Archive | 2010

Arrests in Plot to Murder People at Danish Newspaper That Published the Mohammed Cartoons

The New York Times reports:

A group of men arrested in Denmark on Wednesday were about to mount a “Mumbai style” attack on the Danish newspaper that ignited Muslim fury around the world by publishing satirical cartoons of the Prophet Muhammad in 2005, the head of the Danish Security and Intelligence Service said….

Prime Minister Lars Lokke Rasmussen of Denmark told reporters that he was “shocked” by the planned attack.

“Regardless of today’s event, it remains my conviction that terrorism must not lead us to change our open society and our values, especially democracy and free speech,” he said.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. UPDATE: A commenter asked for a link to the cartoons, so I thought I’d mention that they are reproduced and discussed in this post. [...]

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Opting for TSA Alternatives

The Washington Post reports that more airports are considering whether to hire private contractors to replace TSA personnel for airport security.  Such a shift would not alter the screening protocols — these requriements are imposed by federal regulations independent of whether TSA personnel man the security checkpoints — but could alter the efficiency and attitude with which screening is conducted.

For airports, the change isn’t about money. At issue, airport managers and security experts say, is the unwieldy size and bureaucracy of the federal aviation security system. Private firms may be able to do the job more efficiently and with a personal touch, they argue.

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The Kidney Condition

Mississippi Governor Haley Barbour is granting early release to  two sisters serving life sentences for armed robbery under an unusual condition: One sister must donate her kidney to help the other. From the Washington Post account:

Barbour agreed this week to suspend their sentences in light of the poor health of Jamie Scott, 38, who requires regular dialysis. The governor said in a statement that 36-year-old Gladys Scott’s release is conditioned on her giving a kidney to her inmate sibling.

“The Mississippi Department of Corrections believes the sisters no longer pose a threat to society,” Barbour said in the statement. “Their incarceration is no longer necessary for public safety or rehabilitation, and Jamie Scott’s medical condition creates a substantial cost to the State of Mississippi. . . . Gladys Scott’s release is conditioned on her donating one of her kidneys to her sister, a procedure which should be scheduled with urgency.”

The Post reports that the deal has raised concerns from some medical ethicists.  At Balkinization, Jason Mazzone considers some of the constitutional aspects of Barbour’s bargain. [...]

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Solar Power After Sunset

Intermittency is one of the biggest problems with solar and wind power. When the sun doesn’t shine or the wind doesn’t blow, there’s no power.  For this reason power storage technologies are essential if wind and solar power are to replace base load capacity and become more than bit players in energy markets.  The WSJ reports on plans to build a utility-scale solar plant with substantial storage capacity in the Arizona desert.

Abengoa Solar Inc. expects to start construction in mid-2011 on a plant in Arizona that will store sun-generated heat to provide six extra hours a day of electric-generating capacity. The heat creates steam that is used to turn power turbines.

Abengoa’s $2 billion Solana plant is expected to be the first major stored-heat plant in the U.S. when it enters service in 2013. Some already exist in Spain and a few more are on the drawing board for Nevada and California. . . .

The Solana plant will be able to meet winter heating and lighting needs by putting electricity on the grid early in the morning—before the sun is shining—and help satisfy summer cooling demand by producing power after sundown. The plant, which can power up to 70,000 houses, has signed a 30-year agreement to sell electricity to utility company Arizona Public Service.

The deployment of stored-heat technology like that proposed for the Abengoa facility is a significant development, but it comes at a price.  Solar power is already more expensive than wind power and carbon-based alternatives, including natural gas.  The WSJ reports that adding heat storage increases plant construction costs by approximately 20 percent. [...]

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Libel Law, Blogging About Incest, Plus Opposition to Government Regulation of Banking: “It Is of Stunning Coincidence”

Connoisseurs of odd legal arguments might appreciate this item, but unfortunately it requires a bit of background explanation. Aviation lawyer Arthur Wolk sued and its bloggers for libel. Glenn Reynolds (Instapundit), Marc Randazza (Legal Satyricon), Ed Whelan (National Review Online), and I signed an amicus brief on the side of Overlawyered. Now Wolk’s lawyers have filed an opposition to the motion for leave to file that amicus brief.

