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Faculty Events
The Robert A. Levy Fellows Workshops are designed for presentation
of original scholarly research in its early stages that
reflects the importance of private property, the rule of
law, and the market process to the preservation of individual
liberty. Workshop speakers include the Law School's Levy
Fellows, full-time faculty, and guests.
Spring 2005 Schedule
December 2007
 Nathan A. Sales, a former official at the U.S. Department of Homeland Security and the U.S. Department of Justice, will join the faculty of George Mason University School of Law as an Assistant Professor in the spring 2008 semester. Professor Sales will teach National Security Law and Administrative Law.
From 2006-2007, Sales served as Deputy Assistant Secretary for Policy Development at DHS. His work focused on combating terrorist travel and improving information sharing. Sales led DHS's efforts to draft and implement legislation that strengthens the security features of, and expands, the Visa Waiver Program (which allows citizens of certain countries to travel to the United States without a visa). He headed the U.S. delegation in talks with seven countries to implement the new visa waiver security measures and served as the Secretary of Homeland Security's Special Envoy to South Korea.
Sales previously was Counsel, then Senior Counsel, in DOJ's Office of Legal Policy. In 2002, he received the Attorney General's Award for Exceptional Service – the Department's highest honor – for his role in drafting the USA PATRIOT Act. He received the Attorney General's Distinguished Service Award in 2003 for his work on judicial confirmations. Sales returned to OLP in summer 2005 to lead the Justice Department's "war room" for the confirmation of Chief Justice John Roberts.
During the 2005-2006 academic year, Sales was John M. Olin Fellow at the Georgetown University Law Center. From 2003 through 2005, he practiced at the Washington, D.C., law firm Wiley Rein & Fielding LLP. He clerked for the Honorable David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit.
Sales was graduated from Duke Law School magna cum laude, joining the Order of the Coif and serving as Research Editor of the Duke Law Journal. He received his A.B., summa cum laude, from Miami University, where he was elected to Phi Beta Kappa.
"Nathan Sales is one of the most promising young legal scholars in the country," said the law school's dean, Dan Polsby. "We are delighted that he has joined our community."
Professor Michael Krauss termed the struggle over tort reform "a 100 years' war," telling The National Law Journal that it is a battle that will extend for a prolonged period, fueled by political events such as presidential elections.
Krauss's remarks were carried in an article profiling the Center for Constitutional Litigation in Washington, DC, an organization that serves to fight tort reform by assisting in suits to overturn state and federal laws that are perceived to deprive citizens of legal redress.
A Small Firm Wages '100 Years' War' on Tort Reform, The National Law Journal, December 17, 2007. By Lynne Marek.
Read the article
Amy Oliver's December 13 news radio show on Colorado's KFKA 1310 AM featured Professor Ilya Somin with a discussion of the Colorado Supreme Court's recent decision in the important property rights case of Wheat Ridge Urban Renewal Authority v. Cornerstone Group.
In the case, the developer sued to compel the city to go through with the condemnation and transfer the affected property against its will after the city decided to cancel the project. The state's high court ruled for the city in deciding the case.
Somin holds that the decision undermines property rights more than it protects them because the Court's reasoning allows the government nearly unlimited condemnation ability.
Amy Oliver Show, KFKA 1310 AM News Radio, December 13, 2007.
Professor Craig Lerner advised that philanthropists should give to something they believe in or limit a gift to five or 10 years to avoid finding years later that their gifts are supporting something that would not have been their choice.
Lerner's comments came during a conference on higher education philanthropy sponsored by the Center for Excellence in Higher Education, a new nonprofit group that strives to represent the interest of donors ready to make major gifts. Among the topics examined by a panel of lawyers, philanthropy experts and college alumni at the conference was the redirecting of gifts intended for a specific purpose without adequate notice to the donors.
Donations to American higher education have been doubling every decade.
Giving Thought to Donor Intent, Inside Higher Ed (insidehighered.com), December 7, 2007. By Elia Powers.
Excerpt:
"Ron Malone, the lead plaintiff attorney in Robertson v. Princeton, a case involving Princeton’s Woodrow Wilson School of Public and International Affairs, said it’s important for donors to consider whether they will have the legal standing to enforce how a gift is used, and whether the recipient college has mechanisms in place to report on how money is being spent.
"More donors are demanding that kind of information and wanting to know what’s happening along the way with their gifts, said Anne Yastremski, an alumna of Randolph-Macon Woman’s College (now the coed Randolph College) and executive director of Preserve Educational Choice, the alumna/student/donor organization supporting litigation against the college over its decision to admit men and to sell off part of its art collection.
"But Malone said donors who have specific ideas in mind for their gifts often fail to clearly articulate them when talks with colleges take place and papers are being signed.
“'It’s during that period of euphoria over the gift-giving process when donors need protection,' Malone said. 'Once that check clears, attitudes can change. [Those who handle the money at colleges] aren’t bad people; they are just asking the wrong questions,' he added. 'They’re saying, "What’s the best way to spend the money," rather than, "What covenant do we have with our donors. What did we agree to do with their money?"
"Craig Lerner, a law professor at George Mason University, said donors shouldn’t be surprised years later if a gift made with only general terms isn’t supporting something they approve of down the line, particularly if they are giving to sources they don’t know well. Instead, he said philanthropists should consider finding someone or something they truly believe in, limit a gift to five or 10 years and have enough trust so that strings don’t need to be attached.
"Added Ruff Fant, who identified himself as a donor to Vanderbilt University: 'The tendency toward highly targeted gifts isn’t good for higher education."
Read the article
Contributing to a Washington Times article about end-of-life issues, Professor Lloyd Cohen pointed out that both a power of attorney and a living will present complex problems for those who are facing death and their families.
"In early years, people got ill or injured and died quickly or recovered. This other status where you're maintained in a compromised state didn't exist," Cohen commented, emphasizing the difficult issues faced by the decision maker in determining when and how it is appropriate to withhold forms of treatment.
Consider a living will: How long a person wants to be kept alive by technology, The Washington Times, December 4, 2007. By Christian Toto.
Excerpt:
"The Patients Self-Determination Act of 1991 set the living will practice in motion, says Lloyd Cohen, a law professor with George Mason University.
"'In early years, people got ill or injured and died quickly or recovered. this other status where you're maintained in a compromised state didn't exist,' Mr. Cohen says.
"Living wills are no laughing matter, but Mr. Cohen points to a 'Seinfeld' episode in which Kramer (Michael Richards) left his medical future in Elaine's (Julia Louis-Dreyfus) hands.
"Elaine had to decide under which scenario doctors should pull the plug on Kramer, a situation played for uncomfortable laughs.
"A show about nothing told the public plenty about how complex living wills can be.
''Giving someone a health care power of attorney, rather than a living will, can give one comfort, but it still remains fraught with complications, Mr. Cohen says.
"He recalls what happened when his uncle was near death years earlier. His aunt was left to make a decision on her husband's behalf. His doctors told her he would never wake from his unconscious state.
"She requested he stay on a ventilator and respirator, thinking she didn't want him to die an unnatural death.
"What she meant was, 'I don't want him to die as a result of my decision,' he says."
Liberal education, says Professor Peter Berkowitz, serves liberal and democratic ends by remaining true to its highest ideals, protecting the classroom from politicization.
Berkowitz' comments appeared in his book review of Anthony T. Kronman's "Education's End: Why Our Colleges and Universities Have Given Up on the Meaning of Life" (Yale University Press), which appears in the December 2007/January 2008 edition of Policy Review.
Berkowitz calls Kronman's book "a compelling reconstruction of the moral and intellectual sources of the culture of political correctness, coupled with an incisive analysis of the severe damage political correctness has visited upon the humanities."
What is a University For? Policy Review, December 2007/January 2008. By Peter Berkowitz.
Excerpt:
"For more than two centuries, from the founding of Harvard College in 1636 to the decades following the end of the Civil War, American colleges saw their mission as providing instruction in the ends of human life. Since colleges thought they knew what the best life was, and since instruction proceeded on dogmatic assumptions grounded in Christian faith, Kronman calls this period 'the age of piety.' The curriculum derived from the 'classicist tradition.' It was fixed from beginning to end and drew heavily on the Greek and Roman authors. By the early part of the nineteenth century, colleges had introduced into the curriculum astronomy, geology, chemistry, political economy, and Enlightenment philosophy, but the spirit in which professors conducted their courses remained steady. Faculty regarded themselves first and foremost as teachers and saw no sharp separation between classroom studies and moral education.
"In the years following the end of the Civil War, a new understanding of higher education took hold in the United States. Under the influence of the modern German university, long-established American colleges and newly created American universities alike increasingly embraced 'the research ideal.' Instead of putting the education of students at the center of the university’s mission, the research ideal gave pride of place to original scholarship and the production of knowledge. This shift shook the intellectual underpinnings of the classicist tradition. For the research ideal assumed that knowledge was progressive, valued creativity over devotion to tradition and, through the explosion in scholarship it set off, undermined the old belief that a single individual could master the main areas of human learning. These changes, combined with the growing sense in nineteenth-century America that the ends of a human life were plural not singular and that reasonable people could differ about the role of faith in a good human life, transformed higher education. Faculty increasingly wished to teach courses and design curricula that reflected their specialized research interests. And this desire fit conveniently with the increasingly common belief that students were in the best position to choose those among the proliferating variety of courses offered by the university that best suited their interests and ambitions.
"The advent of the research ideal put pressure on the study of the ends of human life but did not banish it altogether. For almost 100 years, such study found refuge in the humanities. There it was protected, but also revised, by another new ideal that emerged in the aftermath of the Civil War. Kronman calls it 'secular humanism,' and his book is devoted to rescuing it. This ideal overlaps considerably with Mill ’s high modern liberalism — and so will be familiar to readers of Isaiah Berlin’s writings on liberty — but in the end it owes most to Max Weber, particularly in the rigid strictures Kronman advances about the unreasonableness of faith and the disenchantment of the world."
Read the review
November 2007
The 2008 presidential campaigns of Senator Fred Thompson and former New York Mayor Rudy Giuliani have chosen Professor Todd Zywicki and Professor Ronald Rotunda, respectively, for positions on key campaign committees.
On November 16, the Fred Thompson campaign announced that it had chosen Zywicki for its Law Professors Committee within the Lawyers for Fred Coalition.
The same day, the Rudy Giuliani Presidential Committee announced the addition of Rotunda to its Justice Advisory Committee chaired by former Solicitor General Ted Olson.
Zywicki and Rotunda join Professors Michelle Boardman, Timothy Muris, and Peter Berkowitz as appointees to positions within the 2008 presidential campaigns, bringing the number of Mason Law professors serving as campaign advisors to five.
Thompson Campaign Announces Lawyers for Fred Coalition, US Federal News, November 16, 2007.
Rudy Giuliani Campaing Unveils Additional Justice Advisory Committee Members, US Federal News, November 16, 2007.
Speaking at the 2007 Pope Center Conference, Professor Todd Zywicki likened what he terms academia's "new dogma" to the Spanish Inquisition.
The October conference included both speakers and guests who actively participate in varied attempts to alter higher education's path.
Zywicki's speech centered on the types of barriers erected to preclude the election of independent alumni to trusteeships at colleges and universities, as well as attempts to minimize the power of those candidates once elected.
Zywicki himself has been at the center of a struggle over trusteeships that is currently playing itself out at Dartmouth College.
Storming the Academic Fortress, Leland Tribune News, November 14, 2007. By Jay Schalin.
Excerpt:
"Zywicki’s speech addressed the barriers erected to prevent independent alumni from becoming trustees at Dartmouth, and the subsequent attempts to dilute the power of the independent trustees once those barriers fell. The schools board of trustees has historically been divided between elected and appointed members. Currently there are eight of each. Procedures and entrenched interests have consistently produced trustees that rubber-stamp the 'dogma-driven' agenda of the left-leaning faculty, according to Zywicki. There is one alternative path: an independent 'petition' candidate can be elected, but the aspiring trustee first must get 500 alumni signatures to get placed on the ballot. Such candidates were extremely rare until recently, Zywicki said. In the past, producing all the signatures was an 'insuperable hurdle, because the college wouldn’t give you mailing lists.'
"Starting in 2004, with the Internet enabling rapid-fire communications among alumni, four reform-minded petition candidates were elected in short order, including Zywicki. The rest of the board, however, dug in their heels at this intrusion. They added eight appointed seats, thus 'breaching the principle of parity' that was the system’s original intent, according to Zywicki.
“'They couldn’t win at the ballot box, so they got rid of the ballot box,' he continued. Yet the established trustees’ efforts went for naught. The threat of a lawsuit by an alumni organization forced the board to postpone any changes to the board’s composition. Despite their minority status, Zywicki said, he and his cohorts have managed to start dismantling Dartmouth’s 'social engineering' agenda, including forcing repeal of the (politically correct) speech code."
Read the article
Hatred tends to cloud judgment and therefore is a passion a citizen should not be proud of and should avoiding bringing to public debate says Professor Peter Berkowitz.
Berkowitz argues in the WSJ.com Opinion Journal that hatred of President George W. Bush subverts sound thinking and violates the hallmarks of the truly liberal spirit, ultimately compelling those driven by hatred to reduce complex issues to matters of good and evil.
The Insanity of Bush Hatred, WSJ.com Opinion Journal, November 14, 2007. By Peter Berkowitz.
Excerpt:
"Hating the president is almost as old as the republic itself. The people, or various factions among them, have indulged in Clinton hatred, Reagan hatred, Nixon hatred, LBJ hatred, FDR hatred, Lincoln hatred, and John Adams hatred, to mention only the more extravagant hatreds that we Americans have conceived for our presidents.
"But Bush hatred is different. It's not that this time members of the intellectual class have been swept away by passion and become votaries of anger and loathing. Alas, intellectuals have always been prone to employ their learning and fine words to whip up resentment and demonize the competition. Bush hatred, however, is distinguished by the pride intellectuals have taken in their hatred, openly endorsing it as a virtue and enthusiastically proclaiming that their hatred is not only a rational response to the president and his administration but a mark of good moral hygiene."
Read the article
The Senate should defeat the Law of the Sea Treaty (LOST) maintains a Washington Times editorial, citing the opinions of Professor Jeremy Rabkin in its assertion that the most dangerous aspect of the treaty is the damage it would do to U.S. efforts to combat terrorism and to stop proliferation of weapons of mass destruction.
Under the treaty, the United States would be bound by the judgment of foreign arbitrators who might be opposed to efforts on behalf of U.S. national security, thus creating serious legal problems in maintaining appropriate U.S. defense.
Editorials: Defeat the Law of the Sea Treaty, The Washington Times, November 13, 2007.
Excerpt:
"But what is most disturbing about the treaty is the damage it would do to U.S. efforts to combat terrorism and to stop the proliferation of weapons of mass destruction. Jeremy Rabkin, a law professor at George Mason University and a foremost scholar on international law, points out that Article 88 of LOST declares that 'the high seas shall be reserved for peaceful purposes,' and makes no mention of exceptions in time of war. That omission was foolish 25 years ago and it's dangerously lethal in an era of state-supported Islamic jihad. The treatymakes no mention at all of 'terrorism,' for understandable reasons: The U.N., unlike the rest of us, has been unable even to agree on a definition of terrorism.
"LOST would create serious legal problems for U.S. defense planners. Could the U.S. military continue the Proliferation Security Initiative (PSI), a Bush administration program led by John Bolton, the former undersecretary of State for arms control and international security, which focuses on interdicting chemical, biological and nuclear weapons components on the high seas? Under Mr. Bolton, it broke the Pakistan-based A.Q. Khan nuclear proliferation network, collaborators in terror with Libya, Iran and North Korea. Could the United States under LOST intercept planes carrying terrorists, such as the men who murdered an American passenger aboard the Italian cruise ship Achille Lauro in 1985? The answers are not clear.
"The United States argues that PSI and the Achille Lauro interception are perfectly legal; terrorists and proliferators of weapons of mass destruction argue that both U.S. actions were illegal. Under LOST, this question would be submitted to international arbitration. Under Article 296, Paragraph 1 of the treaty, the United States would be required to accept the results as authoritative. Under the treaty, for example, in a dispute between, say, the United States and Iran, the two countries would choose an equal number of arbitrators, with the tiebreaking vote made by someone chosen by the U.N. Secretary-General. The Bush administration counters that there are 'safeguards' in the treaty that would allow the United States to exempt 'legitimate military activities' from the treaty's constraints. But these are empty 'safeguards.' The United States would be forced to choose between a robust response to terrorism and submitting its judgment to foreign judges who might not be particularly interested in the national security of the United States."
Read the article
Visiting Assistant Professor Victoria A. Espinel delivered the keynote address at the State Bar of California's Intellectual Property Law Section Conference. Entitled the 32nd Annual Intellectual Property Institute, the event took place in Monterrey, California, in early November.
In her address Espinel discussed international IP-related issues, foremost among them international trade negotiations and agreements regarding protection and enforcement of intellectual property and their impact on the practice of intellectual property law.
Espinel is the former Assistant United States Trade Representative for Intellectual Property and Innovation in the Office of the United States Trade Representative. She will teach courses in international trade and in international intellectual property and policy at the law school in spring 2008.
Assistant Professor of Law Allison Hayward was selected to participate in the culminating event of a collaboration between The Colonial Williamsburg Foundation and the "By the People" project team of MacNeil/Lehrer Productions to host a national conversation called "Dialogues in Democracy: Life, Liberty and the Pursuit of Happiness." The event participants were selected for the project as emerging leaders and thinkers of the 21st century.
The project examines how the democratic values of the founding generation connect with America in the 21st century and asks whether a nation that will grow to 400 million people in the next 35 years can achieve a shared commitment to citizen responsibilities and rights.
Dialogues involving the 45 selected individuals take place over a three-day period in early November in Colonial Williamsburg.
A "Dialogues in Democracy" television program, anchored by Jim Lehrer as part of his "By the People" series, will be broadcast on PBS in January 2008.
Read more about the event and Professor Hayward's comments in these related articles:
PBS filming in Colonial Williamsburg, Daily Press (Newport News, VA), November 10, 2007. By Bentley Boyd.
Experts: History guides us toward our future, Daily Press (Newport News, VA), November 11, 2007. By Bentley Boyd.
What was the intent of the founders when they drafted the Second Amendment?
That question has taken the form of a grammatical debate that may land in front of the U.S. Supreme Court, which should announce shortly whether it will rule on the constitutionality of the existing Washington, D.C., strict gun control ordinance. A ruling of the U.S. Court of Appeals for the D.C. Circuit inadvertantly ignited this controversy over commas.
The one-sentence Second Amendment contains three commas, the first and last of which are not in dispute. The second comma, however, has given rise to an argument over the meaning of the clause that precedes it relative to the remainder of the sentence.
To those who view the opening clause as absolute, the Second Amendment is really about the right of militias, rather than individuals, to bear arms. That interpretation would save the D.C. gun ban and limit the force of the Second Amendment.
Nelson Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment, disagrees with that interpretation, saying the militia portion of the sentence "is grammatically independent of the rest of the sentence." In his view, "The Second Amendment has exactly the same meaning that it would have had if the preamble had been omitted." Those following Lund's reasoning would conclude that the Second Amendment protected an individual's right to bear arms.
It remains to be seen how proponents of Constitutional originalism on the Court will view the argument, should the Court elect to hear the case.
A question of commas. Period., Legal Times, November 5, 2007. By Tony Mauro.
Excerpt:
"When Supreme Court justices sit down Nov. 9 to ponder whether they should rule on the constitutionality of Washington, D.C.'s strict gun control ordinance, they should be forewarned that they are stepping into a quagmire.
"No, not the political quagmire over gun control. Another suddenly intense debate is enveloping the case--this one over what all those commas in the Second Amendment meant in late 18th century America.
"It may sound way beyond trivial, but it's not.
"You can blame the U.S. Court of Appeals for the D.C. Circuit for igniting this esoteric debate. It ruled on March 9 that because of the Second Amendment's second comma, the first half of the amendment--the militia half-- is basically a throat-clearing preface that does not qualify the individual right to bear arms that the second half protects. Jedge Laurence Silberman, who wrote the 2-1 decision, went on to conclude that the District's handgun ban violates that individual right.
"Grammarians and gun control backers quickly pounced, saying the D.C. Circuit got it flat wrong. Gun rights advocates have hustled to counter that view."
Read the article
Read Professor Lund's related paper, D.C.'s Handgun Ban and the Constitutional Right to Arms: One Hard Question?
Professor Sally Katzen-Dyk made a second trip to Capitol Hill in as many weeks to provide testimony for an oversight hearing of the House Judiciary Committee's Commercial and Administrative Law Subcommittee. The subject of the hearing, the Congressional Review Act, allows Congress to review government agency-issued business regulations and to overrule those regulations by passage of a joint resolution.
Those testifying with Professor Katzen-Dyk at the November 6 hearing were John Sullivan, parliamentarian of the House of Representatives, and Mort Rosenberg, specialist in American public law at the Congressional Research Service.
Read Professor Katzen-Dyk's testimony.
Television stations currently have nearly exclusive access to prized spectrum via so-called "white spaces" that exist in each TV market to properly space channels to avoid signal collision. In the Federal Trade Commission's plan for digital TV allocation, each TV market would have spectrum for 49 digital TV stations. Much of that space, which could be used for wireless communications, will remain unused.
"Nobody has 49 channels of over-the-air digital TV," Professor Thomas Hazlett commented to Multichannel News. "The average is eight [stations] per market," he said.
The politically powerful National Association of Broadcasters (NAB) is presently at odds with the White Spaces Coalition, an alliance of technology giants united behind a desire to utilize the airwaves allocated to broadcast TV but which remain unused by any TV station.
Vacant Channels Could Fuzz Up Free TV, Multichannel News, November 5, 2007. By Ted Hearn.
Excerpt:
"The effort to force TV stations to share their spectrum could be the front end of a much larger struggle to end free, over-the-air TV in the U.S. Spectrum-hungry innovators are trying to pound home to policymakers that 96 million U.S. homes have at least one TV set connected to cable or satellite TV services, and 245 million Americans go about their business with a wireless phone or PDA that returns Web searches at crawling speed, according to CTIA, the Wireless Association.
"Meanwhile, TV stations directly serve no more than 19 million homes. Under the FCC's digital-TV allocation scheme, each TV market would have spectrum for 49 digital TV stations. But much of the space still is likely to go unused.
"'Nobody has 49 channels of over-the-air digital TV. The average is eight [stations] per market,' said Thomas Hazlett, professor of law and economics at George Mason University, who has long advocated payment plans to move TV stations to pay-TV platforms.
"In Washington today, the political reality is that the NAB's power keeps growing even while consumer reliance on free TV declines -- a paradox that policymakers refuse to confront because it is so hard to take on the NAB when lawmakers want to be on good terms with their local TV and radio stations."
The possibility of a Federal Elections Commission inquiry into charges of coordination of activities in Ohio's 5th District Republican primary would underscore the complexities inherent in such charges, says Professor Allison Hayward.
Commenting in the Toledo Blade, Hayward, a former FEC lawyer, said that proving coordination of activities in the case may be a difficult thing.
"It's complicated because it's been subject to court challenges and in some ways unresolved," said Hayward.
Federal election law forbids a PAC from directly coordinating its message and materials with a candidate in cases involving contributions by the PAC of $5,000 or more to a campaign. In the Ohio case, a candidate is questioning his opponent's use of a college student to coordinate activities between the opponent's campaign and a Washington-based political action committee heavily invested in the primary.
Latta camp questions link of BGSU student to PAC, Toledo Blade, November 2, 2007. By Joshua Boak.
Read the article.
The House Committee on Homeland Security heard testimony this week from Professor Sally Katzen-Dyk, who participated in a panel before its Subcommittees on Emerging Threats, Cybersecurity, and Science and Technology and on Transportation Security and Infrastructure Protection.
The topic of the October 31 hearing was "Enhancing and Implementing the Cybersecurity Elements of the Sector Specific Plans."
A webcast of the hearing is available online. Please scroll to the page bottom and click on the link.
Read Professor Katzen-Dyk's testimony.
October 2007
Bringing an end to an ongoing controversy that resulted in a student filing a lawsuit in federal court, Colonial Forge High School in Stafford County, Virginia, has recognized an anti-abortion club, which met for the first time this week.
Stafford County school officials first had denied a student's request to form the club, arguing that the club did not relate to the county school's curriculum. The Alliance Defense Fund represented the teenager in filing the lawsuit, which was dropped after school officials reversed their earlier decision.
In response to suggestions that students might be inclined to propose other controversial clubs, Professor Ronald Rotunda commented in the Free Lance-Star (Fredericksburg, Virginia), saying, "Sometimes people worry abut a parade of horribles, and I never see this parade."
Colonial Forge will recognize new club, The Free Lance-Star, October 25, 2007. By Jeff Branscome.
Read the article
A century ago democracy existed in only 10 countries in the world, as opposed to today when 119 (two-thirds) of the world's countries have democratic governments, writes Professor Peter Berkowitz in his review of Michael Mandelbaum's book Democracy's Good Name: The Rise and Risks of the World's Most Popular Form of Government for The Weekly Standard.
Mandelbaum's book attempts to account for the success of democracy and to evaluate its extension in the future, says Berkowitz, while it argues that the spread of liberty abroad depends on the example set by the U.S. at home.
Democracy at Home; The promise and peril of universal suffrage, The Weekly Standard, October 22, 2007. By Peter Berkowitz.
Excerpt:
"Michael Mandelbaum's excellent and broadly accessible book seeks to account for democracy's success, and to assess the prospects for its extension. Mandelbaum, a professor of American foreign policy at the Johns Hopkins School of Advanced International Studies, is cautiously optimistic.
"To understand democracy's rise and its current golden reputation, he argues, it is necessary to appreciate, as even learned commentators seldom do, that 'what the world of the twenty-first century calls democracy is, in fact, a fusion of two political traditions that, for most of recorded history, were not only separate and distinct from each other but were seen by virtually all those who took an interest in politics as entirely incompatible.' This fusion of liberty and popular sovereignty, or rule by the people through free, fair, and regular elections, produced 'a hybrid political form' that has proved remarkably resilient.
"Neither of the two component parts alone provides all the goods that we have come to associate with democracy. Absent either, democracy as we have come to know it is unthinkable:
"Liberty belongs to individuals; self-government to the community as a whole. Liberty involves what governments do, or, more accurately, what they are forbidden to do--they are forbidden to abridge individual freedoms. Self-government, by contrast, has to do with the way those who govern are chosen--they are chosen by all the people. Self-government therefore answers the question of who governs, while liberty prescribes rules for how those who govern may do so. Liberty refers to the way the machinery of government operates, self-government to the identity of the operators."
Commenting on the Connecticut Department of Public Utility Control's ruling against AT&T in a skirmish over cable competition, Professor Thomas Hazlett questioned why the government would want to stand in the way of increased competition and lower prices for at least a portion of the consumer market.
Regulators ruled out consumer choice between AT&T's new U-verse service and cable TV for as many as 150,000 consumers in areas where U-verse was about to become available. U-verse delivers an alternative to cable by offering television programming over telephone lines, but regulators told AT&T it could not expand the service and had to apply for a franchise. AT&T has argued that the imposition of universal service requirements would require it to provide TV service to all customers in its franchise area, possibly the entire state. If forced to adhere to the universal service requirement, AT&T has said it will drop its more than 7,000 U-verse customers in Connecticut and provide the service elsewhere.
Hazlett told The Hartford Courant that challengers to cable will not come into markets if they are required to meet the universal service requirement.
"You can't get 100 percent," he said. "If you can't, get 10 percent or 20 percent."
Phone TV Conflict Blurry: Officials Try To Defend Choice By Denying it, The Hartford Courant, October 21, 2007. By Mark Peters.
Read the article
The Canadian Constitution Foundation, whose mission is to defend and promote constitutional freedoms in Canada's courts, recently hosted a conference entitled The Future of Freedom: Law and Liberty in Canadian Jurisprudence in which Mason Law professors Michael Krauss and Ilya Somin participated as panelists.
Keynote speakers for the conference were Marshall Rothstein, Supreme Court of Canada Justice, and Charles Fried, former Solicitor General of the U.S. and Harvard Law professor.
Also participating in the conference as a panelist was Mason Law graduate Moin Yahya (’03), who is currently an assistant professor at the University of Alberta in Edmonton.
Pictures, audio recordings, and papers submitted by the participants will be available on the CCF website shortly.
Dean Daniel Polsby does not expect to see a return of the Fairness Doctrine, despite talk of its possible reinstatement.
Calling the doctrine "so yesterday," Polsby told USINFO that the measure lacks critical political support and would likely face a challenge on constitutional grounds, should the FCC vote to restore it.
The Fairness Doctrine, which was in effect from 1949 to 1987, says that broadcast outlets must air opposing sides of controversial issues. Many of its critics today point to the wealth of opportunities Americans have for information resources beyond the traditional broadcast media.
Opinions Vary on Need for Fairness Doctrine in Broadcast Media, USINFO, October 12, 2007. By Eric Green.
Excerpt:
"Daniel Polsby, dean of the George Mason University School of Law in Virginia, told USINFO that the Fairness Doctrine will not return because the measure is 'so yesterday.'
"Polsby said the political support for the measure 'isn't there, and that its constitutionality' is such a 'weak reed that legislators who might otherwise be sympathetic' to the Fairness Doctrine 'will in many cases be turned off.'
"Polsby said the FCC could vote to have the rule restored. But he added that a court challenge to the doctrine inevitably would result in a ruling that it violates the U.S. Constitution."
Read the article
In an article examining the concept behind the think tank, Professor Ilya Somin's comments on intellectual and institutional diversity were cited along with those of University of Texas Professor Brian Leiter, author of the Leiter Law School Rankings.
Somin and Leiter both point out that schools on both ends of the political spectrum add to the debate by providing diversity across institutions, rather than simply within them, despite the homogeneity of their communities.
Thinking about Think Tanks, Outside the Beltway, October 11, 2007. By James Joyner.
Excerpt:
"A comment on Jonathan Adler's post about the issue links some related discussion by Brian Leiter and Ilya Somin on the value of intellectual diversity. While there's no disagreement on the fact that a wide range of viewpoints is essential, Somin correctly notes the 'conflict between diversity within institutions and diversity across them,' noting the value that schools like Brandeis and Brigham Young add to the debate despite their relative homogeneity. Leiter agrees, pointing to the success George Mason has had by assembling a law school faculty (and I'd add, an Economics department) comprised almost exclusively of conservatives and libertarians.
George Mason has been able to attract a highly productive and accomplished faculty, who no doubt stimulate each other to do more and better work. One of the more unfortunate consequence of Justice Powell's introduction of the 'diversity' mantra into American public discourse is that it obscures the extent to which in scholarly pursuits depth, subtlety, and the comprehensive exploration of the possibilities of an intellectual paradigm require the stimulation of colleagues who share some basic premises, substantive and methodological: it's some degree of homogeneity, not diversity, that often makes possible the deepest work. The beauty of American law schools is that George Mason is but one of the many options from which law students, and legal scholars, can choose, and that most good law schools are large enough to accommodate clusters of scholars who share 'viewpoints,' but who, taken together, produce a remarkable diversity of viewpoints on the real issues that engage lawyers, judges, and academics.
"Similarly, while institutions like Heritage and AEI operate within a fairly narrow range of internal discourse, there's hardly a shortage of competing ideas from other shops."
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Professor Allison Hayward recently appeared as a witness before the Federal Election Commission during its public hearings on October 17 and 18 concerning its proposed rules on electioneering communications.
Hayward participated in the first panel of the day at 10:15 a.m. on Wednesday, October 17.
Click to view a summary of the hearing agenda. Hayward's written comments are available here.
Many elderly and middle-aged people could perform national service in the form of office work and light menial labor, says Professor Ilya Somin. In a WSJ.com Opinion Journal op-ed, he argues that forced labor in the form of national service might be as, or more, suitable for people beyond the age of those normally targeted by proposals for civilian service, the 18- to 21-year-old group.
Somin points out that it is easier to impose the burden of national service on the young because they are less likely than the remainder of the population to participate actively in the political process, thereby benefiting less from the ability to advocate on their own behalf or through the efforts of lobbying groups.
Uncle Sam Wants You, Gramps, WSJ.com Opinion Journal, October 8, 2007. By Ilya Somin.
Excerpt:
"Indeed, the moral case for conscripting the elderly for civilian service is arguably stronger than that for drafting the young. Many elderly people are healthy enough to perform nonstrenuous forms of 'national service.' Unlike the young, the elderly usually won't have to postpone careers, marriage and educational opportunities to fulfill their forced-labor obligations. Moreover, the elderly, to a far greater extent than the young, are beneficiaries of massive government redistributive programs, such as Social Security and Medicare--programs that transfer enormous amounts of wealth from other age groups to themselves. Nonelderly poor people who receive welfare benefits are required to work (or at least be looking for work) under the 1996 welfare reform law; it stands to reason that the elderly (most of whom are far from poor) can be required to work for the vastly larger government benefits that they receive.
"Middle-aged people are also not obviously inferior candidates for civilian 'national service' than the young. I know I could do most kinds of service better today than when I was 18. To be clear, I am not arguing for imposing forced labor on the elderly or the middle-aged; but I do believe that doing so would be no worse than imposing that burden on the young."
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Commenting on the recent reprimand of U.S. District Judge Samuel B. Kent of the 5th Circuit, Professor Ilya Somin told the Houston Chronicle that Kent's "long history of ethical problems" was significant enough to warrant Congressional inquiry, echoing the concerns expressed by members of Congress, organization presidents, and other law professors, some of whom are calling for the House Judiciary Committee to investigate possible impeachment of Kent.
Somin, who clerked at the 5th Circuit, pointed out that federal judges have limited ability to discipline a colleague and can do so only through reprimands and reassignment of cases, both of which Kent has experienced over the past six years.
Kent's most recent reprimand over charges of sexual harassment has caused concern over his ability to preside over such cases in the future.
Could Kent lose his bench? Houston Chronicle via Chron.com, October 7, 2007. By Lise Olsen and Harvey Rice.
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A press release issued today by Governor Mitt Romney announces those selected as members of his Advisory Committee on the Constitution and the Courts and names Professor Michelle Boardman as one of those chosen.
Boardman joins a select group of legal professionals, scholars, and business leaders who will counsel Romney on judicial matters, the separation of powers, and issues of federalism.
With her selection by Romney, Boardman becomes the third Mason Law professor to be named an advisor to a candidate for election to the United States presidency in 2008. In June, presidential candidate Rudy Giuliani named Professor Peter Berkowitz part of his new foreign policy team, positioning Berkowitz as Senior Statecraft, Human Rights and Freedom Advisor. Giuliani's announcement was followed almost immediately by one naming Foundation Professor of Law Timothy Muris part of the economic policy team for Senator John McCain of Arizona.
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An October 1 "Points of View" commentary in Legal Times looks at Columbia University's September 24 sponsorship of a speech by Mahmoud Ahmadinejad, drawing on remarks of Professor David Bernstein concerning the propriety of such an event.
"Ahmadinejad is the head of state of an enemy state, whose armed forces are killing American soldiers with equipment they provide to Iraqi insurgents... American universities should [not give] a respectful forum to our enemies," Bernstein said.
Author Stuart Taylor Jr. comments further on what he refers to as a double standard that many academics and journalists apply to free speech controversies, closing his article by quoting Bernstein: "In the words of George Mason's Bernstein, 'The Chemerinsky episode, disturbing though it was, should not distract us from the primary challenge facing academic freedom in American universities: the rise of an academic far-left establishment that seeks to use universities as a base for political activism and is perfectly willing to violate accepted standards of academic freedom to achieve that goal.'"
Only Some Speech (POINTS OF VIEW: Iran's Leader Gets a University Podium. Why Don't U.S. Conservatives?), Legal Times, October 1, 2007. by Stuart Taylor Jr.
September 2007
Convincing a judge that a partisan political club relates to school curriculum while an anti-abortion club does not may be a difficult task, says Professor David Bernstein, commenting on a suit filed by a Stafford County, Virginia, high school student whose request to form such a club was turned down by school administrators.
Claiming that the club failed to meet the standard of a direct curricular link, as the family life curriculum prohibits teachers from discussing abortion, school administration took what Bernstein refers to as a "weaselly" way out of a controversial situation.
