Jan 28, 2014

Paging Justice Alito: “Last year, part of the Voting Rights Act was weakened.”

Someone, please pan the camera to the Supreme Court for this line.

Last year, part of the Voting Rights Act was weakened.

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Jan 28, 2014

Key Legal Excerpts from State of the Union Address

On the Voting Rights Act and the Supreme Court (and Citizens United):

Citizenship means standing up for everyone’s right to vote. Last year, part of the Voting Rights Act was weakened. But conservative Republicans and liberal Democrats are working together to strengthen it; and the bipartisan commission I appointed last year has offered reforms so that no one has to wait more than a half hour to vote. Let’s support these efforts. It should be the power of our vote, not the size of our bank account, that drives our democracy.

Lovely passive voice.

On guns:

Citizenship means standing up for the lives that gun violence steals from us each day. I have seen the courage of parents, students, pastors, and police officers all over this country who say “we are not afraid,” and I intend to keep trying, with or without Congress, to help stop more tragedies from visiting innocent Americans in our movie theaters, shopping malls, or schools like Sandy Hook.

On drones:

So, even as we aggressively pursue terrorist networks – through more targeted efforts and by building the capacity of our foreign partners – America must move off a permanent war footing. That’s why I’ve imposed prudent limits on the use of drones – for we will not be safer if people abroad believe we strike within their countries without regard for the consequence.

On Guantanamo!

That’s why, working with this Congress, I will reform our surveillance programs – because the vital work of our intelligence community depends on public confidence, here and abroad, that the privacy of ordinary people is not being violated. And with the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay – because we counter terrorism not just through intelligence and military action, but by remaining true to our Constitutional ideals, and setting an example for the rest of the world.

On Obamacare:

A pre-existing condition used to mean that someone like Amanda Shelley, a physician assistant and single mom from Arizona, couldn’t get health insurance. But on January 1st, she got covered. On January 3rd, she felt a sharp pain. On January 6th, she had emergency surgery. Just one week earlier, Amanda said, that surgery would’ve meant bankruptcy.

That’s what health insurance reform is all about – the peace of mind that if misfortune strikes, you don’t have to lose everything.

Already, because of the Affordable Care Act, more than three million Americans under age 26 have gained coverage under their parents’ plans.

More than nine million Americans have signed up for private health insurance or Medicaid coverage.

And here’s another number: zero. Because of this law, no American can ever again be dropped or denied coverage for a preexisting condition like asthma, back pain, or cancer. No woman can ever be charged more just because she’s a woman. And we did all this while adding years to Medicare’s finances, keeping Medicare premiums flat, and lowering prescription costs for millions of seniors.

Now, I don’t expect to convince my Republican friends on the merits of this law. But I know that the American people aren’t interested in refighting old battles. So again, if you have specific plans to cut costs, cover more people, and increase choice – tell America what you’d do differently. Let’s see if the numbers add up. But let’s not have another forty-something votes to repeal a law that’s already helping millions of Americans like Amanda. The first forty were plenty. We got it. We all owe it to the American people to say what we’re for, not just what we’re against.

Update: Here is video of several of these parts.

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Jan 28, 2014

Eco-Terrorist Sentenced To Five Years In Federal Prison, and Must Read Malcolm Gladwell Book

I think the latter punishment may be substantively unreasonable under the Guidelines:

A Canadian woman who admitted taking part in ecoterrorism firebombings has been sentenced to five years in prison.

Rebecca Rubin, 40, pleaded guilty to conspiracy and arson charges in October. The sentence was the lowest Rubin could have received under federal sentencing guidelines.

U.S. District Court Judge Ann Aiken said Monday in federal court in Portland, Oregon, that Rubin showed contrition and lived in “an emotional prison cell” during seven years as a fugitive in Canada, from December 2005 to November 2012.

Aiken included in her sentence an order to read two books: “David and Goliath,” by Malcolm Gladwell, which Aiken said Rubin could learn non-violent means to protesting systems she perceives as unjust; and “Nature’s Trust,” by University of Oregon environmental law professor Mary C. Wood.

Isn’t being in jail punishment enough?

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Jan 28, 2014

“Neck Doily” as Slang for “Jabot” In Black’s Law Dictionary

Bryan Garner just made my day when he tweeted the draft definition for “jabot” in the next edition of Black’s Law Dictionary. It says “Also termed (slang) neck doily.”

I think I may have coined a word!

I first used the phrase “neck doily” in this post from October 2009 noting that Justice Sotomayor was not wearing the “neck doily” that Justice Ginsburg gave her. At some point earlier, I made a joke to a friend about Justice Ginsburg’s frilly jabot. I said something to the effect of, “Is she a Justice or a tea cup? Why is she wearing a doily around her neck.” And, it stuck. Above The Law adopted the usage back in 2010. I’m even cited as a footnote on Wikipedia for jabot!

