Law

Fight Like Hell for the Right to Draw Muhammad…Then Choose Not to

By Tommy De Seno

Tommy De Seno was Tea Party before the rest of America boiled the water. Proudly Catholic from Asbury Park, NJ (the town that rips the bones from your back, it's a death trap, it's a suicide rap, we've got to get out while we're young), he resides in America's conservative mansion, usually found sipping adult libations in the libertarian game room. He is a trial attorney, a writer, a football and baseball coach and terrible guitar player. His writing credits are as a contributor to Ricochet… [more]

| May 6, 2015

“Words are like eggs dropped from great heights; you can no more call them back than ignore the mess they leave when they fall.”– Jodi Picoult

Let’s get something straight up front. For every terrorist attack, the blame belongs with the attackers. I don’t blame Reagan for the Beirut bombing in 1983, I blame the terrorists. I don’t blame Clinton for the 1993 bombing of the World Trade Center, I blame the terrorists. I don’t blame Bush for 9/11 or Obama for the Boston Marathon bombing. I blame the terrorists.

The Libertarian Podcast: Baltimore, Law Enforcement, and Race

By Troy Senik

Troy Senik was a White House speechwriter for George W. Bush. He is the host of the Hoover Institution podcasts Law Talk with Epstein & Yoo; The Classicist, with Victor Davis Hanson; and The Libertarian, with Richard Epstein. Senik is the author of the forthcoming book A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland.

| May 6, 2015

You won’t want to miss this installment of The Libertarian podcast. Professor Epstein is on his A-game as we review the recent riots in Baltimore, discuss whether criminal charges were brought too hastily against the police involved in Freddie Gray’s death, work through Hillary Clinton’s critique of “the age of mass incarceration,” and ponder what both law enforcement and African-American political leaders can do to ratchet down the tensions. Listen in below or subscribe to The Libertarian through iTunes or your favorite podcasting app.

Given the Choice, George Soros Opts, Ever So Gingerly, For Lower Taxes

By Joe Malchow

| April 30, 2015

Approximately $13.3 billion of Soros’s net worth is owed to tax avoidance or deferral, say some attorneys at Cravath to Bloomberg. His total federal/state/NYC tax liability on these monies is $6.7 billion, which is payable by 2017.

The article also contains this beauty from a Soros tax attorney:

Sticks & Stones Hurt. Now, Words Do Too

By Cameron Gray

Cameron Gray (On Twitter: @cameron_gray) is a broadcast media professional, with over 25 years of experience. He currently works for NRA News and Compass Media Networks. In the past, he has worked for SiriusXM Satellite Radio, CBS Radio, and the Washington Redskins Radio Network. Born in Brooklyn, New York, Cameron moved to Central Virginia for high school, then moved on to George Mason University in Northern Virginia. There, he earned a BA in Speech Communications and an MA in Telecommunicat… [more]

| April 30, 2015

This week, in Baltimore, we witnessed lawlessness and violence at levels not seen since the late ’60s. Freddie Gray protesters looted and burned down homes, businesses, and even a church’s 60-unit senior home and community center. Police were hurt by thrown rocks, bottles, and other projectiles. Shop owners were savagely beaten by mobs of rioters. Cars were burned en masse.

Out of this, as in the aftermath of other recent protests nationwide, have come calls for dialogues on policing, race relations, and problems faced by minority communities. All worthy discussions, to be sure. However, a controversy has also developed over the use of a word.

The Libertarian Podcast: “Hollywood, Washington, and Transparency”

By Troy Senik

Troy Senik was a White House speechwriter for George W. Bush. He is the host of the Hoover Institution podcasts Law Talk with Epstein & Yoo; The Classicist, with Victor Davis Hanson; and The Libertarian, with Richard Epstein. Senik is the author of the forthcoming book A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland.

| April 30, 2015

Are some companies so powerful that the public should have a right to know about their internal deliberations? That’s the argument WikiLeaks offered up when they decided to publish the entire archive of the Sony emails that were hacked last year. In this episode of The Libertarian podcast, Professor Epstein looks at the legal recourses that are available when information that was intended to stay private goes public; the limits of First Amendment protections for people who’ve stolen privileged information; and what it means to live in a world where your every e-mail could someday be newspaper fodder. Listen in below or subscribe to The Libertarian via iTunes or your favorite podcasting app.