Student sues Stafford schools to start club, Richmond Times-Dispatch, September 29, 2007. (Associated Press)
Excerpt:
"Colonial Forge Principal Lisa L. Martin denied the request for the club, saying it doesn't relate to the curriculum.
"However, Cortman said the school has other clubs that don't appear to be directly linked with studies -- Young Republicans, Young Democrats and Students Against Destructive Decisions, for example.
"School-system policy encourages clubs that 'supplement the goals and objectives of the school division.' In a letter to the student, Martin said the club 'does not meet the standard of a direct curricular link.' The family-life curriculum prohibits teachers from discussing abortion, she wrote.
"'That strikes me as a weaselly way to avoid creating a controversial club,' said George Mason University law professor David E. Bernstein.
"Stafford schools spokeswoman Valerie Cottongim said school officials do not comment on pending litigation.
"Stafford County School Board Chairman Robert S. Belman also declined to comment because the entire board has not discussed the matter. He said he expects the board to take up the issue soon in a closed meeting.
"The student's family contacted the Alliance Defense Fund, which is representing the girl for free. The suit, filed Sept. 12 in federal court, asks the school division to pay the organization's legal fees.
"Bernstein said it will be difficult to convince a judge that a partisan political club relates to the curriculum while an anti-abortion club does not.
"'It strikes me offhand that if they teach civics, any club advocating civic action on any particular issue would be curricular-related,' he said.
"Cortman noted that the platforms of the school's Republican and Democrat clubs mention abortion.
"'Once they do have clubs organized around partisan politics it makes it almost impossible to perceive of a plausible reason to forbid people to organize around ideas,' Bernstein said."
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The popular television and motion picture series Star Trek helps perpetuate the illusion that we can combine government control of the economy with strong local autonomy and individual freedom, according to Professor Ilya Somin, writing in the National Review Online.
Somin's op-ed is one of 29 entertaining and thought-provoking musings appearing in the National Review Online as part of Star Trek 2007 Weekend.
Mamas, Don't Let Your Babies Grow Up to Be Federation Tax Collectors, National Review Online, September 28, 2007. By Ilya Somin.
Excerpt:
"Despite five Star Trek TV series and numerous movies, we still don’t know too much about federalism in the United Federation of Planets. How much power does the Federation’s central government have, and how much is left to the individual planets? Does the central government’s Star Fleet have a monopoly of military force, or do other planets have their own forces? Does the Federation subsidize planetary governments or are they fiscally self-sufficient? Unfortunately, the academic literature on Federation law isn’t much help either.
"The evidence in the TV series themselves is contradictory. On the one hand, the Federation seems to have a socialistic economy with a massive welfare state and no currency, which would require a high degree of centralization and planning incompatible with meaningful federalism. The Federation is not just 'socialist' in the sense that some conservatives denounce any big-government policy as 'socialistic.' It’s socialist in the classic sense of the word: government control of all or most major economic activity. In the absence of a currency and price system, central planning seems to be the only way to coordinate a complex economy to even a limited degree. Moreover, virtually all large-scale Federation enterprises in the Star Trek universe seem to be government-owned: from space stations to research facilities to mining operations. I wouldn’t go so far as to say that the Federation is communist; we don’t see much evidence of class struggle (though maybe that’s because all of the bourgeoisie have already been safely packed off to Gulag planets) or of a monolithic one-party state. But it at least has some form of kinder, gentler non-Marxian socialism.
"On the other hand, member planets apparently have considerable autonomy. For example, Vulcan seems to have very different laws from Earth. And Vulcan’s economy seems to have a large private sector. In Deep Space Nine, the planet of Bajor applies for Federation membership. Although Bajor is at least a partial theocracy with a government heavily influenced by religious leaders, anti-Federation Bajorans never argue that Federation membership would lead to the end of Bajor’s quasi-theocratic political system (as it surely would if the highly secular Federation denied political autonomy to member planets). In our world, it has generally proven impossible to combine socialism with decentralized federalism. Theoretically federal socialist states, such as the U.S.S.R. and Czechoslovakia, were in fact dominated by their central governments, with regional authorities holding little real power.
"How do we reconcile the contradiction? Maybe it is only Earth that is socialistic, while the other member worlds have free market systems or mixed economies. The human-dominated Star Fleet military is the only visible Federation military force, and is perhaps tasked with collecting tribute from the nonhuman planets for redistribution to Earth. But as long as they pay their taxes, which subsidize Earth’s welfare state and Star Fleet itself, they are largely left alone to govern their domestic affairs as they see fit. The Federation is essentially a big protection racket. Like the Mafia, it provides 'protection' in both senses of the word: external security, and also 'protection' against its own depredations.
"This theory explains a lot. It is now clear why Star Fleet is so completely dominated by humans. There are almost no nonhuman Star Fleet admirals, and e very few other nonhuman officers. Except for a few collaborators like Mr. Spock, the nonhumans can’t be trusted to force their own people to pay tribute. In one of the Star Trek movies, a Klingon spokesman denounces the Federation as a 'homo sapiens-only club.' Taken literally, this is too obviously false to be effective propaganda; the Federation surely does have nonhuman members. But the line makes sense if it actually refers to the fact that Federation and Star Fleet are tools for expropriating wealth from nonhuman planets and transferring it to Earth.
"It is easy to have fun with these kinds of speculations. The truth, however, is that the producers of Star Trek most likely didn’t even consider the possibility that there is a contradiction between the Federation’s socialism and its federalism. Just as they didn’t consider the contradiction between its socialism and its seemingly strong protection for personal freedom. The problem is not that Star Trek ideology is flawed in its treatment of these issues; it’s that Star Trek failed to take them seriously to begin with."
Professor Somin's op-ed can be read here.
For a complete archive of the Star Trek articles, click here.
With a late September hearing, the Senate began anew a push for ratification of the U.N. Convention on the Law of the Sea, a treaty whose ratification Professor Jeremy Rabkin fears may prove not to be in the best interest of the United States.
Rabkin voices concern for the intended international tribunals that will settle disputes about waterways and mineral rights under the treaty, fearing that the United States might suffer a loss of control over its own decisions.
"You do not gain prestige by giving in to the American view," Rabkin maintains. "You gain prestige by showing you do not give in to the American view."
'Law of the Sea' Treaty, Adrift for Years, Has Chance of Senate Ratification, Congressional Quarterly, September 26, 2007. By Adam Graham-Silverman.
Excerpt:
"'We would completely lose our sovereignty,' said James M. Inhofe, R-Okla., who has already been lobbying the Senate moderates he would need to sink the treaty once again.
"Other opponents, such as Center for Security Policy President Frank Gaffney and scholars at the American Enterprise Institute, have been holding conferences and giving briefings on Capitol Hill.
"Inhofe said the United States should not give up any power while at war, pointing to the U.N. Security Council, where nations such as Russia and China have stymied U.S. efforts to rein in state sponsors of terrorism.
"The treaty also would set up international tribunals to settle disputes about waterways and mineral rights. Without ratification, backers say, the United States has no seat at the table in such disputes. Unless the United States signs, they say, it will forfeit its voice to the 155 nations that have signed on so far.
"But Jeremy Rabkin, a law professor at George Mason University, said that U.S. officials should not count on decisions made under the treaty to support U.S. interests.
"'You do not gain prestige by giving in to the American view,' he said. 'You gain prestige by showing you do not give in to the American view.'"
Israel has no obligation to continue supplying electricity, water, and fuel to Gaza as it has done since its departure from Gaza two years ago says Professor Michael Krauss. In his American Thinker op-ed, Kraus maintains that the Israeli cabinet's actions to declare Gaza "hostile territory" due to the actions of Hamas also allow it to protect its own citizens from harm by refusing to supply its enemy.
Feeding the Hand that Bites You, American Thinker, September 25, 2007. By Michael I. Krauss and J. Peter Pham.
Excerpt:
"Despite the deliberative tone of the cabinet's decision -- it noted that 'sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis' -- critics hastened to denounce the move. One United Nations official interviewed on Israeli Army Radio termed the decision a 'collective puishment' and 'a violation of international law,' while UN Secretary-General Ban Ki-moon declared that any interruption in the utilities would be 'contrary to Israel's obligations toward the civilian population under international humanitarian and human rights law.'
"The UN statements were, typically, hysterical in tone and dead wrong on the law. If Gaza is territory under the control of the enemy -- as it manifestly is under Hamas -- then the Israeli government is both within its rights and arguably obliged by its responsibilities to its citizens to treat the strip as 'hostile territory.' Siege and blockade of a hostile territory is a legitimate tactic of war, used in declared and undeclared (e.g., Cuban) conflicts and explicitly recognized by the 1949 Geneva Conventions. The Conventions' sole limitation is that there be 'free passage of all consignments of food-stuffs, clothing and tonics intended for children under fifteen, expectant mothers, and maternity cases' (Fourth Convention, art. 23) -- and even this exception was conditioned on there being 'no reasons for fearing... [t]hat a definite advantage may accrue to the military efforts or economy of the enemy' (for example, if resources destined for humanitarian aid will be commandeered by the enemy). Israel has carefully respected this requirement."
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Consumers demonstrate a strong preference for network coordination says Professor Thomas Hazlett, citing the success of Apple's iPhone and DoCoMo's iMode as examples of how consumers benefit when decision makers compete for customers and answer to shareholders.
Commenting in the Financial Times, Hazlett contends that by rejecting network neutrality, both companies have produced custom products and business models that have proven highly successful, prompting change in the marketplace that has benefited consumers.
How the "walled garden" promotes innovation, Financial Times, September 25, 2007. By Thomas Hazlett.
Excerpt:
"Hosting this Apple party is a curious way for carriers to lock out innovation. It is even more remarkable that critics could configure Apple's entrepreneurship as an attack on creativity. They claim that only a device that is optimised for any application and capable of accessing any network is efficient.
"They are wrong. What works best for consumers is a competitive process in which independent developers, content owners, hardware vendors and networks vie to discover preferred packages and pricing. When decision-makers compete for customers and answer to shareholders, a sophisticated balance obtains. The alternative proposition, business models voted on by regulators, is a recipe for stasis.
"Apple could have offered its device as an 'open' platform, but instead chose (as with iTunes, iPods and Apple computers) to control how it builds, and how buyers use, its product. It aims for competitive superiority. Quashing its model bops the innovator on the head.
"Unbundling phones from networks is suggested as a policy fix in the US. European phones, working with different Sim cards across carriers and borders, are the model. Innovation in the European Union is said to flourish. But the iPhone came first to the US, as did the BlackBerry and advanced broadband networks using CDMA data formats. That is not surprising given that US networks are afforded wide latitude in designing their systems. Licences in the EU mandate a GSM standard. What is recommended as 'open' in fact deprives customers of a most basic cellular choice: technology."
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The September 25 edition of the Washington Post carried excerpts of a speech newly published in the summer issue of The Green Bag, An Entertaining Journal of Law. Mason Law Professor Ross Davies is editor-in-chief of that publication, which carried the address by former deputy attorney general James B. Comey to the National Security Agency in May 2005.
Comey and other Justice Department lawyers had gone to battle with the White House after determining that portions of the NSA's warrantless surveillance program were illegal. President Bush agreed to make changes to the program after threats by Comey and others to resign.
Comey's speech addressed the difficulties of being a conscientious attorney within the intelligence community and the need for moral character on the attorney's part when faced with difficult choices.
A Speech About Saying No, From a Man Who Would Know, Washington Post, September 25, 2007.
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Writing in the Los Angeles Times, Professor David Bernstein warns that defending the values of scholarship and open debate against authoritarian political correctness is the key to preserving true academic freedom in our universities.
Citing controversy over the deanship at the new UC Irvine law school as an example of a rare victory for academic freedom and 1st Amendment values, Bernstein examines the ways in which university faculty have come to see their primary mission as promoting a political agenda, as opposed to advancing human knowledge.
What about Larry? Los Angeles Times, September 19, 2007. By David E. Bernstein.
Excerpt:
"Entire academic departments are often overtly ideological and politicized, even at schools not normally thought of as hotbeds of activism. Loyola Marymount's women's studies department, for example, proclaims as its mission 'to call attention to the androcentric nature of society, propose alternatives and strategies that honor women's human rights, and promote a vision of society where gender hierarchy, as well as other forms of social injustice, are eliminated.' In universities across the United States, conservative scholars are about as welcome, and as rare, in women's studies programs as Nazis in B'nai B'rith.
"Students also suffer from academic intolerance. Undergraduates frequently report to researchers that they feel intimidated into endorsing the political positions advanced by their professors. Many U.S. universities, though banned by the courts from enacting overt 'speech codes,' nevertheless enforce severe restrictions on freedom of expression under the guise of 'anti-harassment' policies. UC Santa Cruz, for example, bans any speech or writing that 'maligns another individual or group of individuals on the basis of age, creed, ethnicity, race, gender, gender identity, physical ability, political views, religion, sexual orientation, socioeconomic status or other differences.'
"Primarily because of such policies, the Foundation for Individual Rights in Education, a nonprofit that promotes civil liberties in higher education, has ranked 16 of the 19 California state colleges it measured 'red' -- the lowest rank -- for freedom of expression.
"Students who criticize the wisdom, utility or morality of the massive racial preferences prevalent in university admissions are especially likely to face hostility from the powers that be. University administrators at many campuses, including UC Irvine, have shut down satirical 'affirmative action bake sales,' at which customers are charged differing amounts based on their race or sex. Only the fear of lawsuits keeps such censorship somewhat in check.
"The Chemerinsky episode, disturbing though it was, should not distract us from the primary challenge facing academic freedom in American universities: the rise of an academic far-left establishment that seeks to use universities as a base for political activism, and is perfectly willing to violate accepted standards of academic freedom to achieve that goal. Anyone concerned with the future of American higher education has the duty to defend the values of scholarship and open debate against authoritarian political correctness. Unfortunately, by disinviting Summers, the UC regents failed miserably."
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Professor Nelson Lund was a featured panelist at The Cato Institute's Center for Constitutional Studies' symposium entitled "The Supreme Court: Past and Prologue." Held on September 17 and honoring Constitution Day, the Washington, DC, symposium was a day-long affair featuring a series of panel discussions and talks by prominent members of the bench and bar.
Professor Lund, who is Patrick Henry Professor of Constitutional Law and the Second Amendment, was featured on a panel discussing the topic Rights Revisited: Affirmative Action, Partial Birth Abortion, and Property Rights.
Dark horse presidential candidate David Diamond may have a slim-to-none chance of being elected president, but his sole platform - compensation for organ donation - makes a lot of sense, says Professor Lloyd Cohen, commenting in the Memphis Commercial Appeal.
Diamond, who is running with a campaign chest that currently tips the scales at $124 (which includes $100 from his mother), advocates an open, but regulated, market for organs. Cohen shares his view, having argued for compensation for organ donation for years. "If you pay people something, you'll get more of it," says Cohen, and that would benefit the more than 97,000 people currently waiting for transplants.
What'll you take for that kidney? Memphis Commercial Appeal, September 16, 2007. By Wendi C. Thomas.
Excerpt:
"Quirky man plus an unusual idea usually equals easily dismissed. I mean, paying for an organ just doesn't seem right. It should be a gift, we've been trained to believe, given selflessly by grieving families who recognize the good that can come from death.
"Diamond disagrees, even if he doesn't explain it as convincingly as does, say columnist Charles Krauthammer in an 1999 column about Pennsylvania's efforts to pay $300 in funeral expenses for someone whose organs were donated at death.
"Krauthammer wrote, 'What is wrong with rewarding people ... for a dead relative's organ?'
Diamond also has an ally in Lloyd Cohen, a law professor at George Mason University who has argued in favor of monetary compensation for organ donation for years.
"To rely on the altruistic notions of families with a dying relative is just silly, says Cohen. 'Why let it rest on charity? Even charitable people don't feel charitable all the time.'
"The simple brilliance of the idea, Cohen says, should be the focus: 'If you pay people something, you'll get more of it.'
"It's a novel idea, and that's exactly what the organ shortage issue needs - new approaches, even those that might seem controversial on first glance. Controversial ideas are often more palatable when proposed by more conventional people, but then, it's often the out-of-the-box people who have out-of-the-box ideas.
"Cohen agrees that Diamond's political chances are none, but he's complimentary all the same.
"'David Diamond, God bless him. If he brings more attention to this question, all the better.'
"And in the end - and the end will not include Diamond in office - if more of us simply inform our families of our wish to donate organs, then Diamond's campaign may not have been in vain.
"To learn more about David Diamond's donation idea, go to davidfdiamond.blogspot. com. To get information on being an organ donor and to print a card to sign, go to organdonor.gov."
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Taking a new tack on the issue of homeowner liability involving trees, the Virginia Supreme Court has ruled that homeowners can sue to force a neighbor to remove or prune a tree that poses a risk of harm or danger. Tree owners can now be held liable for damage caused by a tree.
Commenting in The Washington Post, property rights expert Professor Steven Eagle said, "This is the trend around the country, as we go from having arbitrary distinctions that made more sense in a rural economy. This is a better line of reasoning. The problem is, it probably will result in more litigation."
"Will there be people who will use this as a cudgel in a battle of spite against neighbors? Sure," he added.
Eagle's reasoning mirrors that of the justices, who ruled that while the old law made sense in a rural community, it was unsuited to present day issues of suburban sprawl and density.
Va. High Court Breaks New Ground on Tree Liability, The Washington Post, September 15, 2007. By Brigid Schulte.
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Professor Peter Berkowitz, reviewing Mark Lilla's study of politics and religion in the modern West, "The Stillborn God," in the Wall Street Journal, states that "The great undertaking of the liberal West is to make a place for religion -- in public as well as private life -- without sacrificing individual freedom and political order."
Berkowitz points out that the European tradition around which Lilla's arguments revolve leaves out "a crucual alternative, one embodied in the American experiment in liberal democracy. That alternative, championed by the Founders, provides religious reasons for separating church and state and political reasons for cherishing religion. This suggests that the challenge lies not in choosing between putting your trust in God or putting your trust in man but in choosing to give each its due."
Contested Authority; A Philosophical history of the shifting power of religion in politics, TheWall Street Journal, September 15, 2007. By Peter Berkowitz.
Reliance on an international tribunal to arbitrate under the terms of the Law of the Sea treaty would mean that the U.S., which deploys a majority of the world's naval capacity, would would be bound to accept whatever rules were determined by that tribunal to apply to our Navy. That fact forms the basis of Professor Jeremy Rabkin's argument, as expressed in The Weekly Standard, against ratification of the Law of the Sea treaty.
Rabkin fears that reliance on the International Tribunal for the Law of the Sea (ITLOS), based in Germany, to deal with sea-based disputes would force the U.S. into a position in which the treaty is acceptable if interpreted as we want it to be interpreted, but unacceptable otherwise, thereby negating the concept that the arbitration must be final and binding. He argues that ITLOS, with 21 judges chosen by the member states, could become politicized, as have other U.N. organs, compromising U.S. interests and security.
How Many Lawyers Does It Take to Sink the U.S. Navy? The Weekly Standard, September 10, 2007. By Jeremy Rabkin.
Excerpt:
"Advocates think it is worthwhile to hope for such results, because, they say, the treaty offers such important protections of naval transit rights. But the United States has, for over a quarter century, embraced the standards in the treaty as a guide to accepted international practice. By ratifying the treaty and committing ourselves to participate in dispute-settling mechanisms, we adopt not our own understandings but those which international authorities may choose to put on them. And it's not as if the standards set out in the treaty are so clear that they couldn't be twisted in dangerous ways by unsympathetic interpretations.
The guarantee of 'innocent passage,' for example, provides for exceptions. Among other things, coastal states may deny access to their territorial waters to foreign ships which engage in such 'activities' as 'collecting information to the prejudice of the defense or security of the coastal state' or, even more broadly, ships which engage in 'any threat or use of force ... in violation of the principles of international law embodied in the Charter of the United Nations' (Art. 19, par. 2).
Recognizing that these provisions might be invoked against U.S. warships, the Bush administration proposes that the Senate's resolution of ratification stipulate this 'understanding': Where a coastal state denies the right of 'innocent passage' to a foreign ship (by denying that it is 'innocent', it must make such a determination solely 'on the basis of acts [the foreign ship] commits while in the territorial sea [of the coastal state involved] and not on the basis of, for example, cargo, armament, means of propulsion, flag, origin, destination, or purpose.' A ship is 'innocent' if it behaves innocently - at that time. To nail this down, the administration also proposes a further 'understanding': 'The Convention does not authorize a coastal state to condition the exercise of . . . innocent passage ... on the giving of prior notification to or the receipt of prior permission from the coastal state.' Well and good, but many states have a contrary view.
"As a fall-back, the administration proposes yet another 'understanding': At least in the 200 mile economic zone, when outside territorial waters, foreign ships would be entitled to exercise all the 'freedoms of navigation' allowable on the high seas, including engaging in 'military activities, such as ... intelligence collection, surveillance and reconnaissance activities . . . and conducting military surveys.' But many coastal states have a different view here, too.
"So the treaty can be acceptable if interpreted as we want it to be interpreted. But if we commit to the treaty, we are, by its terms, leaving ultimate interpretations to be determined by international tribunals, which may not agree with our interpretations. The treaty stipulates that decisions of international arbitration must be treated as 'final' and 'binding'.
"Putting aside lawyerly questions about the meaning of 'finality,' if we ratify the treaty, we will, as a practical matter, find it very awkward (to say the least) to reject the interpretations that emerge from international arbitration of its disputed points. In 1985, the United States disputed the jurisdiction of the International Court of Justice to hear Nicaragua's complaint against U.S. support for the 'contra' insurgency there. When the ICJ rejected U.S. objections to its jurisdiction, the Reagan administration withdrew from the proceedings and insisted the United States would not be bound by the subsequent judgments against it (when, as expected, the Court did rule against the U.S. intervention).
"But the Reagan administration had the courage to refuse consent to the Law of the Sea treaty. One reason defenders of the treaty say we must ratify it now is to reassure allies and skeptics in other countries regarding American commitments to international law. So, having bound ourselves in the most formal way to this treaty, are we really going to turn around and defy it - or interpretations of it offered up by its tribunal or by some other panel of international jurists - on the grounds that, in the end, we really mean to do whatever we please?
"In all out war, we might disregard the Law of the Sea treaty - including its blanket admonition (which acknowledges no exceptions) that 'the high seas are reserved for peaceful purposes.' But if we've learned anything since 9/11, it's that the line between war and peace is not easy to draw in an era when threats of mass destruction can come from shadowy terror networks."
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Progress depends on mastering the basics, Professor Peter Berkowitz states in his Wall Street Journal op-ed critical of what he calls the "compassless curriculum" widely offered today by universities.
"A university that fails to teach students sound mental habits and to acquaint them with enduring ideas handicaps its graduates for public and private life,"says Berkowitz, pointing out that it is the little in common that students take away from their college experience that has the greatest significance, allowing them to "acquire a common intellectual foundation that enables them to debate morals and politics responsibly, enhances their understanding of whatever specialization they choose, and enriches their appreciation of the multiple dimensions of the delightful and dangerous world in which we live."
Our Compassless Colleges, The Wall Street Journal, August 5, 2007. By Peter Berkowitz.
Excerpt:
"Moreover, properly conceived, a liberal education provides invaluable benefits for students and the nation. For most students, it offers the last chance, perhaps until retirement, to read widely and deeply, to acquire knowledge of the opinions and events that formed them and the nation in which they live, and to study other peoples and cultures. A proper liberal education liberalizes in the old-fashioned and still most relevant sense: It forms individuals fit for freedom.
"The nation benefits as well, because a liberal democracy presupposes an informed citizenry capable of distinguishing the public interest from private interest, evaluating consequences, and discerning the claims of justice and the opportunities for -- and limits to -- realizing it in politics. Indeed, a sprawling liberal democracy whose citizens practice different religions and no religion at all, in which individuals have family heritages that can be traced to every continent, and in which the nation's foreign affairs are increasingly bound up with local politics in countries around the world is particularly dependent on citizens acquiring a liberal education.
"Crafting a core consistent with the imperatives of a liberal education will involve both a substantial break with today's university curriculum and a long overdue alignment of higher education with common sense. Such a core would, for example, require all students to take semester courses surveying Greek and Roman history, Eruropean history, and American history. It would require all students to take a semester course in classic works of European literature, and one in classic works of American literature. It would require all students to take a semester course in biology and one in physics. It would require all students to take a semester course in the principles of American government; one in economics; and one in the history of political philosophy. It would require all students to take a semester course comparing Judaism, Christianity, and Islam. It would require all students to take a semester course of their choice in the history, literature or religion of a non-Western civilization. And it would require all students to demonstrate proficiency in a foreign language of their choice by carrying on a casual conversation and accurately reading a newspaper in the language, a level of proficiency usually obtainable after two years of college sudy, or four semester courses."
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The proposed merger of satellite radio giants XM and Sirius will not represent a monopoly for consumers, who currently have a diverse spectrum of products from which to chose says Professor Thomas Hazlett.
Hazlett's comments appeared in CNN.com/technology as part of a story examining whether the merger will have a positive or an adverse effect on consumers.
Hazlett, who was commissioned by XM and Sirius to write a brief to the FCC on behalf of the merger, believes that ample opportunies exist to afford choices for listeners beyond satellite radio alone, pointing to iPods, Internet radio, and terrestrial radio as examples. Commenting on the National Association of Broadcasters' opposition to the merger, Hazlett observes that, "If they honestly thought that satellite radio is in a different market, and people didn't sustitute back and forth, then they wouldn't have a strong opinion on this."
Proposed satellite radio merger: Boon for consumers or monopoly? CNN.com/technology, September 3, 2007.
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August 2007
A group of Dartmouth alumni took their criticism of the Dartmouth administration a step further with a full-page ad in the New York Times contending that college leaders were attempting to stifle alumni. The Committee to Save Dartmouth College, started by two anonymous alumni, sponsored the Times ad, as well as two others that ran on the Times website and a fourth scheduled to run in the Wall Street Journal.
Commenting in a Boston Globe news story, Professor Todd Zywicki, who holds one of four alumni-controlled seats on the Dartmouth Board of Trustees, said that he and others worry that Dartmouth is gradually moving away from its historic focus on undergraduate education toward a greater emphasis on research.
"Dartmouth has resisted that trend because of its democratic traditions and its small and engaged board," said Zywicki. "I'm afraid that the governance committee will take a step that will sever that tie. I'm afraid that Dartmouth College will, a generation from now, be a different, less distinctive, and weaker institution than it is today."
Ads challenge changes in Dartmouth board, The Boston Globe, August 29, 2007. By Ryan Haggerty.
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With the U.S. Supreme Court scheduled to hear arguments in the case of Stoneridge Investment Partners v. Scientific-Atlanta and Motorola in early October, there is speculation as to the make up of the Court that will hear and rule on the case.
Chief Justice John Roberts Jr. and Justice Stephen Breyer initially recused in the case on the basis that each owned stock in Cisco Systems, Inc., the parent company of one of the respondents. Current federal law, however, allows both to rejoin the case after curing the conflict of interest through a sale of stock, should they choose to do so.
Such recusals followed by unrecusals are problematic, says legal ethics expert Professor Ronald Rotunda, because they appear "manipulative."
Issue of 'Strategic Recusals' Arises in Key Supreme Court Case, Legal Times, August 20, 2007. By Tony Mauro.
Excerpt:
"The notion of justices 'unrecusing' and re-entering a case strikes some as attempting to unring a bell, and it is causing discomfort among some judicial ethics experts. But a new -- and little-noticed -- federal law may be encouraging the practice.
"Under the new law -- which Roberts urged Congress to pass in his capacity as head of the Judicial Conference -- judges can defer the capital gains taxes on stock they sell if they can demonstrate they made the sale to remove a conflict of interest. Executive branch officials have long had this ability, but judges were not allowed the same privilege until the change was included in a tax bill signed into law on Dec. 20.
"Roberts may have made use of this new tax-deferral power already, when he recused from -- and then rejoined -- the antitrust case of Credit Suisse v. Billing last term. He first announced his recusal on Dec. 6, 2006, evidently because of holdings he had in investment firms involved in the case. Then on March 19, Justice Anthony Kennedy recused in the same case after realizing, belatedly, that his son Gregory Kennedy's compensation as a managing director at Credit Suisse might be affected by the outcome.
"Possibly to avoid a seven-member Court, Roberts suddenly rejoined the case on March 26, a day before oral argument. Under federal law, Roberts probably could not have rejoined the case without first curing the conflict -- most likely by selling the stock. In Stoneridge, all it would take for Roberts and Breyer to participate is to sell their Cisco stock, which they can now do without tax consequences.
"Without commenting on any specific case, judicial ethics expert Ronald Rotunda says he does not think judges should be allowed to recuse and unrecuse. 'It looks funny; it seems manipulative,' says Rotunda, a professor at George Mason University School of Law. Theoretically, he says a judge could sell a company's stock to cure a conflict, then rule in the company's case, and then buy back the stock at a lower price. 'Strategic recusals don't sound right.'"
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"Top 10 percent" admission programs, which guarantee admission to a state's public colleges or universities to the top 10 percent of graduating public high school students, may create greater sacrifices of academic merit than traditional affirmative action plans, according to Professor Ilya Somin.
Arguing that the Texas 10 percent law is more objectionable than traditional affirmative action plans, Somin believes the law permits Texas schools to admit students who probably would not have gained admission under its previous race-conscious admission program.
"Rarely, if ever, do traditional affirmative action plans determine the admission of more than 15 to 20 percent of a school's student body," writes Somin. "By contrast, at the University of Texas at Austin, over 70 percent of the student body was admitted under the 10 percent plan. While some of these students would surely have gotten in anyway, it is highly likely that the 10 percent plan leads to much larger sacrifices of academic merit than do racial preferences similar to those used at most other academic institutions," he continues.
Tricky Times for the Top 10 Percent Program, DiverseEducation.com, August 9, 2007. By Ronald Roach.
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The answer to preventing bankruptcies may lie in part in the adoption of lower and flatter tax rates, says Professor Todd Zywicki in a Wall Street Journal op-ed in which he examines the impact that taxes have had on the earnings of Americans since the 1970s.
Citing information contained in the book, "The Two Income Trap: Why Middle Class Mothers and Fathers are Going Broke," by Harvard Law School Professor Elizabeth Warren and her daughter Amelia Tyagi, Zywicki demonstrates that the authors have overlooked taxes as the most important contributing factor in the family budget crunch.
Comparing expenditures of a typical middle class 1970s family to an equivalent family in the 2000s, Zywicki finds that while the 2000s family income rose 75% and expenditures for mortgage, car and health insurance rose less than that, the tax bill was subject to an increase of 140%. In short, the typical family in the 2000s pays substantially more in taxes than the combined expenses of their mortgage, automobile and health insurance as a result of the progressive nature of the American tax system.
The Two-Income Tax Trap, The Wall Street Journal, August 14, 2007. By Todd J. Zywicki.
Excerpt:
"Despite the apparent prosperity of American families over the past several decades and the presence of two regular incomes, American households, on this view, are in a more precarious situation than ever before.
"The argument is developed in the book, 'The Two Income Trap: Why Middle Class Mothers and Fathers are Going Broke,' by Harvard Law School Professor Elizabeth Warren and her daughter Amelia Tyagi. In fact, using their own numbers, it is evident that they have overlooked the most important contributor to the purported household budget crunch -- taxes.
"Ms. Warren and Ms. Tyagi compare two middle-class families: an average family in the 1970s versus the 2000s (all dollar values are inflation-adjusted). The typical 1970s family is headed by a working father and a stay-at-home mother with two children. The father's income is $38,700, out of which came $5,310 in mortgage payments, $5,140 a year on car expenses, $1,030 on health insurance, and income taxes 'which claim 24% of [the father's] income,' leaving $17,834, or about $1,500 per month in 'discretionary income' for all other expenses, such as food, clothing, utilities and savings.
"The typical 2000s family has two working parents and a higher income of $67,800, an increase of 75% over the 1970s family. But their expenses have also risen: The mortgage payment increases to $9,000, the additional car raises the family obligation to $8,000, and more expensive health insurance premiums cost $1,650. A new expense of full-time daycare so the mother can work is estimated at $9,670. Mother's income bumps the family into a higher tax bracket, so that 'the government takes 33% of the family's money.' In the end, despite the dramatic increase in family income, the family is left with $17,045 in 'discretionary income,' less than the earlier generation.
"The authors present no explanation for why they present only the tax data in their two examples as percentages instead of dollars. Nor do they ever present the actual dollar value for taxes anywhere in the book. So to conduct an 'apples to apples' comparison of all expenses, I converted the tax obligations in the example from percentages to actual dollars.
"In fact, for the typical 1970s family, paying 24% of its income in taxes works out to be $9,288. And for the 2000s family, paying 33% of its income is $22,374.
"Although income only rose 75%, and expenditures for the mortgage, car and health insurance rose by even less than that, the tax bill increased by $13,086 -- a whopping 140% increase. The percentage of family income dedicated to health insurance, mortgage and automobiles actually declined between the two periods.
"During this period, the figures used by Ms. Warren and Ms. Tyagi indicate that annual mortgage obligations increased by $3,690, automobile obligations by $2,860 and health insurance payments by $620 (a total increase of $7,170). Those increases are not trivial -- but they are swamped by the increase in tax obligations. To put this in perspective, the increase in tax obligations is over three times as large as the increase in the mortgage payments and almost double the increase in the mortgage and automobile payments combined. Even the new expenditure on child care is about a quarter less than the increase in taxes.
"Overall, the typical family in the 2000s pays substantially more in taxes than the combined expenses of their mortgage, automobile and health insurance. And the change in the tax obligation between the two periods is substantially greater than the change in mortgage, automobile expenses and health-insurance costs combined.
"This suggests that the most important change in the balance sheets of middle-class households over the past three decades is a dramatically higher tax burden caused by the progressive nature of the American tax system. In turn it follows that the most effective way of alleviating the household budget crunch would be to adopt lower and flatter tax rates that would reduce the government's take. Another possibility, advocated by Prof. Edward J. McCaffery of the University of Southern California Law School, would eliminate the 'secondary earner bias' in the tax system, which causes all of the wife's income to effectively be taxed at a much higher marginal tax rate than the husband's. Any of these reforms seem sensible.
"Lower and flatter marginal tax rates generally are not advocated by those who dominate the American legal academy today. But for those who want to consider serious strategies for preventing bankruptcies, less money in Uncle Sam's pockets may mean more money in ours."
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The result of public backlash against an unpopular judicial decision like Kelo v. City of New London, though vehement and widespread, shows that backlash politics has its limits, says Professor Ilya Somin in the August/September issue of Reason Magazine.
According to Somin, nearly every state legislature has either adopted or considered legislation to curb the use of eminient domain since Kelo; however, in only 14 states have newly enacted laws significantly increased protection for residents. Somin attributes this to a number of factors, the main being public ignorance over which bills are actually effective versus those being put forward for show. Politicians, says Somin, can appease voters angry about Kelo by passing laws to "reverse" it, while simultaneously avoiding the ire of development interests by not giving those laws teeth.
NOTE: Hear Professor Somin discuss this topic on KION Radio (Monterey, Salinas, and parts of San Jose, California) in an August 17 interview on the program "Wake Up With Mark Carbonaro."
The Limits of Anti-Kelo Legislation, reasononline, Aug./Sept. edition.
Excerpt:
"In Kelo v. City of New London (2005), the U.S. Supreme Court allowed the government to condemn property and transfer it to other private owners in the name of 'economic development.' Upholding the forced transfer of land in New London, Connecticut, to private developers, the Court ruled that virtually any potential public benefit satisfies the Fifth Amendment's requirement that the authorities can take property only for a 'public use.' Traditionally, a public use had meant a government-owned facility or a public utility with legally mandated access for the general public. With an economic development taking, property is simply transferred from one private party to another, without any public access requirement. Although the traditional definition of public use had already been vastly expanded by previous decisions, Kelo drove the change home to the general public.
"The ruling generated more and broader opposition than any other Supreme Court decision of the last several decades. A 2005 survey by the Saint Index, a polling organization specializing in land use issues, showed that 81 percent of Americans opposed Kelo, a backlash that cut across traditional partisan, ideological, and racial lines. Eighty-five percent of Republicans opposed Kelo, but so did 79 percent of Democrats and 83 percent of independents. The decision was likewise opposed by 82 percent of whites, 72 percent of blacks, and 80 percent of Hispanics.
