Automakers challenge Vermont emission law

This article concerns the emissions law that congress told the Bush administration to rethink. Vermont as well as ten other states wants to cut the carbon dioxide emitted by automobiles by 30%. However, Vermont is the first state that will take their case to trial against the auto industry. The auto companies (GM and DaimlerChrysler) claim that the 10 individual states pushing for the law are overstepping their boundaries in trying to regulate vehicle emissions. Charles Territo, A spokesperson for the auto manufacturers states; “This trial is about whether or not states have the authority to set their own fuel-economy standards. And we will argue that they don't."

The Constitution doesn’t give congress the power to regulate production (Although in many cases The Supreme Court has granted congress this very power). The new law would involve individual states regulating the production of cars in their respective state in order to lower carbon dioxide emissions. As long as the state government doesn’t create a monopoly or a market failure, they should be able to regulate (not prohibit) the production of automobiles. As far as I can see, there is no market failure of any sort involved. Nor do I see any infringement on the liberties of the auto manufacturers. All that Vermont and the other nine states are asking is for manufacturers to lessen the emissions that their cars produce. Under the constitution and using my general understanding of liberty, I see no reason why any court would rule in favor of the auto companies.

Jailed journalist to be freed

Joshua Wolf spent more than seven months in a federal prison after refusing to obey a subpoena to turn over his videotape of a chaotic 2005 San Francisco street protest during the G-8 summit. The Government had been investigating how a police officer's skull was fractured during the incident and who set a police car on fire. Wolf's lawyer argued that the First amendment gave him the right to refuse the subpoena for the unaired video. U.S District Judge William Alsup cited a 1972 supreme court ruling that the U.S. constitution does not entitle reporters, or anybody else, to withhold confidential sources or unpublished material from a grand jury during an investigation in a criminal trial. Wolf refused to hand over the video tape and was jailed. After 226 days later the unaired video tape was posted online and it had been decided the Wolf had complied with the subpoena and was released.

After reading this article I am confused as to what exactly our government thinks it is doing. We have already learned about all the great things congress has the power to regulate, like global warming for example. Now it seems that pretty much anything we own is actually congresses. Apparently they can take our private property for whatever use they please and if we refuse we can be thrown in jail. It was believed that this video tape had some evidence on it of some sort and I guess that was the reasoning behind the taking. In the article it mentions that it turned out the video tape did not even show what investigators were looking for. So why exactly was Joshua Wolf jailed for over seven months? Well, I guess I can't say. I never read anything that says if you don't surrender your private property to the government you can be thrown in jail. I understand the concept of takings for public use with just compensation but this case doesn't seem to make any sense. Apparently the government has a lot more power than what has been specifically given to it by the constitution.

Global Warming and the Courts

Last Monday the Supreme Court ruled in a 5-4 decision that the Environmental Protection Agency (E.P.A.) has the power to regulate carbon dioxide (CO2) and that they could not neglect the right for regulating greenhouse gases unless they could provide scientific basis for not regulating. The explanation from E.P.A. on why they had not regulated greenhouse gases was because the emissions from American cars were insignificant in the big picture. The court dismissed this explanation as inadequate. The decision does not force the E.P.A. to regulate CO2, but would most likely face more legal action if it does not. The dissent delivered by Chief Justice Roberts said that the Court should have never given the plaintiffs standing to sue and that it lowers the requirements for standing.
I agree with Chief Justice Roberts. I am not sure how the plaintiffs passed the three prong standing test. To be granted standing you must prove: first that injury was sustained; second that the injury was caused by the action in question; and third it is likely that the outcome will favor the injured party. How did the state of Massachusetts prove that injury was sustained? Justice Stevens said it met the requirements because global warming was raising the see level along its coast, if the government did something then harm would be reduced. I don't believe this is enough to prove the first two parts of the test. It sounds ridiculous to me that justice Stevens and the other five in the majority would agree with him. The rising sea level could be because of other countries failing to regulate greenhouse gases. I also don't think that the Clean Air Act that was passed in 1963 had anything to do with regulating CO2 from cars, but rather combating smog in cities. I think that the Court has overstepped its constitutional boundaries. The President and congress should be passing legislation to combat the effects of greenhouse gases not the Court. Even at a state level Massachusetts could better control how much CO2 they want to emit with harder emissions test. The E.P.A. can not hold full responsibility. California, for instance, has stricter emissions for regulating CO2 than the federal government. Massachusetts could do the same if they were really worried about their rising coast line.

