Author Archive | Ilya Somin

New London Mayor Advocates Devoting the Kelo Condemnation Site to a True “Public Use”

Eight years after the Supreme Court ruled in Kelo v. City of New London that private property can be taken and transferred to other private owners in order to promote “economic development” because such development qualifies as a “public use” under the Fifth Amendment, the Kelo condemnation site still lies empty. But New London Mayor Justin Finizio, who previously apologized for the original Kelo condemnations, has proposed devoting the property for a true public use:

The 2005 Supreme Court decision in New London v. Kelo [sic], in which the court by a 5-4 majority constitutionally validated the New London Development Corp.’s use of eminent domain to purchase and raze the homes of Fort Trumbull residents who refused to sell, remains a “black stain” on the city, said its mayor

NLDC wanted to clear the site to attract large corporate development and expand the city’s tax base. Its judicial triumpth proved a pyrrhic victory, the decision widely despised for interpreting “public use” to include the government taking the property of citizens to turn over to private developers. Count the New London mayor among the despisers. He characterized the Kelo decision as a “corruption of the constitutional interpretation of public use.”

Fort Trumbull has seen no new construction since the bulldozers departed the flattened neighborhood.

Mayor Finizio said he would like New London to symbolically overturn Kelo by undertaking a true “public use” of the seized private properties. He offered as an example a parking garage, under discussion recently as a means of meeting the parking demands generated by Electric Boat’s offices in the former Pfizer buildings, the one major project resulting from NLDC’s corporate development vision.

This would not be any municipal parking garage, but one with solar panels to power it, landscaping and design to fit it into

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Volokh Conspiracy Holiday Gifts

It is the holiday season! And if you happen to be looking for gifts for the VC readers in your life, books by VC bloggers might be a good choice. Among my favorite books by VC authors are Randy Barnett’s Restoring the Lost Constitution (now available in a new edition), David Bernstein’s Rehabilitating Lochner, Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas, and Eugene Volokh, Academic Legal Writing.

Randy’s book is one of the best recent works on originalism and constitutional legitimacy; Rehabilitating Lochner explodes numerous myths about one of the Court’s most reviled decisions; Flagrant Conduct is a great account of a milestone in the history of gay rights; and Academic Legal Writing is filled with useful advice, while also making a generally boring subject seem interesting. This list is not intended to slight important books by Ken Anderson, Orin Kerr, David Kopel, David Post, and others, which I have not discussed only because their subjects are further from my areas of expertise than the above.

In the spirit of shameless self-promotion, I will also mention my own recently published Democracy and Political Ignorance: Why Smaller Government is Smarter, and A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (coauthored with VC-ers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel). Democracy and Poitical Ignorance explains why widespread political ignorance is a serious problem for democracy, and strengthens the case for limiting and decentralizing government power, and for judicial review. Conspiracy Against Obamacare focuses on the VC’s role in the Obamacare litigation, and is the only book that includes contributions by six different VC bloggers. VC-reading Obamacare mavens may also want to check out The Health Care Case, which includes chapters by Jonathan [...]

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Philadelphia Condemns Artist’s Studio to Build a Supermarket and Parking Lot

Nick Sibilla of the Institute for Justice has a good article on the City of Philadelphia’s dubious efforts to condemn a successful artist’s studio in order to transfer it to a new private owner that would build a supermarket and parking lot on the site. This scheme isn’t quite paving paradise to put up a parking lot. But it’s almost equally egregious:

James Dupree has been celebrated around the world for his art. But now he is being condemned by the city of Philadelphia—literally.

His art has been shown at many museums, including the Philadelphia Museum of Art, the Pennsylvania Academy of Fine Arts…

But the city of Philadelphia has other plans for his property. In November 2012, the Philadelphia Redevelopment Authority (PRA) was authorized to acquire 17 properties to build a supermarket in Mantua. According to the redevelopment plans, the PRA wants to bulldoze Dupree’s studio to make room for the privately-owned grocery store and its parking lot. No tenant has been identified yet, but the supermarket project has received $2.75 million in state subsidies….

Dupree estimates professionally moving his oeuvre would cost at least a quarter of a million dollars. So just relocating his vast collection actually costs more than what he originally paid for the building.

Transforming a broken-down garage and warehouse into a top-notch art studio was no easy feat. “When I purchased the property, it was basically condemnable,” he said. The roof leaked when it rained. The plumbing and electrical were “next to nil.”

