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I usually avoid commenting on matters of foreign affairs, though I will highlight this story as it relates to several interests of mine:

In an effort to stabilize Ukraine and extend its authority, the interim government has set a deadline of Friday for turning in the illegal firearms that are now carried openly by so-called self-defense groups in Independence Square, the politically important plaza in the center of the capital.

The order was seconded on Thursday by the French ambassador to Ukraine, Alain Rémy, who said the disarmament of the militias that helped overthrow the former government is a central requirement for the European Union to begin disbursing financial aid, along with the government fighting corruption.

Prime Minister Arseniy P. Yatsenyuk, who was a staunch supporter of the protesters but never condoned violent tactics, set the deadline for Friday, the day Ukraine is scheduled to sign the political articles of an association agreement with the European Union.

“For those who want to defend their country with an assault rifle in their hands, welcome to the National Guard or the Army,” Mr. Yatsenyuk said in a speech this week.

Members of the self-organized defense groups that formed to defend Independence Square and other protest sites during the uprising have been reluctant to comply. Like gun owners in countries like the United States and Switzerland where ownership of firearms is widespread, they contend that the weapons are needed to defend the country against a possible foreign invasion and to defend their freedoms from potential government abuse.

Maybe Justice Stevens can help draft their law limiting ownership of arms to those in the militia?

am very excited that students at other schools continue to watch, and learn from my videos. You can watch them all here. Here is a note from “an appreciative midwestern 1L.”

Professor Blackman,

I just want to say THANK YOU for having this material available in such a consistent and organized manner. Additionally I would like to compliment you on your oratory and delivery of the material, your lectures are a helpful supplement to the materials that I am covering in my 1st year property classes. I will often listen to your lectures on my commute to and from school as a prep. for my class assignments.

I was curious to know if there is any other content applicable to your Property lectures available online such as notes or outlines. Sometimes there are gaps when the students answer and the mic doesn’t pick them up in the recording, I notice that you generally type out all of the key points as you go along and was wondering if that may be preserved somewhere.

Thanks again, as I said your lectures are most helpful and I will continue to use them so long as they correspond to my necessary case readings. Hopefully I can make good use out of some of your other classes in the future.

I am toying with the idea of making Kahn-Academy style videos for both ConLaw and Property–short, 5-10 minute videos that explain a single case or topic.

Under the Federal Rules of Appellate Procedure, the record on appeal is limited to the original papers and exhibits filed in the district court.” That’s it. Lawyers are not allowed to introduce new facts and exhibits outside the record. Yet, this rule has been totally lost on Judge Posner, who has deemed it appropriate to hold a fashion show in chambers because a fact wasn’t clear in the record below.

Mitchell v. JCG Industries was a labor case involving the amount of time it takes to doff and don protective gear. In the majority opinion, Judge Posner noted that the district court did not opine on how long the process took, and added “The limitations of the trial process as a method of finding certain types of fact must be recognized.”

The district judge did not opine on how long the donning and doffing take, a question difficult to answer in the usual way of judicial fact determination. The plaintiffs would testi‐ fy that it takes 10 to 15 minutes, the employer that it takes only 2 to 3 minutes, and how would a judge or jury know who was telling the truth? The plaintiffs could be filmed changing, but their incentive would be to dawdle; the com‐ pany could doubtless find a few speed demons among the workers. The limitations of the trial process as a method of finding certain types of fact must be recognized.

So, rather than simply relying on the factual record, which offered differing accounts of how long the process took, Judge Posner took matters into his own hands, or more accurately, his own chambers, and held an Article III fashion show.

One of us decided to experiment with a novel approach. It involved first identifying the clothing/equipment that the defendant’s plants use and buying it (it is inexpensive) from the supplier. Upon arrival of the clothing/equipment three members of the court’s staff donned/doffed it as they would do if they were workers at the plant. Their endeavors were videotaped. The videotape automatically recorded the time consumed in donning and doffing and also enabled verification that the “workers” were neither rushing nor dawdling.

