Archive | 2012


China is a country. China is a kind of dish. According to, “china” is also “a playing marble of china, or sometimes of porcelain or glass.” But it turns out that, in some states, a term pronounced — but not spelled — “china” is a bit of legalese. What does it mean? [...]

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Selecting a Supreme Court Justice for Ohio

Judges are elected in Ohio. Those seeking judicial office, whether the state supreme court or court of common pleas, must seek party endorsements and run in contested elections. While party affiliation is not displayed on the November ballot, candidates run in partisan primaries and mount serious campaigns, complete with television ads. Because judicial elections are lower profile than many other races, incumbency is an advantage, but reelection is hardly guaranteed. Case in point: Two well-regarded sitting justices – one Republican, one Democrat – were defeated this past November. A third incumbent justice was reelected.

Although elections are the primary means for selecting judges in Ohio, the Ohio Constitution provides for the appointment of judges by the Governor to fill vacancies in between elections. Such appointments occur with some regularity on lower courts, trial courts in particular, but less often on the Ohio Supreme Court. This year, however, Justice Evelyn Lundberg Stratton announced she would step down after 16 years on the High Court. Because there are two years left on Justice Stratton’s term, this gave Ohio Governor John Kasich the opportunity to name a new justice to the Ohio Supreme Court.

Given that judges are elected, and Justice Stratton’s replacement would have to run for reelection in two years, one might have expected politics do dominate the selection process. That was not the case, however, as the governor created a process to elevate merit above politics. After Justice Stratton announced her retirement, the Governor’s office invited applications for the position and named a group of Ohio attorneys, of which I was one, to assist Governor Kasich in making his selection. Our task was to evaluate the candidates and their fitness for the position. Governor’s Kasich’s instructions were clear: He wanted us to identify the best candidate, specifically the person [...]

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The Role of Advocacy Groups in the Judicial Confirmation Process

Imagine there is a vacancy at the U.S. Supreme Court, and the Supreme Court has very recently decided an abortion case 5-4. Although five Justices supported abortion rights, four dissenting Justices made clear that they do not believe the Constitution protects any right to abortion. A Republican President is in office, and he nominates an appeals court judge to fill the vacancy. The nominee doesn’t have much of a record on abortion rights as a circuit judge. At the same time, the nominee’s conservative credentials (and support from a GOP President) suggest that he is probably going to join the dissenters and vote against abortion rights in future cases. Abortion rights advocacy groups decide to oppose the nominee: They run attack ads against the nominee and announce that they will “score” the Supreme Court vote (that is, count that vote in tabulating the group’s official rating of that politician) in order to pressure pro-choice Senators to vote against him.

Now ask yourself, do you think the abortion rights advocacy groups somehow acted improperly by trying to use their political influence to pressure Senators to oppose the nominee? I think most people will say “no.” We expect advocacy groups to try to use their influence on political bodies like the Senate when rights that they see as central to their mission are up for grabs. Of course, the groups might be misguided. Perhaps you will disagree with them on the issues. And it’s fair to criticize a group’s reaction as unfair in its specific claims, perhaps reflecting a single-minded focus and a lot of passion amidst relatively sparse evidence of the nominee’s views. Indeed, maybe the group has misjudged the nominee entirely; remember NARAL’s opposition to the nomination of David Souter. But the basic idea of the effort to [...]

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Two Saudi Blasphemy Cases

The International Business Times reports (see also Gulf News and Radio Free Europe / Radio Liberty):

Novelist Turki al-Hamad, 58, one of Saudi Arabia’s more unapologetic and outspoken liberal voices, is now in custody for a series of posts he published on his Twitter last weekend comparing fundamentalist Islamist ideology and its strict social controls to Nazism and suggesting that political Islamists like those allied with Saudi Arabia’s royal family have taken their adulation of Prophet Muhammad too far….

