Topic: Law and Civil Liberties

Calling All Harvard Alumni

As my colleague Dan Mitchell has noted, Harvard is about to hold a conference about how the “free market ideology has dominated  legal discourse and lawmaking the last few decades.”  That’s a dubious narrative (to say the least (pdf)).

In any event, Harvard alums who read this blog should know that Cato adjunct scholar Harvey Silverglate  is running for a position on Harvard’s Board of Overseers.  Pass the word to all the Harvard alumni you may know.  Additional background here.

“It Is a Sordid Business, This Divvying Us by Race”

Yesterday Cato filed a brief in what will be one of the most talked-about cases in the current Supeme Court term, Ricci v. DeStefano.

In Ricci, the City of New Haven, Connecticut developed an exam for firefighters seeking promotion to command positions. The city went out of its way to ensure that the exam was race-neutral and tested only relevant skills and abilities. When the exam results came down, however, white candidates had done better than their African-American and Hispanic peers. Given the few command positions available and the city’s rule that the highest scorers on an exam be promoted first, few minority firefighters would thus have been eligible for promotion. After a series of meetings and political machinations, the city refused to certify the results of the exam and promote anyone. Several of the firefighters who would have been eligible for promotion filed a lawsuit, claiming racial discrimination under Title VII.

The district court, affirmed by the court of appeals, granted summary judgment for the defendants, holding that the City’s alleged fear of an adverse impact claim (a different type of racial discrimination claim under Title VII) – based merely on the fact that the exam results yielded a racial disparity – was a legitimate reason for its decision not to certify the exams.

Cato’s brief, joined by the Reason Foundation and the Individual Rights Foundation, points out the absurd incentives at play: if the lower court’s ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

The Case will be argued April 22.

You Just Gotta’ Love those Trial Attorneys

Lives likely would be saved if hotels stocked defibrillators.  Having even one might make a critical difference for a patient having a heart attack.  But hotels hesitate stocking the devices, which, while not cheap, are well within reach for most hotels. 

However, reports the Wall Street Journal:

Hotels worry that if they have the devices, which cost about $1,200 to $2,000 each, they could be sued for failing to have enough units, failing to put them in the right places, or failing to replace batteries or maintain them properly.

Great.  The American legal system is telling hoteliers that you’re probably safe if you don’t have any life-saving equipment on the premises.  (Though one can imagine a negligence suit eventually contending that you should have had defibrillators–and perhaps an entire operating room, too!)  But if you buy one and don’t adequately train your personnel, or let the batteries die down, or have it on the “wrong” floor, you could be sued.  This truly is legal insanity.

Don’t get me wrong.  I like lawyers.  After all, I picked up a J.D. many years ago, even if Cato rescued me so I don’t have to actually use those skills.  But surely it is ridiculous to have a legal system which actually discourages companies from buying equipment which could save lives.

Our new president, a Harvard Law School graduate, might want to add legal reform to his lengthy list of desired transformations of America.

Cato Scholars Address Obama’s First Speech to Congress

President Barack Obama’s first address to Congress laid out a laundry list of new spending contained within the stimulus legislation and provided hints as to what will be contained in the budget - a so-called “blueprint for America’s future” - he’ll submit to the legislature. Cato Institute scholars Chris Edwards, Jim Harper, Gene Healy, Neal McCluskey, David Rittgers, John Samples and Michael D. Tanner offer their analyses of the President’s non-State-of-the-Union Address.

Subscribe to Cato’s video podcast here and Cato’s YouTube channel here.

No Taxation Without Representation? OK, I’ll Take the No Taxation

The Senate is taking up, and looks ready to pass, legislation granting the District of Columbia full representation in the House of Representatives.  And the bill is co-sponsored by Utah’s Orrin Hatch, whose state would also get one additional House member – but only until 2012, when the new census will again reapportion representatives nationwide.

The problem (setting aside the cheap politics of adding one safe seat for each party) is that the DC Voting Rights Act is facially unconstitutional. The plain text of Article I limits representation in Congress to voters residing in “states” – a species of jurisdiction that the District of Columbia is not.

Now, this simple legal fact does not affect the moral argument that the voices of D.C. residents should resound in Congress no less than those of their fellow citizens of the several states. To remedy this historical accident – the Founders did not conceive that anyone would live permanently in the federal district, because the government was not supposed to grow this large – we have two constitutional options:

1) A constitutional amendment – like the 23rd Amendment, which in 1961 (yes, only that recently!) gave D.C. presidential electors, and without which it would be unconstitutional for D.C. residents to cast votes for president; or

2) Retrocession to Maryland – akin to the part of the original District that was returned to Virginia, all but the land under the Congress, White House, and certain other federal buildings could rejoin Maryland, and the people living there would then be counted toward that state’s congressional delegation (and be represented by Maryland’s two senators).

Better yet, if the political rallying cry for the D.C. Voting rights movement is “no taxation without representation,” then I suggest that we focus on the first part of the equation and cease federal taxation of D.C. residents. Regardless of the optimal solution, however, the course that Congress has chosen simply will not fly if we take the Constitution seriously.

The ‘Inane and Insane’ World of Federal Criminal Law

Over at  Sentencing Law and Policy, Douglas Berman takes a look at a recent federal case:

I cannot help but wonder if the authors of the Bill of Rights would have been even more troubled by the ugly way federal criminal power is exercised here.  Rather than having state authorities indict and try the defendant for all his local crimes, the feds come in, secure a conviction through a broad regulatory law, and then obtain a long prison sentence by “proving” state crimes to a federal district judge (by a preponderance of evidence) at sentencing.  Thanks to modern criminal justice realities, federal prosecutors can easily make a sentencing end-run around most of the constitutional criminal procedure rules the Framers put into the Fifth and Sixth Amendments.

It’s not just one case.  This is a trend in the federal courts.  In my new book, In the Name of Justice, I identify many other ways in which the government is going over, under, and around the Bill of Rights.

Is Anyone in Washington Listening?

As my colleague Ian Vásquez wrote a couple of weeks ago, Latin Americans are fed up with the war on drugs. The F[ailure] Word is increasingly being used in the region to describe Washington’s prohibitionist strategy. Just take a look at today’s Wall Steet Journal op-ed by former presidents Fernando Henrique Cardoso (Brazil), César Gaviria (Colombia) and Ernesto Zedillo (Mexico).  And last week, Caracol TV, Colombia’s main TV network, started airing a highly-publicized three-hour documentary called “Won Battles, Lost War” on the futility of the War on Drugs in that country. Over the last year, other Latin American leaders have also been calling for a different approach to drug trafficking that range from decriminalization to legalization.

During last year’s campaign president Obama promised to treat Latin Americans as partners. It remains to be seen if anyone in his administration is listening to these calls.