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The Courts, Criminal Justice & Tort Archive

Friday

8

June 2012

0

COMMENTS

"Some Animals Are More Equal Than Others"

Written by , Posted in Culture & Society, Identity Politics, The Courts, Criminal Justice & Tort

Americans like to believe that we are all equal before the law. It wasn’t always that way. White landowners once had special privileges. But slavery has been eliminated and suffrage extended to all citizens. Sure, some folks find exceptions and room for impreovement, but by and large we think the law gives us all the same status – that protections granted to one are granted to all.

That is not the case.

From those old days of slavery and limited voting rights, the pendulum has swung too far in the other direction. You see, there are such things as “protected classes” which receive special rights and considerations vis-à-vis the rest of society. If you belong to such a class, the law gives you additional protections. Sound unAmerican? You betcha.

Consider this story about a professional photographer forced to provide their services for a gay couple’s commitment ceremony, even though they didn’t want to (making a lie of the voluntary part of the voluntary exchange we typically think resides at the heart of a free society). I could easily go on about how this is a fundamental violation of private property rights and a form of enslavement to compel such use of another’s labor against their will. I could. But what really struck me was this passage:

The Alliance Defense Fund, a Washington, D.C.-based legal alliance of Christian attorneys and others that represented the studio, plans to appeal. Elane Photography argued that it provided discretionary, unique and expressive services that aren’t a public accommodation under the Human Rights Act.

The studio asked hypothetically whether an African-American photographer would be required to photograph a Ku Klux Klan rally.

The court responded: “The Ku Klux Klan is not a protected class. Sexual orientation, however, is protected.”

There you have it. It’s bad enough that you can be forced into service for anyone, but that you can for some and not others seems to make it much worse.

I bet you didn’t know that the Declaration really said that ” all men are created equal, except for gays, women and minorities, who belong to protected classes.” According to this court, some Americans get more rights than others. Four legs are good, you see, but two legs are better.

Monday

4

June 2012

3

COMMENTS

Obama Continues Cynical Campaign of Division, Trots Out Unequal Gender Pay Myth

Written by , Posted in Economics & the Economy, Free Markets, The Courts, Criminal Justice & Tort

In a cynical, dishonest and divisive effort to boost his flailing campaign and distract from the latest jobs report reflecting his dismal economic record, President Obama is trumping the Paycheck Fairness Act (or as I like to call it, the Trial Lawyer Payout Enhancement Act), a new onerous regulatory regime which will benefit trial lawyers at the expense of businesses and the economy, and which is based on the discredited premise that women earn less than men for equal work.

The administration propaganda machine is now offering e-cards that you can send to annoy your friends and remind everyone you know that America is still an awful, sexist country. Here is an example:

Notice the fundamental dishonesty here. A “typical 25-year-old woman” is not the same as “a typical 25-year-old man.” Women are more risk-averse, make different career choices, work different hours and value different rewards. So why should they be expected to earn the same?

Individuals draw paychecks, not identity groups, and it is their individual choices which determine what that pay check is. Men, for instance, work in more dangerous jobs and, according to the Bureau of Labor Statistics, in 2010 (the most recent year for which data is available) were 12 times more likely to die from work-related injuries than women. Should we also create a new government agency to randomly kill enough female workers each year until this grisly inequality is eliminated? The BLS American Time Use Survey also reveals that men work more hours, even when only looking at those with full-time jobs, averaging 8.2 hours per workday for men compared to 7.8 for women.

When actually looking at the facts, it is rather ridiculous to look just at average pay for full-time men and women and conclude that any difference is necessarily the result of discrimination, as the feminists do whenever they trot out the context-less “pay gap.” Even the White House has in the past acknowledged these facts by observing that men choose to work in higher paying fields than women (many of which are higher paying because they are deadly, as evidenced above).

In fact, when comparing apples to apples, women often come out ahead:

When you compare apples to apples, the so-called wage gap disappears. Young, childless, single urban women earn 8 percent more than their male counterparts. Women who have never had a child earn 113 percent of what men earn. Unmarried college-educated males between the ages of 40 and 64 earn nearly 15 percent less than their female counterparts.