William Saletan Thinks About The Definition of Marriage…

By Rachel Lu

| April 30, 2015

…for about five seconds. But you know, that’s something.

Over at Slate, Saletan kindly explains to us why Justice Alito and Charles Krauthammer (in an old column still making the rounds) are wrong to suppose that the arguments made in favor of same-sex marriage might also be used to justify polygamous marriage. What it boils down to is that there are basic, natural facts about human beings that make monogamy stable and salutary in a way that polygamy just isn’t. Basically, the problem is jealousy. When we give our lives to another person, we want that person to be equally devoted to us. If we invite threes and fours to the altar (or county clerk’s office, or whatever), that’s just not going to work out as happily for anyone.

Let me pause for a moment to bang my head against the wall a few times. Letting the ear-ringing die down now. OK, I’m back.

Jim, David, and the Supreme Court

By Adam Freedman

I've been writing about law, politics, and language for some years now. My book on states' rights, A Less Perfect Union, is published by HarperCollins. My book on constitutional originalism, The Naked Constitution, came out in 2012.

| April 28, 2015

I have this uncle, let’s call him Jim. He and David lived together for decades. They shared expenses, kept each other company, and generally looked out for each other. They were, in many ways, like an old married couple. But when David died, Jim had no right to receive spousal survivor benefits because he was never married to David. Why did they never marry? Because they were gay? No: because they were brothers.

Why shouldn’t Jim and David have married? They were consenting adults. They had a long-term committed relationship. Granted, there was no physical union, but so what? The idea that a marriage must be consummated by a sexual act is surely a relic of a bygone era.

Overreach at the EPA

By Richard Epstein

Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Cas… [more]

| April 28, 2015

Last week, Tennessee’s public utility regulator, Kenneth Hill, argued in the Wall Street Journal that states should boycott the EPA’s Clean Coal Plan, forcing the feds themselves to take full responsibility for whatever obligations they impose. I examine that argument and other aspects of the proposed program in my new column for Defining Ideas, and find the entire project wanting:

EPA [Administrator Gina] McCarthy praises the flexibility of her plans, by noting that the EPA “can look at stringency, timing, phasing-in, glide path,” and a lot else to make sure that grid reliability is not impaired. But therein lies part of the problem, for the question is just how much discretion should the EPA have in making decisions that could cost individual states and firms billions, especially since it appears that its direct regulatory authority to implement on its own only direct regulation of emissions from designated facilities. It looks therefore that the threat of very heavy direct cuts in output could be used to lever states to make alterations in local policy that the EPA is powerless to impose under its own authority. At this point, the crafty game of extending powers through threats does give rise to a serious constitutional challenge, as the EPA seeks to implement indirectly measures that it could not impose directly.

A Few Thoughts on the Events in Baltimore

By Jack Dunphy

"Jack Dunphy" is the nom de cyber of a police officer in Southern California. Twitter: @OfficerDunphy.

| April 28, 2015

While watching the news coverage of the rioting in Baltimore last night, I recalled a conversation I had with a gang member I arrested during the Los Angeles riots of 1992. He was a member of one of the many Crip “sets” to be found across South L.A., and I asked whether he and his fellow gangsters had any sympathy for Rodney King, whose videotaped beating by LAPD officers engendered the whole mess.

“[Expletive] Rodney King,” he said. “Rodney King ain’t no Crip. This ain’t about no Rodney King. It’s about getting free [expletive].

And so it is in Baltimore. The people you see looting and burning businesses and throwing bricks at police officers are not avenging Freddie Gray, whose death in police custody has yet to be explained. For the rioters, it’s all just a good time. The Los Angeles Times today described the “angry crowds” on the streets of Baltimore, but anyone watching can plainly see they are not angry; they are gleeful at the chance they have been given to run amok and steal, break, and burn things.

How Euthanasia Changed Holland

By Misthiocracy got drunk and

Misthiocracy got drunk and

misthios (ancient greek): salaried, hired, hired labourer krátos (ancient greek): power, strength misthiocracy: Rule by the staffers.

| April 24, 2015

The Institute of Marriage and Family Canada published a review of a very interesting new book on how Dutch society is changing since the legalization of human euthanasia. An excerpt:

Gerbert Van Loenen, a Dutch journalist, once saw Holland’s legalization of euthanasia as one of that country’s crowning achievements. This started to change when a friend insisted that Van Loenen’s partner Niek would have been better off dead than living with a brain injury. Another acquaintance said to Neik over dinner at their house, “You chose to go on living so you have no right to whine.”These experiences led Van Loenen to wonder. Where did this attitude come from? How did it become so widely accepted that people living with disability or illness are better off dead? Is the legalization of euthanasia in the Netherlands part of the cause?