“I invested everything I owned into this property…I was basically broke,” Dupree remarked. The property itself cost a little under $200,000. Installing new electrical and plumbing: $60,000. Fixing the roof was another $68,000. Thousands more were spent on renovations, furnishings and appliances.

But Dupree sensed the property at 3617-21 Haverford

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Kansas City Police Allegedly Threatened to Shoot Homeowner’s Dogs if He Refused to Let them Search his House Without a Warrant

A Kansas City homeowner claims that police officers threatened to shoot his dog if he refused to let them search his house without a warrant:

Eric Crinnian, a lawyer, heard a loud banging at his door Monday night, he was instantly alarmed since a neighbor’s house was robbed a few weeks ago, so he grabbed a crow-bar.

Crinnian said three police officers were outside his house.
“I open the door a little bit wider and he sees that I have something in my hand, so he pulls his gun, tells me to put down whatever I’ve got and then come out with my hands up, so I do,” Crinnian said.
They wanted to know where two guys were, and Crinnian later found out police believed they violated parole.

“I said, ‘I have no idea who you’re talking about I’ve never heard of these people before,’” he said.

To prove it, he said police asked to search his house, Crinnian refused multiple times. He said they needed a warrant.

Then he said one police officer started threatening him saying, “If we have to get a warrant, we’re going to come back when you’re not expecting it, we’re going to park in front of your house, where all your neighbors can see, we’re gonna bust in your door with a battering ram, we’re gonna shoot and kill your dogs, who are my family, and then we’re going to ransack your house looking for these people.”

Criminal justice professor John Hamilton contends that the police officers’ conduct here was probably legal, though “inappropriate.” George Washington University law professor Jonathan Turley argues that it was illegal, and that charges should be brought against the officers if Crinnian’s story is true. I would add that it is clearly unconstitutional for police officers [...]

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Upcoming Event on A Conspiracy Against Obamacare

Co-bloggers Randy Barnett, Orin Kerr, and I will be speaking at an upcoming event at the Heritage Foundation in Washington, DC on our recently published book A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, which details ours and the VC’s role in developing the arguments in the Supreme Court’s Obamacare decision (the book is also coauthored with Jonathan Adler, David Bernstein, and David Kopel). The book’s editor, Trevor Burrus of the Cato Institute, will also speak at the Heritage event.

The event will be held on December 10, from 12 to 1 PM. More information, including how to RSVP, here.

And see here for a review of the book by constitutional law scholar Rob Natelson. [...]

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Review of the Catching Fire Movie

My wife and I recently saw the film version of Catching Fire, the second in the series of movies based on Suzanne Collins’ Hunger Games book trilogy. Overall, I thought the movie was very impressive, as good or better than the first film in the series, which I reviewed here.

The plot of Catching Fire revolves around Katniss Everdeen’s efforts to deal with the aftermath of her victory in the previous year’s Hunger Games, which was accomplished in a way embarrassing to the oppressive government of Panem. Eventually, she and her co-victor Peeta Mellark are forced to compete in another Hunger Games, whose participants are selected from among the winners of previous games. The movie does a great job of getting across the pain and frustration inflicted on the characters by the tyrannical Capitol. Jennifer Lawrence again did a great job as main character Katniss Everdeen. Even though I am very familiar with the books, I really felt for the characters when they suffered unexpected setbacks, though I knew exactly what was coming. That rarely happens when I watch other movies based on stories I am already familiar with. Because the movie compresses certain events and gives you little time to reflect on the action, the world-building flaws that are the biggest flaw of the books are less glaring here.

One notable shortcoming of the movie is a problem inherent in the story adapted from Collins’ book. It is difficult to believe that it takes Katniss so long to figure out what is really going on in the 75th Hunger Games. Also, some of the world-building problems in the book do crop up from time to time in the movie. For example, it is hard to understand why the Capitol is constantly relying on propaganda, yet has [...]

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The Prospect of Scottish Secession from Britain

One of the major issues on the British political agenda while I have been in the UK this week giving talks about Democracy and Political Ignorance is the prospect that Scotland might become an independent nation separate from the United Kingdom. A referendum on independence is scheduled for September 2014. A recent poll shows the “no” side with a substantial but not insurmountable 47-38 lead.

If Scotland does secede, in the short run Scots might suffer significant economic pain. Scotland is historically a net recipient of funds from the UK government, though North Sea oil has arguably offset that in recent years. If oil revenue falls (and possibly even if it doesn’t), Scotland might have to either raise taxes or cut government spending significantly. In addition, an independent Scotland might not be allowed to rejoin the European Union, if Spain decides to veto its application in order to deter secession by Catalonia. Exclusion from the EU might subject the new nation to trade barriers from some of it’s most important trading partners.