The Paycheck Fairness Act, in other words, is based on a faulty premise. Men earn more on average because they choose, on average, to work in riskier jobs, work longer hours, and are also more likely to negotiate salaries and ask for raises. That’s not discrimination; It’s individuals making free choices in a free society. This is not jut my own conclusion, but also that of Obama’s own Deparment of Labor:

“This study leads to the unambiguous conclusion that the differences in the compensation of men and women are the result of a multitude of factors and that the raw wage gap should not be used as the basis to justify corrective action. Indeed, there may be nothing to correct. The differences in raw wages may be almost entirely the result of the individual choices being made by both male and female workers.”

Unfortunately, the faulty premise behind the Paycheck Fairness Act is not its only problem.  Aside from being unnecessary, the law would have significant negative consequences if enacted. The Wall Street Journal explains:

The law automatically lists women as plaintiffs in class actions when lawyers sue employers, thereby requiring female employees to opt-out of litigation with which they don’t agree. Businesses would be treated as guilty until shown to be innocent, having to prove in court that their pay practices aren’t the result of workplace bias. The legislation contains no caps on damage awards, allowing plaintiffs to claim unlimited punitive damages even in cases of unintentional discrimination.

The bill is also a first step toward federal pay mandates. It requires the Equal Employment Opportunity Commission to collect data from employers about how they compensate on the basis of sex, race and national origin. Government rarely collects data merely to put it in a vault. These numbers will form the basis of class-action suits and will invite regulators to issue federal compensation guidelines.

This is a bad law to treat a non-existent problem. Worse, it is being advanced solely for the purpose of further dividing Americans in order to elevate President Obama’s reelection campaign. Because he has no record worth running on, the President will continue dredging up every myth, fable and scare-story imaginable in order to hit on every perceived identity grievance in existence.

Monday

28

May 2012

1

COMMENTS

Common Cause Was For Filibusters Before They Were Against Them

Written by , Posted in The Courts, Criminal Justice & Tort, Waste & Government Reform

Common Cause, which is part of the left’s organized campaign to silence ALEC, recently filed a silly lawsuit seeking to have the Senate filibuster declared unconstitutional:

For years, critics of the filibuster have failed to convince senators to change the procedural delaying tactic. Now they’re taking their case to the courts.

The nonpartisan nonprofit Common Cause sued the U.S. Senate on Monday, challenging the constitutionality of the filibuster rules that require routine 60-vote thresholds for bills and nominations that often have majority support. Several House Democrats and three undocumented students who would be aided by the so-called DREAM Act also joined the suit.

Constitutionally the suit is easy to dismiss. Congress has the authority to set its own rules, and the Court neither has the authority nor the desire to say otherwise. There’s also the issue of standing, which these three undocumented illegal immigrant students don’t have just because they would have theoretically benefited from some bill that was not passed. That is just a mind boggling argument all the way around.

Common Cause would be on slightly stronger ground if they challenged the filibuster’s use to oppose appointments, rather than legislation, where the Senate has a constitutional duty to advise and consent. But even then the argument is flimsy, and the court would likely not intervene given the wide discretion it rightfully gives Congress on managing its own affairs (which contrasts with the unfortunately wide discretion it gives Congressional legislation, which should instead be closely examined for Constitutional fidelity).

But such debate assumes that Common Cause can be taken at face value as a good faith participant in the political process. The facts suggest, however, that they are merely partisan hacks staking out a position of convenience because they disagree with the ideology of the Senate’s current minority. To wit, consider Common Cause’s position when Senate roles were reversed (Hat-tip: Outside the Beltway):

In 2005, Common Cause vigorously defended the filibuster when some Republicans proposed invoking the “nuclear option” to end the filibuster of judicial nominees.  From a 2005 press release:

Common Cause strongly opposes any effort by Senate leaders to outlaw filibusters of judicial nominees to silence a vigorous debate about the qualifications of these nominees, short-circuiting the Senate’s historic role in the nomination approval process.

“The filibuster shouldn’t be jettisoned simply because it’s inconvenient to the majority party’s goals,” said Common Cause President Chellie Pingree. “That’s abuse of power.”

