D.C. Circuit Grapples with Eminent Domain Taking in Southeast DC

From BLT, the D.C. Circuit is considering the taking of a shopping center in Southeast D.C. For those of you who have never been to Southeast, it is one of most impoverished areas of the region. Not much of a surprise that DC is targeting this area, and not somewhere in Georgetown or Dupont. As I discuss in my Loyola Law Review on eminent domain, the burdens of eminent domain takings for private development disproportionately fall on the poorest segments of society. Tragically, those least prepared to fight eminent domain are most likely to be victimized by it. In this case, the plaintiffs are represented by a sole practitioner from Virginia.

Based on the questioning, the Judges seem to sniff through the veneer of the “public use” and realize that this may be a transfer for private gain.

[Judge] Williams grilled Schifferle about the District’s intent to purchase the land for some $25 million and then resell it for $4 million. Williams said that plan “raises questions.” He said that it “looks like a pretty sweet deal” for private interests and that the cost to taxpayers doesn’t “suggest an advancement of the public interest.” Schifferle responded there are no allegations of corruption or bribery.

Schifferle said there’s no contract to develop the property, just an “exclusive rights” agreement with a developer. Development of the land, he said, would serve as a catalyst to growth in Southeast Washington.

Reselling private land at a huge loss to private developers? Sounds like a transfer to me. Though under Kelo, this transfer is perfectly permissible.

5th Circuit Grants Standing to Katrina Victims Suing Energy Companies Based on Global Warming Claim

The 5th Circuit, a historically conservative court, has granted standing to allow Victims of Hurricane Katrina to sue energy companies who emitted carbon for damage to their property. H/T WSJ Blog Reports

The central question before the Fifth Circuit was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendant’s actions. The defendants predictably assert that the link is “too attenuated.”

But the Fifth Circuit held that at this preliminary stage in the litigation, the plaintiffs had sufficiently detailed their claims to earn a day in court.

In so holding, the court notably quoted a recent Supreme Court opinion that “accepted as plausible the link between man-made greenhouse gas emissions and global warming” along with the fact that “rising ocean temperatures may contribute to the ferocity of hurricanes.”

Of course, this case is based on Massachusetts v. E.P.A., 549 U.S. 497 (2007).

The 5th Circuit Opinion can be found here. Some choice excerpts:

In Mass v. EPA “Massachusetts had standing to challenge the EPA’s decision not to regulate the emission of greenhouse gasses, see Massachusetts . . . [and] the Court accepted as plausible the link between man-made greenhouse gas emissions and global warming.”

In holding that Massachusetts had standing to challenge the EPA’s decision not to regulate the emission of greenhouse gasses, see Massachusetts, 549 U.S. at 522-23, the Court accepted as plausible the link between man-made greenhouse gas emissions and global warming, id. at 523 (noting the “causal connection between man-made greenhouse gas emissions and global warming” in finding that “EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming. At a minimum, therefore, EPA’s refusal to regulate such emissions ‘contributes’ to Massachusetts’ injuries”), as well as the nexus of warmer climate and rising ocean temperatures with the strength of hurricanes.“

“Thus, the Court recognized, in the same context as the instant case, that injuries may be fairly traceable to actions that contribute to, rather than solely or materially cause, greenhouse gas emissions and global warming.”

Regarding traceability, one of the prongs of standing, the court found:

“Here, the plaintiffs’ complaint alleges that defendants’ emissions caused the plaintiffs’ property damage, which is redressable through monetary damages; for example, the plaintiffs allege that defendants’ willful, unreasonable use of their property to emit greenhouse gasses constituted private nuisance under Mississippi law because it inflicted injury on the plaintiffs’ land by causing both land loss due to sea level rise and property damage due to Hurricane Katrina . . .  Similarly, the plaintiffs allege that defendants’ emissions constituted a public nuisance because they unreasonably interfered with a common right of
the general public by causing the loss of use and enjoyment of public property through erosion of beaches, rising sea levels, saltwater intrusion, habitat destruction, and storm damage. Because the injury can be traced to the defendants’ contributions, the plaintiffs’ first set of claims satisfies the traceability requirement and the standing inquiry.”

This could be potentially significant.  Quoting J. Russell Jackson, who specializes in mass tort litigation, WSJ reports:

“With this decision,” he says, “you are now pretty well assured of seeing others file these kinds of claims.”

Good luck to the new U.K. Supreme Court. I’m waiting for their Marbury Moment.

via A U.K. Court Without the Wigs – WSJ.com.

A point of particular sensitivity is the prospect that the new top court will trump the role of legislators — an accusation frequently made in the U.S. when courts wade into issues like abortion. The U.S. court’s authority grew from a bare outline in the 1789 Constitution. Its role in vetting the laws of the land was asserted famously by Chief Justice John Marshall in his 1803 Marbury v. Madison opinion, and accepted only grudgingly by the executive and legislative branches in succeeding decades.

