not possible to clearly predict in advance the effects of a piece of legislation so all-encompassing, so verbose, and so quickly pushed through.
Rose Wilder Lane, still at that point a Communist, visited the Soviet Union in 1919. After she explained the benefits of central planning to a disbelieving village leader, he shook his head sadly and said:
It is too big – he said – too big. At the top, it is too small. It will not work. In Moscow there are only men, and man is not God. A man has only a man’s head, and one hundred heads together do not make one great big head. No. Only God can know Russia.
Indeed, one hundred or one thousand or ten thousand heads together in the form of CongressCreatures or health care bureaucrats did not suffice to make one great big head that would fully grasp the implications of Obamacare. Nancy Pelosi was sort of right when she said “But we have to pass the bill so that you can find out what is in it”…she should have carried it further and said: “We have to pass the bill so that we can find out what’s in it.”
It is precisely this difficulty in predicting the outcomes of sweeping change, on a society-wide scale, that makes such sweeping and radical change something to be usually avoided..and when indeed necessary, to be conducted with caution and careful forethought. British statesman and political philosopher Edmund Burke made this point eloquently and famously. Nothing could be more anti-Burkean than Obama’s statement on October 30, 2008: “We are five days away from fundamentally transforming the United States of America.”
After coming to realize that the defects of Communism are inherent and not just due to problems with one particular implementation of it, Rose Wilder Lane also became convinced that:
Centralized economic control over multitudes of human beings must therefore be continuous and perhaps superhumanly flexible, and it must be autocratic. It must be government by a swift flow of edicts issued in haste to catch up with events receding into the past before they can be reported, arranged, analyzed and considered, and it will be compelled to use compulsion. In the effort to succeed, it must become such minute and rigorous control of details of individual life as no people will accept without compulsion. It cannot be subject to the intermittent checks, reversals, and removals of men in power which majorities cause in republics.
Note how this comment ties in with the Obama administration’s tendency to adjust the healthcare insurance program via quick and arbitrary administrative rulemaking, rather than via the legislative process. RWL would say that this kind of behavior is inherent in a program intended to establish government control over vast swaths of society.
She also notes that:
Nobody can plan the actions of even a thousand living persons, separately. Anyone attempting to control millions must divide them into classes, and make a plan applying to these classes. But these classes do not exist. No two persons are alike. No two are in the same circumstances; no two have the same abilities; beyond getting the barest necessities of life, no two have the same desires.Therefore the men who try to enforce, in real life, a planned economy that is their theory, come up against the infinite diversity of human beings. The most slavish multitude of men that was ever called “demos” or “labor” or “capital” or”agriculture” or “the masses,” actually are men; they are not sheep. Naturally, by their human nature, they escape in all directions from regulations applying to non-existent classes. It is necessary to increase the number of men who supervise their actions. Then (for officials are human, too) it is necessary that more men supervise the supervisors.
…and discusses the temptations of power to a leader who believes in expansionist government:
If he wants to do good (as he sees good) to the citizens, he needs more power. If he wants to be re-elected, he needs more power to use for his party. If he wants money, he needs more power; he can always sell it to some eager buyer. If he wants publicity, flattery, more self-importance, he needs more power, to satisfy clamoring reformers who can give him flattering publicity.
Posted by Lexington Green on 20th December 2013 (All posts by Lexington Green)
[The Rule of Law] means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government …. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts … [and], lastly,… that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.
Restated, Dicey says the Rule of Law consists of: (1) disallowing arbitrary power, restricting the use of power to what is permitted by law, (2) treating all person to the exact same law, in the same courts, without regard to their status, and (3) treating the officers of the government to exactly the same law as everybody else.
Nota bene: Each of these elements is crumbling before our eyes in America in 2013. In particular, Mr. Obama’s arbitrary use of executive power, unmoored from legal foundation, is literally frightening.
The Rule of Law is a standard we must demand and enforce as citizens. To the extent it has decayed, it must be restored. Any reform platform must include provisions to restore each of these features.
It is alarming when a serving military man publicly ignores the law. It is doubly so when he is not only a Lieutenant Colonel but also a professor who has taught at the military academy at West Point. LTC Robert Bateman’s recent Esquire blog misstates the law and misunderstands the role guns play in US society.
LTC Bateman asserts “As of 1903, the “militia” has been known as the National Guard” and links to an analysis of the act. The reality is quite different if you actually read the first paragraph of the act.
That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes—the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia.