Sunday

13

May 2012

1

COMMENTS

Overgovernment: Distracted Walking Edition

Written by , Posted in Big Government, The Courts, Criminal Justice & Tort, The Nanny State & A Regulated Society

The old joke says that blondes can’t walk and chew gum at the same time, but the government of Fort Lee, N.J. might soon be taking it seriously if their new law is anything to go by. After all, they take a rather dim view of the capabilities of their citizens:

Avid texters beware: Fort Lee, N.J. police said they will begin issuing $85 jaywalking tickets to pedestrians who are caught texting while walking.

“It’s a big distraction. Pedestrians aren’t watching where they are going and they are not aware,” said Thomas Ripoli, chief of the Fort Lee Police Department.

Ripoli said the borough, which is home to approximately 35,000 residents, has suffered three fatal pedestrian-involved accidents this year. He hopes his crackdown on people who display dangerous behavior while walking will make his town safer…

They even pulled out the big guns, grabbing some hotshot college aca-deem-ics to “study” the problem.

Two professors at Stony Brook University in New York conducted a study on walking and texting. They found texters are 60 percent more likely to veer off line than non-texters.

I’m glad they settled the important question of whether people who don’t look where they are going are more likely not to walk straight. It was keeping me up all night.

Three pedestrians got themselves killed this year. Tragic, no doubt, but not cause for legislative action. First of all, how many pedestrians normally get killed? Were those three even on their phones? Alas, there was no real journalist around to ask the question.

This sort of social micro-management is unbecoming a free society, and probably has more to do with police budget shortfalls than an earnest effort to protect people. And even if it were born of good intentions, protecting people from themselves is no business of government. It is a waste of police resources to be nagging citizens into self-awareness.

Tuesday

3

April 2012

5

COMMENTS

The Judiciary Strikes Back

Written by , Posted in Liberty & Limited Government, The Courts, Criminal Justice & Tort

Following the President’s intemperate, childish outburst of Constitutional ignorance, one  federal appeals court is fighting back:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

…The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists.

Orin Kerr at the Volokh Conspiracy is upset over the rebuke, finding it to be “embarrassing to the federal judiciary.” I disagree. While I don’t necessarily think that demanding a three page response is necessary, standing up to the Obama’s dangerous assault on the judiciary certainly is.

The Obama administration, which leads a branch of the government, has since Citizens United all but declared war on another co-equal branch, the judiciary. I, for one, do not expect members of the judiciary to just sit back and take such a dangerous assault (see the damage wrought to our liberty and economic well-being by FDR’s successful attack on the Supreme Court), and am rather heartened to see that they are not.

Simply put, I don’t think it’s appropriate for a sitting President to engage in dishonest, populist assaults on a vital American institution in order to undermine freedom and expand the already near limitless power of government. I find pushing back against his intemperate outbursts to be entirely appropriate, certainly in intention if not the precise manner.

Tuesday

3

April 2012

1

COMMENTS

Obama Desperately Lashes Out at SCOTUS

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort

Indicating just how serious the White House is taking the Supreme Court’s review of Obamacare after the government’s dismal performance during oral argument, President Obama has lashed out with a populist and ignorant scolding of the court for daring to consider the Constitutionality of his signature legislation.

“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress,” President Obama said at a White House event in the Rose Garden today.

“I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step,” Obama said to the White House press.

Is the President really so ignorant of both the facts regarding his legislation (it was not passed with a strong majority, for instance, but instead by an extremely narrow, party-line vote), and the Court’s history? There is nothing unprecedented about overturning unconstitutional legislation. Overturning unconstitutional acts is precisely the job of the court. Or is our law professor President not familiar with Marbury v. Madison?

And as I’ve previously written, judicial activism is a red herring. The job of the court is to actively defend the Constitution.

The President later urged the court to look at the “human element,” as if liberal feel-good intentions trump the Constitution. This is typical of the left, where the ends are frequently used to justify any means. If a law is good and necessary to advance some liberal goal then it must be Constititional by virtue of the fact that the left has deemed it good and necessary. But of course that’s not how it works, and a President supposedly schooled in Constitutional law should know better.

