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


shutterstock_151870730On 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


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


384px-Governor_NewMexicoLate 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).

More from Reason:

Good Riddance


suspects-in-crowd-1As surely as the sun will set in the west this evening, Dzhokhar Tsarnaev will soon be convicted of the Boston Marathon Bombing, very possibly in the next few hours. As you might imagine, everyone in Boston is refreshing their favorite news sites constantly.

There’s never been any question of the verdict: the defense has conceded from the beginning that their client participated in the bombings, the subsequent murder of Officer Collier, and the carjacking that followed. They’ve insisted, however, that Dzhokhar only did so because he was under the sway of his older brother, Tamerlan. The defense has spent much of the last few weeks trying to demonstrate how the very evidence that makes Dzhokhar’s guilt so certain also indicates that his brother was leading the charge throughout the process.

It doesn’t take much imagination to see how a teenager could lose his moral compass after falling under the sway of a charismatic and violent older brother. It happens all the time, and it generally warrants our sympathy, though not always our excusing. But this case is different. Dzhokhar wasn’t simply guilty of a moment’s failure or a temporary lapse of judgement. He spent weeks building the bombs with his brother — in one of the defense’s lowest moments, they couldn’t help but point out that there were fewer of Dzhokhar’s fingerprints on the bombs than Tamerlan’s — even as they were living apart. Moreover, he was present and active during every stage of the case, from planting the bombs, to the murder of Officer Collier, to the carjacking, to the shoot-out with police that ended with him fleeing in a stolen car and accidentally running over his brother. No sibling is so charismatic that he can blind an otherwise decent kid to that much evil and cruelty spread out over that much time.

Coming Distractions


OJ GlovesProduction begins later this month on a ten-part FX Network series, American Crime Story: The People v. O.J. Simpson, with Cuba Gooding, Jr. playing The Juice. It’s from the producer of American Horror Story and based on Jeffrey Toobin’s book, adapted for television by Scott Alexander and Larry Karaszewski (The People vs. Larry Flint; Ed Wood.) Given the pedigree of the series, don’t be surprised if there’s an element of dark humor in this retelling of the 20-year-old “trial of the century”/media circus.

That anniversary date is the answer to the obvious questions “why this?” and “why now?” The project was commissioned before Ferguson, in case you were wondering. So no, this isn’t about prolonging our latest “national conversation about race.” (Do you hate that phrase as much as I do?). But it well may anyway.

I only watched occasional moments of the initial live television trial in the summer and early fall of 1996. Those of you old enough to remember may have a favorite telling moment you wish to share. The rules of televised trials prohibited the one camera angle that would have made the outcome more understandable: images of the jurors reacting.

Please Stop the Pandering, Senator Paul


shutterstock_180495284You may count me among those unenthused by the prospect of a Rand Paul presidency. To understand why, look at the speech he gave in announcing his candidacy on Tuesday. Using an old and stale a rhetorical device, Senator Paul proclaimed his visions of an America he assures us would exist under his stewardship. Among these visions was this: “I see an America where criminal justice is applied equally and any law that disproportionately incarcerates people of color is repealed.”

Senator Paul cannot possibly be so uninformed as to think that crime is committed in equal proportions across all ethnic lines. The only explanation for including that little nugget in the speech is that he is pandering to those who cling to the discredited belief that the criminal justice system is rigged against racial minorities.

The myth of the racially biased criminal justice system has been thoroughly debunked, in my opinion most effectively by my friend Heather Mac Donald (see here, for example). But, like “Hands up, Don’t Shoot,” it is a myth that refuses to die. And though this myth persists, it is nonetheless disappointing to see politicians propagating it, most especially a Republican aspiring to be president.

The Mess That Rolling Stone Left Behind


By now, everyone knows the basics of “A Rape On Campus,” the Rolling Stone report (no longer on the Rolling Stone website) in which journalist Sabrina Rubin Erdely tracked down a woman named “Jackie” who provided her with lurid details of a gang rape that supposedly took place at the University of Virginia’s Phi Kappa Psi fraternity house. The story’s gory details made the frat and its members look like brutal rapists and total scoundrels. The problem is that the story was false and duly retracted with abject apologies from Rolling Stone yesterday after an independent report by Columbia Journalism School Dean Steve Coll and his team found that the editorial processes had failed at every level to heed the warning signs that something was deeply wrong with the story. There is no need to repeat those well-documented failings here, but suffice to say that the protagonist bobbed and weaved at every critical moment. Notwithstanding all those red flags, Rolling Stone decided to publish her story without verifying its key facts, creating havoc for the fraternity and the university. The question Peter Robinson asks is does the “fraternity have any legal recourse against either Rolling Stone or the university?”

There is a lot packed into this question. The first question is if anyone wants to sue, even if they can make out the legal case. The general rule is that the long and torturous road to success in a defamation case is not worth the cost. The proceedings are brutal on witnesses. They cost a fortune to litigate. And worst of all, they bring the entire matter once again into the public eye, where the new round of publicity is bad for the fraternity and the university no matter what the outcome of the case.

