Over at the Space and Cyberlaw blog, Eric Dawson takes issue with my issue analysis on space property rights:
Foremost, I think the terminology used by Mr. Simberg is disingenuous. The proposed legislation, as I read it, does not create a property right at all. By describing it as such, I believe Mr. Simberg is concealing some of the more important areas of the discussion. A property right has no value if it does not protect your interests from third parties. To grant a property right, a nation must have sovereignty or control over the property in question, otherwise the grant is meaningless. Assuming that the legislation is not intended to be meaningless, what would actually happen under this proposal is that the United States would essentially promise not to take military or other action to remove a private party from a portion of a celestial body. Ignoring space law for the moment, and acknowledging that I am not a Constitutional scholar, I have serious concerns that such a piece of legislation would be constitutional. This is because it appears to be an attempt to limit the President’s commander-in-chief and foreign affairs powers.
Setting aside what I think is an unfair accusation of disingenuity, this is simply wrong. The legislation makes no “promise” to not take military or other action. It simply refuses to promise to do so. As I note in the paper, how the U.S. government would respond to a transgression against a recognized property owner, or whether it would, is completely unspecified by the proposed legislation — it would be a political decision taken at the time of the encroachment. For the government to recognize the right of an owner to lunar real estate is no more an “appropriation” or declaration of sovereignty than is our recognition of Israel or Taiwan’s right to exist. Surely Mr. Dawson isn’t saying that our stance toward those two nations represents a declaration of sovereignty over them? He goes on to repeat the (in my opinion of course) flawed argument that the combination of Articles II and VI create a de facto violation of the Outer Space Treaty by an individual property claim:
The OST prohibits national appropriation of outer space and celestial bodies through any means. Remember also that nations are responsible for the space activities of their nationals. If we accept that the US would not actually be granting a property right, but rather refraining from enforcing the provisions of the OST against appropriation, then it couldn’t really be accused of appropriation itself unless the private party were its own citizen (I’ll get back to this issue in a bit). There are no provisions of the OST that require a State Party to take actions enforcing the Treaty. If China were to claim the entirety of the moon tomorrow, the US would not be required to respond. That is a political decision. However, I believe that passing a law stating that the US would systematically ignore repeated violations of the Treaty’s provisions would very much go against the object and purpose of the OST. All signatories to a treaty have the minimal obligation of not violating a treaty’s object and purpose.
Again, there is confusion here. The legislation does not provide a way for the the U.S. to “grant” a property right — it cannot do so without a sovereignty claim, which would be a treaty violation. It simply requires that such a right be recognized by the U.S. government. And it doesn’t require that the U.S. “systematically ignore repeated violations of the Treaty’s provisions,” because there is nothing in the treaty that prohibits private claims — only national ones. It is in fact possible for citizens of a States Party to the treaty to do things that the States Party itself cannot. This is elaborated upon in a long blog post by the original author of the proposed legislation.
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The Supreme Court recently weakened constitutional protections against double jeopardy in Blueford v. Arkansas, a homicide case. The 6-to-3 decision was written by Chief Justice Roberts. It allowed a defendant to be retried for murder — not just manslaughter — even though the jury forewoman had reported that the jurors had unanimously rejected murder charges and were deadlocked on the lesser manslaughter count. Prominent criminal defense lawyer Scott Greenfield comments here. Paul Enzinna discusses the case at Point of Law.
In the Blueford decision, more of the liberal justices were protective of double jeopardy protections than conservative justices. But in other contexts, liberals are even more eager to sacrifice constitutional protections against double jeopardy — even where a jury has rejected not just some charges (as in the Blueford case) but all charges against the defendant.
In 2009, a liberal Congress passed, and President Obama signed into law, an expansion of federal hate crimes law partly designed to enable federal prosecutors to reprosecute people who had already been acquitted of hate crimes in state court. (This is permitted under a loophole in double-jeopardy protections known as the “dual sovereignty” doctrine.) Liberal Supreme Court Justices had earlier proved less sympathetic than conservative justices to defendants subjected to federal prosecutions after a state court acquittal in Koon v. United States (1996), a case with racial overtones. The defendants’ convictions in that case were sustained based on “dual sovereignty,” but the Court reduced their sentences, citing the successive prosecutions. In politically charged cases, some people just can’t accept a not-guilty verdict or dropped prosecution. As law professor Gail Heriot has noted, some supporters of the 2009 federal hate crimes law “even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”
In Maryland, labor unions join the protected ranks of doctors and lawyers with respect to confidentiality privileges. In early May, Maryland Governor Martin O’Malley signed Big Labor’s new special privilege into law. It extends protection from compulsory disclosure to unions and their members. Only similarly pro-union Illinois has given unions the controversial protected status that may conflict with federal labor law.