No legal obligation to shareholders, or protection from over regulation?

The supreme court is set to hear debates between the bush administration and shareholders of fiber-optic company Tellabs. The Bush administration is claiming that there should be a limit in lawsuits for corporate scandals, like the ones in 2002 involving companies like Enron. Their reasoning behind this is that too many lawsuits will “bog down” business and make Financial firms less competitive and less productive.The argument presented by the shareholders is that The “lost millions” when then CEO made false statements.Essentially, since 2002 regulatory laws on financial firms since 2002 have allowed shareholders to sue extensive class action lawsuits.This seems like a case of Rent-Seeking big corporations are looking to “ease” there business practices by making them unaccountable for their own actions. Sure competition should be encouraged in business, because it HELPS the economy. If, however, it is a kind of competition that comes from hurting shareholders, than it seems to be HURTING the economy.I see no justification for violating the personal liberty of share holders, making themselves unable to legally defend themselves, just to increase production.It seems like rent-seeking o the part of the financial businesses, to lower costs by taking away legal barrier

Court Packing Cartoons

You might be interested in checking out a number of cartoons that were published around FDR's court packing scheme.

RULES MORE IMPORTANT THAN PERSONALITIES

I think the thoughts that Walter E. Williams has are brilliant, must be way I read him a lot.

This article has to deal with the role the Supreme Court has in making laws. In particular, the role lobbyists play in our government. Williams essentially boils down the role of congress to a football team, and of course (as he does in all of his articles it seems), economics.

His conclusion of the role the Supreme Court now plays fits perfectly with our recent discussions involving FDR and how he stacked the court. Professor Eubanks discussion of jurisprudence also comes into play. If we had a Court which held previous decisions true and did not "flip flop" on decisions, then stacking the court would not be an issue. Then, if Congress wanted to impose a law that favored a group (such as farmers (see "Economics & Government" blog) or sugar beet farmers), they would have to add an amendment to the Constitution. Thus, putting earmarks in budget bills favoring one group over another, might stop. Of course, what then would our Congressmen and women do all day?

Should price floors always be illegal?

A retailer in Texas ( Kay's Kloset) was selling products from Leegin Creative Leather Products in their store. To maintain competitive pricing with other larger retailers they discounted the products 20%. Leegin demanded that they and other retailers offering the discount prices put the prices back up or leegin would no longer ship them products. All of the retailers but Kay's Kloset raised the prices. Leegin, as promised discontinued sending them products. Kay's Kloset lost half of their business. The lower court ruled in favor of Kay's Kloset and awarded them $3.6 million. Kay's Kloset was suing for price fixing. Leegin holds that the prices were pro-competitive because they fostered competition with other brands. The Bush administration holds that it is inappropriate to automatically prohibit price floor agreements when they are not necessarily anti competitive. The case is now before the supreme court.

There are several things that I take issue with in this case. First lets look at the seller buyer relationship. Leegin was unhappy with the market for their products. They seem to feel that their products are worth more. The retailers seemed to disagree. Once the retailers have bought the goods they are theirs and should be allowed to resell them as they see fit. If the manufacturer wants the goods to sell for more they should make their selling prices higher forcing the prices that they want to be charged. After the retailer has possession of the goods I do not believe that the seller should hare anything further to do with the transaction. Furthermore, The retailer opted not to charge the higher prices and so no longer received shipments. Certainly, a manufacturer has the right to their goods and who they sell them to. The retailer opted not to fit into that criteria they have no right to compensation. If the prices that the seller wanted to charge were too high then people would not have bought them and the seller would lose money and change its prices. All indications of this case seem to suggest that the market should be allowed to correct itself.

