Tuesday, November 30, 2004

Ashcroft v. Raich

Professor Larry Solum has the best account of and commentary on Ashcroft v. Raich (the marijuana/interstate commerce clause case) on his blog here. It's well worth the twenty or so minute read.

Monday, November 29, 2004

Becker-Posner Blog

Can't wait for this to begin!

Saturday, November 27, 2004

Law and Economics at its Finest

The following is an entry by Jim Lindgren on Volokh about Randy Barnett's impending argument in front of the Supreme Court regarding medicinal use of marijuana. The marijuana in this case was grown in a co-op for use by patients. No money changed hands at this co-op.Not only does Randy have an able and much more experienced adversary arguing the case for the government, but Randy's case will be a difficult case to win.
First, as I may imperfectly recall, in cases it hears fully, the Supreme Court more often overturns decisions than affirms them. Second, the 9th Circuit has a reputation for being overturned at higher rates than typical circuits. Third, the federal government has been regulating and prohibiting marijuana for a long time and will almost certainly continue to regulate and prohibit most uses of marijuana even if Randy wins.

On the other hand, the plaintiffs in this medical marijuana case are well-suited for limiting the scope of the interstate commerce clause of the Constitution, and Randy certainly understands the scope of interstate commerce as well as anyone in the country.

It is one of those cases where, if the Court is intellectually honest and actually determines interstate commerce in any way that makes logical sense, Randy's side will win. Yet it would be awfully hard for the Court to strike down federal legislative control over marijuana regulation even where (as here) the marijuana is pretty clearly not in interstate commerce.

In their brief the Government argues:

Moreover, the record affirmatively shows that respondents' homegrown drug activities cannot be divorced from the overall drug market regulated by Congress. Both respondents Raich and Monson were consumers of lawful drugs listed on Schedules II through V, before turning to marijuana, and respondents' claims of medical necessity suggest that both would purchase marijuana illegally if necessary. Raich also admits to past marijuana purchases. Each of these facts confirms what Congress found: that activities such as respondents' displace market transactions and threaten to swell the illicit drug market. [citations omitted]

Yet every choice displaces another choice: If I buy and read a book, I am cutting back on my TV watching, thus affecting the market for TV. If a Justice is elevated from a Circuit Court position to the US Supreme Court, he or she is deciding not to enter into negotiations to become a cowboy (or a law firm partner).

As Barnett has pointed out, every decision is an economic one to an economist. Nobel economist Gary Becker analyzed the decision to have children in economic terms, and (as I recall) Judge Richard Posner once famously asserted that rape in effect cheats on the market for dating. Do we conclude that procreation and forcible rape are therefore always in interstate commerce, just because they are economic decisions to some of our best economists?

The Court is in a bind: if it follows inertia (which it usually does), it in effect reads the interstate commerce clause out of the Constitution and makes the government under it one effectively unlimited by enumerated powers. If the Court takes the commerce clause seriously, on the other hand, it drives a small, but significant wedge into the federal government's power to prohibit drugs.
Those that know me know what side I come down on (the latter).

Double Standards on Racism?

The following piece addresses the double standard for conservatives and liberals when it comes to racism and racist speech. Is there one? Of course there is. Take a look.

Monday, November 22, 2004

You're Fired

As much as I'd like to respond to Jerry's last two posts, I'd better leave them alone...

Donald Trump's casinos filed for Chapter 11 Bankruptcy (Protection, as they call it) this week. Said Trump:

"I don't think it's a failure, it's a success. In this case, it was just something that worked better than other alternatives. It's really just a technical thing, but it came together."

I'm sure his unsecured creditors who are going to take pennies on the dollar are glad that this technical thing worked out too. Not to worry for the Donald. As a part of the settlement, his ownership share in the casino venture will be cut almost in half, from 47%, to 27%. However, he will still be the single-largest shareholder. Once he burns this debt, he can continue doing things his way.

Friday, November 19, 2004


So true is this musing by Andrew Sullivan:
I guess I should say that Condi Rice's race and gender are not the most important things about her career and abilities. But I'm still amazed at how little credit this president gets for promoting a black woman to such a position, and, more importantly, by his obvious respect and admiration for her. His management style is clearly post-racial, and his comfort with female peers is impressive. You know, Bill Clinton was celebrated for his progressiveness, and ease with African-Americans. But it's inconceivable that he would have given so much power and authority to a black female peer. Why does Bush get no respect on this score? I guess it reveals that much of the left's diversity mania is about the upholding of a certain political ideology, rather than ethnic or gender variety itself. Depressing.

