Feb 19, 2013

The Look on the Host’s Face When VP Biden Says Twice “Buy a Shotgun” is Priceless

The Vice President urged his wife to “blast” a shotgun off her balcony, not once but twice. This is a crime. You cannot discharge a weapon into the air without a reason. The Vice President continues by telling people to use a shotgun instead of an AR-15, saying ARs are harder to aim (not true). He concludes, “Buy a Shotgun! Buy a Shotgun!” The look on the host’s face is one of mortification. If he could face-palm, he would have.buy-a-shotgun

Update: If you fire “two blasts” from a double-barrel shotgun into the air, you are now with ammo left. Brilliant.

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Feb 19, 2013

Maggie Simpson Visits the Ayn Rand School for Tots

The Simpsons put together a great short featuring Maggie Simpsons, with plenty of Ayn Rand references.

Raggedy Ayn Rand Dolls.

ayn-rand-dolls

The Ayn Rand School for Tots. ayn-rand-school-tots

 

The drinking fountainhead.the-drinking-fountainhead

 

A is A.a-is-a

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Feb 19, 2013

Constitutional Canines: Aldo the Dog from Florida v. Harris

 

 

Aldo is “a German shepherd trained to detect certain narcotics (methamphetamine, marijuana, cocaine, heroin, and ecstasy).” Justice Kagan thought he was reliable. How can you say no to that face!aldo

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Feb 19, 2013

Categoricalism and Balancing in Bailey v. United States

Bailey v. United States considers when the detention of a person outside the vicinity of the premises to be searched violates the Fourth Amendment. Justice Kennedy’s majority opinion for the court is grounded in a balancing test (shocker!). The balance considers the “limited intrusion on personal liberty” and the “special law enforcement interests at stake.

Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake.

Justice Scalia, joined by Justices Ginsburgsand Kagan (a trio that I much adore) wrote “separately to emphasize why the Court of Appeals’ interest-balancing approach to this case—endorsed by the dissent—is incompatible with the categorical rule set forth in Michigan v. Summers,”

The existence and scope of the Summers exception were predicated on that balancing of the interests and burdens. But—crucially—whether Summers authorizes a seizure in an individual case does not depend on any balancing, because the Summers exception, within its scope, is “categorical.” Muehler v. Mena, 544 U. S. 93, 98 (2005). That Summers establishes a categorical, bright-line rule is simply not open to debate—Summers itself insisted on it.

Scalia also takes issue with Justice Breyer’s balancing-test-dissent:

The Court of Appeals’ mistake, echoed by the dissent, was to replace that straightforward, binary inquiry with open-ended balancing. Weighing the equities—Bailey “posed a risk of harm to the officers,” his detention “was not unreasonably prolonged,” and so forth—the Court of Appeals proclaimed the officers’ conduct, “in the circumstances presented, reasonable and prudent.” 652 F. 3d 197, 206 (CA2 2011) (internal quotation marks and brackets omitted); see also post, at 3–4 (opinion of BREYER, J.). That may be so, but it is irrelevant to whether Summers authorized the officers to seize Bailey without probable cause. To resolve that issue, a court need ask only one question: Was the person seized within “the immediate vicinity of the premises to be searched”? Ante, at 11.

Scalia also offers an interesting discussion about categoricalism in the context of the Fourth Amendment:

Summers embodies a categorical judgment that in one narrow circumstance—the presence of occupants during the execution of a search warrant—seizures are reasonable despite the absence of probable cause. Summers itself foresaw that without clear limits its excep- tion could swallow the general rule: If a “multifactor balancing test of ‘reasonable police conduct under the circumstances’” were extended “to cover all seizures that do not amount to technical arrests,” it recognized, the “‘protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases.’” 452 U. S., at 705, n. 19 (quoting Dunaway, supra, at 213 (some internal quotation marks omitted)). The dissent would harvest from Summers what it likes (permission to seize without probable cause) and leave behind what it finds uncongenial (limitation of that permission to a narrow, categorical exception, not an open-ended “reasonableness” inquiry).

The dissent purports to agree “that the question involves drawing a line of demarcation granting a categorical form of detention authority.” Post, at 3. What the dissent misses is that a “categorical” exception must be defined by categorical limits. Summers’ authorization to detain applies only to “occupants”—a bright-line limitation that the dissent’s “reasonably practicable” test discards altogether.