Peter Goldsmith, a former U.K. attorney general and currently a London-based partner at U.S. law firm Debevoise & Plimpton LLP, is among those who believe that judges of the U.K. Supreme Court could take on an American-style assertiveness. That has “important constitutional implications,” Lord Goldsmith says. “There are some decisions that should be taken at the ballot box and some at the bench, but you should be careful which are which.”

But no worries. The head of the new Supreme Court isn’t concerned.

The head of the new court plays down the idea of a power grab. “I don’t think we’ll get too big for our boots,” says Lord Phillips, in his new office with a view of the Houses of Parliament behind him.

Are Judges capable of not getting too big for their boots? Once they have the power, how can they feel restrained from using it?

Pretty cool picture of their new robes, after the jump. Reminiscent of Chief Justice Rehnquist’s robe after he added those stripes on the sleeve.

Going Galt in India. Sales of Rand Skyrocket in World’s Largest Democracy

via Jennifer Burns on the surprising popularity of a libertarian hero in India | Foreign Policy. (H/T Instapundit)

At tea parties and town halls nationwide, amid outrage over government bailouts of Wall Street banks and Detroit carmakers and the supposed socialization of health care, protesters speak of “going Galt,” refusing to work in what they see as a socialist economy, just as Rand’s hero John Galt did.  But all this makes a certain amount of sense. Perhaps more surprising is the Ayn Rand boom that is building in another mass democracy: India.

Not only do Indians perform more Google searches for Rand than citizens of any country in the world except the United States, but Penguin Books India has sold an impressive number of copies — as many as 50,000 of Atlas Shrugged and The Fountainhead each since 2005, a number comparable to sales there by global best-seller John Grisham.

In a culture that forces the individual to subjugate himself for the good of the collective, Rand’s works tower as a beacon of liberty and sanity. I am not surprised that it is so prevalent now, especially in a culture like Indian.

For many Indians, she is a tonic of modernization, helping to inspire a break with India’s collectivist, socialist past. Rand’s mixture of capitalist boosterism and self-empowerment is an irresistible combination for a range of Indians, from think-tankers to corporate barons to pop stars.

My favorite quote was “Gargi Rawat, a correspondent and news anchor for top tv channel ndtv and a former Rand admirer, says Rand’s theory of the supremacy of reason and the virtue of selfishness adds up to “the antithesis” of Indian culture, which explains the attraction for Rawat in her youth and for many rebellious Indian teens today.”

I’m glad the Gospel of Rand is spreading the World Over.

Update: Thanks to Ilya Shaprio at Cato@Liberty Blog for the H/T.

Tyler Cowen on the Benefits of Creating Green Jobs

I am sick and tired of politicians, Republicans and Democrats alike, bragging that they “create” jobs. No. The only way the government can actually add a job is by hiring a civil servant. And this civil servant’s salary comes at the expense of the taxpayers. Ultimately, a private employee may lose their job because his employer can no longer afford to pay the taxes the government mandates. Simple economics, it seems.

Yet, the current vogue is for politicians to brag about the benefits of  “creating green jobs.” This makes even less sense.

Tyler Cowen has a great post debunking the myth of “creating” green jobs.

Here is a report from Gabriel Calzada Alvarez, on green jobs:

Optimistically treating European Commission partially funded data, we find that for every renewable energy job that the State manages to finance, Spain’s experience cited by President Obama as a model reveals with high confidence, by two different methods, that the U.S. should expect a loss of at least 2.2 jobs on average, or about 9 jobs lost for every 4 created, to which we have to add those jobs that non-subsidized investments with the same resources would have created.
And this:

The study calculates that since 2000 Spain spent €571,138 to create each “green job”, including subsidies of more than €1 million per wind industry job.

You can quibble with those numbers for a long time but when you admit opportunity cost basically he has the right idea.  This topic came up a few times in Edmonton and in the U.S. there is a guy named Bracken Hendricks pushing the “green jobs” argument.  To be sure, there are very real benefits from limiting climate change.  But if it takes more jobs to produce “green energy,” that is a net cost to the economy, not a benefit.  Hendricks notes:

We estimate this sustained expansion in clean-energy investments triggered by the economic stimulus program and the potential implementation of Federal climate and clean-energy legislation, can generate a net increase of about 1.7 million jobs nationally.

We’re dealing now with something beyond the Keynesian short run and so those extra jobs are a drain of resources from elsewhere.  If you wish, sub out the word “energy” and sub in the word “agriculture” and then reevaluate the sentence from the vantage point of 1900.  Would it truly create net jobs — much less good jobs — to trash tractors and industrial fertilizer?  The ideal situation would be a technology where very few jobs were required to create and distribute the nation’s energy supply.  Remember Bastiat’s candlemakers’ petition against the sun?  It’s turning out to be a better hypothetical example than Bastiat himself ever realized.