"Politicians on both the right and the left hurried to condemn the Court's ruling. Though the decision was supported by all the liberal justices and opposed by most of the conservatives, Democratic National Committee Chairman Howard Dean denounced "a Republican-appointed Supreme Court that decided they can take your house and put a Sheraton hotel in there." California Democratic Rep. Maxine Waters,a prominent African-American liberal, called Kelo-style takings 'the most un-American thing that can be done.' On the other end of the political spectrum, the conservative talk show host Rush Limbaugh condemned the decision for letting the government 'kick the little guy out of his and her homes and sell those home[s] to a big developer'
"Many observers expected the backlash to prompt legislation that would make judicial protection against economic development takings unnecessary. In a fall 2005 Harvard Law Review article, federal appeals court judge Richard Posner, arguably the nation's most respected judge and most prominent legal scholar, wrote that the political response to Kelo is 'evidence of [the decision's] pragmatic soundness.' Judicial action would be unnecessary, Posner suggested, because the political process could take care of the problem. In his confirmation hearing before the Senate, future Supreme Court Chief Justice John Roberts said that the public reaction to Kelo shows that Congress and state legislatures 'are protectors of the people's rights as well' and 'can protect them in situations where the Court has determined, as it did...in Kelo, that they are not going to draw [the] line.'
"Although important progress in protecting property rights has been made in some states, such predictions turned out to be seriously overstated. The Kelo backlash has not been as effective as many expected. Too often, cosmetic changes have taken the place of real reform."
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The statute for criminal prosecution of doctors for health care fraud requires the government to show that the doctor acted deliberately, Professor Jeffrey Parker told amednews.com in an article about a Nevada case in which a physician was awarded legal fees for what a federal trial judge determined to be a frivolous health care fraud case.
Parker assisted Dr. Mark Capener, currently practicing in Idaho, in his suit against federal investigators for legal fees under the Hyde Amendment, which allows individuals to recoup litigation expenses in instances where they prevail in criminal cases that a court finds to be frivolous or pursued in bad faith.
Judge rules criminal fraud case against Idaho doctor is frivolous, amednews.com, Aug. 2007. By Amy Lynn Sorrel.
Excerpt:
"Jeffrey S. Parker, a criminal law professor at George Mason University School of Law in Arlington, Va., said cases like the one against Dr. Capener -- prosecuted under a general 1996 health care fraud statute -- are not unusual. The statute sets a standard for criminal violations that requires the government to show that the doctor acted deliberately.
"Instead, in many cases, '[the government] is just looking at CPT code usage and anybody out on the tail of the distribution is targeted for criminal prosecution,' Parker said. 'And that's not the same thing as intentional wrongdoing.' If found guilty, doctors could face 10 years in prison, noted Parker, who assisted in Dr. Capener's suit.
"Tate said that although Dr. Caperner may have done more surgeries that what might be considered 'normal' among other doctors, he did what was best for his patients.
"Though it is difficult to prevent an unwarranted investigation, Parker recommended that doctors at least use a coding expert to help them accurately file claims and track their billing patterns."
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 The Clinic for Legal Assistance
to Servicemembers (CLAS) began in 2004. A needs assessment revealed
that complementing legal services provided by the Judge Advocate General’s
(JAG) Corps of military lawyers would be an important role for CLAS.
Matters as to which JAG lawyers might not be admitted to practice, like
litigation in local jurisdictions, or clients like family members who
might not be eligible for JAG assistance, illustrate the opportunities
for the clinic.
The CLAS practice would thus
have a close relationship to JAG activities. Dean Dan Polsby and CLAS
founder Joe Zengerle were invited to visit the Army JAG Center and School
in Charlottesville during the clinic’s first term. Brigadier
General Scott Black, Commander, provided the initial briefing, demonstrating
the institution’s impressive capacity, including instructional and
student body quality, curriculum scope, operational law counseling that
had real-time contact with battlefield issues, and technology support.
BG Black was promoted to Major
General and appointed the Army’s top lawyer, The Judge Advocate General.
He and Professor Zengerle sat next to each other in the U.S. Supreme
Court during the 2005 oral argument in Rumsfeld v. FAIR, in which
Dean Polsby and Professors Lund and Zengerle had originated the only
law-school brief supporting the Solomon Amendment, later upheld by the
Court’s unanimous decision.
Last year, MG Black hosted
Dean Polsby and Professor Zengerle for lunch at the Pentagon.
Last month, MG Black was the guest of the law school for lunch here,
after the nearby photograph was taken. The relationship reflects
the law school’s strong support of the JAG Corps of all the armed
services, especially in time of war.
Writing for the Hoover Institution's Policy Review, Professor Peter Berkowitz reviews Stephen Holmes's The Matador's Cape: America's Reckless Response to Terror, calling it a "venomous polemic in scholarly garb."
Berkowitz argues that at a time when public interest demands a serious and systematic examination of the topic, Holmes's book "reinforces pervasive prejudices, compounds common misunderstandings, and throws fuel on the flames of partisan discord."
Vulgarizing the War Debate, Policy Review, August-September 2007. By Peter Berkowitz.
Excerpt:
"War places a premium on knowledge. Certainly it’s better to have more troops, bigger guns, and more powerful bombs and rockets. Yet nothing we have learned about human nature, politics, and battle in the past two and a half millennia calls into question the wisdom of the oldest classic of strategic thought, Sun Tzu’s The Art of War: 'If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself, but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.'
"Indeed, our struggle against the varieties of Islamic extremism has only confirmed the importance of Sun Tzu’s sage advice. We have suffered setbacks because we have been slow to appreciate that our grand strategy, our armed forces, and our diplomatic corps were not designed for the challenges presented by nonstate threats and asymmetric warfare. And we have incurred self-inflicted wounds because we have failed to grasp that neither our categories of criminal law nor the laws of war easily cover terrorists’ strategic aims and characteristic tactics. Moreover, ten years after Osama bin Laden declared war on the U.S., we remain poorly informed about the jihadists’ language, culture, sectarian differences, political grievances, and religious aspirations.
"In these testing circumstances, scholars have a special role to play. Trained, ostensibly, in serious and systematic inquiry and devoted, presumably, to the pursuit of accurate and objective knowledge, scholars should be uniquely well-equipped to step back, set aside partisan posturing, and place the September 11 attacks and America’s multifaceted response to jihadist terrorism in context.
"Many, particularly in political science and law, have the opportunity to pursue their professional obligations and to contribute to the public good by analyzing the cultural, social, economic, political, and religious dimensions of Islamic extremism and authoritarian government in the Muslim world. They can devise better procedures under the Constitution for the detention, interrogation, and prosecution of unlawful enemy combatants. They can rethink the body of international law known as the laws of war and adjust it to an age in which not only nation-states but also nonstate actors are capable of threatening a country’s territorial integrity and political sovereignty. They can examine our unwieldy collection of intelligence agencies — whose performance, dating back to the Cold War, has left much to be desired — and propose reforms to improve them. They can explore the proper role of the federal courts, which must find a way to hold the president accountable and keep Congress within constitutional bounds while preserving energy in the executive and democratic legitimacy in the legislature. And they can develop workable rules and regulations, consistent with constitutional guarantees of individual liberty, to govern the electronic surveillance and data mining that are crucial to U.S. national security."
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July 2007
"The world without the Fairness Doctrine features exponentially more discussion of public issues from contrasting perspectives, much of it from new media outlets that were never subjected to the Fairness Doctrine," says Professor Thomas Hazlett in a Wall Street Journal commentary written with former Federal Communications Commission Chairman Dennis Patrick.
With some members of Congress calling for a return to a "fairness" mandate, Hazlett and Patrick defend the abolition of the Fairness Doctrine, pointing out that the need for a Fairness Doctrine has lessened since its abolition in 1987 because of the widespread growth of information sources since that time.
The Return of the Speech Police, The Wall Street Journal Online, July 30, 2007. By Dennis Patrick and Thomas W. Hazlett.
Excerpt:
"In the old days, the Fairness Doctrine was almost universally popular among the political class. Left-leaning champions of regulation sought rules to counter the slant of 'corporate' media. Simultaneously, conservatives sought to oppose the liberal establishment. Most troubling were those who privately conceded their true goal was retention of a federal 'club' with which to 'influence' reporters and their bosses. Potential Fairness Doctrine complaints made news editors timid champions of freedom of the press.
"Today, right-leaning politicians have recanted, as the explosion in talk radio has given their ideas a platform never before enjoyed. Brian Andersen's 2005 book 'South Park Conservatives' rejoices that free speech has proven far more hospitable to conservative views than GOP exponents of the Fairness Doctrine ever imagined.
"Many American liberals, seeing (or hearing) the same outcomes, support the reimposition of the Fairness Doctrine. These advocates of content regulation need to be reminded of the words of one great liberal, the late Supreme Court Justice William O. Douglas, who wrote in Columbia Broadcasting v. Democratic Committee (1973): 'The prospect of putting Government in a position of control over publishers is to me an appalling one, even to the extent of the Fairness Doctrine. The struggle for liberty has been a struggle against Government.'"
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The June 25 Supreme Court decision in Wilkie v. Robbins reinforces the long-standing second-class status of property rights relative to other constitutional rights, says Professor Ilya Somin.
Writing in Legal Times, Somin explains that by denying Robbins the right to seek damages in the case, the Court undercut one of the most basic principles of constitutional law: that for every violation of a constitutional right there must be an adequate remedy. He goes on to criticize the Court's reasoning, stating that by its logic, citizens should be denied remedies for the violation of their constitutional rights anytime setting up a cause of action for a remedy would burden the government too much.
Put Out To Pasture, Points of View, Legal Times, July 30, 2007. By Ilya Somin.
Excerpt:
"In the short run, the main effect of Wilkie is to ensure that some property owners will not have adequate remedies for violations of their constitutional rights by federal government officials. This is a potentially serious problem in Western states such as Wyoming, where the federal government has extensive landholdings and disputes between federal agents and local property owners periodically lead to violations of constitutional rights.
"More broadly, Wilkie reinforces the long-standing second-class status of constitutional property rights. In previous cases such as Kelo v. City of New London (2005), the Court often defined the scope of property rights in a much more restrictive way than is usually applied to 'noneconomic' rights such as freedom of speech and religion. In Wilkie, it ensured that even indisputable violations of constitutional property rights will be compensated less adequately than violations of other individual rights.
"At the same time, as Thomas' concurrence implies, most of the arguments for denying damage remedies for property rights violations can also be used to justify their denial for violations of other individual rights. Those who are content with the Court's relegation of property rights to second-class status should realize that the same fate may befall other constitutional rights that they value more."
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Antitrust misconceptions that are guiding the 110th congress are addressed in a monograph by two former officials of the Federal Trade Commission, Professor Timothy Muris (former FTC Chairman) and Richard G. Parker (former director of the FTC's Bureau of Competition and senior deputy director). Both men are cochairs of the antitrust and competition practice at O'Melveny & Myers in Washington, DC.
Oil & Gas Journal is running a series of three articles in July and August in which they summary the facts discussed by the authors in their monograph.
A dozen antitrust facts, Oil & Gas Journal, July 16, 2007.
The notion that half of bankruptcies are driven by medical debt is unsupported and insupportable, according to Professor Todd Zywicki, whose commentary in the Washington Times took issue with testimony recently presented on Capitol Hill. Zywicki, writing with Professor Gail Heriot of the University of San Diego Law School, states that in a small number of cases, medical debt combines with other forms of voluntary consumer debt to contribute to bankruptcy filing. He cites a study by the Executive Office of the United States Trustee that is in direct contradiction to testimony presented to Congress on the matter of medical bankruptcies.
Junk social science index, Washington Times, July 26, 2007. By Todd J. Zywicki and Gail Heriot.
Excerpt:
"To designate all cases involving expenses of more than $1,000, regardless of circumstances, as bankruptcies with 'major medical cause' is both silly and deliberately misleading. A bankruptcy with $1,001 in uncovered medical expenses and $50,000 on a Bloomingdale's card would constitute a 'medical bankruptcy' in their study. Perhaps their expansive definition of 'medical bankruptcy' should include self-proclaimed 'shopaholics,' as well.
"We could go on. The point is simply that the study uses trick after trick to classify as many bankruptcies as possible as medical. It's remarkable they didn't include them all.
"What do the real data show? Numerous studies have found the number of bankruptcies caused by medical debt to be dramatically lower than Mr. Himmelstein and Miss Warren report - down in the single digits.
"Among the most recent is a study of 5,203 bankruptcy files (about threefold the number examined by Mr. Himmelstein and Miss Warren) by the Executive Office of the United States Trustee. It found 54 percent of filers listed no medical debt at all and that medical debt accounted for about 5 1/2 percent of the total general unsecured debt. About 90.1 percent of filers reported no medical debt or medical debt of less than $5,000. Of the 45 percent who reported medical debt, 78 percent reported medical debt below $5,000, with an average of only $1,212 within that group - hardly enough to send the average family into bankruptcy. Overall, 1 percent of the cases accounted for a total of 36 1/2 percent of medical debt, and less than 10 percent of all cases represent 80 percent of all medical debt."
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Responding to news of an Australian personal injury firm becoming the first publicly traded law firm in the world, Professor Ronald Rotunda told the ABA Journal that changes allowing U.S. law firms to tap into lucrative financial markets could occur in the future.
Currently Rule 5.4 of the ABA Model Rules of Professional Conduct specifically forbids lawyers from forming partnerships with nonlawyers or sharing an interest in a law firm with them. Citing the District of Columbia as a jurisdiction that "changed its rules so nonlawyers could be part of a firm and the world didn't collapse," Rotunda said, "It's hard to say anything is inevitable, but throughout the history of the law, the rules have changed when economic pressure is applied." He added, "I used to think there was a natural limit to the size of a law firm because of conflicts of interest, but now you've got 1,000 attorneys in offices around the world. You can't pretend law firms here aren't influenced by international trends any more."
Selling Law on an Open Market, ABA Journal, July 2007. By Jason Krause.
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The benefits of spectrum efficiency in the digital television transition are slow to be realized, says Professor Thomas Hazlett, likening the digital race to a race in slow motion.
Hazlett's commentary in Financial Times states that "We have trekked to just the cusp of the Wireless Age." The day when consumers receive full advantage of spectrum efficiency has been delayed by go-slow spectrum policies, with the U.S. lagging far behind the European countries, says Hazlett.
COMMENT: A digital race run in slow motion, Financial Times, July 24, 2007. by Thomas Hazlett.
Excerpt:
"That day is delayed by go-slow spectrum policies, accounted for by three factors. First, regulators enjoy, and profit from, control over valuable stuff. Given that no agency official stands to lose salary or share price by squandering socially valuable bandwidth, state "warehousing" of frequencies is endemic. Second, market players are generally comfortable with market stability. From the operators' perspective, cellular licence auctions do three things - cost money, yield more spectrum for them to use, yield more spectrum for their rivals to use - and two of them are bad. Finally, there is a great temptation for other political interests, including those affiliated with television broadcasters, to keep the spectrum subject to political allocation. That yields power and opportunity.
"Consumers have a strong interest in liberalisation. The US is now slated to auction licences to use chunks of the television band - after a 22-year regulatory deliberation (and at least seven cancelled auctions). Licences yielding access to about 15 per cent of the television band for non-television services are to be sold by January 2008.
"The US, which pioneered analogue cellular technology in the 1980s, dawdled in issuing digital 2G licences, starting in 1995 what most European regulators had completed by 1992. The US then slept some more, auctioning 3G licences only in 2006, again lagging behind Europe by years. These delays suppressed network development and retarded economic growth.
"The US performance on television band reallocation is not visibly improved, but the plodding elsewhere appears as bad or worse. By making some progress to advance productive use of the digital dividend, the Americans may paradoxically stumble to a first-place finish in an international race being run in slow motion."
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The goal of war must be the destruction of the enemy by rendering him politically helpless or militarily impotent says Professor Michael Krauss. "The men who decimated German and Japanese cities as part of the efort to win World War II as quickly as possible would have been perplexed by descendants who now send American troops house to booby-trapped house and expect to achieve anything but more war," he adds.
Give War a Chance! American Thinker, July 23, 2007. By Michael I. Krauss and J. Peter Pham.
Excerpt:
"Jurists have taught that there are rules of war and accepted norms of behavior, codified in the Hague and Geneva Conventions, which prohibit the use of certain types of weapons, proscribe various tactics, and outlaw attacks on specific categories of targets. But we are at war with terrorists who wear no uniforms, have no rank, display no weapons openly, target civilians, and in some cases commit suicide for mass murder. These terrorists are now accorded the privileges of lawful combatants taken on the field of honor-and some the latter would not even dream of, such as early release of enemy detainees by the Administrative Review Boards at Guantánamo Bay even as the conflict is ongoing (regular prisoners of war, irrespective of their condition, are normally not repatriated until the conclusion of hostilities).
"In the fight against Islamist terror, we Americans have never actually given war a chance. We must do so-and soon-lest when we finally wake up to this war's reality, we find that the cost of the conflict thrust upon us is immeasurably higher."
Read the article
On July 17, 2007, Professor Todd Zywicki testified before the United States House of Representatives, Committee on the Judiciary, Subcommittee on Commercial and Administrative Law on the topic of "Working Families in Financial Crisis: Medical Debt and Bankruptcy."
Professor Zywicki has testified a number of times before Congress on issues of consumer bankruptcy law and consumer credit. He is the author of more than 50 articles in leading law reviews and peer-reviewed economics journals and is a frequent commentator on legal issues in the print and broadcast media.
Excerpt:
"Perhaps some here think that medical care is too expensive these days. I express no opinion on whether that is the case or if so what should be done to address the problem. It does seem obvious however, that bankruptcy law is not the appropriate place to try to deal with the problem of an overly expensive health-care system. Bankruptcy law should be concerned with striking an appropriate balance between debtors and creditors, including those in the health care system. Current law accommodates these concerns well and there is no need for further consideration at this time."
Read Zywicki's testimony
On July 17, 2007, Professor Jeremy Rabkin appeared on a panel hosted by the American Enterprise Institute (AEI) and moderated by University Professor and Professor of Law Ronald Rotunda to discuss the proposed Senate ratification of the Convention on the Law of the Sea. Other panelists included Susan Biniaz of the State Department and Rear Admiral John Crowley of the U.S. Coast Guard. Professor Rabkin recently co-authored an editorial in the Washington Post opposing ratification of the treaty on the grounds that it would hinder this country's anti-terrorism efforts by subjecting the U.S. Navy to the jurisdiction of international tribunals.
To view a webcast of the video, go the AEI’s website: The Law of the Sea Treaty: Help or Hindrance?
For more information on the Convention on the Law of the Sea, see the UN site: Oceans and the Law of the Sea.
The new new atheism rejects God in the name of natural science, individual freedom and human equality claims Professor Peter Berkowitz in a WSJ Opinion Journal op-ed that looks at the arguments being promulgated in the past year's million-plus copies of books by "atheism's newest champions."
Stating that the new new atheism sees the loss of religious faith in the modern world as an unqualified good, Berkowitz points out that the "errors and excesses" of atheism's current crop of writers have "pernicious political consequences, amplifying invidious distinctions among fellow citizens and obscuring crucial differences among believers world wide."
The New New Atheism, WSJ Opinion Journal, July 17, 2007. By Peter Berkowitz.
Excerpt:
"Playing into the anger and enmities that debase our politics today, the new new atheism blurs the deep commitment to the freedom and equality of individuals that binds atheists and believers in America. At the same time, by treating all religion as one great evil pathology, today's bestselling atheists suppress crucial distinctions between the forms of faith embraced by the vast majority of American citizens and the militant Islam that at this very moment is pledged to America's destruction.
"Like philosophy, religion, rightly understood, has a beginning in wonder. The most wonderful of creatures are human beings themselves. Of all the Bible's sublime and sustaining teachings, none is more so than the teaching that explains that humanity is set apart because all human beings--woman as well as man the Bible emphasizes--are created in the image of God (Genesis 1:27).
"That a teaching is sublime and sustaining does not make it true. But that, along with its service in laying the moral foundations in the Western world for the belief in the dignity of all men and women--a belief that our new new atheists take for granted and for which they provide no compelling alternative foundation--is reason enough to give the variety of religions a fair hearing. And it is reason enough to respect believers as decent human beings struggling to make sense of a mysterious world."
Read the article
A second Mason Law professor this week has been named an advisor to a 2008 presidential candidate.
Foundation Professor of Law Timothy Muris has been selected by Senator John McCain of Arizona to be part of his economic policy team, which consists of a group of economists, professors, and prominent conservative policy leaders who will advise McCain in his bid for the White House.
A press release from McCain's presidential campaign noted that "Members of the economic policy team will use their combined years of experience and expertise with domestic and international economic issues to help guide and promote his call for greater economic freedom and more robust growth."
Muris served from 2000-2004 as Chairman of the Federal Trade Commission, creating the National Do Not Call Registry during his tenure there. His government service includes, in addition to three previous positions at the FTC, three years with the Executive Office of the President, Office of Management and Budget.
Muris joined the faculty of Mason Law as a Foundation Professor in 1988 and was interim dean of the law school from 1996-1997. A member of the American Bar Association's Antitrust Section, Muris has written widely on antitrust, consumer protection, regulatory, and budget issues. He teaches Antitrust, Consumer Law, European Union Law, and International Trade.
In addition to his current position at Mason Law, Muris is Of Counsel at the law firm of O'Melveny & Myers and is Co-Chair of the firm's Antitrust/Competition Practice.
2008 presidential candidate Rudy Giuliani has named Professor Peter Berkowitz to his foreign policy team, positioning Berkowitz as his Senior Statecraft, Human Rights and Freedom Advisor.
In addition to his duties as a professor of law at Mason Law, Berkowitz also is affiliated with the Hoover Institution as the Tad and Dianne Taube Senior Fellow. His teaching focuses on the interplay of law, ethics, and politics in modern society.
Berkowitz is the cofounder and director of the Israel Program on Constitutional Government, has served as a senior consultant to the President's Council on Bioethics, and is a member of the Policy Advisory Board at the Ethics and Public Policy Center.
Berkowitz holds law and doctoral degrees in political science from Yale University and a master's in philosophy from the Hebrew University of Jerusalem. He has written widely on the topic of conservatism in America, as well as intelligence and legal issues dealing with terrorism.
Rudy Guiliani's New Foreign Policy Team, American Thinker, July 11, 2007. By Ed Lasky.
Excerpt:
"Peter Berkowitz is, like Hill, affiliated with the Hoover Institution and also teaches at George Mason University School of Law, -both institutions highly regarded in Republican circles. Professors at George Mason School of Law have been pioneers in promoting the view that economics and the law often overlap and the government should consider economic impacts when developing and enforcing the laws. The school has become a nursery for hatching some of the most innovative (and conservative) legal theories in America. Berkowitz has written widely on the subject of conservatism in America; he has also taken up the subject of intelligence and legal issues dealing with terrorism.
"Giuliani has been very astute in his choices for his foreign team; they enhance his anti-terrorism and foreign-policy credentials. This is his strong suit - many on the right are able to overlook his social and cultural views because he is perceived to be a leader that will protect America. His team reflects a blend of experts: those who hail from traditional diplomatic fields (Hill); those who have military expertise (Rosen); intellectuals (Podhoretz); those how have experience dealing with Congress (Kasten); those who are concerned that our schools are not preparing our diplomats to deal with reality and who believe our diplomats should represent America (Kramer); and those whose legal experience will help America deal with opposition from those who choose to engage in Lawfare against American interests (Berkowitz). A theme runs through it: Rudy will not appease enemies.
"Giuliani seems to have a broad-spectrum approach toward the foreign policy challenges ahead. There will be a need for experts in a wide variety of fields. More importantly for the near-term, he seems to have crafted a team that will make conservatives in the Republican Party confident that his leadership is to be trusted as they pull the lever in November, 2008."
Read the article
Press Release
From left, Supreme Court Justice Samuel Alito,
Professors Kyndra and Ronald Rotunda, and U.S.
Ambassador to Latvia Catherine Todd Bailey
Professor Ronald Rotunda was one of a small and elite group of speakers at the July 2-3 International Judicial Conference in Riga, Latvia, at which U.S. Supreme Court Justice Samuel Alito was guest of honor and keynote speaker.
Hosted by the United States Embassy, the Supreme Court of Latvia, and the Latvian Ministry of Justice, the conference drew over two hundred participants from seven countries and focused on issues related to ethics, reform, and transparency.
In addition to Rotunda and Alito, guest speakers were the President, Prime Minister, Chief Justice, and Minister of Justice of Latvia; Professor Jeffrey Hazard; and Professor Stephen Burbank.
While visiting Latvia, Rotunda and his wife Kyndra Rotunda enjoyed an intimate dinner along with Justice Alito at the home of U.S. Ambassador to Latvia Catherine Todd Bailey (photo above).
Rotunda teaches Constitutional Law and Legal Ethics and is the author of several treatises that are among the most widely cited modern authorities on constitutional law and procedure and professional ethics.
Despite contentions that the appointments of Chief Justice John Roberts and Justice Samuel Alito have caused the U.S. Supreme Court to veer sharply to the right, Professor Neomi Rao told Voice of America it is too early to make that kind of prediction.
In her dissent, Rao, who clerked for Justice Clarence Thomas, cited what she perceives to be displeasure on the parts of Justices Scalia and Thomas for the more moderate pace of the Court in approaching some of its liberal precedents.
Conservatives Hold Edge on US Supreme Court, Voice of America, July 11, 2007. By Jim Fry.
Excerpt:
"Moderates and liberals on the court won five of the one-vote margins. Justices Ruth Bader Ginsburg, John Paul Stevens, Steven Breyer and David Souter were joined in those rulings by Kennedy.
"In one example, they ruled the federal government can limit car emissions in order to control gasses that contribute to global warming.
"Kennedy -- on the winning side in every close case -- has become the court's crucial swing vote. But Turley says he is tacking rightward. 'In many ways, Justice Kennedy has sort of run home. He has become a more reliable conservative.'
"In their confirmation hearings, Chief Justice Roberts and Alito both told the U.S. Senate they were inclined to follow the legal doctrine called 'stare decisis' -- a principle based on established legal precedent.
"Some conservatives say the Roberts court has not boldly overturned precedents established by a more liberal court two or more decades ago. And Rao, who clerked for Thomas, says both he and Scalia appear irritated and unhappy.
"'Some of the concurring opinions -- especially the ones that Justice Scalia wrote -- were rather angry and very critical of the chief justice's "pose" of minimalism,' says Rao.
"The court made an abrupt turn on two cases involving civil liberties. It tightened limits on student speech -- allowing a school administrator to punish high school students who unfurled a banner interpreted as celebrating drug use.
"And justices limited the ability of schools to assign students on the basis of race in efforts to integrate public schools. It is a decision that could affect classrooms across the U.S. 'Literally, there are hundreds -- if not thousands -- of ways race is used. All of those are now suspect and so it can mean a very significant change,' Turley said.
"Change is what President Bush promised on the court. Even as his popularity and power now wane, Mr. Bush's new justices will guide the law for a generation or more."
Read the article (Story contains links to webcast)
Efforts by members of Congress to stop funding for the Guantanamo Bay detention center and grant new legal rights to detainees could have serious and far reaching effects, according to Professor Jeremy Rabkin, whose comments were carried in a USA Today article.
A proposal by Representative Jim Moran (D-Va.) would phase out funding for Guantanamo and allow for its 375 prisoners to brought to the U.S. and tried in civilian or military courts.
Such a proposal would grant Guantanamo prisoners greater rights than prisoners of war who "play by the rules," says Rabkin. In addition, many potentially dangerous terrorists might win release in American courts that are "not designed to try unlawful combatants."
Lawmakers to work on shutting down Guantanamo facility; Senate amendment would grant legal rights to detainees, USA Today, July 9, 2007. By Richard Willing.
Read the article
The standard recently set by the Supreme Court in Federal Election Commission v. Wisconsin Right to Life permits more pre-election spending by corporations than the Bipartisan Campaign Reform Act (BCRA), but the decision is far from a "sea change" in doctrine or practice, says Professor Allison Hayward, writing for the Legal Times.
Hayward argues that after the WRTL ruling, the difference between protected speech and illegal corporate expenditures will hinge on a judge's view of whether an issue advertisement is seen as something other than an effort to influence votes for or against a candidate. An analysis of what constitutes "express advocacy" has been ongoing for years under prior existing law in a fashion that is not radically different from what can be expected under WRTL.
Politics as Usual, Legal Times, week of July 9, 2007. By Allison R. Hayward.
Excerpt:
"The question in Wisconsin Right to Life isn't new. After Congress enacted the first political committee registration requirements in 1911, issue groups like the Anti-Saloon League immediately insisted that their 'political education' activities were about 'issues' not 'candidates.' Their opponents, naturally, accused them of cirumventing the law. The law was rarely enforced, and so the Supreme court had little occasion to rule on challenges. Meanwhile, in other First Amendment cases, the Court built a strict-scrutiny standard for content-based speech restrictions that became known as 'strict in theory, but fatal in fact.'
"The court wrestled with how this doctrine should be applied to campaign finance laws in Buckley v. Valeo (1976). That per curiam decision attempted to strike a middle way between justices who saw the Federal Election Campaign Act of 1974 as the ordinary exercise of Congress' power to regulate elections, and those who saw it as abridging core political speech. By imposing different standards of review on contributions and expenditures, and by construing the law to apply only to ads by outside groups containing express advocacy, the Court attempted to render a decision faithful to free speech while permitting Congress to 'do something' about campaign finance."
Read the article (subscription required)
"Reform groups should consider the broader implications of their positions, and the dynamics over time," says Professor Allison R. Hayward in a National Review Online article discussing the Supreme Court's Wisconsin Right to Life v. FEC (WRTL) decision.
Hayward points out that had reformers been less "conventional and reflexive" in pursuing regulation of outside groups, the case itself would have been avoided. Meanwhile, allowing WRTL qualifed nonprofit status would have resulted in greater disclosure and lower constitutional scrutiny.
A Life of Its Own, National Review Online, July 5, 2007. By Allison R. Hayward.
Excerpt:
"Reformers want to preserve laws that prohibit corporations and unions from making 'expenditures' in federal elections. The roots of this preference, and the statute, are in Progressive-era distrust for large corporations 'purchasing' legislatures and reaping beneficial laws. But it would not be enough just to monitor big business. The ban could be circumvented by setting up groups to pass through corporate funding.
"To preserve the line of defense against corporate political activity, reformers oppose any easing of the expenditure ban as it is applied to any incorporated entity. But many groups that might not have sought a corporate charter in 1907 now incorporate for liability limiting purposes. Nevertheless, conventional reform thinking cannot tolerate their inclusion in campaign debate. This is why reformers fight the efforts of groups like Wisconsin Right to Life to carve exceptions to laws like McCain-Feingold’s electioneering communication ban, applied to all corporations whatever their size or purpose.
"There are two interwoven conceptual issues at work here. The first is the one confronted in WRTL — what kind of activity is so political Congress can prevent corporations from participating? Here, pro-regulation interests wanted categorical application of the McCain Feingold 'blackout.' If a corporation mentions a candidate in broadcasting targeting to the relevant district within 30 days of the primary or 60 days of the general election, it’s toast. This law is clear, broad, and easy to administer. The other side in WRTL, consisting of a wide variety of advocacy organizations, sought a narrower standard that would leave groups free to discuss legislation and policy, and mention (often critically) decisionmakers who happen also to be running for office. For the most part, the groups won in WRTL.
"But content-based speech regulation isn’t the only way to control this activity. The second conceptual path considers what it is to be a 'corporation.' Can the group be deemed the 'kind' of entity the Constitution allows Congress to restrict? The character of corporations has changed in the 100 years since the ban was first enacted, so arguably the scope of 'corporation' could flex under statutory construction, too.
"In the Court’s 1986 Massachusetts Citizens for Life (MCFL) decision, it established an as-applied exception for certain nonprofit corporations that weren’t the kind of groups that posed a danger of corruption. Justice Brennan, writing for the Court, observed (479 U.S. 238, at 259):
Regulation of corporate political activity thus has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes. … While MCFL may derive some advantages from its corporate form, those are advantages that redound to its benefit as a political organization, not as a profit-making enterprise. In short, MCFL is not the type of 'traditional corporatio[n] organized for economic gain,' that has been the focus of regulation of corporate political activity.
"Then the Federal Election Commission turned to the task of crafting an MCFL-appropriate regulation. Reform groups pushed hard for a narrowly applicable construction of the so-called 'MCFL exception' (the FEC calls eligible groups QNPs for 'qualified nonprofit'). Today, to qualify as a QNP under 11 CFR 114.10, a group must be a tax exempt nonprofit under Section 501(c)(4), cannot take funding from corporations, cannot engage in any business activities, and must follow various picayune managerial restrictions set forth in the regulations. The MCFL exception articulated in regulation is narrower than the standard necessitated by the Supreme Court, and reformers can take credit for holding the line.
"Which means, reform advocates can take credit for teeing up WRTL. Wisconsin Right to Life accepted some corporate funding, so could not be considered a QNP under existing law. Had it qualified for a QNP-type exception, there would be no case. QNPs can legally make electioneering communications and expenditures. Moreover, were they to challenge the law, their position would be weaker. A dispute about QNP status, or the legitimacy or scope of the exception, moves into the area of corporate regulation, where the Court recognizes Congress and legislatures have more discretion to regulate.
"By pushing for a narrow QNP standard, reformers left the Wisconsin group with a claim against a content-based abridgment of its speech rights — a scenario entitled to strict scrutiny even on cloudy days. This is well-plowed ground, with cases even preceding the Court’s 1976 Buckley v. Valeo decision closely examining such content driven laws. To the extent the WRTL decision repudiates McConnell v. FEC’s approval of McCain-Feingold, it strikes at that decision’s most controversial and vulnerable spot."
Read the article
'Wonderfully Spared'
By Joyce Lee Malcolm
3 July 2007
The Wall Street Journal
"You and I have been wonderfully spared," Thomas Jefferson wrote John Adams in 1812. "Of the signers of the Declaration of Independence I see now living not more than half a dozen on your side of the Potomak, and, on this side, myself alone." Jefferson and Adams were not merely signers of the Declaration. Both sat on the committee that drafted the document, and Jefferson wrote it. And while they later became bitter political opponents, they reconciled in their last years.
Adams, the Yankee lawyer, revolutionary, Founding Father and ex-president, was 77 in 1812. Jefferson, the Southern aristocrat, revolutionary, Founder and ex-president, was 69. Both were mentally acute but frail. Jefferson spent three to four hours a day on horseback and could scarcely walk, Adams walked three to four miles a day and could scarcely ride.
They would never see each other again. But from a modest farm in Quincy, Mass., and a plantation in Virginia they corresponded and reminisced about the days when they were "fellow laborers in the same cause, struggling for what is most valuable to man, his right of self-government."
It's easy now, in a nation awash with complaints about what our Founders did not do, what imperfect humans they seem to 21st century eyes, to overlook how startlingly bold their views and actions were in their own day and are, in fact, even today. Who else in 1776 declared, let alone thought it a self-evident truth, that all men were were created equal, entitled to inalienable rights, or to any rights at all? How few declare these views today or, glibly declaring them, really intend to treat their countrymen or others as equal, entitled to liberty and the pursuit of happiness?
Certainly not America's 20th century enemies, the Nazis and communists; certainly not today's Islamic radicals, who consider infidels unworthy to live and the faithful bound by an ancient and brutal code of law. We are fortunate that the Founders of our nation were enlightened, generous, jealous of their rights and those of their countrymen, and prepared to risk everything to create a free republic.
Breaking with Britain was a risky and distressing venture; could the American colonies go it alone and survive in a world of great European powers? If not, what better empire than the British? It took a year of fighting before the Continental Congress and the states were prepared to declare independence. "We might have been a free and a great people together," Jefferson sighed.
But if we were angry at British treatment, we were also lucky that Britain was our mother country. The British taught us respect for the rights of individuals, for limited government, for the rule of law and how such values could be realized. "An Englishman is the unfittest person on earth to argue another Englishman into slavery," Edmund Burke insisted, pleading our cause before Parliament in March, 1775.
