Bruce Webster writes about the parallels (and differences) between the design of legislation and the design of software systems.
(via a thread at Bookworm)
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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.
Read the rest of this entry »
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.
Virginia Postrel makes some good arguments against the current mess of copyright law, but both she and most others neglect what I believe to be a primary driver for major corporations seeking ever broader copyright protection: franchises.
Until we address the need of corporations to protect franchise in which they are still creating new works, we won’t make any progress on copyright law.
In mass entertainment, a franchise is a connected series or group of works sharing common characters, plots etc produced over relatively long span of time. Franchise characters or settings become recognizable brands in their own right. Recurrent characters like Sherlock Holmes became franchises long before the term was coined. In the modern era, Star Wars, Star Trek and various Disney properties are examples of major franchises. Star Wars and Star Trek have produced a vast number of secondary works from novels to games, not to mention the toys, T-shirts and, according to some, religions. Disney has been in the franchise business since the end of WWII. Many credit Walt Disney for creating the artistic franchise business model in the first place.
Traditional copyright law predated the evolution of the franchise and instead assumed that copyright protected discrete works e.g. a single short story, novel, song etc made by a single artist. Read the rest of this entry »
Posted by David McFadden on 21st October 2012 (All posts by David McFadden)
Alongside evidence of weak job growth, there are also signs of recovery. What may be recovering, however, is the recession. New orders for manufactured goods declined 13.2% in August, the steepest decline since January 2009. Real average hourly earnings declined 0.6% in August and 0.3% more in September. And the number of persons working only part-time because full-time work was unavailable increased from 7.9 million in August to 8.5 million in September.
Overall, the state of the economy is somewhere between retrogressive and woeful. Detailing the policies and initiatives of the Obama administration that have kept the economy down as it struggled to recover is an immense task, but it needs to be done.
A good place to start is the regulatory burden that has given businesses reasons to think twice about hiring more people. In his last State of the Union Address, Obama claimed, “I’ve approved fewer regulations in the last three years of my presidency than my Republican predecessor did in his.” The Heritage Foundation pointed out that Obama was counting all regulations no matter their size or cost as the same. Many Bush-era regulations eased compliance costs. The Heritage Foundation calculated that in its first three years the Obama administration adopted 106 major regulations that increased costs on private-sector activity compared to 28 such regulations in the first three years of the Bush administration. The regulations of the first three years of the Obama administration imposed $46 billion in annual costs while those of the Bush administration imposed $8.1 billion in annual costs.
Proposed regulations of the Obama administration also have to be added to the toll. Businessmen—as well as farmers—have also had to be concerned about mischievous regulations that, so far, they have been able to fend off. For example, a pair of proposed labor regulations combine Obama’s antipathy for employers with his antipathy for the Constitution. One regulation coerces speech, and the other restrains speech.
The regulation that would coerce speech was adopted by the National Labor Relations Board in August 2011. Observing that union organizing efforts were badly in need of some publicity, the NLRB adopted a regulation requiring employers to post a notice with a rather slanted list of rights. The notice states that employees have a right to join a union, negotiate with an employer through the union, bargain collectively, strike, picket, and lastly choose to do none of those things. The notice does not inform employees of their right to decertify a union, refuse to pay union dues in a right-to-work state, and refuse to pay dues greater than what is required for representational purposes. The rule makes failure to hang up the notice an unfair labor practice.
The NLRB’s statutory authority for this command is dubious. Board member Brian Hayes wrote a withering dissent that opened with Justice Scalia’s observation that “agencies may play the sorcerer’s apprentice but not the sorcerer himself” and concluded that the regulation is “both unauthorized and arbitrary and capricious.”
Lawsuits were filed against the rule in federal courts in South Carolina and the District of Columbia. The lawsuits argued that the National Labor Relations Act did not authorize the National Labor Relations Board to require a poster and that the regulation compelled employers to present a pro-union message on their property and was therefore unconstitutional, like the New Hampshire law that had required “Live Free or Die” to be on every license plate. During the litigation, the NLRB repeatedly postponed implementing the rule.
The courts split on whether the NLRB exceeded its authority. The South Carolina district court said there are many federal statutes that call for the posting of notices, and the National Labor Relations Act is not one of them. Nonetheless, the D.C. district court held that the rule was somewhere within the NLRB’s rulemaking powers. Regarding the constitutional issue, the D.C. district court said the rule does not compel employers to say anything. The notice is the government’s speech, the government’s message.
Both cases are on appeal. The D.C. district court enjoined enforcement of the rule during the appeals.
