Jan 10, 2013

Trump: Maher “made an absolute offer. I made an absolute acceptance.”

Bill Maher said he would give Donald Trump $5 million if Trump provided his birth certificate to prove he is not the “spawn of his mother having sex with an orangutan.” Trump obliged, and sent Maher a copy of his birth certificate. In this post, I wondered whether a valid contract was formed.

Well, it looks like The Donald may in fact sue Bill Maher if Maher does not give him $5 Million.

Perhaps in a preemptive move, Trump used the megaphone that is “Extra” to issue a warning to Maher. “He made an absolute offer. I made an absolute acceptance. I showed him documentation, and he owes me $5 million, which I’m going to give to charities,” Trump said. “Let’s see what happens, and if he doesn’t give me the money, we’ll probably sue him.”

Offer and acceptance = contract.

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Jan 10, 2013

Constitutional Faces: Edith Windsor

A great profile of the plaintiff from United States v. Windsor, courtesy of from Chris Geidner:

For the past three years, that story has played out in federal courthouse. But the real tale is one of how a lesbian in post-World War II America could find, live with and — at long last — marry the love of her life.

“I read a paperback when I first got to New York,” Windsor says, herself then a young woman moving to the city to start a new life after having ended a short-lived marriage to a man. “It was about a young woman, a schoolteacher, who had come to New York for her vacation, and she was looking in the mirror. She’s all dressed up, and is talking to herself and saying, ‘You’re in New York City where anything could happen,’ and then she says, ‘So, what could happen?’ ‘You could kiss a woman.'”

Windsor’s eyes widen: “And I jumped out of my chair and said, ‘Where!?'”

Where, for Windsor, turned out to be Portofino, a restaurant in Greenwich Village where Windsor was introduced to Thea Spyer in 1963.

“Somebody brought her over to the table and then it turned out that we were going to the same place after dinner,” Windsor says. “So, we did that, and then we went back to Thea’s apartment, and we were dancing, and we just kept dancing, until [I had a] hole in my stocking. And, I realized I had to get out of there, I had to get home.”

Of that night, which began with Windsor asking a friend to take her to “where the lesbians go,” Windsor says, “I suddenly knew the world from having that evening of meeting people. So, I went to a lot of parties. And, for two years, Thea and I would meet at these parties and always dance together and always have people annoyed with us because we had our coats on and everyone’s trying to leave — and we’re dancing. But that’s all. It took us a little over two years to begin to date, and then we dated seriously. And, finally, in 1967, we became engaged.”

Windsor and Spyer, there can be no question, fit their parts. Photos of them from those years capture a quintessential New York City couple: elite, stylish, “in.” But for the fact that they are two women, they would have been indistinguishable from any other society photos of the time.

And this quote is great:

 I trust the Constitution. Sometimes there’s a mistake, but mostly we move forward. I think we’re going to win just because I think justice will prevail. Is that crazy?”


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Jan 10, 2013

Governor Brown to Justice Kennedy: “And by God, let those judges give us our prisons back.”

Well not exactly, bu close. In Brown v. Plata, the Supreme Court, per Justice Kennedy, ordered California to reduce prison overcrowding to the tune of roughly forty-thousand prisoners. Shortly after the opinion dropped, Governor Brown indicated he would ask for an extension. Last year, California released a report suggesting that it would fall short of the Court’s order.

It seems that California will not be able to comply with these deadlines, as the Governor’s comments from a press conference suggest:

  • “The prison emergency is over in California.”
  • “California is a powerful state. We can run our own prisons. And by God, let those judges give us our prisons back. We’ll run them right.”
  • “We’ve got hundreds of lawyers wandering around the prisons looking for problems.”
  • “We’ve reduced over 43,000 (inmates). People act like nothing happened. Billions and billions have been spent. … The prison groups, they actually beat down the great state of California. We’ve shaped up; we’re standing at attention; we’re ready to go forward. I’ve taken their own expert and I’ve made him head of corrections. So what more do they want?”
  • “Some people say there are not enough dangerous felons on the street; we have another group that says, ‘Wait a minute, stop, we’ve got too many.’ I think we’ve hit the right balance… We have to bring down our prison spending, our correctional costs as we invest more money in our schools and our education.”
  • “If we give in to the extremes, we will either create a threat to public safety or spend billions of dollars more.”
  • “We don’t have a lot of money. We gotta pay down the wall of debt. We have uncertain economic times. We can’t pour more and more money down the rat hole of incarceration. We have to spend as much as we need but no more, and I think we’ve hit that point.”
  • “We’ve spent billions and billions of money that’s not going to child care, that’s not going to schools, that’s not going to higher ed. It’s going to gold plate, at this point, our prisons.

