Topic: Law and Civil Liberties

Blowing the Whistle on “Stellar Wind”

Newsweek has a very interesting story on Thomas M. Tamm, the former Justice Department lawyer who was a source for New York Times reporters Eric Lichtblau and James Risen, who broke the warrantless wiretapping story three years ago yesterday.

The dimension of the story most interesting to me is the failure of congressional oversight to perform its role. Uneasy with what his Justice Department colleagues called ‘the program’ and assumed to be illegal, Tamm had contacted a friend of his who worked for the Senate Judiciary Committee. But Sandra Wilkinson “shut down their conversation.”

Among derelictions of duty, this one stands out. It is the job of the legislative branch to oversee the executive. Sandra Wilkinson, her Judiciary Committee colleagues, and her boss (my cursory checking hasn’t revealed who that was) failed to pursue allegations of illegality in the Justice Department. They will live out their lives with the quiet infamy of gutlessness.

Thankfully, we have a watchdog press and a protective First Amendment. Otherwise, ‘the program’ might even now be metastisizing into a greater threat to our liberties. As it is, the rule of law in the United States has taken a hit, the Congress sickeningly ratified the illegal wiretapping program, and Americans have gotten a refresher course on why not to trust the government of the country they love.

Tis Better to Be Regulated by One Gorilla than by Fifty Monkeys

When Congress lawfully exercises its constitutional powers to regulate a particular aspect of interstate commerce, states cannot also regulate in that area.  This anodyne principle, arising from the Constitution’s Supremacy Clause, is known as preemption.  Today, in its last public action of 2008 and its first 5-4 decision of the term, the Supreme Court violated that principle in a case involving cigarette labeling, Altria v. Good.  The Court erroneously determined that the Federal Cigarette Labeling and Advertising Act does not preempt a suit for fraudulent labeling under state law. 

While the Act expressly covers labeling and advertising “with respect to any relationship between smoking and health,” Justice Stevens’s opinion somehow finds that it does not cover smoking- and health-related suits predicated on the general duty not to deceive.  (The Court was not asked to address, and did not address, the threshold question of whether the Act infringes on the free speech rights of advertisers.) 

As Justice Thomas points out in dissent, the majority has created an unworkable rule that depends on how one frames “the legal duty that is the predicate of the common-law damages action” rather than the text of the federal statute at issue.  Thus, not only will cigarette manufacturers who dutifully comply with federal law now face countless suits under countless state laws, but their fates in those suits will hinge on the creativity of counsel and the gullibility of judges.  And of course, this type of reasoning can easily be extended to circumvent preemption in other regulatory fields, including this term’s eagerly awaited FDA case, Wyeth v. Levine.

Bill of Rights Day

Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter.

Let’s consider each amendment in turn.

The First Amendment says that Congress “shall make no law … abridging the freedom of speech.” Government officials, however, insist that they can make it a crime to mention the name of a political candidate in an ad in the weeks preceding an election.

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, insist that they can make it a crime to keep and bear arms.

The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners. This safeguard is doing so well that we can pause here for a laugh.

The Fourth Amendment says the people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Government officials, however, insist that they can storm into homes in the middle of the night after giving residents a few seconds to answer their “knock” on the door.

The Fifth Amendment says that private property shall not be taken “for a public use without just compensation.” Government officials, however, insist that they can take away our property and give it to others who covet it.

The Sixth Amendment says that in criminal prosecutions, the person accused shall enjoy a speedy trial, a public trial, and an impartial jury trial. Government officials, however, insist that they can punish people who want to have a trial. That is why 95% of the criminal cases never go to trial. The handful of cases that do go to trial are the ones you see on television — Michael Jackson and Scott Peterson, etc.

The Seventh Amendment says that jury trials are guaranteed even in petty civil cases where the controversy exceeds “twenty dollars.” Government officials, however, insist that they can impose draconian fines against people without jury trials. (See “Seventh Amendment Right to Jury Trial in Nonarticle III Proceedings: A Study in Dysfunctional Constitutional Theory,” 4 William and Mary Bill of Rights Journal 407 (1995)).

The Eighth Amendment prohibits cruel and unusual punishments. Government officials, however, insist that jailing people who try in ingest a life-saving drug is not cruel.

The Ninth Amendment says that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others “retained by the people.” Government officials, however, insist that they will decide for themselves what rights, if any, will be retained by the people.

The Tenth Amendment says that the powers not delegated to the federal government are to be reserved to the states, or to the people. Government officials, however, insist that they will decide for themselves what powers are reserved to the states, or to the people.

It’s a depressing snapshot, to be sure, but I submit that the Framers of the Constitution would not have been surprised by the relentless attempts by government to expand its sphere of control.  The Framers themselves would often refer to written constitutions as mere ”parchment barriers” or what we would describe as ”paper tigers.” They nevertheless concluded that putting safeguards down on paper was better than having nothing at all. And lest we forget, that’s what millions of people around the world have — nothing at all

Another important point to remember is that while we ought to be alarmed by the various ways in which the government is attempting to go under, over,  and around our Bill of Rights, the battle will never be ”won.” The price of liberty is eternal vigilance. To remind our fellow citizens of their responsibility in that regard, the Cato Institute has distributed more than three million copies of our “Pocket Constitution.” At this time of year, it’ll make a good stocking stuffer. Each year we send a bunch of complimentary copies to the White House, Congress, and the Supreme Court so you won’t have to.