The Twitter post that most riled the kingdom’s formidable conservative religious establishment and Ministry of Information was this one, written in Arabic: “Our Prophet had come to rectify the faith of Abraham, and now is a time when we need someone to rectify the faith of Muhammad.”

That is a shocking statement to those who believe the Prophet received Allah’s perfect and final revelation.

By suggesting the Saudi religious authorities are guilty of the very thing they believe they are defending against, and that this needs to be “rectified,” Hamad’s criticism was viewed as an assault on Islam itself and a direct challenge to state defenders of the faith….

The International Business Times article also reports that “Raif Badawi, a 30-year-old website editor from the port city of Jeddah, [is also] facing apostasy charges for insulting Islam through a website he ran called ‘Free Saudi Liberals’ that allowed users to openly discuss the difference between ‘popular’ and ‘politicized’ Islam.” [...]

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Seventh Circuit Sidesteps Challenge to NLRB Recess Appointment

Today, in Richards v. NLRB, the U.S. Court of Appeals for the Seventh Circuit declined to consider whether President Obama’s recess appointments to the National Labor Relations Board were constitutional. As Judge Williams explained for the court, the petitioners lacked standing to challenge the NLRB’s actions, as the complained-of policy had already been overturned. Other cases in which the constitutionality of the NLRB appointments is being challenged remain pending in other circuits. (Hat tip: Josh Gerstein, Politico)

[Note: Link fixed] [...]

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The First Amendment, the Second Amendment, and Article V

I’m not sure how much attention to pay to petitions on the White House site. Once upon a time, getting 25,000 written signatures on something through word of mouth or newspaper articles would have been a big deal; but today, getting that number of electronic signatures using e-mail and social media strikes me as not that difficult. And even if you get 75,000 signatures, that 1/40 of 1% of the population believes something — or is at least willing to sign something in order to express their visceral views, whether they actually support the details of the proposal or not — doesn’t tell you much.

This having been said, I occasionally post on such matters (such as the petitions to strip Westboro Baptist Church of tax-exempt status, or to otherwise “regulate” the group); so I thought I’d chime in on the Piers Morgan petition (now at about 75,000 signatures):

British Citizen and CNN television host Piers Morgan is engaged in a hostile attack against the U.S. Constitution by targeting the Second Amendment. We demand that Mr. Morgan be deported immediately for his effort to undermine the Bill of Rights and for exploiting his position as a national network television host to stage attacks against the rights of American citizens.

Whether noncitizens may be deported for speech that is constitutionally protected from criminal punishment is not clear. But to my knowledge there’s no statutory authorization for such deportation; the government can’t just deport anyone it pleases (even when the person is not a permanent resident), but has to follow federal law on the subject. And even if Congress could authorize the deportation of people for speaking out in favor of various laws, it hasn’t done so at this point.

But beyond this — and even setting aside the question whether [...]

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Up to $50/Year Fee (+ Up to 30-Day Waiting Period) for Buying Ammunition or Going Target-Shooting?

That’s what California Senator Kevin De Leon, chair of the California Senate Democratic Caucus, is proposing in California (bill text). To buy ammunition, you’d need to submit an application with a fee (which will be up to $50), and wait up to 30 days while the state conducts a background check. And the permit would need to be renewed each year; as I read it, each renewal would require a new fee.

So say that you want to make sure that you keep up your target-shooting practice. (Recall that gun control proponents often stress the need for gun owners to be properly trained — a need that I certainly don’t deny.) You’d want to go to a shooting range, and unless you thoughtfully stocked up on ammunition beforehand, you’d need to buy some ammunition. That means you have to plan your shooting range trip up to 30 days in advance, and spend up to an extra $50 on the trip. Next year, you’d have to do the same (again, unless you thoughtfully just buy ammunition in bulk). Fifty bucks isn’t a big deal for me, of course, and it might not be for you. But for lots of people, $50 is a lot of money.