Your move judges. Here is their motion to vacate the population cap.

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Jan 10, 2013

Bouncing Platinum Coins Off The Wall

A few thoughts on the platinum coin meme that is going around.

First, where in the world is Jack Balkin? As best as I can remember, the first person to propose the platinum coin in 2011 was Jack (his post was borderline tongue-in-cheek, but hey, it got the point across). It is even more curious why Jack has been silent, as this idea seems to be getting a lot of play on the web and in the blogosphere. Politicians are even talking about it.

Second, the argument seems to be gaining some traction.  Larry Tribe likes it. In addition to be a respected constitutional scholar (whom Obama slighted for any meaningful Administration position), Tribe is a very astute political observer. If he is hitching himself to this wagon, there may be legs here.  People are fascinated by an argument that resolves a political crisis, and is supported by a constitutional argument. Section 4 + Platinum coin = President gets out of debt crisis. This appeals to so many.

Third, as Jon Adler noted, unlike the original argument against the ACA that was “off-the-wall,” this off-the-wall idea is not headed to any court. This can be imposed purely by executive fiat. And we have seen that this President is not afraid to flex his unitary executive muscle to achieve certain policy goals. (I attended an interesting panel at AALS comparing the executive powers of Bush and Obama. The takeaway was that Obama was more aggressive about exercising his powers, but also more transparent about what he is doing). So, if the President does decide to do this, there is not much that can stop him. Unless conservatives all-the-sudden reverse decades of jurisprudence on narrowly construing taxpayer standing–I knew the Chief kept the Flast doctrine alive in Hein v. Freedom from Religion for something!

I’ll keep my eye on this.

Update: Eric Posner suggests that the President can be impeached for minting the platinum coin.

The idea that President Obama could evade the debt limit by ordering the Treasury Department to mint a $1 trillion platinum coin started off as a joke, or a quasi-joke, but now, thanks in part to Paul Krugman as well as to many other influential commentators (even the former head of the U.S. Mint), is being taken seriously. And if serious people take it seriously, then the coin loses its fairy-tale quality, and why not go through with it? The answer is that the legal case for the platinum coin is not as strong as people think, and if the president gets this wrong, the consequences could be severe.

Another more pressing worry for the Obama administration: impeachment. With a majority in the House, Republicans could easily start impeachment proceedings. And while conviction in the Senate is virtually impossible, as Democrats would not join to create the two-thirds majority needed, merely launching the impeachment process would be politically devastating for President Obama, as it was for President Clinton.

The theory for the platinum coin is weak enough to provide the legal basis for impeachment and absurd enough to provide the political basis. The $1 trillion coin would feed fears of an out-of-control president, and it would be a slap in the face of the current Congress—not some previous Congress from long ago—which has refused authority to raise the debt ceiling. While the coin theory does not literally enable the president to increase spending to whatever level he wants, as he still must respect Congress’ power over appropriations, this detail will surely be lost on a public entranced by the idea of a coin worth $1 trillion. And the gimmicky nature of the legal theory behind the coin would suggest a White House that is unscrupulous rather than guided by the spirit of the law. That is why I have argued instead that the president should rely on his emergency powers or on his inherent administrative authority to borrow money, although admittedly there’s a risk of impeachment in these approaches as well.

Yes, that is exactly what we need. An impeachment trial, presided over by none other than Chief Justice Roberts. At least Jeff Toobin would have some material for the second edition of The Oath.

Update 2: Another article arguing that the President could be impeached if he spends in excess of the debt ceiling. And this article with a profile of the person who created the platinum coin idea. Apparently it was not Jack Balkin.

Update 3: Jon Adler links to a TPM story about the origin of the platinum coin.