The videotape reveals that the average time it takes to re‐ move the clothing/equipment is 15 seconds and the average time to put it on is 95 seconds. The total, 110 seconds, is less than two minutes, even though the “actors” had never worked in a poultry processing plant and were therefore in‐ experienced donners/doffers of the items in question.

I’m not sure that citing this is evidence of approval or disapproval. In this event that it is not disapproval, I think the Court was wrong to sanction this. In fact, Justice Breyer is the Judge Posner of the Supreme Court. He cites facts from “the Internet” and admitted that because the record wasn’t clear he “googled it.”

Chief Judge Wood was not amused.

I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post‐ argument experiment conducted in chambers by a judge. Ante at 9–10. As the majority concedes, this cannot be con‐ sidered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a dis‐ puted issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment pro‐ ceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have al‐ ready shown to be inconsistent with government regulations for hygiene within a meat processing plant.

In discussions of judicial ethics, whenever someone questions whether a judge can do X, the answer invariably is, “Well, Judge Posner does it.” That can’t be the correct answer. Judge Posner, sui generis in every respect imaginable, cannot and should not be held up as the baseline for what is and is not proper for judges.

I often get frustrated when libertarians are called conservatives by the media. But I accept it.

However, when libertarians are described as *really* conservative I get annoyed. Recently I chuckled when the New York Times called Cato “ultraconservative.” Huh?

In a recent blog post, LawProf Eric Segall calls Richard Epstein “arch conservative.” Huh?!

The proceedings began with ultra-liberal Erwin Chemerinsky and arch conservative Richard Epstein debating whether the Constitution is dead or alive.

In no conceivable sense is Richard an “arch conservative.” I don’t think he can even plausibly be called a “conservative.” For crying out loud, he just published an 800-page book about the liberal Constitution.

I would also take issue with the first characterization. Erwin Chemerinsky is not an “ultra-liberal “in either the classical or modern sense of the word. Chemerinsky is great supporter of using the power of the state to ensure equality, far more than protecting liberty by itself. Remember when he proposed abolishing all private schools to ensure equality in education? That is not a liberal position. He thought there would be nothing unconstitutional about the government forcing individuals to buy broccoli or GM vehicles. Is that a liberal position? Or when he recommended that Justice Ginsburg retire because she is too old. Garrett Epps and Dahlia Lithwick easily disposed of this silly, ageist, border-line sexist, non-liberal claim.

Labels are important.

In his new book, Average is Over, Tyler Cowen makes a number of observations about the intersection of technology and society, and explains how these shifts will impact our society. Specifically, Cowen argues that being average is over. Echoing forecasts by Charles Murray, Cowen explains how the middle class will continue to shrink as technology can replace many more of their routine jobs. Those with certain skills and abilities, or can learn to work with technolgoy, will continue to flourish more. Those who do not adapt, Cowen argues, will earn less, and learn to deal with less (and that is not necessarily a bad thing, he contends). One manifestation of this shift will be that people with less means will, to use Ilya Somin’s framework, vote with their feet, and move to places where living is less expensive, and a lower salary will go further.

Cowen identifies (my adopted home state) Texas as a bellwether for this mass migration. The population of Texas, in recent years, has exploded. But why? According to most progressive measures, Texas is hardly a place people would want to live:

Why is Texas so popular? For a long time the state has had one of America’s highest murder rates and it has a high property crime rate. The weather is warm but it is not a calm warm-weather state, given the storms and tornados. Sometimes it is too warm, such as during the thirty-five straight days over a hundred degrees in July and August 2011 in the Dallas– Fort Worth area; worse yet, that wasn’t a record. Texas is skimpy on welfare benefits and Medicaid coverage, and 27 percent of the state has no health insurance coverage. Texas has one of America’s poorest performing educational systems, at least as measured by high school graduation rates, which in Texas are below 70 percent.

I should note that Texas has not expanded Medicaid under Obamacare, thereby putting Texans between 100% and 133% of the poverty line out of luck. Further, Texas has erected similar barriers to HHS promoting Obamacare.  Kathleen Sebelius said as much during her recent testimony.

