I was watching the Daily Show, and they had several segments about Scalia's view of the 8th Amendment and whether it covers torture. For some reason Jon Stewart was shocked to hear this interpretation.
Scalia's position is that the 8th does not cover torture because the goal of torture is not to punish a person. This made a lot of sense to me when I heard him say it, I looked it up in the dictionary and found,
punishment:A penalty imposed for wrongdoing
Torture then does not make much sense as a punishment, since it's not imposed because of any wrongdoing.
I found this to be a particularly compelling explanation because torture for interrogation purposes is already prohibited by the 5th due process clause. Numerous cases have held that police interrogation of suspects is unconstitutional because of that clause. For those who are opposed to torturing suspected terrorists, I believe their best argument lies in the 5th instead of the 8th.
Wednesday, April 30, 2008
ABA Affirmative Action
A Wall Street Journal Article on the ABA requiring what looks like a quota if minorities. I was reminded of Thomas Sowell's latest book, Economic Facts and Fallacies, in which he has a section dedicated to the ABA's means-oriented approach to accreditation.
Rather than require a certain number of courses in specific topics or require that each class have a certain number of minorities, the ABA should just look at the ends. Let each law school design its program as it sees fit, and the ABA can just look at the overall bar passage rates and the bar passage rates of its minorities. If both rates are high, who cares if the law schools is accomplishing this by having less than a fixed number of credits in writing or ethics.
I think his most important point is that affirmative action does not do minorities any favors. Affirmative action has encouraged minorities to enroll in higher ranked law schools with low minority bar passage rates instead of staying at lower ranked law schools with dramatically higher minority bar passage rates.
Rather than require a certain number of courses in specific topics or require that each class have a certain number of minorities, the ABA should just look at the ends. Let each law school design its program as it sees fit, and the ABA can just look at the overall bar passage rates and the bar passage rates of its minorities. If both rates are high, who cares if the law schools is accomplishing this by having less than a fixed number of credits in writing or ethics.
I think his most important point is that affirmative action does not do minorities any favors. Affirmative action has encouraged minorities to enroll in higher ranked law schools with low minority bar passage rates instead of staying at lower ranked law schools with dramatically higher minority bar passage rates.
Monday, April 28, 2008
Scalia on 60 Minutes
My favorite line from his interview:
"Some people come and inquire, 'Justice Scalia, when did you first become an originalist?' as if it was some weird affliction, like 'when did you start eating human flesh?'"
"Some people come and inquire, 'Justice Scalia, when did you first become an originalist?' as if it was some weird affliction, like 'when did you start eating human flesh?'"
Tuesday, April 22, 2008
Doomed to repeat history
Don't usually like to go into specific political notes, but to be this ignorant of history is just sad. Just ironic to protest the running of the Olympic torch ceremony given its historical background.
Waiting for Antonin
I realized that I've posted half a dozen times, and not one has mentioned Antonin Scalia. Which is why I wanted to share my favorite line of the week, which comes from Scalia's dissent in Tennessee v. Lane.
Fed up with standards like "strict scrutiny" "intermediate scrutiny" and "congruence and proportionality" Scalia decided to apply a much older standard to determine Congress' power under the 14th Amendment: "I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause."
That is fantastic. In the face of 50 years of case precedent, Scalia casts aside "flabby tests" and goes back to the actual text of the Constitution. I maintain that if Chuck Norris ever gets nominated to the Supreme Court, he will change his name to Antonin Scalia Jr.
Fed up with standards like "strict scrutiny" "intermediate scrutiny" and "congruence and proportionality" Scalia decided to apply a much older standard to determine Congress' power under the 14th Amendment: "I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause."
That is fantastic. In the face of 50 years of case precedent, Scalia casts aside "flabby tests" and goes back to the actual text of the Constitution. I maintain that if Chuck Norris ever gets nominated to the Supreme Court, he will change his name to Antonin Scalia Jr.
Monday, April 21, 2008
The Efficiency of Gifts
I recently received a copy of Richard Posner's Economic Analysis of Law for my birthday. "Gifts" are actually in the index, (pg. 523) although it deals with whether or not gifts should be considered income for tax purposes. Posner comes to the conclusion that if gifts are truly altruistic, they will not substitute away from market employment, and therefore should not count as taxable income.
Thanks to Rob for getting me the most efficient present I've ever received.
Thanks to Rob for getting me the most efficient present I've ever received.
The Enumerated Powers Act
Quite simple really. Bill HR1359 (thanks to Downsize DC) would "require Congress to reference the specific clause(s) of the U.S. Constitution that grant them the power to enact laws and take other congressional actions." Introduced by Representative John Shadegg (R-AZ) in 2007, the bill already has 47 cosponsors but has been thoroughly buried in the House Judiciary and House Rules committees since March 2007. It's time to push our representatives to tell us what enumerated powers they are abusing before they pass another law.
A different strategy for zoning issues
An oldie but here is another way for dealing with a zoning dispute.
Three generations of welfare recipients are enough
In Buck v. Bell, Justice Oliver Wendell Holmes famously commented "Three generations of imbeciles are enough." The Daily Mail reports on a similar problem with "Three generation of welfare recipients" in the UK. Just a simple set of economic incentives at work here, well, maybe not at work for them. Having read the Mail for years, they may be some dramatic license but if there is even a remote chance of 6 million Britons living in households where nobody works and instead lives off government benefits, that should be enough to fear.
Another article points out another problem:
...inequalities in the tax system mean that those receiving welfare who find work face punitive rates of taxation as for every extra pound earned they lose up to 90 per cent of their benefit.
