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Prop 8 Oral Arguments

[ 0 ] March 6, 2009 |

The outcome looks bad from a policy perspective, although legally it must said that the argument for striking down Prop 8 in the abscence of a federally enforceable right are pretty weak. At least it appears as if the marriages that took place under the more just staus quo ante won’t be nullified.

Identify the Fallacy…

[ 0 ] March 6, 2009 |

These are not the variables you’re looking for:

Those who argue that violent justice cannot solve this problem ignore several thousand years of history that suggests otherwise. It is absolutely a fact that Somali piracy can be eliminated on land, but history also shows that the application of the common law practice of execution also reduces the activity of piracy significantly. In the 19th century the Royal Navy proved all prior history correct by applying common law, the result was that piracy globally was virtually eliminated. Westerners should question and give serious consideration to whether we are evolving towards progress, or away from it. History is a solid guide for the future, but does this policy learn from history or ignore history?

So let me get this straight… a particular policy was pursued in response to a particular problem for 2200+ years. At the end of that 2200 year period, the problem underwent an abrupt and substantial decline. Accordingly, the 2200 year old policy (which, let me remind you, was followed for 2200 years; 2200!) should be judged a complete and unmediated success.

Yep.

Look, there’s a fair critique to be made about the legal complications associated with the fight against piracy. It’s true enough that pirates are taking advantage of the legal netherspace that they inhabit, and it’s also true that the navies of the world have yet to arrive at a fully satisfactory solution. And *maybe* just executing all the pirates as soon as they’re captured would work; maybe, on the other hand, the pirates would just get a lot more violent. I really don’t know. I do know, however, that sloppy theorizing of the sort we see above isn’t terribly helpful.

The Constitution Did Not Enact "Tort Reformer’s" Selective Unitary State

[ 0 ] March 6, 2009 |

Peter Schuck asserts thatThe Supreme Court’s decision yesterday in Wyeth v. Levine gives unprecedented power to juries in deciding issues far outside their expertise.” This is a very strange claim. The tort system wasn’t created this Tuesday; juries, for better or worse, have had the authority to make judgments about torts for centuries. How the Supreme Court could be said to have conferred this authority on state courts I can’t say, and Schuck certainly doesn’t explain.

From there, Schuck goes on to argue about the deficiencies of the tort system in deciding such cases. Some of these claims have merit, although given the actual realities of American regulation they also strike me as pretty useless. I particularly enjoyed this: “And juries in different states make different decisions on the same drug–hardly a recipe for the uniformity and predictability to which manufacturers should be entitled.” Whether or not manufacturers should be “entitled” to uniformity — and, I myself, could care less about “federalism” — the framers of our constitution decided a couple centuries ago that we should have a highly decentralized system of economic regulation. (And I certainly know that manufacturers aren’t entitled to complain about such decentralization only when it doesn’t work in their favor.)

But leaving aside the policy merits of Shuck’s arguments in the abstract (and they do have some), what’s curiously missing in the first paragraphs is an explanation for what legal warrant the Supreme Court has to dismantle this system. The last I looked, “Peter Schuck doesn’t think it produces optimal policy outcomes” is not a very convincing constitutional argument. Fortunately, he goes on to include valuable information reminding us that the Supreme Court was, in fact, right:


However, as a matter of law–the confusing law that the Court has created in this area–the Court majority may have been correct. In the statute that governs the FDA, Congress expressly gave the FDA preemptive power over state tort law as to medical devices, but has never done so for drugs, leaving the implication that it did not want preemption as to drugs. (Justice Thomas, ordinarily no friend of plaintiff’s lawyers, joined the majority for this reason.) Indeed, the FDA did not even claim preemptive authority until 2006, and even then did so in a most elliptical and unexplained manner.

Right. And if Congress doesn’t like the outcome, at least 8 justices believe that it can pre-empt state jury verdicts in such cases if it chooses. I give credit to Schuck for recognizing that the law doesn’t always accommodate his dislike of the tort system, but it makes the framing of the rest of the article even more bizarre. The Supreme Court created and authorized nothing; it issued a narrow ruling that left the existing system in place and left Congress with the authority to re-alter the federal balance of powers if it chooses. Seems unexceptionable to me.

