Feb 5, 2013

“My Knees Were Knocking” – Sotomayor on her first oral argument, Citizens United

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Justice Sotomayor’s very first argument on the bench was Citizens United.

Ruby Cramer tweets some her reactions:

And what was Justice Sotomayor’s first question (this is like the stats of a major league players first hit)?

JUSTICE SOTOMAYOR: Mr. Olson, are you giving up on your earlier arguments that there are ways to avoid the constitutional question to resolve this case? I know that we asked for further briefing on this particular issue of overturning two of our Court’s precedents. But are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?

And it only took till her third question before she interrupted another Justice–in this case, Justice Stevens.

JUSTICE STEVENS: Mr. Olson –

JUSTICE SOTOMAYOR: But the facial challenge –

JUSTICE STEVENS: — may I ask one question you can answer on rebuttal? No one has commented on the National Rifle Association’s amicus brief. None of the — none of the litigants have. That’s in response to Justice Sotomayor’s thought that there are narrow ways of resolving the problem before us. On rebuttal, will you tell us what your view on their solution to this problem is?

MR. OLSON: I will, Justice Stevens.

CHIEF JUSTICE ROBERTS: Why don’t you tell us now. We will give you time for rebuttal.

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Feb 5, 2013

Richard Epstein and John Yoo At the Playground

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Does anyone else find this graphic from Ricochet slightly disturbing? Though, for Yoo, a water slide may be more appropriate.

Recess-Appointments_large

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Feb 5, 2013

What happens when you zone registered sex offenders out of existence?

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Many jurisdictions enact laws that limit where registered sex offenders can live. For example, they can’t live within 1,000 feet of a school, playground, library, park, etc. This may seem like a good idea at first blush–assuming limiting where they live will in fact prevent them from harming others. Also, as the article notes, these laws place no limitations on where these offenders travel during the day, other than Halloween, when they are required to stay inside their homes all day (assuming they can find one).

However, in many dense urban areas, it becomes impossible to live anywhere, as everything is within 1,000 feet of one of those special places.

In New York State, laws prohibit sex offenders on parole or whose victims were younger than 18 from residing within 1,000 feet of schools or other child care facilities. In 2006, Suffolk passed a law extending the distance for all sex offenders to a quarter mile. Southampton later stretched that to up to a mile.

With limits as big as one mile it becomes impossible to live anywhere!

Mr. Moore, who served 20 years in prison, was evicted from his first home, which he owns, after Suffolk passed its housing law.

He bought another and received approval from his parole officer and the local police before moving in with his wife and child. But the authorities overlooked a private day care center that was operating next door and a playground up the road. Mr. Moore, who graduated college in prison and now works as an information technology specialist, was evicted again.

“No one wants to live next to a sex offender,” he said.

Offenders cannot even live with their families–a punishment not inflicted on almost any other type of criminal.

Now he is free on parole and studying to become a paralegal. But because there is a day care near his home in Central Islip, he cannot live with his wife and daughter.

“A murderer can live wherever he wants. A shooter, a robber can live wherever he wants,” Mr. Wallace said. “I have to live in a trailer.”

In effect, registered sex offenders–even those convicted of non-violent offenses–are zoned out of existence. “It is often difficult for convicted sex offenders to find a home that is legal. Landlords can be hesitant to rent to them. And neighbors can be hostile.” They are often forced to live on the outskirts of town, in campgrounds, and even under highway overpasses (such as in Miami).

Without stable housing after prison, sex offenders can be hard to monitor and are more likely to lapse again into predation, said Bill O’Leary, a forensic therapist who works with victims and perpetrators of sexual and violent crimes in the New York area.

“This forces them to be more transient, which gives them more exposure to society,” Mr. O’Leary said, referring to the residency restrictions. “Even those that are the more predatory are forced to be out in society.”

Consider this. Registered sex offenders are required by law to have a registered adress, but they can’t live anywhere. Failing to have an address is  violation of the terms of their release, as they. Think about that. The same law that tells the offenders that they can’t live anywhere requires them to live somewhere.

So what to do? In Suffolk County, New York, 40 sex offenders are living in government-owned trailers.

The men are not forced to live in the trailers, but typically end up in them because they have nowhere else to stay and fear being arrested if they are homeless.

Suffolk officials have tried to keep the trailers away from population centers. But one is in Southampton within walking distance of a retirement community, and residents there said they were worried about harm to property values and threats to visiting grandchildren.

The other trailer is in the parking lot of a prison. A bus service financed by the county transports the men between the trailers and pickup points, including train stations, in Suffolk.