The U.S. Department of Labor Unions proposed the regulation that would restrain free speech. That regulation would constrict an exemption from a reporting requirement under the Labor-Management Reporting and Disclosure Act of 1959. The Act requires employers to report in detail any agreements with or payments to a consultant who undertakes activities to persuade employees on whether or not to organize and bargain collectively. The Act has an exemption providing that reports are not required on account of advice to an employer. For years the Labor Department had interpreted the exemption to cover activities that involved both advice to the employer and persuasion of employees. In June 2011 the Department proposed a regulation, known as “the persuader rule,” changing its interpretation of the exemption so that it covers only services related exclusively to advice. If any part of the service is to persuade employees, directly or indirectly, then the exemption is lost.
The Department received hostile comments on the proposal not only from the Chamber of Commerce, as you might expect, but also from the American Bar Association. The Chamber and the Bar Association said the persuader rule’s new subjective test made the advice exemption meaningless. The Bar Association said that the persuader rule would thwart the will of Congress, conflict with the ABA Model Rule on confidentiality, and undermine both the confidential lawyer-client relationship and employers’ right to counsel.
Faced with that opposition, the Labor Department has taken no further action on the persuader rule. The Department may be waiting until after the election. The rule could be part of the unknown, unspoken agenda for a second term.
If the persuader rule ever is adopted, it too should be challenged on constitutional grounds. The Supreme Court has not yet directly addressed whether attorney advice is protected speech and, if so, what level of scrutiny should be given to regulation of it. Renee Knake argues in a recent law review article that attorney advice is protected speech and restraints on attorney advice should be given strict scrutiny. That is, they are unconstitutional unless they are necessary to further a compelling governmental interest and are narrowly tailored to do so using the least restrictive means.
These two latent regulations of the NLRB and the Department of Labor are not “regulations on Wall Street,” as Obama likes to refer to all of his regulations. Wall Street firms, not being labor intensive, would be among the enterprises least burdened by these rules.
The rules are far from the administration’s worst insult to the First Amendment (that prize goes to the suppression of the free exercise of religion by the Department of Health and Human Services), but they are part of a pattern of not allowing the First Amendment, the Recess Clause, the Presentment Clause, the Commerce Clause, or anything else get in the way of the task of suppressing the economy.
With mischief like these regulations in mind, Mitt Romney said at the second debate, “I talk to small business across the country. They say, ‘We feel like we’re under attack from our own government.’” Denying that Obama is hostile to business, Democrats insist that his infamous taunt “You didn’t build that” has to be taken in context. I agree. The context is his presidency.
Our culture has developed restraints and rewards for maturity. Robinson’s letter to those on the Mayflower noted that as important as not “giving offense” was not taking it. We know the litigious mind – often the goal is less money than moral power. We hear the tattle tale sister, the battles over space and goods of pre-schoolers. We’ve sublimated the healthy desire for justice into our judicial system and have grown out of the petty battles of childhood. Maturity comes when we move responsibility into ourselves as often and much as possible. What others think or have or do isn’t important – the choices we make to build our lives is.
The great gift of our tradition is individualized responsibility. (Look at how Winthrop or Bradford accepted material hierarchies but consistently saw souls as equal; a community bound by the ligaments of love was likely to have unevenly proportioned parts, but the toe was no less a part of the whole than the heart.) Individualized responsibility also comes from our belief in the universal spirit – influencing much else in our country’s history. A century or two passed and these beliefs were give a form more political than theological and defined as inalienable rights.
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Link via Stuart Schneiderman
See also my related post A Plague of Sticky Governors
A Justice Department official, testifying before Congress, repeatedly refused to promise that the Obama DOJ will never seek to criminalize speech against any religion. Report and video here. Via Pam Geller, who has plenty to say about this.
For decades now, some of American leading universities have been normalizing the idea that interference with free speech is OK, indeed is a positive good. This has been done on two levels: first, directly, via administrative restrictions and required indoctrination, second, indirectly, by allowing students and others to get away with interfering with the free speech of others, for example by theft of opposing newspapers and by outright violent intimidation. With this precedent, it was inevitable that attacks on free speech in the wider political sphere would come to be viewed as more acceptable.
I don’t think it is at all far-fetched that a second Obama Administration, coupled with a Dem-controlled Congress, would attempt to push through what would be in effect a thinly-disguised blasphemy law, using a variant of the “crying fire in a crowded theater” argument. Whether they would get away with it or not would depend on the mix of Supreme Court Justices on the Court at that time.
Posted by Lexington Green on 2nd July 2012 (All posts by Lexington Green)
Most of the commentary I am seeing on Chief Justice Roberts’ Obamacare decision falls into two categories: (1) why the opinion is doctrinally and substantively wrong, and (2) the various awful things which will or might happen as a result of it.
