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OpenMarket: Law and Constitution

  • Freedom to Hide Behind Avatar

    March 16, 2007
    The recent proposed law in Connecticut to verify age of MySpace.com and other social-networking site users has brought up an old question. Is anonymous speech protected under the 1st Amendment? The courts have a history of supporting anonymous speech as an extension of our right to free speech. Social-networking sites are just a new form of technology that allow people to exercise this right. Almost a year ago the Supreme Court reaffirmed this position in MacIntyre v. Ohio Election Commission. This case was narrow, focusing on political speech, and said that anonymous political speech is permissible so long as it serves the interest of the state. While any good libertarian would be appalled by the “interest of the state” portion of this ruling, as all types of anonymous speech should be protected, the ruling still favored protecting anonymous speech. A 1960 case, Talley v....
  • Punitive Damages Can Be Limited

    February 8, 2007
    The Ninth Circuit Court of Appeals has just held in the Engquist case that a legislature can limit punitive damages payable to a plaintiff in a pending lawsuit, without violating the Takings Clause. It reasoned that punitive damages are contingent and discretionary, and not a generally applicable right like the right to compensatory damages for an injury. Thus, a legislature can limit them, or require that part of the punitive damages awarded in a case be paid into the state treasury rather than to the plaintiff. This ruling buttresses the constitutionality of tort reform laws that limit punitive damages, which a minority of state courts have declared unconstitutional. In the same case, the court held that although, in general, a citizen can sue under the Equal...
  • A Temporary Reprieve for D.C. Employers and Landlords

    January 9, 2007
    D.C. Mayor Anthony Williams rightly vetoed a bill that would have banned employers from taking applicants' criminal records into account in hiring, and forced landlords to rent to ex-cons, even in units near their own living quarters.  But it was one of his last acts as mayor, and the D.C. Council (which includes the incoming mayor) voted for the bill by a veto-proof 10-to-2 margin.  Moreover, the bill was sponsored by William's predecessor as mayor, Councilman Marion Barry, who himself has a criminal record. The Washington Post has editorialized against the bill, noting that "under the bill a home health-care agency would have to hire someone who had been freed 10 years ago after serving...
  • Taste and Trans fats

    December 30, 2006
    Nobel laureate Gary Becker has some thoughts on the New York City trans-fats ban (reflecting on comments by his co-blogger, Judge Richard Posner):
    "Posner also gives a kind of lower bound estimate of the benefits as $100 million, and also suggests a much lower cost to restaurants of becoming trans fat-free -- I take this as $30 million. With a small taste benefit from the use of trans fats -- the New England Medicine Journal article I cited earlier does admit positive effect of trans fats on 'palatability' -- the total cost of the ban would equal or exceed total benefits. For example, suppose 1 million persons on average eat 200 meals per year in NYC restaurants with trans fats. If they value the taste of trans fats in their foods only by 35 cents per meal, the taste cost to...
  • Bear-faced Opportunism

    December 28, 2006
    With the bald eagle poised to come off the endangered species list (huzzah!), another species of charismatic megafauna is needed to replace it as the Endangered Species Act's totem.  Step forward, the polar bear:
    The Bush administration has decided to propose listing the polar bear as threatened under the Endangered Species Act, putting the U.S. government on record as saying that global warming could drive one of the world's most recognizable animals out of existence. The proposal--described by an Interior Department official who spoke on condition of anonymity--stems from the fact that rising temperatures in the Arctic are shrinking the sea ice that...
  • Government Has No First Amendment Right to Discriminate

    December 22, 2006
    In November, Michigan voters adopted Proposal 2, a state constitutional amendment that bans racial preferences in state university admissions and in government contracts and employment. State universities like the University of Michigan are now flouting the will of the voters by claiming that they have a First Amendment right to discriminate based on race, no matter what the Michigan Constitution says. They have now challenged Proposal 2 in court, making the audacious claim they have a First Amendment “right” to use race in admissions. They cite Grutter v. Bollinger (2003), a Supreme Court decision which found a compelling interest in using race in college admissions to promote "diversity," for that claim. The Grutter decision was based partly on concepts of academic freedom that are, in turn, rooted partly in the First Amendment. But the Grutter decision...
  • D.C. Council Gives Criminals Special Protections

    December 20, 2006
    The Washington, D.C. Council voted 10 to 2 yesterday to ban employers from considering criminal records in housing, hiring or employment, if the criminal's probation or parole officer thinks he has achieved "a degree of rehabilitation." The bill was sponsored by convicted felon Marion Barry. So if a couple with small children doesn't want to rent a room in their duplex to a sex offender who is supposedly "rehabilitated," it can be sued for punitive damages. And if a supposedly reformed bank robber wants to work for a bank, the bank has to ignore his criminal record. The only paper to cover the bill's passage was the D.C. Examiner, which buried the story deep in an inside page that few people will read, and which is available only in a PDF version of the entire page. (See second story under "News in Brief"). Oddly,...
  • Criminals: The New Protected Class

    December 19, 2006
    Employers in Washington, D.C. may soon be banned from considering criminal convictions in hiring, if the criminal's probation or parole officer thinks he has "achieved a degree of rehabilitation," under a bill sponsored by ex-con Marion Barry. Criminals will become a new protected class. The D.C. Council apparently voted unanimously to ban such discrimination against ex-convicts on December 11. If it repeats the vote on December 19, the approval of the ban will be final, according to the December 11 issue of the Legal Times. Civil-rights legislation started out as a way to require that people be judged based on the content of their character, not irrelevant characteristics like race. But now, employers will be prevented from looking at the content of the character of certain criminals. Amazingly, leftist groups like the D.C. Employment Justice Project and the Washington...
  • Stern Lectures

    December 11, 2006
    Sir Nicholas Stern, author of the wildly hyped and widely disparaged Stern Review on the economics of climate change, is leaving Her Majesty's Treasury:
    With embarrassing timing, Sir Nicholas Stern's departure was announced a day after the Chancellor confounded expectations of a big shift towards a new environmental agenda in his Pre-Budget Report. Mr Brown's move to raise taxes on flights and motorists' fuel were seen as minimum concessions to calls for tougher environmental action and disappointed green campaigners. One well-placed government source told The Times that Mr Brown had to be persuaded within the Treasury even to take the steps he did, such was his lack of enthusiasm for green taxes. Sir Nicholas, 60, one of the Chancellor's most senior officials as Second...
  • Popping with the Popcorn Board

    December 7, 2006
    As I was skimming government agencies' websites for topical issues, a U.S. Department of Agriculture press release today sidetracked me. It seems that the Secretary of Agriculture has named three people to the “Popcorn Board.” It sounds like a fun board to serve on — one of its activities is research “to maintain and expand the popcorn market.” Another is “consumer information activities.” But it doesn't look like popcorn consumers have a role to play on the board — seems like you have to “process and distribute more than 4 million pounds of popcorn” each year. ...

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