Scalia closes by faulting the difficulty of applying balancing tests.

Summers’ clear rule simplifies the task of officers who encounter occupants during a search. “[I]f police are to have workable rules, the balancing of the competing interests . . . ‘must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers.’” Id., at 705, n. 19 (quoting Dunaway, supra, at 219–220 (White, J., concurring)); see also Arizona v. Gant, 556 U. S. 332, 352–353 (2009) (SCALIA, J., concurring). But having received the advantage of Sum-mers’ categorical authorization to detain occupants incident to a search, the Government must take the bitter with the sweet: Beyond Summers’ spatial bounds, seizures must comport with ordinary Fourth Amendment principles.

This phrase,”spatial bounds,” has been used in exactly one Supreme Court opinion before today. Justice Kennedy’s opinion in Lawrence v. Texas.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

How did neither RBG nor Kagan pick that up?! I saw it, and thought, no way Scalia would go there. He did.

I wonder if Nino was sending a signal to AMK about SSM?

The dissent, from Justice Breyer, joined by Thomas and Alito, focuses on balancing tests. “Considerations of this kind reveal the dangers inherent in the majority’s effort to draw a semi-bright line.”

 In sum, I believe that the majority has substituted a line based on indeterminate geography for a line based on realistic considerations related to basic Fourth Amendment concerns such as privacy, safety, evidence destruction, and flight. In my view, these latter considerations should govern the Fourth Amendment determination at issue here. I consequently dissent.

 

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Feb 19, 2013

Justice Scalia Quotes From Lawrence v. Texas (with no citation) To Disagree with Justice Kennedy

Did anyone else notice this in Bailey v. United States from Justice Scalia’s concurring opinion, joined by Justices Ginsburg and Kagan.

But having received the advantage of Summers’ categorical authorization to detain occupants incident to a search, the Government must take the bitter with the sweet: Beyond Summers’ spatial bounds, seizures must comport with ordinary Fourth Amendment principles.

This phrase,”spatial bounds,” has been used in exactly one Supreme Court opinion before today. Justice Kennedy’s opinion in Lawrence v. Texas.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

How did neither RBG nor Kagan pick that up?! I saw it, and thought, no way Scalia would go there. He did.

I wonder if Nino was sending a signal to AMK about SSM?

 

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Feb 19, 2013

“I have been wrongfully accused of a crime and I want my life back.”

breyer-nevisThis is Vedel Browne, the man accused of robbing Justice Breyer ‘s home at machete-point in Nevis. Browne maintains his innocence, and claims that he is being scape-goated.

On February 19, Browne said that he walked into the Charlestown Police Station to clear his name but was arrested and charged.

“When I was arrested, Mr. Carty [police officer] told me that I robbed the Judge and they gone charge me. He said they don’t want to hear nothing from me because I rob de Judge. They say it is a tall Rasta man who did it and I am a Rasta,” he said.

Browne maintains that he had an alibi for the night in question but again police dismissed him. He claims he was at someone’s home the entire night and the individual informed the police of such.

“She went and told them I was by her that night but they told her they don’t want to hear nothing. They never found anything on me or in my house. They never found any weapon,” he said.

Will Justice Breyer come to his rescue?

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Feb 19, 2013

Oliver Wendell Breyer: “three generations of seeds is enough”

In the past, I have compared Justice Breyer to Justice Holmes. Based on his questions in Bowman v. Monsanto Co., Justice Breyer must be in on the joke.

JUSTICE BREYER: No, but you are allowing him to use those seeds for anything else he wants to do. It has nothing to do with those seeds. There are three generations of seeds. Maybe three generations of seeds is enough.

(Laughter.)

JUSTICE BREYER: It is for this example. First of you have the Monsanto, the first generation they sold. They have children, which is the second generation. And those children have children, which is the third generation, okay? So, bad joke. (Laughter.)

Yes, making fun of sterilizing mentally handicapped people is a bad joke.

Lest we forget what Justice Holmes repugnantly wrote in Buck v. Bell:

 The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11 , 25 S. Ct. 358, 3 Ann. Cas. 765. Three generations of imbeciles are enough.

