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    Random Links

    Posted by Jonathan on 1st March 2014 (All posts by )

    -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.

    -Possibly my best blog post ever.

    Posted in Big Government, Civil Liberties, Energy & Power Generation, Environment, Humor, Israel, Law, Law Enforcement | 10 Comments »

    Obamacare, the Wisdom of Rose Wilder Lane, and Why Nancy Pelosi Was Sort of Right

    Posted by David Foster on 7th January 2014 (All posts by )

    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 in Civil Society, Health Care, Law, Leftism, Obama, Political Philosophy, USA | 11 Comments »

    History Friday: The Rule of Law

    Posted by Lexington Green on 20th December 2013 (All posts by )

    [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.

    Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (1885)

    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.

    Posted in History, Law, Quotations | 17 Comments »

    LTC Robert Bateman ignores the law

    Posted by TM Lutas on 9th December 2013 (All posts by )

    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.

    Another assertion is that “No 7-11 in history has ever been held up with” a black powder musket. That might be true though black powder firearms robbery is not exactly unheard of, though rare.

    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

    Posted in Law, Law Enforcement, Politics, RKBA | 35 Comments »

    Interesting Post

    Posted by David Foster on 5th December 2013 (All posts by )

    Bruce Webster writes about the parallels (and differences) between the design of legislation and the design of software systems.

    (via a thread at Bookworm)

    Posted in Health Care, Law, Political Philosophy, Politics, Systems Analysis, Tech | 3 Comments »

    On Being an IT Project Manager

    Posted by Jay Manifold on 23rd October 2013 (All posts by )

    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:

    • Large numbers of reasonably bright and very hard-working people, who have up until that point been creating significant wealth, can unite in a complete flop. Past performance is no guarantee, and all that. Because even reasonably bright, hard-working people can suffer from failures of imagination, tendencies to wishful thinking, and cultural failure in general.
    • Morale has got to be rock-bottom for anybody with any degree of self-awareness working on this thing. My relevant moment was around the end of ’99 when it was announced, with great fanfare, at a large (200+ in attendance) meeting to review progress and next steps, that we had gotten a single order through the system. It had taken various people eight hours to finish the order. As of that date, we were projecting that we would be doing 1,600 orders a day in eight months. To get an idea of our actual peak rate, note the abovementioned cumulative figure of 4,000 over the multi-year lifespan of the project.
    • Root cause analysis is all very well, but there are probably at least three or four fundamental problems, any one of which would have crippled the effort. As you may infer from the previous bullet point, back-office systems was one of them on that project. Others which were equally problematic included exposure to the software upgrade schedule of an irreplaceable vendor who was not at all beholden to us to produce anything by any particular date, and physical access to certain of our competitors’ facilities, which they were legally required to allow us into exactly two (2) days per year. See also “cultural failure,” above; most of us were residing and working in what is one of the most livable cities in the world in many ways, but Silicon Valley it ain’t.
    • Not to overlook the obvious, there is a significant danger that the well-advertised difficulties of the website in question will become a smokescreen for the fundamental contradictions of the legislation itself. The overall program cannot work unless large numbers of people act in a counter-incentived (possibly not a word, but I’m groping for something analogous to “counterintuitive”) fashion which might politely be termed “selfless” – and do so in the near future. What we seem likely to hear, however, is that it would have worked if only certain IT architectural decisions had been better made.

    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 »

    Why Downtown Was Strangely Safe Today …

    Posted by Sgt. Mom on 19th October 2013 (All posts by )

    In spite of the widely popular beer festival going on in Exposition park …

    (Story here)

    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 in Anglosphere, Conservatism, Human Behavior, Law, Law Enforcement, Society, Tea Party, Uncategorized | 9 Comments »

    James Kent on the American Founding

    Posted by Lexington Green on 9th September 2013 (All posts by )

    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.

    Posted in America 3.0, Anglosphere, Arts & Letters, Biography, Book Notes, Law, Politics, Uncategorized, USA | 7 Comments »

    Coase on Lawyers, Transaction Costs and Society

    Posted by Jonathan on 6th September 2013 (All posts by )

    From a 1997 interview with the late Ronald Coase in Reason:

    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.

    Worthwhile reading.

    Posted in Economics & Finance, Law, Quotations | 3 Comments »

    When Law Yields to Absolute Power

    Posted by David Foster on 18th July 2013 (All posts by )

    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.

    Read the rest of this entry »

    Posted in Big Government, Biography, Book Notes, Civil Liberties, Civil Society, Germany, History, Law, USA | 16 Comments »

    What would Trayvon’s law look like?

    Posted by TM Lutas on 14th July 2013 (All posts by )

    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?

    Posted in Law | 47 Comments »

    Which is the bigger treason?

    Posted by TM Lutas on 24th June 2013 (All posts by )

    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.

    Posted in Law, National Security | 30 Comments »

    Rights

    Posted by Dan from Madison on 21st April 2013 (All posts by )

    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 in Law, Law Enforcement, Terrorism | 21 Comments »

    Progress in closing Guantanamo

    Posted by Michael Kennedy on 9th March 2013 (All posts by )

    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.

    Read the rest of this entry »

    Posted in Crime and Punishment, Law, Leftism, Middle East, Military Affairs, National Security, Obama, Politics, Terrorism | 13 Comments »

    The Normalization of Abusive Government

    Posted by David Foster on 23rd February 2013 (All posts by )

    Consider:

    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.

    Read the rest of this entry »

    Posted in Civil Liberties, Civil Society, Crime and Punishment, Law, Law Enforcement, Political Philosophy, USA | 28 Comments »

    The White Paper and its Critics

    Posted by Zenpundit on 11th February 2013 (All posts by )

    Someone for reasons unknown last week leaked the classified Department of JusticeWhite 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:

    Lawfulness of Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qa’ida

    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?
    Read the rest of this entry »

    Posted in Academia, Afghanistan/Pakistan, History, International Affairs, Law, Military Affairs, National Security, Obama, Politics, Terrorism, USA, War and Peace | 11 Comments »

    History Friday: Bass Reeves and the Last of the Lawless West

    Posted by Sgt. Mom on 25th January 2013 (All posts by )

    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.
    Read the rest of this entry »

    Posted in Diversions, Film, History, Law, Media | 5 Comments »

    The 2nd Prohibitionists vs Reality – When Gun Control Politics Meets The Free Market

    Posted by Trent Telenko on 18th January 2013 (All posts by )

    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.

    Posted in Americas, Civil Liberties, Entrepreneurship, Human Behavior, Law, Law Enforcement, Politics, Uncategorized, USA | 10 Comments »

    Prohibition: 16 Results

    Posted by leifsmith on 24th December 2012 (All posts by )

    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.

    Posted in Civil Liberties, Crime and Punishment, Law, Law Enforcement, Media, Political Philosophy, Society, Tradeoffs | 25 Comments »

    Dubious Investment Advice and the Conveyor-Belt Approach to Life

    Posted by David Foster on 9th December 2012 (All posts by )

    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.

    Read the rest of this entry »

    Posted in Academia, Education, Law | 12 Comments »

    Just Another Mickey Mouse Argument on Copyright Law

    Posted by Shannon Love on 30th November 2012 (All posts by )

     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 in Economics & Finance, Law | 17 Comments »

    Labor Regulations Take Aim at the Economy and Free Speech

    Posted by David McFadden on 21st October 2012 (All posts by )

    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.

    Posted in Big Government, Business, Civil Liberties, Economics & Finance, Law, Obama, Unions | 1 Comment »

    Grown Ups

    Posted by Ginny on 16th September 2012 (All posts by )

    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.
    Read the rest of this entry »

    Posted in Law, Political Philosophy, Society, Terrorism | 3 Comments »

    Of the Lawyers, By the Lawyers, and For the Lawyers

    Posted by David Foster on 10th September 2012 (All posts by )

    TODAY’S DEMOCRATIC PARTY

    Link via Stuart Schneiderman

    See also my related post A Plague of Sticky Governors

    Posted in Civil Society, Law, Political Philosophy, Politics, USA | Comments Off

    “Guilt Without Fault”

    Posted by Jonathan on 26th August 2012 (All posts by )

    The Illustrated Guide to Criminal Law

    (Via Jim Bennett)

    Posted in Law, Political Philosophy, Society | 3 Comments »