Here is the part of the plaintiff’s opposition that struck me as particularly unusual. (Note that is described as our “blog forum host,” according to the plaintiff’s Exhibit 6, simply because had published my interview and once published a column of mine, and because it had published a set of short items about D.C. v. Heller that include Glenn Reynolds as one of the authors. Note also that my supposed “treatise seeking to legalize parent/child, grandparent/grandchild, and sibling incest,” reproduced in plaintiff’s Exhibit 8, is actually my blog post that does not argue for legalizing adult incest. Indeed, the post says that “I tentatively incline” to the view that adult incest should remain illegal “[b]ecause legalizing incest would, by making a future sexual relationship more speakable and legitimate, potentially affect the family relationship even while the child is underage.”) Emphases are in the original.

C. The Amicus Bloggers are Appearing on Behalf of their Blog Forum Hosts Whom Wolk has Sued for the Heinous Defamatory [and False] Accusations of Child Molestation and Bestiality They Have Incited Against Him

Since the August 2, 2010 dismissal, Overlawyered and another entity, The Reason Foundation (a.k.a, have waged an internet smear campaign against Wolk, which has given rise to a separate lawsuit in equity. It is no coincidence that the amicus bloggers are members of and bloggers

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Victory for firearms preemption in New York

Nassau County, on Long Island, New York, enacted an ordinance which bans handguns in non-traditional colors, such as pink. The ordinance declares such firearms to be “deceptively colored.”

On December 28, the Appellate Division, Second Department (the intermediate court of appeals) ruled 4-0 that the Nassau ban is preempted by New York State’s handgun licensing law. While the state law, Penal Law § 400.00, is not explicitly preemptive, the Appellate Division found implicit field preemption because: 1. The licensing law is detailed, and describes what kinds of handguns may not be licensed. 2. The state statute declares that a license shall be valid in every county of the state, but Nassau County’s law prohibited licensed persons from other counties from entering Nassau County with their licensed colored handguns. “In effect, the amended ordinance places a restriction on all licenses granted throughout the state, and deprives all licenses that were lawfully granted to owners of “deceptively colored” firearms of their stated benefits. If each of New York’s 62 counties enacted ordinances that placed additional restrictions on licenses, as the amended ordinance effectively does, the uniformity in firearm licensing that the Legislature intended would be destroyed.”

Congratulations to longtime Nassau activist Alan Chwick for his victory in Chwick v. Mulvey. [...]

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Chinese Court Rejects Divorcing Wife’s Claim to Share of Couple’s Online Game Virtual Assets

From the China Daily, summarizing a Beijing Morning Post article:

The couple tied the knot at the end of 2008 after they got to know each other through an online game in May…. The couple played the online games under the ID the husband had registered. In court, the wife asked for her share of the virtual assets they earned in the game ….

The court … rejected the wife’s claim, saying such issues can be ruled by the law only when virtual assets are related to the real world, such as when they have been valued with real currencies.

Thanks to John Farrier (Neatorama) for the pointer. [...]

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Somin Family Featured in December 2010 Issue of Engage

The December 2010 issue of Engage features not one but two items written by members of the Somin family: a debate on Kelo v. City of New London and eminent domain reform between University of Chicago Law Professor (and former Dean) Saul Levmore and myself; and an article on Title IX and women’s sports written by my wife Alison, who is a special assistant at the US Commission on Civil Rights.

The debate between Dean Levmore and myself was held at the University of Chicago in February. A podcast of the entire debate (including audience questions not reprinted in Engage) is available here.

There is some irony in the fact that Alison is the first of the two us to publish an article about sports, even though I am a big sports fan, and she – to greatly understate the contrast – definitely isn’t. I will have to publish a sports article of my own as soon as possible in order to restore my standing as the resident sports geek in our household.

Although conspiracy theorists (perhaps even Volokh Conspiracy theorists) will never believe it, the appearance of our two pieces in the same issue of Engage is entirely coincidental. The journal editors asked me for permission to publish the debate with Dean Levmore long after Alison’s article was already in the pipeline. But of course that’s exactly what conspiracy-mongers would expect me to say in order to divert attention away from the successful completion of the first stage of the Somin clan’s plan for world domination! [...]

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Our Amicus Brief in the Thomas More Law Center Individual Mandate Case

For those who may be interested, I have written an amicus brief in Thomas More Law Center v. Obama, one of the cases challenging the constitutionality of the Obama health care bill’s individual mandate. I wrote the brief on behalf of the Washington Legal Foundation and twelve members of the House of Representatives. It is available here. The case is currently before the Sixth Circuit Court of of Appeals.

Because of space constraints, we chose to focus only on the federal government’s two main arguments – the claims that the mandate is justified by Congress’ powers under the Commerce Clause and the Tax Clause. The brief includes a detailed refutation of what has become the government’s central argument under the Commerce Clause: the assertion that the mandate is constitutional because going without health insurance is an “economic decision” (pp. 14-18). I first presented the key arguments in this section right here on the VC, though of course the brief goes into much greater detail.