LGM Tourney Challenge

[ 0 ] March 6, 2009 |

I have created an ESPN Tournament Challenge group; winner receives an LGM related prize. Speaking of which, the owner of the Knows Pickers, victor of LGM Bowl Mania, has yet to contact me with his/her address info. If you’re out there…

Group Name: Lawyers, Guns and Money
Password: zevon

Who for 2012? Hu for 2012!

[ 0 ] March 5, 2009 |

Heh. Perhaps Hu Jintao should consider forming an exploratory committee for the 2012 Republican primary…

According to Gallup, Communist, melamine exporting, beating us in the Olympics China is now more popular than Congressional Republicans:
USA Today/Gallup Poll. Feb. 20-22, 2009. N=1,013 adults nationwide. MoE ± 3.

“Do you approve or disapprove of the way the Republicans in Congress are handling their job?”

Approve 36%–56% Disapprove

Gallup Poll. Feb. 9-12, 2009. N=1,022 adults nationwide. MoE ± 3.

“Next, I’d like your overall opinion of some foreign countries. Is your overall opinion of [see below] very favorable, mostly favorable, mostly unfavorable, or very unfavorable?”

China: Favorable 41%–51% Unfavorable

Reforming Rockefeller

[ 0 ] March 5, 2009 |

This kind of reform of draconian drug laws is, admittedly, a second best option. lower maximum sentences along with the treatment option would be preferable. Just increasing judicial discretion doesn’t always mean less draconian penalties and also makes the process more arbitrary (a particular danger where the War on (Some Classes of People Who Use Some) Drugs is concerned.) Still, if it passes it’s certainly better than the status quo.

"Heh. He Said Beaver."

[ 0 ] March 5, 2009 |

In re: MoDo, what Chait and Yglesias and Benen said. In criticizing Dowd for focusing almost entirely on inane personal trivia larded with her bizarre gender obsessions, I might have implied that she should write more about politics and policy. This, however, would be misleading. This would be a bad idea, because of course she doesn’t know anything about politics and policy, so it’s not as if the few columns she writes that are nominally about these things are any less vacuous. Rather, the question is why the Times has chosen to use Dowd to fill a position that should be occupied by someone who has some idea what they’re talking about about something.

Icelandic sagas

[ 0 ] March 5, 2009 |

Michael Lewis has a fascinating and horrifying piece in the current Vanity Fair on how Iceland went bankrupt.

A handful of guys in Iceland, who had no experience of finance, were taking out tens of billions of dollars in short-term loans from abroad. They were then re-lending this money to themselves and their friends to buy assets—the banks, soccer teams, etc. Since the entire world’s assets were rising—thanks in part to people like these Icelandic lunatics paying crazy prices for them—they appeared to be making money. Yet another hedge-fund manager explained Icelandic banking to me this way: You have a dog, and I have a cat. We agree that they are each worth a billion dollars. You sell me the dog for a billion, and I sell you the cat for a billion. Now we are no longer pet owners, but Icelandic banks, with a billion dollars in new assets.

Naturally they learned these techniques from American investment bankers.

The Curious Letter to Medvedev

[ 0 ] March 4, 2009 |

I have an op-ed up at Comment is Free:

Were Obama serious about exchanging missile defence for Russia’s assistance to Iran, he wouldn’t have been hinting at the elimination of the programme for the last several months. Rather, he’d be trying to convince the Russians that he actually valued missile defence.

Pleasant Surprises

[ 1 ] March 4, 2009 |


Diana Levine, a professional musician, developed gangrene after taking Phenergan through a direct injection and had her arm amputated below the elbow. A jury in Vermont held that the drug’s manufacturer had failed to provide sufficient warning about the risks inherent in injecting the drug. The company appealed, arguing that because the drug and label were FDA-approved, the suit was “pre-empted” by federal law. I fully expected the Supreme Court to side with the manufacturer.