It’s 4:30 AM…
Do You Know Who’s Breaking Into Your House?


shutterstock_178633046No one disputes that police officers have an important and difficult job . Moreover no one — at least no one sane — disputes that police work will sometimes be ugly and distasteful, or that officers will occasionally make well-intended mistakes, sometimes with terrible consequences. When such things happen, it’s wise and just to give police the benefit of the doubt, both morally and legally, through such principles as qualified immunity.

This case, however, seems to show how all that good will can be abused. Nearly 10 years ago, police in Cambridge, MD received “an anonymous tip of drug activity” at the residence of Andrew Cornish, who lived in a second-story of a duplex. Inspection of the residence’s trash confirmed trace amounts of marijuana and drug paraphernalia, which officers used to obtain a warrant to search the residence. At 4:30 AM on May 6, 2005, they carried out that search. While the police have consistently maintained that they knocked and waited as required, the residents of the downstairs apartment claim otherwise. Within 60 seconds of their entry, Cornish approached one of the officers flourishing a large, sheathed knife and was shot dead. An inconsequential amount of drugs was subsequently found in the apartment.

Cornish’s father sued on grounds of the illegal entry and excessive use of force. Both the district court (in its jury trial) and now the United States Court of Appeals, Fourth Circuit have found against the police officers on the matter of their entry: that is, that the police did not meet the legal standards for alerting Cornish of their entry. However, both courts ruled in favor of the police on the use of force on the grounds that the “superseding cause” of Cornish’s death was his attack on the officers, not their unlawful entry. This was based on the conclusion that Cornish knew that the police were police when he attacked them, a matter the jury and judges inferred from the evidence (Cornish being unavailable to testify, on account of his being dead from two gunshots to the head). For somewhat technical reasons, the result of the appeal was to invalidate most of the damages.

The Sore Winners of the Left


square_pegThe Left started the culture war, won it, and now roams the countryside shooting the wounded.

Getting same-sex marriage legalized now appears to have been just a beginning for progressives, not the goal that many libertarians and conservatives had assumed. With SSM accepted in more states every year and the Supreme Court considering if it should be a right in all 50, the Left is angrier than ever.

While most Americans would have celebrated such rapid victories, a large number of so-called liberals are out for vengeance. In Indiana, a local news reporter cold-called businesses to see if they would cater a theoretical same-sex wedding. The first one to say “no” would be made an example of.

The Libertarian Podcast: Indiana, Discrimination, and Religious Liberty


This week on The Libertarian podcast, Professor Epstein takes on the controversy over Indiana’s Religious Freedom Restoration Act. Is it a vital protection for religious liberty? Is it an overbroad statute that needlessly opens the door to discrimination? Exactly how far should government be able to go in forcing individuals to interact with others against their will? And what are the limits to religious exemptions to broadly applicable laws? Those are just a few of the topics that we cover in this week’s episode. Listen in below or subscribe to The Libertarian via iTunes or your favorite podcast app.

The Debate Behind the Debate


The debate over Indiana’s version of the Religious Freedom Restoration Act has already taken some curious twists and turns. The initial response from opponents was to go to the playbook that has been so wildly successful over the past five years: label the law as “hate,” condemn its proponents, and invent wild scenarios that conjure Nazi-esque horrors.

RFRAMapExcept something was different this time. The law’s critics — probably overconfident because of their long winning streak — got a little sloppy. Their blanket condemnations were met on this occasion by some defiant, salient points from the other side. Namely, that numerous other states and the federal government have had similar laws for years, and, yet, somehow, those jurisdictions have avoided the descent into Jim-Crow-esque regimes promised as a certainty by opponents.

The Supreme Court is Wrong: Get Race Out of Redistricting


Last week, the Supreme Court, in the case of Alabama Black Caucus v. Alabama, overturned a redistricting plan for Alabama’s State Legislature, with the Court’s majority (the four liberals and Justice Kennedy) arguing that the new district lines didn’t do enough to preserve the influence of black voters. As I write in my new column for Defining Ideasit’s a mistake to accept the redistricting status quo in which the majority party (Republicans, in Alabama) constructs relatively safe districts for itself and then gives the minority party a handful of even safer seats as compensation. As I write:

In a sensible world, the best counter to these dangerous tendencies uses explicit formal requirements to remove this unpleasant form of tit-for-tat politics. Two constraints, taken together, could achieve this result in a relatively simple fashion. The first is to stick with a requirement of rough numerical equality across districts. The second is to require relatively compact districts, which look more like simple squares than some grotesque 28-sided monster that white citizens (outnumbered by 4 to 1) consciously created in Tuskegee, Alabama in 1957 to block the possibility that newly enfranchised black residents would soon take over local politics. Six years after Brown v. Board of Education, the Supreme Court in Gomillion v. Lightfoot struck down this ploy under the Fifteenth Amendment, which provides that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

A Few Thoughts on Indiana and Coercion


imageConservatives are allergic to government coercion. This allergy informs all of our positions on public policy. It informs out position on religious freedom. The reason liberals can’t tell the difference between the promotion of liberty and promotion of “hate” all comes down to our differing views of coercion. For conservatives, political coercion is the original sin of authoritarian governments. For liberals, it is the glue that binds their entire moral identity.