In the long run, however, an independent Scotland might actually improve its economic performance if the cutoff of UK funds forces it to adopt more free market-oriented policies. This is what happened with Slovakia after the breakup of the Czechoslovakia. Ironically, the Scottish government is seeking independence in part because they want to pursue more left-wing economic policies than the present UK government does, which may not be possible, given the tighter fiscal constraints an independent nation might face. Another potential irony is that Britain’s Conservative Party – historically among the strongest opponents of Scottish independence – would benefit politically if independence actually happened, because most of Scotland’s seats in parliament are held by the rival Labor Party.

In my view, the main criterion [...]

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Ian Millhiser on Me, the Federalist Society, and “Judicial Activism”

Ian Milhiser at ThinkProgress has written an article on the recently concluded Federalist Society National Convention, where he claims it shows that conservatives have embraced wideranging “judicial activism.” He also includes a summary of a discussion he had with me, at the convention. The summary is accurate in so far as it goes, but omits crucial context:

My sparring partner during much of this closing reception for the Federalist Society’s annual lawyer’s convention, is Ilya Somin, who is a law professor and writer for the Volokh Conspiracy, a popular legal blog that thousands of lawyers, law clerks and judges read every day. As Ilya lays out Social Security’s supposed vices, I wonder if his readers are aware of the breadth of his agenda. I also chide him that voters would have an easy time making up their minds if Republicans campaigned openly on promises to abolish child labor laws and kill Medicare, but he is completely unapologetic for his beliefs. This is not a man who pretends to care about the poor and the middle class in order to sell policies that will lower his own taxes. I leave the reception convinced that he sincerely believes that America’s poor would be better off if they only embraced his vision for a libertarian utopia.

Ilya’s views are not universal, but they are hardly unusual at this gathering of what is arguably the most powerful legal organization in the country.

I did indeed say that I oppose Social Security. This is hardly an unusual position for free market advocates. Milton Friedman and most other leading libertarian economists have advocated the same view, as have many pro-free market conservatives, from Barry Goldwater to Ronald Reagan. Even a big government conservative, such as George W. Bush, proposed a plan to privatize large parts of [...]

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Upcoming Talks in Britain on Democracy and Political Ignorance

Next week, I will be giving four talks about my book Democracy and Political Ignorance: Why Smaller Government is Smarter
in the United Kingdom. Here is the list:

November 25, 7-8:30 PM: Oxford Hayek Society, Oxford University, Christ Church College, Lecture Room TBC, Oxford (more details and RSVP link here).

November 26, 6:30 PM-8 PM: Institute of Economic Affairs/Adam Smith Institute, Adam Smith Institute, 23 Great Smith Street, London SW1 (more details and RSVP here).

November 27, 4-5:30 PM: University of Winchester Law Department, The Stripe, King Alfred Campus, Sparkford Rd., Winchester Hampshire SO22 4NR (details and RSVP information here).

November 28, 4:30-6 PM: King’s College, London, Virginia Woolf Building VWB 6.32 (this event is primarily for King’s College faculty and students). [...]

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The Impact of the Volokh Conspiracy on the Obamacare Litigation

Part of my concluding essay in my new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (coauthored with VC co-bloggers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel) deals with the impact of the VC and the blogosphere on the case. Here is an excerpt:

What role did the Volokh Conspiracy play in the legal battle over Obamacare? It is easy to identify two polar-opposite views on the subject: that our influence was decisive, and that it made no real difference at all. A March 2012 article in the Atlantic claimed that “[b]logs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges.” On the other hand, Yale Law School Professor Jack Balkin argues that “the single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media.” The support of the GOP was the main factor giving credence to a position that was “in the view of most legal professionals and academics, simply crazy.”

In my view, the truth is somewhere in between. Balkin’s emphasis on the role of the GOP has considerable validity. If Obamacare and the individual mandate had enjoyed broad bipartisan support, it is highly unlikely that the Supreme Court would have even come close to striking them down….