In other words, the heart of his argument that the militia is not the whole of the people rests at the very beginning on a lie. In the case of an ignorant youth, this might be excused but not a high ranking military professional who has had the responsibility of teaching our future military leaders. It is inexcusable. Given further legislative developments since 1903 regarding discrimination based on sex, I doubt that even this definition of militia is supportable at present because it is too narrow but even this outdated definition is an ocean compared to the teacup that LTC Bateman wants to leave for 2nd amendment rights.
Since it’s established that LTC Bateman doesn’t necessarily respect the truth, it’s important to check on the rest of his assertions. One of them is that “Weapons are there for the ‘well regulated militia.’ Their use, therefore, must be in defense of the nation.” The police are not in the national guard, does their use of arms defend the nation? Are they a well regulated militia? Is he calling for the disarmament of the police? Perhaps he does, perhaps he doesn’t. By the terms of his argument, they shouldn’t be armed but perhaps he did not want to completely embarrass himself. The alternative is that he is arguing that the police are a militia. This militarization of the police is an entirely different kind of problem, no less disconnected from the American tradition or problematic for our liberties but different than the question of their armament.
LTC Bateman repeatedly says in this article “hunting is valid”. Then again he also says that weapons “must be in defense of the nation”. So why is hunting valid? I’m guessing because it polls well enough that gun controllers would earn permanent minority status if they were to be perceived as anti-hunting and he personally knows a few hunters who he’d like to continue to see socially.
A little investigation yields the possibility that the whole thing is part of a joke of a presidential run which includes such gems as the forced deportation of gun owners (unclear whether they can come back afterwards) and bringing back the draft. So one viable theory might be that he’s just kidding here.
I’m inclined to a different one, that we should feel sorry for LTC Bateman and his recent stroke that has apparently affected his mental capacity. Our ire should be saved for Esquire magazine and its editorial staff that has encouraged this man to nationally embarrass himself.
cross posted: Flit-TM
Bruce Webster writes about the parallels (and differences) between the design of legislation and the design of software systems.
(via a thread at Bookworm)
My profession is much in the news at the moment, so I thought I would pass along such insights as I have from my career, mostly from a multibillion-dollar debacle which I and several thousand others worked on for a few years around the turn of the millennium. I will not name my employer, not that anyone with a passing familiarity with me doesn’t know who it is; nor will I name the project, although knowing the employer and the general timeframe will give you that pretty quickly too.
We spent, I believe, $4 billion, and garnered a total of 4,000 customers over the lifetime of the product, which was not aimed at large organizations which would be likely to spend millions on it, but at consumers and small businesses which would spend thousands on it, and that amount spread out over a period of several years. From an economic transparency standpoint, therefore, it would have been better to select 4,000 people at random around the country and cut them checks for $1 million apiece. Also much faster. But that wouldn’t have kept me and lots of others employed, learning whatever it is we learn from a colossally failed project.
So, a few things to keep in mind about a certain spectacularly problematic and topical IT effort:
This thing would be a case study for the next couple of decades if it weren’t going to be overshadowed by physically calamitous events, which I frankly expect. In another decade, Gen-X managers and Millennial line workers, inspired by Boomers, all of them much better at things than they are now, “will be in a position to guide the nation, and perhaps the world, across several painful thresholds,” to quote a relevant passage from Strauss and Howe. But getting there is going to be a matter of selection pressures, with plenty of casualties. The day will come when we long for a challenge as easy as reorganizing health care with a deadline a few weeks away.
Posted in Big Government, Book Notes, Commiserations, Current Events, Customer Service, Health Care, Internet, Law, Medicine, Personal Narrative, Politics, Predictions, Systems Analysis, Tech, USA | 6 Comments »
In spite of the widely popular beer festival going on in Exposition park …
My daughter wanted to stop at Schilo’s Delicatessen for lunch – and this was the first time we have ever been downtown where it wasn’t packed to the point of an hour wait for a table. So we got to Alamo Plaza after the participants had pretty well scattered. But there were a lot of them still, sprinkled here and there, among the tourists, AF Basic graduates, and beer enthusiasts.