Happily, I was mistaken. The Court today held 6-3 that no federal law pre-empted the Vermont civil verdict. Stevens’s majority opinion didn’t deny that the federal government could pre-empt such suits, but held that there was not, in fact, any federal pre-emption:

In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.

Chamber of Commerce favorite Stephen Breyer concurred to express his disdain for torts but agreed that there was no pre-emption in this case. The surprise vote in favor of Levine came from the Court’s most principled conservative, Clarence Thomas, who argued for a revision of federal pre-emption doctrine that would narrow federal power. Inevitable vote for the business interest Sam Alito wrote the dissent, joined by Roberts and Scalia.

Poles Flexible on Missile Defense

[ 0 ] March 4, 2009 |

Part of the Bush administration’s strategy for “locking in” missile defense in case of a Democratic presidential victory was to conclude agreements with Poland and the Czech Republic that would be difficult for the Democratic victor to break. The thinking went that while Obama might be skeptical of missile defense, he probably wouldn’t jeopardize the US relationship with Poland in order to kill it. This, along with the War over South Ossetia, was why negotiations over missile defense seemed so frantic over the last six months of Bush’s term.

Part of Bush’s problem, however, was that Poland and the Czech Republic are, by and large, utterly indifferent to the threat of Iranian missiles. This indifference is part of the altogether sensible European belief that the Iran isn’t crazy enough to launch missiles at Europe. What Poland and the Czech Republic really wanted, especially in the wake of the South Ossetia War, was a concrete indication that the US is committed to their security. The Poles have some concern that NATO, dependent as it is on the West Europeans, will not suffice to protect them from Russian belligerence. A separate bilateral commitment from the US, in the form of missile defense installations, was a goal of Polish foreign policy, and the desire for such a commitment in some sense guided the Polish decision to deploy troops to Iraq.

Now that President Obama is actively considering dumping missile defense (possibly as part of a larger agreement with Russia), the Poles are making their interests clear:

Poland is looking beyond a missile- defense system that President Barack Obama might scrap and is focused on other elements of a security deal with the U.S. while mending ties with Russia, the top Polish diplomat said.

Foreign Minister Radoslaw Sikorskisaid his country is most interested in U.S. pledges in the agreement he signed last year in the face of Russian opposition, including an American garrison with Patriot interceptor missiles. The two sides also agreed to act jointly on military and non-military threats.

In other words, the Bush administration’s strategy, which was largely based on the idea that our European allies would desert us if we displayed weakness in front of the Russians (an oldie but a goody) has essentially failed; Poland knows what it wants, and will probably get what it wants even if the US forgoes the missile defense system. Whether or not Russia decides to play ball on Iran, I consider this last eventuality extremely likely.

H/t Josh Keating.

Cross-posted to TAPPED.

Again With the Standing Dodge

[ 0 ] March 4, 2009 |

It probably would not shock you to know that under the Bush administration the Forest Service sold timber for logging without the legally required notice, comment and appeal provisions because of a recent regulations declining to apply these requirements to smaller parcels of land. The government settled a suit brought by several environmental organizations, but seeing that these regulations could be re-applied in the future, the Ninth Circuit held that these regulations were illegal.

This being an environmental case, however, on Tuesday a 5-4 majority on the Supreme Court overruled the 9CA, holding that the groups did not have standing to challenge the legality of the regulations. Given the apparent long-standing “principle” of the Court’s conservatives that in marginal cases standing will be determined by whether or not granting standing will lead to results on the merits that the court’s conservatives will like, this outcome cannot be considered surprising. As Breyer argues in dissent, however, it’s difficult to defend:

These allegations and affidavits more than adequately show a “realistic threat” of injury to plaintiffs brought about by reoccurrence of the challenged conduct—conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not “be blind to what must be necessarily known to every intelligent person.” Applying that standard, I would find standing here.

Hopefully, the Obama administration will address the immediate problem by acting to repeal the illegal regulation.

[X-Posted at TAPPED.]