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Muddling Through

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Member since: Fri Jun 13, 2014, 06:54 AM
Number of posts: 19,038

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Raisin takings case oral argument goes badly for the government

So, according to the Federal Government, taking personal property is not covered by the 5th Amendment? Should be interesting.

"Things did not go well for the federal government in today’s oral argument in Horne v. US Department of Agriculture, the raisin takings case. Nearly all of the justices were highly skeptical of the government’s claim that forcible confiscation of large quantities of raisins somehow does not qualify as a taking of private property that requires “just compensation” under the Fifth Amendment. The forced transfer is part of a 1937 program that requires farmers to turn over a large portion of their raisin crop to the government so as to artificially reduce the amount of raisins on the market, and thereby increase the price. Essentially, the scheme is a government-enforced cartel under which producers restrict production so as to inflate prices.

The lower court decision by the Ninth Circuit held that this doesn’t qualify as a taking because personal property (including raisins) is not protected by the Takings Clause, and because Hornes and other raisin farmers actually benefit from the program, which increases the price of the products they sell. There was virtually no sympathy for the former argument among the justices, and Deputy Solicitor General Edwin Kneedler barely even tried to defend it. At one point, he suggested that that argument “has not been our position,” though later on he said a similar program targeting property rights in land would be a “fundamentally different” case. Kneedler was probably wise not to push this argument much, since both the text of the Fifth Amendment, the original understanding, and longstanding precedent all indicate that the Takings Clause protects all private property rights equally (which is why the text uses the general term “private property” without differentiating between real and personal property). The relevant history and precedent is covered in detail in an amicus brief I joined along with a number of other constitutional law and property scholars.

Kneedler put most of his emphasis on the argument that there is no taking because the Hornes and other raisin farmers actually benefit from the program that confiscates their raisins. In the words of Justice Antonin Scalia, the government’s argument here is that the Hornes are actually “ingrates” who should be grateful for the government’s largesse. As several justices emphasized, even if the Hornes really do benefit from the confiscation of their property, that does not change the reality that a taking has occurred. The fact that property owners benefit in some way from the taking of their property may affect the level of compensation they are owed. But it does not change the reality that a taking has occurred in the first place. Justice Samuel Alito noted that the government’s logic leads to the conclusion that there is no taking in any situation where the government seizes personal property for purposes that might potentially benefit the owners in some way:

Could the government say to a manufacturer of cellphones, you can sell cellphones; however, every fifth one you have to give to us? Or a manufacturer of cars, you can sell cars in the United States, but every third car you have to give to the ­­ to the United States.

After all, reducing the number of cell phones or cars on the market is likely to raise the price of those products, thereby benefiting their manufacturers. "

Balance of article follows at link: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/22/raisin-takings-case-oral-argument-goes-badly-for-the-government/
Posted by Muddling Through | Thu Apr 23, 2015, 01:33 PM (2 replies)

UVA Dean Maligned by Rolling Stone Received Death and Rape Threats, Hires Lawyer

I hope Rolling Stone has a hefty insurance policy. This could cost them a lot of money and was entirely avoidable.

"Nicole Eramo, the UVA dean of students portrayed as the face of administrative neglect of rape victims in Rolling Stone’s now-discredited story, revealed in a letter to the magazine’s publisher that she received death and rape threats as a result of Sabrina Rubin Erdely’s reckless reporting.

She has hired an attorney and may pursue legal action against the magazine, which has never really apologized for defaming her.

Her letter, written to Rolling Stone publisher Jann Wenner, alleges that the magazine’s representatives claimed as recently as February that Erdely’s portrayal of Eramo was “fair.” That’s rather damning, if true; Rolling Stone should have had some idea by February that its fact-checking process had fundamentally failed and no aspect of the story was beyond reproach. And indeed, the police and Columbia investigations later determined that Eramo had directed Jackie to go the police, contrary to what Erdely wrote.