Thursday, November 18, 2004

Linda Ronstadt's Latest

Here's the latest by Linda Ronstadt in an article on Yahoo:
Don't get her started on the recent presidential election. "People don't realize that by voting Republican, they voted against themselves," she says. Of Iraq in particular, she adds, "I worry that some people are entertained by the idea of this war. They don't know anything about the Iraqis, but they're angry and frustrated in their own lives. It's like Germany, before Hitler took over. The economy was bad and people felt kicked around. They looked for a scapegoat. Now we've got a new bunch of Hitlers."
I don't think any commentary is needed; her words speak for themselves.

Clinton Library Dedication

I read this online today and I mused at it:

"I even saw President Bush shake Jimmy Carter's hand and look somewhat enthusiastic about it.

That must have taken some real concentration."

Tuesday, November 16, 2004

Re: Liberal bitterness

Please everyone read the link in Jerry's secession note. Although a radical liberal suggests the secession, using colorful language, I think that what he writes is definitely at the heart of the liberal-democratic movement. Kerry targeted the big cities, like MPLS-St. Paul. His Democratic successor will even more so, as they are losing their hold on the upper-midwest states of MN, WI, and IA (arguably the only traditional democratic strongholds among states largely engaged in agriculture).

If one only looks at the map of counties won by Bush nation-wide, the ratio is 6-1 in Bush's favor. Do we really think that these "Heartland" Midwesterners and Southerners are inferior in intelligence or sincerity to Big-city liberals? I would posit that these folks, like my family living in Little Rock, AR, Arcola, IL, and Tulsa, OK are not nearly so backwards as some would suggest.

My family does, however, believe in our Constitution. I wonder why that makes them so naive? Bush won every rural and nearly every suburban area in the U.S. Perhaps rural values are alot different from "educated values." Or perhaps those bitter really want to live in a country with different constitution. In fact, we know they do.

Monday, November 15, 2004

Secession and Federalism

Althouse has some good, short commentary about big-city liberals who are calling for blue states to withdraw from the USA.

Saturday, November 13, 2004

Harvey Mackay

This excerpt was taken from an article by the aforementioned:

Perhaps the ingenuity award goes to the fellow who came to the Canadian border on his motorcycle, carrying two saddlebags strapped across his seat. The border guards asked the obvious question, "What's in your saddlebags?"

"Rocks," was the reply. So the guards emptied the bags to check out his story. Sure enough, all they found were rocks. So they sent him on his way.

The next week, the same fellow came to the crossing, again on a motorcycle, again with the same payload. The guards checked once again, and found more rocks. Off he went. The scene repeated itself weekly for several months, until finally the guards couldn't stand it any longer. "We know you are smuggling something across the border, but every time we inspect your saddlebags we find only rocks. Please tell us what you are up to, and we promise not to turn you in."

"Well," the fellow replied, "It's really very simple. I'm smuggling stolen motorcycles."

Never work harder than you have to, states the article.

Racist Expression--Is it still free speech?

This article describes precisely what some well-meaning liberal legal scholars are currently seeking: a ban on racially offensive speech. Does the fact pattern described in the article sound like the sort of totalitarian measure that would only happen in a place like Croatia?

Guess again. Richard Delgado, Law Professor, University of Pittsburgh, advocated 22 years ago a tort of racial insult, such that anyone who directed this sort of speech or conduct toward another could be civilly liable, if the "average" person perceived the conduct to be intended as racially hurtful. Does this kind of thinking make you nervous too?

Social Security Reform

The best way to reform Social Security is to raise the retirement age. When the Social Security Act was signed into law in 1935, the age at which full benefits could be collected was 62. In 1935, life expectancy in the United States was a shade under 62. This led to Social Security earning a nickname that was something to the effect of "the best insurance policy you'd never collect."

Today, the retirement age is between 65 and 67, depending on the year the recipient was born. However, the life expectancy in the United States is now over 77. The reason why Social Security WILL run out in its current form is that for every worker paying into the system, many more people are collecting benefits now than in 1935. It then follows that it is only a matter of time before the supply of funds is depleted.

I daresay that today's Social Security system is a totally different creature than the one contemplated by the legislators and FDR in 1935. As the system was originally conceived, these benefits were effectively a "reward" (in the form of monetary support) to the elderly for living past the age at which they were expected to live. Today, these same benefits are support that the elderly now expect to receive to support them in the last years of their lives. These are two substantively different systems.