Although we could not cover the federal government’s Necessary and Proper Clause argument in this brief, it was the main focus of the excellent amicus brief filed by co-blogger Randy Barnett and the Cato Institute. WLF and I presented our own take on the Necessary and Proper Clause issues in the amicus brief I wrote for them and a group of prominent constitutional law scholars in the Virginia anti-mandate case. [...]

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Strange Things Happening With the Exclusionary Rule: The Introduction of Case-by-Case Balancing After Herring v. United States

When the Supreme Court handed down Herring v. United States, 555 U.S. 135 (2009), a case about the Fourth Amendment’s exclusionary rule, there was an interesting blog debate about how much it mattered. Tom Goldstein thought it was a revolutionary case; I thought it was not. Almost two years later, I think it’s fair to say that the disagreement has been shared by lower court judges. Some courts have interpreted Herring as changing very little. Others have seen it as drastically reshaping the exclusionary rule. I wanted to flag one of the latter readings of Herring that I think is pretty clearly wrong, but that some courts have adopted or strongly suggested: Weighing costs and benefits of the exclusionary rule on a case-by-case basis.

First, a bit of context. The Supreme Court adopted a cost/benefit approach to the exclusionary rule over 35 years ago in United States v. Calandra, 414 U.S. 338 (1974). The cost/benefit analysis is programmatic: Courts have to weigh the costs and benefits of having an exclusionary rule over the category of cases in which the case before the court resides. For example, the category might be searches made in violation of the knock-and-announce rule (as in Hudson v. Michigan). Or perhaps the category is searches made in reliance on a warrant that had minor defects (as in United States v. Leon). In each case, the issue is how the costs and benefits of the exclusionary rule applies over that defined category of cases. I see Herring as a relatively routine application of that principle: Herring weighs the costs and benefits of an exclusionary rule over the general category of arrests made as a result of merely negligent errors in police databases.

Of course, the tricky part of this programmatic weighing is [...]

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More on Free Speech at UVA

The Washington Post’s education blog has an update on UVA’s decision that Ilya and I mentioned a little while back to get rid of its policies that infringe on free speech.  FIRE discusses the story on its blog too.

FIRE has also posted a round-up with links to all of its law review articles from the past year.  You can check it out here.

While you are there, on a lighter note you can check out this interview with Dave Barry with respect to free speech on campus. [...]

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Big Second Amendment Opinion from the Fourth Circuit, Related to the Ban on Gun Possession by Domestic Violence Misdemeanants

The opinion is United States v. Chester, just decided today; thanks to Prof. Doug Berman (Sentencing Law & Policy) for the pointer. I’ll blog more after I read it, but here’s the conclusion from the two-judge majority:

We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond. Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.

One judge concurred in the judgment, concluding that “[i]t is … quite clear that § 922(g)(9) is substantially related to the government’s important interests, as the statute directly prohibits the possession of firearms by those with a demonstrated history of actual or attempted violence,” but agreeing with the remand because he was “content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.”

Note that, as with the Seventh Circuit Skoien case — in which a panel initially reached a similar result to that just reached by the Fourth Circuit panel — there’s a good chance that the Fourth Circuit will rehear the case en banc.

UPDATE: If the Fourth Circuit doesn’t rehear the case [...]

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The War on Christmas

Minivan News (Independent News for the Maldives) reports:

Management at the Jade Bistro cafe … have apologised to any Maldivians that may have been offended by a “festive” lunch promotion offered over the Christmas period that has since attracted protests and the attention of police in the capital.

The offer was criticised as a Christmas celebration by religious groups like the Adhaalath Party and the Islamic Foundation of the Maldives (IFM), which have both praised local police for yesterday stopping the promotion at the café.

Police Sub-Inspector Ahmed Shiyam said that officers had been sent to the cafe after complaints were received from a member of the public about the incident.

“The place was decorated for Christmas with items related to the celebration, police arrested one person from the cafe to clarify more information about the case. They were also released last night,’’ said Shiyam….

[T]he leader of Adhaalath Party, Sheikh Hussein Rasheed, said that celebrating Christmas was unlawful and that it was a responsibility of the police to stop those events….

IFM President Ibrahim Fauzy added that it was prohibited in Islam to allow non-Muslims celebrate their holidays in places where Muslims live.
“It is unconstitutional and prohibited by many laws at the same time,” said Fauzy….

Thanks to Religion Clause for the pointer. [...]

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