Law

Greetings from blogging exile!  For one post at least . . . I’ve been thinking about the British practice of submitting substantial questions to the voters in a non-binding referendum.  For example, the issue of whether Britain should join the European Union, or whether seats in the House of Commons should be allocated via proportional representation.  While these national votes have no legal effect, they are treated as extraordinarily important and (if decisive) are expected to lead to action by Parliament. Let’s suppose we wanted to try that in the United States.  There’s major legislation pending in Congress, for example.  Congress then passes a law stating that there shall be a non-binding referendum on this bill on a certain date.  Is that constitutional?  In other words, does Congress have the power to require states to put something on their ballot or hold a special election (i.e., not on a primary or general election day)? I think that the answer is no, unless you think the fact that this is non-binding creates a relevant distinction.  But if enough states agree to hold the referendum, either on their own or because Congress gave them money, would those that object feel pressure to cave to avoid being left out of the result?

This is the first part of the tenth in a series of posts reviewing Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. But don't think that this is the end. We have more reviews...

This is the first part of the tenth in a series of posts reviewing Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. In today's posts, our author, Margeret Jane Radin, responds to her reviewers....

At this blog, Lyle Denniston discusses nine pending cert. petitions regarding new EPA rules on greenhouse gases and observes that the petitions “could either turn into one of the biggest regulatory cases the Court has had in years, or could go nowhere because of the argument that the Supreme Court has already all but resolved the dispute.” Also at this blog, Amy Howe discusses the prospect that Burnside v. Walters, in which the Court recently granted cert. to address the interpretation of 28 U.S.C. § 1915, which allows indigent plaintiffs to file their lawsuits in forma pauperis, could return to the Sixth Circuit without a ruling on the merits by the Supreme Court. Briefly: At the Constitutional Accountability Center’s Text & History Blog, David H. Gans discusses data reflecting high voter turnout by African Americans in recent elections and argues that such data is a reason to “celebrate, not gut” Section 5 of the Voting Rights Act, the constitutionality of which the Court is currently considering in Shelby County v. Holder. At HuffPost Live (video), Mike Sacks moderates a panel discussion on Monday’s cert. grant in Town of Greece v. Galloway, in which the Court will consider whether a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity. Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondent in Shelby County v. Holder.  If you have (or know of) a recent article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it. In association with Bloomberg Law

Vanderbilt Law Review, Volume 66, Number 4 (May 2013). The Vanderbilt Law Review is pleased to announce the publication of our May 2013 issue. Congratulations to the class of 2013 and a special thank you to the outgoing editorial board for a great year! ARTICLES Sean J. Griffith & Alexandra D. Lahav, The Market for Preclusion in Merger Litigation, 66 Vand. L. Rev. 1053 (2013). Adam J. Kolber, Against Proportional Punishment, 66 Vand. L. Rev. 1141 (2013). D. Theodore Rave, Governing the Anticommons in Aggregate Litigation, 66 Vand. L. Rev. 1183 (2013). NOTES Amy E. Sanders, A Gap in the Affordable Care Act: Will Tax Credits Be Available for Insurance Purchased Through Federal Exchanges?, 66 Vand. L. Rev. 1259 (2013). Andrew Tunnard, Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines, 66 Vand. L. Rev. 1309 (2013). Are you interested in writing a response to one of these pieces? Visit Vanderbilt Law Review En Banc for more details.

We have been discussing the use of fees for every possible thing on airlines to generate billions for airlines while eliminating every possible comfort for passengers. Now the ranking of most popular and least popular airlines has been released. I was most struck by the reaction of Spirit CEO Ben Baldanza in learning that his company is widely viewed as a disgrace. There is no mystery to achieving a higher ranking, it is just something that airlines are not willing to do anymore: lower fees, more legroom, and civil staff. The winner again is Virgin America which offers seat comfort and better in-flight entertainment. Southwest and JetBlue scored high as well due to their lower use of added fees. Then came Spirit airlines at the very bottom of satisfaction as little more than a flying cattle car for humans. Most CEOs would be embarrassed and pledge changes. Not Spirit CEO Ben Baldanza who went on CBS’ “This Morning” make sure that passengers understand that he will not improve a thing on his lowest ranked airline. Instead, he indicated that his ideal is not his top ranked competitors but McDonald’s in offering a demonstrably cheap, low-quality product. (One can easily imagine how happy McDonalds executive are with the analogy): “No one goes into McDonald’s and is surprised they don’t see filet mignon on the menu. When they come to Spirit, they know what they’re getting. They know they’ll get a lower total price than they’ll get anywhere else.” In other words, we strive to produce a barely endurable flight along the model of an barely edible meal. One can understand why there is a Facebook site that states “Facebook facilitated the fall of Egyptian dictator Hosni Mubarak … now we must force Ben Baldanza out …” Well, sure, but Mubarak insisted that he was trying to actually improve conditions in Egypt. Source: Consumerist

