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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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My Cato post is here. I’d wish him bon voyage, but somehow it’s hard to associate him with happy travels.

Update: I’ve now expanded my thoughts into a Daily Caller op-ed.

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January 20 roundup

by Walter Olson on January 20, 2013

  • I’m in today’s NYT Book Review reviewing “Foundation,” Peter Ackroyd’s new book on English history up to the Tudors [NYT]
  • Stanford Law School launches religious liberty clinic [Karen Sloan, NLJ] AALS panel on “The Freedom of the Church” [Rick Garnett, Prawfs]
  • Party in breach, nasssty thief, we hates it forever: lawyer parses Hobbit’s Bilbo-dwarves contract [James Daily, Wired]
  • To pay for roads, vehicle-mile fees > gas tax, but either > general sales tax, argues Randal O’Toole [Cato at Liberty]
  • Steven Teles on the high cost of opaque, complex and indirect government action [New America via Reihan Salam]
  • I’ve given a blurb to Mark White’s forthcoming nudging-back book on behavioral economics, “The Manipulation of Choice: Ethics and Libertarian Paternalism” [Amazon]
  • “Internet-Use Disorder: The Newest Disability?” [Jon Hyman]

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I’m in this morning’s New York Post with an opinion piece about the thoroughgoing debacle the American Society for the Prevention of Cruelty to Animals (ASPCA) got itself into with a decade-long lawsuit charging mistreatment of elephants at the Ringling Bros.-Barnum & Bailey Circuses (earlier). Last month ASPCA agreed to pay Ringling’s owner $9.3 million to settle charges of litigation abuse. Other defendants in the countersuit, including the Humane Society of the U.S., have declined to settle and remain in the litigation.

Later in the piece I draw a parallel to the recently dismissed Hudson Farm litigation in Maryland, in which a judge lambasted Waterkeeper Alliance for shoddy litigation conduct in a Clean Water Act suit. Is it worth rethinking the whole policy, which dates back to 1970, of broad tax deductibility for suing people in “cause litigation”? Related from Ted Frank at Point of Law.

P.S. The comments section on the Post piece is more substantive than most, and includes a statement from HSUS. (& response from ASPCA head)

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Maryland law clinic follies

by Walter Olson on December 28, 2012

I’m in the Baltimore Sun with an op-ed about the University of Maryland’s ill-chosen decision to represent the Waterkeeper Alliance in what was intended to be a landmark environmental case against an Eastern Shore farm family. Earlier here, etc. (& welcome Glenn Reynolds/Instapundit readers)

P.S. Welcome listeners from Baltimore’s WBAL, which had me as a guest Friday afternoon to discuss the suit. Research assistance thanks to Ryan Mulvey, Cato intern.

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I’m in the NYT’s “Room for Debate” feature dissenting from a proposed extension of criminal law (& Amy Adler/Advice Goddess).

Bork and his adversaries

by Walter Olson on December 20, 2012

I’m in today’s New York Post with an op-ed about how, agree or disagree with Bork’s views, you can’t defend many of the tactics used against him in 1987. Earlier here (& welcome Nick Gillespie/Reason, Andrew Sullivan, Stephen Bainbridge, Reihan Salam, Tom Smith, Pejman Yousefzadeh, Jonathan Adler/Volokh, Memeorandum readers).

More: David Frum recalls a very funny Bork law exam. Ramesh Ponnuru defends Bork’s famous “inkblot” comment as reasonable in its context. Much more on that question from Randy Barnett. Paul Alan Levy of Public Citizen casts a vote against. At Secular Right, I add another observation or two about Bork’s religious views. Via Andrew Grossman, a clip on the beard issue.

Yet more: Richard Epstein at Ricochet. Meanwhile, some commentators have taken the line that uncivil or not, the actual charges by Kennedy and others against Bork were accurate enough. Mickey Kaus, who is sympathetic to judicial restraint but less so to Bork, links to a 1989 New Republic review in which he shed light on that:

True, paranoia on Bork’s part is amply justified. There is a liberal legal culture, and it was out to get him. … And it got him, in part, by sleazily misrepresenting some of his views. Most famously, a narrow Bork ruling was falsely characterized as favoring “sterilizing workers.” But there were other nasty distortions, not all by fringe interest groups. Senator Edward Kennedy charged that in “Bork’s America… schoolchildren could not be taught about evolution,” when Bork had never opposed teaching evolution. Senator Paul Simon implied Bork might approve the pro-slavery decision in Dred Scott.

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My new article at The Blaze, based (among other things) on a precinct analysis of the election results last month in Prince George’s County, Maryland: “the black precincts in P.G. with the strongest inclination toward social conservatism… gave Republican candidates a vote percentage more often associated with Libertarian candidates and rounding errors.” Although some Republicans have been keeping the runways clear and waving at every dot on the horizon for 20 years or more, the planes still aren’t landing (& welcome David Frum/Daily Beast readers).

One important reason same-sex marriage won on three state ballots last month is that many Republican voters, especially in affluent suburbs, crossed over to vote in favor of it. I’ve continued to document this phenomenon in a piece in this weekend’s Washington Post “Outlook” section (incorporating precinct-level detail on Minnesota and Maine) as well as in a second Huffington Post piece (with precinct-level detail on Maryland; my earlier HuffPo piece is linked here). Also, this Cato podcast:

One correction on the podcast: I mistakenly said Question 6 carried the two biggest Romney counties in Maryland, but I should have said two of the biggest three.