County Executive Steve Bellone, a Democrat, had vowed to remove the trailers by Jan. 1, but missed the deadline.

These trailers are in abysmal conditions.

The two trailers have a refrigerator, a microwave and rows of bunk beds. There were no showers until 2010, when a judge ruled this impermissible. Now one trailer has a shower that all 40 men share — the offenders in the other trailer take the bus there to bathe a couple of times a week. Guards from a private firm are assigned to oversee the men.

“It’s riddled with bedbugs, it’s freezing, your clothes are wet,” said Duane Moore, 53, a convicted rapist who spent a month in the trailers. “Guys were playing with knives, and I’ve got to worry about guys slitting my throat for sitting on their bunk.”

The county’s backup plan is to place the offenders in homeless shelters.

In property class, when I discuss zoning and the right to exclude, I talk about the plight of sex offenders. It is very hard to generate support for sex offenders (the law does little to distinguish between violent and non-violent offenders).

This example helps to illustrate to students the draconian nature of such laws.

The 1,000 foot rule also has some application for drug offenses. Drug transactions within 1,000 feet of a playground trigger a heightened sentence. Most housing projects have a playground. Per se enhancement for drug transactions in housing projects.

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Feb 5, 2013

Nassim Taleb Talks with ReasonTV about Libertarianism

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Here are the highlights:

Reason‘s Nick Gillespie sat down with Taleb for a wide-ranging discussion about why debt leads to fragility (5:16); the importance of “skin in the game” to a properly functioning financial system (10:45); why large banks should be nationalized (21:47); why technology won’t rule the future (24:20); the value of studying the classics (26:09); his intellectual adversaries (33:30); why removing things is often the best way to solve problems (36:50); his intellectual influences (39:10); why capitalism is more about disincentives than incentives (43:10); why large, centralized states are prone to fail (44:50); his libertarianism (47:30); and why he’ll never take writing advice from “some academic at Cambridge who sold 2,200 copies” (51:49).

 

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Feb 5, 2013

Prop1 Class 7 – Acquisition by Find

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The lecture notes are here. The live chat is here.


When you think of a Chimney Sweep, this image may come to mind.

burt-2

But this image is probably a lot closer to young Master Armory.

victorian style chimney sweep, a child chimney sweep,  hulton pi

 

 

Studio_portrait_of_young_chimney_sweeps,_by_Havens,_O._Pierre_1838-1912_(crop)

This diagram shows the different ways a sweep can get stuck in a flute.

A seven-flue stack, showing how it would be cleaned by Climbing boys, or with little modification by a human cleaning machine (a brush). In the diagram: A- is a hearth served by vertical flue, a horizontal flue, and then a vertical rise having two right-angled bends that were difficult for brushes. B- is a long straight flue (14in by 9in) being climbed by a boy using back elbows and knees. C- is a short flue from a second floor hearth. The climbing boy has reached the chimney pot, which has a diametre too small for him to exit that way D (omitted) is a short flue from the third floor E shows a disaster. The climbing boy is stuck in the flue, his knees jammed against his chin. The master sweep will have to cut away the chimney to remove him. First he will try to persuade him to move: sticking pins in the feet, lighting a small fire under him. Another boy could climb up behind him and try to pull him out with a rope tied round the legs- it would be hours before he suffocated. F (omitted) G How a flue could be straighten to make it sweepable by mechanical means H A dead climbing boy, suffocated in a fall of soot that accumulated at the cant of the flue.

A seven-flue stack, showing how it would be cleaned by Climbing boys, or with little modification by a human cleaning machine (a brush). In the diagram:
A- is a hearth served by vertical flue, a horizontal flue, and then a vertical rise having two right-angled bends that were difficult for brushes.
B- is a long straight flue (14in by 9in) being climbed by a boy using back elbows and knees.
C- is a short flue from a second floor hearth. The climbing boy has reached the chimney pot, which has a diametre too small for him to exit that way
D (omitted) is a short flue from the third floor
E shows a disaster. The climbing boy is stuck in the flue, his knees jammed against his chin. The master sweep will have to cut away the chimney to remove him. First he will try to persuade him to move: sticking pins in the feet, lighting a small fire under him. Another boy could climb up behind him and try to pull him out with a rope tied round the legs- it would be hours before he suffocated.
F (omitted)
G How a flue could be straighten to make it sweepable by mechanical means
H A dead climbing boy, suffocated in a fall of soot that accumulated at the cant of the flue.

Frequently the boys would get stuck (the image on the right).

410px-Climbing_boys_in_chimneys

Here are some examples of de Lamerie’s work (courtesy of the Dukeminier property web site).

