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OpenMarket: Law and Constitution

  • Trans Fats Banned

    May 16, 2007
    Montgomery County, Maryland, has just banned the use of trans fats in food preparation. Trans fats have been criticized on health grounds, but they apparently lower the cost and lengthen the shelf life of the baked goods in which they are used. Moreover, according to an article in the Atlantic, trans fat "provides flavor and texture that can be hard to replicate without going back to animal fat." So the ban on trans fats may result in increased use of saturated animal fats, which may not be much less unhealthy. Replacement of trans fats with animal fats may have unintended negative side effects for vegetarians and religious minorities who refuse to consume...
  • Hate Crimes and Equality

    May 14, 2007
    The Washington Post has just published a very ironic editorial supporting the federal hate crimes bill ("Protection from Hate," May 14). Its editorial is at odds with both its past editorials opposing hate crimes laws and the concept of equality under the law. In 1992, the Post argued that all hate-crimes laws violate the First Amendment by criminalizing biased thoughts, in the course of criticizing a Wisconsin hate-crimes law that the U.S. Supreme Court later upheld in 1993. In 2000, the Post praised the Supreme Court's decision in U.S. v. Morrison. The Morrison decision struck down a federal law that allowed people to sue over gender-based hate crimes in federal court, ruling that the law exceeded Congress's power under the Commerce Clause...
  • Hate Crimes Addendum

    May 10, 2007
    In an earlier blog post, I cited the ACLU's recent decision to support the federal hate-crimes bill which recently passed the House. The ACLU is supporting the bill despite the fact that the bill's enactment could lead to the federal government prosecuting someone for a “hate crime” even after they have been found innocent of a similar crime in state court. I noted that that aspect of the hate-crimes bill raises serious double jeopardy issues that ought to concern civil libertarians.
  • Opposing Murder = Discrimination, Lawyer Says

    May 9, 2007
    Truth is stranger than fiction.  A restaurant owner told O.J. Simpson to get out of his restaurant, exercising his right not to associate with murderers on his own property.  Simpson's paid mouthpiece and lawyer, Yale Galanter, is now threatening to sue the restaurant and take away its liquor license.  He's claiming that the only reason Simpson could have been kicked out of the restaurant was his race.  After all, no one could possibly object to murder, right?   In Yale Galanter's world, you have to be a racist to dislike a murderer, if the murderer happens to be black.  People like Galanter give the legal profession its bad image. (A California jury found O.J. Simpson liable for murdering two people, including his ex-wife, in a civil case.  Citing clear and convincing evidence of malicious wrongdoing, it...
  • Eliot Spitzer Rebuffed

    May 9, 2007
    In a 3-to-2 decision, New York's intermediate appeals court dismissed most of former New York attorney general Eliot Spitzer's lawsuit against former New York Stock Exchange Chairman Dick Grasso for collecting an enormous $187 million pay package, finding that he did not have standing to raise a number of claims he made in his lawsuit. The majority concluded that New York State's law on nonprofits, by expressly providing certain specified remedies for excessive executive pay, impliedly excluded other sorts of remedies, such as lawsuits by the state attorney general. It rejected the dissent's position that the state attorney general has broad common-law powers to sue over any alleged violation of the law whenever he deems it to be in the public interest. It concluded that such a broad delegation of...
  • Hate Crimes Hypocrisy

    May 8, 2007
    The ACLU has just jettisoned principle and sacrificed civil liberties on the altar of political correctness in supporting the federal hate-crimes bill. Historically, the ACLU has opposed many federal laws against crime, citing civil-liberties concerns, such as the Constitution's ban on double jeopardy (double jeopardy is when a person is tried twice for essentially the same crime). The ACLU feared that the creation of federal crimes would give prosecutors two bites of the apple, enabling a federal prosecutor to indict an accused person even after a state court jury has found him not guilty of a similar state crime. (A divided Supreme Court created a gaping loophole in the constitutional protections against double jeopardy, ruling in the Bartkus case that the double-jeopardy protection against being tried twice for the same crime only applies when both prosecutions are brought...
  • Hate Crimes and Federalism

    May 3, 2007
    Congress is considering proposals to create a broad hate-crimes law covering crimes based on sexual orientation, gender, and disability, as well as race. Hate-crimes laws have been criticized for allegedly creating "thought crimes." The Bush Administration has rightly objected to the bill on quite different, constitutional grounds, specifically federalism and the limits on Congressional power. Under our Constitution, the powers of the federal government were intended to be limited and few in number. States, not the federal government, were supposed to be primarily responsible for defining and preventing crimes.
  • Consumer "Protection" Racket

    May 3, 2007
    D.C. Administrative Law Judge Roy Pearson is suing a Korean drycleaner couple for $65 million for losing his pants and posting signs that say "satisfaction guaranteed" and "same day service." (The drycleaners promptly gave him $150 for his pants, then offered him an additional $12,000 after he sued them, and ultimately located and offered to return his pants). He has a potent weapon for intimidation in the D.C. Consumer Protection Procedures Act (DCPPA). That poorly-written law allows a litigious plaintiff to recover thousands of dollars in statutory damages and attorneys fees even for conduct that caused no economic loss.
  • Rep. Scott Garrett on Sarbanes-Oxley Reform

    May 3, 2007
    Rep. Scott Garrett (R-NJ) delivers remarks to the Center for Entrepreneurship's recent conference on "Entrepreneurs, the Stock Market and the American Dream."
  • KFC Lawsuit Thrown Out

    May 2, 2007
    A lawsuit against KFC for using trans fats in its fried chicken has been thrown out. In an appropriately sarcastic ruling, federal district judge James Robertson dismissed the lawsuit, observing that it was so meritless that it could not pass muster even under Washington, D.C.'s broad consumer "protection" law. The suit against KFC made little sense on health grounds. Trans fats, while unhealthy, aren't much unhealthier than traditional saturated fats. Moreover, fried chicken, which contains valuable protein, is far from the most unhealthy food. Kentucky Fried Chicken has a better protein-to-fat ratio than many common dinner items or restaurant meals. It's a lot healthier than foie gras. But since it's fairly cheap and lacks snob...

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