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Jan 10, 2013

Video: My (Brief) Dialogue with Nassim Taleb

Last week  I was on a panel with Nassim Taleb talking about his new book, Antifragile. I was on very, very briefly (there were 6 other panelsits, and two hosts–not nearly enough time to have a good dialogue). I asked Taleb how government could pass more anti-fragile laws that did merely react to the most recent disaster (Black Swan), but rather be resillient to the next disaster. His answer, echoing what he wrote in his book, was to be more like Switzerland, and have a more decentralized system of government, that should be bottom up, rather than top down. He did note that this was how America originally was.

Yay Federalism!

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Jan 10, 2013

Hammurabi’s Code on Liability for Latent Defects

In property law, there is an evolving doctrine with respect to who bears the burden for latent defects in a building–that is defects in the foundation, for example, that are not readily apparent. The older case law suggested that the owner of the property bears the burden of investigating and discovering any latent defects. The modern doctrine addresses the obvious problem–you can’t find latent defects.

Well, it seems that the issue of who bears liability for latent defects has been around well before the Restatement (First) of Property, or even at common law. Look to the ancients–Hammurabi’s Code!

I found this passage from Taleb’s Antifragile about Hammurabi’s code fascinating:

Hammurabi’s code— now about 3,800 years old— identifies the need to reestablish a symmetry of fragility, spelled out as follows:

If a builder builds a house and the house collapses and causes the death of the owner of the house— the builder shall be put to death. If it causes the death of the son of the owner of the house, a son of that builder shall be put to death. If it causes the death of a slave of the owner of the house— he shall give to the owner of the house a slave of equal value.

It looks like they were much more advanced 3,800 years ago than we are today. The entire idea is that the builder knows more, a lot more, than any safety inspector, particularly about what lies hidden in the foundations— making it the best risk management rule ever, as the foundation, with delayed collapse, is the best place to hide risk. Hammurabi and his advisors understood small probabilities.

Now, clearly the object here is not to punish retrospectively, but to save lives by providing up-front disincentive in case of harm to others during the fulfillment of one’s profession.

These asymmetries are particularly severe when it comes to small-probability extreme events, that is, Black Swans— as these are the most misunderstood and their exposure is easiest to hide.

Yes, well under the modern law, there are no executions or transfer of slaves for latent defects, but the idea of ex ante deterrence remains. As I’ve written elsewhere, common and natural law principles tend to be congruent with principles of economic efficiency (oh I can’t wait till I can teach Pierson v. Post next week!). There really is nothing new under the sun.

Of late, I have been studying some Jewish Law from the Talmud, and completed some lessons on Jewish perspectives on self-defense. Needless to say, they largely mirror common-law doctrines that evolved two millennia later. I’ll blog more about it soon.

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Jan 10, 2013

Venezuela Supreme Court Holds Chavez Does Not Need To Take Constitutional Oath. John Roberts Could Not Be Reached For Comment

All jokes about “The Oath” aside, this discussion of the Venezuelan Constitution is really interesting:

Supreme Court President Luisa Estela Morales said Wednesday that Chavez’s absence is acceptable given that his service will be uninterrupted and therefore does not fall under constitutional guidelines that could have forced him to attend the swearing-in ceremony or relinquish power.

“Although Jan. 10 marks the beginning of a new constitutional period, a new swearing-in of the president is not necessary in [Chavez’s] status as president-elect because there is no interruption in the exercise of his authority,” Morales said. Chavez “is not a new president who has to take possession, he is the president whose performance has been approved by the people.”

The Venezuelan Constitution calls for presidents to be sworn in at the National Assembly on Jan. 10, but also provides an alternative in which the Supreme Court conducts the inauguration “if for any unforeseen reason” the congressional ceremony cannot take place. To have the Supreme Court administer the oath or delay the swearing-in, the president-elect must ask for a temporary postponement.

But, the resident con law expert of Venezuela is not persuaded:

Constitutional law expert Armando Rodriguez Garcia said there were “inconsistencies” in the ruling, noting that the constitutional clause requiring the oath “covers the institution, not the person.” Chavez’s current term, and thus his authority, ends Thursday and he must be sworn in to resume it, the professor said.

“If Chavez is unable to be sworn in tomorrow, then power must transfer to the legislative branch in the person of the president of the National Assembly so that there is no power vacuum,” said Rodriguez Garcia, a Central University of Venezuela faculty member who was one of 38 law professors who signed a petition Tuesday saying Chavez’s absence from the ceremony would be unconstitutional.

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