Thoughts?

A Monster of Our Own Making

By The (apathetic) King Prawn

The (apathetic) King Prawn

Just another disillusioned conservative. Also not a shrimp.

| April 24, 2015

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. – James Madison, Federalist 51

In an article in National Review David French details how Wisconsin failed the challenge of that second great difficulty. The short version is that overzealous, partisan prosecutors politicized law enforcement and weaponized politics to harass supporters of Governor Scott Walker’s reforms in the Badger State.

Cindy Archer, one of the lead architects of Wisconsin’s Act 10 — also called the “Wisconsin Budget Repair Bill,” it limited public-employee benefits and altered collective-bargaining rules for public-employee unions — was jolted awake by yelling, loud pounding at the door, and her dogs’ frantic barking. The entire house — the windows and walls — was shaking.

Two More Questions for Epstein and Yoo

By Tom Meyer, Common Citizen

Tom Meyer, Common Citizen

Conservative libertarian, former Ricochet East Coast/Morning Editor. I post on Twitter @tomdmeyer

| April 22, 2015

Last week, I had the honor of having a post of mine discussed by professors Epstein and Yoo on an episode of Ricochet’s Law Talk podcast. The subject was the appropriateness of the federal government taking the lead on the Tsarnaev (Boston bombing) case despite the crime being committed in Massachusetts by two of its legal residents. Beginning at around 44:45, Yoo described the reasons in favor of it as follows (Epstein largely agreed):

[T]his is a terrorism crime. And the reason it’s a terrorism crime is because it’s politically motivated by people who are attacking us — and it just happens to be that the location is in Boston — because they disagree with our foreign policy and national security policies. And so, if this was just a guy who decided to blow-up a bomb in Boston at the Boston Marathon because he was crazy, or he hated somebody that was in the marathon, or wanted to get attention for himself, or any other variety of reasons that had nothing to do with terrorism, then he might be right…

He continues:

There’s No Good Conservative Case Against Fast-Track Trade Authority

By John Yoo

John Yoo is professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. From 2001 to 2003, he served as deputy assistant attorney general in the Office of Legal Counsel in the Justice Department of President George W. Bush. He also served as a law clerk to Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit and Justice Clarence Thomas of the U.S. Supreme Court, and as general counsel of the U.S. Senate Judiciary… [more]

| April 22, 2015

The Senate Finance Committee is taking up the topic of “fast track” trade authority today, which would empower President Obama to negotiate trade deals, namely the Trans-Pacific Partnership, an ambitious free-trade area that would cover most of our Asian trading partners (except China) and rival the European Union in size. Some conservatives, however, are resisting the proposal, claiming that it only further consolidates power in an already out-of-control executive. While I’ve been a staunch critic of President Obama’s executive overreach, I don’t think that argument holds up here. As I write at National Review:

…Critics are missing the mark by confusing fast track with Obama’s executive power grabs. Fast track does not delegate any power to the executive branch. Under fast track, the president does not exercise any new authority that he lacked before. Under normal constitutional practice, the president negotiates an international agreement and then submits it to Congress for approval. Fast-track doesn’t change that fundamental order. President Obama can negotiate any agreement he likes, and Congress is free to vote it up or down.
Instead, fast track lives up to its name: It gives expedited congressional consideration to any trade agreement. It promises that any trade agreement will be considered within a short period of time and without amendments — promises necessary in order for our trade partners to take negotiations seriously. Fast track only changes the internal procedures of Congress, which are only within Congress’s power to change, on the timing and speed of the vote on the agreement. In fact, there are some innovations in the bill that might allow even a negative vote in the House and Senate committees to effectively derail a bill. If the executive branch does not closely consult and engage Congress, the bill could also lose the promise of an expedited vote. In that event, any Obama trade pact would undergo the rules that apply to any ordinary bill, which could never come up for a vote or be so encumbered with amendments that our foreign partners will pull out.