P.S. Mine was the second-most-popular article on WashingtonPost.com as of early morning Dec. 2.

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I’ve wrapped up my Big Questions Online discussion of litigation and humility with a concluding post here. Big Questions Online is published by the Templeton Foundation, and you’ll want to check out some of the other discussions led by interesting authors and thinkers.

After decades, farmers in western Canada are finally free to decide for themselves how and to whom to sell their crop, the result of a long political campaign led by free-market prime minister Stephen Harper with key help from Saskatchewan premier Brad Wall. I’ve got a new, celebratory post at Cato giving details. Next: getting our own Supreme Court to reconsider Wickard v. Filburn, the decision that laid out a charter for federal supervision of wheat growing and so much else besides? [Name screwup fixed now]

P.S. Milk still a big problem (although the U.S. is hardly free of cartel-like regulations in that sphere).

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After the quarter-century disgrace that is Proposition 65 litigation — run by and for lawyers’ interests, with no discernible benefit to the health of the citizenry — you’d think California voters would have learned a thing or two. But unless poll numbers reverse themselves, they’re on the way to approving this fall’s Proposition 37, ostensibly aimed at requiring labeling of genetically modified food, whose main sponsor just happens to be a Prop 65 lawyer. I explain in a new piece at Daily Caller. More coverage: Western Farm Press; Hank Campbell, Science 2.0; Ronald Bailey, Reason (& Red State).

More: defenders of Prop 37 point to this analysis (PDF) by economist James Cooper, arguing that 37 is drafted more narrowly than 65 in ways that would avert some of the potential for abusive litigation. And from Hans Bader: would the measure be open to challenge as unconstitutional, or as federally preempted?

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The American Family Association’s zany yet high-profile Bryan Fischer is in the news for calling for an “Underground Railroad” by which his fellow believers would “rescue” kids from gay parents. In my new Huffington Post piece, just up, I trace two main threads in his argument — that gay parents are a menace to their kids, and that extralegal steps are called for to put “God’s law over man’s” – and show how the same messages have been emanating lately from some rather more respectable social-conservative quarters, in Princeton, N.J. and elsewhere. The controversy develops in part from the Miller-Jenkins custody and kidnapping case, long a topic of coverage in this space; in the latest development, Mennonite clergyman Kenneth Miller (applauded by Fischer) has just gone on trial for allegedly abetting the spiriting of Isabella Miller-Jenkins (no relation), now 10, out of the country in defiance of court orders.

Fischer now says he wasn’t suggesting that kids of same-sex couples be abducted from their beds by Christians unrelated to those children, but he definitely is encouraging believers to use extralegal force in cases that pit one of theirs against a gay parent in a custody dispute. He hints broadly that the next test case after Miller-Jenkins will be that of a divorced woman he describes who is losing custody to her gay ex-husband, and who just might disappear with the child into the “Underground Railroad” he promotes. Meanwhile, the Liberty University School of Law in Lynchburg, Va., whose faculty has multiple connections with Lisa Miller’s side of the Miller-Jenkins litigation, stirred criticism when related civil-disobedience precepts reportedly emerged as part of the curriculum in a class.

It might be added that this, like so many unsettling developments on the Right, is not without its parallels on the Left. Since the 1980s and the famous Elizabeth Morgan case, some feminists have operated a so-called Underground Railroad to enable mothers to defy court orders and abduct their kids away from fathers with shared custody or visitation orders. Usually some allegation is made of abuse, but the tactic has been used and applauded even where a judge has considered the abuse allegations and declined to accept them. (Law prof Nancy Polikoff discusses her mixed feelings about the Miller-Jenkins case here).

Reacting to the potential for lawlessness in this realm, Congress has passed at least two statutes of relevance: the International Child Abduction Remedies Act, signed by President Ronald Reagan in 1988, and the International Parental Kidnapping Crime Act, signed by President Bill Clinton in 1993.

Update Aug. 15: Jury convicts Kenneth Miller.

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Our discussion of litigation, character, and humility at the John Templeton Foundation continues with talk of mediation, settlement rates, the impersonality of big cities, and contingency fees.

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What does the pursuit of litigation do to litigants’ characters? What does it do to the character of organizations and whole societies? Does it undermine the humility that some (though not all) of us deem an important virtue in persons and institutions?

This week I’m leading a discussion on that subject at the John Templeton Foundation’s Big Questions Online. It starts with a brief essay in which I note the older view, held by many religions and philosophical schools but now out of favor in much of academia, that litigiousness is a kind of vice, to which people are perhaps peculiarly susceptible if they take to an extreme what is otherwise the virtuous impulse to pursue justice. I cite familiar sources (Abraham Lincoln, Bleak House) as well as those perhaps less familiar (Kleist’s Michael Kohlhaas) that shed light on how pride in one’s own quarrels, even (especially?) those that are rightful, can distort perceptions and harden sympathies.

My observations, however, do no more than scratch the surface of a big subject on which there is much to say. It’s a moderated discussion and your comments are welcome through the week. And please pass on word to others who might be interested.