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OpenMarket: Law and Constitution

  • Are you now or have you ever been a skeptic?

    December 6, 2006
    From this week's Evans-Novak Political Report:
    Important Bush Administration officials are ready to leave the government rather than undergo two years of hell from Democratic committee chairmen in Congress. Leading the exodus are officials of the Environmental Protection Agency (EPA), fearing investigation by two chairmen, Representatives Henry Waxman (D-Calif.) and John Dingell (D-Mich.).
    I wonder who might be the Freeborn John to this Star Chamber?
  • Does Diversity Mean No Whites?

    December 6, 2006
    On Tuesday, the Ninth Circuit Court of Appeals held that a minority-oriented school can exclude members of all but one race (Native Hawaiians), even if the school is covered by the civil-rights laws. That decision was issued in Doe v. Kamehameha Schools. It was decided by an 8-to-7 vote (the vote was almost along party lines: all but one of the Democratic appointees were in the majority, while all the Republican appointees dissented). John Rosenberg discusses the decision in a post called "In Paradise, Diversity Means No Whites," at his Discriminations blog. The Ninth Circuit's ruling shows it's risky to give deference to educators on racial matters, as the Ninth Circuit did in its earlier decision in 2005 upholding the Seattle School District's use of race to promote racial...
  • An End to Racial Engineering?

    December 4, 2006
    The Supreme Court heard oral arguments Monday in two important racial discrimination cases. Parents in Seattle and Louisville are challenging their children's exclusion from neighborhood schools on the basis of race. The schools argue that doing so is necessary to racially balance the schools. Five of the nine justices expressed skepticism about the schools' claims that they should be allowed to continue to assign students based on their race. CEI filed a brief in favor of the parents challenging the Seattle schools' use of race. Joanne Jacobs has interesting comments about the cases at Volokh.com. CEI's brief argues that the Seattle schools' rigid and unthinkingly mechanical use of...
  • A Graphic Display of Government Power

    December 1, 2006
    Word from /. has it that the Justice Department's Antitrust division just found a couple more potential tech victims: graphics chipmakers Nvidia and AMD received subpoenas this week.
  • Saudis to Sue Tobacco Companies

    December 1, 2006
    The Saudi government is threatening to sue American tobacco companies such as Philip Morris to force them to pay the healthcare costs of Saudi smokers. The lawsuit may seem laughably inconsistent with the basic idea of personal responsibility. But the Saudis are just imitating America's own trial lawyers. in 1998, American trial lawyers, assisted by 46 state attorneys general, succeeded in getting Big Tobacco to pay $250 billion over 25 years to state governments, supposedly to pay for smokers' healthcare costs, in a backroom deal called the Master Settlement Agreement. (An extra $14 billion was paid to the lawyers. CEI is challenging the settlement in federal court as a violation of the Constitution's Compact Clause). Big Tobacco shortsightedly went along because the trial lawyers added a sweetener to the deal...
  • 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...

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