“I saw my name dragged through the mud in the national press, and have received numerous abusive, vitriolic, and threatening emails, letters, and phone calls,” wrote Eramo in her letter. “Perhaps most egregious and shocking were the emails I received expressing hope that I be killed or raped, and commenting that they hoped I had a daughter so that she could be raped.” "

Balance of article at the link: http://reason.com/blog/2015/04/22/uva-dean-maligned-by-rolling-stone-recei
Posted by Muddling Through | Thu Apr 23, 2015, 07:02 AM (11 replies)

Wisconsin’s Shame: ‘I Thought It Was a Home Invasion’

Midnight raids, John Doe investigations, gag orders. Any thoughts?

"Cindy Archer, one of the lead architects of Wisconsin’s Act 10 — also called the “Wisconsin Budget Repair Bill,” it limited public-employee benefits and altered collective-bargaining rules for public-employee unions — was jolted awake by yelling, loud pounding at the door, and her dogs’ frantic barking. The entire house — the windows and walls — was shaking. She looked outside to see up to a dozen police officers, yelling to open the door. They were carrying a battering ram.

She wasn’t dressed, but she started to run toward the door, her body in full view of the police. Some yelled at her to grab some clothes, others yelled for her to open the door. “I was so afraid,” she says. “I did not know what to do.” She grabbed some clothes, opened the door, and dressed right in front of the police. The dogs were still frantic. “I begged and begged, ‘Please don’t shoot my dogs, please don’t shoot my dogs, just don’t shoot my dogs.’ I couldn’t get them to stop barking, and I couldn’t get them outside quick enough. I saw a gun and barking dogs. I was scared and knew this was a bad mix.”

She got the dogs safely out of the house, just as multiple armed agents rushed inside. Some even barged into the bathroom, where her partner was in the shower. The officer or agent in charge demanded that Cindy sit on the couch, but she wanted to get up and get a cup of coffee. “I told him this was my house and I could do what I wanted.” Wrong thing to say. “This made the agent in charge furious. He towered over me with his finger in my face and yelled like a drill sergeant that I either do it his way or he would handcuff me.”

They wouldn’t let her speak to a lawyer. She looked outside and saw a person who appeared to be a reporter. Someone had tipped him off. The neighbors started to come outside, curious at the commotion, and all the while the police searched her house, making a mess, and — according to Cindy — leaving her “dead mother’s belongings strewn across the basement floor in a most disrespectful way.” Then they left, carrying with them only a cellphone and a laptop."

Balance of article follows at link: http://www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french

Posted by Muddling Through | Tue Apr 21, 2015, 07:35 PM (64 replies)

Two indecipherable criminal laws passed in the 1980s now face scrutiny at the Supreme Court.

This should be interesting to watch. How can people be expected to obey laws upon which the courts cannot find a common interpretation or definition?

"The legal philosopher Lon Fuller once invented an earnest monarch named Rex who discovered many wrong ways to make law. First, Rex wrote a detailed code of laws, but, to avoid confusing the public, kept it secret. “To Rex’s surprise this sensible plan was deeply resented by his subjects. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were,” Fuller wrote. So Rex refined his code even further and made it public. But its detail and precision made it “a masterpiece of obscurity.” Soon “a picket appeared before the royal palace carrying a sign that read, ‘How can anybody follow a rule that nobody can understand?’”

Next week the Supreme Court will look at cases in which two criminal defendants make similar pleas. On Monday, a violent neo-Nazi contends that he is facing 15 years in prison under a law that not only he but some of the most learned judges in the country find incomprehensible; the next day, a dealer in “designer drugs,” claims that he is facing prison under a law so complex that its prohibitions are effectively ​secret from anyone except skilled chemists.