What’s Your General Rule on Drug Prohibition?

By Fred Cole

[Y]ou betray your whole life if you don't say what you think and if you don't say it honestly and bluntly." — Charles Krauthammer

| April 22, 2015

Let me be very upfront here: I’m one of those radicals who thinks we should legalize all drugs. I’m not just in favor of marijuana legalization, but also the “hard stuff”: heroin, cocaine, LSD, and just about anything else you can think of. If you’re one of those weirdos who wants to put mescaline in your eggnog, I don’t think there should be a law against it.

We’ve had several awesome discussions recently here on drug prohibition. However, one thing that seems to be lacking, among prohibition advocates is a general principle. So to any of you prohibitionists, I’m issuing a challenge. I’m willing to listen to any prohibition standard you’re willing to propose. What I’d like to hear is a general rule on what the government should and shouldn’t prohibit, but I’m going to add a sticking point: you must apply it across the board to drugs, prescription medications, tobacco, and alcohol.

There it is. Prohibitionists are able to come up with all kinds of arguments, but I’ve yet to hear one that couldn’t also reasonably be applied to alcohol. But, I could be wrong (it happens… occasionally), so let’s hear it: What’s your general rule?

The Preservationist Instinct Run Amok

By Richard Epstein

Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Cas… [more]

| April 21, 2015

This year, the New York City Landmark Preservation Commission is celebrating its fiftieth anniversary. While the law that originally created the Commission was well-intended, the current rules under which the Commission operates regulate everything from the process by which landmarks are designated to the extensive restrictions on the ability of their owners to make any exterior or interior changes in their structures, down to the last ventilation duct, awning, window opening, and fire escape. The simplest way to think about landmark designation is that it puts the city in the position of part owner of the affected buildings, which then lets it decide how these buildings are maintained and altered, without having to bear anything close to the full financial burden of its decisions. As I note in my new column for Defining Ideas, the result is a deluge of government meddling in what surely ought to be private decisions. From the piece:

Rest assured that the behavior of landmark commissions and landmark preservationists alike would change rapidly if they had to raise public or private money to fund their prized projects. At this point preservationists, like everyone else, would have to learn to live within a budget, at which point they would moderate their demands so that only the best projects would be landmarked, and only in a way which minimizes the financial burdens to their owners.
…The key to any sensible reform is to put all the government claims on budget, so that the public can deliberate sensibly about how much should be spent on landmark preservation and which projects should be selected for their the aesthetic and civic virtues.

Regaining the Moral Clarity to Punish Criminals

By Vince

Prosectuor, soon to be father, and creator of a blog I only let my wife read.

| April 20, 2015

Sounds easy right? Just a boring topic that states the obvious. The problem is, when it comes to the criminal justice system, the mainstream media has, on one hand, created the myth that prison is hell on earth, and, on the other, horribly mislead the public about the death penalty. The prison systems in the United States have been locked in the 1960s liberal fantasy that we can — and, worse, should — always try to rehabilitate career criminals.

To be clear, I am focusing this post on the worst of the worst: the murderers, violent gang members, rapists, child molesters, etc. The people who my wife and I have dedicated our lives to prosecuting. I will save discussing how retribution should apply to addicts or non-violent first time offenders for another day. But how we punish the worst of the worst will shock you. There is a massive moral deficit in the criminal justice system, one that values criminals far above victims — and it is disgusting. If we are to regain the moral clarity and fortitude to punish the worst of the worst, it will only come from the political right.

Those who don’t have experience in the trenches of the criminal justice system get a very myopic and negative view of it: cops are renegade vigilantes with a badge; the death penalty costs too much and often punishes the innocent; prisons are nothing but raping grounds and murder houses; cowboy legislatures keep increasing not only what is criminal but also the sentences associated with crime. Some of these debates are worth having, but the casual listener must understand that he is only being given anecdotal information from a pro-criminal left that seeks to relegitimize the liberal fantasy of the reformed killer. One needs only to look to how the left slobbers over Mumia Abu-Jabal — a convicted cop-killer who has turned his crime into celebrity — to see how morally bankrupt the criminal justice system is. In a moral society, Abu-Jamal would have been vilified and put to death — as most of those on death row or serving life sentences should be.

