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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Westboro Baptists File Amicus Brief in Support of Prop 8

January 31st, 2013

I’m sure the supporters of Prop 8 are thrilled to have the Westboro Baptists in their corner. Why, look at the summary of their argument:

The government has responsibility to protect the health, safety and welfare of the people. Of all the harms that a society can face, none are worse than incurring the wrath of God.

And the Table of Authorities has over 20 citations to the Bible!, and a citation to Sinners in the Hands of an Angry God (I haven’t thought of that since high school)!

What exactly is there interest?

WBC began picketing over 20 years ago, warning that homosexuality was going to be the destruction of America.

The brief is authored by Margie Phelps, who argued Snyder v. Phelps before the Suprem Court. Interestingly, Cockle printed their brief.

H/T Paul S.

7th Circuit in Contraceptive Mandate Case: “use of the corporate form” not dispositive to resolving RFRA claim

January 31st, 2013

Building on their previous judgment holding that corporations can advance claims under RFRA, the same three-judge panel of the 7th Circuit (Flaum, Sykes, and Rovner) enjoined the contraceptive mandate as applied to another for-profit business that objects to the mandate on religious liberties grounds.

In Grote v. Sebelius, the panel reaffirmed its holding that the mere fact that a corporation is advancing a RFRA claim does not halt the claim.

In response the government advances the same arguments as it did in Korte.   To abbreviate, the government maintains that (1) a secular, for‐profit corporation cannot assert a claim under RFRA; (2) relatedly, the free‐exercise rights of the individual plaintiffs are not affected because their corporation is a separate legal entity; and (3) the mandate’s burden on their free‐exercise rights is too remote and attenuated to qualify as “substantial” under RFRA because the decision to use contraception benefits is made by third parties— individual employees, in consultation with their medical providers.  We addressed these arguments in our order in Korte, and nothing presented here requires us to reconsider that prior ruling. Here, as in Korte, the Grote Family’s use of the corporate form is not dispositive of the claim. See Korte, 2012 WL 6757353, at *3 (citing Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010)).  And the government’s minimalist characterization of the burden continues to obscure the substance of the religious‐liberty violation asserted here. Id.  The members of the Grote Family contend that their faith forbids them to facilitate access to contraception by paying for it, as the mandate requires them to do.

This tees up the issue more closely of whether corporations can advance religious liberty arguments.

Judge Rovner elaborated on her dissent on this point, stressing that the religious interests of the owners are not coterminous of the corporation qua person.

 As such, I cannot imagine that the company, as distinct from the Grotes, has any religious interests or rights to assert here.  To be sure, a secular corporation does have some types of First Amendment rights:  it has the right to engage in commercial speech in the promotion of its products, for example, see generally Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 100 S. Ct. 2343 (1980), and in pursuit of its interests as a corporate citizen, it has the right to articulate what government policies it supports or opposes and to contribute money to political campaigns in pursuit of its commercial agenda, see Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876 (2010).  Moreover, there do exist some corporate entities which are organized expressly to pursue religious ends, and I think it fair to assume that such entities may have cognizable religious liberties independent of the people who animate them, even if they are profit‐ seeking.  See, e.g., Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323, at *6‐*7 (D.D.C. Nov. 16, 2012) (for‐profit publisher of Christian texts, owned by not‐for‐profit religious foundation and related trusts which directed publisher’s profits to religious charity and educational work); see also Corp. of Presiding Bishop of Church of Jesus Christ of Latter‐day Saints v. Amos, 483 U.S. 327, 345 n.6, 107 S. Ct. 2862, 2873 (1987) (Brennan, J., concurring in the judgment) (“it is . . . conceivable that some for‐profit activities could have a religious character”). 1   Indeed, there is a regulatory exemption from the contraception mandate for religious employers.  45 C.F.R. § 147.130(a)(1)(iv)(B).  But it appears to be common ground among the parties that Grote Industries does not meet the criteria for such an employer.  So far as it appears, the mission of Grote Industries, like that of any other for‐profit, secular business, is to make money in the commercial sphere.  In short, the only religious freedoms at issue in this appeal are those of the Grotes, not the companies they own.  See Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012) (“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously‐motivated actions separate and apart from the intention and direction of their individual actors.  Religious exercise is, by its nature, one of those “purely personal” matters referenced in [First Natʹl Bank of Boston v. Bellotti, 435 U.S. 765, 778 n. 14, 98 S. Ct. 1407, 1416 n.14 (1978)] which is not the province of a general business corporation.”).

H/T Religion Clause

 

Will Robots Create New Jobs?

January 31st, 2013

The International Federation of Robotics says yes!

To buttress its claim that automation is not a job killer but instead a way for the United States to compete against increasingly advanced foreign competitors, the industry group reported findings on Tuesday that it said it would publish in February. The federation said the industry would directly and indirectly create from 1.9 million to 3.5 million jobs globally by 2020.