Scores of distinguished British officers refused commissions to fight against us. Some, who were willing, were reluctant to press their advantage over our literally rag-tag army. The British parliament wrangled day after day over the fitful progress of the war. And when it was over and, thanks to French assistance, we had won, Britain was careful in negotiating the peace treaty for fear we would fall under the influence and control of the French or the Spanish. We would fight against Britain again, but over the centuries the common heritage that connects our two peoples has brought us together as close allies.
We were lucky in our generals. Unlike the commanders of nearly all revolutionary armies before and since, George Washington resisted the temptation to seize power. After England's civil war between King Charles I and parliament, Oliver Cromwell, Parliament's leading general, evicted what remained of parliament and made himself "Lord Protector." The great expectations of the French Revolution ended when Napoleon Bonaparte staged a coup against the republican government and later crowned himself emperor.
Not only do victorious generals have a nasty habit of taking over, but once an army becomes entangled in politics it is extraordinarily difficult to remove it from public affairs. Numerous modern countries have tried to control their armies and failed.
Washington prevented a coup by his officers; and when the war was over, he bid a moving farewell to his men and staff before appearing before Congress to resign his commission: "Having now finished the work assigned to me, I retire from the great theatre of Action...and take my leave of all the employments of public life." Then he hurried off to spend Christmas with Martha and their family. Although it sounds sentimental, trite even, it happened that way.
In their correspondence, Adams wrote Jefferson that the future would "depend on the Union" and asked how that Union was to be preserved. "The Union is still to me an Object of as much Anxiety as ever Independence was," he confided.
He was right to worry. The union has always been difficult, from the first fears that the 13 separate states would behave as competing countries or bickering groups, through a brutal and painful civil war whose wounds have yet to entirely heal, to a vast, modern land whose residents, taking for granted the blessings bestowed upon them, are deeply divided and quick to vilify each other.
More tragically, some seem to enjoy vilifying America, everything it has been and stands for, seeking and finding fatal shortcomings. Adams and Jefferson were not blind to those shortcomings. "We think ourselves possessed or at least we boast that we are so of Liberty of conscience on all subjects and of the right of free inquiry and private judgment, in all cases, and yet," Adams admitted, "how far are we from these exalted privileges in fact." Recent moments of real unity after 9/11, when members of Congress stood together on the steps of the Capitol and sang "God Bless America," have been fleeting.
In 1825 Jefferson wrote to congratulate Adams on the election of his son, John Quincy to the presidency -- an election so close it was decided in the House of Representatives. "So deeply are the principles of order, and of obedience to law impressed on the minds of our citizens generally that I am persuaded there will be as immediate an acquiescence in the will of the majority," Jefferson assured him, "as if Mr. Adams had been the choice of every man." He closed, "Nights of rest to you and days of tranquility are the wishes I tender you with my affect[iona]te respects."
On July 4 the following year, as the nation celebrated the 50th anniversary of the Declaration of Independence, its two frail signers died within hours of each other. Their cause, "struggling for what is most valuable to man, his right of self-government," continues in the nation they launched, still fraught with aspirations and anxieties, flaws and divisions but, one hopes, with the ability to reconcile as they did, to work together for the joint venture.
Ms. Malcolm teaches legal history at George Mason University School of Law and is the author of several books, including "Stepchild of the Revolution: A Slave Child in Revolutionary America," forthcoming from Yale University Press.
Reprinted with permission of The Wall Street Journal © 1900/2007 Dow Jones & Company, Inc. All rights reserved.
A National Public Radio Morning Edition program examining the role of precedent in the Roberts Court featured analysis by a number of legal scholars, including Professor Neomi Rao, who told NPR legal affairs correspondent Nina Totenberg, "There's agreement, perhaps, among some of the conservatives and some of the liberals that the minimalists, as it were, are being less than forthright in what they're doing."
Rao's comments were part of a discussion about the transformation of the Supreme Court under the leadership of Chief Justice Roberts wherein the Court has reversed a number of key precedents, despite the differences among the Court's conservative members.
American views of the law of the sea, even those pertaining to national security, would be put at risk should the U.S. ratify the Convention on the Law of the Sea, says Professor Jeremy Rabkin.
Rabkin commented on the issue in a Washington Post op-ed, condemning ratification of the treaty governing shipping, navigation, mining, fishing, and other ocean activities on the grounds that it would put America's naval counterterrorism efforts under the control of foreign judges, whereby international tribunals would have the last word in matters pertaining to permissible U.S. naval actions.
Professor Rabkin, formerly Professor of Government at Cornell University, joins the faculty of Mason Law this year as a Professor of Law.
A Treaty the Senate Should Sink, Washington Post, July 2, 2007. By Jack Goldsmith and Jeremy Rabkin.
Excerpt:
"Suppose the United States seizes a vessel it suspects of shipping dual-use items that might be utilized to build weapons of mass destruction or other tools of terrorism. It's not a wild supposition. Under the Proliferation Security Initiative, the United States has since 2003 secured proliferation-related high-seas interdiction agreements with countries such as Belize and Panama, which provide registration for much international shipping. If the United States ratifies the Convention on the Law of the Sea, the legality of such seizures will, depending on the circumstances, be left to the decision of one of two international tribunals.
"The first is the International Tribunal for the Law of the Sea, based in Hamburg. Some members of the Hamburg tribunal come from countries naturally suspicious of American power, such as China and Russia. Others are not allied with the United States. Even judges from Europe and South America do not always see things the way U.S. military authorities do.
"The second institution is a five-person international arbitration panel. The United States and the flag state of the seized ship would have input into the selection of some of these arbitrators. But the U.N. secretary general or the president of the Hamburg tribunal would select the crucial fifth arbitrator when, as would typically be the case, the state parties cannot agree. They must choose from a list of "experts" to which every state party to the convention -- not just China and Russia but other unfriendly nations such as Cuba and Burma -- can contribute.
"At minimum, these tribunals would pose awkward questions to the United States about the evidence behind a seizure, how we gathered it and who vouches for the information. At worst they would follow the recent example of the International Court of Justice and use a legal dispute to score points against American 'unilateralism' and 'arrogance' for a global audience keen to humble the United States. In every case, a majority of non-American judges would decide whether the U.S. Navy can seize a ship that it believes is carrying terrorist operatives or supplies for terrorists.
"It's true that the convention exempts 'military activities' from the tribunals' jurisdiction, but it does not define the term. The executive branch, worried about this ambiguity, has proposed a condition to ratification that would allow the United States to define the exemption for itself. But this condition amounts to a 'reservation' disallowed by the treaty. International tribunals would still have the last word on the validity of the U.S. condition and the resulting scope of permissible U.S. naval actions."
June 2007
Professors Nelson Lund, Neomi Rao, and Ilya Somin were part of an expert panel analyzing the decisions of the 2006-07 Supreme Court in a June 28 live video webcast by The Federalist Society.
The speakers examined the most significant cases of the Supreme Court term just ending and looked at the impact of those cases on American law. Among the cases examined were Parents Involved In Community Schools v. Seattle School District No. 1; Morse v. Frederick; Federal Election Commission v. Wisconsin Right to Life, Inc.; Gonzales v. Carhart; Wilkie v. Robbins; and Heim v. Freedom From Religion Foundation, Inc.
Analyzing the Decisions of the 2006–07 Supreme Court (Event Video), The Federalist Society, June 28, 2007.
View the Webcast - Part 1: Statements
View the Webcast - Part 2: Discussion and Q&A
Professor and former Federal Trade Commission Chairman Timothy Muris commented in TR Daily on an FTC Internet Task Force report urging caution in considering net neutrality policies.
"Net neutrality is a meaningless term, lacking a rationale or analytical basis to impose new regulations on the Internet. The FTC Report today reaffirms, that the broadband Internet access industry is moving in the direction of more, not less, competition, including fast growth, declining prices for higher-quality service, and the current market-leading technology (i.e., cable modem) losing share to the more recently deregulated major alternative (i.e., DSL)," said Muris.
FTC Report Urges Caution in Considering Net Neutrality Policies, TR Daily, June 27, 2007.
Disincentives no longer exist to preclude aggression by Hezbollah in Lebanon, says Professor Michael Krauss, writing in American Thinker. Despite assurances by the commander of the U.N. peacekeeping forces in Lebanon (UNIFIL) that Hezbollah activity is diminishing there, Krauss points to evidence that the opposite is true.
Hezbollah, Hamas, and Humanitarians, American Thinker, June 25, 2007. by Michael I. Krauss and J. Peter Pham.
Excerpt:
"Once upon a time, statesmen realized with Clausewitz that war was the continuation of politics by other means. Their charge was to do everything possible to prevent the outbreak of hostilities. But once it was clear that diplomacy failed or that one of the parties had initiated hostilities (casus belli), warriors were allowed to deliver what diplomats failed to produce: a definitive resolution of the conflict by determining a winner and a loser. The result was unconditional surrender, the political and military annihilation of the enemy.
"Nowadays, however, when a terrorist group financed by a sovereign powers commits a casus belli, the international community reacts in one of two ways:
1. If the terrorist attack is successful, all those who resist are killed mercilessly. The international community wrings its hands and deplores the outcome.
2. If the terrorist attack is unsuccessful, the terrorists are pushed back from whence they came. The international community establishes humanitarian institutions, which prevent the annihilation of the terrorists and give them a chance to rebuild before they next attack. When this happens, repeat 1 or 2.
"War is, or at least used to be, a bloody business. Precisely because of this, bellicose strongmen had disincentives against initiating conflict: once they unleashed the dogs of war, they faced dire consequences, including debellatio, the ending of enemy belligerency through the complete destruction of their state. The unconditional surrender of the Third Reich was the end of the conflict it had loosed upon the world.
"Today, no such disincentives exist. Warlords can wage war with certain knowledge that the 'humanitarian considerations' of the United Nations will put aggressor and victim on the same level and save them from total defeat. Miscalculate your enemy's strength and resolve, and not only will the international community rally in midnight sessions of the UN Security Council to prevent your collapse, but the state you attack will have to tolerate inept 'peacekeepers' such as General Graziano, and helplessly await your next onslaught."
Read the article
Even corporations that gain dominance in the marketplace cannot escape the emergence of competition concludes Chicago Tribune columnist Steve Chapman, quoting Professor Thomas Hazlett in his column.
Chapman points out that markets are more complex and dynamic than regulators assume, citing Microsoft's flat stock prices for over a decade, despite the government's fear of its suppression of competition. "Microsoft has seen its market position erode, and it has virtually nothing to do with the antitrust case," says Hazlett.
Who's afraid of mergers? Chicago Tribune, June 21, 2007. by Steve Chapman.
Excerpt:
"Bill Clinton's Justice Department tried to break up Microsoft before it enslaved us all, but the feds got far less than they wanted. Microsoft, however, has found out that even a virtual monopoly doesn't guarantee prosperity. Despite controlling more than 90 percent of the market for computer operating systems, the company's stock price has been flat for the last decade--while Apple, which has only a tiny share, has skyrocketed in value since 2003.
"Meanwhile, other companies, notably Google, have trounced the Big Meanie in other areas. Over the last decade, says Thomas Hazlett, a professor of law and economics at George Mason University, 'Microsoft has seen its market position erode, and it has virtually nothing to do with the antitrust case.'
"The point is not that corporations will never try to suppress competition, as Microsoft is accused of attempting with its new Vista operating system, which it recently agreed to alter in response to a complaint from Google. The point is that they will usually fail, because of the many choices available to the buying public--and that on the rare occasions when they succeed, the success is invariably fleeting.
"Even corporations that gain dominance find that no matter how they connive, they can't escape competition. In a market economy, today's fearsome predator is tomorrow's frightened prey."
Read the article
Fallow spectrum is the result of the government's initial errors in allocation, Professor Thomas Hazlett told observers of a panel discussion at the Wireless Communications Association Internationals annual Washington show. Hazlett, a professor of law and economics and former FCC chief economist, debated Gregory Rohde, former administrator of the National Telecommunications and Information Administration and president of e-Copernicus, a lobbying and consulting firm.
Spectrum Experts Debate Reason for Frequencies Going Unused, TR Daily, June 15, 2007. By Paul Kirby.
Excerpt:
"Theres a massive problem with fallow spectrum, Mr. Hazlett agreed. But he said thats because of mistakes the government has made in allocating it in the first place. He called for the government to put more frequencies in the marketplace with liberal, exclusively assigned rights. Its quite clear that U.S. policy has stifled broadband build-out of wireless, he added. Mr. Hazlett cited TV spectrum, the 3650-3700 megahertz band, and the 2.5 gigahertz band as examples of frequencies that have been underutilized due to FCC allocation and service rule decisions.
"Mr. Hazlett added that frequencies that had been used by specialized mobile radio (SMR) licensees also had been underutilized until Morgan OBrien and others acquired them and constructed a network that is now part of Sprint Nextel Corp."
Financial press outlets, including The Wall Street Journal and Barron's, are crediting Professor Thomas W. Hazlett's report supporting a merger between satellite radio giants XM Satellite Radio Holdings and Sirius Satellite Radio with producing a $550 increase in market value of those companies' stocks.
Hazlett, a former chief economist of the Federal Communications Commission and internationally recognized expert in telecommunications policy, stated in his report prepared for the two satellite radio companies that a merger would not stifle competition in the broadcast sector. Instead, said Hazlett, the result would be that consumers would benefit from better pricing and programming.
Nasdaq Climbs 2.1% for the Week; Intel Shares Rise on Analyst's Upgrade, The Wall Street Journal, June 15, 2007. By Andrew Lavallee and Emily Flitter.
A decision by the U.S. 4th Circuit Court of Appeals that the president lacks the authority to indefinitely hold without charges Al Qaeda operatives who are caught within the United States grants legal immigrants "the right to due process of American civilian courts even if you wage war against the USA from inside the borders," maintains Professor Michael Krauss. The decision has the effect of cutting into the president's power to wage war, Krauss fears.
Krauss's comments were carried in a New York Sun article examining the Court's 2-1 ruling, which rejected President Bush's belief in the expansive powers of his office and made a distinction between the rights of terror suspects arrested abroad versus those arrested within the U.S.
Court Rules Bush Lacks Power to Detain Suspects Indefinitely, New York Sun, June 12, 2007. By Joseph Goldstein.
Read the article
Noting that the United States maintains an embassy in the functioning capital of every country except Israel, Professor Michael Krauss argues that the Jerusalem Embassy Act of 1995, which became law without benefit of a presidential signature, should be enforced, with the U.S. vacating the current Tel Aviv embassy location and reestablishing an embassy in Jerusalem.
Next Year in Jerusalem, National Review Online, June 5, 2007. By Michael I. Krauss and J. Peter Pham.
Excerpt:
"No one questions President Bush's commitment to national security and his friendship for Israel. But the 'logic' behind his invocation of these waivers is flawed, and undermines both the national interests of the United States and the security of the State of Israel. By leaving our embassy in Tel Aviv in deference to the State Department's concerns about the sensitivities of Arab 'moderates,' the U.S. places a question mark next to the very existence of Israel in Arab die-hards. America's refusal to relocate its embassy to an uncontested portion of Israel's capital validates the efforts of Israel's enemies to wrest the Holy City and, untimately, 'the whole of Palestine, from the river to the sea,' (one of Arafat's favorite phrases) by intransigence, violence, and terror. And if the 'little Satan' of Israel can be beaten, why not the 'Greater Satan' of America? This is why, on the occasion of the fortieth anniversary of the Holy City's liberation, America's interests would be best served by making real for our embassy the words of the Passover invocation: 'Lshana ha'ba-ah b'Yerushalayim...Next year in Jerusalem.'"
Read the article
If the newly revived Equal Rights Amendment (ERA), renamed the Women's Equality Amendment, becomes law, its full effect may produce some unexpected results, maintains Professor Ilya Somin in a Legal Times op-ed.
Somin points out that courts have relied on the equal protection clause of the 14th Amendment to accomplish most of the objectives of the original ERA. If the ERA passes, says Somin, laws with gender classifications will likely be subjected to the strict-scrutiny standard. Somin expects that application of that standard would result in unintended consequences, such as the elimination of government affirmative action for women and the invalidation of public school programs providing targeted assistance to African-American boys.
Be Careful What You Wish For, Legal Times, June 4, 2007. By Ilya Somin.
Excerpt:
"In the 1960s and '70s, most federal judges were politically liberal and skeptical of textualism. As a result, they were sometimes willing to deviate from the text of the law to reach liberal results.
"Today, the judiciary is largely made up of judges appointed by conservative Republican presidents who tried hard to pick judges with strong conservative credentials and (to a lesser extent) textualist approaches to legal interpretation. Almost 60% of today's federal courts of appeals judges were appointed by conservative Republican presidents. With the replacement of Justice Sandra Day O'Connor by Justice Samuel Alito Jr., the Supreme Court now has a majority that is generally hostile to affirmative action.
"Unlike their predecessors several decades ago, today's judges are likely to enforce the conservative implications of the ERA as stongly as the liberal ones, if not more so."
Read the article
May 2007
Professor Peter Berkowitz finds that the tensions in modern conservatism compel conservatives to wrestle with the consequences of change more fully than progressives, thus engaging greater debate within the political right.
Berkowitz discusses the source of the divisions within the right and the arguments of Kirk, Hayek, and Strauss that he believes "are essential to understanding not only where we come from but where we should head."
The Conservative Mind: The American right is a cauldron of debate; the left isn't, WSJ.com Opinion Journal, May 29, 2007. By Peter Berkowitz.
Excerpt:
"There can not be a conservative soul today in the way one can speak of a liberal soul or spirit. Whereas the latter revolves around the paramount good of freedom, modern conservatives, while loving liberty, differ over its position in the hierarchy of goods most in need of preservation, and indeed differ over the paramount good. Yet the writings of Kirk, Hayek and Strauss do form a family. All developed their ideas with a view to the 20th century totalitarian temptations of fascism and communism. All agreed that liberal democracy constituted the last best hope of modern man. And all showed that defending liberty involves a delicate balancing act.
"Conservatives, facing uncertainty about George W. Bush's legacy, and the reality of their own errors and excesses, have good reason just now to read and ponder Kirk, Hayek and Strauss. Progressives, too prone these days to perceive difficult moral and political questions as one-sided and too keen to characterize their allies at home in the defense of liberty as enemies, have good reason to do so themselves."
Read the article
While intention-based advertising is revolutionary in its efficiency, Google risks its most valuable asset, consumer trust, if it fails to protect personal data from abuse, according to Professor Thomas Hazlett.
Hazlett's comments are drawn from a May 24 op-ed in the Financial Times in which he looks at the "sensational efficiency" of pinpoint advertising as pioneered by Google Search, pointing out that that same efficiency amounts to an invasion of privacy that could expose Google to genuine risk.
COMMENT: Google's algorithm of life: rejoice and be wary, Financial Times UK, May 24, 2007. By Thomas Hazlett.
Excerpt:
"Intention-based advertising is revolutionary in its efficiency. People flock to this environment. Gmail is today a runaway hit.
"At the same time, they will continue flocking only so long as the price is right. If Google fails to protect personal data from abuse, the company's single most important asset goes up in smoke. Without the reputational capital to do seamless business with hundreds of millions of internet users, Google's profits would go the way of the dotcom bubble.
"Google Search, Gmail and myriad other services are today intrusive data mining enterprises - and extremely popular with customers. The company's enormous capital resources, driven by Wall Street's excitement over a media model that actually works, help solve the consumers' conundrum. The share values of the search giant can only tip-toe in the troposphere so long as those hard disks remain protected. When Google scans them to find what job listing we might like to see or what spa we need to visit, we tend to be pretty happy. Where standards slip and private information leaks to unwanted purposes, or is sold to low-ball retailers, we are all going to get crazy. We will take Google's equity with us.
"Google's marketing under the 'Don't be evil' theme is one of the last old-style types of advertising slogan that still works. For customers and shareholders alike. The rude awakening for many is that they supposed that this was a different kind of company and that the markets it opened were upside down from others. They are finding that privacy, like other goods, has trade-offs, and that even the purest of souls must make hard choices."
Read the article
Professors Michael Krauss and Joyce Lee Malcolm were two of the presenters at a conference entitled "The Free Society: Foundations and Challenges" held at Princeton University on May 14 and 15.
The public conference, sponsored by the James Madison Program in American Ideals and Institutions and the Association for the Study of Free Institutions, University of Nebraska, was designed to address some of the questions that arise in connection with the quest for freedom. Presenters at the conference were scholars in the social sciences and humanities.
Krauss presented his paper as part of a panel on The Rule of Law, while Malcolm presented hers as part of a panel entitled The Historical Conditions of Free Institutions.
Talented lawyers and academics are still drawn to the prospect of obtaining a seat on the federal bench despite the widening gap between the salaries of judges and private sector lawyers, according to Professor Ilya Somin.
Somin's comments were carried in a St. Louis Post-Dispatch news story regarding efforts by former Senator John Danforth and former Representative Richard Gephardt to advocate for a break in the the link between the salaries of federal judges and members of Congress on the basis that Congress' reluctance to raise its members' salaries has had the effect of keeping federal judges' earnings far below that of lawyers in private practice.
Danforth, Gephardt: Raise judges' pay, St. Louis Post-Dispatch (MO), May 13, 2007. By Grant Slater.
Excerpt:
" Members of Congress have hitched their salaries to judges' but rarely give themselves a pay raise to avoid drawing the ire of voters at election time, when talk of approving your own pay raise doesn't play well on television.
"'They don't want to see a commercial in the next campaign saying, 'Sen. X voted for pay increases,' Danforth said. 'Their interest in voting against pay increases shouldn't penalize judges.'
"The linkage has kept legislators' pay steady and also stifled the pay of judges, according to a report released last month by the Brookings Institution and the American Enterprise Institute.
"Federal district judges make the same salary as members of Congress, $165,200. Private-practice lawyers can earn anywhere from $100,000 a year, the salary of an entry-level lawyer in the St. Louis area, to more than $1 million a year, which Chief Justice John Roberts earned before taking an $800,000 pay cut to join the U.S. Supreme Court.
"Gephardt said the link came from Constitutional entitlement attitudes in Congress that equal pay should be afforded to equal branches of government.
"As lawyers' salaries continued to skyrocket, Congress voted nine years in a row, during Gephardt's tenure, to forgo the annual cost-of-living increase for themselves and, consequently, for federal district judges.
"With salaries flat-lined in public service, the salary gap between judges and private-practice lawyers widened.
"'For somebody who is a practicing lawyer, often times to become a federal judge would be an enormous sacrifice,' Danforth said.
"But some legislators and legal scholars say a federal judgeship comes with other perks - a lax performance review, a lighter workload and more power and prestige - that make the pay cut worth it.
"Ilya Somin, a law professor at George Mason University, said taxpayers would be reluctant to support higher salaries for a positions that already attract qualified professionals.
"'There are lots of talented lawyers or academics who would love to become federal judges if the opportunity were to arise,' Somin said.
Read the article
Professor Timothy Muris was a participant in the May 8 Department of Justice and Federal Trade Commission joint public hearings on single-firm conduct held at Federal Trade Commission Headquarters in Washington, D.C. This final hearing in the series was held in roundtable format and was moderated by Assistant Attorney General Thomas O. Barnett and FTC Chairman Deborah Platt Majoras. The hearing's purpose was to examine a wide range of policy and enforcement issues, including analysis of monopoly power, various proposed standards for exclusionary conduct, and challenges in applying those standards to specific practices.
Since June 2006 when the joint hearings began, there have been a total of 18 days of hearings, 28 different panels, and 130 panelists participating in the discourse. Professor Muris, a former chairman of the Federal Trade Commission, has been a contributor to several of the hearings.
By David Driver
Ross Davies | Ross Davies, associate professor in the School of Law, teaches the first-year course in contracts and advanced courses in legal history. He is also editor in chief of the Green Bag, An Entertaining Journal of Law.
The Green Bag published articles from 1889 to 1914 written by such legal scholars as Louis Brandeis, Roscoe Pound and Elihu Root. The new version of the Green Bag published since 1997 attempts to capture the spirit of the original.
The Green Bag web site explains, “There exists a gap in legal publishing. At the end of one spectrum, newspapers and news magazines report the legal events of the day; at the other, law reviews publish large-scale works of legal scholarship. But there is nothing in the middle – no place for scholars to toss out creative thought, or make an argument that merits more than a letter to the editor but fewer than 50 footnotes. The solution: resurrect the Green Bag.”
Through the Green Bag, Davies began to give away bobblehead dolls of Supreme Court justices. The dolls are made in Washington state at the same company, Bensussen Deutsch & Associates, that produces the popular bobbleheads of professional sports stars and other celebrities.
The Supreme Court bobbleheads often carry props related to one of their legal opinions.
Photo by Nicolas Tan |
Some of the bobblehead dolls include former Justice Sandra Day O’Connor and Chief Justice William Rehnquist, as well as sitting justices John Paul Stevens, Anthony Kennedy and Antonin Scalia.
The Scalia bobblehead has the judge standing between a wolf and a pencil driven into a lemon. There is a reason for each prop. The wolf refers to Scalia's 1988 opinion on separation of powers and the independent counsel law in Morrison v. Olson: “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”
As for the pencil and the lemon? Scalia wrote a 1993 opinion in Lamb’s Chapel v. Center Moriches School District: “As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches School District … Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinion, personally driven pencils through the creature’s heart … and a sixth has joined an opinion doing so.”
Asked whether he had ever heard back from the judges, Davies says, “I got a thank-you note from Chief Justice Rehnquist in 2003, after we made one of him. We have never asked the judges permission to do this. These people have a real sense of humor about this. ”
About 1,000 to 2,000 bobbleheads are made for each judge, according to Davies. The bobbleheads are given away and are not sold. There are no promises about when the bobbleheads will be produced or who will get them.
"Some (but not all) subscribers to the Green Bag as of the date we announce the release of a bobblehead receive a certificate redeemable for a doll, and we arbitrarily and capriciously give certificates to some folks who are not subscribers (mostly law school public interest groups that auction the dolls at their annual fundraisers)," according to the Green Bag web site.
If you want to buy a bobblehead, the best bets are charity auctions and eBay.
Davies, who considers producing the Green Bag a hobby, joined Mason in 2002 after clerking for Judge Diane R. Wood of the U.S. Court of Appeals for the Seventh Circuit. He also practiced with the Washington, D.C., law firms of Gibson Dunn & Crutcher LLP and Shea & Gardner (now Goodwin Proctor).
This article appeared in The Mason Gazette.
Product liability law should be allowed to evolve as a partial expression of each state's view of the allocation it wishes to make of the risks of living says Professor Michael Krauss, writing in the Wall Street Journal of the dilemma today's product liability suits create for consumers.
Krauss explains that unlike early product liability suits that pitted local plaintiffs against local defendants, today's suits involve plaintiffs and defendants in different, and sometimes far-reaching, locations. A result of that disconnect is that juries are able to make large awards to plaintiffs without regard to the effect on the community's economy.
Krauss argues that a federal choice-of-law rule would leave product liability in the state's hands while also providing an incentive for the state to respond to its citizens' actual risk preferences.
The op-ed appearing in The Wall Street Journal was adapted from Krauss's longer article in The Brigham Young Law Journal.
Tort-Eating Contest, The Wall Street Journal Online, May 2, 2007. By Michael Krauss.
Excerpt:
"A manufacturer might want to charge higher prices in West Virginia to cover the legal 'premium' it must pay for unavoidable product-liability rules there. It wouldn't work. Mountaineers could simply purchase the product in neighboring Maryland and bring it back home -- and current jurisdictional rules essentially provide that West Virginia tort law will apply to all accidents occurring there, regardless of where the consumer bought the product.
"West Virginia consumers, in other words, obtain the same tort 'coverage' -- but for a lower premium -- if they buy the product in Maryland. As a result, manufacturers aren't able to lower the price of their products in Maryland to reflect that state's less onerous (or ridiculous) product liability rules, because they may end up incurring the higher liability costs of West Virginia. I believe this helps to explain the product liability mess in the U.S. We have more product liability than we want because of a beggar-thy-neighbor 'Byrd Effect.'
"Suppose, however, a federal law declared that the laws and rules governing product liability applicable to a given product are the rules of the state where that product was first sold at retail.
"Thus, if a West Virginian bought his lawn mower in Maryland, it would be Maryland law that determined product liability, even if an accident involving an alleged defect happened later in West Virginia. (Labeling is generally easy and would provide reliable identification of the state of first sale.) Manufacturers could now price goods in each state to reflect that state's liability rules -- allowing consumers to pay for the liability protection they wanted. Competition would provide consumers with knowledge of what this all means. West Virginia retailers would have a keen incentive to explain to consumers how they receive greater protection -- in return for a higher purchase price -- much as current retailers of name-brand products have an incentive to stress the reasons why the brand they sell carries a premium price as compared to generics.
"Of course, consumers might not want to pay for this extra protection. Suppose that the West Virginia retail price of a lawn mower includes a premium reflecting the outlays required by a product liability rule requiring full compensation to a consumer injured through his own misuse of a product. The consumer might say, 'Thanks but no thanks. I'll take my chances,' and buy his lawnmower in Maryland, where this 'misuse protection' is not bundled into the purchase price. West Virginia retailers lose sales; and if the losses became apparent, these retailers would be well placed to pressure political representatives to modify liability rules so as to better reflect consumers' actual preferences."
The article is available online through subscription.
April 2007
Testifying before the House Financial Services Committee Financial Institutions and Consumer Credit Subcommittee hearing on "Credit Card Practices: Current Consumer and Regulatory Issues," Professor Todd Zywicki told legislators that the relevant issue for regulation should be to determine whether the resulting complexity in credit card terms was warranted in light of the regulatory action's actual benefit to the consumer.
Zywicki's April 26 testimony was one of numerous trips to Capitol Hill to testify before lawmakers.
Excerpt:
" Available evidence indicates that the credit card market is competitive and responsive to consumer choice. Understanding the economics of the credit card market therefore raises serious challenges for any proposals to heighten regulation of the credit card market. In fact, misguided regulation can have serious unintended consequences that will end up reducing consumer welfare; thus, any proposal for additional regulation should be studied carefully to ensure that the benefits of any such regulation exceed the costs, including any unintended consequences that such regulation is likely to spawn. In addition, it would be wise to examine the continuing relevance and utility of existing regulations before proposing new regulations. There are three basic manners in which credit can be regulated: substantive regulation, disclosure regulation, or market and common law 'regulation.' Each has costs and benefits."
Read Zywicki's testimony
Increased use of court-appointed experts would represent a significant improvement in the courts' ability to utilize legitimate scientific evidence states Professor David Bernstein in his paper entitled "Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution."
Bernstein's paper was presented at an April 23 event sponsored by the American Enterprise Institute for Public Policy in Washington, D.C. The presentation concluded with a panel discussion involving Deborah Runkle of the American Association for the Advancement of Science, Edward K. Cheng of Brooklyn Law School, Joe G. Hollingsworth of Spriggs & Hollingsworth, and David Michaels of George Washington University and the Project on Scientific Knowledge and Public Policy (SKAPP). Moderator was Ted Frank, director of AEI's Liability Project.
Read Bernstein's paper, part of the George Mason University Law and Economics Research Paper Series.
The political response to Kelo has led to reforms, but it also has led to enactment of ineffective or meaningless laws says Professor Ilya Somin, blaming the problem in part on public ignorance of eminent domain issues.
Referendum initiatives drafted by activists who do not have to appease special interest groups tend to be more effective than most legislative reforms, Somin comments, citing various initiatives across the United States as evidence that political backlash to Kelo has not been as effective as might be expected.
Post-Kelo America: Assessing the progress of property rights reform, reasononline, April 20, 2007. By Ilya Somin.
Excerpt:
"Nearly every state legislature has either adopted or considered legislation to curb eminent domain, but only 14 have enacted laws that actually provide significantly increased protection for property rights. Seventeen states have passed laws that purport to restrict eminent domain but actually accomplish very little. Texas, for example, banned 'economic development' takings, but it continues to permit them under other names, such as 'community development.' The most common tactic—used in some 15 states’ post-Kelo laws—is to allow economic development condemnations to continue under the guise of alleviating 'blight.' While it may sometimes be desirable to use eminent domain to transform severely dilapidated areas, many states define 'blight' so broadly that almost any neighborhood qualifies. A 2003 Nevada Supreme Court decision, for example, concluded that downtown Las Vegas is blighted. Similarly, a 2001 New York appellate decision held that Times Square is blighted, paving the way for the condemnation of property to build a new headquarters for The New York Times.
"What's more, the states in most need of reform tend to be the least willing to adopt it. Consider the 20 states that have the largest numbers of Kelo-like condemnations, according to data compiled by the Institute for Justice, the public interest law firm that represented the property owners in Kelo. Thirteen of them have enacted either ineffective legislation or none at all. Moreover, two of the states with otherwise effective reforms exempted the parts of those states where most condemnations occur. Pennsylvania’s reform includes a five-year exemption for Philadelphia and Pittsburgh, and Minnesota’s exempts the Twin Cities area, also for five years. By then, the political uproar over Kelo will likely have subsided, making it easier to extend the exemptions without much public scrutiny.
"Similar shortcomings have bedeviled reform efforts at the federal level. President Bush’s June 23, 2006, executive order on Kelo, for example, banned the use of eminent domain for 'private development,' but allowed takings for private owners who promise to use the land for both private and 'public' development. This is the exact argument accepted by the Supreme Court in Kelo, and therefore does little to mitigate the decision’s reach. Legislation enacted by Congress in 2005 has been similarly ineffective."
Read the article
Despite media reports that Anna Nicole Smith's daughter, Dannielynn, may stand to inherit a portion of the late J. Howard Marshall's estate, Professor Horace Cooper argues that casting aside the Texas probate court's earlier decision that Marshall's son was his legal heir is unlikely.
Smith's fight to win a portion of Marshall's estate made its way to the United States Supreme Court, which ruled late last year that a decision by the 9th Circuit Court of Appeals was overly broad and sent the case back to the 9th Circuit on remand.
The most compelling question for the 9th Circuit will be a determination of which of the courts involved issued a final judgment first, says Cooper.
She's no million dollar baby: After the courts rule, Anna Nicole Smith's daughter probably won't get the big estate, Legal Times, April 9, 2007. By Horace Cooper.
Excerpt:
"When it originally invoked the 'probate exception,' the 9th Circuit panel didn't rule on the merits of either the federal bankruptcy court or the federal district court decisions. With the Supreme Court's narrow opinion explaining that none of the Supreme Court's earlier cases endorsed the notion that federal courts couldn't independently weigh in on probate matters, the9th Circuit now will have to deal with the merits.
"In that context, the most compelling question for the 9th Circuit will be a determination of which court -- the federal bankruptcy or district court or the Texas probate court -- issued a final judgment first. Chronologically the Texas probate case started first, but the federal bankruptcy court issued its verdict first. The 9th Circuit panel reviewing the case will have to determine which decision counts as the first 'final judgment.'
"There are two issues here. First, the federal district court vacated the ruling of the bankruptcy court and reviewed the matter de novo. It did so after the Texas probate trial had concluded. If this decision about vacating the bankruptcy ruling is upheld, it would mean that the bankruptcy ruling has no effect for purposes of res judicata -- that is, neither the bankruptcy decision nor the federal district court's ruling were final judgments for this purpose.
"Second, even if the federal bankruptcy court's ruling was final and determined to have occurred first, there are serious questions, relevant to judicial economy and the principles behind res judicata, about the evidentiary record used by the federal district court.
"A review of the record indicates that whereas the Texas probate trial took nearly six months to sort through all of the legal and evidentiary issues before reaching a conclusion, the federal district court was able to do so in a few days. How? Primarily by reviewing many of the depositions from the concluded Texas probate trial and also by disallowing most of the witnesses that Pierce Marshall sought to call.
"Such an approach has the advantage of expediting matters, but it severely constrains the ability of the court to weigh all evidence necessary. Depositions are useful, but they are not an equal alternative to witnesses testifying subject to cross-examination. As a result, there are serious questions about the sufficiency of the record that the district court relied upon. And such an outcome is contrary to the benefits of res judicata -- which is to allow subsequent courts the ability to rely on the findings of fact of earlier courts.