Given that "social mobility has not improved since the 1970s, despite substantial increases in benefits" in the UK, is it really a surprise that LBJ's "Great Society" has yet to take hold? There are now massive perverse social, political, and economic incentives against people working. Perhaps, instead of looking for that next great program to solve the problem, it is time to consider whether giving people money for not being able to work incentivizes them to want to work at all.
Another article points out another problem:
...inequalities in the tax system mean that those receiving welfare who find work face punitive rates of taxation as for every extra pound earned they lose up to 90 per cent of their benefit.
Given that "social mobility has not improved since the 1970s, despite substantial increases in benefits" in the UK, is it really a surprise that LBJ's "Great Society" has yet to take hold? There are now massive perverse social, political, and economic incentives against people working. Perhaps, instead of looking for that next great program to solve the problem, it is time to consider whether giving people money for not being able to work incentivizes them to want to work at all.
More on our Constitutional Law Book
A look into the index of our Constitutional Law textbook. Here are how many pages there are for each of the following topics:
Race discrimination: over 100 pages
The social and legal construction of race: 13 pages
Gender classification: 30 pages
Pornography and public libraries: 6 pages
New Deal: 11
Contrast these entries to number of mentions of:
2nd amendment: 1 page, 1 footnote
Individual rights: 1 page
Enumerated powers: 0
Race discrimination: over 100 pages
The social and legal construction of race: 13 pages
Gender classification: 30 pages
Pornography and public libraries: 6 pages
New Deal: 11
Contrast these entries to number of mentions of:
2nd amendment: 1 page, 1 footnote
Individual rights: 1 page
Enumerated powers: 0
Constitutional Law Alternatives
I was discussing with a classmate about how neither of us finds the second half of our Constitutional Law class very interesting. The first half moves chronologically through Supreme Court decisions, and then it switches to thematic elements like gender, race, and the right to privacy.
Of course, one cannot simply criticize without offering a valid alternative. So I've been thinking about sending a copy of this book by Randy Barnett to all the Constitutional Law professors in the hopes that they may change their courses.
The main difference is that instead of focusing on gender and race issues, Barnett dedicates several chapters to freedom of religion, gun rights, and private property. I'm positive that if we were using that book in class, I would be reading my homework instead of blogging right now.
Of course, one cannot simply criticize without offering a valid alternative. So I've been thinking about sending a copy of this book by Randy Barnett to all the Constitutional Law professors in the hopes that they may change their courses.
The main difference is that instead of focusing on gender and race issues, Barnett dedicates several chapters to freedom of religion, gun rights, and private property. I'm positive that if we were using that book in class, I would be reading my homework instead of blogging right now.
Sunday, April 20, 2008
Property Rights in Sim City
We're discussing takings and zoning in Property and a classmate made a comparison between Hadacheck and the game of Sim City. It struck me that property rights are not at all respected in the land of Sim City. Consider the following:
In contrast, consider the respect for property rights in Monopoly (in spite of the anti-market goal of the game)
- The game allows for demolition of homes and businesses with no compensation, the only cost the player has to pay is to the demolition company.
- Placing industrial zones next to residential zones has no effect on the value of both properties.
- There are never any covenants that the city has to deal with, rezoning is done freely at will.
In contrast, consider the respect for property rights in Monopoly (in spite of the anti-market goal of the game)
- There's no such thing as a free lunch, if you land on someone's property, you have to pay for it.
- Players need to coordinate among three different property owners before they can start building homes or hotels
- It teaches kids to hate landing on the income tax and luxury tax spaces
- The city never takes your property. The only way you lose it is if you sell it.
Saturday, April 19, 2008
Spontaneous Law
I can't find a link to it, but I recommend everyone use Lexis and find Bruce L. Benson, "The Spontaneous Evolution of Commercial Law."
This is one of my favorite law review articles of all time. It traces the development of the Lex Mercatoria, a system of law that grew out of customs among merchants in Medieval Europe. Over centuries, these merchant customs solidified into a sophisticated set of commercial laws that is still used today in international trade. What's particularly interesting is that private companies regularly obey it, and yet there is no international organization to enforce it.
I found this interesting for a few reasons,
1) Coercive force is not necessary to have a well functioning system of law
2) Often the most effective laws are not ones drafted by Congressional committees or a group of law professors, but customary practices developed by parties involved in day to day activities
3) Tradition is a powerful source of legitimacy. The Lex Mercatoria relies upon no sovereign authority and was never voted upon. People obey it because it's effective, and because it's traditional.
This is one of my favorite law review articles of all time. It traces the development of the Lex Mercatoria, a system of law that grew out of customs among merchants in Medieval Europe. Over centuries, these merchant customs solidified into a sophisticated set of commercial laws that is still used today in international trade. What's particularly interesting is that private companies regularly obey it, and yet there is no international organization to enforce it.
I found this interesting for a few reasons,
1) Coercive force is not necessary to have a well functioning system of law
2) Often the most effective laws are not ones drafted by Congressional committees or a group of law professors, but customary practices developed by parties involved in day to day activities
3) Tradition is a powerful source of legitimacy. The Lex Mercatoria relies upon no sovereign authority and was never voted upon. People obey it because it's effective, and because it's traditional.
Friday, April 18, 2008
First post
Today was Preview Day at the University of Southern California and I thought this would be a good time for the first post. The USC Federalist Society is obviously a part of the larger Federalist Society at the University of Southern California.
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