Reason.tv Rand-O-Rama: The Long Shelf Life of Ayn Rand’s Legacy

Check out the first in a series of Reason.TV videos about Rand.

 

My Legal Heart Is Broken. Learned Hand was not his Real Name, Learned was his Middle Name

Every first year law student knows that Judge Learned Hand of the Second Circuit has the most bad-ass name of any Judge, ever. Even cooler than Judge Friendly.

But that is not his real name!

His real name is Billings Learned Hand. Billings? Really? Like Montana. Ugh.

My legal heart is shattered. From now on, I shall call him Billings Hand. Just doesn’t have the same ring to it.

And, some choice comments from a facebook thread I started:

• You know, I had enough of the crushing of my hopes and dreams from Legal Writing, and you go and post something like this.
• If it makes you feel better, I thought they called him learned hand beacause he was really smart and his last name was hand. Kind of like if he was a judge it would have been judge hand.
• For the first 2 months of lawschool, I wondered why every judge’s first name began with J. E.g., (Hand, J.) Then I realized J. stood for judge. Fail

• Why did you have to reveal that? That’s like telling a four year old about the secret of Santa Claus. Come on Blackman!
• I have to admit, I liked the name too, but isn’t Billings Hand more appropriate for the modern practice of law anyways?
• When he wanted to deny a motion, instead of saying “motion denied”, he would say “talk to the Hand”.
• The above would be funnier if he had served with a judge named face….then we would get “Talk to the Hand cause the Face ain’t listenin”

Supreme Court Releases January Oral Arguments Calendar, Comstock set, McDonald v. Chicago not

From SCOTUSBLOG, the January oral argument calendar is set. Most visibly lacking is the McDonald v. Chicago.  But Comstock is set for Tuesday, Jan 12. That’s gonna be interesting.

The Supreme Court on Monday released the list of cases to be argued in the sitting beginning Mon., Jan. 11.  It can be found here.  There will be no afternoon arguments.  The first case of each day begins at 10 a.m.  The day-to-day list of cases on the calendar, with a summary of the issues involved, appears after the jump.

 

Mon., Jan. 11:

Alabama v. North Carolina (132 Original) — interstate dispute over enforcement of regional pact on disposal of radioactive wastes; responses to Special Master’s report

Briscoe v. Virginia (07-11191) — scope of crime lab analysts’ role in a criminal trial; sequel to Melendez-Diaz on Sixth Amendment Confrontation Clause rights

Tue., Jan. 12:

U.S. v. Comstock (08-1224) — constitutionality of prolonged imprisonment of sex offenders after sentences completed

Abbott v. Abbott (08-645) — parents’ rights under Hague Convention on child custody

Wed., Jan. 13:

American Needle v. National Football League (08-661) — antitrust liability of pro sports leagues for joint commercial activity

Jerman v. Carlisle (08-1200) — legal error as an excuse for violation of debt collection law

Mon., Jan. 18 — Legal holiday; no arguments

Tue., Jan. 19:

Mac’s Shell Service v. Shell Oil (08-240) and Shell Oil v. Mac’s Shell Service (08-372) — franchise operators’ right to sue over non-renewal of contract; cases consolidated for one hour of argument

Granite Rock Co. v. International Brotherhood of Teamsters (08-1214) –federal courts’ authority to interpret labor union contract on arbitration

Wed., Jan. 20:

Berghuis v. Smith (08-1402) — make-up of jury pool to reflect cross-section of the community

Conkright v. Frommert (08-810) — release of workers’ claims under ERISA

New Article on Distinction Between Taking and Taxing

From SSRN, The Taking/Taxing Taxonomy (H/T Legal Theory Blog_

Takings jurisprudence is engaged in a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.

This Essay offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between taking and taxing. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.

The main thesis of the Essay is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.

Identifying American property law as conforming to two fundamental principles-formalism of rights and strong market propensity-but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Essay explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Essay shows why taxation is considered a “lesser evil” type of government coercion, how the taking/taxing dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and private control of assets.