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Posted by Lexington Green on 9th September 2013 (All posts by Lexington Green)
Happily for this country, we received our jurisprudence from England in its highest vigour, and in its most cultivated state. The leading statesmen in the colonies, and especially the members of the bar, had the sagacity to perceive, and the courage and patriotism to assert, the indefeasible title of their countrymen to all the securities and blessings of the English common law. They had inherited its free and liberal spirit, and in almost every colony there were individual lawyers, equal in character, learning, and eloquence, to their brethren in the courts of the parent state. They were lawyers of the old school, who actually led on the American revolution. They were the daring patriots and intelligent statesmen who roused their countrymen to the duty of insisting on the exclusive right of self-taxation, and to all the other liberties and privileges of English subjects, resting on the basis of the common law, and the sacred stipulations of chartered contracts. It was the lawyers that guided the deliberations of the congress of 1774, and penned its admirable addresses, and stimulated their associates to unite with them in pouring forth their grievances and their exhausted patience, and their determined purpose, in the monumental act of independence.
An Address Delivered Before the Law Association of the City of New York, October 1, 1836, by The Hon. James Kent.
We had this to say about James Kent in America 3.0:
We ended up with a common American legal culture for reasons beyond the Constitution. In the early years of the country there was popular animosity toward anything English and some resistance to relying on the Common Law and English precedent. American lawyers and judges rejected this notion and created an American style of law that was continuous with England’s, though not the same. They managed to keep this system roughly consistent across the entire country by relying on legal treatises that were considered authoritative. The most important example was James Kent’s Commentaries on American Law, which went through many editions.
Chancellor Kent was one of the most important lawyers and legal thinkers in the history of the Anglosphere. America is an enormous free trade area where business can be transacted efficiently over 3.7 million square miles among 310 million, or more, Americans. We have a common legal culture which makes this possible in significant part due to the work of Chancellor Kent.
The lawyers never get any credit, though Ronald Coase appreciated what they contribute. The quote above shows that James Kent not only made a quiet, almost invisible contribution to founding our nation. He also understood and appreciated what the lawyers of the Founding generation gave us, precisely because they were thinking as lawyers and made a legal case for our independence, and preserved the legal culture we had inherited from Britain, the common law — though of course with American characteristics.
Reason: Some people would say that it’s just paper transactions, that all the efforts of the lawyers are a waste, a mess, a scourge on society. You have a slightly different view.
Coase: Lawyers do a lot of harm, but they also do an immense amount of good. And the good is that they are expert negotiators, and they know what is necessary in the law to enable deals to be made. Their activities are designed, in fact, to lower transaction costs. Some of them, we know, raise transaction costs. But by and large, they are engaged in lowering transaction costs. People talk about the information age and how large numbers of people are engaged in information activities. Well, gathering information is one of the difficulties when you’re in a market. What is being produced, what are the prices of what is being offered? You’ve got to learn all these things. You can learn them now a good deal more easily than you could have done before; you don’t have to search. If you’ve ever tried to buy anything, you know how much time goes into finding out what’s available and all the alternatives.
Three years ago, I reviewed the important and well-written memoirs of Sebastian Haffner, who grew up in Germany between the wars. I think the state of affairs in America today makes it appropriate to re-post some excerpts from the review and from the book.
In 1933, when Hitler became Chancellor, Haffner was working as a junior lawyer (refendar) in the Prussian High Court, the Kammergericht. He was comforted by the continuity of the legal process:
The newspapers might report that the constitution was in ruins. Here every paragraph of the Civil Code was still valid and was mulled over and analyzed as carefully as ever…The Chancellor could daily utter the vilest abuse against the Jews; there was nonetheless still a Jewish Kammergerichtsrat (high court judge) and member of our senate who continued to give his astute and careful judgments, and these judgments had the full weight of the law and could set the entire apparatus of the state in motion for their enforcement–even if the highest office-holder of that state daily called their author a ‘parasite’, a ‘subhuman’ or a ‘plague’.
In spring of that year, Haffner attended Berlin’s Carnival–an event at which one would find a girlfriend or boyfriend for the night and exchange phone numbers in the morning…”By then you usually know whether it is the start of something that you would like to take further, or whether you have just earned yourself a hangover.” He had a hard time getting in the Carnival mood, however:
All at once I had a strange, dizzy feeling. I felt as though I was inescapably imprisoned with all these young people in a giant ship that was rolling and pitching. We were dancing on its lowest, narrowest deck, while on the bridge it was being decided to flood that deck and drown every last one of us.
Though it was not really relevant to current events, my father’s immense experience of the period from 1870 to 1933 was deployed to calm me down and sober me up. He treated my heated emotions with gentle irony…It took me quite a while to realize that my youthful excitability was right and my father’s wealth of experience was wrong; that there are things that cannot be dealt with by calm skepticism.
