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I’ve got a new op-ed for Bloomberg View (first time I’ve appeared there) calling last week’s venture in presidential clemency “mingy and belated” and, if aimed at prison overcrowding, “like trying to bail out Lake Michigan with a paint can.” On Thursday President Obama commuted the sentences of eight inmates caught up in the crack cocaine sentencing fury, all of whom had already served at least 15 years for what were often relatively peripheral involvement in the drug trade. Clarence Aaron, for example, was serving three life sentences without possibility of parole for a first-time nonviolent offense. Many advocates from all political viewpoints pushed for Aaron’s release, among them Debra Saunders who wrote dozens of columns on his case in the San Francisco Chronicle over the past 12 years (Also in Minneapolis Star-Tribune and other papers, and AP roundup of opinion columns; & Scott Greenfield, Pardon Power).

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I’ve now got a guest column at PointOfLaw.com on the Securities and Exchange Commission’s proposed rule (earlier) requiring public companies to calculate and make public the ratio between chief executive officer (CEO) pay and the pay of a median worker. For companies with international operations in particular, the calculation may be quite difficult (it might depend on assumed exchange rates, for example, to say nothing of noncash benefits) and it might also depend on the ability to gather in one place certain types of data whose export is forbidden by some privacy-sensitive foreign laws. And all for what, aside from stoking demagogy? Or was that the point of the Dodd-Frank mandate that the SEC is now implementing?

I have fond memories of launching Point of Law during my years at the Manhattan Institute, and I was its primary writer for many years, so it is especially rewarding to contribute a guest column there. Under the leadership of MI’s Jim Copland, the site (and MI in general) has become especially active in corporate governance, shareholder and SEC controversies.

I’ve got a new piece at Reason.com expanding on my earlier reports on the new pilot program by which Facebook will give Maryland school officials a dedicated channel with which to seek takedown of posts and other material that in their view contributes to the problem of “cyber-bullying.” I think the program represents a disturbing step toward a wider government role as arbiter of what is allowed to be said in social media, the more so as it will be difficult or impossible to know whether takedown decisions at Facebook’s discretion are an entirely neutral application of the service’s “Community Standards” or are swayed in part by the wish to keep government bodies happy. I quote various press accounts, some affording additional insight into the existing and proposed takedown process, as well as commentary by Scott Greenfield, TechDirt, and the Daily Caller in which I’m quoted. Some additional commentary: Joy Pullmann/Heartland, Josh Blackman. More: Instalanched, thanks Glenn Reynolds.

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The Maryland high court recently declined an invitation to discard the common-law rule against server liability in a case where a patron of a Gaithersburg craft brewery got on the road and caused a fatal accident. Washington Post columnist Robert McCartney wrote in favor of the wider liability rule, and I responded in a letter to the editor just posted at the newspaper.

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Having to watch what bad government has done to my home city of Detroit is a bit like Princess Leia having to watch her home planet destroyed. The fate of the Motor City, writes John Steele Gordon, is America’s “greatest urban disaster that didn’t involve nature or war.” But wait: here’s distinguished New York Times columnist Paul Krugman to inform us that it’s not “fundamentally a tale of fiscal irresponsibility … For the most part, it’s just one of those things that happens now and then in an ever-changing economy.” Just one of those things! I reply — with a hat tip to Cole Porter — at Cato at Liberty. (& George Leef (“A tornado is ‘just one of those things’ because is has no human cause. When a city goes bankrupt, it has many human causes”), Ed Driscoll)

P.S. On the role of long-serving mayor Coleman Young, see pp. 12-13 of this Ed Glaeser/Andrei Shleifer paper (PDF). And here’s a HuffPo tag on Detroit corruption.

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In my new CNN.com piece I argue that we shouldn’t let anger over the Zimmerman acquittal shred the rights of criminal defendants: “awarding new powers to prosecutors will likely mean that more black people will end up behind bars.” [CNN](& Steele; thanks for Instalanche to Glenn Reynolds)

P.S. Some may wonder whether a toughening of hate crime laws might be an exception to the general rule that minorities have much to fear from a broadening of grounds for prosecution. Leaving aside whether the hate crime issue has any relation to the Martin/Zimmerman case (few lawyers believe Zimmerman could be found guilty of a hate crime, and when the FBI investigated him last summer it found no evidence of racial motivation; more on this from Michelle Meyer), per FBI statistics for 2011, blacks are actually overrepresented among persons charged with hate crimes, at 21 percent compared with 14 percent of general U.S. population.