Now we need to consider if the government is correcting a market failure? Price floors and price ceilings seem to go along with monopoly power. Is the regulation of this particular price floor within the scope of governments power? It does not seem to me that the manufacturer is trying to create a monopoly. If their claims are true and they are just trying to stay competitive in the market then there are substitutes for their goods. Entry into the leather market is not particularly difficult. the retailer claims to have lost half its business so it would seem that perhaps the prices asked for are in fact the market prices. No other retailers had a problem charging the higher prices. Perhaps I am mistaken but it seems to me that there is no cause here for government intervention. The actors made market choices and they should be allowed to play out. I cannot see that this price floor is of the kind referenced in the Sherman Anti Trust Act. People may chose to buy other leather products.

Is a DVR Recording Copyright Infringement?

Cablevision developed a new way to use DVR systems by providing remote storage instead of hard drive storage on the system itself, one storage unit per person. This remote storage would allow for easy access and probably more storage space than current DVR systems. The problem is that the pseudo-monopolized market, which includes studios and cable networks, believe that this DVR storage is causing infringement issues. To try and downplay the havoc being created by the studios and cable networks, Cablevision is going out of its way to prove that they are not infringing on current copyright laws. Cablevision is using the Supreme Courts decision in 1984 regarding VCR's, that the VCR recordings were legal media. This new system is no different than current DVR's like TiVo that record media and store it on the hard drives, only these hard drives are remote. The studios and cable networks disagree, and state that the process allows the recording to be re-played for free and without approval for those transmissions, referring to them as video-on-demand services. They are still fighting for revenues lost to other competition such as Netflix, Podcast, etc. that is downloadable by consumers and can be replayed after paying only once, not several times.

This has rent-seeking written all over it! The studios and cable networks had a monopoly in this market for years and it has been crumbling because of new technology. So they are fighting this DVR market, Podcast, satellite television, downloadable movies and Internet movie rentals. This is causing a limitation to competition. Because of rent-seeking the Government could intervene and cause this new technology to withdraw, or push license or fees on it so much that it may not survive. It goes against Mancur Olson's economic prosperity system and causes an inefficient economy.

High Court tests limits of student speach rights

As the Olympic torched passed through Juneau, Alaska, in 2002, a high school senior Joseph Frederick along with some friends unveiled a banner which read "Bong Hits 4 Jesus" as an attempt to get on TV. The principal of the school (Deborah Morse) tore down the banner and suspended Frederick for 10 days saying that because the word "bong" was a reference to marijuana, the sign violated the school's anti-drug policy. On March 19th the U.S. Supreme Court will hear the arguments in Morse V. Frederick. Similar school policies, many inspired by Colorado's Columbine incident, have banned students from wearing clothing or posting signs that focus on drugs, guns or incendiary topics such as homosexuality, abortion and religion.

In a similar case in 1969 three Iowa students who wore black armbands to school to protest the Vietnam War were suspend and went to court saying their first amendment rights had been violated. The Supreme court ruled in favor of the teenagers, saying, " it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

When the U.S. Court of Appeals for the 9th circuit ruled in favor of Frederick last year in the Juneau case it cited the "Newsom decision" saying, "our sister circuits have similarly held that student speech that is neither plainly offensive nor school-sponsored can be prohibited only where the school district demonstrated a risk of substantial disruption."

I believe the Court of Appeals was correct and just because we enter a school building we do not loose our Constitutional rights. I would hope the supreme courts finds in favor of Frederick, because if we give up our first amendments rights in school, whats next?