If the goal of reforming the current system is to keep with the spirit of the original system, then the most (if not only) sensible action to take is to raise the retirement age to match the life expectancy and keep it indexed to life expectancy as it increases.

Thursday, November 11, 2004

Jim Tressel College Football Commentary

I have been keeping an eye on the Ohio State / Maurice Clarrett / et. al. story this week. ESPN today on their webpage has a rather detailed story accusing OSU head coach, Jim Tressel, of ignoring booster gifts to a QB who played for him at Youngstown State in the early 1990s.

Tressel responded this week with a statement denied emphatically all the accusations. He is a classy guy, and I have no idea if he turned a blind eye to this business all along.

The better question is: when are we going to start paying these college athletes a small part of the tens of millions that they generate for these colleges? They are not allowed to go pro until 3 years after high school. The U.S. Supreme Court affirmed the NFL's ability to make such a requirement. The colleges must do something to ease the tension between some of these kids who grew up with nothing (and some who are just greedy) who smell money at the end of the tunnel. These athletes are willing to risk their college careers, not to mention the good names of their coaches and schools to get a taste of that money today.

Global Warming on Mars

From the Speculist, via Instapundit:
Things are heating up on Mars...literally. The planet is experiencing its own version of global warming. The dry-ice polar caps are diminishing. Paul Hsieh speculates that this must be on account of our failure to sign Kyoto...

On the other hand, I can't help but wonder — if two planets so close to each other are both experiencing a rise in surface temperature, isn't it just possible that it might have to do with that nearby star they both orbit? I'm just asking is all. I mean, what if...

What if.

And I'm just asking. But what if global warming is real, but it isn't our fault and there is nothing we can do about it? (With current technology.)

Just asking.
VERY interesting...take a look at the linked articles within this excerpt, it'll be worth your while.

Wednesday, November 10, 2004

Peace in the Middle East

...is now more likely with Arafat gone, albeit maybe only marginally.

Affirmative Action and African-American Law Students

Richard Sander, a Democratic law professor at UCLA with liberal credentials, has an article forthcoming in the Stanford Law Review about the effect of race-based affirmative action on African-American law students. He is guest-blogging over at the Volokh Conspiracy this week.

Among the findings in his article, which can be found here(pdf):

- After the first year of law school, 51 percent of black students have grade-point averages that place them in the bottom tenth of their classes, compared with 5 percent of white students. "Evidence suggests that when you're doing that badly, you're learning less than if you were in the middle of a class" at a less-prestigious law school, Mr. Sander says.
- Among students who entered law school in 1991, about 80 percent of white students graduated and passed the bar on their first attempt, compared with just 45 percent of black students. In a race-blind admissions system, the number of black graduates passing the bar the first time would jump to 74 percent, he says, based on his statistical analysis of how higher grades in less competitive schools would result in higher bar scores. Black students are nearly six times as likely as whites not to pass state bar exams after multiple attempts.
- Ending affirmative action would increase the number of new black lawyers by 8.8 percent because students would attend law schools where they would struggle less and learn more, and earn higher grades.
- With the exception of the most-elite law schools, good grades matter more to employers than the law school's prestige.
The article is a definite must-read.

Tuesday, November 09, 2004

Right on the Mark?

Thanks to Instapundit for the pointer. There's already a Mark Dayton v. Mark Kennedy blog out there. Not being originally from Minnesota but observing this last election cycle, I don't think the Republicans could put up anyone much stronger than Kennedy to run against Dayton at this point. If he comes out of the primary unscathed (which should probably be expected) and the public forgets about the negative ads against Wetterling late in the '04 campaign, Kennedy should be quite competitive against the lone Senator to close his office due to fears of terrorist attacks.

Howard Dean to Replace McAuliffe?

So one of the latest rumors swirling about involves Howard Dean possibly succeeding Terry McAuliffe as DNC Chairman. From an AP story linked on Drudge:
Dean has been outspoken since the beginning of his presidential bid in saying that the Democratic Party must establish a separate and unique identity from Republicans.
So what would come of this? Well, online contributions to the DNC would probably increase. Other than that, the above quote and Dean's actions during his presidential bid seem to indicate that his presence would move the national party more to the left. Great for energizing the base. However, if Dean and the Bob Shrum wing of the Democratic party want to revive the old-fashioned populist rhetoric that seemed to come to an end during the Clinton years (Shrum wasn't involved in the Clinton campaigns besides some speechwriting), then I can't imagine that 60 Senate seats for the Republicans is too far off the horizon. Also, Hillary could pretty much forget about making inroads in the red states.