Consider two pillars of the progressive left: Social Security and Obamacare. Would either of these programs survive even a month if they weren’t compulsory? Would any liberal program survive? And if this kind of coercion represents a social good, then it would not seem at all unethical to force a business owner into an involuntary transaction. Once you cross that line, “hate” is the only logical explanation for opposing their policies.

(Incidentally, I used to allowed for the possibility that the charge of “hate” is just an attempt to shut down debate by casting conservatives as unreasonable, but I have talked to enough liberals to know that they actually believe this stuff).

Is the Court Too Deferential? Or Not Deferential Enough?


Restraint — like any virtue — has its place when applied toward the right objects, at the right times, and in the right amounts (h/t: Aristotle). As conservatives with a constrained view of humanity (h/t: Thomas Sowell), this means that we tend to favor restraint over rashness. But in the case of judicial philosophy, our rhetoric may have gotten ahead of our actual beliefs.

Reason’s Damon Root and NRO’s Carson Halloway have been debating the matter on their respective sites, with Root arguing — as he does in his recent book — that our courts have been too deferential to the legislative and executive branches, and Halloway (with an assist from Ramesh Ponnuru) arguing that Root’s prescription is dangerously activist and anti-Burkean. Putting aside the historical question of what the Founders intended — which I think is well-sourced enough on both sides to be unresolvable — the matter essentially boils down to a question of which the following strikes you as less naive: “I’m sure Congress knows what it’s doing” or “I’m sure the Courts know better.”

The Libertarian Podcast: Uber, Lyft, and the Future of Independent Contractors


The left, increasingly unwilling to tolerate any social arrangements not tailored to the exact specifications of the state, has recently set its sights on dramatically narrowing businesses’ abilities to classify workers as independent contractors. In this week’s episode of The Libertarian Podcast, Professor Epstein looks at how a pair of California lawsuits against car services Uber and Lyft are advancing that goal — and what it might mean for the broader economy. Come for the legal and economic analysis, stay to hear Richard try his hardest to restrain his contempt at the mention of Robert Reich’s name.

The “Blurred Lines” Trial as Redistribution of Wealth


The “Ick” Factor

Since I do Los Angeles radio show on entertainment law, I’ve been asked by a few news outlets to voice my opinion on the copyright infringement case pitting the Marvin Gaye Estate against Pharrell Williams and Robin Thicke. But who cares about my opinion when we have Richard Epstein and John Yoo? I was thrilled when I heard Troy Senik introduce the topic on the most recent episode of Ricochet’s Law Talk podcast, but who got it right? Richard seems to be close to the age of the jurors in the case. This is the generation of “all this music sounds the same.” (Full disclosure: I’m close to joining that generation myself). John expressed the view that jurors shouldn’t even be allowed to decide these cases.

Member Post


Today’s Houston Chronicle memorializes a local judge with a story entitled, “U.S. Judge Remembered as Champion of Downtrodden.”  A judge has no damn business being anyone’s champion – at least while he’s on the job.  Any person – rich or poor, black or white, man or woman, privileged or “downtrodden” – facing trial in America has […]

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The Libertarian Podcast: Ferguson Revisited


I’d recommend this week’s installment of The Libertarian podcast if only because it’s rare to hear Professor Epstein hold forth with this level of passion. Our topic: the recent Department of Justice reports on Ferguson, Missouri — one exonerating Darren Wilson in Michael Brown’s death, the other alleging a systemic pattern of racial bias in the Ferguson Police Department. Richard’s less than happy with the political agenda of Eric Holder and his associates. Listen in to hear why (and subscribe to The Libertarian on iTunes or your favorite podcast app to take us on the go):

The DOJ Inflames Racial Tensions in Ferguson


FergusonThough it has scarcely garnered the attention it deserves, the U.S. Department of Justice has released a report exonerating Darren Wilson in the shooting death of Michael Brown last year in Ferguson, Missouri. As I note in my new column for Defining Ideas, the Justice Department should, in the interest of civic harmony, be doing everything it can to call attention to the report’s findings:

What the DOJ now has to do is to acknowledge that the killing of Michael Brown was a justifiable homicide. It must abandon its contrived legalisms and defend Wilson, by condemning unequivocally the entire misguided campaign against him, which resulted in threats against his life and forced his resignation from the police force. Eric Holder owes Wilson an apology for the unnecessary anguish that Wilson has suffered. As the Attorney General for all Americans, he must tell the protestors once and for all that their campaign has been thoroughly misguided from start to finish, and that their continued protests should stop in the interests of civic peace and racial harmony. In light of the past vilification of Wilson, it is not enough for the DOJ to publish the report, and not trumpet its conclusions. It is necessary to put that report front and center in the public debate so that everyone now understands that Wilson behaved properly throughout the entire incident.

At the same time, however, the DOJ has issued a report claiming systemic prejudice in the Ferguson Police Department, an odd conclusion given that the investigation was surely undertaken to identify the “root causes” of Wilson’s misbehavior — misbehavior that they now admit did not occur. As I write: