Jens 'n' Frens


	Jens 'n' Frens Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political. "A strong conviction that something must be done is the parent of many bad measures." -- Daniel Webster

Saturday, March 24, 2012 ::: The Supreme Court will be hearing arguments next week that the federal individual mandate to buy health insurance is unconstitutional. David Bernstein has comments and I wish to pick a nit. Bernstein asks -- as have lawyers before him -- whether the mandate can be squared with any limit on Congress's authority under the Interstate Commerce clause or whether upholding the mandate means upholding Congress's authority to "require everyone to eat broccoli?" But the clearer analogy is to a requirement that everyone buy broccoli. Perhaps the logic being used to justify the mandate to buy a product would also apply to a mandate to use that product, but if the proponents of the law want to draw a distinction, it seems like there's one there. Besides, my (not partially uninformed) impression is that, until the late 1930s the clause in question gave Congress the power "To regulate Commerce... among the several States," that from 1942 until the mid-1990s it effectively gave Congress the power "to regulate," (or, if there was some constraint on the clause, perhaps "to regulate activity by people who either might some day be capable of engaging in commerce with other states or use the postal service") and that since Lopez and Morrison, Congress has had the power "to regulate economic activity". I think the Lopez-Morrison-Raich line of cases could suggest a finding that Congress may require people to buy broccoli but must stop short of actually forcing it down people's throats. The power to make you eat broccoli would be left to the states and municipalities. If you live in Bloomberg's New York City, you should probably expect that power to be used. Incidentally, a few weeks ago I saw another common version of this analogy, asking whether Congress could require that we buy GM cars. Someone responded (to the best of my recollection), "they did force us to buy GM cars. We just didn't get the cars." Labels: Health Care, IANAL ::: posted by Steven at 12:10 AM (0) comments Saturday, October 17, 2009 ::: Rush Limbaugh was in discussions as part of a group bidding to buy the NFL's St. Louis Rams, but was deemed too controversial and dropped. A few aspects of this interested me; for one thing, Limbaugh is not remotely far enough out of the mainstream to be considered anathema. More interesting is that even his opponents don't seem to think he's actually vile enough to exclude, as they had to make up implausible quotes to put in his mouth. CNN, which had fact-checked Saturday Night Live the week before, reported one of these "quotes" as fact. Jonathan Adler speculates whether CNN's behavior is sufficiently egregious for Limbaugh to have a case for defamation. It seems to me that if "reckless disregard for the truth" applies to anything, it would have to apply here. On the other hand, I'm not sure he can demonstrate any economic damages. On the gripping hand, if a show-man sued an alleged news organization for "reporting" something that the editor of a student newspaper would have sent back, who do you think would be more interested in a quiet, pre-trial settlement? Labels: CNN, IANAL, lies, NFL, Rush Limbaugh ::: posted by Steven at 10:55 PM (0) comments Friday, July 03, 2009 ::: This version of the Honduran constitution differs slightly from the one my brother put up, but seems very similar; what are in this version labeled sections 313 and 319.2 seem relevant. ARTICULO 313.- Los Tribunales de Justicia requerirán el auxilio de la Fuerza Pública para el cumplimiento de sus resoluciones; si les fuera negado o no lo hubiere disponible, lo exigirán de los ciudadanos. El que injustificadamente se negare a dar auxilio incurrirá en responsabilidad. ARTICLE 313 .- The courts will require the help of the security forces to fulfill their resolutions, if they were refused or were not available, it will be required of citizens. Anyone who unreasonably refuses to give aid will incur liability. This is why the Supreme Court can tell the army to make an arrest. As it happens, there's also this excerpt: ARTICULO 319.- La Corte Suprema de Justicia, tendrá las atribuciones siguientes: ... 2. Conocer de los delitos oficiales y comunes de los altos funcionarios de la República, cuando el Congreso Nacional los haya declarado con lugar a formación de causa; ... ARTICLE 319 .- The Supreme Court shall have the following powers: ... 2. Meet the offenses of both officers and senior officials of the Republic, when Congress has declared the formation of a cause; ... It might be worthwhile to note — this is something I dug up yesterday at some point — that 319.2 was inserted in the same 2003 amendment that seemed to remove 205.15, which isn't removed from this version: ARTICULO 205.- Corresponden al Congreso Nacional las atribuciones siguientes: ... 15. Declarar si ha lugar o no a formación de causa contra el Presidente, Designados a la Presidencia, Diputados al Congreso Nacional, Magistrados de la Corte Suprema de Justicia, Miembros del Tribunal Nacional de Elecciones, Jefe de las Fuerzas Armadas, Secretarios y Subsecretarios de Estado, Jefes de Misiones Diplomáticas, Contralor y Subcontralor, Procurador y Subprocurador de la República y Director y Subdirector de Probidad Administrativa; Article 205.- The following powers are given to Congress: ... 