"Additionally, judicial economy would dictate that the Texas probate court (as a specialty court) should be given greater deference and weight in making these determinations. In this case, the probate court took nearly six months to reach a determination. Casting aside its work will not be done lightly.
"Together, judicial economy and res judicata militate against the 9th Circuit directing a brand new trial to determine the validity of the Marshall will or estate plan. Accordingly, no one should be surprised when, at the end of all the proceedings, it is the original Texas trial verdict that determines the disposition of the Marshall estate. When that occurs (as it almost certainly will), Marshall's money will go to his son -- not to Smith's estate, her child Dannielynn, or Dannielynn's father (whoever that may be)."
Read the article
Watch as Professor Cooper discusses the case on ABC's Nightline.
A Singapore news writer cited research by Nobel Prize winning economist and professor Vernon Smith in analyzing bubble and correction effects in Singapore's market, concluding that necessary investor learning will take place faster today than ever before and that today's market is generally more knowledgeable than in the past.
Sanguine about the market, Business Times (Singapore), April 7, 2007. By Teh Hooi Ling.
Excerpt:
"This week, while rummaging through stacks of notebooks in search of an interview I did earlier this year, I cam across notes made some two years back on a talk by, and my interview with, Vernon L Smith - Nobel Prize winner and the 'father of experimental economics.'
"His findings and conclusions about market participants' behaviour in the stock market bears repeating. That's because at different times of our lives, at different cycles in the stock market, we gain new insights from reading such timeless wisdom.
"Prof Smith, who teaches economics and law at George Mason University in the US, was awarded a Nobel Prize in economics in 2002 for having established laboratory experiments as a tool in empirical economic analysis, especially in the study of alternative market mechanisms.'
"Before that, economics was widely regarded as a non-experimental science. As Paul Samuelson, author of the classic textbook Economics, wrote: 'Because of the complexity of human and social behaviour, we cannot hope to attain the precision of the physical sciences. We cannot perform the controlled experiments of chemists or biologists. Like the astronomer, we must be content largely to observe.'
"Prof Smith changed all that. He conducted experiments in the controlled environment of the laboratory to test economic theories, in particular why markets work the way they do. He shared that year's Economics Prize with Daniel Kahneman, a professor of psychology and public affairs at Princeton University, whose separate research into human decision-making helped develop the field of behavioural finance."
Attorneys' use of body language, facial expressions and vocal timbre are tactics that have been used to try to influence juries for decades according to legal ethics expert Professor Ronald Rotunda, who commented on these types of legal maneuvers in a Toronto Star news article looking at lawyers' behavior in the current U. S. federal court trial of Conrad Black for fraud.
Pulling out all the smirks at Black trial; Lawyers woo jury with well-honed body language, Toronto Star, April 4, 2007. By Rick Westhead.
Excerpt:
"Lawyers for decades have experimented with using body mannerisms, postures or facial expressions to try to influence jurors, says Ronald Rotunda, a George Mason University law professor who specializes in legal ethics issues.
"'Whether it's smiling or snickering, everybody's looking for a way to try and convince the jury that they're right,' Rotunda says. 'The danger is that you don't want to appear forced or silly or inappropriate.'
"A U.S. federal prosecutor involved in Timothy McVeigh's bombing trial in Oklahoma City was admonished by a judge when he became choked up as he questioned a witness.
"Some lawyers have even resorted to parlour tricks.
"When smoking was permitted in some courtrooms, famed U.S. lawyer Clarence Darrow purportedly would slip a paper clip into the end of his cigar, Rotunda says.
"As his rivals tried to make key points to the jury, Darrow would make a point of showing the stogie with its physics-defying buildup of ashes.
"'You want to entrance the jury and if it distracts the other lawyers, all the better,' Rotunda says."
Read the article
In cases where content and delivery platforms merge, the result is that content is spread in a legal manner and advertising revenues remain in control of the content owners says Professor Thomas Hazlett, writing for Financial Times.
"The content kings are litigating to remain in control of what they believe they own, and aligning with websites friendly to their view," Hazlett maintains, pointing to a host of new teaming efforts between content providers and delivery providers in attempts to secure larger shares of media revenues.
Content is king but the monarch has fled, FT.com, April 3, 2007. By Thomas W. Hazlett.
Excerpt:
"The game’s excitement factor owes to reality: it is rarely easy to set terms between partners. One response in the market has, therefore, been vertical integration. When one enterprise owns both the delivery network and the content that flows over it, no tricky division is needed. This approach sacrifices gains from specialisation, however. Our era is filled with examples suggesting these gains are large. They include the financial failure of the AOL-Time Warner merger, the dominance of independent (non-cable) program networks in cable and satellite, and the spectacular rise of Google.
"So impressively productive was Google’s laser-beam focus on search that it amassed the wherewithal to diversify, ironically, acquiring YouTube. With more than 100m downloads per day, this popular website is caught in a torrid love-hate relationship with major content producers. They feel warm affection for YouTube when it generates new revenues, but tremble when video downloads discourage (now or in the future) paying audiences elsewhere. Of the relationship between Google and cable TV channels, a media magazine asks: 'partners or parasites?'
"Content owners like the BBC are both executing major sales (in this instance, creating three new BBC video channels for YouTube distribution) and monitoring their partners’ unauthorised uses. 'The partnership hasn’t changed our legal position,' states the BBC, 'and we’ll continue to ask YouTube to take down content where appropriate.'
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The structure and execution of Ronald Dworkin's arguments in Is Democracy Possible Here? Principles for a New Political Debate do not support a position in accord with the best in the liberal tradition says Professor Peter Berkowitz in reviewing the book for First Things: A Monthly Journal of Religion and Public Life.
Berkowitz takes exception to Dworkin's characterization of the nation as being sharply divided by radically different political positions from which members of the other party are viewed as enemies and argues against Dworkin's theory that majority decisions may be considered democratic only when they meet certain philosophical tests of reasonableness and morality.
Illiberal liberalism, First Things: A Monthly Journal of Religion and Public Life, April 1, 2007. By Peter Berkowitz.
Excerpt:
"First, he proceeds from a dubious empirical premise. While intellectual and political elites certainly have been sharply divided since election 2000, Dworkin entirely overlooks the wealth of empirical data showing that the larger electorate is not particularly polarized and in many cases is better described as purple than as red or blue. (A good place to start is Culture War? The Myth of a Polarized America by Morris Fiorina.) Confusing his anger at the Bush administration with the passions of the American people, Dworkin fails to show his fellow citizens the respect involved in familiarizing himself with their sensibilities and judgments. Unlike Dworkin, who is quite confident that the left-liberal position is almost entirely correct and that the conservative position is almost entirely wrong, for substantial numbers of the electorate, as the 2006 election suggests, a good part of the contest between left and right takes place within their divided souls.
"Second, the larger liberalism that Dworkin seeks to restate tends to come to a different conclusion about what follows from the common ground established by the liberal premise that all human beings are by nature free and equal. Dworkin believes that our shared assumptions about human dignity entail an exclusively left-liberal politics. In contrast, according to the argument that pervades the Federalist--still the authoritative exposition of the principles that inform the Constitution--the partisan spirit is sown in human nature and cannot be squelched without snuffing out liberty. Moreover, argued John Stuart Mill in Considerations on Representative Government, democracy needs both a conservative party and a progressive party, not only because opposition enlivens debate but also because each party embodies a portion of wisdom about the politics on which free, self-governing societies depend.
"Third, Dworkin repeatedly misstates, or omits to mention, his opponents' best arguments. This last is a particularly grievous flaw, since, like his mischaracterization of the electorate, it suggests that Dworkin fails to show the respect for his fellow citizens that his theory demands."
March 2007
Responding to a recent op-ed appearing on The Wall Street Journal's editorial page, Professor Lloyd Cohen praised the author's recommendations for incentives to be offered for organ donations.
In his letter of response appearing in the March 27 edition of the publication, Cohen comments that "Those readers old enough to remember the television show "Beat the Clock" are best positioned to appreciate the absurdity of the current regime of organ donation. On that show contestants were required to perform a simple task such as dribble a basketball across the room - the kicker was that they were not permitted to use their hands. So it is in the world of transplant organs. The National Organ Transplant Act makes it a federal crime to take or to offer valuable consideration for a transplant organ. As a result, the organs that could restore the ill to health are instead fed to worms."
"The competition and conflict that is developing among the leading conservative candidates should prove invigorating, not only for conservatism in America but for the nation as a whole," states Professor Peter Berkowitz in assessing conservatism's prospects in the year 2008 presidential election.
Berkowitz takes a look at candidates Romney, McCain, and Giuliani, examining the conservative elements that make each unique, in an opinion piece in Politico.com.
The Right Stuff, Politico.com, March 27, 2007. By Peter Berkowitz.
Excerpt:
"As distinctive as the mix that Bush presents is, all modern conservatives are, in a sense, hybrid conservatives. That's because modern conservatism itself is the offspring of a family of competing opinions and principles.
"Modern conservatism derives above all from Edmund Burke, the great 18th-century Anglo-Irish orator and statesman. Burke was a lover of liberty and tradition who saw a great threat to liberty in the tradition-overthrowing forces unleashed by the French Revolution. He was solicitous of established ways but acutely aware that the preservation of liberty required 'prudent innovation' in response to the constantly changing circumstances of political life.
"Yet since individual liberty can never be entirely divorced from the French revolutionaries' ambition to remake society in the name of equal freedom for all, modern conservatism contains a built-in instability.
"There is no settled recipe, and there are no fixed proportions, for determining the prudent innovations that balance liberty and tradition. For example, reasonable people who agree on the importance of both may differ on whether the benefits that come to the poor and vulnerable from government efforts to cooperate with faith-based charities outweigh the dangers of mixing church and state.
"All three of the leading candidates for the Republican nomination embody a mix of conservative elements different from Bush and from each other. All three have evidently rejected Karl Rove's maximize-the-base strategy in favor of a formula that will allow them to appeal to moderates while keeping the confidence of the base. And all three face a delicate balancing act."
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The March 15 edition of Consumer Bankruptcy News quoted Professor Todd Zywicki's Capitol Hill testimony at the BAPCPA oversight hearings in an article dealing with the circulation of misinformation concerning the revision of bankruptcy laws.
"In large part, this information appears to have been spawned by agenda-driven media reports and some bankruptcy experts who actually sought to create this misimpression in an attempt to try to build public opposition to bankruptcy reform. ... As day follows the night, bankruptcy professionals have now changed their tune and recent advertising by bankruptcy professionals stresses that bankruptcy relief is still available to those who need it," Zywicki is quoted as saying.
Who's to blame for the rumors?, Consumer Bankruptcy News, March 15, 2007.
Professor Peter Berkowitz was a featured participant in a discussion of author Dinesh D'Souza's response to conservatives' criticism of his book "The Enemy at Home" in an online symposium for the National Review Online. Berkowitz had previously reviewed the book for The Weekly Standard.
In the symposium Berkowitz restates his criticisms of the book, saying, "Indeed, thanks to D'Souza's public challenge, which provided the occasion to reexamine his work, I now realize that his central claim is still more extravagant and incendiary than I initially appreciated. Reading his book in light of Lincoln's discerning assessment in 1838 of the surpassing danger that the contest over slavery posed to the nation, it becomes clear that D'Souza believes that in our post 9/11 world the cultural left at home presents the gravest danger we face."
The Enemy D'Souza Knows, National Review Online, March 16, 2007.
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Professors Nelson Lund and Ronald Rotunda joined an elite group of lawyers and academics urging the House and Senate leadership to strip unconstitutional provisions from pending supplemental appropriations bills.
The group, made up of experts in the Constitution and national security issues, signed a letter stressing the limitations placed on Congress in matters of war powers and warned that Congress would exceed those powers if it attempted to interfere with the president's operational decisions.
In addition to Lund and Rotunda, signers included former U.S. Attorney General Edwin Meese and Todd Gaziano, Director of The Heritage Foundation's Center for Legal and Judicial Studies.
Read the text of the letter
Amid the controversy surrounding media decisions to publish concealed weapon permit holders' personal information, Professor Nelson Lund stated that "Every time anyone has looked into this, they have found extraordinarily low levels of misuse of firearms by concealed-carry holders." Speaking to the Roanoke Times, Lund pointed out that a resident of Virginia must pass a criminal background check and a firearm training course before obtaining court permission to carry a concealed handgun.
Virginia is one of 17 states that consider concealed-handgun permits to be a matter of public record; however, a growing number of states have passed laws removing or restricting disclosure of that information.
Should Gun Data Lists be Muzzled?, The Roanoke Times,March 18, 2007. By Laurence Hammack.
Excerpt:
"Another reason why outrage peaked in Roanoke might be a line in Trejbal's column in which he noted that Virginia does not take the same pains to list gun owners online as it does for convicted sex offenders.
"'Concealed handgun permit holders and sex offenders????,' wrote one poster, identified only as 'vashooter.'
"'Your [sic] a class act, way to abuse the first amendment while trying to strip us of the second.'
"Before a Virginia resident obtains court permission to carry a concealed handgun, he or she must pass a criminal background check and a firearm training course. That should debunk the implication that concealed handgun carriers are an inherent risk to society and need to be monitored, said Nelson Lund, a George Mason University law professor who specializes in gun issues.
"'Every time anyone has looked into this, they have found extraordinarily low levels of misuse of firearms by concealed-carry holders,' Lund said."
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The Virginia Public Radio program "With Good Reason" will air an interview with Professor Ilya Somin from March 17-23. In it Somin discusses the Supreme Court's controversial 2005 decision in Kelo v. New London and eminent domain reform in general.
Residents of the Washington, D.C., metropolitan area can tune in to the program at various stations and times over the course of the week. A streaming archive of the program is posted at With Good Reason.
PointofLaw.com, a web magazine sponsored by the Manhattan Institute and AEI Liability Project that brings together information and opinion on the U.S. litigation system, currently sponsors a scholarly discussion of Philip Morris v. Williams between Professor Michael Krauss and Regent University School of Law Associate Professor David M. Wagner (Mason Law Class of ’92). The interchange between Krauss and Wagner is the featured monthly discussion on PointofLaw.com.
Read the discussion in its entirety.
Professor Peter Berkowitz reviews Mark Halperin's and John F. Harris's The Way to Win: Taking the White House in 2008 for The Hoover Institution's Policy Review, calling the book "entertaining and informative." Journalists Halperin and Harris take on the task of explaining the challenges candidates will face in the 2008 presidential election and offering advice on how the successful candidate will overcome them, with particular emphasis on the emergence and importance of the new media.
New Media and old; The Way to Win: Taking the White House in 2008, Policy Review, February 1, 2007. By Peter Berkowitz.
Excerpt:
"Despite their insistence on the new media's transformation of America politics, the ultimate secret to success in the new environment, according to Halperin and Harris, is surprisingly straightforward. Echoing the observation of the ancient Greek historian Polybius that the best way to appear virtuous is to be virtuous, Halperin and Harris assert early on in their book that the best way to overcome the Freak Show "is to have something important to say." And they identify a kind of modern-day corollary to Polybius: "The way to be a successful political hack is to be something more than a hack." In other words, showing character and defending principle can be conducive to victory. Indeed, notwithstanding the dozens of maxims they disseminate about how to manage the new media, they keep coming back to the conclusion that a key to winning in 2008 is to convince voters that one is seriously committed to serious ideas: 'The most underappreciated assets in presidential politics are a coherent rationale and the ability to defend that rationale, not just with words but with convictions that flow from experience.'"
Read the review
"There has been bad publicity and rules have changed," says Professor Terrence Chorvat, commenting on reincorporation of U.S. companies in overseas tax havens. Chorvat was quoted in a MarketWatch article sparked by reports that Halliburton Co. has decided to move its executive and corporate headquarters to Dubai, in proximity to some of the world's largest oil reserves.
"I think there is some truth in the initial argument that they're going to Dubai because that's where the action is, but I think there's also somewhat of a U.S. tax-play," Chorvat told MarketWatch.
Current U.S. tax law is based on the site of incorporation, which in Halliburton's case will remain Delaware. U.S. companies operating overseas, however, often enjoy tax benefits indirectly from operation in a foreign location, since they do not have to pay U.S. income taxes on earnings of foreign subsidiaries until the money enters the U.S. In addition, U.S. payroll taxes normally do no apply to overseas employees.
Halliburton's Dubai move raises issue of expat taxes, MarketWatch, March 13, 2007. By Laura Mandaro.
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The Florida Supreme Court's ruling in Liggett Group v. Engle restores hope that defendants can argue their cases successfully under current state tort law, despite the imperfect nature of the decision itself says Professor Michael Krauss in a Washington Legal Foundation Working Paper appearing as the foundation's featured publication.
The suit in question involves a class action seeking damages for injuries allegedly caused by cigarette use. In hearing the appeal, the Court sided with the defendants in overturning the trial court's rulings on several key issues.
Liggett Group v. Engle: Florida High Court's Imperfect Response to Class Action Abuse, Washington Legal Foundation Critical Legal Issues, Working Paper Series No. 145, March 2007. By Michael I. Krauss.
Download the working paper
As long as lottery tickets hold out the possibility of fulfilling a fantasy, that possibility will reinforce people's resolve to purchase tickets despite the odds of actually winning, Professor Lloyd Cohen tells The New York Times, pointing out that the purchase represents a "disposable consumer purchase" rather than an investment.
Cohen's comments came in an article in which addiction researchers and economists were asked to explain the behavior of those who play the lottery. The article comes on the heels of a recent Mega Millions lottery jackpot of $390 million that sent record numbers of ticket buyers to lottery sales outlets in hope of being the lucky winner.
Lotto Makes Sense, Even for Losers, The New York Times, March 11, 2007. By Benedict Carey.
Excerpt:
'''The people who denigrate lottery players are like 10-year-olds who are disgusted by the idea of sex: they are numb to its pleasures, so they say it's not rational,' said Lloyd Cohen, a professor of law at George Mason University and author of an economic analysis, 'Lotteries, Liberty and Legislatures,' who is himself a gambler and a card counter.
"Dr. Cohen argues that lottery tickets are not an investment but a disposable consumer purchase, which changes the equation radically. Like a throwaway lifestyle magazine, lottery tickets engage transforming fantasies: a wine cellar, a pool, a vision of tropical blues and white sand. The difference is that the ticket can deliver.
"And as long as the fantasy is possible, even a negligible probability of winning becomes paradoxically reinforcing, Dr. Cohen said. 'One is willing to pay hard cash that it be so real, so objective, that it is actually calculable -- by someone, even if not oneself,' he said.
"The mundane simplicity of the lottery only reinforces the attraction. Casino card tables can be intimidating, an opaque world of rules and hard-to-master strategies; ditto for the track.
"Because it is pure luck, the lottery is easy to grasp and allows for plenty of perfectly loopy -- and very enjoyable -- number superstitions. Your birthday digits never won you a dime? Try your marriage date; your favorite psalm verse; the day your bullying father-in-law died. Or, perhaps, reverse the order. In studies, psychologists have found that ticket holders are very reluctant to trade their tickets for others, precisely because they have an illusion of control from having picked magical numbers.
"This sense of power infuses the waiting period with purpose. And the hope of a huge payoff, however remote, is itself a source of pleasure. In brain-imaging studies of drug users, as well as healthy adults placing bets, neuroscientists have found that the prospect of a reward activates the same circuits in the brain that the payoffs themselves do.
'''It's not just winning the money but anticipating winning the money that is exciting, and the two experiences are similar neurobiologically,' said Christine Reilly, executive director of the Institute for Research on Pathological Gambling and Related Disorders, in Medford, Mass.
"People who gorge on lotto tickets, buying 100 at a time even after years of luckless playing, are no less rational than anyone else making big bets. And lottery odds are neutral and fair, after all, not biased toward any social elite. Seeing a Georgia truck driver win proves that in players' minds."
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Professor Nelson Lund's comments were cited in national news sources, including the National Review, concerning a U.S. Appeals Court decision to strike down the District of Columbia's ban on firearms ownership. The action represents the first time a federal appeals court has nullified a gun law based on the Second Amendment. For that reason, the case is expected to reach the U.S. Supreme Court, where justices would be required to rule on whether the right of the people under the Constitution to "keep and bear arms" precludes government action to forbid gun ownership by law-abiding citizens.
The nation's capital has had one of the strictest gun control measures in the nation, barring its citizens from keeping handguns registered since 1976 in their homes, except in the case of active-duty and retired police officers.
"If D.C.’s draconian statute is considered constitutional, it’s hard to imagine how the Second Amendment could have any meaning at all. Furthermore, this is an area with virtually no constraining precedents, so the Justices won’t have the usual excuse for ignoring the Constitution. Legally, this is a very easy case, and the Court can go wrong only if it uses sophistry to paper over a surrender to political correctness. If that happens, we’ll lose more than the Second Amendment," Lund told the National Review.
Rearming, National Review Online, March 12, 2007. By Symposium.
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Related stories may be found at the Los Angeles Times (requires free registration), and Bloomberg.com.
Just as the president has the authority and discretion to decide whether to prosecute a case, so has he the power to pardon; and that is what Professor Ronald Rotunda argues for in his Wall Street Journal commentary on the perjury conviction of former White House aide I. Lewis "Scooter" Libby.
Rotunda points out that special prosecutor Patrick Fitzgerald never charged anyone with violating the Intelligence Protection Act of 1982. "The whole court case was about memories, not about the importance of classified information, or whether the government properly classified information in the first place. That is because Mr. Fitzgerald never charged anyone with the leak itself," said Rotunda. "Mr. Fitzgerald never even introduced any testimony that Ms. Plame's employment was classified."
The Case for a Libby Pardon, The Wall Street Journal, March 7, 2007. By Ronald D. Rotunda.
Excerpt:
"But if testimony differs, the law allows the jury to look witnesses in the eye and believe one and not the other, even if there is no documentary evidence. That is why perjury is a powerful prosecution tool -- one that was abused here.
"Among the unhappy precedents if the Libby verdict stands: Executive branch officials will hide from the press, which is unfortunate because 'leaks' can be an important check on all three branches of government. And even innocent officials will not be forthcoming when it comes to cooperation with future prosecutors. ('I don't recall . . .')
"Perhaps the worst precedent would be normalizing the criminalization of policy differences. Many of those who loudly demanded Mr. Fitzgerald's appointment -- and who applauded yesterday's verdict -- offered no more compelling reason than that somebody should pay for the Bush administration's decision to go to war in Iraq.
"The late Supreme Court Justice Robert Jackson, when he was attorney general, warned that if the 'prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than the cases that need to be prosecuted.'"
To read additional comments by Professor Rotunda on the Libby conviction, please visit these links:
USA Today
Los Angeles Times (free registration required)
February 2007
While many prominent conservatives have been quick to disagree with Dinesh D'Souza's "The Enemy at Home," Alan Wolfe's scathing New York Times review of D'Souza's book and his call for excommunication of the conservative intellectual has met with little reaction from the left, says Professor Peter Berkowitz, writing for The Weekly Standard.
"Wolfe, it would seem, believes that one set of standards applies to conservative intellectuals, and another to intellectuals, like himself, who are on the left," writes Berkowitz, arguing that political disagreements in America are "not over rival conceptions of the political good but rather over competing ideas of what policies best serve individual freedom and equality under law."
Excommunication for Thee...; Alan Wolfe's self-incriminating attack on Dinesh D'Souza, The Weekly Standard, February 26, 2007. By Peter Berkowitz.
Excerpt:
"To claim that by promoting, among other things, abortion, gay marriage, pornography, and atheism, the cultural left presents a threat to America as grave as that posed by radical Islam is seriously wrong and foolishly divisive. To make such an argument while America is at war with a fanatical adversary who regards all Americans as combatants and who seeks not concessions or reforms but America's annihilation is to blur critical issues when the rediscovery of our common ground is what is urgently called for.
"So Wolfe is on solid ground with his hard-hitting criticism of The Enemy at Home and certainly has plenty of company on the right. Prominent and widely read conservative websites including HughHewitt, Power Line, FrontPageMagazine, and National Review Online have found severe flaws in the book, as has D'Souza's and my Hoover colleague, military historian Victor Davis Hanson, at Townhall.com and Real Clear Politics.
"Wolfe's attack, though, is distinguished by his demand that decent and honorable conservatives 'distance themselves, quickly and cleanly' from D'Souza. Apparently, conservatives who fail to promptly and unambiguously pronounce anathema are tainted by and complicit in D'Souza's errors and excesses. This is more than ironic coming from a writer who, like D'Souza, darkly proclaimed that America is menaced by an enemy at home. For Wolfe, as it happens, the enemy within does not arise from the cultural left but rather springs from Republicans and the right. His thesis no more withstands scrutiny than does D'Souza's, but by comparison has received very little."
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A Miami Herald commentary maintaining that the National Association of Broadcasters is attempting to use government regulation to crush competition in its efforts to block the merger of XM and Sirius satellite radio carries the remarks of Professor Tom Hazlett, who also questions the NAB's motivation.
"If you're an anti-trust enforcer and you see that all the competitors are banding together to oppose a merger in the name of 'public interest,' it's pretty easy to figure out that the truth is exactly the opposite," states Hazlett.
Satellite Radio/Commentary: Money, not outrage, fuels anti-merger fight, Miami Herald, February 22, 2006. By Glenn Garvin.
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The Supreme Court's ruling overturning a large punitive damage award to a smoker's widow forces jurors into an "intellectual straightjacket" claims Professor Michael Krauss, commenting in a Legal Times article covering the Court's decision in Philip Morris USA v. Williams. In a 5-4 vote in which Chief Justice Roberts and Justice Alito joined the majority, the Court ruled that a state violates the Constitution's due-process clause when it uses a punitive damage award to punish a defendant for injuries suffered by parties not involved in the actual litigation.
High Court Rejects Award in Philip Morris Case, Legal Times, February 20, 2007. By Tony Mauro.
Excerpt:
"Commentators and dissenters questioned how the Court's ruling will be applied in real courtrooms. Breyer said judges will have to be vigilant in ensuring that jurors only consider harm to others in assessing reprehensibility, not in deciding the level of punitive damages. 'State courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring,' Breyer said.
"'It seems, then, that jurors can think about harm to others in deciding that the conduct was awful enough to merit punitive damages' in the first place, said Michael Krauss, torts professor at George Mason University School of Law. 'But then they can't think about it anymore, because when they set the amout of the damage award, the Court is saying it has to reflect only the harm to the plaintiff. You'll have to wash your brain out' between steps.
"Krauss adds,'How you force the jury into this intellectual straightjacket isn't clear. What is clear is that this issue will be back before the Court.'"
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For more of Professor Krauss's commentary on the Philip Morris USA v. Williams decision, please see:
Richmond-Times Dispatch
The Bond Buyer (subscription only)
Commenting in a letter to The Washington Times from the leadership of Project 21, Visiting Assistant Professor Horace Cooper voiced his support of MIT Associate Professor James Sherley, who is currently engaged in a hunger strike in protest of what he terms racial and professional discrimination in MIT's refusal to grant him tenure.
"A university should be a place where debate and scientific inquiry are encouraged not stifled. Furthermore, people should not be denied tenure because of their religious beliefs," Professor Cooper is quoted as saying. "The scientific community sorely needs to hear from outstanding academics like Professor Sherley," he said.
Professor Sherley, whose MIT appointment expired at the end of January, was the first and only black faculty member of MIT's Division of Biological Engineering. He is an expert in stem cell research who believes embryonic stem cell research destroys human life, a view that differs from the beliefs of many of his counterparts.
Project 21 is a nonprofit and nonpartisan organization that acts as a voice for the African-American community. It is sponsored by the National Center for Public Policy Research.
Racial bias at MIT?, The Washington Times, February 11, 2007. By David Almasi.
The recent defeat of the Islamic Courts Union (ICU) in Somalia by Ethiopian forces clearly demonstrates that decisive unilateral pre-emption works, says Professor Michael Krauss. In a TCS Daily op-ed, Krauss touches on the ancient and more recent links between Ethiopia and Israel and illustrates the elements behind Ethiopia's successful routing of Islamist extremists who had sought haven in neighboring Somalia.
As It Turns Out, Preemption Works, TCS Daily, February 8, 2007. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"There may be several lessons for Israel, and for the United States, in this near total rout of Islamist radicals. First: decisive unilateral pre-emption works. Confronted by an extremist enemy with a long history of terrorist acts against it, who had set up a haven for foreign militants—among fighters captured during the offensive were Arabs, Eritreans, Pakistanis, Sudanese, Yemenis, and holders of British, Canadian and Scandinavian passports—and faced with an international community unable and/or unwilling to deal effectively with the threat, the government of Ethiopian Prime Minister Meles Zenawi responded decisively with a preemptive strike, albeit one technically endorsed by Somalia's phantasmal transitional government. The security of both the Horn of Africa and the world has been enhanced by this resolute action of self-defense—which the Wall Street Journal aptly described as an 'act of regional hygiene.'
"Second: there is no substitute for 'boots on the ground.'Once they decided to go on the offensive, despite enjoying clear superiority—the Islamists had no aircraft—the Ethiopians did not rely exclusively or even predominantly on airpower. Some 20,000 soldiers were deployed in combat operations with many more on reserve, despite the historical enmity between Somalis and Ethiopians. Unlike the Israeli operation in last year's war in Lebanon, or U.S. preferences in Iraq until recently, there was no talk of a politically correct 'light footprint.'
"Third, when you fight, don't tie one hand behind your back. While there are no reliable estimates of civilian casualties during the campaign, no doubt the number was elevated. Officers with whom we have been in contact are unambiguous: while they sought to minimize collateral damage to people and infrastructure, they held that responsibility for such losses rested with terrorists who hid out among civilians. Ethiopians who deployed Mi-24 Hind helicopter gun ships—and U.S. forces that subsequently launched air strikes against two 'high value' targets using AC-130 gun ships—gave no quarter to fleeing militants whose vehicles became stuck in the quagmire of Somalia's flooded Juba Valley. Charred remains of dozens of vehicles still litter the landscape. The Ethiopians did what they had to do to kill the enemy. Let it be noted that Ethiopia had the advantage that their operations took place in one of the most inhospitable places on the planet, one which Western media is not attracted to—especially during the holiday season.
"Fourth, an enemy cannot be destroyed unless its avenues of escape are sealed. Between advancing Ethiopian troops sweeping everything in their path, Kenyans who had closed their borders with Somalia (notwithstanding protests by the International Committee of the Red Cross), and Americans blockading the coast with the guided missile cruisers U.S.S. Bunker Hill and U.S.S. Anzio, the dock landing ship U.S.S. Ashland, and the carrier U.S.S. Eisenhower and its battle group, ICU militants had no 'humanitarian corridors' through which their foreign sponsors in the Middle East could rush men and materiel.
"Fifth, strike while the iron is hot. Ethiopia prudently used the time that its partner, the U.S., bought for it. Although a United Nations Security Council Resolution (1725) creating a 'peacekeeping' force for Somalia was unanimously passed in early December, the resolution was so clumsily crafted—perhaps purposely—that the promised contingent has yet to be constituted, much less deployed. In the meantime, Ethiopian forces achieved all their strategic objectives. United Nations apathy did not stop Addis Ababa.
"Israel is still coping with the aftermath of the war in Lebanon. On January 17, the Israel Defense Forces chief of staff, Lieutenant-General Dan Halutz, submitted his resignation. A commission is now investigating the conduct of the conflict, and more recriminations and resignations are expected to follow. Now is, however, the time to look to the future, not the past. With Hezbollah having re-armed in Lebanon and threatening a coup d'état in that state, and with its Iranian paymaster looking to distract the international community from its ongoing pursuit of nuclear weapons, it is only a matter of time before things heat up again on Israel's northern frontier, as we predicted on this website both before and after last summer's war."
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"Is the average American voter well enough informed to vote intelligently?" asks the author of an article appearing in Hawaii Reporter in which Professor Ilya Somin's comments on voter ignorance are cited.
Somin indicated that the depth of most individual voters' ignorance is shocking to observers not familiar with research such as the National Election Survey, which has analyzed election results since 1948. According to Somin, the Survey data shows that more than a quarter of U.S. voters know little or nothing about political issues; furthermore, because each citizen knows that his or her individual vote will have minimal impact on the election outcome, there is not much incentive to become better informed, an opinion that might be consider quite rational.
U.S. Elections Decided By Know-Nothings? Hawaii Reporter, February 6, 2007. By Tom Macdonald.
Capitalism accommodates both closed and open markets says Professor Thomas Hazlett in the Financial Times, continuing, "Markets thrust revolutions upon us, boldly and magnificently, far more often than we care to remember."
Hazlett's article examines overhype about emerging markets and the resultant enthusiasm of the "e-crowd," and he points out that while large-scale community collaboration is touted in the media, proprietary content is growing and costing those who can afford to use it dearly.
The global village and the madness of e-crowds, Financial Times, February 5, 2007. By Thomas W. Hazlett.
Excerpt:
"The excitement over robust social change is, hype-adjusted, deserved. Just as the Industrial Revolution discovered productive solutions previously unimagined, and mass transit (such as railroads) and mass communications (telegraphs, telephone, and radio) turned societies upside down, the possibilities on today's frontier are ripe with promise.
"Which is to say: we've surfed these waves before. The 'user-generated content' business model may have its own My Space page, but it dates to the telephone network of Alexander Graham Bell. 'Club goods' allow individuals to gain from cooperative efforts, a standard paradigm in economic theory. Many 'commons' sprouting up in the New Economy, where individuals share resources and reap the rewards of teamwork, produce value. But they have some trillions of dollars in productive enterprise to go before they eclipse the workhouse 'commons' of the modern economy: the corporation.
"Overhype about the emerging markets is good clean fun when confined to mindless text-messaging. There is an undeniable 'wow' factor. But there is also a madness to the e-crowd. Whenever a trajectory is spotted that captures the fancy of the zeitgeist, it is formulated as a linear trajectory, and shot into orbit. All cross traffic is banned. Call it 'asymmetric triumphalism.'
"When Time trumpets 'community' and 'collaboration,' beware that their next issue may feature their favourite twenty-something online billionaires. When the claim is that 'the new Web is a very different thing...bringing together the small contributions of millions,' behold the beauty of the long tail -- but note, too, the reverse. Proprietary content is growing like a Paris Hilton video gone viral, with firms like Gartner, Forrester, Yankee Group, IDC and McKinsey & Co. charging fat fees for specialised content of keen interest to deep-pocket customers. As an academic researcher, I am continually impressed by the excellent online databases that are (according to the email marketing, sometimes highly accurate) available for $2,995.00. C'mon guys. I'm a scholar. And what happended to 'openness' and 'community'?
"Yes, the dramatic lowering of distribution costs allows information to travel on a budget. That is an oomph for markets, and perhaps a double-oomph for democracy. But there's more. Never have so many, owed so much, for so few user names and passwords."
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Mason Law's support of the Solomon Amendment, which could have been viewed by some as a fringe position, wound up demonstrating the reasoning behind that position to be squarely in the legal mainstream, according to Professor Joseph Zengerle in an interview with St. Louis radio station KFTK in which he discussed the Supreme Court victory for the armed forces in Rumsfeld v. FAIR. Zengerle was a guest on KFTK's Allman and Smash morning show.
An amicus brief filed by Mason Law Dean Daniel Polsby, Zengerle, and Professor Nelson Lund was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment's requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court, which unanimously upheld the Solomon Amendment in what was the first constitutional decision of Chief Justice John Roberts' tenure on the Supreme Court.
Listen to the interview
Reforming the Israeli political system to produce leaders of whom the nation can be proud and who will carry out the people's will may be the most immediate national security challenge currently faced by Israel says Professor Peter Berkowitz, commenting in The Weekly Standard on Israeli Prime Minister Ehud Olmert's recent speech at the seventh annual Herzliya Conference on Israel's security.
Olmert's Herzliya address provides few concrete answers to the question of how Israel can address its most immediate national security issues, Berkowitz contends, and underscores widespread dissatisfaction with his leadership.
Oy Vey!; Israel contemplates its political leaders, The Weekly Standard, February 5, 2007. By Peter Berkowitz.
Excerpt:
"When pushed, many military analysts acknowledge that Israel's strategic situation in October 2006, after the war, was in critical ways superior to what it had been in June 2006, before the war began.