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Commentary has un-paywalled my July article on the feds’ “blueprint” for how colleges and universities must deal with charges of sexual misconduct. I explain why despite a retreat to a seemingly less extreme interpretation of the law, the dangers remain that the Department of Education and Department of Justice will arm-twist academic institutions into stacked disciplinary methods and new curbs on speech. Read it here (and also consider subscribing to Commentary, gates aside). Earlier here, here, etc.

Two points worth noting: first, while the Obama administration has pushed the new plan hard, the wider trend of gradually stepped-up federal supervision over university life has been going on for decades under Republican and Democratic administrations alike. There is not much resistance: university officials and organized professors themselves are relatively half-hearted about sticking up for their own institutional autonomy. Indeed, the federal prescriptions represent in some ways a consolidation of power by already-powerful elements within the academy, as opposed to a perceived hostile takeover from the outside. In the same July issue of Commentary, Philip Hamburger has an excellent article outlining how university researchers have for decades now tamely submitted to federally prescribed controls — overseen by so-called IRBs, or institutional review boards — over such relatively innocuous forms of “human-subjects research” as interviewing politicians and observing passersby in public places. In 2007, David Hyman wrote for Cato’s Regulation magazine on “The Pathologies of Institutional Review Boards.”

P.S. Much more on IRBs from George Mason’s Zachary Schrag (book, another interview, more, blog).

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And with Justice Anthony Kennedy as the pivot? It just might have happened this term, or so I conclude in a new Cato post.

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Defending the Obama administration’s new rules governing discipline at colleges and universities, ThinkProgress makes it all sound more reasonable by erroneously reporting that the crackdown is on “unwanted contact”; the actual phrase is “unwanted conduct,” with “verbal conduct,” i.e. speech, very much part of that [Will Creeley, FIRE]

In the July Commentary I have an article on the controversy over the new blueprint (“Sentence First, Verdict Afterward“). It’s behind a paywall, but you can purchase it individually, or better yet subscribe to Commentary which is full of other great articles as well.

Yesterday the Supreme Court decided it was okay to require arrested persons to submit to DNA testing meant to match them to unsolved crimes. [Maryland v. King; Robert Kaiser, Washington Post; Nina Totenberg, NPR] In an impassioned dissent joined by liberals Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Antonin Scalia warned that an important civil liberties line is being crossed as the Court now approves suspicion-less searches of persons at a stage at which the law presumes them innocent, without any primary motivation except to gather evidence of unrelated crime.

I’ve got an article in The Daily Beast this morning on the Scalia dissent and its warnings that lawmakers may soon embrace a genetic surveillance state in the name of security. Excerpt:

In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”) Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?

With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. … I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

More: I’ve got this related piece in Newsweek on the Justices’ shifting Fourth Amendment alignments. Thanks to Glenn Reynolds for the Instalanche. And other commentaries from Daniel Fisher, Lowering the Bar (on the Jeremy Bentham angle; Scalia’s dissent mentions Bentham twice; Scott Greenfield; Julian Sanchez; Jacob Sullum). And Mississippi has just announced plans to match offspring of underage mothers to responsible fathers through DNA database checks based on umbilical cord blood. [NPR]

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For all with eyes to see (except maybe some folks at The New Yorker) the IRS scandal has been hiding in plain sight for more than a year, I argue in a new Cato post. For example, this site briefly covered the Service’s ridiculously broad documentary demands on Tea Party groups — for things like transcripts of speeches and radio shows and the contents of Facebook and Twitter postings– in March and May of last year.

The Treasury Inspector General’s report on the affair, released yesterday, is here. (Coverage roundup: Paul Caron, TaxProf.) It makes clear that many groups were singled out because of their controversial political stances and then subjected to both objectively unreasonable document demands (e.g., for thousands of pages of documentation) and objectively unreasonable delays (e.g., for two years) in resolving their applications. (The Service seldom if ever actually denied applications from the singled-out groups, perhaps because its actions would then have come under more rigorous court review). Meanwhile, other groups with controversial views of a different political valence were waved through. It is not a question of whether applications for tax exemption should somehow be “approved without question,” as some have contended, but whether they should come under review that is even-handed and with no more delay and regulatory burden than is inherent to the process. At Time, Michael Scherer collects past examples that suggest IRS retaliation against political adversaries is something of a tradition in America. (Similarly: Cato video podcast).

P.S. Defending itself against the Inspector General’s report, the IRS says the applicants flagged for special scrutiny “included organizations of all political views.” It points to three such left-leaning groups — out of 471 in all singled out for extra screening. [Bloomberg via Newser] Much more: Gregory Korte, USA Today (“As applications from conservative groups sat in limbo, groups with liberal-sounding names had their applications approved … the liberal groups applied for the same tax status and were engaged in the same kinds of activities as the conservative groups.”) Meanwhile, L.A. Times columnist Michael Hiltzik is unafraid of going way out on a limb to defend what the Service did: if you don’t want to be harassed for your dissidence, it seems, you shouldn’t have sought (c)(4) status in the first place.