Since then I’ve (somehow) published about two dozen posts on the neck doily. Justice Kagan wore a neck doily in her first Supreme Court portrait, and during her investiture, but not during her first day on the bench. Kagan later said of the jabot, “In my real life I’m not a frilly, lacy person.” Though all the female Justices wore some kind of neck accoutrements (somewhere between a scarf and a doily) while sitting for their portrait. Then there was the time Justice Ginsburg swapped her neck doily for some bling, and the blue neck doily for the same-sex wedding she officiated at.

If this is my only contribution to the English language, I will be happy.

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Jan 28, 2014

Senator Ted Cruz Files Amicus in Hobby Lobby as Counsel of Record

Huh. When’s the last time a sitting U.S. Senator was listed as “counsel of record” on an amicus brief before the Supreme Court? As best as I can tell, there are no other lawyers listed on the brief. It is signed:

Respectfully submitted, TED CRUZ Counsel of Record UNITED STATES SENATOR 185 Dirksen Senate Office Building Washington, D.C. 20510 [email protected] (202) 224-5922

Update: The Senior senator from Texas, John Cornyn, filed at least two briefs as counsel of record in Elk Grove Unified School District v. Newdown, and Rumsfield v. Padilla.

Amicus Brief on Behalf of Senators Defending Religious Liberty from Obamacare Contraception Mandate


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Jan 28, 2014

Obama Signs Executive Order Boosting Minimum Wage For Federal Contractors in Future Contracts

As part of his efforts to “bypass” Congress to pass legislation, the President has announced that he will sign a bevy of executive orders. One such order would require that “janitors, construction workers and others working for federal contractors be paid at least $10.10 an hour.”

I haven’t seen the actual text of the order, but in the abstract, I don’t see any constitutional problems here. The order would only apply to prospective government contracts, not ones in existence. This would obviate any contract clause problems (as reverse incorporated through the due process clause).

This order reminds me somewhat of President Kennedy’s famous Executive Order 10925, which prohibited racial discrimination in federal hiring, even before the Civil Rights Act was passed.

John Boehner also seems to think this is okay.

“House Republicans will continue to look closely at whether the president is faithfully executing the laws as he took an oath to do,” Boehner (R-Ohio) said Tuesday morning after a meeting of House Republicans at the Capitol Hill Club. “I think dealing with federal contracts and the minimum wage, he probably has the authority to do that. But we’re going to watch very closely because there’s constitution we all take an oath to — including him. And following that constitution is the basis for our republic and we shouldn’t put that in jeopardy.”

I’ll keep my eye open for any other executive orders that the President signs.

Update: GW LawProf Dan Gordon, who specializes in government procurement, argues that this law may violate the “Federal Property and Administrative Services Act of 1949.”

“My understanding is that they are using the president’s authority under the Federal Property and Administrative Services Act of 1949,” George Washington Law School’s Associate Dean for Government Procurement Law Studies Dan Gordon told Townhall. “And that calls for measures which ensure ‘economy and efficiency’ of the procurement process. And I am not sure whether this blanket increase in the wages paid by contractors can be fit within that legal framework.”

“Now it is certainly true that if you had a particular contract,” Gordon explained, “let’s suppose you were running a call center for the IRS in Topeka, Kansas, and you had a history of contractors at that call center who were paying their people the legal minimum and the result was significant staff turnover which was causing disruption, then you clearly could say, ‘You know what, in the next procurement we’re going to require that the contractor pay higher wages because higher wages are necessary to avoid disruption cause by turnover.’ But as a blanket matter I think that there is a legal cloud over whether raising the amount that contractors pay serves ‘economy and efficiency.'”

I know nothing about this law, so I have no thoughts on this.

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Jan 28, 2014

Saving Endangered Species By Hunting Them

At my school, we separate Property into two classes. Property II focuses entirely on land use, zoning, takings, and other mechanisms by which government (mostly in the 20th century) has passed a panoply of rules to regulate how property is utilized. Property I, in contrast, is almost entirely based on private land use–that is, private arrangements individuals make with other individuals about how best to use their property. This includes everything from the dreaded present and future interests, to easements and covenants.

I like to draw this distinction out between the classes to the students to stress that, for most of the last millennium, individuals were able to arrange their property transactions without much interference from the government. This is a striking, and challenging concepts, especially in the midst of other First Year classes  where they have to memorize the nuances of the UCC or Restatement or Model Penal Code.

Part of this understanding, of course, is that much of earlier property law was based on customs. Remember the dissent in the fox hunting case (Pierson v. Post) or the whaling case (Ghen v. Rich)? The courts there would have decided the case baseds on how the customs at the times treated the acquisition of those property rights. For Pierson, reward the hunter with the hounds, even though some interloper got there first. For Ghen, rewards the hunter who managed to shoot his harpoon through the wall, even though someone else go tit first.

And why did these groups arrive at these customs? In short, to ensure there was no race to the bottom (overhunting) and to make sure incentives existed for others to hunt. If everyone hunted to their hearts content, the population would dwindle. Demsetz wrote about how the Indian fur traders would mark off certain areas of the forest, to signify to other tribes that they were hunting here. This was a mechanism of population control so there wouldn’t be depopulation. I stress to my students that, believe it or not, private groups can find ways to arrange their hunting to promote resources. And contrary to what Chief Justice Marshall wrote in Johnson v. M’Intosh, and Locke speculated, the American Indians had very sophisticated property regimes (see here, here, and here).

I often use these cases as a segue into the topic of endangered species. Invariably, one student (usually from somewhere in Louisiana) will tell me that some random endangered bug (snail darter?) was found on her farm, or another student says his swamp was designated as a wetland. In both cases, the value of their fee simple was diminished almost entirely. (The other day one student told me they just partitioned off the protected part of the land and sold the rest). As alternatives to environmental regulations aimed at promoting species growth, I return to the idea of using property rights to promote this goal.

This brings me to a recent editorial in the Times, titled “A Trophy Hunt That’s Good for Rhinos.” In short, by auctioning off the right to hunt a black rhino for $350,000, Namibia has acquired enough money to care for other Rhinos, and has *increased* the population of these animals.

Let’s also accept, nolo contendere, that trophy hunters are “coldhearted, soulless zombies.” That’s how protesters put it following the recent $350,000 winning bid for the right to trophy hunt a black rhino in Namibia. Let’s acknowledge, finally, that we are in the middle of a horrific global war on rhinos, managed by criminal gangs and driven by a perverse consumer appetite for rhino horn in Southeast Asia.

Even so, auctioning the right to kill a black rhino in Namibia is an entirely sound idea, good for conservation and good for rhinos in particular.

In Namibia, the government turned the rhinos over to former poachers, who now sell the rights to hunt them!

But Namibia’s success is also the product of a bold political decision in the 1990s to turn over ownership of the wildlife to communal conservancies — run not by white do-gooders, but by black ranchers and herders, some of whom had, until then, also been poachers.

The idea was to encourage villagers living side by side with wildlife to manage and profit from it by opening up their conservation lands to wealthy big-game hunters and tourists armed with cameras. The hunters come first, because the conservancies don’t need to make any investment to attract them. Tourist lodges are costly, so they tend to come later, or prove impractical in some areas. The Ministry of Environment and Tourism sets limits on all hunting, and because rhino horn is such a precious commodity, rhinos remain under strict national control.

This eliminates the black market, and strikingly, has led to increasing their populations due to more incentives to care from the population. Now the former poachers are protecting against actual poachers.

The theory behind the conservancy idea was that tolerance for wildlife would increase and poaching would dwindle, because community ownership made the illegal killing feel like stealing from the neighbors. And it has worked. Community conservancies now control almost 20 percent of Namibia — 44 percent of the country enjoys some form of conservation protection — and wildlife numbers have soared. The mountain zebra population, for instance, has increased to 27,000 from 1,000 in 1982. Elephants, gunned down elsewhere for their ivory, have gone to 20,000, up from 15,000 in 1995. Lions, on the brink of extinction from Senegal to Kenya, are increasing in Namibia.

By auctioning off these rights, now hunters *pay* for these animals, and save others.

Under an international agreement on trade in endangered species, Namibia can sell hunting rights for as many as five black rhinos per year, though it generally stops at three. The entire trophy fee, in this case $350,000, goes into a trust fund that supports rhino conservation efforts. The fund pays, for instance, to capture rhinos and implant transmitters in their horns, as an anti-poaching measure. Trophy hunting one rhino may thus save many others from being butchered.

And the wildlife experts can choose which animals are slaughtered–usually the violent ones.

Many wildlife groups also support the program because Namibia manages it so carefully. It chooses which individual will be hunted, and wildlife officials go along to make sure the hunter gets the right one. (So much for the romance of the Great White Hunter.) The program targets older males past their breeding prime. They’re typically belligerent individuals that have a territorial tendency to kill females and calves.

I’ve heard other stories about how species of endangered turtle were saved by allowing people to eat them. Once the profits existed, enterprise started to take care of them to make sure the population didn’t plummet. I joke with my students is that the best way to save a resource is to kill it–this applies to animals, trees, anything else. Resources that can’t be used will have less incentives to be protected.

None of this is to say the free market is perfectly suited to protect endangered species, or that the Coase Theorem always sorts of property rights accurately. But it is important to stress to students, especially first years, that government is not always the only option.

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Jan 28, 2014

Unprecedented Talk at University of Arizona College of Law

Following my talk in Tempe at Arizona State University, I travelled onto I-10 to the University of Arizona College of Law, to give a talk on (what else) Unprecedented! Alas, that evening I was facing some stiff competition for attention. Next door, California Supreme Court Justice Goodwin Liu was giving a lecture, and across campus, the #1 ranked Arizona Bearcats were playing a home game. But, it was a good turnout for all who came.

Here is the video.

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