In Defense of Harold Koh

By John Yoo

John Yoo is professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. From 2001 to 2003, he served as deputy assistant attorney general in the Office of Legal Counsel in the Justice Department of President George W. Bush. He also served as a law clerk to Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit and Justice Clarence Thomas of the U.S. Supreme Court, and as general counsel of the U.S. Senate Judiciary… [more]

| April 17, 2015

Koh I’ve been asked several times, including by the press, to comment on the controversy surrounding Harold Koh. Koh is a former State Department legal adviser — and occasional critic of mine — who’s now teaching international human rights law at NYU. That’s outraged some NYU students, who object to his appointment because of his role in the Obama Administration’s drone strike program, and are now circulating anti-Koh petitions. I can summarize my thoughts in short order:

While I don’t agree with Harold on many issues, the protest strikes me as silly. A university should bring forth all points of view, even those — especially those — that students, alumni, and faculty do not like. How better could law students learn than from someone like Harold, whose role as a government lawyer may have run counter to his views as a legal scholar and activist? If there are students, faculty, and alumni who think Harold should be excluded from the NYU community, they may want to go to a university that cares more about protecting their feelings than improving their minds. But they will be worse off for it.

Your Tax Dollars at Work (for Those Who Don’t)

By Jack Dunphy

"Jack Dunphy" is the nom de cyber of a police officer in Southern California. Twitter: @OfficerDunphy.

| April 17, 2015

On Thursday, the Los Angeles Times told of a report from the City Administrative Officer titled “Homelessness and the City of Los Angeles.” Among the revelations in the report is that 15 different city agencies and departments spend more than $100 million each year on providing services to the homeless. “In July 2014,” the report says, “the Mayor pledged to end veteran homelessness by December 2015 and chronic homelessness in Los Angeles by December 2016.” As with any report from any government bureaucracy, this one says these goals will be achieved through the spending of even more money to be extracted from the taxpayer.

The report also contained recommendations, including this: “Treatment of the homeless with dignity, and clarity on their rights.”

Dignity and rights, they say. Well, sure, who isn’t for dignity and rights? But reading the report put me in mind of interactions I’ve had with some of the city’s homeless people, about whom “dignified” is not among the first thousand adjectives one would use to describe them. Here is a story about one of them:

Why Markets Work Better Than Anti-Discrimination Laws

By Richard Epstein

Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Cas… [more]

| April 14, 2015

Given the ongoing controversy over the Religious Freedom Restoration Acts in Indiana and Arkansas, I chose to use the newest installment of my weekly column for Defining Ideas to conduct a deeper examination of the principles that ought to inform our anti-discrimination laws. As I note there, the all-too-common invocation of Jim Crow as a precedent elides the fact that the pre-Civil Rights Act South was an exception to the general rule:

In the run-up to the 1964 Civil Rights Act the great impetus behind the passage of Title II was the widespread and conspicuous stories of motels and restaurants refusing to provide service to their black customers on equal terms with white customers, assuming that they were willing to provide for them at all. At this point, there is an evident breakdown in the operation of competitive markets, because it seems evident that some merchants—most notably national restaurant and hotel chains—that provided open service in the North were unable to do so in the South. The explanation in large measure rested on the combined threats of a segregationist establishment backed by private violence, which made entry of new businesses into the market to serve disfavored groups a near impossibility. The great achievement of the Civil Rights Act of 1964 was to smash these official and private barriers to open services. Once released, competitive forces took over, and the short-term crisis came to an end.

Asset Forfeiture Reform in New Mexico

By Barkha Herman

Founder of http://herrights.org

| April 13, 2015

Late last month, the New Mexico legislature passed a bill — with no opposition in either chamber — reforming civil asset forfeiture, a process that is sometimes abused by law enforcement to seize citizens’ private property without their being convicted of a crime, or following a minor traffic violation. Worse yet, under some arrangements with the Feds, police departments can keep the money to use for their own budgets. No one knew whether Governor Susana Martinez would sign SB 560, and the clock was ticking before the legislature’s session ended. Well, she has done it!

Republican New Mexico Gov. Susana Martinez has signed into law House Bill 560, the state’s broad asset forfeiture reform legislation. The bill, introduced by Republican Rep. Zachary Cook, had complete bipartisan approval in the state’s split House (controlled by Republicans) and Senate (controlled by Democrats).

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