You are here

OpenMarket: Law and Constitution

  • Supreme Court Considers Whether to Preempt State Bank Red Tape

    November 30, 2006
    On Thursday, November 29, the Supreme Court heard oral argument in Watters v. Wachovia Bank, which will decide whether federal law preempts state regulators from compelling many national bank subsidiaries to register with them. CEI filed an amicus brief with the Court on behalf of economists and legal scholars in support of the bank, pointing out that state lending regulations and red tape can increase the cost, and reduce the availability, of credit to borrowers. The State of Michigan sought to compel a subsidiary of Wachovia, a national bank, to register with it (Wachovia's subsidiary, Wachovia Mortgage, is chartered by the State of North Carolina).
  • The Global Warming Case--the cataclysm question

    November 30, 2006
    One comment from yesterday's Supreme Court hearing that's getting a lot of press is Justice Scalia's question to the attorney for the petitioning states about the imminence of harm to the states: "I mean, when is the predicted cataclysm?" The attorney answered: "The harm does not suddenly spring up in the year 2100; it plays out continuously over time." I suspect that this exchange will be portrayed, by some, as illustrating the gap between the scientifically uneducated and the scientifically erudite. After all, Justice Scalia himself later noted that he's "not a scientist", whereas counsel for the petitioning states was probably quite familiar with the underlying science. But later in the argument that attorney said: "... our harm is imminent in the sense that lighting a fuse on a bomb is imminent harm ...." That sounds pretty cataclysmic to me. If you're delving...
  • Global Warming Hearings & Hurricanes

    November 30, 2006
    Yesterday the Supreme Court heard argument in the global warming case. Today is the last day of the 2006 hurricane season, the quietest in the a decade. Personally, I hope the Supreme Court's ruling in the case ends up being as disappointing to global warming alarmists as this year's hurricane season has been. Of course, one quiet hurricane season doesn't disprove the alarmist forecasts. On the other hand, Katrina didn't support those apocalyptic forecasts either, but you didn't see much in the way of forecasting restraint on the part of alarmists last year. I'd like to correct a few points that were garbled when I first phoned them in soon after yesterday's court hearing. The post below states that EPA was hammered by some justices "talking about issues that weren't...
  • Supreme Court grills Massachusetts, EPA in global warming case

    November 29, 2006

    CEI General Counsel Sam Kazman is on-site for two important cases being argued at the U.S. Supreme Court today. He phoned in his quick take on the EPA case:

    The first, Commonwealth of Massachusetts v. U.S. Environmental Protection Agency, is a lawsuit brought by a group of state attorneys general, trying to force the EPA to regulate CO2 as a pollutant. The AGs aim to have CO2 emissions reduced and thus impede global warming.

    Massachusetts went first. They got a lot of questions on standing from the justices: the states must show specific harm to themselves (from CO2 emissions) and that the harm would be redressed by the relief sought by the states. I don't think Massachusetts did all too well under questioning. They were getting hammered with questions. An old case called SCRAP (United States v...

  • Money Violates Civil Rights Laws, Court Rules

    November 28, 2006
    A federal judge in Washington, D.C. has just ruled that America's money bills, such as $1, $10, and $100 bills, discriminate against the blind, in violation of the federal Rehabilitation Act, which prohibits the federal government and recipients of federal funds from discriminating against the disabled. Unlike some foreign currencies, such as the Euro, American money bills don't vary in size, color, or texture based on denomination, making it harder for blind people to distinguish them.  Blind people often end up folding each denomination differently in order to keep track of them.   The Rehabilitation Act has been construed to require agencies to make "reasonable accommodation" for the disabled unless doing so would cause "undue hardship."  The American Council for the Blind argued...
  • Freedom vs. Democracy – the Perpetual Tension between Voice and Exit

    November 27, 2006
    The current debate over whether the SEC should strengthen shareholder participation “rights” in public companies (subscribers see the Wall Street Journal editorial “Board Games” of November 27) is a replay of the old debate over whether society is better organized by “voice” (a broader participation in the management of the institution) or by “exit” (the decision to move oneself or one's assets to some entity). That distinction discussed in Albert O. Hirschman's Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States in many ways distinguishes those favoring the politicization of society and those favoring liberty. The SEC faces...
  • Court Ensures Painful Death for Terminally Ill

    November 22, 2006
    Yesterday, the D.C. Circuit Court of Appeals voted to vacate and rehear its Abigail Alliance v. Von Eschenbach decision, which would have required the FDA to justify why it prevents gravely ill people who would otherwise die from obtaining access to drugs that have passed the first stage of the FDA's lengthy approval process. Decisions are usually reversed when they are reheard by the full court. Apparently, the specter of terminally ill people being able to access experimental drugs that might save their lives was just too scary for many of the D.C. Circuit judges. Perhaps they agreed with the specious arguments of the Washington Post, which editorialized against the D.C. Circuit's original decision in favor of the terminally ill by using the straw-man argument that no one has an affirmative right of access to medical...
  • Keeping an Eye on the CBS Legal Department

    November 21, 2006
    CBS is appealing new FCC indecency regulations (and fines) in court, arguing that the new rules run afoul of the First Amendment. Which, of course, they do. Hopefully the executives at CBS and other broadcast stations will remember this when reporting on other FCC intrusions into what we are allowed to see, hear, download, upload, talk about or even buy online. And just in case you were wondering what depraved indecencies have been getting the FCC's knickers in such a twist over the past few years, check out a pile of them here.
  • The Logic of Smoking Regulation: Your Apartment Is Now a Public Place

    November 16, 2006
    Dana Yates of the San Mateo, California Daily Journal brings us a bracing look at the future of tobacco regulation - a total ban on public smoking. And yes, that includes apartments and everyplace that isn't a "single-family detached residence." Take it away, Dana:
    Armed with growing evidence that second-hand smoke causes negative health effects, the [Belmont, California town] council chose to pursue the strictest law possible and deal with any legal challenges later. Last month, the council said it wanted to pursue a law similar to ones passed in Dublin and the Southern California city of Calabasas. It took up the cause after a citizen at a senior living facility requested smoke be declared a public nuisance, allowing him to sue neighbors who smoke.
    That's right, cranky senior...
  • Kelo Ruling Gutting Property Rights Will Live On

    November 15, 2006
    In Kelo v. New London (2005), the Supreme Court ruled 5-to-4 that private property (like your home) could be seized by the government for use by a politically-connected developer. That eroded property rights a lot. The 3 conservative justices (Rehnquist, Thomas, and Scalia) dissented from this ruling gutting property rights, along with one “moderate” (O'Connor), while the 4 liberal justices and one “moderate” (Kennedy) joined in the majority opinion gutting property rights. (Since then, two of the dissenters have retired or died). Now, thanks to the GOP's loss of the Senate, there won't be any conservative appointments to the Supreme Court for a long time. At least, that's what Democratic leader Charles Schumer (D-NY) promises. He says the Senate's new Democratic majority will...

Pages

Subscribe to OpenMarket: Law and Constitution