Ms. Sebelius said that state laws and other barriers had made it difficult for some Texans to take advantage of the new insurance options. State officials in Texas, which has the highest uninsured rate of any state, rejected the expansion of Medicaid and declined to establish their own health insurance marketplace. So far, according to the latest data from the federal government, 295,000 people in Texas have selected private plans through the federal marketplace.

And yes. Texas is hot as hell. It is unbearable four months out of the year.

But what does Texas have? Job growth and low cost of living:

What Texas does have is very cheap housing and a decent record of job creation (you don’t have to credit this to any particular Texas governor, any more than you should blame governors for the high murder rate). In other words, if you live in Texas, your locale will offer C-grade public services but you may have more cash in your pocket than if you lived somewhere else. You have a better chance of finding a job and will surely find cheaper housing.

In particular in (my adopted home city of) Houston, the lack of formalized zoning has made the cost of building housing significantly lower.

The cheap housing doesn’t just come from Texas’s having a lot of land; there is another factor, namely that zoning in Texas is relatively weak. For instance, Houston doesn’t have traditional zoning. You might find an office tower, a used-record store, and a whorehouse all right next to your home. Houstonians live with that, and since home prices are reasonable the relatively wealthy can insulate themselves from the less pleasant consequences of mixed-use neighborhoods. In any case, the absence of zoning makes the homes cheaper. I don’t expect that trend to spread to all of America because suburban homeowner associations are politically powerful. Zoning may become relaxed in more parts of the country, but in the meantime people are voting with their feet and moving to Texas.

Yet, this tees up the important question. What do Americans prefer when choosing a place to live? Better public services or more cash? Cowen argues that it is the latter.

I’ll return to that, but, whether or not we make other real estate reforms across the country, there is a more fundamental, apparently  apparently obvious, and yet still underappreciated lesson: People really like extra cash in their pocket. They like that cash in their pocket more than our politicians wish were the case. You might think this desire is noble, à la Ayn Rand, or you might think it is selfishly unethical. In any case, I’d like to explore what this love for the “filthy lucre”— which isn’t going away— means for our future.

Since there is considerable net in-migration to Texas, I conclude that a lot of Americans would rather have some more cash than better public services. The other states experiencing significant in-migration are in the South and the less expensive parts of the West. For the most part, those are affordable states with decent job creation records, subpar public services on the whole, and cheap housing. Not everyone wants that bundle, as you will see if you poll the wealthy upper-middle-class residents of Brookline, Massachusetts or my own neighborhood in northern Virginia. Nonetheless, on the whole, we as a nation are moving in that direction.

When people have more money in their pockets, they can decide what they want to buy. This, it seems, outweighs a desire to rely on government services.

To Cowen, America will eventually have to look more like Texas.

The other states experiencing significant in-migration are in the South and the less expensive parts of the West. For the most part, those are affordable states with decent job creation records, subpar public services on the whole, and cheap housing. Not everyone wants that bundle, as you will see if you poll the wealthy upper-middle-class residents of Brookline, Massachusetts or my own neighborhood in northern Virginia. Nonetheless, on the whole, we as a nation are moving in that direction.

Many Americans will end up living in areas with cheaper housing and lower-quality public services, if only to give themselves more cash in their pocket. Some of those areas might be a bit ugly to the eyes, again as a trade-off for lower costs. As cross-country moving proceeds, and changes what we are, the United States as a whole will end up looking more like Texas.

This conclusion (which I don’t think Cowen fully proves here, but I’ll assume for purposes of this discussion) offers striking implications for the developments of Red State and Blue State America (very roughly speaking). As Blue States continue to expand social services, thereby limiting the free cash people have in their pockets, populations will dwindle. As Red States continue to keep government spending low, thereby leaving more free cash in the pockets of people, populations will grow. Of course, when the populations of the Blue States shrink too much, budgets will eventually have to crunch.

Alas, it is much more difficult to vote with your feet with respect to federal spending–and the Feds may soon have to bail out many local governments that spent beyond their means, and no longer have the populations to tax.