With President Obama inserting himself once again into the Trayvon Martin killing, now ruled self defense by a Florida jury, President Obama now is calling for us to answer the question “how we can prevent future tragedies like this”. The President thinks that “[w]e should ask ourselves if we’re doing all we can to stem the tide of gun violence that claims too many lives across this country on a daily basis.”
I suggest that what is needed is Trayvon’s law. This unwritten, heretofore unconceived legislation would have changed that encounter so that Trayvon Martin would be alive today.
So what would Trayvon’s law look like? I haven’t a clue because I think that what led Trayvon Martin into that encounter with George Zimmerman has a thing to do with guns or gun violence. But no doubt others will have legislation to suggest. It would be decent and just to consider Trayvon Martin and aim changes to the law so that he would be alive today had that legislation been passed a decade ago. But what would it look like?
In all the brouhaha over Snowden’s betrayal of his NSA obligations and his country I have yet to see a serious analysis outlining the full problem with this information. The nature of the information, how and why it becomes classified. Non-classified information gathered without a warrant but not accessible without a warrant is an interesting category. Why such information should be classified at all is an under-covered question though most people understand intuitively that there’s something fundamentally wrong with the government’s approach.
In general this information has been accessible to lawyers in legal cases, ie not classified but has had short accessibility lifespans. Traditionally it has been fairly quickly thrown away because it is too expensive for private companies to maintain that volume of metadata for very long. Test cases are now underway where lawyers who have been turned down by the phone companies as their copies have been overwritten are now seeking the NSA’s copy in an effort to defend their clients from federal criminal prosecution. Criminal law discovery rules are rushing headlong towards a collision with the national security state.
It is not at all clear that such information should be classified at all and that the first serious crime in the Snowden case might have been committed by as yet unnamed bureaucrats who improperly classified this information to begin with, possibly leading to unjust criminal convictions and obstructing justice for years now. Overclassification is a major issue of long standing in US governance. It creates legal jeopardy where none should exist and impedes government oversight crucial to the functioning of the US system of government.
At trial (assuming there ever is one) the government bears the burden of proving that the information was properly classified in the first place. But long before this affair ever sees the inside of a court room, we need to hash out whether this classification was proper or should see the light of day.
Just a quick question for those who certainly know more about this subject than me. Are our fourth and fifth amendment rights suspended during a situation like in Boston when they are doing a door to door search? Personally, I would not have let the cops into my house unless they had a warrant. Nor do I answer questions from cops without representation present.
Posted by Michael Kennedy on 9th March 2013 (All posts by Michael Kennedy)
In his campaign, president Obama famously promised to “close Guantanamo Bay prison ” early in his administration. It didn’t happen. Then Eric Holder determined that he would try Khalid Sheik Mohammed in federal court in New York City. That didn’t happen.
The death blow was struck by New York’s mayor, Michael Bloomberg, who had previously pledged his support to Holder. On January 27th, Bloomberg distanced himself from the Justice Department, saying that a trial in New York would be too expensive. For months, companies with downtown real-estate interests had been lobbying to stop the trial. Raymond Kelly, the commissioner of the New York Police Department, had fortified their arguments by providing upwardly spiralling estimates of the costs, which the federal government had promised to cover. In a matter of weeks, in what an Obama Administration official called a “classic City Hall jam job,” the police department’s projection of the trial costs went from a few hundred million dollars to a billion dollars.
Eventually, the conservative movement relaxed and concluded that the idea of granting terrorists American style civil rights had lost. Not so fast.
In another of those Obama fast moves, the concept of civilian trials just won the contest. As Mark Twain said, the lie is half way around the world, while the truth is still getting its boots on.
In the blink of an eye, the second Obama term has turned the clock back to the pre-9/11 days, when al-Qaeda was a law-enforcement problem, not a national-security challenge.
Of course, it was a Friday afternoon. That’s when Obama does his best work.
1) The Drug Enforcement Administration is attempting to seize a $1.5 million building owned as a retirement-investment property by a dentist and an engineer. Grounds are a $37 sale of pot ..to an undercover agent..by one of the building’s tenants, a medical-marijuana dispensary.
As the judge in the case notes, the Obama administration (in 2009) sent a memo instructing federal prosecutors to not target medical-marijuana patients..before deciding to crack down and sending threatening letters to landlords. He even wondered aloud if President Obama would change his mind about marijuana again, after the building had already been seized.