The neo-Nazi, Samuel Johnson, faces a 15-year minimum sentence under the Armed Career Criminal Act. ACCA provides that any person convicted in federal court of a firearms offense will receive a minimum 15-year sentence if he or she has previously been convicted three times in state or federal court of “a violent felony or a serious drug offense.” As originally passed in 1984, the Act limited the “violent felonies” to crimes in which force was actually used or threatened, or to any robbery or burglary; two years later, Congress made the law even “tougher.” It now specifies that any offense is a “violent felony” if it “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The last part is called the “residual clause.” With admirable restraint, Justice Antonin Scalia wrote a decade ago that the clause “is, to put it mildly, not a model of clarity.” In fact, it has tied the federal courts in knots. In the past decade, the Supreme Court has had to settle disputes over whether “violent felony” applies to attempted burglary (no), driving under the influence (no), failure to report for incarceration (no), and intentional flight from law enforcement in a motor vehicle (yes). But confusion persists, with different standards prevailing in different appellate-court jurisdictions. For example, in the Fifth Circuit, reckless assault is “violent,” while in the Sixth, reckless homicide is not. In the Fourth Circuit, battery of a police officer is not “violent,” in the Tenth it is. In the Fifth, Sixth, Seventh, and Tenth Circuits, fleeing law enforcement on foot is “violent”; in the Eighth, Ninth, and Eleventh it is not."

Balance of article follows at link: http://www.theatlantic.com/politics/archive/2015/04/too-vague-to-be-constitutional/390762/
Posted by Muddling Through | Sat Apr 18, 2015, 03:56 PM (0 replies)

Texas set to approve open carry of handguns, seen as win for gun-rights activists

Hopefully this will settle things down and remove the incentive to "open carry" long guns to make a political point.

"Austin – Texas is poised to become the largest state in the U.S. to allow citizens to openly carry handguns, a change long sought by gun-rights activists.

The Texas House of Representatives on Friday voted 96-35 to allow residents with concealed-handgun licenses to openly carry their guns in public in holsters. A similar open-carry measure passed the Texas Senate last month; the two open-carry bills must be squared before being sent to Republican Gov. Greg Abbott, who has indicated support for the idea.

In contrast to its reputation for being permissive on firearms, Texas is one of six states, including California, New York and Florida, that currently bars citizens from openly carrying handguns. People who want to carry handguns in public on their person must obtain concealed-weapons permits and keep the weapons hidden.

Texas currently allows citizens to openly carry long guns in public, however. That has spurred gun-rights groups to carry assault rifles into restaurants and stores and along the sidewalks adjoining the Texas Capitol, to highlight what they see as a senseless legal distinction."


Balance of article at the link: http://www.foxnews.com/us/2015/04/18/texas-set-to-approve-open-carry-handguns-seen-as-win-for-gun-rights-activists/
Posted by Muddling Through | Sat Apr 18, 2015, 08:25 AM (70 replies)

New Mexico Gov. Susana Martinez Signs Civil Forfeiture Abolition Bill

This looks interesting. Wonder if it is the start of a trend?

A quick and happy update from New Mexico: Gov. Susana Martinez (R) has signed HB 560, which I detailed here, into law. New Mexico has thus effectively abolished civil asset forfeiture by requiring a criminal conviction before the government can seize property.

Gov. Martinez’s statement can be read here.


"House Bill 560 (HB 560) makes numerous changes to the asset forfeiture process used by law enforcement agencies in New Mexico. As an attorney and career prosecutor, I understand how important it is that we ensure safeguards are in place to protect our constitutional rights. On balance, the changes made by this legislation improve the transparency and accountability of the forfeiture process and provide further protections to innocent property owners."


Civil asset forfeiture is an inherently abusive practice that provides perverse incentives to law enforcement, encourages “policing for profit,” and allows the government to take the property of individuals and businesses that are never charged with any wrongdoing. Hopefully the bipartisan spirit of the New Mexico abolition (HB 560 passed the legislature unanimously) will serve as a model for other legislatures around the country who wish to restore our cherished concepts of due process and private property to their proper status.

Full article can be viewed at the link. http://www.cato.org/blog/new-mexico-governor-susana-martinez-signs-civil-forfeiture-abolition-bill
Posted by Muddling Through | Mon Apr 13, 2015, 07:21 PM (18 replies)

Author of Discredited Rolling Stone UVA Rape Story Will Apologize Tonight

Well, better late than never, I suppose:

"Sabrina Rubin Erdely, the author of Rolling Stone's much-maligned story about a gang rape at the University of Virginia, plans to formally apologize for her mistakes, according to CNN's Brian Stetler.