15. To declare whether or not there is cause to form a case against the President, "Designates to the Presidency", Members of the Congress, Justices of the Supreme Court, Members of the National Electoral Tribunal, Chief of the Armed Forces, Secretaries and Deputy Secretaries of State, Heads of diplomatic missions, Controller and Deputy Controller, Attorney and Deputy Attorney of the Republic and Director and Assistant Director of Administrative Probity; where I've translated as "Designates to the Presidency" what seems to be an executive office of some form such that three people hold that title; it doesn't seem to be relevant here. Supposing, though, that, as I thought I saw on the site of the Honduran government yesterday, this provision was removed when the other was put in place, the best I can come up with is that, insofar as impeachment exists in the Honduran system, it is a power held by the Supreme Court, which also has the power to enforce its decisions. And apparently did. Translations starting from google, but with my "assistance" — I believe but cannot guarantee that my changes have contributed to a net increase in the accuracy of the translation. Labels: Honduras, IANAL ::: posted by dWj at 9:14 PM (1) comments Sunday, April 12, 2009 ::: Florida-based Mr Morgan began a blog entitled "Facts about Goldman Sachs" – the web address for which is goldmansachs666.com – just a few weeks ago. In that time Mr Morgan, a registered investment adviser, has added a number of posts to the site, including one entitled "Does Goldman Sachs run the world?". However, many of the posts relate to other Wall Street firms and issues. Goldman Sachs, a few of whose shares I own, has responded with a cease and desist: According to [law firm] Chadbourne & Parke's letter, dated April 8, the bank is rattled because the site "violates several of Goldman Sachs' intellectual property rights" and also "implies a relationship" with the bank itself. I don't know any more about this case than you do, if you've followed that link, and it's quite possible that I don't know any more about intellectual property law than you do, especially if you know anything about intellectual property law. But if "implies a relationship" is referring to the likelihood of confusion test, I hope Goldman Sachs isn't spending a lot of money on Chadbourne & Parke if that money might be more usefully spent on retention bonuses for key employees. Or if that money might be — again, more usefully — thrown in a ditch and set on fire. Labels: free speech, IANAL ::: posted by Steven at 2:15 AM (0) comments Wednesday, March 26, 2008 ::: There's a new Supreme Court opinion out ("Medellin"), finding that neither the federal courts nor the federal executive branch (i.e., W) can tell state courts to give a foreigner a new trial solely on the grounds that he wasn't given access to his consulate. It's almost as exciting as my description makes it sound. I have an inchoate, ill-informed opinion on it, but I'm not going to tell you because it's past my bed time. But check out the Volokh Conspiracy. I may or may not update this entry tomorrow with ignorant bleatings of my own. Labels: IANAL ::: posted by Steven at 12:02 AM (0) comments Tuesday, March 25, 2008 ::: A jury in New Hampshire has deemed a threatening letter from a lawyer to be extortion. I'm sure this was a surprise to the lawyer, but I'm sure the jury is out of line. There's a similar question in fourth amendment law. A police officer can search any property, whether or not there is probable cause, if consent is given, which seems reasonable to me. But my understanding is that the court's definition of voluntary consent is different from a layman's. If a police officer knocks on your door or pulls you over and asks, "may I search your house/car?", is that a request? I think a court would say yes, but I'm not sure it would be clear to the askee that "no" is an option. And I think I've mentioned this dilemma in freedom of speech cases, particularly in university settings. The administration has to be allowed to express its own opinions, but has to do it in a way that makes clear that students and staff won't be punished for disagreeing. The line between impermissible coercion and commendable persuasion is sometimes unclear. I don't know that the jury wasn't too aggressive, but I also can't say they were unreasonable. Labels: IANAL ::: posted by Steven at 8:27 PM (0) comments Tuesday, January 01, 2008 ::: The Supreme Court is planning to hear a case on whether lethal injection is "cruel and unusual" because it can be painful if misperformed. Orin Kerr sums up the argument. An excerpt: The brief for the defendant (the one making the constitutional claim) tries to deal with these issues by making two moves. The first move is to aggregate risks: the brief argues that when determining the risk of pain, the Court should aggregate all of the executions that use a particular protocol: the question shouldn't be whether a particular execution is likely to involve inadvertent pain, but rather the chances that someone will suffer terrible pain if the protocol is allowed given the hundreds of people who may be executed using that protocol. (Brief at 42). The aggregation move magnifies the risk; it's not just one person's isolated risk that matters, but rather the cumulative risk of everyone in the future or in the past subject to that protocol. Question: would it be unconstitutional to sentence someone to be raped? If so, is it unconstitutional to sentence criminals to prison as long as the incidence of prison rape is non-zero? (If not, I'm not sure I have a follow-up question, but I have a follow-up double-take.) My instinct (which turns out not to be legally binding) is that there has to be some probability between zero and one, exclusive. I doubt the court is likely to formulate a rule using a numeric probability, but I think a significant foreseeable likelihood of causing impermissible pain would be unconstitutional. I think I consider 5-10% significant, but 1% might be significant if there's a simple way of avoiding it. In this case, though, there doesn't seem to be any data on to what the probability actually is. It seems to me - again, just my instinct - that the defense should have to prove that the policy-makers either knew or should have known (or should now know) that the method of execution is impermissible. It seems to me that the court may offer a ruling on the core issue (at least if the Chief isn't writing the opinion), but the outcome is likely to turn on who has the burden of proof. Based on what I know, whoever has the burden of proof hasn't met it. Labels: IANAL ::: posted by Steven at 11:11 PM (0) comments