OK, now let’s say that I take to the range several friends who haven’t shot before — something I’ve often done, and I suspect something that is many people’s first introduction to guns. Fortunately, the law wouldn’t require each of them to pay up to $50 for a permit, or to go through a background check that would take up to 30 days. I could just buy the ammunition (which could easily run more than $100 for a night of target-shooting for several people).

But could they reimburse me, either by [...]

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So What Are We Going to Do About It?

After the Sandy Hook school shooting, as well as after other shootings, those of us who are skeptical about gun controls are often asked: So what are we suggesting should be done about the shootings? If we’re not suggesting gun controls (as opposed to proposals such as allowing teachers to be armed, increased concealed carry rights outside schools, providing school guards, and the like), the argument goes, we’re not taking gun tragedies seriously.

Now I generally don’t support the “don’t just stand there, do something” school of criminal law. When all the proposals seem likely not to work, or do more harm than good, implementing one of them for the sake of “doing something” strikes me as a mistake.

But let me offer a concrete analogy (recognizing that, as with all analogies, it’s analogous and not identical). Every day, about 30 to 35 people are killed in the U.S. in gun homicides or gun accidents (not counting gun suicides or self-inflicted accidental shootings). And every day, likely about 30 to 35 people are killed in homicides where the killer was under the influence of alcohol, or in alcohol-related drunk driving accidents, again not including those who died in accidents caused by their own alcohol consumption. If you added in gun suicides on one side and those people whose alcohol consumption killed themselves on the other, the deaths would tilt much more on the side of alcohol use, but I generally like to segregate deaths of the user from deaths of others.

So what are we going to do about it? When are we going to ban alcohol? When are we going to institute more common-sense alcohol control measures?

Well, we tried, and the conventional wisdom is that the cure was worse than the disease — which is why we went [...]

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Greenberg on “Borking” Before Bork

Last week, historian David Greenberg surveyed political fights over Supreme Court confirmations prior to the Senate’s rejection of Robert Bork in 1987 in an NYT op-ed. “Although Mr. Bork’s confirmation certainly represented a major battle of the Reagan years, the campaign to defeat him was neither unprecedented nor illegitimate,” he writes. According to Greenberg: “The Democratic campaign against Bork in 1987, then, wasn’t anything new; it merely resumed a dynamic that had been temporarily obscured — one as old as the republic and a perfectly fair, if often cynical, deployment of the Senate’s power to advise and consent.”

Although Greenberg is certainly correct that Robert Bork was hardly the first Supreme Court nominee rejected by the Senate, or the first opposed on ideological or political grounds, his account leaves out some important context. While noting that the Senate had been more deferential to Supreme Court nominees through much of the 20th century, Greenberg fails to account for the character of the campaign against Bork — the outlandish charges, distortion of his academic work, and character assassination. Insofar as these tactics replicated the scurrilous campaign by some Southern Senators to block confirmation of Thurgood Marshall, they were indeed “precedeented,” but I would not call them legitimate.

As Walter Olson reminds us, Bork’s opponents went so far as to suggest Bork was suspiciously like some of his academic critics, in that he was insufficiently devout and was himself a former academic with an allegedly “strange lifestyle.” Some Democratic Senators actually cited Bork’s failure to discuss his relationship with God and lack of religious commitment to justify their votes against him.

Greenberg also omits the fact that the anti-bork campaign was the culmination of a concerted campaign against Reagan’s judicial nominations that actually began several years earlier and initially focused on [...]

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Did the CRA Lead to Risky Lending?

“Yes, it did,” is the conclusion of a new NBER study of bank lending behavior, “Did the Community Reinvestment Act (CRA) Lead to Risky Lending?” by Sumit Agarwal, Efraim Benmelech, Nittai Bergman, Amit Seru, Here’s the abstract, which begins uncharacteristically with direct answer to the question in the paper’s title:

Yes, it did. We use exogenous variation in banks’ incentives to conform to the standards of the Community Reinvestment Act (CRA) around regulatory exam dates to trace out the effect of the CRA on lending activity. Our empirical strategy compares lending behavior of banks undergoing CRA exams within a given census tract in a given month to the behavior of banks operating in the same census tract-month that do not face these exams. We find that adherence to the act led to riskier lending by banks: in the six quarters surrounding the CRA exams lending is elevated on average by about 5 percent every quarter and loans in these quarters default by about 15 percent more often. These patterns are accentuated in CRA-eligible census tracts and are concentrated among large banks. The effects are strongest during the time period when the market for private securitization was booming.