This, in a country whose current President pretty clearly was himself a marijuana user, not to mention former President Bill Clinton, who “didn’t inhale.” Neither Obama nor Clinton are in any danger of having their property seized, however.
2) When financial questions arose regarding the Mountain Pure Water Company, Washington did not send a few staffers to inspect documents. Instead, last spring, some 50 armed Treasury agents breached the company’s headquarters in Little Rock, Ark. They seized 82 boxes of records, herded employees into the cafeteria, snatched their cell phones, and..according to reports..refused to let them consult attorneys.
“We’re the federal government,” Mountain Pure’s comptroller, Jerry Miller, says one pistol-packing fed told him. “We can do what we want, when we want, and there’s nothing you can do about it.”
3) In Alexandria, Virginia, a 10-year-old was suspended and arrested for bringing a toy gun to school
4) In Tennessee, an Ohio couple was pulled over by pair of black police SUVs. “They were very serious,” said the woman who was driving. “They had the body armor and the guns.”
On the back of the couple’s car was a Buckeye leaf decal, similar to the one Ohio State players have on their helmets.
“What are you doing with a marijuana sticker on your bumper?” asked one of the cops, who had apparently never heard of the First Amendment.
5) In 2005, an Iowa couple purchased a small lot. When they began to lay gravel on the land, which is located in a residential neighborhood, they were hit by an order from the Environmental Protection Administration informing them that the property had been designated a wetland under the Clean Water Act. They were ordered to stop grading their property and were told that they would face fines of up to $75,000 per day if they did not return the parcel to its original state. When the Sacketts attempted to contest the order, the agency denied their request for a hearing.
Last March, the Supreme Court overruled the EPA and stated that the Sacketts are entitled to appeal the EPA order, rejecting the agency’s claims to the contrary.
“The EPA used bullying and threats of terrifying fines, and has made our life hell for the past five years,” said Mr. Sackett. See my post A Defensive Victory Against Administrative Tyranny.
6) Bob Wallace and Marjorie Ottenberg, California residents in their 80s, started a business to make water purification devices for backpackers. Their enterprise has been crippled by the Drug Enforcement Administration and state officials, on grounds that iodine crystals–a key ingredient in their product–can also be used for methamphetamine production.
Someone for reasons unknown last week leaked the classified Department of Justice “White Paper” on targeting with drone attacks the numerically tiny number of US citizens overseas who have joined al Qaida or affiliated groups. The leak set off an outburst of public debate, much of it ill-informed by people who did not bother to read the white paper and some of it intentionally misleading by those who had and, frankly, know better.
Generally, I’m a harsh critic of the Holder DOJ, but their white paper, though not without some minor flaws of reasoning and one point of policy, is – unlike some of the critics – solidly in compliance with the laws of war, broader questions of international law and the major SCOTUS decisions on war powers. It was a political error to classify this document in the first place rather than properly share it with the relevant Congressional committees conducting oversight
Here it is and I encourage you to read it for yourself:
Much of this white paper debate has been over a legitimate policy dispute (“Is it a good idea if we use drones to kill AQ terrorists, including American ones?”) intentionally being mischaracterized by opponents of the policy (or the war) as a legal or constitutional question. It is not. The law is fairly settled as is the question if the conflict with AQ rises to a state of armed conflict, which SCOTUS dealt with as recently as Hamdi and for which there are ample precedents from previous wars and prior SCOTUS decisions to build upon. At best, framed as a legal dispute, the opponents of the drone policy would have a very long uphill climb with the Supreme Court. So why do it?
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In the year of the Centennial of the United States, the last of the West left relatively unscathed by the forces of law and order was that part of present-day Oklahoma set aside as homeland for the native Indian tribes. This was a 70,000 square mile territory in which anything went … and usually did. Among what was called the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Creek and Seminole) there were native law enforcement officers, who upheld the law among their own. But they had no jurisdiction over interlopers of any color, or tribal members who committed crimes in company with or against an outsider, and the Territory was Liberty Hall and a refuge for every kind of horse thief, cattle rustler, bank and train robber, murderer and scalawag roaming the post-Civil War west. Just about every notorious career criminal at large for the remainder of the 19th century took refuge in the Oklahoma Territory at one time or another, including the James and Dalton gangs.
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We are swiftly coming up on another “mugged by reality moment” regards firearms similar to the one that was created with the Clinton era gun magazine ban.