Source: Mfa.org. This was created in 1736 and is currently housed at the Museum of Fine Arts in Boston, Massachusetts.

Source: Mfa.org. This was created in 1736 and is currently housed at the Museum of Fine Arts in Boston, Massachusetts.

 

This work was created in 1745 and is housed at the Sterling and Francine Clark Art Institute in Williamstown, Massachusetts.

This work was created in 1745 and is housed at the Sterling and Francine Clark Art Institute in Williamstown, Massachusetts.

 

There are many different de Lamerie works in this photograph of the interior of the Marks Antique Silver gallery in London, England. Marks frequently sends travelling galleries of antique silver to the United States in places such as Palm Beach, L.A., and New York City.

There are many different de Lamerie works in this photograph of the interior of the Marks Antique Silver gallery in London, England. Marks frequently sends travelling galleries of antique silver to the United States in places such as Palm Beach, L.A., and New York City.

 

This is one of the less common gold pieces of art created by de Lamerie. This is housed at the Gilbert Collection in London, England.

This is one of the less common gold pieces of art created by de Lamerie. This is housed at the Gilbert Collection in London, England.

Here are a number of stories about finding abandoned stuff:

This is a lithograph of Gwernaylod House in Overton-on-Dee, Wales (1829)

Gwernhaylod

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Feb 5, 2013

Prop2 Class 7 – Mortgages

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The lecture notes are here, and the live chat is here.

Today we will be covering mortgages. You can view samples of Texas mortgages here:

Texas’s Anti-deficiency statute is here.

And this clip from South Park may help explain the subprime mortgage crisis. Or not.

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Feb 5, 2013

South Texas College of Law Professor Geoff Corn cited in DOJ “White Paper.”

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Kudos to my colleague Geoff Corn for the citation to his article, co-authored with Eric Jensen, about the Law of War in the DOJ “White Paper” on “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.”

corn-1

corn-2

H/T Greg McNeal

Update: Geoff sends in a link to another paper he wrote that is on point, title “Geography of Armed Conflict: Why It is a Mistake to Fish for the Red Herring.”

Identifying a framework for assessing the permissible geography of armed conflict must be driven by both strategic and legal considerations. Armed conflict by its very nature manifests the exercise of national power implicating the most fundamental aspect of sovereignty: the right and obligation of the state to protect itself from internal or external threat. Categories of armed conflict and their associated legal regimes evolved in response to this reality, which almost always involved inter-state hostilities or internal hostilities between states and insurgent or dissident forces. It is debatable, however, whether contemporary threats fit neatly into these two armed conflict categories, or whether the law regulating armed conflict was, from inception, under-inclusive in the sense that it failed to account for situations of armed hostilities falling outside these categories. History indicates that armed conflict has never been statically confined to the two “types” that became the dominant focus of conflict regulation following World War II.

This under-inclusiveness is manifested today by the concept of transnational armed conflict (TAC) — armed conflict of international scope between a state and a non-state opponent. This theory of armed conflict remains controversial, although it has gained substantial traction. It has also, however, generated assertions that if such a theory of armed conflict is a reality, it must be geographically restricted to only those areas qualifying as “hot zones” of conflict (however that concept is defined). Ultimately, however, seeking to identify and impose a geographic limitation detached from the threat dynamics triggering the use of combat power is a false solution to the concerns of operational over-breadth associated with TAC. Such limitation is a futile endeavor, for the developing axiomatic reason that once a state commits to the use of force as a remedy against such a transnational non-state threat — like all other conflicts in history — the dynamics of the threat itself will be the predominant consideration in defining the scope of operations.

Seeking to identify some legally mandated geographic boundary for armed conflict of any type is, however, a genuine Red Herring. Armed conflict is a threat-driven concept, arising when the threat necessitates resort to combat power, and extending to wherever the operational and tactical opportunity to produce a militarily valuable effect on the enemy arises. Accordingly, this essay argues that it is illogical to attempt to impose a “hot zone” limitation on the scope of TAC, and that such an effort will inevitably be viewed as inconsistent with the strategic imperatives that drives states to engage in armed conflict. Even more problematic, however, is how this approach to limiting the potential over-breadth of authority triggered by LOAC invocation to combat a transnational non-state threat distracts from other potentially viable methods to produce this effect. Thus, critics of this broad exercise of state power might be better served by abandoning the search for this geographic scope Red Herring and focusing on more pragmatic mitigation efforts.

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Feb 5, 2013

1924: “It is believed [Hitler] will retire to private life and return to Austria, the country of his birth.”

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Not so much.

hitler-tamed-by-prison

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