"First, in the early days of the conflict, Israel destroyed most of Hezbollah's intermediate and long-range missiles. Second, Israel destroyed Hezbollah's south Beirut stronghold, including its financial and technical infrastructure. Third, Israel killed roughly a third of Hezbollah's fighting force, about 750 out of a 2,000 to 3,000-man army (while 119 Israeli soldiers were killed). Fourth, the war resulted in the Lebanese army being deployed to the south of the country, bringing that region under the government's control for the first time in more than 30 years. Fifth, the war focused European and American attention on the extent of Iranian influence in Lebanon and Syria. And sixth, the unprecedented statements in the opening days of the war by three pro-American Sunni monarchies -- Saudi Arabia, Egypt, and Jordan -- blaming the outbreak of this war not on Israel but on Israel's Arab antagonist, evidenced a momentous transformation in the region. For 60 years the fundamental fault line had run between Israel and the Arabs or Israel and the Palestinians. The second Lebanon war demonstrated that the fundamental fault line had shifted dramatically: It now runs between Sunnis and Shiites, or Sunni Arabs and Shiite Iran."
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January 2007
Rankings can affect the economic and academic decisions law school administrators make, according to a National Jurist article that examines rumors of statistical misrepresentation and other forms of fraud schools can resort to in order to pump up their U.S. News & World Report rankings.
The story features comments by Professor David Bernstein, who has written articles critical of the rankings.
The Rankings Race, National Jurist, January 2007. By Rebecca Luczycki.
Excerpt:
"'There are schools engaged in behaviors that I think could be described as less than legitimate,' said Bernstein, who recalls hearing of a school in the midwest that reported the value of study aid and research services, which the school received for free, as money spent on students. 'I just don't think there is any justifiable way of accounting for money you didn't spend.'"
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Analysis by Professor Thomas Hazlett and Bruno Viani indicates that FM could accommodate upward of 98,000 new low-power radio stations without interference, indicating that the government could allocate broadcast spectrum more aggressively than it has.
Hazlett's research was cited widely in a Slate article critical of media reform but supporting reformists' efforts to expand the number of low-power FM radio stations in the U.S.
What the "Media Reformers" Get Right, Slate, January 16, 2007. By Jack Shafer.
Excerpt:
"The proponents of low-power radio have made a huge deal out of the congressional rewrite of the FCC regs, but according to analysis by scholars Thomas W. Hazlett and Bruno E. Viani, it wasn't much of a rewrite: The FCC would have allowed about 2,300 new stations, while the law passed by Congress limits the number to about 1,300. If a low-power FM scandal exists, it's that the FCC was overly restrictive in writing its rules: Hazlett and Viani calculate that FM could accommodate upward of 98,000 new low-power stations without interference. (Their projection excluded the top four U.S. markets, although they note that there is room for low-power stations there, too.) In other words, Congress and the FCC agreed more than they disagreed about how many new stations to allow.
"According to Hazlett and Viani, by mid-2004, only 290 low-power FM stations existed, and of these, 'about two-thirds were outside the 269 radio markets which overwhelmingly account for industry sales.' About 700 licenses have been approved so far, reports the Prometheus Radio Project.
"The number of stations might be higher had Congress not essentially frozen the low-power stations out of the top 50 urban markets, as Klinenberg writes. Hazlett and Viani blame other restrictions, but these restrictions were completely in synch with the media reformers' agenda: The stations were required to be nonprofit, noncommercial, and ownership of multiple stations was prohibited.
"A totalitarian state would have gotten a similarly low number of new entries if its ministry of communications decided to 'reform' its newspaper-licensing practices along the same lines: No new papers in the biggest cities; no high-circulation papers; no profit-taking; and no owning more than one.
"I know this will cause the reformistas' heads to explode, but I've got to write it: What's preventing low-power FM from flourishing as a genuine alternative to big media is not too much capitalism, but too little."
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Federal Trade Commission Chairman Deborah Platt Majoras has announced the appointment of Professor Joshua D. Wright to the newly created position of Scholar-in-Residence in the Bureau of Competition of the Federal Trade Commission.
In his new role, Wright will function as an on-staff academic expert on the law and economics of antitrust, working closely with the Bureau of Competition's investigative and policy staffs to ensure the Commission has the benefit of the latest and best thinking on competition issues as it undertakes its enforcement agenda.
Wright's current research focuses on the the competitive process for product distribution, such as slotting allowances, and contractual relationships in retailing. His teaching and interests include Antitrust, Contracts, Law and Economics, Quantitative Methods, and Corporate Finance. He has taught courses in the areas of law and economics at Pepperdine University Graduate School of Public Policy and UCLA.
A graduate of the UCLA School of Law, Wright was a managing editor of the UCLA Law Review. He later served as a law clerk to the Honorable James V. Selna, United States District Court, Central District of California. In addition to his law degree, Wright holds MA and PhD degrees in Economics from UCLA.
Wright will remain at Mason Law on a full-time basis through the spring 2007 semester and will take a leave of absence from the faculty for the 2007-08 academic year to fill his appointment.
"A prime goal of marriage and family law should be to identify new ways to suport marriage as a social institution, so that each year more children are protected by the loving marital unions of their mother and father," writes Professor Lloyd Cohen in a National Law Journal article examining whether the law's goal should be neutrality toward or promotion of traditional marriage as the social ideal.
Cohen's article proposes several criteria for identifying the types of legal reforms that strengthen marriage and argues that if courts succeed in separating the legal institution from prevailing social understandings of marriage, the institution itself suffers.
A Problematic Ideology, The National Law Journal, January 15, 2006. By Lloyd Cohen.
Excerpt:
"Marriage is not merely a legal construct. A legal system that understands that it does not create markets or motherhood must understand that marriage is not merely a legal construct, either. 'Civil marriage,' absent the broad support of civil society, is unlikely to mean much for children or society.
"Human nature exists and places limits on what law can accomplish. We may wish that all men be equally committed fathers inside and outside of marriage, but the law's commands alone will not make it so. If we want our children to know and be loved by their fathers, we must recognize the critical role of marriage in giving children loving fathers: In reality, if not in law, it is the act of lifetime commitment to the mother of one's children that cements the bonds of a father to his children.
"Social institutions matter and they matter a great deal. Sophisticated economic thinking recognizes that even purely commercial contracts depend in part on social norms. Businesspeople believe that contracts are to be honored. These internalized social ideals, as well as the reputational consequences of violating social norms, help bring the benefits of contract to life.
"If the insight that social norms matter is true for a purely financial institution, such as a commercial contract, how much more must it be for something as primordially social as marriage? Our shared understanding of a basic social institution like marriage is affected by how the law describes, understands and enacts marriage."
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A recent issue of The National Journal suggests that lawyers' blogs have established themselves as an important new method of communication, and the result has been an expansion of sources for legal news, a showcase for legal scholarship, and widespread opportunity for lawyers to promote their careers, viewpoints, and firms.
The article cited Professor Ilya Somin's recent postings urging the Supreme Court to hear a particular case as an example of how legal scholarship benefits from the give-and-take of blog-generated discussion.
Lawyers' blogs have gained a firm foothold in the legal profession, providing analysis, news, and even gossip (Section: Lobbying and Law), The National Journal, December 16, 2006. By Bara Vaida.
Excerpt:
"As instant publishing mediums, blogs are becoming an adjunct to legal scholarship. Law schools produce lengthy, analytical commentaries on case law through the institution's paper-based law review, which generally takes many months to produce. Jack Balkin, a Yale Law School constitutional professor and the creator of the blog Balkinization, says that blogs have made the law review process more like journalism where lawyers are instantly commenting back and forth on cases, speeding up the breadth and depth of legal scholarship.
"'Legal bloggers now rush to comment on important new cases the day they come down,' Balkin wrote in an online posting on the 'Pocket Part,' a companion to the Yale Law Journal. 'The end of each year's Supreme Court term brings a veritable orgy of blogging.'
"An example of these discussions can be found on the Volokh Conspiracy, a Web site for libertarian and conservative law professors. On December 11, Ilya Somin, an assistant law professor at George Mason University, blogged about an amicus brief urging the Supreme Court to hear an eminent domain case. Somin's post received a number of responses, to which Somin replied in kind, resulting in a multiparty discussion about individual property rights and the law.
"Underscoring how law blogs have seeped into scholarly discussions, 489 law review articles in the United States and Canada have referenced specific blogs, according to Ian Best, a graduate of Ohio State University's Moritz School of Law who has researched the effect of blogs on the law.
"An even more significant figure is the number of judges who are reading and using the blogs. Best found 32 examples where judges cited legal blogs in their decisions on 27 different cases."
Professor Sam Vermont is the author of an article appearing in the Michigan Law Review in which he argues that independent invention should be a defense to patent infringement, provided the independent inventor creates the invention before receiving actual or constructive notice that someone else already created it.
In his conclusion Vermont states that, "Under current law, an inventor's incentive to invent is a function of her expected return under complete patent exclusivity weighted by the probability of obtaining that exclusivity. If the reinvention defense is adopted into law, an inventor's incentive will be a function of her expected return under varying degrees of exclusivity, weighted by the probability of obtaining each degree of exclusivity."
Independent invention as a defense to patent infringement, Michigan Law Review, December 1, 2006. By Samson Vermont.
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Didden v. Village of Port Chester represents "a most unfortunate decision out of the 2d U.S. Circuit Court of Appeals," says Professor Ilya Somin, writing in The National Law Journal. Somin and co-writer Richard A. Epstein argue that Didden offers the court the opportunity to apply constitutional limits to condemnation actions when there is no clear public benefit to the taking. Citing Didden as a "particularly egregious example of pretextual condemnation and 'favoritism,'" the authors point out that the community acquired nothing from the change in ownership except the cost of the condemnation action.
A pretextual taking, The National Law Journal, January 8, 2007. By Richard A. Epstein and Ilya Somin.
Excerpt:
"Didden and Bologna in effect were forced to turn over all the value gained from their site evaluation to Wasser without so much as a dime in compensation. Kelo urged courts to defer to the supposed expertise of local governments in deciding which takings are needed to satisfy 'public needs.' But local governments are not using any expertise when they simply delegate the power of eminent domain to self-interested private parties such as Wasser who then piggyback for free on the business expenditures of others.
"Didden also illustrates two disturbing trends in modern takings law. One is the excessive delegation of public authority to private interests. Port Chester could not have made this kind of threat if it had taken direct control over condemnation proceedings. No public body can act as a hold-up artist. Why then should it be allowed to delegate to a private party the right to make threats that it could not make itself? Second, the entire public use issue has been clouded by procedural shenanigans with an Alice-in-Wonderland qualtiy. New York law allows challenges to a redevelopment plan only within the first three years after its announcement. Yet Wasser's offer took place four years after the redevelopment area was created. The 2nd Circuit held that the owners' challenge came too late because it did not come within the three-year period, even though the underlying wrong occurred only one year later. This procedural obstacle would never by tolerated in ordinary personal injury cases; the same principles should apply here.
"At every turn, the courts have allowed government agencies greater discretion over the lives and fortunes of citizens. And in too many cases, they have responded by taking things one step too far. That trend needs to be reversed. Didden is a good place to start."
Read the article
Professor Todd Zywicki credits the rapid rise in consumer bankruptcy filings during a period of prosperity in the U.S. with fueling recent efforts to reform laws governing bankruptcy actions. A CNN.com Special Report that included an examination of the effects of the 2005 amendments to the 1978 bankrupcy law carried extensive comments by Zywicki on the rationale for amending law to reduce perceived fraud and abuse in bankruptcy filings.
Jury still out on bankruptcy reforms, CNN.com Special Report: Debt Today, January 4, 2007. By Manav Tanneeru.
Excerpt:
"The 2005 law, a set of amendments to bankruptcy law passed in 1978, was precipitated by a concern among lawmakers that the bankruptcy system was too lenient and was being abused, observers say.
"'[During] the last 10 or 20 years, we saw a rapid rise in consumer bankruptcy filings, and it was a period of prosperity,' said Todd Zywicki, a law professor at George Mason University, who worked at the Federal Trade Commission in 2003-04.
"'There was a perception that that was out of whack, that bankruptcy filings should not have been rising so rapidly when the economy was in good shape.
"'There was also a widespread impression that fraud and abuse in the bankruptcy system had been rising over time,' he said, with people taking advantage of loopholes and sometimes walking away from debts they could afford to pay.
"'There was an erosion of the stigma associated with filing bankruptcy, so more people were willing to file bankruptcy as a first resort rather than a second or third resort,' he said.
"Legislative wrangling over reforms began in 1998, four years after Republicans took control of Congress. The law was finally passed seven years later, implementing a new set of guidelines for bankruptcy filings and safeguards to cut down on potential fraud and abuse.
"The law applied a 'means test' to determine whether a person qualifies for Chapter 7 bankruptcy, which erases debts, or Chapter 13, which establishes a payment system. The goal was to force more people to repay what they could.
"Other changes included mandatory credit counseling prior to filing for bankruptcy, requiring pay stubs and tax returns to verify income, and extending the period between when a person can again file for bankruptcy."
Read the article
December 2006
The nature of two federal district court rulings rendered within days of each other highlights the division in American politics and law on how to reconcile individual rights with the war on terror, says Professor Michael Krauss in a December 2006 issue of Virginia Lawyer.
Krauss examines the ruling in United States v. Rosen,maintaining that it is a "careful literalist opinion that gives too short shrift...to fundamental individual rights." In that case decided in the Eastern District of Virginia, Judge T.S. Ellis III held that the diminished First Amendment rights of government employees involved in improper disclosure of national security information may be applied to people outside government as well.
The other ruling, ACLU v. NSA, is "a stunning piece of judicial activism," says Krauss. In it Michigan Senior Judge Anna Diggs Taylor ruled that the warrantless surveillance by NSA of international phone calls between foreign Al Qaeda members abroad and and U.S. persons violated the Fourth and First Amendments.
Human Rights and Counterterrorism: A Tale of Two Districts, Virginia Lawyer, December 2006. By Michael I. Krauss.
Excerpt:
"What if the New York Times had been prosecuted instead of AIPAC? Would the former have received constitutional protection that has now been denied the latter, even though petitioning the government is explicitly protected by the First Amendment? It is highly significant that two individual lobbyists who did nothing more than receive and use classified information from a disgruntled defense employee are prosecuted for using it, while newspapers that routinely do exactly the same thing continue unmolested. The former, unlike the latter, can ill afford the legal fees that are required now that a full trial has been ordered. Will they be tempted to plea bargain to avoid a lengthy prison term? If they do, a travesty of individual rights may have occurred here."
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Action by the United States Court of Appeals for the District of Columbia to reject an amicus brief filed by seven former judges was "an unexceptional application of a sensible policy," according to legal ethics expert Professor Ronald Rotunda. "There is no particular reason why former judges should be able to leverage their titles in litigation," he added.
Rotunda's comments were carried in a New York Times article on the court's decision that the brief violated a 1982 advisory opinion by a committee of the Judicial Conference of the United States that use of the title "judge" should not occur in the courtroom or in papers involved in litigation before the court to designate a former judge.
Appeals Court Rejects Brief Submitted by Ex-Judges, The New York Times, December 30, 2006. By Adam Liptak.
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The apparent hiring of an outside law firm by the 9th Circuit "suggests that a special committee has been appointed" to investigate a federal judge who awarded nearly $5 million in judgments and fees without disclosing his ties to the recipients, said Professor Ronald Rotunda in a recent Los Angeles Times article.
Despite confidentiality rules governing investigation of federal judges, sources close to the inquiry have told the Times that an investigation of U.S. District Judge James C. Mahan of Las Vegas is underway. Mahan was one of eight former and current Nevada Judges featured in a Los Angeles Times investigative report in June. State-level measures taken since then by Nevada include appointment of a statewide commission to investigate and reform the state's judicial system.
Las Vegas judge under investigation, Los Angeles Times, December 30, 2006. By Michael J. Goodman.
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The Judicial Transparency and Ethics Enhancement Act of 2006 now before Congress would strengthen judicial independence and protect judges from false charges says Professor Ronald Rotunda, a frequently cited authority on legal ethics. The bill calls for the creation of an inspector general for the courts, an action that Rotunda believes is "a modest reform that would not dislodge the heavens."
The Courts Need This Watchdog, The Washington Post, December 21, 2006. By Ronald D. Rotunda.
Excerpt:
"Justice Stephen Breyer's commission on judicial discipline recently reported that the judiciary failed to conduct a proper investigation of judicial misconduct in five of 17 'high visibility cases' between 2001 and 2005. This error rate, the report admitted, is 'far too high.'
"We can do better.
"Right now the discipline process is conducted largely in secret. The proposed bill would give us sunlight, the best disinfectant. As for the independence of the judiciary, the proposed bill provides that the chief justice would appoint, and could remove, the inspector general. Federal judges already have lifetime tenure and salary protection. Giving them an inspector general whom the chief justice appoints and removes would not interfere with their independence."
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If diplomatic efforts of both the United States and the United Nations are not enough to halt the genocide in Sudan and to keep it contained within that country's borders, then the time for diplomacy is over says Professor Michael Krauss. Writing in a TCS Daily op-ep, Krauss argues that spillover of Sudan's bloodshed into neighboring nations Chad and the Central African Republic intensifies the risk of destabilizing a region extending substantially beyond Sudan's borders and calls for use of force in place of diplomatic efforts.
'Tis the Season in Darfur, TCS Daily, December 15, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"Ideally, the UN Security Council, noting the impact on Chad that the Darfur crisis has already had, would invoke its Chapter VII authority to deploy international peacekeepers without Khartoum's leave—rescuing the world body's tattered credibility in the process. Failing that, a 'coalition of the willing' or one courageous nation should speak up for our common humanity in what is apparently the only language Omar al-Bashir and his colleagues understand, that of force. Given the primitive nature of the Sudan regime's military forces, it would not require much to degrade its genocidal capacity at minimal risk through an escalating campaign aimed at airfields, military bases, armaments factories, and ultimately the ports through which it ships its only significant foreign exchange earner, oil. Such steps may violate Sudan's notional national sovereignty, and would therefore offend "experts" wedded to state stability—even when it means accommodating undeniably evil regimes—at all costs. But what is that in contrast to the blazing firestorm of genocide?"
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Investors will crowd into successful mutual funds until they are no longer successful, a phenomenon not unlike the "tragedy of the commons" in which villagers in medieval times allowed livestock to overgraze the village commons until eventual mass destruction of the areas resulted in starvation or abandonment. A Barron's article cites Professor D. Bruce Johnsen's economic analysis likening the mutual fund industry to a commons.
Commentary: Go Fish -- The tragedy of the commons can occur at sea, and on Wall Street, Barron's, December 4, 2006. By Thomas G. Donlen.
Excerpt:
"Economic analysis brought more math to the tragedy of commons, and provided a theoretical limit to the extreme case in which all the villagers move away or starve. It turns out that the villagers will buy more sheep and the fishermen will buy more boats and nets or traps only up to the point that their added capacity pays off with added productivity.
"We recently encountered a treatise in economic science that suggests that many investors are in the same predicament as medieval villagers, Canadian cod fishermen and Chesapeake oystermen.
"The mutual-fund industry is something of a commons, says D. Bruce Johnsen of the George Mason University School of Law. He sees the skill of stock-picking as a scarce resource that will be exploited to the limit, like the oysters that must be dredged, the fish that must be fished or the grass that must be eaten before someone else gets to them.
"'Any expected abnormal returns are a nonexclusive rent subject to competitive dissipation by investors racing to establish first possession,' Johnsen says in a working paper. 'Among the universe of potential fund investors, none has the ability to exclude others from sharing in the surplus from expected abnormal returns by a given fund manager. Just as in an open-access fishery, the prospect of capturing rents [abnormal returns] invites entry. Entry continues until the average product of the fishery exactly equals the marginal entrants' alternative earnings and all surplus is dissipated.
"'Although existing fund shareholders can capture any unexpected abnormal returns that arise by chance, investors fairly anticipate abnormal returns in advance of their realization, no doubt aided by standardized performance advertising, serial persistence in performance, rational expectations, and the information aggregation function of formal and informal markets.'"
Professor Todd Zywicki does not believe that the new Democrat-controlled Congress will challenge the provisions of the year-old Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), citing support by a high percentage of Democrats for the measure, which came about after eight years of study and debate. His comments were carried in a follow-up story to his December 6 testimony before a Senate subcommittee hearing to examine the law's implementation to date.
No challenge seen for bankruptcy law, Daily Deal/The Deal, December 8, 2006. By Shanon D. Murray.
Excerpt:
"'Given the bipartisan support, I don't think there's a whole lot of pull to review the law,' said Robert Lawless, a law professor at the University of Illinois College of Law, who testified at the hearing. 'I hope I'm wrong,' said Lawless, who still disagrees with the law.
"Fellow panelist Todd Zywicki of the George Mason University School of Law in Virginia agreed, saying: 'About 40% of Democrats supported the law. By and large, the law is working as planned.'
"It would be surprising for that many people to flip their opinions in such a short time frame,' added Zywicki, who supports the law. 'There could be a few technical amendments to clarify language, but it would be a surprise if there were any fundamental changes.'"
Professors Somin and Eagle File Supreme Court Amicus Brief in Key Property Rights Case
Today Mason Law Professors Ilya Somin and Steven Eagle joined with six other law professors from across the country to submit an amicus brief to the Supreme Court of the United States in Didden v. Village of Port Chester. The brief was written by Professor Somin and argues that the Court should hear this key property rights case brought by New York property owners Bart Didden and Domenick Bologna in the wake of last year's controversial Kelo ruling. The subject property in the case was condemned after Didden and Bologna refused to pay a private developer the $800,000 he demanded to avoid condemnation.
The plaintiffs' original lawsuit, filed in federal court, argues that the Village of Port Chester's attempt to take their property through eminent domain is a violation of the Fifth Amendment, which only allows takings for "public use." The case was thrown out by the trial court, and on appeal the Second Circuit agreed with the trial court's ruling. The court's findings were predicated on the fact that the plaintiffs' property was located within a redevelopment area, a zone the village had designated as subject to its power of eminent domain, so the Constitution did not protect it from the condemnation.
The professors' amicus brief reasons that the Supreme Court should grant certiorari in Didden v. Village of Port Chester to address whether Kelo permits pretextual takings in any situation where the condemnation occurs in a redevelopment area. They also argue that pretextual takings intended to benefit private parties should not receive deference from the judiciary.
Read the amicus brief.
With new smoking restrictions scheduled to take effect on December 8, a group of Nevada business owners has challenged the constitutionality of the anti-smoking initiative voters there approved in November. The suit, filed in District Court by a group for whom Professor Ronald Rotunda is one of the lead attorneys, alleges that the statute is "impermissibly vague" about what conduct is criminalized and therefore violates the plaintiffs' constitutional right to due process.
Legal challenge targets smoking ban, Las Vegas Review-Journal (NV), December 6, 2006. By K.C. Howard and Howard Stutz.
Excerpt:
"University of Nevada, Las Vegas, law professor Lynne Henderson, who teaches constitutional law, says she has seen similar arguments made in other states.
"'One of the things that's troubling is that large casinos are exempt and it will hurt smaller businesses, but this (type of challenge) has not worked for anybody in any other state, so I'm not sure what success they're going to have,' Henderson said of the businesses seeking the injunction.
"Likewise, advocates for the act noted that challenges to similar statutes in other states have been unsuccessful.
"But Lenhard countered that those states' statutes defined enforcement procedures and were crafted by state legislatures. This act appears to be 'haphazardly' thrown together, he said.
"Henderson said the plaintiffs have very good lawyers working for them. Ronald Rotunda, a professor of law at George Mason University in Virginia is one of the leading constitutional attorneys in the country and one of the lead attorneys filing the complaint. Rotunda declined comment about the details of the suit, saying he'd prefer to speak after the parties file briefs."
Read the article
Professor Todd Zywicki testified before the Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts on Wednesday, December 6, as the Subcommittee held hearings to consider the effectiveness of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) following its one-year anniversary.
An expert on bankruptcy law, Zywicki contended that evidence to date indicates that the 2005 bankruptcy reforms appear to be on the right track, preserving bankruptcy relief for those who need it while reducing fraud and abuse. Among the evidence Zywicki noted is that BAPCPA has "proven itself flexible enough" to preserve access to bankruptcy courts in unanticipated circumstances such as the aftermath of Hurricane Katrina. He also cited a significant decline in filing rates, despite recent economic conditions that would be expected to increase bankruptcy filings, as an indicator that BAPCPA is rooting out fraudulent and abusive cases.
Zywicki testified in favor of BAPCPA before the Senate Judiciary Committee in February 2005. The bill was enacted in April 2005 with an effective date of October 2005.
To schedule an interview with Professor Zywicki, please contact Ginny Smith at 703-993-8007 or vsmith4@gmu.edu.
Read Professor Zywicki's testimony.
There is ample evidence that Hezbollah-inspired activity is growing in the Americas and poses a very real threat to the United States according to Professor Michael Krauss. Writing in TCS Daily, Krauss cites recent studies and events that give rise to the belief that Lebanese expatriate populations are actively proselytizing in South America for converts to their cause and using those countries as a base of operations.
Franchising Jihad, TCS Daily, December 4, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"As Rachel Ehrenfeld spotlighted in an excellent National Review Online column back in 2003, exploiting its entrée with the Lebanese diaspora, Hezbollah has had a longstanding and profitable presence in South America. In the largely ungoverned jungles of the tri-border region of where Argentina, Brazil, and Paraguay intersect, Hezbollah clerics have been active since the mid-1980s, seeking converts as well as recruiting new members and organizing cells among immigrant Muslim communities from the Middle East. In addition, Brazilian, Argentinean, and other Latin American intelligence sources report the existence of special Hezbollah-run weekend camps, where children and teenagers receive weapons and combat training, as well as indoctrination them in the anti-American and anti-Semitic ideologies of the Ayatollah Khomeini and his successors. Hezbollah is heavily involved in South America's thriving trade in illegal drugs, cultivating alliances with both drug cartels and narco-terrorist outfits with revolutionary aspirations like the Revolutionary Armed Forces (FARC) and National Liberation Army (ELN) in Colombia. Brazilian security agencies estimate that hundreds of millions in profits are sent annually from Islamist organizations operating in the tri-border region to the Middle East, most of it going to Hezbollah in Lebanon."
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The December 2006/January 2007 edition of Policy Review features an essay by Professor Peter Berkowitz based on a lecture entitled "John Stuart Mill's Idea of a University and Our Own" delivered in September 2006 at a St. Andrews University (Scotland) symposium honoring the 200th aniversary of Mill's birth and the address on liberal education he delivered there in 1867. Berkowitz explores the nature and constitution of a true liberal education, both as defined by Mill and as relevant in today's world, saying, "While it does not nearly cover the whole of education, the university's mission, which is to provide a liberal education, is essential to preparing students to understand the other constitutive elements of education, or the variety of material, moral, and political forces that form the mind, shape character, and direct judgment."
Liberal Education, Then and Now, Policy Review, December 2006/January 2007. By Peter Berkowitz.
Excerpt:
"Mill's nineteenth-century analysis of liberal education is relevant to the twenty-first-century university not for the specific curriculum he proposes but because of the larger principles he outlines and the greater goods he clarifies. His analysis suggests several lessons. First, a liberal education aims to liberate the mind by furnishing it with literary, historical, scientific, and philosophical knowledge and by cultivating its capacity to question and answer on its own. Second, a liberal education must, in significant measure, provide not a smorgasbord of offerings but a shared content, because knowledge is cumulative and ideas have a history. Third, a liberal education must adapt to local realities, providing the elementary instruction, the stepping stones to higher stages of understanding, where grade school and high school education fail to perform their jobs. Fourth, the aim of a liberal education is not to achieve mastery in any one subject but an understanding of what mastery entails in the several main fields of human learning and an appreciation of the interconnections among the fields. Fifth, liberal education is not an alternative to specialization, but rather a sound preparation for it. Sixth, a liberal education culminates in the study of ethics, politics, and religion, studies which naturally begin with the near and familiar, extend to include the faraway and foreign, and reach their peak in the exploration, simultaneously sympathetic and critical, of the history of great debates about justice, faith, and reason. Seventh, all of this will be for naught if teaching is guided by the partisan or dogmatic spirit, so professors must be cultivated who will bring to the classroom the spirit of free and informed inquiry."
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Prominent property rights and legal experts, including Professor Steven Eagle, met to discuss post-Kelo property rights protections at a Washington, D.C., conference sponsored by the Cato Institute's Center for Constitutional Studies. The conference participants examined current trends in the growing property rights movement and reflected on its future at the conference entitled Property Rights on the March: Where from Here?
The December 1, 2006, conference featured the following participants: Roger Pilon, Vice President for Legal Affairs, Cato Institute; Steven Anderson, Director, Castle Coalition, Institute for Justice; Steven J. Eagle, Professor of Law, George Mason University School of Law; Ross Day, Director of Legal Affairs, Oregonians in Action; Richard Mersereau, Director of Policy, California State Assembly Republican Caucus; Carol W. LaGrasse, President, Property Rights Foundation of America; and Hon. Bobby Harrell, Speaker, South Carolina House of Representatives.
Professor Eagle's panel 1 presentation is accessible through links to audio, video, and MP3 versions on the Cato Institute website.
November 2006
In the latest in a continuing series of joint public hearings designed to examine the implications of single-firm conduct under the antitrust laws, Professor Timothy Muris provided expert testimony on loyalty discounts before the Federal Trade Commission and the Department of Justice's Antitrust Division. Muris, who has in the past held the post of chairman of the Federal Trade Commission, presented November 29, 2006, testimony entitled "Antitrust Law and Economics: Exclusionary Behavior and Bundled Discounts." The intent of the joint hearings is to explore whether and when specific types of single-firm conduct may violate Section 2 of the Sherman Act by harming competition and consumer welfare and when they are pro-competitive and lawful.
Excerpt:
"While these theories show the theoretical possibility of harm under limited conditions and may be useful as part of the overall policy debate, they fall far short of proving that anticompetitive harm from bundling is likely or even that it is more than an antitrust unicorn. Empirical evidence of harm from bundling is virtually non-existent, and experimental results show that consumer and total welfare both increase from bundling in circumstances in which economic models predict that bundling is problematic."
View Professor Muris' presentation to the committee
Professor Todd Zywicki was a member of a distinguished panel examining the legal, economic, and policy issues surrounding the question of how much authority federal regulatory agencies have to preempt state law. At the center of the discussion were the oral arguments in the case Watters v. Wachovia Bank scheduled to come before the Supreme Court on November 29 in a case that is expected to impact both banking regulation and the issue of preemption itself.
The panel discussion, entitled Watters v. Wachovia Bank: The Roberts Court Weighs In on Preemption, was sponsored by the American Enterprise Institute for Public Policy Research in Washington, D.C.
"The mutation of the world's oldest hatred, in a West that stood by during the first Holocaust, cries out for immediate response. Who, apart from America, is willing to furnish one?" asks Professor Michael Krauss, writing of his perception of a double standard in the international community, and in particular within the United Nations, in matters concerning Israel.
The UN's Jew-Obsession, American Thinker, November 27, 2006. By Michael I. Krauss and J. Peter Pham.
Excerpt:
"Only a U.S. veto, wielded by Ambassador John Bolton, avoided a UN Security Council resolution condemning Israel which would have been legally binding, opening the way to sanctions. Ambassador Bolton was furious at the blatant perfidy of the international body. His remarks are worth quoting at some length. 'This type of resolution serves only to exacerbate tensions by serving the interests of elements hostile to Israel's inalienable and recognized right to exist,' he noted. 'This deepens suspicions about the United Nations that will lead many to conclude that the organization is incapable of playing a helpful role in the region.' 'In a larger sense, the United Nations must confront a more significant question, that of its relevance and utility in confronting the challenges of the 21st century. We believe that the United Nations is ill served when its members seek to transform the organization into a forum that is a little more than a self-serving and a polemical attack against Israel or the United States,' Bolton continued. 'The problem of anti-Israel bias is not unique to the Human Rights Council. It is endemic to the culture of the United Nations. It is a decades-old, systematic problem that transcends the whole panoply of the UN organizations and agencies.' [This is the man the Democrats want to eliminate as our UN ambassador - we think he should win the Nobel Peace Prize.]"
Read the article
The Internet continues to be the largest force for change in social customs, allowing people free exchange of information of the most personal nature, according to a Baltimore Sun article that includes comments by Professor Thomas Hazlett. The article asserts that "As cell phones, computers, and BlackBerrys blur the bounds between home and work, the line between work and home behaviors has also become murkier."
MANNERS? WHAT ARE THEY? BAD BEHAVIOR IS THE WAY TO FAME AND FORTUNE THESE DAYS, Baltimore Sun, November 26, 2006. By Andrew Ratner.
Excerpt:
"Political shots are often fired in this so-called culture war, but they rarely do any damage, even the rising fines the FCC imposes on networks and local stations for so-called indecency.
"'It is funny we're so focused on 1941 technology [television] when there's all this migration to the Internet. I think it's a losing battle to try and regulate it,' said Thomas W. Hazlett, a professor of law and economics at George Mason University and a former chief economist at the Federal Communications Commission. 'People make [political] runs at this, but surrender's probably the word.'"
Read the article
Online lawyer-client matching services may be subject to ethical considerations says Professor Ronald Rotunda in a Lawyers USA article that looks at the phenomenal growth of these services, which a Reuters analysis estimates serve four million people per month, with that number expected to climb to nine million within the next year.
Online matching services trying to connect lawyers and clients, Lawyers USA, November 20, 2006. By Dick Dahl.
Excerpt:
"Ronald D. Rotunda, a professor at George Mason University School of Law, believes that lawyer matching services give rise to several ethical questions.
"'The rule is: Normally, you can't split legal fees with a non-lawyer,' he said. 'And these are non-lawyers.'
"On the other hand, he said, under ABA Model Rule of Professional Conduct 7.2 regarding lawyer advertising, lawyers are permitted to pay for reasonable advertising costs associated with 'a qualified lawyer referral service' that has been 'approved by an appropriate regulatory authority.'
"Rotunda also questioned how effectively matching services inform consumers that the lawyers they may contact through the site are only ones who have paid to be part of it."
Professor Thomas Hazlett believes an unlicensed spectrum allocation is a "recipe for disaster" in TV white space. His remarks were delivered at a recent mini-conference examining the issues of municipal Wi-Fi and reallocation of TV band spectrum for unlicensed device use that was sponsored by Mason's Information Economy Project and held at the law school. Hazlett was a participant in a presentation entitled "TV Band 'White Space': Two Views."
Qualcomm's Jacobs on stereotypes, becoming a law firm and WiMAX, RCR Wireless News, November 20, 2006. By Jeffrey Silva.
Excerpt:
"Thomas Hazlett, a professor at George Mason University Law School, warned an unlicensed spectrum allocation is a recipe for disaster in TV white space, also dubbed a junk band. 'The real truth is junk is perpetuated' by allowing unlicensed Wi-Fi operations in TV guard bands. He said high-tech firms betting big on Wi-Fi and WiMAX are not precluded from buying spectrum and making unlicensed use available within licensed service areas."
Bay State legislators had a "clear, constitutional duty" to vote on an initiative petition to place a proposal on the 2008 ballot to define marriage as between one man and one woman says Professor Joyce Lee Malcolm in a letter to the editor of the Washington Times. Malcolm's letter was sent in response to Massachusetts legislators' adjournment of their session this month rather than holding a vote on the petition. "Whatever one's view of same-sex marriange, the Legislature's violation of the rule of law is even more troubling," stated Malcolm.
'The triumph of arrogance over democracy,' Washington Times, November 17, 2006. By Joyce Lee Malcolm.
" Anyone wondering why Massachusetts was the first and, until the New Jersey court ruling last month, only state to approve same-sex marriage will find the answer in the editorial 'Marriage fiat in Massachusetts' (Saturday). Bay State legislators adjourned their session this month rather than vote on the initiative petition signed by 170,000 citizens to place a proposal on the 2008 ballot defining marriage as between one man and one woman. Legislators had a clear, constitutional duty to vote on the petition.