The federation held a news media event at which two chief executives of small American manufacturers described how they had been able to both increase employment and compete against foreign companies by relying heavily on automation and robots.

“Automation has allowed us to compete on a global basis. It has absolutely created jobs in southwest Michigan,” said Matt Tyler, chief executive of Vickers Engineering, an auto parts supplier. “Had it not been for automation, we would not have beat our Japanese competitor; we would not have beat our Chinese competitor; we would not have beat our Mexican competitor. It’s a fact.”

While I am generally skeptical of a trade group that releases numbers predicting that its own thing will be good, it makes sense as a matter of comparative advantage. In the United States, robots will take over jobs that are being outsourced, and the service industry surrounding those robots will yield more jobs here in the United States. The simple economics suggest this is right.

Similar dynamics apply to the legal market.

This book disagrees with the book Race Against the Machine, which I blogged about last year.

Constitutional Places: “60-story skyscraper” Atop Grand Central Station

January 31st, 2013

The Times has a great piece about the history of Grand Central State, the situs of the famous Penn Central v. New York. There is an interesting discussion about the decision not to build office space atop the building. This choice, ultimately, led to Penn Central.

In 1903, the Central invited the nation’s leading architects to submit designs for the new terminal. Samuel Huckel Jr. went for baroque, a turreted confection with Park Avenue slicing through it. McKim, Mead & White proposed a 60-story skyscraper — the world’s tallest — atop the terminal (a modified version was later incorporated into the firm’s design for the 26-story municipal building, completed in 1916), itself topped by a dramatic 300-foot jet of steam illuminated in red as a beacon for ships and an advertisement (if, even then, an anachronistic one) for the railroad.

Reed & Stem, a St. Paul firm, won the competition. The firm began with two big advantages. It had designed other stations for the New York Central. Moreover, like the Central itself, Reed & Stem could count on connections: Allen H. Stem was Wilgus’s brother-in-law. Yet in the highly charged world of real estate development in New York, another firm’s connections trumped Reed & Stem’s. After the selection was announced, Warren & Wetmore, who were architects of the New York Yacht Club and who boasted society connections, submitted an alternative design. It didn’t hurt that one of the firm’s principals, Whitney Warren, was William Vanderbilt’s cousin.

The Central’s chairman officiated at a shotgun marriage of the two firms, pronouncing them the Associated Architects of Grand Central Terminal. The partnership would be fraught with dissension, design changes and acrimony and would climax two decades later in a spectacular lawsuit and an appropriately monumental settlement.

To Wilgus’s dismay, the Warren & Wetmore version eliminated the revenue-generating office and hotel tower atop the terminal. It also scrapped proposed vehicular viaducts to remedy the obstruction of Fourth Avenue, now Park, created by the depot.

A 300 foot red jet of steam? That would’ve been something.

Here are the designs for adding a skyscraper to Grand Central Station in the 1960s. These, were of course, never built. To give you a sense of where Grand Central is, and how the later redesign would have fit into the city, this diagram is helpful:

Here are blueprints of the two proposed designs to build above Grand Central. The first design, Breur I, would have preserved the exterior and built a tower. “The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Terminal.”

The second design, Breur II, would have stripped the facade and built the tower. “The second, Breuer II Revised, called for tearing down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal’s facade, and constructing a 53-story office building.”

Prop1 Class 6 – The Bundle of Sticks

January 31st, 2013

Today we will address everyone’s favorite property metaphor–the Bundle of Sticks.

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The lecture notes are here, and the livechat is here.

Here is an article from 1970 discussing the case of State v. Shack.

 

Mr. Tedesco, the owner of the farm, said to a reporter who accompanied Shack and Tejeras, “I’ll smash you for this, I’m  going to get you for this. This is my property. You can’t come in here looking around.” Another farmer told the reporter, “Even President Nixon” would not be allowed in. Another farmer said that the farmers would resort to violence to repel those trying to help the workers, likening it to the violence that resulted from the civil rights movement. He said “This violence is going to snowball.” According to the Times, he said that “either Hitler or Stalin would have known how to deal with the migratory farm workers in the camp he maintains.” The TImes reports that the farmers were using the trespass laws to keep the migrant workers isolated, by not allowing them to travel from camp to camp–all wages and living conditions were kept secret. This was a “chilling” weapon to maintain tight control. On the camp, the only flush toilet “was a privy that was crawling with flies.” Seven men slept in one room, and the beds had no sheets or mattress covers. Shack was at the camp to investigate a report that a 19-year-old worker had suffered a cut on his hand while working, unable to receive wages. Tejeras went to camp to pick up 36-year-old migrant who face was slashed, had to be returned to hospital to have stitches removed. The workers made roughly $9 a week for work. A family of twelve slept in one small room with bed space for 8. The camps seldom had running water.

This appears to have been a test-case of sorts, seeing they brought a NY Times reporter with them.

shack-summary

And this is Richard Epstein.

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