 

Perhaps more interesting, to me at least, than the discussion between taking and taxing, is the concepts of taxonomy’s in general. Professor Solum plucks these paragraphs:

T he enterprise of legal taxonomy need not be understood as necessarily yielding to formalist or positivist conceptions of law, one in which law purports to be capable of dividing the legal world into neat distinctive categories that simply reflect “objective” legal reality.201 Taxonomies and legal categories are analytically and jurisprudentially essential to maintaining a reasonable level of clarity and certainty in organizing the world around us, developing legal expectations, and understanding the normative and policy considerations with respect to different actors, resources, and legal relationships. And yet, no legal taxonomy can be portrayed as wholly detached from the institutional and normative foundations that stand at its basis.202 Even the allegedly most basic distinctions in law, such as between private and public law, are not “natural” in the sense that these must follow a single formula or that they run across different legal systems irrespective of the governing normative and institutional principles in each one of them. The challenge that a legal system thus faces is to find the appropriate balance between the essentiality of creating a comprehensive taxonomy of legal orderings, while at the same time avoiding the pitfalls of enshrining legal categories as inherently superior to the underlying institutional and normative tenets of the legal system as a whole.

Property law faces particularly intriguing challenges in creating and maintaining such a workable division. As a field of law which sets up the ways in which society orders resources and human relationships around them, property is typified by the fact that entitlements and obligations in regard to resources regularly implicate numerous parties not only as a matter of abstract analysis, but also in social and economic practice.204 Thus, although property is so laden with values and constant moral, political, and societal inquiries,205 excessive ad hocery aimed at attaining resource-specific efficiency, justice, or some other underlying normative goal comes with its own high price tag, since it undermines the broad and relatively straightforward signals that property should send about its core attributes to the large numbers of legal actors implicated by its rules.

One more note is in place here about the nature of legal taxonomy, particularly in property law. A point that is often overlooked in the jurisprudential debate over the enterprise of legal taxonomy is that the link between the number of legal categories and the simplicity of the legal system is not straightforward. The question is not only how many different types of legal categories we have, and how easy it is for us to classify a particular event or situation as falling within a specific category, but also what is the type of legal norm that applies to each category, i.e., whether the norm is designed as a clear- cut “rule” that sets out a straightforward, relatively rigid decree, or rather as a “standard,” a broadly phrased provision that requires further, later stage crystallization.207 This means that even what might seem at first glance to be a very orderly division of the world into legal categories can turn out to be quite different if each legal category is governed by a broad and vague standard that may more than offset the alleged tidiness of having carved- out distinctive categories for different types of disputes. This is an issue of tremendous importance in takings law, within which the different categories can be governed by either “per se” rules or by highly complicated and “muddy” standards, mostly in the case of regulatory interventions with property. It is thus essential to realize that “taxonomy” is not synonymous with “simplicity” or “rigidity.”

Supreme Court Grants Cert in 4 Cases

H/T SCOTSUBlog. Nothing earth-shattering, but worthwhile to note.

The full order list is here.

Docket: 08-998
Title: Hamilton, Chapter 13 Trustee v. Lanning
Issue: The Court limited the question presented to the following: “Whether in calculating the debtor’s ‘projected disposal income’ during the plan period, the bankruptcy court may consider evidence suggesting that the debtor’s income or expenses during that period are likely to be different from her income or expenses during the pre-filing period.”

• Opinion below (10th Circuit)
• Petition for certiorari
• Amicus brief of the United States (recommending that cert. be granted)

Note: Akin Gump now represents the respondent in this case.

Docket: 08-1457
Title: New Process Steel v. National Labor Relations Board
Issue: Whether Section 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b), authorizes the NLRB to act when only two of its five positions are filled, if the Board has previously delegated its full powers to a three-member group of the Board that includes the two remaining members; does the NLRB have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the U.S. Chamber of Commerce

Docket: 09-223
Title: Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc.
Issue: Does either the Tax Injunction Act, 28 U.S.C. § 1341, or comity principles bar federal court jurisdiction over a case alleging federal equal protection and dormant commerce clause claims when the plaintiffs do not challenge their own tax assessment and the relief sought is directed to specific tax exemptions or exclusions applicable to only four other taxpayers?

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief for 29 states

The Court has invited the Solicitor General to submit briefs in the following cases:

Docket: 09-34
Title: Pfizer Inc. v. Abdullahi et al.
Issue: Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.

• Opinion below (2^nd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Chamber of Commerce of the United States of America
• Brief amici curiae of Washington Legal Foundation et al.