Point 1 may be correct. Mark Levin had a vehement and convincing analysis asserting that the opinion is legally defective. Point 2 may also be correct, the consequences of the opinion may be awful, sooner or later.
But neither of these points much matter. Both are backward-looking. Both, in effect, say, if only Roberts had done something different than he did.
It is a waste of time to worry about that. A Supreme Court opinion is pretty nearly immutable. John Roberts will likely be Chief Justice for decades to come. Bring down the curtain on that act in the drama. It is over.
The only question that matters right now is this: What political dangers and opportunities does this opinion create? How can we make use of this opinion? How can we minimize the political damage from this opinion? (I notice Mr. Obama got an uptick on Intrade as a result of it.)
A military commander has to take the terrain and weather as they are given. The set parameters within which he must operate. He cannot waste time bemoaning the mud, or the rain, or the height of the cliffs or the aridity of the desert.
A major Supreme Court opinion is similarly a “given.” It is like a sudden shift in the terrain. It is as if an earthquake had changed the course of a river. You now simply have to work with that new feature of the landscape, and whether it should have happened or whether it is a bad thing overall are both irrelevant.
My initial assessment is that the opinion provides a substantial amount of ammunition to people running against Mr. Obama, other Democrats, and Obamacare itself. I would like to see the many people smarter than myself focusing on this angle. We only have a few months. There is not a lot of time for theorizing. We should be thinking in strictly utilitarian terms: How can we use this ruling to win elections in November?
Leave everything else for the “long term,” for now.
I’m no lawyer – but here’s Instapundit’s take: “The Supreme Court has refused to save us from ourselves. The solution now must be political.” I guess it’s time we didn’t expect those dead white guys to do all the lifting – they must have been getting tired. Still, it was comforting to think they had our backs. And I’d like precedent to limit – well, strong.
Posted by David McFadden on 26th June 2012 (All posts by David McFadden)
Liberals who are pessimistic about the prospects in the Supreme Court this week for the Affordable (or is it Abominable?) Care Act, known as “ACA,” have been preparing the ground by publicizing surveys measuring the unpopularity of the Court. Liberals who are optimistic, such as former speaker Nancy Pelosi, predict that ACA will be upheld 6-3.
The 6-3 breakdown comes from the result in Gonzales v. Raich, 545 U.S. 1 (2005), in which the Supreme Court held that prohibiting the cultivation of marijuana for personal medicinal use was within Congress’s powers under the Interstate Commerce Clause. To the dismay of many conservatives, Justice Antonin Scalia concurred with the majority. His concurring opinion shows how to apply the Commerce Clause to something as far from interstate commerce as ACA’s individual mandate.
And the individual mandate is very far from interstate commerce. An individual is not engaging in interstate commerce merely by refraining from buying health insurance. He is not engaging in commerce. He is not engaging in anything. That puts the individual mandate beyond Congress’s commerce power but not necessarily beyond Congress’s powers.
The Supreme Court has said that Congress has the power to regulate the channels and instrumentalities of interstate commerce as well as activities that substantially affect interstate commerce. Justice Scalia said in his concurring opinion in Raich that the power to regulate activities that substantially affect interstate commerce does not come from the Commerce Clause alone but from the Commerce Clause plus the Necessary and Proper Clause. The Necessary and Proper Clause has extended the Commerce Clause pretty far. Scalia wrote that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”
As disturbingly vast as that power might be, the Supreme Court would have to extend it even further to reach non-economic local inactivity. That extension may or may not be “necessary” to make ACA effective, but is it “proper”? At oral argument Justice Scalia posed that question to Solicitor General Donald Verrilli:
Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the states, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?
The solicitor general (who didn’t do such a bad job overall) replied that the individual mandate does not invade the sphere of state government but, despite several follow-up questions, did not answer the question of whether the individual mandate improperly invades the sphere of individuals. Justice Kennedy pressed further, saying that “to tell the individual citizen that it must act . . . changes the relationship of the federal government to the individual in a very fundamental way.” General Verilli replied that the individual mandate is predicated on the individual’s unavoidable participation in the health care market.
That appeared to be enough for Justice Breyer, who in the course of rambling questions in search of a defense of the act, asked whether one enters the health care market simply by being born. Four justices seemed to find such a limitless premise for federal regulatory power troubling. They, along with Justice Thomas, may also find it improper.
Should that happen, leftists, with their newfound conviction that judicial review is anti-majoritarian, will switch into their outraged and indignant mode. How dare the Court strike down an act because it isn’t proper after Obama and the Congress decided that it was?
The answer will be that the Court is merely giving meaning to the outermost boundary of congressional power. What hangs in the balance this week is whether the powers of Congress are in theory limited but in practice infinite.