Yet more: Reuters has illuminating coverage of how the Service tried to break one of the year’s biggest stories on a Friday afternoon via a friendly question before a room full of tax lawyers. (“They made a bet that this would be the quietest way to roll it out,” [Eric Dezenhall] said of the IRS strategy. “It didn’t work.”) “Did Citizens United Critics Push the Agency To Misbehave?” asks my Cato colleague John Samples, while Tim Lynch adduces “Some Empirical Evidence of IRS Political Manipulation”. The BBC has a lexicon of political scandal euphemisms (“tired and emotional,” “hiking the Appalachian Trail,” etc.)

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New from me at Cato: in covering the U.N. disabled-rights treaty, the Boston Globe bids to earn back its old nickname of “The Glib.” Earlier on the treaty here, here, etc.

Comcast Corp. v. Behrend

by Walter Olson on March 29, 2013

As I noted in this morning’s roundup, the Supreme Court spoke on Wednesday about class certification in an antitrust case from Philadelphia. Although a rather narrow and technical ruling it was not devoid of interest, or so I argue in a new post at Cato at Liberty.

I’ve got a flash reaction op-ed up at the New York Daily News site.

P.S. @gideonstrumpet: “I was indeed joking.

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I respond at Cato to a remarkably lame piece by Slate’s Emily Bazelon. Earlier on the case here and here.

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[cross-posted from Cato at Liberty]

I’m at the Commentary magazine blog this morning with a second bite (second gulp?) at the NYC soda ban ruling. This time I look at the separation-of-powers angle, and at the way Judge Milton Tingling, Jr.’s ruling addressed the overgrown ambitions of some in the “public health” community to control more and more of life. Although the decision did not forestall the New York City Council from adopting nanny-state regulations in the future should it see fit, I argue,

…yesterday’s decision should cheer us for other reasons. It holds the Gotham administration accountable for overstepping the separation of powers, an important principle in the safeguarding of liberty. (In a profile of Judge Tingling, the New York Times notes that he’s been skeptical of government claims to power in a number of other cases as well.)

Under separation of powers as generally understood at the time of the Framers, an executive agency cannot enact new legislation on its own, that being a role constitutionally reserved for the legislature. Especially during the Progressive Era and New Deal, these barriers were eroded as administrative agencies claimed a power to issue regulations that looked more and more like traditional legislation, under powers deemed to have been delegated by the legislature. Still, there are some limits, both under the U.S. Constitution and in New York (which under a 1987 case called Boreali v. Axelrod applies its own, quirky standard in evaluating whether a regulation oversteps the separation of powers.) And those limits to delegation were at the heart of the soda case.

The New York City Health Department was asserting a breathtakingly broad definition of its powers, on the grounds that successive city charters give it sweeping authority to address all matters relating to health. Under the interpretation advanced by Bloomberg’s lawyers, this vague charter language would empower the department to issue pretty much whatever diktats it pleases for New Yorkers to obey on any topic somehow related to advancing health….

Looking at cases where the agency’s authority to act had been upheld, the judge noted instances of emergencies, particularly those relating to epidemics of contagious or communicable diseases. … In that legal finding is the germ of a much-needed rebuke to some actors in the public-health movement, who have taken the centuries of moral and practical authority originally built up by their colleagues from the fight against epidemic infectious disease and dubiously sought to apply it to a dozen other health-related questions of life and lifestyle, including not only doughnuts, soft drinks and salty snacks but also such supposed “disease vectors” as gun ownership and overreliance on cars for commuting.

Read the whole thing at Commentary here. Background in yesterday’s post here (& Alex Adrianson, Heritage).

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This morning I was a guest on the Ralph Bristol show on Nashville Superstation WWTN and on the Ray Dunaway show on Hartford’s WTIC, talking about the court ruling striking down Mayor Bloomberg’s soda grab. The Orange County Register also reprinted my Daily Caller piece on the subject (& The Hill’s Blog Briefing Room). Earlier here, etc.

On Sunday the New York Times published a long, breathless screed attacking food company marketing (“Inside the hyper-engineered, savagely marketed, addiction-creating battle for ‘stomach share.'”) The article itself furnishes an example of empty, hype-fueled journalistic calories, or so I suggest in a new op-ed at the Daily Caller.

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