Anyone who visits China comes back with harrowing accounts of driving habits from steering onto sidewalks to ignoring traffic lights or lane markers. However, even under Chinese standards, this driver may have set a record for accidents with one minute. It seemed inevitable that the driver would find the hole and hopefully he survived. Of course, his fall might have been broken by some of the ooze that we saw take over a street in China two days ago (though it likely would dissolve both the man and his motorcycle). By the way, the Chinese did not determine what the substance was or whether it was hazardous. They just used hoses to force it back into the sewers beneath the streets — the Chinese version of environmental reclamation. Kudos: Professor Don Clarke

(Todd Zywicki) According to Bloomberg the Chippewa-Cree tribe in Montana has refused to comply with a CID from the CFPB based on the illegality of the non-recess appointment of Richard Cordray as Bureau director: Under Dodd-Frank, the bulk of the bureau’s authority to supervise banks with assets above $10 billion, a group of about 110 that includesJPMorgan Chase & Co. (JPM) and Lafayette, Louisiana-based Iberiabank Corp., doesn’t require that a director be in place. Without a director, though, the agency couldn’t extend its supervision to non-bank financial firms, including online payday lenders. The uncertainty has helped slow the bureau’s attempts to scrutinize online lending businesses operated by Native American tribes, according to two people briefed on the probe who spoke on condition of anonymity because the matter isn’t public. Companies operated by the Chippewa-Cree tribe in Montana, the Tunica-Biloxi tribe of Louisiana and the Otoe-Missouria tribe of Oklahoma last year were sent civil investigative demands, a kind of subpoena for business data, the people said. Tribal Challenge “The purpose of this investigation is to determine whether small-dollar online lenders or other unnamed persons have engaged or are engaging in unlawful acts or practices relating to the advertising, marketing, provision, or collection of small-dollar loan products,” according to a copy of one of the documents obtained by Bloomberg News. The Chippewa-Cree challenged the request in part on grounds Cordray’s appointment was illegal. Cordray hasn’t acted on the petition, which could require him to address the constitutional question, the people said. By contrast, when three other companies filed similar petitions, Cordray published responses within 90 days, records show. James Hopper of the Otoe-Missouria company, Billi Anne Raining Bird-Morsette of the Chippewa-Cree firm and Marshal Pierite of the Tunica-Biloxi lender didn’t respond to requests for comment. Vahey, the bureau spokeswoman, declined to comment on an ongoing enforcement matter. One expects that as some CFPB targets begin to challenge CFPB’s authority on the basis of the invalid appointment of the Director that this will embolden others to also say that the emperor has no clothes.  This is important for the important constitutional principles at stake, of course, and the importance of structural constitutional protections for individual liberty.  But it also potentially important in the event that if the circuit court opinions eventually are affirmed by the Supreme Court (as I expect they will) a consistent pattern of objection and resistance by private parties is an important element of the de facto office doctrine (this is a useful summary) that might be used to try to ratify the acts that CFPB has taken.  In this vein, Congressman Hensarling’s consistent public challenges to the validity of the CFPB’s powers without a confirmed director would seem to be relevant to the application of the doctrine as well.