The legislation gives evidentiary protection to communications between union representatives and union members, meaning neither can be compelled to disclose information pertinent to an employer’s investigation or grievance proceeding. The right of refusal hampers the possibilities of employers and employees resolving disputes before costly and time-consuming litigation or arbitration.
Labor law attorney representing the Maryland Chamber of Commerce Gary Simpler commented, “There could be instances where the union does have access to information that they’ve obtained from the [employee] that would be important in helping the employer make an informed decision… if they had information they might have made a different decision or resolved the case much quicker than when they only learned about the information at the hearing.”
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“Like a good neighbor, State Farm is there.” For decades, that has been the famous slogan for the nation’s largest home and auto insurer, which serves more than 80 million customers.
But State Farm hasn’t just been a good neighbor to its policy holders. It has also been neighborly in supporting a robust public policy debate. While Walmart just became the latest company to cave to pressure from the leftist mob and drop its support from the center-right American Legislative Exchange Council (ALEC), State Farm has bravely stood firm in its funding for ALEC. So the large center-right majority in this country who believe in much of ALEC’s message of federalism and limited government needs to stand with State Farm.
All things being equal, the political demographics of the U.S. should make it a bad business decision for firms to cave to radical left groups like Color of Change in their demands to stop funding center-right groups like ALEC. As National Center for Public Policy Research co-CEO Amy Ridenour notes: ”According to Gallup, 40 percent of the public considers itself “conservative,” and 21 percent, “liberal.” Those who say they are “very liberal” — which the groups pressuring corporations from the left are — represent only six percent. If it comes to a showdown, why would a corporation want to offend 94 million conservative adult consumers to please 14 million very liberal ones?”
Because the problem is that all things are not equal. The right doesn’t apply pressure to corporations that cave as the left does on the firms to cave in the first place. My Competitive Enterprise Institute colleague Iain Murray laid out some good ideas on how the free-market majority can respond to Amazon, and my friend Phil Kerpen, who heads the new group American Commitment, has a petition calling on companies to “reject anti-ALEC bullying.”
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The infamous mayor, known for instituting paternalistic food policies, like banning trans fats and Four Loko, limiting salt, regulating calories, is at it again. New York City Mayor Michael Bloomberg is pushing a plan to limit the size of sugary drinks that NYC establishments may sell. Restaurants, movie theaters, street carts, along with some corner stores and bodegas will no longer be allowed to sell sweetened drinks in servings larger than 16 fluid ounces. Drinks exempted from the proposal include diet drinks, fruit juice, and lattes that are more than 50-percent milk.
This is just the latest controversial action in a long string of controversial actions taken by the mayor to combat obesity.
“Obesity is a nationwide problem, and all over the United States, public health officials are wringing their hands saying, ‘Oh, this is terrible,’” Mr. Bloomberg said in an interview on Wednesday in the Governor’s Room at City Hall.
“New York City is not about wringing your hands; it’s about doing something,” he said. “I think that’s what the public wants the mayor to do.”
Setting aside what the “public wants,” this proposal is a massive waste of money, will not at all address obesity, and will simply contribute to the tsunami of regulatory burdens with which business owners in New York City must grapple.
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Earlier, I wrote about how a judge in Montgomery County, Maryland (a liberal bastion), had silenced a critic of convicted “Speedway Bomber” Brett Kimberlin, who is now a left-wing activist subsidized by the Tides Foundation and the Barbra Streisand Foundation.
On Wednesday, Judge C.J. Vaughey issued a restraining order — a so-called “peace order” — against attorney Aaron Walker based on Walker’s repeated criticism of Kimberlin. (Kimberlin, who has also been convicted of perjury, has filed countless lawsuits against his detractors). Walker’s criticism of Kimberlin had supposedly resulted in outraged members of the public making threats against Kimberlin (although the judge’s order did not cite a single example of a threat). The judge verbally told Walker that the order banned even “blogs” and tweets regarding Kimberlin.
I explained here on May 29 how Judge Vaughey’s order patently, flagrantly violated the First Amendment and the Supreme Court’s First Amendment rulings in cases like Brandenburg v. Ohio and Hess v. Indiana limiting liability for so-called incitement. I also explained how the Judge’s order reflected ignorance about both the Internet and basic First Amendment principles.
I also noted that Walker had been arrested at that hearing, but I said it was “unclear” at the time why he had been arrested. It is now crystal clear that he was arrested for exercising his constitutional right to free speech. The court’s jailing of Walker was based on his blog posts and tweets, and thus violated the First Amendment, a fact lamented by law professors like Case Western Reserve University’s Jonathan Adler and U.C.L.A.’s Eugene Volokh (one of America’s leading First Amendment scholars), and journalists like David Hogberg of the Investors Business Daily. As Professor Adler notes, Walker was indeed “arrested for blogging.” This confirms what Los Angeles deputy district attorney Patrick Frey deduced earlier at Patterico, where he noted that “Aaron Walker was arrested today in the United States of America for blogging about a public figure.”
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OPINION
ZACH WEISSMUELLER: “Zoning vs. Eminent Domain – How Ventura County Shut Down The Pine Mountain Inn”
“Tom Wolf owns the Pine Mountain Inn, a restaurant that’s been serving biker groups and local community organizations since the 1930s. Wolf temporarily had to shut the doors when he suffered a heart attack in 2002, and he was never able to reopen when the county informed him that his property had been rezoned as an ‘Open Space’ back in the 1980s without his knowledge. ‘[The county] wanted everybody out of here,’ says Wolf. ‘And they wanted a complete open space with nothing but deer and frogs… and no people.’ No matter how hard Wolf tried to comply with the ever-changing codes, the county just wouldn’t relent, at one time even ordering him to remove a chicken coop that had never actually existed on the property.”
JOHN TAMNY: “Long-Term Unemployment and the Skills Erosion Myth”
“Whatever the direction of Friday’s jobless number, it can’t be stressed enough that unemployment of the kind we’re suffering at the moment is a wholly unnatural phenomenon wrought by government distortion of wages and benefits, and sagging investment that results from policies in favor of a weak dollar. It will be addressed further along in this article, but joblessness today remains high largely for those two reasons.”
INVESTOR’S BUSINESS DAILY EDITORIAL: “New Yorkers Leave Like East Germans Fled Communism”
“New York thinks of itself as the place to be, but its high taxes have made it a place to flee. [...][F]rom 2000 to 2010 it suffered an exodus of some 3.4 million New Yorkers — nearly a million more people than in Germany’s post-war experience and more than that of any other state. And the outflow hasn’t stopped. The income loss for the state is $45.6 billion, the Tax Foundation says.”
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As a fan of NCIS, I’m quite aware of the government’s ability to track the location of individuals through their cell phones. One of the show’s recurring motifs involves a junior special agent hacking into the locational data of a suspect’s phone without ever obtaining so much as a court order. Luckily, NCIS is led by one Leroy Jethro Gibbs, a former Marine of exemplary character and intuitive knowledge. Gibbs routinely acts upon his gut instinct, and happens to always be correct in deciding whether a suspect is guilty.
If all police officers were like Gibbs, or at least led by someone like Gibbs, then we might not need privacy protections. In fact, any limitations on government at all would arguably be unduly restrictive. If there were true philosopher-kings who had the requisite knowledge and character, then ceding to them unlimited power to plan the affairs of others would not be so bad (at least from a consequentialist point of view).
In the real world, however, government officials, including policemen, possess sharply limited knowledge and are not always benevolent. The Constitution properly recognizes these limitations, and thus enshrines protections for our “persons, houses, papers, and effects” in the Fourth Amendment. In general, government officials must obtain a warrant supported by probable cause from a neutral judge before searching or seizing private digital information. As James Madison famously stated in Federalist #51:
It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
In other words, the Constitution’s protections contemplate a nation in which not all policemen share Gibbs’ omniscience and benevolence. Unfortunately, however, Supreme Court precedent and outdated statutes have effectively created a massive hole in privacy protection when it comes to the tracking locational data through cell phones and other mobile devices. A recent ACLU report based on Freedom of Information Act requests revealed that this hole is big enough to allow police forces throughout the country to engage in cell phone tracking. Alarmingly, only a few agencies reported to abide by the warrant and probable cause standard of the Fourth Amendment when obtaining such information.
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