But such political factors are only a partial explanation of what happened. We should remember that the ACA was far from the only Obama policy that was bitterly opposed by the GOP. Republicans were just as strongly united in opposition to other administration initiatives such as the 2009 stimulus bill. At least with respect to the stimulus, there was

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Excerpt from My Concluding Essay in A Conspiracy Against Obamacare

Today is the publication date for A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, a book I coauthored with VC co-bloggers Jonathan Adler, Randy Barnett, David Bernstein, Orin Kerr, and David Kopel. The book compiles our most important VC posts on the Obamacare case and its aftermath, as well as some of our other writings on the subject. It also includes new retrospective essays on the case by each of the six coauthors. Several of us were extensively involved in developing the legal arguments against Obamacare, especially Randy Barnett.

Here is an excerpt from my concluding essay, which discusses the significance of the Supreme Court’s decision, and also the role of the VC and the blogosphere generally in influencing public and elite debate over the case. This excerpt addresses the former issue. Tommorrow, I will post an excerpt from the essay that focuses on the latter:

While the long-term effect of the ruling is difficult to predict, it is clear that opponents of the individual mandate won some important legal ground, despite the painful setback of having the mandate upheld as a “tax.” More fundamentally, the deep division on the Court suggests that the constitutional scope of federal power will continue to be a hotly contested issue….

The most immediate result of NFIB v. Sebelius is that the Affordable Care Act survived largely intact. Although the Court transformed the individual mandate into a “tax,” there will probably be no more than minor effects on the operation of the mandate in practice. The Court’s decision to strike down the mandatory expansion of Medicaid was an important victory for federalism. But many states have already accepted the expansion voluntarily and others may do so in the future. The Medicaid ruling impedes the implementation of Obamacare, but surely

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Upcoming Josh Blackman Presentation on his book Unprecedented at George Mason University School of Law

This Wednesday from 5 to 6 PM, South Texas College of Law Professor Josh Blackman will be doing a presentation on his book Unprecedented: The Constitutional Challenge to Obamacare at George Mason University School of Law. In addition to being a highly successful young legal academic, Josh is also a prominent blogger, and a GMUSL graduate.

The event is sponsored by the GMU School of Law Students for Liberty (for which I am the faculty adviser), and will take place in Hazel Hall, Rm. 121. I will briefly comment on Josh’s book after his presentation, and he will have an opportunity to reply. I reviewed the book here. Although I have several disagreements with Josh’s analysis of the case, his book is a great read and is the closest thing to a definitive blow-by-blow account of the Obamacare litigation that we have so far. [...]

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NAACP Backs State Autonomy on Marijuana Policy

The NAACP recently passed a resolution backing a proposed federal law that would prohibit enforcement of federal laws banning marijuana in states that have imposed lesser penalties or have legalized marijuana entirely. The resolution cites the “misguided and misplaced policies” of the War on Drugs, which have resulted in “the disproportionate over-confinement of racial and ethnic minorities.”

In one sense, this is not a surprising move. The NAACP previously called for an end to the War on Drugs in 2011, for similar reasons. But it is somewhat unusual for the nation’s most prominent African-American civil rights organization to back state autonomy on an important policy issue. For many decades, most political liberals and most minorities associated “states’ rights” with the defense of racism and segregation.

The NAACP’s endorsement of state autonomy on this issue certainly does not mean that they necessarily support greater political decentralization generally. But it is of a piece with other recent moves towards a more positive view of federalism on the left, including Yale Law Professor Heather Gerken’s work on the subject. Gerken argues that, despite its historic association with racism, conditions have changed in ways that make federalism more beneficial to minorities today than it might have been in the past. In some of my own work (e.g. here and here), I have argued that federalism was not uniformly harmful to minorities in earlier periods in American history either. During some crucial time-frames, minorities might well have been worse off under a unitary national policy on racial issues than they were with federalism.

None of this proves that federalism is always good for minorities, either today or in the past. There clearly are times when federal government intervention is the best way to protect minorities from state or local oppression. But it [...]

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Book Signing at the Federalist Society National Lawyers Convention

Next Friday, November 15, from 11 to 12 AM, I will be signing copies of my recently published books Democracy and Political Ignorance: Why Smaller Government is Smarter and A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, at the Federalist Society National Lawyers Convention, in the main promenade of the hotel hosting the event. Both books will be available for sale at a discounted price.

A Conspiracy Against Obamacare is coauthored with five of my VC co-bloggers (Jonathan Adler, Randy Barnett, David Bernstein, Orin Kerr, and David Kopel), and some of them are likely to be around as well. If you are going to be at the convention and are interested in getting your book signed, or just want to come by to talk about the books, I hope you will drop by. [...]

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