"As the editorial notes, this same tactic to prevent voters from deciding the issue had been used before. In 2002 a similar petition was placed before the joint session of the Massachusetts Legislature that approves all ballot questions. Then-Senate President Thomas Birmingham placed the petition at the end of the agenda and deftly adjourned the session before it could be voted on. A year later in a 4 to 3 decision, the Massachusetts Supreme Judicial Court ruled that the ban on same-sex marriage violated the Massachusetts Constitution and gave the Legislature 180 days to change the law.
"When the Legislature asked if civil unions would fulfill the requirement, by the same 4 to 3 majority, with judges shouting at each other, they were told 'no.' The judges set the anniversary of Brown v. Board of Education as the date for the new, same-sex marriages to be recognized. Those four judges and the leadership in the state Legislature deprived the people of Massachusetts of the opportunity to decide for themselves this fundamental question. Whatever one's view of same-sex marriage, the Legislature's violation of the rule of law is even more troubling. This was, as Gov. Mitt Romney pointed out, nothing less than 'the triumph of arrogance over democracy.'"
An auction of Canada's entire TV bandwidth would provide its citizens with $6 billion dollars in revenue, allow cheaper cellular phone service, and drive the wireless economy, according to an article carried in Canada's Globe and Mail. Its author references the research and comments of Professor Thomas Hazlett in providing substance for his argument.
Put our TV bands to better use: Sell them, Globe and Mail, November 17, 2006. By Neil Reynolds.
Excerpt:
"Once chief economist for the U.S. Federal Communications Commission, Mr. Hazlett is now a professor of law and economics at George Mason University in Virginia. Recognized internationally as an authority on the economics of broadcasting, he serves as director of the university's Information Economy Project, which -- in its mission statement -- recommends that governments get out of the way and permit the 'wireless century' to develop without needless bureaucracy and anachronistic regulation.
"In his analysis of Canadian airwave use, Mr. Hazlett cited Italy as an example of a country in which government did get out of the way -- though inadvertently. Deregulation, Italian style, occurred in the mid-seventies when courts permitted unlicensed entry into cable TV. The Italians spontaneously extended this liberty to all TV broadcasting. At the time, the country had 90 TV stations. Within 10 years, it had 1,300 -- the highest TV station density in the world. (Canada and the U.S. have 0.05 TV stations per 10,000 people; Italy has 1.0). Italian TV stations get 20 times as much use from bandwidth as Canadian or American stations. Cable TV scarcely exists; it was never needed and serves less than 1 per cent of households.
"Mr. Hazlett calculated 'the enormous economic benefits' that would result were Canada to sell at auction the country's entire TV bandwidth. The country's remaining roof-top antennas would need to be replaced with satellite dishes at a cost of $600-million. But the TV band auction (based on Canada's sale of 40 MHz for $1.5-billion in 2001) would clear almost $6-billion. If it wanted to do so, the government could invest this profit and assign the income -- very conservatively, $200-million a year forever -- for subsidies to Canadian video production."
Professor Joshua Wright testified on November 15, 2006, as an expert witness on exclusive dealing before the Federal Trade Commission and the Department of Justice's (DOJ) Antitrust Division. The hearing was the latest in a series designed to examine the implications of single-firm conduct under the antitrust laws, specifically considering whether and when certain types of single-firm conduct may violate Section 2 of the Sherman Act by harming competition and consumer welfare and when they are pro-competitive and lawful.
Excerpt:
"Exclusive dealing contracts have been the focus of a substantial amount of recent antitrust litigation. A number of these cases allege that slotting contracts, payments from manufacturers to retailers for promotional shelf space, impair rivals and ultimately harm competition. A theme in these cases, such as McCormick, Conwood, and Gruma, appears to be that some form of exclusivity term explicitly limiting rivals' access to shelf space appears to be a necessary condition for antitrust liability. My testimony examines antitrust analysis of exclusive shelf space arrangements."
Read the full summary of Prof. Wright's testimony
View Professor Wright's presentation to the commission
St. Paul economist and writer Edward Lotterman believes that when Congress banned the Social Security Administration from negotiating drug prices for Americans covered by the new Medicare Part D program, it was a classic example of what Professor Gordon Tullock described as "rent seeking" in his groundbreaking work in economics.
Is drug-cost bargaining sound policy?, St. Paul Pioneer Press (MN), November 16, 2006. By Edward Lotterman.
Excerpt:
"Gordon Tullock, long a professor of law and economics at George Mason University, coined 'rent seeking' in a 1967 paper. Together with 1986 Nobel laureate James Buchanan, Tullock explored the economics of how special interest groups secure favorable treatment by government.
"Both scholars are politically conservative Libertarians. I think that both probably look askance not only at the Part D drug benefit, but also at Medicare and Social Security in general. Nevertheless, I think they would see the ban on Social Security price negotiation as a classic case of rent seeking.
"Before the drug benefit's enactment, drug companies lobbied Congress and showered millions of dollars in campaign contributions on lawmakers. There certainly was no popular demand for such a ban, and no member of Congress offered an articulate exposition of the principles behind it. It seemed to be a straightforward case of political influence-buying.
"Defenders of the ban did argue generally that allowing Social Security to bargain over drug prices for Medicare recipients would violate free-market principles. But the Veterans Affairs Department, the federal government's largest direct provider of medical care, long has practiced just such negotiations with little evidence of adverse effects."
Read the article
Professor Nelson Lund agrees with Virginia Attorney General Robert McDonnell that the Commonwealth's new constitutional amendment defining marriage will not have the unintended consequences feared by those who believe that the wording of the amendment could adversely affect a range of protections for unmarried couples. "The chances are very small that anyone in Virginia will lose any existing rights because of this amendment," said Lund in a Legal Times article examining controversy over the measure, which was affirmed at the polls by a 57 percent to 43 percent margin.
No Honeymoon for Virginia Law, Legal Times, November 13, 2006.
"With majority status in the 'people's house' comes a share in responsibility for the security of the Republic," writes Professor Michael Krauss in a TCS Daily op-ed in which he warns of the danger of presumptive House Speaker Pelosi's anticipated installation of Florida Representative Alcee Lamar Hastings as chairman of the House Permanent Select Committee on Intelligence when the 110th Congress convenes in January.
Speaker Pelosi's Impending Intelligence Failure, TCS Daily, November 9, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"The disgraced judge-cum-legislator's record on national security—the most basic criterion for leading the intelligence committee at any time, much less in the midst of a war on terror—has not been reassuring. In the 109th Congress alone, Mr. Hastings voted consistently against key counterterrorism tools, including the Electronic Surveillance Modernization Act, the Intelligence and Law Enforcement Resolution, and the USA PATRIOT and Terrorism Prevention Reauthorization Act. He has been an opponent of the trial by military commissions of unlawful terrorist combatants as well as border control, NSA communications intercepts, and terrorist financing tracking measures.
"Mr. Hastings' dubious record contrasts greatly with that of the centrist Ms. Harman. While highly critical at times of the Bush administration's conduct of intelligence and counterterrorism operations, Ms. Harman has displayed a keen understanding of intelligence issues, and has introduced quite sensible legislation on national security concerns, including government-wide security clearances and enhanced seaport security.
"With the serious international security challenges faced by Americans, the last thing we need is more bitter partisanship. Nancy Pelosi is set to make history as our first female Speaker. But what history will record of her speakership, should she choose to vault Mr. Hastings over Ms. Harman, is that her legacy had precious little to do with providing for the common defense of the Republic, and too much to do with shameless pandering."
Read the article
UN relief agencies have less access to those in need in Darfur than at almost any other point since the crisis began, and the end of the rainy season assures new violence against the populace by both Sudanese government forces and janjaweed in the near term says Professor Michael Krauss, writing in TCS Daily. Krauss aims criticism at the United Nations and the international community for their failure to form a "coalition of the willing" to end genocide in Sudan.
The Rainy Season's Over; Killing Can Commence, TCS Daily, November 8, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"It has been more than two years since a (unanimous) resolution of the Congress of the United States, then Secretary of State Colin Powell, and, finally, President George W. Bush all branded the humanitarian catastrophe in Darfur 'genocide'—the systematic destruction of 'black' African Muslim Sudanese by Arab Muslim Sudanese. But America has been virtually alone in the international community. The European Parliament, in an action reminiscent of journalist Alan Elsner's question to State Department spokesperson Christine Shelly during the Rwandan genocide ('How many acts of genocide does it take to make a genocide?'), resolved that the events in Darfur were 'tantamount to genocide' but somehow not quite constituting genocide.
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide stipulates that a finding of genocide entitles parties to 'call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated' therein (article 8).
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Reducing the size and complexity of government is one way to address the issue of widespread political ignorance says Professor Ilya Somin in an Election Day op-ed carried by the Jurist. Somin points out that "even a citizen who cares a great deal about public policy has little incentive to acquire sufficient knowledge to make an informed choice. Becoming a well-informed voter is, in most situations, simply irrational. Unfortunately, the rational decisions of individuals create a dysfunctional collective outcome in which the majority of the electorate is dangerously ill-informed."
The Politics of Ignorance: Election Day Reflections, Jurist, by Ilya Somin.
Excerpt:
" Even if the majority of voters paid more attention to politics than they do, that still might not be enough to cope with the complexities of the modern state. The federal government alone spends over 20 percent of our national gross domestic product and adopts thousands of regulations that touch on almost every aspect of our lives. Even highly attentive voters are unlikely to be aware of more than a small fraction of this activity.
"Thus, many important aspects of government power are likely to escape public scrutiny, and thereby also escape public accountability and democratic control. To take just one notorious example, every year the federal government spends tens of billions of dollars on counterproductive porkbarrel spending such as the notorious “bridge to nowhere.” Yet pork projects persist because most voters are largely unaware of their existence, while the well-organized interest groups that benefit are not only aware, but prepared to punish politicians who refuse to satisfy their desires. If government had fewer functions, it might be easier for voters to keep track of them, and thereby combat interest group machinations. It would also be easier for voters to assess how well government is fulfilling its core functions, such as national defense.
"Obviously, political ignorance is far from the only problem that must be considered when we try to determine how large a role the state should play in our society. But it is essential to understand that decisions about the size of government involve not only policy questions about specific issues, but also the overall viability of democratic control of government. The government that governs least may well be the most democratic."
Read the op-ed
Important decisions like the sale of a home are often affected by the emotions of the person involved, says Professor of Economics and Law Kevin McCabe in an Washington Post article that probes the reasons behind the slight decline in housing prices despite the current rising inventory of unsold homes in the Washington market. "There's a whole emotional processing system that goes on in the brain that's largely beyond our control," says McCabe, stating, "The general view is that our emotions control us, and not vice versa."
For Sale, By the Owner's Ego, The Washington Post, November 4, 2006. By Kirstin Downey.
Excerpt:
"Neuroeconomic research may provide buyers and sellers with some clues about how to psych out the market themselves.
"Sellers, neuroeconomist McCabe suggests, might need to realize that no matter how passionately they wish things were different, prices have fallen and they need to accept that. They can hold on and wait, but may actually lose more money by making payments on a home in a place they no longer want to live -- in effect, throwing good money after bad.
"Buyers, he said, need to be aware that they are dealing not just with a house but also with a seller wrestling with his ego. Sometimes it might be smarter to let the poor fellow keep his price, but ask for other concessions that might actually be more valuable. A new roof, new appliances or substantial assistance toward the closing costs all have material value, but they allow the seller the dignity of maintaining the price at a level that leaves him standing tall in his neighbors' eyes.
"'Haggle less over price and more over other stuff,' McCabe said the research indicates. 'Change the bargaining so you still get the deal you want.'"
Read the article
Palm Beach County's practice of allowing individual commissioners to appoint bond counsels is a questionable system that does not assure the public of either the avoidance of corruption or the lowest cost of services says Professor Ronald Rotunda, commenting in the Broward Daily Business Review (FL). The practice came under fire after the law firm representing the county voluntarily terminated its municipal bond counsel agreement with the county after one of its founding partners was charged with concealing a felony in a land sale.
"What you want to do is have a system where people are chosen on competence instead of who they know, and the voters would like to choose the cheapest or least expensive one," Rotunda said. "That is a better system because you want to avoid corruption, the temptation of corruption and the appearance of corruption," he continued.
Rotunda said that the commission should do a better job deciding how to spend taxpayers' money on bond counsel, commenting, "Everyone would agree that they have a competent bond counsel. I suppose you can pick one using a dartboard, but that doesn't mean it's the right pick. The county's voters would want the least expensive counsel."
Uneasy Bonds, Broward Daily Business Review, November 7, 2006. By Jaime O. Hernandez.
October 2006
"While not every effective practice is legal, and not every legal practice is ethical, Israel's preemptive counterterrorism efforts are right on target with respect to efficacy, law, and morality," claims Professor Michael Krauss in a TCS Daily op-ed that explores Israel's right to self-defense against the armed attacks emanating from Gaza and other Palestinian areas.
Right on Target, TCS Daily, October 30, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"Can the policy of terrorist preemption be justified?
"Some have criticized it as counterproductive, arguing that it perpetuates a 'cycle of violence' and therefore causes more Israeli casualties. While undoubtedly targeted killings raise tensions, especially when targeted terrorists have taken shelter among innocent bystanders who are themselves hurt or killed, it is unquestionably true that the policy seriously degrades terrorist capacity. To cite just one example from the data sets maintained by the National Memorial Institute for the Prevention of Terrorism, while the number of Palestinian suicide attacks launched against Israeli civilians increased steadily since 2000, the number of deaths (not counting those of the terrorist perpetrators) declined from a high of 5.4 per incident in 2002 to 0.11 last year. The reason? Quite simply, while there may be an 'infinite' number of angry Palestinians, the number of adept and experienced teachers and planners is quite finite."
Read the article
Professor Steven Eagle comments on takings in a Weekly Standard article about Proposition 90, a California ballot initiative that seeks to prevent jurisdictions from using zoning and other regulatory powers to destroy property values without proper compensation to the property owner. Proposition 90 is part of a growing movement against regulatory takings that has gained momentum following the landmark Supreme Court ruling in Kelo v. New London.
Taking 'Takings' to the Voters, The Weekly Standard, October 30, 2006. By Shikha Dalmia and Leonard Gilroy.
Excerpt:
"Ever since the Progressive Era popularized the notion that expert management of land would alleviate all manner of social ills, notes Stephen J. Eagle, a law professor at George Mason University, land-use planners have employed their regulatory powers not to enjoin nuisances, the original purpose of zoning, but to ensure that all uses of private property conform with their vision. The result is that millions of property owners-farmers, homeowners, small businesses, churches have faced financial losses, even total ruin, as ever more aggressive land-use regulations have barred them from any use of their property that doesn't serve the planners' ends."
Political candidates face an electorate that is largely uninformed according to Professor Ilya Somin, who is quoted in a Providence Journal editorial as saying ignorance of even the most basic political facts is so widespread that 'voters not only cannot choose between specific competing policy programs, but also cannot accurately assign credit and blame for highly visible policy outcomes to the right office-holders.'"
America's out-to-lunch electorate, Providence Journal Bulletin (RI), October 29, 2006. By Froma Harrop.
Excerpt:
"If ignorance is rife, what about all those detailed opinion surveys? Somin explains that people don't want to admit their ignorance to pollsters, so they tender an opinion based on nothing.
"When the voice on the phone asks, 'How well is the Bush administration handling port security?' people will answer 'very well' or 'very poorly' though they haven't the foggiest idea what the president has done on the matter.
"In a famous 1950s study, researchers made up a piece of legislation called the Metallic Metals Act and polled the public on it. Some 70 percent of the respondents offered an opinion about something that didn't exist.
"Some academics believe that as little as 3 percent of the population possesses a high degree of political knowledge. I asked Somin whether that pitiful number means that our democracy is but a futile stab at a utopian fantasy. He wouldn't go that far.
"'Even if it's 3 percent, it's still millions of people,' he said. 'That's enough to make a democracy better than a dictatorship,' though not enough to ensure the election of 'plausible' leaders."
Rural phone service carriers who currently benefit from billions of dollars in annual subsidies through the Universal Service Fund fiercely resist the concept of reform, despite the economic sense such reforms
would provide for consumers says Professor Thomas Hazlett in a Baltimore Sun editorial. Hazlett argues that, "'Long distance' revenues have gone the way of the eight-track tape deck, replaced by e-mail, buckets of wireless minutes and Voice over Internet Protocol (VoIP). So now, to finance the Universal Service Fund, tax rates are rising for fixed and wireless phone subscribers and being newly imposed on VoIP customers." He suggests a cap and annual reduction to the USF, with "reverse auctions" to assign universal service obligations through a bidding process designed to secure the lowest bid for those services.
Phone Fund Rip-Off, Baltimore Sun, October 24, 2006. By Thomas W. Hazlett.
Excerpt:
"While the goal of universal service is uncontroversial, Americans are ditching old-fashioned phone networks. In 2004, the latest year for which government data are available, just 89 percent of U.S. homes had a traditional fixed line, down from 94 percent a few years ago. The decline was more than offset by mobile phones. But the Universal Service Fund swims against this natural transition by bailing out yesterday's technology with today's tax dollars.
"Rural telephone companies are now so flush with subsidies that many of them pay out more in dividends to their owners than they charge for phone service. More than 100 rural telephone companies incur more than $500 per line in annual administrative expenses—what a typical mobile customer pays in total charges. These are corporate overhead costs not driven by expenses associated with providing service in low-density markets."
Read the article
A Newport Beach, California, ballot measure designed to restrict the city's use of eminent domain on the heels of the Supreme Court ruling Kelo v. New London is flawed and ineffective, according to property rights experts. Mason Professor Ilya Somin noted that, “errors have been widespread in post-Kelo legislation.” He also highlighted a second problem with the measure: the ballot language does not define “economic development,” making the law easy to circumvent.
Power of Newport Ballot Measure in Doubt, The Orange County Register, October 20, 2006. By Jeff Overley.
Read the article
Professor
Michael Krauss reacts to the sentencing of lawyer and self-described civil
rights advocate Lynne Stewart in a TCS
Daily op-ed. After being convicted
of providing material support to a terrorist conspiracy and of conspiring to
defraud the U.S.
government when acting as counsel to a convicted terrorist in 2005, Stewart was
sentenced to what Krauss calls a "paltry" 28 months.
The Blind Sheik's Mistress, TCS Daily, October 20,
2006. By J. Peter Pham and Michael I. Krauss.
Read the article
The Maryland General Assembly passed legislation last spring that effectively fired members of the state’s Public Service Commission, a move with far-reaching effects on state utility regulation. However, a September court ruling overturned parts of the new law, but left intact language that bars the Commission from ruling on a merger between Constellation Energy and Baltimore Gas and Electric. The merger plans included the return of some $386 million in rate reductions starting in 2007. Professor Ronald Rotunda commented that, “In firing the PSC, the legislature, in effect, seized the authority to regulate the rates themselves.”
“‘When the legislature changes the rules of the game after the game started, it interferes with investor-backed expectations,’ he said. ‘The utilities are guaranteed a reasonable rate of return on their property. You can't take that away without just compensation.’”
Merger Ruling May Cost BGE Customers More, Southern Maryland News Online, October 19, 2006. By Megha Rajagopalan.
Read the article
Dartmouth College has reacted to the recent elections of independent candidates to its Board of Trustees by proposing a new constitution that would prevent the elections of outsiders. The move comes on the heels of elections in which several candidates, including Professor Todd Zywicki of Mason Law, bypassed the official nomination process and were able to place their names on the ballot through collection of alumni signatures, later winning seats on the Board of Trustees. Fellow petition trustee Peter Robinson writes in the Wall Street Journal that Dartmouth alumni should reject the proposed new constitution to preserve democracy at the college and ensure that the institution reconnects with mainstream America by safeguarding alumni access to the Board of Trustees.
The Dartmouth Fracas, The Wall Street Journal, October 18, 2006. (subscription required)
Excerpt:
"Ho-hum about the clash of civilizations? Blase about the struggle for Congress? Then turn your attention to Hanover, N.H., home of Dartmouth College, where the fighting is really intense.
"The story begins with T.J. Rodgers, the entrepreneur who founded and runs Cypress Semiconductor. In 2004 Mr. Rodgers, class of '70, decided his alma mater could use him on its board of trustees (half of whose members are elected by alumni). He circulated a letter in which he insisted on a reassertion of high academic standards, the importance of freedom of speech on campus, and the need for Dartmouth to strive to remain the best undergraduate institution in the country. Employing a seldom-used petition mechanism to get his name on the ballot, Mr. Rodgers required 500 signatures. He received thousands. Then he defeated the three official candidates in a walk.
"The following year Mr. Rodgers persuaded two more alumni to mount petition candidacies: Todd Zywicki, class of '88, who teaches law at George Mason, and me, class of '79. We addressed the same issues Mr. Rodgers had addressed, and, like Mr. Rodgers, we won.
"The response in Hanover? Remarkably uniform. Everyone became hysterical."
New Hampshire Public Radio’s The
Exchange featured Mason Law Prof. Todd Zywicki in a retrospective look at
bankruptcy reform one year following the implementation of sweeping changes to
federal bankruptcy law. Specifically,
the discussion considered how well the changes have worked, who was impacted
and if the law has cut back on abuse of the bankruptcy system.
Click here to listen to
broadcast.
In his book Neoconservatism: Why We Need It, author Douglas Murray "takes on neoconservatism's harshest critics and does not yield an inch," says Professor Peter Berkowitz in a book review appearing in the October 23, 2006, edition of The Weekly Standard.
Against Relativism: A British way of looking at neoconservatism, The Weekly Standard, October 23, 2006. By Peter Berkowitz.
Excerpt:
"Neoconservatism in America today, according to Murray, continues to do battle against relativism, which, he argues, fuels opposition to the global war on terror. To be sure, as Murray points out, there has been no shortage of voices echoing Noam Chomsky's incoherent assertion that U.S. support for Osama bin Laden against the Soviets in the 1980s, and for Saddam Hussein in his war with Iran during the 1980s, should disqualify America from fighting terrorists and the nations that harbor them. And there are plenty, he adds, who, glossing over the U.N.'s sorry record of coddling dictators and failing to prevent bloodshed, argue in the name of cosmopolitanism, democratic humanism, or the international community that Americans who put American interests and American ideals first pose a leading threat to world peace. Yet these criticisms of the war are less an expression of relativism than an expression of poorly reasoned moral disapproval of the United States and its role in the world.
"In addition to clarifying the connection between relativism and the resentment, envy, and arrogance that characterize so much progressive criticism of the United States and its fight against Muslim extremism, at least two other critical issues must be addressed to fill out Murray's introduction to neoconservatism. First, what lessons from the neoconservative critique of social engineering at home can be applied to the program for promoting liberty and democracy abroad? And second, what steps can be taken to minimize the tensions involved in seeking to conserve liberal democracy, a doctrine and way of life whose guiding principle--individual freedom--constantly struggles against the constraints of tradition, custom, and authority?
"Critics may chuckle with satisfaction at the perplexities neoconservatism confronts. But the price the critics pay is moral and political blindness. Not that neoconservative solutions are always the right solutions. But the perplexities they confront are inscribed in the American way of life. They partly define the challenges of securing liberty at home, which is not separable today (if it ever was) from promoting it abroad. It is not the least of neoconservatism's achievements to have brought these perplexities into focus."
Read the review
What net neutrality would presumably end is what helped launch Google argues Professor Thomas Hazlett in a Financial Times op-ed that looks at Google's press for rules favoring network neutrality. Hazlett argues that Google's "detour into public policy advocacy ought to be squared with its own business model," pointing out that innovation on the web requires market transactions and citing Google's recent acquisition of YouTube as an advantage over its rivals.
Google and the myth of an open net, Financial Times, October 11, 2006. By Thomas Hazlett.
Excerpt:
"The innovation that Google pioneered brought order to the web's universe by craftily ranking search responses. This was achieved by linking a better software idea - PageRank - to a brutally powerful computer network, incorporating more than 100,000 personal computers and a global fibre optic grid. The combination, which Mr Vise dubs "Googleware", answers search requests with lightning speed and impressive utility. Google turned a noun into a verb, revolutionising the online experience.
"Then the entrepreneurs at Google took a stab at public policy. The company became the leading champion of the hottest topic in technology policy over the past year, asserting that if web innovation such as theirs was to be retained, new laws were warranted. The specific fear was that internet service providers delivering last-mile broadband would shift their pricing strategies, charging not only end users for their connections but application vendors (say, search engines) for access to their customers. Worse, they might move into content and then favour their own web products over those of competitors. 'Network neutrality' rules were needed, Google argued, because the architecture of the internet demanded it. That structure relies on traffic flowing freely over a network that is 'open, end to end'.
"Yet the capitalist engine that powers the internet demands something completely different, as Google's acquisition of YouTube makes clear. That strategy is to integrate Google's search and advertising sales with YouTube's users, which could potentially impede access to one of the hottest technologies by other service providers. Jeremy Schoemaker, a net economy expert, sees the deal as superb for Google, 'merging to form the biggest video network' and winning a 'land-grab for publisher space'. Perhaps even better, it boxes out a rival: 'This move is a total "in your face" to Microsoft,' which had made YouTube an offer for an advertising agreement.
"The internet lurches forward in spasms of business model discovery, as when Google figured out how to auction off search-targeted advertising slots, leaving banner advertisements behind. Today, Google's absorption of its little video cousin is part of this jockeying for positions of competitive superiority. The internet really is not open - if, as Google hopes, it is doing it right."
Disagreeing with critics who are fearful Virginia's proposed constitutional amendment on marriage could damage domestic violence protections for the unmarried, Professor Ronald Rotunda stated that he does not believe a judge would deny protection to victims under the proposed amendment. Commenting in The Roanoke Times, Rotunda said, "The laws of assault and battery are still around." He added, "The intent is not to authorize domestic violence of anyone, whatever their sexual orientation is."
Does law affect domestic violence?, The Roanoke Times, October 10, 2006. By Pamela J. Podger and Erinn Hutkin.
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The United Nations will likely have South Korean Foreign Minister Ban Ki-moon as its new Secretary-General when Kofi Annan steps down after 10 years in that role predicts Professor Michael Krauss in a TCS Daily op-ed. "Since the UN Charter provides little guidance regarding the selection process and no provisions as to the qualifications of the organization's chief administrative officer, international consensus has settled on the 'lowest common denominator' candidate for the job--usually a mediocrity," writes Krauss.
Going South, TCS Daily, October 6, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"The military coup in Thailand has essentially torpedoed the prospects of Deputy Prime Minister Surakiart Sathirathai, who had been endorsed by the Association of Southeast Asian States (ASEAN) and purportedly backed by China. The man left standing, and current frontrunner for Secretary-General after the informal Security Council vote on Monday (which will be formalized next week), is South Korean Foreign Minister Ban Ki-moon. In Mr. Ban the world body will have one-upped Kofi Annan: whereas on the eve of his election the latter had been guilty of past dereliction, the former stands before the world community in 2006 complicit in ongoing horror.
"At a time when one of the major challenges to international security is Kim Jong-Il, the UN is set to get as its chief an appeaser of and apologist for the North Korean despot. From 1992 to 1995, Mr. Ban did a stand-up job as his country's representative to the Joint Nuclear Control Commission, established pursuant to the 'Joint Declaration of the Denuclearization of the Korean Peninsula' (a scrap of paper we now know the North Koreans never tried to honor). Then he was appointed national security advisor to the South Korean president. He obviously did well there too, and was promoted to the position of vice-minister of foreign affairs and trade just in time to be caught flat-footed by North Korea's 2002 admission that it had continued to pursue its nuclear program.
"Nevertheless, Ban's career prospered, especially after Roh Moo-hyun ascended to the South Korean presidency with promises of even friendlier relations with the North. Ban became the new president's foreign policy advisor and, since 2004, his foreign minister."
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Professor Ronald Rotunda argues for the use of the term "American" to describe one born or naturalized a U.S. citizen in an October 4, 2006, letter to the editor published in the Wall Street Journal, saying, "My parents came from Italy, but I was born here, and I consider myself to be American, not 'Italian-American.' How long do I have to live in this country before the L.A. Times will accept that I am American? My heritage is Italian, but I am as American as anyone who works for the L.A. Times."
Rotunda goes on to say, "My father is 91-years-old. When the VA doctor recently examined him (my father was a spy in World War II for the Americans), the doctor looked at his name and said, 'So, you are Italian-American.' 'No,' said my father, 'I am an American.'
Venture capitalists decide who saddles up, and profits decide who wins in the high tech world that Professor Thomas Hazlett,writing in the Financial Times,likens to the western frontier. Noting that venture capitalists spread their investments widely in hope of a few big successes, Hazlett maintains that the current "bubble" is far from a recreation of that preceding the bust of only a few years ago.
A web bubble blown out of proportion, Financial Times, October 3, 2006. By Thomas Hazlett.
Excerpt:
"The rush to embrace new web businesses may look like a knee-jerk response to, say, News Corp’s $580m grab of MySpace.com. But those reflexes are embedded in the DNA of the capitalist internet. The scent of profit trips instincts. Packs of investors are soon hunting for the next big kill.
"This primal urge co-ordinates enormous complexity. In pursuit of mutual advantage, investors and innovators mesh their interests by negotiating profit-sharing contracts. The buzz about web culture is that it promotes new and socially useful forms of sharing. These observations are correct in the sense that corporations organise common shareholders to pool their assets and bond with labour and management.
"But they also play down the motivation behind the emergent culture: profit-seeking. Never was a social system so comfortable with science, technology and change. Nowhere else have people so naturally co-operated in seizing the opportunities presented by human ingenuity. Sampling alternative business models, services and products, the capitalist continuously calculates prospects for making markets anew. This system works by trial and error and amid the confusion some competitors will find remarkable success."
Read the article
Columnist Steve Chapman writes that while a Congressional effort to give the District of Columbia a voting member in the U.S. House of Representatives is long overdue, it is also likely unconstitutional, as the Constitution bars Congress from creating new House seats at will. Proponents of the legislation claim that “because the Constitution gives it the authority ‘to exercise exclusive legislation in all cases whatsoever’ over the district, they argued, Congress is free to give it a House member.
“But federal courts have ruled to the contrary. And, as George Mason University law professor Ronald Rotunda points out, that passage gives Congress the same authority over all areas obtained by the federal government ‘for the erection of forts, magazines, arsenals, dock-yards and other needful buildings.’”
No Right, 2 Wrongs, The Chicago Tribune, October 1, 2006. By Steve Chapman.
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Recently passed legislation in Maryland that would lower electric rates for consumers could face a court challenge if Baltimore Gas and Electric parent company Constellation Energy Group's proposed merger with a Florida utility fails. Constellation is questioning the new law, which bars the company from collecting fees it was previously allowed to charge consumers with the hope of stemming skyrocketing electric rates. Opponents of the bill note that the fee was part of a previous agreement between Constellation and the state and can't be eliminated by lawmakers without due process. The article cites Mason constitutional law expert Ronald Rotunda:
"'The legislature cannot impair contracts, and an agreement with the state is a contract,' said Ron Rotunda, a professor of constitutional law at George Mason University.
"Rotunda said state lawmakers suffer from a conflict of interest when they seek to void contracts that they previously agreed to honor. Courts take a hard look at such cases, he said. Constellation also may be able to argue that it was denied due process when lawmakers sought to reduce BGE's rates."
CEG May Contest Electric Rate Cut, The Baltimore Sun, October 1, 2006. By Paul Adams.
Read the article
September 2006
Professor David Bernstein warns of the ongoing presence of "junk science" in state courts in a recent Wall Street Journal op-ed. Bernstein urges state judges to follow the lead of their federal counterparts and use the tools at their disposal to eradicate junk science from their courtrooms.
Quackspertise, The Wall Street Journal, September 30, 2006. By David E. Bernstein.
Excerpt:
"Plaintiffs with personal injury claims backed by dubious (or worse) expert testimony have thus become ever more determined to keep their lawsuits in state courts -- where, naturally, plaintiff attorneys have fought every effort to adopt Daubert and Rule 702. The trial lawyers have inertia on their side; and Daubert's reception has been particularly unfriendly in some of the most populous and influential states. California, Florida, Illinois, New York, New Jersey and Pennsylvania, for example, have all refused to follow the federal lead.
"The result is a hodgepodge. At one extreme, some states such as Wisconsin apply a qualifications-only test, meaning that any marginally qualified expert can testify to just about anything without meaningful judicial oversight. Most other non-Daubert states, including New York, apply the older "general acceptance" test (Frye v. U.S.), which requires that expert testimony be generally accepted in the relevant scientific community. Unfortunately, in most jurisdictions Frye is not a significant barrier to the admissibility of junk science."
In response to the controversy swirling around remarks made by Pope Benedict
XVI at a September 12 university address, Professor Michael Krauss
suggests
that Benedict has "introduced the world audience to a spectacle
of irony that Sophocles would have trouble besting," in a TCS
Daily op-ed.
Admit We're Peaceful…or Else, TCS Daily, September
27, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"Addressing a packed St. Peter's Square during his weekly
general audience last Wednesday, Pope Benedict XVI revisited his September
12 lecture to academics at the University
of Regensburg. The
pontiff, a celebrated university professor, explained that his controversial
reference to the an episode from the life of the Byzantine Emperor Manuel II
Palaiologos was a pedagogical device 'to introduce the audience to the drama
and the actuality of the topic...[of] the problem of the relationship between
religion and violence.'
"While pundits spun this latest address as another papal apology,
one cannot help but wonder if the erudite Benedict was not scoring another
point at the expense of his bien pensant critics. These, including the
editorial board of The New York Times, condemned his Regensburg speech as 'tragic
and dangerous' and demanded a 'deep and persuasive apology' for the 'pain' they
caused. The precise word the pope used in his St. Peter's Square address,
delivered in Italian, was drammaticità. This not only means 'drama,' but also 'dramatic
power' in the theatrical sense of tragic or dramatic irony—as when the words
and actions of characters belie the real situation, which the spectators fully
realize.
"Pope Benedict concluded his reflections on his Regensburg remarks by noting: 'I trust that after the
initial reaction, my words at the University
of Regensburg can
constitute an impulse and encouragement toward positive, even self-critical
dialogue both among religions and between modern reason and Christian faith.'
Moderate Muslims as well as Jews and Christians should pray that on this count,
his words do not foretell more dramatic irony."
Professor Horace Cooper writes of recent scientific progress in a method of stem cell research that avoids much of the controversy associated with that type of research and holds promise for breakthroughs in treatment of major diseases.
Progress in stem-cell R&D: Techniques do not destroy embryos, Washington Times, September 22, 2006. By Horace Cooper.
Excerpt:
"The firm has created what it dubs "primecells." They have managed to completely overwhelm the existing ethical and scientific debate involving stem cells by eliminating the controversies involving either the creation or destruction of human life forms. And perhaps most importantly, they are demonstrating that their techniques work. These primecells are the first stem cells capable of transforming into any cell type found in the body.
"Their techniques do not involve the destruction of embryos, nor does it need or rely upon the creation of clones. Instead their breakthrough involves the use of adult-derived stem cells. And they have discovered how to transform these primecells into almost any cell type found in the body. PrimeCell's technique is to use the cells that normally become sperm and egg the most protected, genetically pure and most potent adult stem-cell source in the body to produce their primecells.
"And ingeniously, the cell lines are "autologous" cell lines which come from you and are transplanted back into you for treatment. Imagine no longer worrying about the use of immunosuppressant drugs (which prevent the body from rejecting transplanted organs). Today these drugs must be taken for years or even for a lifetime even though they inhibit the body's natural ability to fight off disease. Since primecells come from you and then are used on you there is a remarkably reduced likelihood of infection following transplantation and there is no risk of rejection.
"But the true breakthrough is that the primecells are pluripotent meaning they can develop into any of the three major tissue types: endoderm (interior gut lining, mesoderm (muscle, bone, blood) and ectoderm (epidermal tissues and nervous system). Thus these cells could be the basis for cellular replacement therapies to potentially treat Alzheimer's, heart disease, Parkinson's, diabetes, various autoimmune deiseases and some forms of cancer, among other diseases."
Transferring a northern extremity of the Golan known as Shebaa Farms to Lebanon as a result of Hezbollah pressure to change the 2000 UN "Blue Line" border demarcation between Israel and Lebanon would result in a political precedent with harmful implications, according to Professor Michael Krauss, who discusses the issue in a TCS Daily op-ed.