O'Malley Endorses State Ban On Smoking

In Maryland, the state government is attempting to pass a law that would ban smoking in public establishments. Most people would agree that this law is not only beneficial to non-smoking customers, but also to the businesses that have allowed smoking in the past. Obviously, non-smokers would no longer have to suffer foggy smoke clouds that most bars and many restaurants have become accustomed to, and business owners are likely to see a boost in overall sales since non-smokers will no longer be avoiding their establishment due to smokey conditions.

Some have said that non-smoking laws will lose businesses money because the smokers wont want to go to the establishments their accustomed to if they cant smoke inside. A bogus argument i think. Smokers aren't going to boycott public establishments all together because of a minor inconvenience. Colorado passed the same law not to long ago. The restaurant that I bar tend for saw an obvious increase in sales. Our smoker regulars still came in just as frequently as they had before except they were smoking outside. And new customers also came in clearly stating that they had come in because they didn't have to worry about the smoke anymore.

While this law may infringe on the liberty of some people, its better for society as a whole to adopt this. Not only will public establishments make more money through higher sales, but people will be able to enjoy cleaner places to go blow all their money. And as we know, the more money that people spend, the more money businesses make, the better the economy becomes.

Supreme Court denies Writ of Habeas Corpus and Constitutional rights.

Mathew Musladin was denied the petition of habeas corpus by the Supreme Court earlier this month. He was convicted for the murder of Tom Struder in the case of Carey v. Musladin. Musladin thought he was denied a fair trial because family members of Struder wore buttons bearing the victims picture. He had asked the judge to have the family remove their buttons, but the judge would not comply. According to the article (link attached); One could argue, on the one hand , that when jurors observe the grief and solidarity of a victim's family members- evident in the buttons they wear- each day of the trial, the jurors are likely to feel obligated to do something to acknowledge and ameliorate the grief (Colb, 1).

The Supreme Court stood by the judge. It felt that the actions of the family were not within the control of the court system. The only way to effectively petition the court for writ of habeas corpus is to prove state action. The state action doctrine says that a person must be acting on behalf of the government to compel bias towards a defendant. As the families were not under the employ of the state, their actions did not violate Musladin's constitutional rights. This distinction, however, should not carry much force in the context of a trial... A judge controls a courtroom, so once a defendant has specifically asked the judge to order that some display be stopped, the judge's refusal to grant the defendant's request qualifies as state action (Colb, 2).

The Supreme Court failed to protect Mathew Musladin's Constitutional rights. It could be argued that his right to due process of law was violated under the fourteenth and possibly fifth amendments. One may not speak out of turn in court, as this could lead to a contempt charge. The same follows for the actions and attire of the courtroom audience. The Judge could have made the family remove the buttons. Once the judge opts to act in any way which effects the court, the state has intervened. State intervention is almost implied when a person stands trial. If a person such as Musladin must face punishment by the state, the state must have the responsibility to make sure that punishment is meted appropriately.

Religion or Liberty?

Peter Schwartz wrote an article on February 20, 2007 on the website for Capitalism Magazine titled Religion vs. Liberty. In that article he listed a condition needed for individual freedom and the direction to which our government is currently going with each religion and liberty. Schwartz believes that secularism is a condition that must be present in society in order for freedom to exist. The Constitution seems to agree with his belief, as do I. Freedom includes the right of an individual to control their own lives and to pursue their own means of happiness. Many individuals would be upset if rule by religion was able to take this away. I would be one of them.

While it doesn’t seem so clear to me to say that there can be no religion in government, it seems logical to think that if our government ruled by protecting our rights, instead of making decisions based upon religion, that liberty would be better protected. However, does this mean that we wouldn’t be better off overall with a faith based government to guide us? I imagine some might think so. The true question is do we believe that we have to be at one extreme end or another, or can we find a place in the middle to meet.

Merck Suspends Lobbying for HPV Vaccine to Become Law

What a great idea this was!!! When I first heard about this initiative, I heard it was being introduced by a Texas lawmaker. My first thought was an obvious case of rent seeking. Merck was the first to develop the vaccine, therefore, by requiring it to be law, Merck's sales would be through the roof. My immediate second thought was the implications on liberty and freedom. Could this law be Constitutionally correct?