Few remember today that the “next big thing” in civilian pistol market in the early 1990′s was how many bullets a pistol magazine could handle. Post Clinton magazine ban, the civilian shooter market wanted the _smallest_ semi-automatic pistol that could hold 10-rounds. And the gun manufacturers responded to the market demand with a host of pistol makes and models that effectively replaced the “.38 Special” as the little hide out gun of choice. Now police across America are under greater threat, from much wider base of stolen, small, concealable, semi-autos in criminal hands, than they ever were prior to the Clinton magazine ban.
We are again in much the same situation with the Obama gun control executive orders.
See this July 28, 2012 Forbes piece titled “The End of Gun Control?” on the arrival of metal material vat 3-D printers that are capable of making functional AR-15 receivers. Now consider the implications of the much more widely installed base of plastic material vat 3-D printers for making _gun magazines_. In a few months we are going to see lots of designs for plastic gun magazines, of many sorts, with maybe a spring and a cheap stamped metal lip to fit available firearms. People will soon be selling spring and lip kits for 3-D printed plastic magazines at gun shows and “off the books” person to person gun trading networks. Hell, manufacturers will be redesigning guns to more effectively use 3-D printed magazines before the year is out.
In the end we will have a much larger base of high capacity magazines in this country, because the price of them is about to drop an order of magnitude, all thanks to Obama’s E.O. Regulations creating a market opportunity for a disruptive technology.
All of this is easily foreseeable and the people about to cause this turn of events just don’t care. This is not about the safety of ordinary people. The answer to the violent mentally unstable is to identify them by their pattern of behavior and involuntarily drug them to non-violence.
The fact that gun control is on the table as “The Solution” is because the people in favor of it, these “2nd Prohibitionists”, would rather have the power to oppress ordinary people than the authority to medicate the violent mentally unstable. They get more ego boo from oppressing ordinary people — just like the original Alcohol Prohibitionists — with the added bonus of leaving the violent mentally ill on the streets to give them the chance to go there again and again.
When a law bans exchanges wanted by everyone directly involved a number of things happen:
1) The exchanges continue;
2) Prices of the banned items rise and wars to control turf begin;
3) New criminals are created, including many people who are ordinary good people (like colored margarine seekers);
4) New enforcement agencies and staff are created;
5) New jails are built and new jailers are trained;
6) Laws, lawyers and lawsuits proliferate;
7) A new branch of law and its practitioners prosper and support further extension and complexification of regulations;
8) A portion of the entire apparatus of enforcement and punishment is progressively corrupted;
9) New agencies and staff are created to discover, eliminate or suppress the corruption;
10) Many begin to support ever more drastic suppression and punishment;
11) A profitable subliminal partnership emerges unifying the interests of violators and enforcers as the profits from the illegal trade are negotiated and distributed among them;
12) The business engages all of the following: bad people buying and selling, good people buying and selling, police, judges, academics, enforcement trainers and suppliers, prison builders and suppliers, staff to support all of this, journalists to cover it, media organizations to sell the coverage;
13) Completely uninvolved people are caught in crossfires, including taxpayers;
14) The costs of controlling the new flourishing evil continue to grow seemingly without limit;
15) The vast network of beneficiaries of the law applaud and lobby for its continuation, vilifying all opposition;
16) Everyone gets more and more discouraged and inclined to hate all humanity. This list is probably too short.
However all of these bad things may be balanced by the fact that creative people are engaged in producing media based on the things that happen because of the prohibition, and by watching and reading we all learn delightful new things about how the world works. (channeling Voltaire).
It is not enough to simply ban exchanges that have consequences we don’t like. The costs of doing it should be compared with the costs of not doing it. Those costs usually dwarf the costs that would arise from unhindered transactions.
Over the last couple of years, numerous writers–on blogs and in the media–have been expressing concern about the state of the legal job market and asserting that there is an overproduction of lawyers. Comes now Lawrence Mitchell, who is Dean at Case Western’s law school, with an article titled Law School is Worth the Money. He denounces the “hysteria” of the critics and argues, basically, that those who are interested in going to law school should be encouraged to go ahead and do so.
I’m not very impressed with Dean Mitchell’s reasoning, and there are quite a few other people–many of them lawyers and law professors–who are similarly unimpressed.
One thing that particularly struck me in Mitchell’s article, and not in a good way, was this:
What else will these thousands of students who have been discouraged from attending law school do? Where will they find a more fulfilling career? They’re not all going to be doctors or investment bankers, nor should they.