On the other hand, Shrum would likely keep his losing streak intact.

Monday, November 08, 2004

Alan Keyes

I respect Alan Keyes views so much, and his ability to articulate Christian values. I fear, however, that Keyes' refusal to congratulate Obama, and further demarcation of the good/evil battle may not be resonating with those who most need to hear his message. Keyes was quoted in the last link:

"If you know someone who is in the service of causes that are killing innocent babies, in the service of causes that are destroying the basis for family life, and that individual gets a powerful job that will give him greater influence in pursuing that wickedness--if someone then suggested to you that you call and congratulate them on that lucrative and powerful position, would you do it?"
Undoubtedly, abortion is a terrible thing that any Bible-believing Christian should stand against. However, I would hope that Dr. Keyes would help to further discussion and reflection on this issue among the electorate. This is the way that the (intellectual) battle for the moral fiber of America must be fought. I fear his rhetoric will only serve to further alienate those individuals who may be uninformed regarding a "woman's right to choose" without weighing other ramifications (namely a human and government interest in the life of an unborn child).

I suppose that is why they call this game "politicking." This debate does belong in our schools and homes, not merely in our churches. I think the issue should be hard-fought. I think it important though that our passion and the smell of sour grapes be relegated, so that the issue can take the forefront.

How the Am. Library Ass'n case turned out

Whoops, I missed it. The Court decided this case in 2003 (539 U.S. 194 ). I was surprised that a 6-3 majority got together to find against libraries who pushed for all access, all-the-time (i.e. no filtering software). They did so through closing the Fed pursestrings.

Here is how it came out:
A library's decision to use filtering software was a collection decision, not a restraint on private speech. A library's need to exercise judgment in making collection decisions depended on its traditional role in identifying suitable and worthwhile material; it was no less entitled to play that role when it collected material from the Internet than when it collected material from any other source. Because public libraries' use of Internet filtering software did not violate their patrons' First Amendment rights, the CIPA did not induce libraries to violate the U.S. Constitution, and was a valid exercise of Congress' spending power. Further, the CIPA did not impose an unconstitutional condition on public libraries. The funding programs were intended to help public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes. Congress could insist that these public funds be spent for the purposes for which they were authorized. A refusal to fund protected activity, without more, could not be equated with the imposition of a penalty on that activity.

Reader Feedback

Trevor's post reminds me...we also invite readers to leave us any feedback or commentary regarding any of the material on this blog. Our contact e-mail is reasonablyright@gmail.com, and can be found in my profile.

Re: Nominee, Addition to Volokh post

Well, I would quite enjoy that Clarence Thomas ruse, so long as Bush then nominated Scalia. Could you imagine how heads would roll?

To more serious items, I wanted to know what you guys think about this Eugene Volokh discussion of the federal Child Internet Protection Act? I know this case has been litigated more since 2002 (although I have yet to look at the caselaw out there).

I would like any comments or thoughts on this issue: What is government's place in keeping children from viewing pornography? This is obviously a compelling interest What is government's role as to pornography being available in public forums, such as our public libraries?

Saturday, November 06, 2004

Re: Posner as nominee

A rather enlightening study can be found in a recent Legal Affairs article, called "Supreme Stats" (Scroll halfway down the page from this link). This is a publication of Yale Law School. And it has some funny-looking cartoons.
Beyond that, however, the analysis is enlightening. The article cites Posner as perhaps the most frequently cited, and most productive, of all the Circuit Court judges. This might indicate he would in fact be the type of prominent nominee the Court should hope for. However, there are other practical reasons why Posner would not be such a good nominee.....

A Warm Welcome...

To Trevor Hughes, Reasonably Right's newest member. Trevor will definitely have much to add to this blog, so keep on the lookout for his posts!

Howard University Students Endorse Color-Blind Policies

Roger Clegg at Right on Race blogs about Howard University's student newspaper's endorsement of ending some student programs' practice of being offered exclusively to minority students:

While the Supreme Court’s 2003 affirmative-action decisions in the University of Michigan cases were disappointing insofar as they did not shut the door on racial preferences in higher education, they did make it clear that racial EXCLUSIVITY (which had frequently been true of summer programs, internships, scholarships, and the like) was illegal, and consequently most schools have been opening their programs. That the students at a top historically black school like Howard have endorsed this trend – as not only legally necessary but as fair and sound policy – is noteworthy and welcome.

From the student newspaper editorial:
At The Hilltop, we think summer programs should be colorblind and focus more on need and achievement.