When there is a public concern for health, such as the flu, which is transmitted by casual contact, then there can be a case for mandatory vaccines, even those subsidised by the government. However, in this instance, this is a vaccine for HPV which is contracted through sexual contact. This is immediately recognizable as a controllable type of disease- abstinence works best. There would be absolutely no instance for the government to force parents of girls, as young as 9, to get this vaccine. One of the arguments against this is that it could promote sexual activity among young girls. I think this follows the same logic as distributing condoms in public school.

I don't think it is the job of the state to police sexual activity of our children. It was wise for the government to prepare for the bird flu, but we did not get mandatory vaccines for it and, as it turns out, there have been few, if any, cases here in the U.S. (It just so happens that the market actually worked in getting the bird flu under control- economic pressure was put on states (et. China) to get control of the situation, otherwise business and commerce would stop coming to that part of the world). HPV can be prevented by abstinence, testing of partner, use of protection.

Since this was a blatant attempt by Merck to gain profits. it was wise for them to back down. No, if only the lawmakers can see their errors and back down as well.

The government and their power of eminent domain.

In his article Taking Away Your Property on MSNBC.com author Dan Caplinger discusses the different aspects of eminent domain in the United States. He explains that while the power of eminent domain is very old and is supposed to allow the government to take private property from individuals for the benefit of the public with just compensation, this doesn’t always happen. Sometimes they take the land so that it can be used to build bridges, roads or schools on, which is okay for the public. But in other instances the government takes ownership of a private parcel of land from an individual and gives it to a contractor to develop. In this situation many people believe that the land was taken for private use and that they were wronged.

The Fifth Amendment of the United States Constitution states that “no person shall be “deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.”(1, l.10) Our government should not be going beyond what is deemed to be their constitutional right. Infringing upon individual’s rights by taking land for private use is wrong. It will be interesting to see how the signing of a bill by President Bush to limit takings to where they only benefit the general public affects future takings. The hope is that future takings by the government will be minimal and only out of necessity for public use.

Eminent Domain Abuse Issues in WA

The author of this article Mr. William Maurer, is the Executive Director of the Institute for Justice, Washington chapter. Mr. Maurer also recently wrote a book regarding eminent domain issues that the nation is facing as a result of the decision from the Supreme Court ruling in the Kelo case. That ruling prevents Federal courts from interfering with local governments regarding the condemning of private property for economic development. In this article Mr. Maurer discusses the effects of the Kelo case on Washington state.

The Kelo case regarding private property issues in the state of Washington (and other states) are really more of abuse of police and state powers. For example, an old statute called Washington's Community Renewal Act has been used to condemn whole neighborhoods and transfer the property rights to the city development contractor. The city planners simply describe that a particular neighborhood is one that is "blighted" -a word which has a very vague meaning but leads one to believe that the neighborhood is in desperate need of repair- and they have the power to remove the neighborhood and replace it entirely. Because of the Kelo case decision the Supreme Court cannot intervene regarding this city enforced "blight" issue. Although in the Kelo ruling the Supreme Court stated that the local governments could provide more protection from such abuses of private property if it deemed appropriate. The biggest issue now is that citizens cannot sue the city or state for breach of the Constitution in order to protect their property. There is no chance for the citizen to win. Mr. Maurer believes that if cities and states were more responsible and if the courts enforced the local government constitution, there would not be such an abuse of power.

Constitutionally, this is a blatant abuse of police power. It is perplexing to me as to how can a state allow this to happen. Maybe the people of the cities and states in WA and other areas affected are not doing enough to raise this issue. Where is the city getting its approval to begin these developments or re-developments? Economically, the city is negatively affecting the ability for its own future growth. These "blighted" neighborhoods may be in an area that, if left alone, could become larger and provide more housing and economic growth. The economy of the real estate market could take a very large downturn if the city decided not replace the neighborhoods it removed, preventing more people from moving to the city.