London and the world is reeling from the video from yesterday of two Muslim men who killed and mutilated the body of an English soldier and then asked people to film them as they raved about their atrocity. The men reportedly screamed “Allah Akbar” as the butchered the soldier. A man now identified as Michael Adebolajo is shown promising onlookers that “you and your kids will be next.” In the midst of this horror scene however there was inspirational moments including a woman who gets off her bus to confront Abebolajo covered in blood and holding a meat cleaver. In the disturbing video below, Abebolajo proclaims “The only reason we have killed this man today is because Muslims are dying daily by British soldiers.” Of course, he did not have the courage to confront the soldier head on. He hit him with his car before butchering him and posing for YouTube. Abebolajo is shown telling viewers “Remove your governments – they don’t care about you. You think David Cameron is going to get caught in the street when we start bursting our guns? You think politicians are going to die?” He warns that more will die and “No, it’s going to be the average guy, like you, and your children. So get rid of them – tell them to bring our troops back so we can… so you can all live in peace.” Abebolajo is known by the Muslim name Mujahid. He adopts the same excuse used throughout the ages by those who use religion to justify their blood lust: “We swear by the almighty Allah we will never stop fighting you until you leave us alone. We must fight them as they fight us. An eye for an eye, a tooth for a tooth.” He then added a bizarre claim of regret . . . not for the murder of course but the women watching: “I apologise that women have had to witness this today, but in our land our women have to see the same. You people will never be safe. Remove your government, they don’t care about you.” It was in this disgusting scene of religious violence that a true representative stepped forward. She is mother-of-two Ingrid Loyau-Kennett and was on a bus when the scene unfolded. She got off the bus and, when others were walking by or cowering, she walked up to the killer and demanded that he stop. One of the killers insisted “We want to start a war in London tonight,” but she replied calmly “Right now it is only you versus many people, you are going to lose.” Yes they will Ingrid, but it is because for every grotesque monster like these two men, we have Ingrid Loyau-Kennett and human beings like her.

Here is my disclaimer:  I'm from "tornado alley."  Here is "my tornado."  The Lubbock tornado was 43 years ago (gulp), when I was an infant.  I have no memories of it, just the story that my parents told me.  We went down the street to a neighbor's storm cellar; the tornado didn't come that close to our neighborhood; we left the dog in our kitchen. This week, as the history of the Moore, Oklahoma tornado is being written, I have read articles and heard radio stories asking why more residents in tornado-prone areas don't have storm cellars or safe rooms in their houses, schools, etc.  Not only why don't residents take more precautions, but why doesn't the law require new houses have tornado protection (similar to earthquake building requirements).  I never had a basement until I moved out of Texas to the Midwest.  In West Texas, and it seems Oklahoma and maybe further north, basements aren't really necessary.  Land is flat and available.  If you want more square footage, building out is cheaper than digging a basement in the really, really hard soil.  I remember having two friends my entire childhood that had basements, and everyone was really, really jealous of them (mostly because there seemed to be a lot more kissing in basements than in main floor family rooms).  Basements would also be handy in the case of a tornado, but are rare.  Instead of digging a basement, the law could require a separate storm cellar in a backyard or attached.  The NYT article estimated this cost as $4k, which seems like a low estimate to me.  So, is adding $4k to every newly constructed home prohibitive?  Is it wise? The problem is that everyone doesn't need their own cellar, and most people will never need one.  If  you think of all the homes that are situated in tornado alley, the probability of a particular home needing a cellar is really, really low.  And the cellar doesn't save your house.  It saves you, if you happen to be at your house.  At least in the Lubbock tornado, many victims were in cars, or fleeing their cars.  (Here are some pretty interesting tornado data.)  The reporters seen to think the probability of needing a cellar is really high in Moore, which also had a tornado in 1999 (no fatalities, but property damage).  In a perfect world, there would be one storm cellar, safe room or basement per block, not per house.  That's pretty hard to regulate.  But, having a storm cellar or safe room per school or office building doesn't seem like a bad idea.  (I haven't heard anyone talk about mobile homes/trailer homes, which are even less stable than a home with a shallow foundation.) Interestingly, this same week, commentators in the news have questioned Angelina Jolie's choice to have genetic testing for breast cancer (that costs $3-4k, a little less than a storm shelter), then have a double mastectomy when she learned a rare gene gave her probability of getting breast cancer was 87%.  Well, no one in tornado alley has an 87% chance of dying in a tornado. The other variable, besides the probability that a tornado will hit not only your town, but your block, is whether you would go into the storm cellar.  Here, the NYT article and the NPR story seemed to suggest that there is a low level of panic for residents of tornado alley.  That may be true.  The summers of my childhood seemed to be filled with tornado warnings and tornado watches, which we soon began to ignore.  These warnings would shoot across our broadcast TV channels, and some families had storm radios in case the electricity went off.  But, after awhile, you get a little desensitized to the daily tornado warning.  And, of course, there are stormchasers, a category of thrill-seekers that I still don't understand.  But even non-stormchasers can be mesmerized on their way to the cellar watching the sky, which looks really awesome in the middle of a storm. But I guess what bothers me about these "why don't you have a cellar" questions is an under