Wednesday

21

March 2012

2

COMMENTS

Unanimous Supreme Court Slaps Down Tyrannical EPA

Written by , Posted in The Courts, Criminal Justice & Tort

Although somewhat limited in its application, today’s Supreme Court decision in Sackett vs. EPA is a victory for property rights and should serve as a shot across the EPA‘s bow. I’ll let Alito’s concurrence set the stage:

The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

We’ve still got a long way to go to restore basic property rights in this country, and the Sackett’s still have to fight the EPA on the merits of the case as they seek to disprove the claim that their own property is a “wetland,” much less a “navigable water” of which the Act supposedly deals, despite having no water. But at least now they have their Constitutional due process rights recognized*, so that they may challenge EPA’s jack-booted thugs in court without first having to rack up millions in fines waiting for EPA to allow them to do so.

EPA designated “wetland”

*To avoid spreading misinformation, I should clarify that the court did not have to draw upon the Due Process clause, as they found a sufficient statutory basis.

Monday

19

March 2012

0

COMMENTS

McCain’s Campaign Finance Ignorance

Written by , Posted in Election Time, The Courts, Criminal Justice & Tort

John McCain was on Meet the Press Sunday and used the opportunity to bash the Citizens United decision that struck down his anti-free speech “campaign finance reform” legislation. He claimed that this election is unusually negative – a similar claim that was made in 2008 and which I suspect he will make in ever single election until such time as he succeed in limited free speech – and blamed that observation on Super PACs and the Supreme Court for “unloosening” all money.

In so doing, he has confirmed that he is completely ignorant about the issue which he has made his most important, and in particular what the Supreme Court ruled. According to analysis from the Sunlight Foundation, the Super PACs which McCain blames for the perceived level of negativity have received 70% of their contribution from individuals, not the corporations and unions which were the subject of the Citizens United decision. In other words, John McCain doesn’t know what he’s talking about.

Related Update: Reason offers Five Ways Citizens United Is Making Politics Better, including “competitive campaigns, funnier ads and greater freedom of speech.”

Monday

23

January 2012

0

COMMENTS

Private Family Matters

Written by , Posted in Big Government, Liberty & Limited Government, The Courts, Criminal Justice & Tort

On the 39th anniversary of Roe v. Wade (an odd number on which to get sentimental), President Obama released a statement that begins with this extraordinary claim:

As we mark the 39th anniversary of Roe v. Wade, we must remember that this Supreme Court decision not only protects a woman’s health and reproductive freedom, but also affirms a broader principle: that government should not intrude on private family matters.

Private family matters such as which car to buy, which doctor to use, or which insurance plan to purchase…well, those are certainly the business of Barack Obama. But whether or not a helpless, arguably human life (depending on when you think such begins) is destroyed, that’s no one’s business! How is this man so widely considered a serious political thinker?

Monday

26

December 2011

0

COMMENTS

Obama Administration Sides With Freedom For Once

Written by , Posted in The Courts, Criminal Justice & Tort, The Nanny State & A Regulated Society

Finally, there is an issue for which the Obama administration has not reflexively sided with centralized government and limits on freedom:

A Justice Department opinion dated September and made public on Friday reversed decades of previous policy that included civil and criminal charges against operators of some of the most popular online poker sites.

Until now, the department held that online gambling in all forms was illegal under the Wire Act of 1961, which bars wagers via telecommunications that cross state lines or international borders.

The new interpretation, by the department’s Office of Legal Counsel, said the Wire Act applies only to bets on a “sporting event or contest,” not to a state’s use of the Internet to sell lottery tickets to adults within its borders or abroad.

…But the department’s conclusion would eliminate “almost every federal anti-gambling law that could apply to gaming that is legal under state laws,” Rose wrote on his blog at www.gamblingandthelaw.com.If a state legalized intra-state games such as poker, as Nevada and the District of Columbia have done, “there is simply no federal law that could apply” against their operators, he said.

No comment yet from the despicable, odious weasel Preet Bharara, whose ongoing crusade against human freedom has destroyed the once booming online poker industry in the U.S.

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About Me

profileI serve as Vice President of the Center for Freedom and Prosperity, a non-profit think tank dedicated to preserving tax competition and free markets. This site features my personal views, which are not reflective of CF&P.

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