Truth.

Quinn is right. The Evolving Crackberry Culture: Why Compulsive Blackberry Checking Is Becomming Socially Acceptable.

I previously blogged about Quinn Emanuel’s new policy, requiring attorneys to check their blackberrys every hour. I argue this isn’t frequent enough, but I do think this move has some positive societal value, as it helps develop the crackberry culture.

I applaud the powers that be at Quinn. The more depraved crackberry addicts there are, the more normal I look, and the more socially acceptable my bizarre and compulsive behavior becomes.

If you have ever had dinner with D.C. Lawyers, you will no doubt be familiar with the following site: Everyone at the table has their blackberry on the table. At any given time, one or more attendee will be pecking away an e-mail, sending a BBM, updating their twitter with a funny joke they just heard at the table, or researching the answer to a trivia question someone asked.

To those outside the urban jungle, this may seem like absolutely bizarre behavior. The first time I told people in Johnstown, PA about this behavior, they were stunned when I described these social norms. (Of course, I leave my blackberry in my pocket while eating with my Judge.)

But, I argue that the culture is changing.

As more and more people engage in this compulsive crackberry checking, norms change. It becomes less grotesque, and more socially acceptable.

I’m sure at some point it was uncouth to answer a cellular phone at dinner. Now, it is only marginally improper. I think blackberrying should be more proper, mainly because it creates no distracting noise (other than the clicking of the keys), and is usually finished much quicker than placing a phone call (i can read and reply to a message in a few seconds).

Some people are repulsed when I have a conversation with them, while typing on my blackberry, assuming I am not paying attention. I apologize for any offense I may cause, but years of blackberrying have trained me to multitask like a pro. I’ve tested this with my co-clerk, and I can usually follow 80% of a conversation while I’m typing on my blackberry. I submit that this is not much lower than what I would normally follow if I gave someone my undivided attention. From a utility perspective, I would rather be able to have 2 conversations at 80%, than one conversation at 90 or 95%.

For the present, I am still a social anomaly. But I am confident that over the years, my behavior will become more acceptable.

Pioneers always take the arrows.

Supreme Court Questioning Styles: Match the Justice with the Style

At USA Today, Jane Biskupic describes the questioning style of each of the Nine Justices.

See if you can match the Justice with the Style.

• Head-on
• In late for the kill
• Rat-a-tat-fact
• In-your-face
• Setting the record straight
• Hydra-headed hypos
• Bottom line
• Mr. No-Nonsense
• Silent in his seat (too easy)

Answers after the Jump:

My Crackberry Addiction Makes Me a Perfect Candidate At Quinn Emanuel, And My Personal Blackberry Policy

From, Above The Law, Quinn Emanuel has instructed their associates to check their blackberry always and often. I find this policy totally sensible:

LESSON NUMBER ONE: You should check your emails early and often. That not only means when you are in the office, it also means after you leave the office as well. Unless you have very good reason not to (for example when you are asleep, in court or in a tunnel), you should be checking your emails every hour. One of the last things you should do before you retire for the night is to check your email. That is why we give you blackberries. I can assure you that all of our clients expect you to be checking your emails often.

I agree, that the only times when I do not check my blackberry are when I’m in the air (I loathe flying because of the downtime, and leave my blackberry on in air because once in a while an email will slip through at 30,000 feet), and while sleeping (I do shut all notifications off while I’m asleep, which isn’t really too long in my life).

But, I do not think this policy goes quite far enough. Here is my personal Blackberry policy, which I rigidly adhere to.

Once an hour is totally inadequate. You should check your blackberry as you receive a message. Even if you cannot respond to the message right away, flag for a reply later. Or, reply, and let the person know you are on the issue, but are currently preoccupied.

Further, a text message, GChat, or a Blackberry Message (BBM for those in the know) should be replied to immediately. These should be used sparingly, as they imply the need for an immediate response. But when someone sends you such a communique, don’t leave them hanging. Facebook messages are a gray area. But a relatively prompt response is just polite.

You should be well versed enough with googling on your blackberry to be able to access key sites like findlaw, scotusblog, volokh conspiracy, etc. RSS readers are helpful but not necessary (I don’t like them). You should never not be able to look up some fact.

Finally, if you are a blogger, WordPress for your blackberry is an ideal application. You can write posts on the go, upload photographs you take wherever you go to you blog, and instantly moderate comments.

There is little that cannot be done with a Blackberry, if you use it properly.

Update: Check out my other post on Quinn & Crackberry!