Update: Bill Araiza comments:

I don’t want to be a humorless scold.  On the other hand, riffing off a truly cruel remark seems gratuitous: there are enough funny lines in the U.S. Reports that we don’t need to pick up on problematic ones.  Or is there a reason this particular line is not problematic?  Has the word “imbecile” been defanged by its increasingly humorous connotation of someone as just plain dumb?  (I guess that’s possible: after all, “idiot” had the same clinical connotation at one point, which it seems to have lost.)  But it seems to me the problem with the phrase in question is not just with the word “imbecile,” but with the entire phrase, which inevitably calls to mind the cruel ideology behind Buck.  Is it really OK to make that reference as a joke?  Have we so clearly moved past Buck that it’s safe to joke about it?

I’m truly curious about this.  In what seems to be a hyper-cautious age, using this phrase doesn’t seem to elicit any reaction.  Is there a good reason for that?

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Feb 19, 2013

Constitutional Places: How far is .7 miles from Bailey v. United States?

Bailey v. United States considered whether the police could detain a defendant who had travelled roughly .7 miles from his home. The majority said they could not. The dissent, authored by Justice Breyer and joined by Justices Thomas and Alito said they could not.

So how far is 0.7 miles from 103 Lake Drive, Wyandanch, New York. This far, according to Justice Breyer’s “Appendix to opinion” in Bailey v. United States. Though, as a friend points out, .7 miles looks like a tiny distance when you have a HUGE map.

breyer-map

Justice Breyer sure does like appendixes. He included one this term in the house boat case, and famously in D.C . v. Heller.

Though on a more focused map, the route looks much longer:

Map


View Larger Map

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Feb 19, 2013

Deference to Administrative Agencies Before and After Elections

In the past, I have chronicled the Supreme Court’s criticism of the Solicitor General for abandoning a position that previous Administrations adopted. Judge Posner addressed this political dynamic in Sandifer v. United States Steel Corp, which the Court granted Cert on today.

The Department of Labor has participated as an amicus curiae in this appeal on the side of the plaintiffs, and we end by considering what weight we should give its views.   During the Clinton Administration the Department took a narrow view of the meaning of the term “clothes” for purposes of determining whether time spent in changing in and out of work clothes could be excluded under section 203(o ) from the FLSA’s minimum wage and overtime provisions.   See U.S. Dep’t of Labor, Opinion Letter, 2001 WL 58864 (Jan. 15, 2001);  Opinion Letter, 1997 WL 998048 (Dec. 3, 1997).   During the Bush Administration the Department took a broad view—broader than we take—of what “clothes” means in the FLSA, and added that clothes-changing time excluded under section 203(o ) could not be a “principal activity” under the Portal–to–Portal Act. U.S. Dep’t of Labor, Opinion Letter, 2007 WL 2066454 (May 14, 2007);  Opinion Letter, 2002 WL 33941766 (June 6, 2002).   After the change in administrations in 2009 the Department reverted to the Clinton Administration’s position on “changing clothes” and also rejected the Bush Administration’s position on “principal activity.”  U.S. Dep’t of Labor, Administrator’s Interpretation No. 2010–2, 2010 WL 2468195 (June 16, 2010).   Such oscillation is a normal phenomenon of American politics.   Democrats are friendlier to unions than Republicans are, though we cannot see how a decision in favor of the plaintiffs in this case would help unions.  (No union is a party to this case or an amicus curiae.)

Naturally the Department of Labor does not acknowledge that its motive in switching sides was political;  that would be a crass admission in a brief or in oral argument, and unlikely to carry weight with the judges.   The Department says instead that it is right as a matter of law and that the position the Department took in the Bush years is wrong;  it adds that since it enforces the Fair Labor Standards Act its (current) position should carry weight with us.   But all the Department does to demonstrate the “rightness” of its current position is to echo the plaintiffs’ arguments.   Nowhere in the Department’s brief is there a reference to any institutional knowledge of labor markets possessed by the Department’s staff—or to anything indeed to which the parties might not have complete access—that might help the court to decide the case sensibly;  and at the oral argument the Department’s lawyer acknowledged this void.   All that the Department has contributed to our deliberations, therefore, though it is not quite nothing, is letting us know that it disagrees with the position taken by the Bush Department of Labor;  for if it were silent, from which one might infer that it agreed with that position, it would be inviting U.S. Steel to argue that the Department of Labor had been consistent, at least since 2001, and thus across Administrations controlled by opposite political parties, in rejecting the plaintiffs’ position.