If anything, the authors note, their study underestimates the CRA’s effecton lending practices because it only looks at landing activity around examination dates. IBD has more. (Hat tip: Hit & Run)

UPDATE: There’s a discussion about the paper at Marginal Revolution. Note that the paper does not claim that the CRA was the cause of the financial crisis. As Tyler Cowen notes, the claim is that the CRA was an “amplifying mechanism” — a contributing factor to the severity of the crisis, but hardly the only contributing (or causal) factor. [...]

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Miracle on 34th Street

If (spoiler alert) the United States Postal Service delivers mail addressed to “Santa Claus” to a particular bearded fellow c/o a state court in New York, is that state court thereby preempted from holding that the fellow in question is insane for believing that he is, in fact, Santa Claus? Discuss. [...]

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The Just-in-Case Loan Acceleration Clause, Ultimate Version

Handy if representing creditors in case of the end of the world (Bainbridge via Leiter via Schewel via persons unknown):

12.7 END OF WORLD.  In the event that the world as known to mankind shall come to an end, whether through natural forces (including, without limitation, plague, drought, earthquakes, hurricanes, and floods), manmade forces (including, without limitation, nuclear or biological war, pollution and global warming), or divine forces (including, without limitation, the Second Coming, the Mayan Cataclysm, and the Rapture, regardless of religious affiliation of Bank or Borrower), then, in such event, all outstanding principal, interest, fees and charges remaining under the Loan Documents shall immediately become due and payable to Bank at Bank’s offices or designated shelter, without notice of any kind of character, all such notice being hereby waived by Borrower, and Borrower agrees that the end of the world shall not be deemed or construed to constitute a valid excuse or defense to payment; provided further, that in the event that the end of the world shall be divinely inspired, then, in such event, Borrower further agrees that Bank shall be deemed aligned with forces of goodness and light, and Borrower shall be deemed aligned with the forces of evil and darkness, and that Borrower shall be cast into a pit of fire until all sums owing under the Loan Documents, including attorney fees, shall be fully paid; provided further, that in the event that Borrower should be reincarnated subsequent to the end of the world, whether as an animal, vegetable or mineral, then, in such event, Bank shall have and possess, in addition to the collateral stated in the Loan Documents, a security interest in all of Borrower’s useful products, including, without limitation, any and all fur, hide, meat, edible portions, medicinal properties, and mineral

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Packing for Lima

We get ten suitcases, plus carry ons, plus car seats.  We get an 800 pound air shipment which is supposed to arrive in 1 to 3 weeks, but apparently actually takes months to get through Peru customs.  Then we get 7,200 pounds and a car by boat.  Everything else goes to storage.  This is much harder than simply moving from one place to another, you almost need a professional to help organize.  Meanwhile, if you know anyone that’s interested in a used Sienna minivan, I know where they can get a great deal. [...]

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Goldberg & Kopel on Guns and Gun Control

The December 2012 issue of The Atlantic features a lengthy article by Jeffrey Goldberg, “The Case for More Guns (And More Gun Control).” Though written before the Newton massacre, the article is quite timely and relevant — and provides much food for thought.

The VC’s own David Kopel was among those Goldberg interviewed for the piece. Dave also had an op-ed in the WSJ this past week, on “Guns, Mental Illness and Newtown.” It’s also worth a read.

A third article worth considering is James Alan Fox’s “Top Ten Myths about Mass Shootings.” Fox is a criminologist and his article is seems quite pragmatic and sober (albeit sobering as well). [...]

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