Down on the Farms, TCS Daily, September 19, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"When then Prime Minister Ehud Barak withdrew Israeli troops from Lebanon in 2000, the UN painstakingly demarcated the border between Israel and Lebanon -- for the first time ever -- in consultation with authorities on both sides. This international border became known as the 'Blue Line.' During the entire exhaustive process, Hezbollah did not make any claim to Shebaa Farms (known to Israelis as Mount Dov, after an Israeli captain killed by Hezbollah terrorists at that location in 1970). Only after the process was finished, that is, after Israel and Lebanon, with UN sanction, agreed that the Blue Line had been properly drawn north of Shebaa Farms, did Hezbollah claim this territory for Lebanon.
"The pretext was clear: after 2000, 'liberating' Shebaa Farms and 'reuniting' the area with Lebanon became Hezbollah's excuse for holding onto its weapons in defiance of numerous UN resolutions; after other militias in Lebanon had disarmed following the civil war. Many, if not most, Lebanese recognized this as bogus propaganda. But Hezbollah and its Iranian and Syrian patrons needed (and still need) some way, any way, to justify keeping these terrorist brigades around."
Read the article
Professor Peter Berkowitz has reviewed Richard A. Posner's Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 208 pp.) in the September 18, 2006, edition of The Weekly Standard.
Freedom at War; Civil liberties in the age of terrorism, The Weekly Standard, September 18, 2006. By Peter Berkowitz.
Excerpt:
"Posner's writings can give the disconcerting impression that sufficiently clever judges are free to reach whatever results they like. That is not his argument here. He recognizes that many legal controversies are resolved by straightforward application of the law. But in hard cases, where traditional legal materials--constitutional text, history, structure, and the holdings of previous cases--fail to yield a single lawful answer, justices ought to craft legal rules that serve the nation's moral and political requirements. Or rather, Posner believes that justices should do this more deliberately and forthrightly.
"In reality, he argues, in the difficult and divisive constitutional cases, the very ones to which the public pays the most attention and which appear to have the largest political implications, justices reach their decision in much the same way that ordinary citizens make nonlegal decisions, 'by balancing the anticipated consequences of alternative outcomes and picking the one that creates the greatest preponderence of good over bad effects.'"
Read the review
Federal Communication Commission Chairman Kevin Martin's early attempts to examine the issue of media ownership deregulation may be reined in by the effects of the Administrative Procedures Act, which requires agencies to follow uniform drafting procedures and to notify the public and solicit comment prior to making changes to existing regulations.
In following the issue, The Daily Deal solicited the comments of Professor Sally Katzen, writing that "George Mason University School of Law Professor Sally Katzen says the FCC's vague proposals typically resemble notices of inquiry, which most agencies use to initiate basic information about a subject long before there's any plan to impose a new rule. 'If, as some people are arguing, the agency has not given information about what it intends to do, then the affected parties could claim they have not had an opportunity for meaningful comment,' she says."
Process matters, The Daily Deal, September 18, 2006. By Ron Orol.
A la carte cable TV doesn't serve consumers best says Professor Thomas Hazlett in an editorial commentary appearing in Barron's. Hazlett points out that families pay less for the individual cable channels they like because standard packaging practices bundle a wide array of program choices at a lower cost than the consumer would pay for selected channels alone. "The beauty of bundling is that it allows operators to set one price for one big package, receiving payments from diverse individuals who subscribe for completely different reasons. That allows distinct tastes to be served, network costs to be shared and costs lowered for all," says Professor Hazlett.
Everything's on the Menu, Barron's, September 18, 2006. By Thomas W. Hazlett.
Excerpt:
"Cable-TV channels aren't marketed one-by-one like loaves of bread for a crucial reason. Once investors sink the capital to physically create cable systems (or launch satellites) and buy program channels, it costs nothing to deliver an extra channel to a given subscriber. Indeed, it costs more not to, posing a nightmare for subscription managers. And the reason why both established and upstart cable networks oppose a la carte rules is that they require cable channels to spend millions in marketing just to make their content available for viewers.
"The market rationally avoids this expense, supplying big bundles of diverse content and letting customers pick and choose with their remote controls. If regulation forced the industry to absorb the cost of a la carte, they would have less money to spend on developing new programming."
Professor Michael Krauss was a participant in a Hudson Institute-sponsored symposium entitled The UN and Beyond: United Democratic Nations. The conference, held at the Union League Club in New York City on September 11, 2006, offered an examination of the United Nations and its effectiveness in today's world and featured panels and presentations by national and international leaders, journalists, and policy experts.
Krauss was a presenter in a panel discussion called Promise and Reality at the UN: Terrorism, Peacekeeping and Human Rights. The panel was chaired by Brian Kennedy, president of the Claremont Institute (CA), and included, in addition to Krauss, Ayaan Hirsi Ali, terrorism expert and former member of the Dutch Parliament; Pedro Sanjuan, former director of the UN Political Affairs Division and U.S. Assistant Director of the Arms Control and Disarmament Agency; and Walid Phares, terrorism analyst for NBC.
Featured speakers at the conference included Ambassador John Bolton, U.S. Permanent Representative to the UN; Natan Sharansky, a member of the Israeli Parliament (Knesset); William Bennett, Former U.S. Secretary of Education; and Norman Podhoretz, author and recipient of the Presidential Medal of Freedom. Participants at the conference also heard a video address by former Prime Minister Jose Maria Aznar of Spain.
Professor Peter Berkowitz is the author of two book reviews appearing in the Hoover Institution's Policy Review.
Berkowitz first reviews Will Marshall's With All Our Might: A Progressive Strategy for Defeating Jihadism and Defending Liberty (Rowman and Littlefield, 252 pages), which presents essays by various writers on "the war of ideas, global terrorism, military culture, the health of the transatlantic alliance, the reform of the United Nations, the economic foundations of foreign policy, and the new configuration of ideas and sentiments among the rising generation in the Democratic Party." Berkowitz continues,"The chapters are united by the conviction that American foreign policy is in a state of crisis and that progressivism provides a stand-alone and self-sufficient perspective that generates a set overarching foreign policy imperatives and a cluster of specific policies."
Reviewing Peter Beinart's The Good Fight: Why Liberals--and Only Liberals--Can Win the War on Terror and Make America Great Again (Harper Collins, 288 pages), Berkowitz states that Beinart "contends that one foreign policy school in America, and one alone, contains the whole truth about how to wage the war on terror. And one party, and one alone, provides the legitimate home for, and serves as the rightful guardian of, the principles and the policies that should guide America in its dealings with other nations." Berkowitz responds to that, saying, "That a partisan Democrat--or partisan Republican--would make such a claim for his party is hardly surprising. But that Beinart makes this chauvinistic claim in the name of 'liberalism's best traditions,' which surely includes the insistence upon the thoughtful appreciation of both the limits of one's own perspective and the partial truth in the perspective of one's rivals, is further testimony to the estrangement from liberalism's best traditions that afflicts today's Democrats."
War-Torn Democrats, Policy Review, August 1, 2006. By Peter Berkowitz.
Read the reviews
The Darfur region of the Sudan is standing on the brink of almost certain disaster as African Union forces prepare to leave the area in a matter of weeks reports Professor Michael Krauss in a TCS Daily op-ed, pointing to the build-up of Sudanese Armed Forces in the region and the lack of cooperation by Sudanese President Omar al-Bashir toward peacekeeping and diplomatic efforts to avert further violence.
Countdown to Genocide, TCS Daily, September 5, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"But Sudan seems intent on accelerating the massacre in Darfur: the government has actually proposed that the African Union troops depart when their mandate expires, to be replaced by 10,000 troops from the same Sudanese army that created the Janjaweed in the first place. Thus is set in place the most massive calculated campaign of slaughter, rape, and displacement since the Rwandan genocide (a slaughter that itself could have been mitigated had the then-head of UN peacekeeping, one Kofi Annan, not hamstrung General Roméo Dallaire, commander of the blue helmets in the benighted Central African country). By best estimates, at least 250,000 men, women, and children have already been killed in Darfur. At least another 2.5 million people whose homes have been destroyed have taken shelter in miserable camps partially under the watch of the African Union military that will be withdrawing. In these places -- when they are not attacked by Janjaweed -- they die from disease and slow starvation as they await mass annihilation after the African Union troops leave. As for other volunteer assistants, the murder of an aid worker with the International Red Cross -- the first ICRC staff member to meet that fate in Darfur -- sends a not-too-subtle message about the fate Bashir and his cohorts have in mind for humanitarian workers. "
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Dartmouth College has reacted to the recent elections of independent candidates to its governing Board of Trustees by proposing a new constitution that would attempt to prevent such elections of outsiders. The college's action comes on the heels of elections in which several candidates, including Professor Todd Zywicki of Mason Law, bypassed the official nomination process and were able to place their names on the ballot through collection of alumni signatures, later winning seats on the Board of Trustees.
Dissidents at Dartmouth, The Wall Street Journal (Review & Outlook), September 1, 2006.
Excerpt:
"The constitution is promoted as a measure to increase fairness and transparency, but in reality it would do neither. While the Alumni Council--already a bureaucratic labyrinth--is to be reorganized, it would actually become less representative, with more unelected positions with more power to pick Trustees than under the present arrangement. The revisions would also increase set-aside seats for groups defined by race or sexual orientation.
"As if to redouble the throbbing of the tell-tale heart, the alumni executives recently 'postponed' the elections for their own offices, in violation of their own bylaws, until after the constitution is given an up-or-down vote by the full alumni body. If it passes, the maneuver would entrench the leadership as currently comprised until at least 2009. Alumni would be left without democratically elected executives, let alone a say in Trustee nominations.
"And so a pattern emerges at Dartmouth, one interminably replicated on other campuses: The academic establishment wants to consolidate its authority and exclude those who might deviate from the party line. But in a democracy, the results are not supposed to be foreordained."
August 2006
German cable systems have lagged in making the digital upgrades required for high-speed service, and that outcome is directly attributable to overregulation, according to Professor Thomas Hazlett in a Wall Street Journal article written following the recent success of EU telecommunications regulators in imposing stricter mandates on Deutsche Telekom. "If regulators seek to promote effective market rivalry, unleashing cable networks to comete with telephone carriers would be the efficient place to start," says Hazlett.
Germany's Cable Problem, The Wall Street Journal Online, August 30, 2006. By Thomas W. Hazlett.
Excerpt:
"Germany is the object of the EU's scorn for falling behind in the broadband race. At one level, this is true: Broadband penetration as of December 2005 was 12.6 per 100 persons in Germany, well below OECD leaders like Korea (25.4) and the Netherlands (25.3), and toward the bottom of Western European countries. But the performance laggard is not DSL, which the EU regulators now seek to attack with more stringent mandates, but cable-modem service. The leading broadband markets feature important cable versus telephone rivalries in data service. Yet Germany -- despite having been wired nationwide for cable television years ago -- has just 0.3 cable modem subscribers per 100 population, by far the lowest total for any country with nationwide cable infrastructure."
Europe faces a defining moment in the aftermath of recent violence in the Mideast as it now must muster forces and will to carry out UN directives for the disarmament of Lebanese and non-Lebanese militias, says Professor Michael Krauss in an op-ed appearing in TCS Daily.
Europe's Munich Moment, TCS Daily, August 29, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"Underlying Europe's amemic military laisser-aller is the problem of moral will. Even if one does not embrace the thesis of Bat Ye'or, whose Eurabia: The Euro-Arab Axis nonetheless makes a compelling read, the gradual transformation of European morale since the 1970s is striking. Leftist European political and intellectual elites subtly, sometimes openly, embrace the same radicals in the Levant who imperil Europeans as in this month's barely-foiled airline bombing plan. Bruce Bawer, no conservative reactionary, eloquently summarized the stakes in his recent book While Europe Slept: How Radical Islam is Destroying the West from Within: 'Now, once again, Europe is at a Weimar moment. Poised between the aggressive reality of Islamism and the danger of an incipient native neo-fascism, it is governed by an elite, many of whose members, even now, remain determined not to face reality.'"
Read the article
Israel is not unique in basing immigration and citizenship policy at least partly on ethnic heritage, according to Professor David Bernstein's op-ed in The Wall Street Journal's OpinionJournal. Bernstein points out that unlike many "progressive" nations such as Norway, Denmark, and Iceland that have official religions, Israel does not recognize Judaism as an official state religion.
Unasked Questions--Does Japan have a right to exist as a Japanese state?, OpinionJournal, August 24, 2006. By David E. Bernstein.
Excerpt:
"One's liberal, progressive or libertarian hackles can easily be raised at Israel's citizenship policies. Why should ethnic background entitle one to citizenship? On the other hand, Israel's defenders would argue that given that the Jews have been the subject of massive state and private violence over the past few centuries, including one attempted genocide (by Hitler) and another one that was averted only by Stalin's timely death, Jews need a homeland/refuge where they can go with automatic citizenship rights.
"Whatever side you take on that debate, the more interesting question is why the question of basing citizenship (in part) of ethnic descent only calls the right of Israel to exist into question.
"My correspondent was unaware of any other countries that have an overt ethnic identity, but, judging by immigration laws, there are quite a few, and with a few exceptions (Armenia and Germany), their discriminatory immigration policies exist, unlike Israel's, without an justification resulting from persecution of that group.
"For example, according to Wikipedia: 'Japanese citizenship is conferred jus sanguinis, and monolingual Japanese-speaking minorities often reside in Japan for generations under permanent residency status without acquiring citizenship in their country of birth.' Why does Japan have the right to exist as a Japanese state? Has this question ever been asked?"
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Writing in a TCS Daily op-ed, Professor Michael Krauss examines the diplomatic handling of the post-conflict in Lebanon and finds it wanting from the standpoints of both our national interests and principles, taking particular exception to comments by Secretary of State Condoleeza Rice that "gave voice to a perilous preference of process over policy."
Beyond Farce, TCS Daily, August 24, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"Rice seems almost content to let the farcical scenario orchestrated at Turtle Bay -- including the suggestion that the IDF commando raid was a threat to peace -- play itself out. Unfortunately, this time the victims will not only include Israeli and Lebanese, but also the tattered diplomatic credibility of the United States. Our nation must stand on principle and insist, even when the UN itself won't, that promises are promises and rules are rules -- even when the promises are made by Arab states.
"Currently Israel is the canary in the coal mine. It fights mano a mano a battle that the entire West, diplomatic denials notwithstanding, is waging at a distance against terrorists and their state sponsors. If our foes sense that our will to fight is gone and that we are ready to accept lower standards for that region of the world, or if our allies sense a weakening of our commitment, then truly we are at the edge of the abyss."
Read the article
The FCC's recent efforts to seek comment on reverse-auction competitive bidding as a method of achieving a less costly subsidy system for telecom services to rural areas is an important step forward, according to top managers of Washington, D.C., think tank the Progress & Freedom Foundation, citing research by Professor Thomas Hazlett on universal service telephone subsidies.
Think tank: USF 'Reverse Auction' Asks the Right Questions, Telecom Policy Report, August 21, 2006.
Excerpt:
"'Phone carriers compete to become the 'provider of last resort' in areas where regulators deem local services (without subsidies) insufficient, bidding a price (paid by the government) to supply such services,' Hazlett says in his TSC-sponsored work. 'Firms should be free to adopt any technology or network architecture, promoting innovation, and the effect of rivalry would push subsidy levels down to the actual cost of service, saving taxpayers billions of dollars. The extreme inefficiency of the the existing universal-service system makes it relatively easy to devise reforms that achieve generous social benefits. Policies to deliver these savings are the superior alternative to tax increases and would be welcomed by the millions of users of U.S. telecom networks.'"
C-SPAN's "Washington Journal" featured Professor
Thomas Hazlett, former FCC chief economist, in an hour-long segment focused on
telecommunications issues. Hazlett responded to questions called in from
around the country on various telecomm topics, including net neutrality, the
Bush Administration's record on telecomm regulation and consumer choice
in telecomm services.
Excerpt: "The goal of progressive public policy is to get past some of the
historical mistakes in restricting competition and restricting access to the
airwaves." "If customers want access to better entertainment and more
information sources, there's going to be a price tag, and the competitive
market, in terms of allowing efficient rivals to offer various options and
innovate around new technologies, is certainly the proven method for getting
low-cost access to Americans." click here and select
August 18 from "Recent Programs." Prof. Hazlett's segment
begins at 2:01:01.
This week's cessation of hostilities between Israel and Lebanon is simply the close of an act and a temporary respite in an ongoing struggle between those nations, says Professor Michael Krauss, calling it "the intermission after the first act of an ongoing drama."
Terrorists Win-What Next?, TCS Daily, August 15, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"When the hostilities resume this time 'round, assuming that the Israelis have in the interim assessed their conduct during Litani II and adapted accordingly, there will be some notable differences to the status ante bellum of July 12, 2006.
"First, Hezbollah will no longer have the strategic advantage of surprise. The terrorist group's choice of weaponry in the current conflict has betrayed its Iranian and Syrian quartermasters and exposed its infrastructure within Lebanon. Absent some deadly escalation, which, of course, cannot be ruled out, the professional officer corps of the IDF will be better prepared to quickly deal with the Lebanese militants and their backers on the battlefield.
"Second, while Nasrallah has succeeded in asserting his domination of the weak Lebanese government, he has also shown it for what it is. Next time 'round, neither Lebanon's Syrian lackey of a president, Émile Lahoud, nor its terrified prime minister, Fouad Siniora, will be able to hide behind the pretence of a distinction between themselves and the terrorist group they have coddled. Everyone now knows that both men answer to the Hezbollah leader and that the "Cedar Revolution" met its match in the conjuncture of the political cynicism of Lebanon's ruling elites and the power of the Shi'a militants.
"Third, while no one seriously expects the "new and improved" UNIFIL to actually disarm Hezbollah -- a step that was already mandated by Resolution 1559 two years ago -- the presence of the international peacekeepers will nonetheless complicate the terrorist group's efforts to rebuild forces that have been seriously degraded by the IDF in recent days. The Hezbollah that next faces off with Israel will do so absent senior commanders whose deaths the group has thus far concealed as well as those who, no doubt, the long arm of Israeli justice will reach over the coming weeks and months."
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The eminent domain decision issued by the Ohio Supreme Court in Norwood v. Horney may be the most important since the Supreme Court ruling in Kelo v. New London, writes Professor Ilya Somin in an August 2006 issue of Legal Times. Somin goes on to say that eminent domain abuse "cannot be effectively addressed without limiting blight condemnations, which have caused more harm than any other kind of taking."
Blight Sweet Blight, Legal Times, August 14, 2006. by Ilya Somin.
Excerpt:
"Two states (Florida and Utah) have banned blight condemnations entirely. This approach may be the best solution because condemnation is rarely the best way to eliminate blight. State and local governments have many other tools for promoting economic growth in poor areas. Alternatives include tax breaks, deregulation, transfer of abandoned property to new owners, and enforcement of laws against buildings that cause public nuisances, spread disease, or become safety hazards.
"Indeed, condemnation may actually impede the elimination of blight by rendering property rights insecure. Most development economists now agree that strong protection for property rights is a key prerequisite for economic growth in poor areas. Owners who fear the loss of their rights are less likely to develop their property or establish businessess. The threat of blight condemnation thus may well deter productive economic activity in poor neighborhoods more than it stimulates it."
Read the op-ed
In The Wall Street Journal's RULE OF LAW Column, Thomas Hazlett, professor of law and economics and a former chief economist of the FCC, reviews the actual marketplace results of "open access" rules in broadband markets, finding that consumers reject the efficiency argument for Internet regulation.
Broadbandits, The Wall Street Journal, August 12, 2006. By Thomas W. Hazlett.
Excerpt:
"Average DSL rates, according to Kagan Research, dropped from $39.51 per month in 2002 to $34.72 in 2003. Telcos also expanded the scope, capacity and quality of advanced networks, even improving its endemic customer relations problems.
"Consumers responded. DSL, holding just 35% market share in 2002, pulled even with cable among new subscribers in 2004. Leichtman Research reports that "DSL providers have added more broadband subscribers than cable providers in each of the last six quarters," and that overall, "the first quarter of 2006 was the best ever for both DSL and cable broadband providers." Unleashed from open access, DSL is attracting customers like never before -- and the overall growth of broadband subscribers (DSL and cable) is notably higher.
"In September 2004 the FCC also eliminated network-sharing obligations for phone companies' fiber optic facilities, and deregulation appears to have triggered more investment. In the first quarter of 2006, about 100,000 of Verizon's 541,000 new 'DSL' households actually received lightning fast fiber data connections. The bottom line: Since DSL began to shed its access obligations, users have flocked to the service. By the first quarter of 2006, DSL's subscribership has increased some 60% above its pre-2003 growth trend under access mandates.
"Commissioner Copps was spot on in recommending a market test for deregulation of Internet access. If policy makers heed the results, they will reject the U-turn to Internet regulation via net neutrality."
Writing in the National Review Online in response to recent action by the ABA's House of Delegates denouncing the use of presidential signing statements, Professors Craig S. Lerner and Nelson Lund offer a proposal to "apply the same standard of interpretative plausibility to the president's signing statements and to those found in the opinions of the Supreme Court."
ABAndoning the Constitution, National Review Online, August 10, 2006. By Craig S. Lerner and Nelson Lund.
Excerpt:
"Ironically, the same ABA that now condemns supposedly broad interpretations of executive power was singing a different tune 20 years ago, in a notorious case that involved the ABA itself. A public-interest group requested information about the ABA's internal deliberations about federal judicial nominees. A statute guaranteed such access to any group "utilized by the President," and everyone acknowledged that the President used the ABA to vet prospective judicial nominees.
"An easy case? Not according to the Supreme Court. The Court, at the urging of the ABA, noted that the Constitution provides that the President "shall nominate and ...shall appoint" Supreme Court justices. Affording public access to the ABA's internal deliberations about judicial nominees might run afoul of this executive power (the Court wasn't sure on this point), and the Court therefore "construed" the statute in a way that avoided any possible unconstitutionality. The Court concluded that "utilize" could mean something other than "use," though the Court never bothered to explain what other meaning the word could have.
"The ABA was grateful that the Court accepted its argument that the words of a statute should be mangled beyond recognition to avoid any possible unconstitutionality, even if this semantic torture meant a glorified vision of executive power that conveniently sheltered the ABA's own deliberations from public scrutiny. George Bush has never come close to interpreting any statute in the ludicrous way that the ABA and Supreme Court did in this case."
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Iranian involvement in the violence between Lebanon and Israel is undeniable, writes Professor Michael Krauss in TCS Daily, citing news of Iran's apparent decision to charge known terrorist leader Imad Mughniyeh with the supervision of Hezbollah operations in Lebanon. Krauss calls for U.S. support of "Israel's belatedly vigorous self-defense against Hezbollah" and warns against efforts to effect a ceasefire at this time.
Hate to Say We Told You So, But..., TCS Daily, August 8, 2006. By Michael I. Krauss and J. Peter Pham.
Excerpt:
"Accordingly, even more than when we wrote our pre-war apologia for the elimination of Hezbollah's missile threat, Israel's fight is America's fight. If the United States government insists on a ceasefire at the point (as Secretary of State Rice appears to be doing by supporting a flawed United Nations resolution), it will not only undermine Israel's security, but will betray the principles of the civilized world in general and our own national interests in particular...Iran has, with impunity, been fanning sectarian tensions in neighboring Iraq for months, costing America both lives and treasure. If no consequences follow from the far more direct aggression of Iran's Hezbollah proxy far from home, will the Tehran regime suddenly relent from meddling in Baghdad?"
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Proposals to transfer to Lebanon the Sheba Farms area of the Golan Heights in exchange for a stop to Hezbollah's rocket campaign violate a bedrock norm of international law, according to Professor Eugene Kontorovich in an op-ed appearing in the New York Sun. Kontorovich argues that the proposals allowing Lebanon to expand its borders through the illegal use of force violate the non-acquisition principle consistently affirmed by the U.N. Security Council, the International Court of Justice, and the U.S. itself.
Naked Aggression, The New York Sun, August 7, 2006. By Eugene Kontorovich.
Excerpt:
"No one in the international community believes Lebanon has a legitimate claim to the Sheba Farms, known to Israelis as Har Dov. It has never been within Lebanon's internationally recognized borders. It was under Syrian control until 1967, when Israel took it in the Six Day War. Israel entered southern Lebanon in 1982; when it withdrew in 2000, the Security Council certified that Israel no longer occupied a single inch of Lebanon. However, the Lebanese government and Hezbollah were not satisfied, raising what Secretary General Kofi Annan described as an entirely "new claim": that Sheba Farms was also Lebanese territory. After looking into the matter, Annan and the Security Council unanimously concluded that the area was not Lebanese and never had been.
"Enlarging Lebanon's boundaries to encompass the Sheba Farms is one of Hezbollah's stated reasons for its abduction of Israeli soldiers and bombardment of Israeli cities. Thus if the conflict ends with Lebanon gaining the land, it will have been as the result of aggressive force. It will have succeed in doing what Saddam Hussein failed to do in Kuwait.
"...Hezbollah's contempt for international law shocks no one. What is unsettling is the U.S. and the U.N. lending their credibility to this gross assault on international norms which, if it succeeds, would be the first time in decades that a nation has successfully enlarged its internationally recognized borders through naked aggression."
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The case for prosecuting Hezbollah leader Hassan Nasrallah as an international criminal is "open-and-shut," according to Professor Michael Krauss in a TCS Daily essay in which he argues for an objective application of the standards of jurisprudence of recent international criminal tribunals to Nasrallah for his actions in violation of international humanitarian law.
"No Justice, No Peace?," TCS Daily, August 4, 2006. By J. Peter Pham and Michael I. Krauss.
Excerpt:
"On the other hand, it is striking that these same human rights groups are largely silent when it comes to demanding accountability for rights violations in the Middle East. Since we find implausible the idea that rights advocates somehow regard lives in the Levant as worth less than lives elsewhere, we query the lack of a call for international criminal prosecution for crimes against humanity. We believe the disdain shown for outrages in that region springs from a reluctance to publicize what they know will be the result of any objective, independent inquiry into the region: the systematic exposure of the so-called Arab resistance for what it is, a multinational organized criminal enterprise that flaunts the laws of civilized nations. Such publicity must not be tolerated.
"Accordingly, groups like Human Rights Watch, which issues press releases accusing Israel of war crimes following the death of civilians in Qana, mentions Hezbollah's offenses (which of course include using the Qana residents as unwilling pawns) only as an afterthought. In so doing they knowingly sacrifice consistency and integrity for "relevance" (ephemeral publicity) and "solidarity" (political correctness)."
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Competition from telecom providers' entry into the cable market under a bill working its way through the California Legislature may not provide cost savings to consumers, according to Professor Thomas Hazlett. Rather, Hazlett sees benefit to subscribers from increased programming options and other service values.
A lower cable bill? Don't count on it, The Orange County Register, August 1, 2006. By Brian Joseph.
Excerpt:
"Telecom executives already have said they're not interested in competing with cable companies on price, focusing instead on customer service, offering more channels and bundling cable with telephone and Internet services.
"The result, experts and opponents say, would be more cable providers and more choices in the kind of cable packages you receive, but consumer prices wouldn't go down.
"'Their intent is not to cut prices. Their intent is to make money on the deal,' said Thomas Hazlett, a law professor at George Mason University in Fairfax, Va., who has studied the cable industry for more than 20 years.
"Hazlett supports telecoms entering the cable market but said, 'The best way to come in is not with a price war. It's to come in with twice as many channels.'
"He says that's still a win for consumers."
Read the article
July 2006
A Washington Times article concerning a bankruptcy trustee's actions in a case involving Anthony Rodham, brother of Senator Hillary Rodham Clinton, featured comments of Professor Todd Zywicki.
Hillary's brother barred from bank account; Bankruptcy trustee seeks repayment over $100,000, The Washington Times, July 27, 2006. By Jim McElhatton.
Excerpt:
"Todd J. Zywicki, a bankruptcy specialist and law professor at George Mason University, said the consent order isn't unusual in cases in which a bankruptcy trustee is trying collect on a judgment.
"'It's standard debt collection to be able to freeze a bank account to protect the garnishment rights,' he said. 'Basically, the bankruptcy can reach out and grab the assets wherever they are.'"
UNIFIL has become "a very convenient and high-profile human shield for terrorists," according to Professor Michael Krauss in a National Review Online article dealing with current international efforts to end the conflict in southern Lebanon.
The U.N.'s Human Shields, National Review Online, July 25, 2006. By Michael I. Krauss and J. Peter Pham.
Excerpt:
"When Israeli forces completed their pullout from Lebanon in early 2000, Foreign Minister David Levy reminded Annan that it was now up to Lebanon, in collaboration with UNIFIL, to live up to their obligations to deploy the Lebanese army in the south and to secure its border. That the present conflict is occurring is proof positive of the failure of the Lebanese government and of UNIFIL to even attempt to fulfill these obligations. The arsenal and forces that Hezbollah has amassed on Israel’s northern frontier were assembled under the eyes of UNIFIL. In fact, accusing the U.N. troops of “failure” would be inaccurate; 'enabler' might be a more apt description."
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Speaking to a gathering of African officials at Clark University, Mason Law professor and economist Gordon Tullock focused on the need for stable government in African nations struggling economically since gaining their independence, claiming that stable governance is needed more than democracy or education in order for those nations to advance.
Tullock spoke to a group of 10 officials from various African nations as part of the first African Outreach Program sponsored by Clark University's Institute for Economic Policy Studies. The two-week program entitled "Democracy, Liberty and Development" explores new solutions to the economic challenges faced by developing nations in Africa.
Africa open for business: Clark speaker says stability needed more than democracy, Worcester Telegram & Gazette (MA), July 22, 2006. By Martin Luttrell.
Excerpt:
"During his presentation, the sometimes-controversial Mr. Tullock said that African nations, while generally poor, are seeing average annual economic growth of about 2 percent, roughly equivalent to the United States in 1830.
"'They would like to see more,' he said. 'They are not doing as well as they did before gaining their independence.'
"He said the European powers that colonized virtually all of Africa created small groups of educated citizens, most of which are currently in power. But corruption and unstable governments have undermined economic growth, and even South Africa, a democracy with a relatively strong economy, runs the risk of shifting from democracy to a monarchy, he said. Most stable African governments are dependent on a charismatic leader, he said.
"In response to questions on how important democracy and education are to economic growth, he alluded to China's strong economy and the fact that most of the world's electronic devices are produced by Chinese workers who are nearly illiterate."
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Rapidly increasing taxes to support the universal service fund, intended to pay for higher costs of serving rural areas, are having the unintended effect of forcing some low-income citizens to eliminate current phone service, says Professor Thomas Hazlett in an economic analysis prepared for the Seniors Coalition, a senior citizen advocacy group.
"It's perverse when shifting tax money around for the universal service fund results in more people leaving the network than joining it," said Hazlett in a Chicago Tribune article.
Wireless phones cheaper for rural areas, study says, Chicago Tribune, July 20, 2006. By Jon Van.
Excerpt:
"Hazlett said that reforming the current universal service fund is very difficult because rural phone companies that benefit directly from the plan have political clout in Congress. They beat back efforts in the Senate last month to impose a cap on expenditures.
"Universal service subsidies have become so widespread that rural phone companies on average collect only 27 percent of their revenues from customer payments, Hazlett found. Even so, many rural customers are opting to drop traditional wired service to go wireless.
"'It's cheaper and they like the mobility,' Hazlett said. 'About 5 percent of rural households have dropped fixed-line service to go wireless.'"
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Professor Timothy Muris, former Chairman of the Federal Trade Commission, testified as a witness before the Senate Judiciary Committee in a July 20, 2006, hearing to examine credit card interchange rates.
Excerpt:
"My testimony this morning addresses four points. First, I will explain why interchange fee agreements in four-party payment systems, such as Visa and MasterCard, are lawful under the Sherman Act. Second, my testimony will make clear that the Visa and MasterCard networks are not cartels of financial institutions. Third, I will discuss two-sided products and explain why increases (or decreases) in interchange levels are not evidence of market power. Finally, I describe the benefits of payment cards to consumer and merchants, and the likely harm in regulating them."
View a webcast or read transcripts of the testimony
Professor Michael Krauss and co-writer J. Peter Pham have published two articles this week in TCS Daily, both dealing with the current conflict in the Middle East between Israel and Lebanon.
Stretched to All Proportions, TCS Daily, July 17, 2006. By Michael I. Krauss and J. Peter Pham.
Excerpt:
"Adherence to the principle of proportionality surely requires judgment and prudence, virtues which, had they been possessed and exercised by some of Israel's latest critics, could have headed off the present conflict by dealing with its real root cause, the irredentist anti-Semitism propagated by states (Syria, Iran and others) bent on fomenting death."
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Admirable Restraint, TCS Daily, July 19, 2006. By Michael I. Krauss and J. Peter Pham.
Excerpt:
"Hezbollah is probing Israel's defenses, purposefully trying to keep each aggression under the threshold of just war casus belli, precisely so that observers such as Professor Bainbridge and Cardinal Sodano will not sanction or approve Israel's defensive response. To repeat -- this case is closed; Israel has been invaded and may wage just war against Lebanon."
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French law "aims to disrupt a process that was enhancing the wealth of nations," says Professor Thomas Hazlett in a Financial Times UK article about France's recent passage of legislation that could force Apple's iTunes to play on devices other than Apple's iPods.
Hazlett goes on to state that, "From the rubble of file sharing, with its Pirates of the Caribbean business model and its "junkyard" user experience, emerged a spiffy iTunes marketplace where songs and their listeners embrace, 99 cents a hug. The format brought artists together with users, ending their conflict and forming a virtuous circle of co-operation. A rival field of dreams is now being built by the Microsofts, Sonys, Dells, Amazons and T-Mobiles, stomachs growling and each eager to devour a little Apple. Antitrust regulators should stand back and let Apple feast or be eaten."
COMMENT: Antitrust regulators must listen to reason on iPods, Financial Times UK, July 12, 2006. By Thomas Hazlett.
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Professor Michael Krauss writes that "disengagement cannot be a one-way street. There must be clear incentives for positive behavior and consequences for irresponsibility. The consequences of terror must be so terrible as to frighten the terror masters. If Hamas doesn't get this, Gaza must be firmly reoccupied. Otherwise, we are all sold short" in a National Review Online op-ed examining the question of disengagement from
Gaza and its consequences for the region.
Break It Off? Was disengagement from Gaza a mistake?, National Review Online, July 11, 2006.
By Michael I. Krauss and J. Peter Pham.
Excerpt:
"Serious scholars have long argued that terrorism is best understood in terms of its strategic function. The motivations of individual terrorists — especially those of the suicide variety — may be inscrutable, but the strategic goals of their handlers is quite comprehensible. Most terrorists don't act alone. Whatever his background and circumstances, he was likely recruited, indoctrinated, and deployed by some organization with a political agenda. In the current crisis in Gaza, both with respect to the kidnapping of Cpl. Shalit and the Qassam attacks, that organization has a name: Hamas. Even if one accepts the widely propagated view that terrorists are driven by an irrational despair to lash out, it does not follow that this holds true for those (the Hamas leadership) who direct them. The masterminds of terror have strategic aims; they are subject to deterrence if the cost of their operations redounds on them in the form of unsustainable damage."
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The legal and insurance issues left behind the kind of storms the Washington area has recently experienced can be "as muddy as the floors," according to a Washington Post article examining liability issues in property claims that result from severe weather situations. Professor Ilya Somin cautions that laws can vary from one jurisdiction to another and that homeowners should be aware of local ordinances. He adds that most property claims can be handled through negotiation between neighbors.
After the Rain, Neighbors Spar Over Damages, The Washington Post, July 1, 2006. By Marianne Kyriakos.
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The Center for Medicare and Medicaid Services ("CMS"), a part of the Department of Health and Human Services (HHS), has set up significant limitations on the ability of long-term-care pharmacies, consultant pharmacists and nursing homes to disseminate useful information to participants in Medicare Part D, states Professor Ronald D. Rotunda in a Washington Legal Foundation Legal Backgrounder. He adds that CMS restrictions are unconstitutional violations of the providers' First Amendment commercial free speech guarantees.
CMS Information Policy Under Medicare "Part D" Creates 1st Amendment Problems, Legal Backgrounder, July 7, 2006. By Rona | |