It would be a considerable paradox if before 2001 the plaintiffs would win because the President was a Democrat, between 2001 and 2009 the defendant would win because the President was a Republican, and in 2012 the plaintiffs would win because the President is again a Democrat.   That would make a travesty of the principle of deference to interpretations of statutes by the agencies responsible for enforcing them, INS v. Cardoza–Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), since that principle is based on a belief either that agencies have useful knowledge that can aid a court or that they are delegates of Congress charged with interpreting and applying their organic statutes consistently with legislative purpose.   We are not surprised to discover that courts of appeals that have reached varied conclusions on the issues presented by this appeal have come together in spurning, as Judge Wilkinson has put it, “the gyrating agency letters on the subject.”  Sepulveda v. Allen Family Foods, Inc., supra, 591 F.3d at 216 n. 3;  see also Salazar v. Butterball, LLC, supra, 644 F.3d at 1139;  Franklin v. Kellogg Co., supra, 619 F.3d at 612–14;  Alvarez v. IBP, Inc., supra, 339 F.3d at 905 n. 9;  contra, Anderson v. Cagle’s, Inc., supra, 488 F.3d at 956–57.

Though, Judge Posner can’t be too popular at the Court now. Let’s see if Justice Scalia writes a spite-concurrence.

H/T Steve R.

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Feb 19, 2013

The Obamacare Float at Mardis Gras

Yes, that was a thing. You can’t tel from the picture, but jon Roberts is giving a thumbs-up to the health care law.

float-1

 


float-2

H/T Twitter and a 5th Circuit clerk who had a sitting during Mardi Gras.

Update: Here is another picture of the float.

aca-float

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Feb 19, 2013

The Social Cost of Brown v. Plata: $200 Million in Legal Fees

After the Supreme Court decided Brown v. Plata, and ordered the release of tens of thousands of prisoners, I queried what the social cost of this decision would be.

Now, we have an estimate. Well at least for the “legal” aspects of this social cost:

The private law firms representing inmates and the judges’ own hand-picked authorities benefit financially by keeping the cases alive.

How much are they making?

A tally by The Associated Press, compiled from three state agencies, shows California taxpayers have spent $182 million for inmates’ attorneys and court-appointed authorities over the past 15 years. The payments cover a dozen lawsuits filed over the treatment of state prisoners, parolees and incarcerated juveniles, some of which have been settled.

The total exceeds $200 million when the state’s own legal costs are added.

 

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Feb 19, 2013

Prop1 Class 11 – Estates III: Leaseholds

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

This diagram represents the Fee Simple Defeasible, which comes with a Possibility or Reverter. For example, “so long as premises are used for school purposes.” The reversion happens automatically–no need for the grantor (or his heirs) to take any action.

FSD

This diagram represents the Fee Simple Subject to Condition Subsequent, which comes with a Right of Re-Entry. For example, ” but if the premises are not used for school purposes, the grantor has a right to re-enter and retake.” Unlike the Possibility of Reverter, the Right of Re-Entry requires the Grantor (or his heris) to take actin, and re-enter the land.

FSSCS

This diagram represents the Fee Simple subject to an executory interest, which comes with an executory interest, which is vested in a third person, instead of the grantor. For example, “O to “School board, but if it cease to use the land as a school, to the Library.”

fs-subject-executory-limitation

This is the grant at issue in Mahrenholz:

“this land to be used for school purposes only; otherwise to revert to Grantors herein.”

This is the school at issue in the article about the Maeser School.

Maesr

 

maeser

 

Here is a picture of the Odd Fellows building:

fellows

toscanos

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Feb 19, 2013

Prop2 Class 11 – Easements I

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

This graphic, courtesy of the Dukeminier & Krier web site, will help explain Willard v. First Church of Christ.

Also check out this animation of  Van Sandt v. Royster.

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