Note: Neither Chief Justice Roberts nor Justice Sotomayor took part in this order.

http://www.scotusblog.com/wp/todays-orders-44/

Barnett Video: Was Lochner Right? Natural Rights and the Fourteenth Amendment

Check out Professor Barnett’s Lecture at Duke Law School on Lochner, Natural Rights, and the Fourteenth Amendment.

H/T Paul G. on FB

Professor Barnett gave a similar talk at George Mason this past year (pictures here). I’m glad Duke was able to record it. Definitely worth a watch.

Jeff Rowes on IJ’s Suit Challenging Ban on Compensation for Bone Marrow Transplats

At Volokh, Jeff Rowes provides a sketch of IJ’s new suit challenging NOTA and bone marrow transplants. Read the entire post, but here is the constitutional theory:

Of course, not every legislative mistake is unconstitutional.  But a legislative mistake so profound as to render a statutory provision irrational is unconstitutional when it affects liberty.  The Supreme Court has invalidated irrational statutes under the rational basis test at least a dozen times and there are literally hundreds of state and federal cases doing the same thing.

Here’s our constitutional theory in a nutshell.  The provable absence of a rational basis for the bone marrow provision of NOTA means that the statute violates the substantive due process right of doctors, nurses, patients, and donors to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Next, throwing people in prison for compensating marrow-cell donors, but not throwing people in prison for compensating blood or sperm donors, violates equal protection because there is no non-arbitrary distinction between these acts.  In all cases, the donor is being compensated for safely donating renewable cells.   The flip side is also true.  Just as it is arbitrary to treat similar things differently, it is also arbitrary to treat solid organs such as kidneys like bone marrow.

I am skeptical if a Court will buy either of these arguments. If a Court goes full Lee Optical rational basis, this law will be upheld. If the Court gets an opinion similar to the casket case in Craigmiles, they have a shot. The equal protection argument seems weaker. Because these are not suspect classes, rational basis scrutiny also applies. Proving arbitrary government action is daunting. But IJ has one of the best track records of challenging the rational basis test, and I look forward to seeing their progress.

For the human element, definitely check out this IJ video:

Poll: Who does a Better Cover of Lady GaGa’s Poker Face? Cartman or Christopher Walken?

Close call in my opinion.

(H/T Lowell J.)

LOL, check out this Cartman Remix:

Constitutional Solipsism: Why the Federal Circuits’ Nonprecedential Status Rules are Unconstitutional

From SSRN, Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional (H/T Legal Theory Blog). This articel addresses an important question. What happens when a Court’s practice is unconstitutional. Many argue the nonprecedential status rules of Circuit Courts are unconstitutional. This article explores this solipsism:

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name.

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right.

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness of such a doctrine.

Althouse on ObamaCare. State Mandated Car Insurance is Different From Federally Mandated Health Insuance

Very worthwhile Ann Althouse Post on the constitutionality of mandating people buy health care. (H/T Instapundit)

While Raich allowed Congress to regulate market activity, what about market inactivity;  that is, a person NOT buying health care:

Moreover, the Commerce Clause question is quite a bit more complicated that Dean Chemerinsky makes it sound. The marijuana growers were engaging in an activity — making a product for which there is a big, regulated market. In this new case, we’d have Congress regulating people for their inaction. What other case is like that? Congress can “regulate activities that substantially affect interstate commerce”? Where’s the activity? It’s inactivity! And Supreme Court cases have limited Congress’s power where the activity in question is noncommercial. Isn’t the failure to buy insurance noncommercial?

People frequently equate health care mandates to car insurance mandates. That is, almost every state requires a person to buy auto insurance, or pay into some uninsured motorists fund. David Savage does so in this LA Times Op-ED.

But, the pivotal difference is that the states are requiring this, and not the federal government. Contrary to the protestations of many, the states have a general police power. The federal government doesn’t. While the states routinely make people do stuff, the federal government cannot compel people to do stuff.

As Roger Pilon puts, it “What next? Can Congress order you to buy spinach?”

Though, the feds frequently compel business to do stuff, but that’s a discussion for another day. When I raise this argument to most, I get glazed eyes. I’m glad Althouse is bringing this point to the mainstream.

See my previous coverage of Obamacare here, here, here, and here.