Erdely stopped responding to questions and interview requests at the beginning of December, as reporters began to call into question the details of the story. (Richard Bradley and I were the first to do so.) Since then, the story has completely collapsed and was essentially confirmed as false by The Washington Post and the Charlottesville police department.

Erdely plans to break her silence tonight, according to The Daily Caller:


But now, according to CNN’s Brian Stelter, Erdely plans to make a public apology nearly four months after Rolling Stone’s retraction. Her apology appears to be timed to coincide with the release of a Columbia School of Journalism report on Rolling Stone’s journalistic failings.

“Once the story began to unravel… Erdely disappeared. She has been invisible ever since,” Stetler said on CNN’s “Reliable Sources.” “But my sources say that she will break her silence tonight, and she will be issuing a statement and will be formally apologizing for her errors.”

Balance of article follows at link: http://reason.com/blog/2015/04/05/author-of-discredited-rolling-stone-uva

I wonder how much Rolling Stone will settle this case for?
Posted by Muddling Through | Sun Apr 5, 2015, 03:12 PM (12 replies)

Chris Christie Pardons Concealed Carry Owner Shaneen Allen

I wonder how this will play with the hoplophobe crowd?

"New Jersey Governor Chris Christie has pardoned Shaneen Allen, a mother of two and concealed carry permit owner who was arrested in New Jersey for carrying a weapon in her car.

Allen, a resident of Pennsylvania, had a concealed carry permit and a lawfully registered handgun while she was traveling through New Jersey, when she was pulled over by a New Jersey police officer for making an unsafe lane change.

She informed the officer of the handgun in her car, unaware that it was illegal in the state of New Jersey. Because of the misunderstanding, she was arrested and faced felony prosecution.

Allen’s case became a cause for gun rights activists, such as the National Rifle Association. Executive vice president of the National Rifle Association Wayne LaPierre celebrated the news in a statement to Breitbart News."

Balance of article follows at the link: http://www.breitbart.com/big-government/2015/04/02/chris-christie-pardons-concealed-carry-owner-shaneen-allen/
Posted by Muddling Through | Thu Apr 2, 2015, 08:03 PM (41 replies)

Eleven of 12 APS defendants found guilty.

Verdict just in regarding the Atlanta Public Schools test cheating scandal.

"After more than eight days of deliberation in a case that rattled the region and garnered unwanted national attention, a jury found 11 of 12 former Atlanta Public Schools teachers, principals and administrators guilty of conspiring to change student answers on standardized tests.

A racketeering indictment could mean a 20-year prison sentence. The other felonies carry prison sentences of as much as five and 10 years each.

The trial stretched five months with 162 witnesses who took the stand. Thousands of pages of testimony was introduced. Closing arguments lasted three days.

The former educators are accused of conspiring to change answers on the 2009 CRCT to artificially inflate scores to satisfy federal benchmarks. The prosecution said bonuses and raises were awarded based on test scores."

Balance of article follows at link: http://news.blog.ajc.com/2015/04/01/eleven-of-12-aps-defendants-found-guilty/
Posted by Muddling Through | Wed Apr 1, 2015, 03:18 PM (0 replies)

ATF director steps down after bullet ban controversy

Maybe this wasn't the best choice to head this troubled agency?

"The director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is stepping down following controversy surrounding the agency’s proposal to ban certain types of ammunition.

The ATF announced Friday that Director B. Todd Jones is resigning at the end of the month “to pursue other opportunities in the private sector."
........

Jones, who in July 2013 became the first ATF director to be confirmed by the Senate and led the agency after a scandal involving the agency's infamousl botched Operation Fast and Furious" gun tracking initiative, is departing shortly after the agency dropped a controversial attempt to ban certain armor-piercing bullets used in AR-15 rifles.

The episode was the latest in a series of flaps that has put the Obama administration's ATF at odds with many congressional Republicans. In recent weeks, GOP lawmakers have introduced legislation seeking to tamp down on the agency's authority — and to abolish the ATF altogether."

Balance of article follows at link. http://thehill.com/regulation/administration/236423-atf-chief-to-step-down
Posted by Muddling Through | Fri Mar 20, 2015, 12:04 PM (11 replies)
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