Philip Morris

Jessie Williams a chain smoker died at age 67 of lung cancer after smoking three packs of Marlboro cigarettes a day. His widow sued Philip Morris, the maker of Marlboro cigarettes, accusing them of misinforming of the dangers of smoking. A jury awarded the widow $821,485.50 in compensatory damages and $79 million in punitive damages. The case was eventually brought before the Supreme Court on October 1, 2006 and decided February 20, 2007. In a 5 to4 decision the Supreme Court overturned the $79.5 million an Oregon jury awarded the widow because they thought the jury over calculated the harm smoking caused to other individuals other than the widow who brought the case.

The case's constitutionality was based on the due process clause of the Fourteenth Amendment and how it imposes the states from imposing grossly excessive punishments (BMW v. Gore and State Farm v. Campbell)

I agree with the decision; however, I do not read this in the Fourteenth Amendment. I read that "nor shall any State deprive any persons of life, liberty, or property without the due process of law." I don't see anywhere where states can impose fines or punishments. I see that they can not deprive these things without due process of law. The damages were excessive to say the least. This case seems ridiculous to me that a jury would award so much money to a widow because her husband died from smoking cigarettes. Smoking was his choice! Philip Morris did not send a representative to sit there with a gun to his head making him smoke three packs a day. He could have quit when reports came out the smoking may not be that good for you.

"Issue Ads"

The supreme court is deciding a case that deals with campaign ads and their rules. In the 2004 campaign there were three ads run by "Wisconsin right to Life" that did not adhere to funding rules. Ads funded by businesses, labor unions, and other groups -- can be banned 60 days before a general election, and 30 days before a primary. Issue ads cannot mention any candidates or party affiliations. The ads asked people to call specific senators and support certain ideas. The basis for these rules is the campaign finance reform laws from congress.

The appellate court acknowledged the entities first right amendment to free speech, but maintained that the Campaign Finance Reform laws were constitutional. the supreme court will rule whether or not these specific ads apply to the rules. I do not believe that they will overturn the laws set forth by congress.

My reading of the powers of Congress does not suggest to me that they have the power to make laws relating to campaign finance reform. The organization used its right to free speech and spent the money on the ads. The message of the ads are not directly causing harm to anyone. The government is attempting to regulate trade in this industry. The organization is willing to buy the ad space and the tv/radio companies are willing to sell it. The government is not protecting the liberties of these individuals.

Wal-Mart Discrimination Case

The article refers to a lawsuit by women that claim discrimination against Wal-Mart of salaries and promotion eligibility. Initially there were 6 women with the claim, but through the appeals processes at the Ninth Circuit Court of Appeals in San Francisco, there is the potential for up to 1.5M women to be part of the now class action lawsuit. They claim that from 1998 forward, the women's salaries were 5-15% lower than that of their male counterparts, and the women were overlooked for promotions that they had the qualifications and requirements to fill, but were not considered. Since the Court of Appeals in San Francisco decided that the number of plaintiffs could increase by up to 1.5M women, Wal-Mart is now considering an appeals hearing at the US Supreme Court level.

This is more of a protective state appeal if it does end up going to the Supreme Court. The plaintiffs could affirm that since it is concerning individual liberty under Amendment XIV in the "privileges or immunities" clause would apply. Whereas Wal-Mart could appeal to the same Amendment, but use the "due process of law" clause.

Justices Breyer and Scalia Converse on the Constitution

You might be interested in listening.

The US Supreme Court as a Referee

Frederick Sautet

"If so, then the highest institution in the US is slowly moving in the direction of only interpretating the law (rather than the more active role it took in the progressive era). It is a very important sign, a slow move towards a position emphasizing the “original intentions” of the US Constitution. This move is important not because judicial conservatism is good for its own sake, but because it is one of the best ways to force the state back into its role as a referee—thereby limiting (and reversing) its growth. . . ."

You should read all of this short post.