This is indeed noteworthy. Maybe the student bodies of other institutions can learn something from this Historically Black University.

See the entire editorial here.

Overturning Roe

Since it looks likely that Bush will have at least two Supreme Court appointments to make in the next four years, conventional wisdom says that this would probably be enough to be able to overturn Roe v. Wade. However, take a look at what Charles Fried said in this msnbc.com article:

But some conservative legal experts say Roe has been on the books so long — more than three decades — that it's settled law, unlikely to be overturned.

Charles Fried, who as solicitor general during the Reagan administration twice tried to get Roe overruled, told a legal forum just last year that it's here to stay.

"I think the issue is off the table and it's irresponsible to try and put it back on," said Fried.

While I am unsure of whether it would be irresponsible to rehash any constitutional issue, I tend to agree that it would be unlikely for the Court to overturn Roe at this point.

Friday, November 05, 2004

Supreme Court Nominees

With Rehnquist's seemingly-impending resignation, there has already been much talk of his successor, and many names have already been thrown out there. Even the Blogosphere's own Eugene Volokh has been mentioned (and rightfully so). However, why no mention of Richard Posner? Especially with Arlen Specter's statement that the Supreme Court lacks any legal "giants," would the biggest voice of the law and economics movement not qualify as a "giant"? I would certainly think so.

Just an FYI

I was considering starting this blog well before the election, but held off mostly because I wanted the election rhetoric to subside before the real, underlying, substantive issues took center stage once again.

Thursday, November 04, 2004

Bobby Jindal

Powerline has a nice piece about Louisiana Congressman-elect Bobby Jindal's background. Jindal is a Republican born in India, and will probably be the highest-ranking Indian-American that will have served in the US government to date (please correct me if I am forgetting anyone).

Update: Volokh points out that Dalip Singh Saund was elected to Congress in 1956.

"Simple" Republicans

Almost immediately after President Bush won re-election we began to hear from the left, and the media, that this election was the result of “simple” Republicans who voted almost exclusively on moral issues. This has always been the view from the left regarding conservatives. They called John Kerry “nuanced” when he changed his positions saying that us simpletons just didn’t get it. I have always felt that the conservative stance on many issues is much more complex than the liberal stance. Here are a few examples:

FREE HEALTH CARE: Of course we would like everyone to have easy access to health care. The reason Republicans are not for “free” health care is the effect arbitrarily changing the price has on the system. A basic economic principle is that when you lower the price, you increase demand. People begin going to the doctor for things they wouldn't if they had to pay for it. Consequently, more people use medical services...clogging up the system and causing shortages and long-waiting lists for surgery. This has happened in Canada and England…in some instances causing the life of someone who is forced to wait.

MINIMUM WAGE: The evil conservatives want to protect business owners and allow them to hold the poor down and pay them with pennies and any remains they can find out in the back dump. The fact is that even if business owners wanted to pay people in this manner they couldn’t. A wage is just as much of a product of competition as anything else. Business owners compete for labor. The more skill required for a job, or a low quantity of people that are qualified for the job, the higher the pay. What a minimum wage does is exclude those unskilled workers whose skill level does not rise to meet the minimum wage. If you allow an employer to pay based on skill, those lower skilled workers will get a job. Perhaps the job will be a low paying job, but it will allow them to start a job and increase his skills--- becoming worth more to the employer, and consequently paid more. A high minimum wage would bar that person from even getting a job in the first place. Is this a nuanced position?

ENVIRONMENT: Conservatives want to kill all the trees and net all the dolphins, then and only then will they be happy. Notwithstanding the fact that many of these environmentalist groups are nothing more than shills for anti-capitalists, the fact is that conservatives merely want to strike a balance between environmental issues and the economy. Many of these environmental policies have little beneficial effect on the environment but a large negative impact on the economy, which in turn causes people to lose jobs. The people who lose their job can be the very people the left claims to be fighting for-- the poor and minorities.

We all want people to have healthcare, have incomes that can support themselves and their families, and to have a clean environment, but if you want to call the position of the left on these issues “nuanced” and the position of the right “simple”, someone had better call Webster’s Dictionary and tell them to ‘flip-flop” the meanings of the two words.

Welcome to our new blog!

Hello everyone,

I am happy to announce the beginning of this new blog. Josh and I will be doing our best to present pertinent and interesting material on this page. Expect to find a roundup of news stories and the writings of our more esteemed peers in the Blogosphere, with commentary of our own sprinkled in. Thanks for reading.