Finally, to keep perspective, we should also take note of the many positive developments we’ve experienced in America over the years. And for some positive overall trends, go here.

Except for the DNA, He’s Guilty as Hell

Some prosecutors will say or do anything to win a case.  Even if that means convicting an innocent person, letting a rapist off the hook, and smearing an 11-year old girl.  Sometimes these ambitious prosecutors run for higher office and win.  Sometimes they become judges.  In a just world, more of them would repent and then help us to clear landmines.

Race-Based Government in Paradise?

The current Supreme Court term is a bit of a letdown for those of us who track and comment on the machinations of One First Street; a steady diet of technical statutory interpretation questions without many “meaty” constitutional issues. Well, yesterday Cato filed its first amicus brief of the term in a case that itself is fairly sui generis — the issue is whether Hawaii can sell certain state lands without getting approval from a weird racialist commission called the Office of Hawaiian Affairs (OHA). But the case has broader ramifications for the Court’s equal protection jurisprudence. Moreover, as Cato’s resident Hawaii expert (we have a low bar here for that niche), I can say that the case threatens to set a terrible precedent for a state that has otherwise been a model of racial harmony.

In the 2000 case of Rice v. Cayetano, the Supreme Court held that a race-based scheme allowing only statutorily defined “Hawaiians” to vote for the OHA’s trustees was unconstitutional. Despite Rice, and despite Justice John Marshall Harlan’s dissenting statement in Plessy v. Ferguson 112 years ago that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,” the OHA continues to view Hawaiian citizens through racial lenses. This practice has spawned numerous lawsuits, including the present legal crisis in which the state’s sovereign authority to manage its land for the good of all of its citizens has been replaced with a court-imposed duty to hold the land for the benefit of one racial class.

Specifically, the Hawaii Supreme Court blocked the sale of certain state lands based on a mistaken (and race-based) interpretation of a joint resolution that Congress passed in 1993 to apologize to Hawaiian people for the overthrow of the Kingdom of Hawaii — which was itself based on a slanted view of history. Cato’s brief, joining with the Pacific Legal Foundation and the Center for Equal Opportunity, argues that race-based government is impermissible under the Fourteenth Amendment’s Equal Protection Clause, that the Constitution’s Indian Commerce Clause does not provide a basis for laws that grant preferences to “Native Hawaiians,” and that the Apology Resolution neither amended nor rescinded the federal laws that gave the State of Hawaii full control over the disputed land.

For other filings in the case, see here. Argument is scheduled for February 25.

Doherty Book Review

There’s a review of Brian Doherty’s new book, Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment, over at McClatchy’s Washington Bureau.  “[T]he book is a brisk read, and it has the kind of direct observation and insider detail that can help bring even a well-plumbed case back to life.” 

Heller continues to spur controversy in the legal community.  Judge Harvie Wilkinson III of the Court of Appeals for the Fourth Circuit compared it to Roe v. Wade as judicial intervention in an issue that should have been resolved by the political branches.   Cato Associate Policy Analyst David Kopel responded on the legal blog The Volokh Conspiracy, making the point that, unlike abortion, the right to keep and bear arms is express in the Bill of Rights. The full paper, co-authored with Professor Nelson Lund of George Mason University School of Law, is available here.

Marie Gryphon on “Loser Pays”

Marie Gryphon, of the Manhattan Institute (and a Cato adjunct scholar), has a terrific new paper advocating a “loser pays” system to deter frivolous lawsuits. Here are excerpts from the executive summary:

This study argues that loser pays could be an important part of a larger effort to reduce litigation costs, better compensate prevailing litigants, and better align tort law with its goal of deterring socially harmful conduct. A loser-pays rule would discourage meritless lawsuits, but because any such rule should also ensure plaintiffs of modest means but strong legal cases access to justice, our proposal calls for:

  1. A robust litigation insurance industry similar to those that now exist in other loser-pays countries; and
  2. A cap on recoverable fees to eliminate the incentive that large litigants might have to attempt to “buy a verdict” under loser pays.

This study explores in depth how a loser-pays rule would change litigation in America. It includes key findings about the likely effects of loser-pays reform and evaluates previous experiments with loser pays in America.

The Status Quo

This study delves into the available evidence about how the legal marketplace works, which lawyers file low-merit lawsuits, and how they stay in business:

  • The subgroup of lawyers that file most nuisance lawsuits works to obtain settlements in weak legal cases before its members ever see a courtroom.
  • The American system facilitates nuisance lawsuits, since the high cost of defending against weak cases gives defendants a strong incentive to settle.
  • In contrast to nuisance suits, low-merit mass torts and class-action suits are able to attract some of the best lawyers in the United States because the potential damages stemming from these suits make them very lucrative, even when they are settled for a small fraction of the amounts demanded.

Effects of Loser Pays

This paper infers from its examination of the scholarly literature how loser pays would affect the American legal system:

  • Almost every economist who has studied loser pays predicts that it would, if adopted, reduce the number of low-merit lawsuits.
  • A loser-pays rule would encourage business owners and other potential defendants to try harder to comply with the law. Doing so should produce fewer injuries.
  • Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle.