Behind Enemy Lines: A Libertarian at NYU Law

Worth Posting

2010-01-30T04:17:00.001-05:00

The Effect of Kantian Morality

2009-11-09T18:15:00.010-05:00

Duty as the sole principle of morality is, in short, the theory Kant came up with. The first and obvious question which comes to mind is: how does one find out what duties one has in order to know how one should act? For this I'll point my readers to wikipedia's entry on the "categorical imperative." What is more interesting to me is Kant's idea that to be moral in action a man cannot derive pleasure or gain from the action because, if this were to happen, the act would be from desire and selfishness and not from Duty. Duty requires an obligation to an existing object: God, an idol, or, in Kant's idea, other men. How can one know if they are acting from duty and not for self if pleasure is created by the action?

What are the implications of this doctrine? The first is its absurdity and irrationality. For instance: if I act in accord with what I think is my duty my will is to act morally. But my will to act morally comes first from the desire to be moral. Kant claimed that even this desire obliterates a man's virtue. But this is clearly insane. It is a paradox that can't be explained or defended. It is an infinite regression. If the first principle of morality is to not act from a selfish desire, how is one to be moral if he can't desire morality for morality?

The effects of this lunatic philosophy in the extreme can be paralyzing. How would we expect a man to act if he actually accepted this doctrine? He would inevitably become debilitated. Any time a man felt a desire to act (the successful carrying out of which would culminate in pleasure) he becomes immoral in his own eyes and full of self doubt as to his own virtue. He becomes afraid of his own decisions and desires which render him useless to everyone including himself. If he is hungry and works for food, how can he have esteem for the meal he bought when, as he eats it, he knows his chewing and swallowing and pleasure from the meal are all of an immoral desire? The simplest and most basic functions of life become a sin and he has no other choice but to stop all desire and live as a zombie or die to remain "virtuous."

Any act a man undertakes must first have an object and a desire to be fufilled. This is axiomatic. If I want a drink I first have to want and then act to get it. If I then stand up remove a cup from the cuboard and pour myself a glass, am I acting out of a sense of duty? Or am I acting purely for myself? Even if I act out of a percieved duty, am I not making the object of my action the aquirment of morality and therefore the destruction thereof due to my desire ex ante to be moral? To survive under this system of morality, a man's actions must become purposeless and desireless. He has to act irrationally because if there were a point to the things he did he would never be able to be moral.

I actually accepted this rediculous morality for a time before I knew exactly what the hell I was doing, or even that a man named Kant devised this system long before I was born. I observed a couple of years ago that whenever strangers would ask for directions on a street with many people on it, everyone in hearing distance of the plea for help would rush in and enthusiastically deliver directions (often times bad ones). I was usually right there in the fray trying my best to give help to the lost strangers. But then I began wondering what it was about people that moved them in such an animated way to give these directions. I began to think that it was only because of the pleasure that humans feel when they perceive that they are useful, needed, or posses superior attributes (in this case knowledge of roads) to other people. This, I thought, was surely immoral. To only act from ones own self desire to feel good can't possibly be virtuous. I thought that one should help strangers in need out of a duty or command from god to "be good for goodness' sake." So, I stopped giving directions to strangers no matter what; because I couldn't be sure why I was acting in the first place. But then it dawned on me that I really stopped giving directions to feel morally superior to all the people who would jump at the chance to give the needed directions. I didn't know what to do at that point. How was I to act? Should I give directions even though I knew I wasn't moral in doing so? Luckily, the problem of whether to give or not to give directions to strangers did not send me into a tailspin of self doubt (as it really isn't an important function of daily life); but what if I had entertained the same dillema on a bigger issue?

The only possible result of a belief in Kantian morality is incapacitation. The better way is to never feel bad about getting pleasure out of actions that harm no one. It is unfortunate for Kant and all of his disciples (read almost all of academia) that they couldn't see the magical result of jettisoning their absurd moral beliefs. Even when one acts out of a desire for oneself they can still be doing good for another. So that in a non-Kantian world, good is amplified by cooperation. I gain pleasure from giving good and sound directions to strangers on the street selfishly and, out of this desire and action, pleasure comes to the strangers as they get to where they were trying to go in the first place. An abundance is created by the selfish act and this, to me, is an incredibly amazing trick!

Worth Posting

2009-11-07T08:07:00.003-05:00

Escape From New York

2009-10-28T19:03:00.005-04:00

A new study by the Empire Center for New York State Policy has shown that over the last several years New York's middle class has been fleeing the city and its tax burdens. As it turns out, people don't like giving a substantial portion of their labor to bureaucrats that waste it on feel good projects and an ever expanding administrative state. From 2000 to 2008, the state lost 1.5 million residents with 80% of these hailing from the city. This “cost” the state's coffers about 4.5 billion. I put the quotes around the word “cost” because only those who think that the tax man owns what they earn would consider such a word to apply in this situation.

This mass migration is predictable. As Milton Friedman often highlighted, voting with your feet is the most powerful form of suffrage a human being can exercise. Another respected economist, Charles Tiebout, tried to model this phenomenon and present it as a free market solution to the problem of the free rider. Most people (even free marketeers) assume that certain anomalies such as the free rider - which evolve out of a free market system - can only be solved by the powerful hand of government. Tiebout challenged this assumption by showing that individuals with the freedom to choose between competing societies will live in those that shun onerous demands on their wealth – especially when they get nothing back from the money they put in. So when New York City creates a tax system that takes from one class and gives to another, the givers simply walk out. After all, who would choose to be the producers for others free of charge? It seems that “going Galt” is not simply a fictional phenomenon.

The natural question that comes to my mind when I see this happening is 'what will the outcome be if it continues?' The states are generally powerless to stop such migration in order to stem the hemorrhaging of the tax base flowing to other locals. But what happens when the problem moves national? The Obama Administration is giving us a case study by revving up the IRS and going after wealthy U.S. Citizens worldwide. International banks have been dropping U.S. Customers like hot cakes for fear of facing steep penalties for “concealing” ex-patriot tax cheats. They have even created a so called “wealth squad” to put the screws to millionaires and billionaires in an attempt to squeeze every last penny through audits which require the target's wealth as the enabling suspicion. I'm not sure these business men will appreciate being treated like criminals in a country they produce so much for. Lets hope they don't decide that other countries provide a better climate for their business.

If we were to see a mass migration of business and wealth out of the country, however, it would be enlightening to look to history to see how other nations have attempted to deal with the problem that New York City is now facing.

Lets hope it never comes to this.

Rep. Grayson v. General Counsel for the Federal Reserve

2009-10-03T19:14:00.003-04:00

Grayson, to me, is a Democratic populist. But as the old saying goes: an enemy of my enemy is my friend. So as long as he yells at employees of the Fed when they come to the Rayburn building I can support him.

But when it comes to the healthcare debate he is no friend of mine.

Seriously?

2009-09-29T18:59:00.004-04:00

Operation Hey Mackey! - Whole Foods, Oakland from Jamie LeJeune on Vimeo.

You know, in the time it took these ass hats to choreograph coordinate and perform this "protest," they could have been working or laboring to create wealth so that they might be able to afford .... health care. Or, perhaps they could stop shopping at Whole Foods which has more expensive goods as compared to other grocers and use the money they save to buy ... health care.

Health Care Reform: A Combative Richard Epstein vs. Judy Feder

2009-09-22T23:09:00.009-04:00

I attended this debate last week on healthcare. The draw was Epstein (you'll discover why if you watch the video). Greenberg Lounge was fairly packed given it was the short lunch break between class blocks.

I'm unsure if Fader has ever been exposed to Epstein's rhetorical style - she seemed a little taken aback (he did basically call her "painfully ignorant"). I myself was a little taken aback by the talking points she brought. She sounded a bit like Obama at the joint session.

I talked to professor Epstein after the debate and asked him whether this bill is likely to make it out of Congress. He seemed optimistic and thought that the Democrats were running scared, but also allowed the definite possibility that a bill will be presented to Obama. His answer for reforming the healthcare system: open a national market with a peremptory federal insurance law.

Here is the video:

They Are Making This Kind of Easy

2009-09-21T13:08:00.014-04:00

I guess you can't really blame creative "communities" of artists and their counterparts appointed by Obama to the National Endowment of the Arts to understand all the intricate federal laws against propaganda. But you would suppose that there is a lawyer somewhere that at sometime was supposed to sit down with these people and explain that federal money given to the NEA is not their personal kitty to fund an orgasmic expression of support for the 44th President and his agenda.

Or was this the way the Obama administration planned the NEA to work? I'm not saying, I'm just saying. Having a cadre of eager stenographers and graphic artists to put you in a favorable light can work wonders on your ability to lead. Just ask Saddam or Mao. Obama is already a pop culture icon, and this brings with it some beneficial political capital that is unusual in the United States. Take his personal likability statistics and measure them against what people think of his policies and you will figure out what I mean. If you become a celebrity, you are generally going to get a large segment of the population who doesn't care about policy to vote for you no matter what.

Trojan Horse

2009-08-14T19:54:00.001-04:00

Worth Posting

2009-03-24T10:46:00.002-04:00

The Benefits of Living in a Nanny State

2009-03-04T18:14:00.006-05:00

So every year since I began smoking I have tried to quit ... and subsequently failed. The main deterrent to my success is the inevitable nit fit that comes along with the addiction. These episodes generally start around the time the bargaining process begins while grieving (they are like little friends in a box that die after quitting). I mean, hey, Albert f'ing Einstein smoked and he was the smartest guy on the planet ... obviously I shouldn't be so arrogant to believe I'm more intelligent in my choices than him right?

A lesser deterrent is the eventual cost that quitting entails as well. You would think that quitting would save money instead of costing but I have found that, in the short term, this is to some degree untrue. Given the obvious fact that smokers generally do not think in the long term this may be of some consequence. Inevitably (unless you are one of those freaks that can quit cold turkey) a prospective ex smoker has to purchase some form of medication to alleviate the physical symptoms of withdrawal. These come in numerous forms which I won't list. My current favorite is the gum, but I have been known to slap a patch on every once in a while. These medications cost a pretty penny in lump sum, and if it wasn't for New York's taxes on tobacco, they would be a much more expensive way of putting nicotine in your body than a pack of cigarettes.

Given the fact that a pack of squares costs $8.50 here in the city, the cost of quitting should be more favorable to New Yorkers. Milligram for milligram, the knock off brands for patches and gum are relatively even. That is, you get the same amount of nicotine for your dollar whether you spend it on quitting or continuing the sweet sweet inhalations.

Thanks to New York and NYU I don't really have to worry about how much the alternatives to smoking cost. This is because the city and the school give them away for free. Any person over the age of 18 in NYC can apply for and receive free nicotine patches or gum and not incur the cost of quitting. But, as I stated before, there is no objective cost to quitting. Quitters, if not pampered by the tax payers of this fine town, would be spending the exact same amount, for their nicotine habit through purchases of medication as they would through packs of cigarettes. Does anyone else find this ridiculous? Even a really really poor smoker has absolutely no need for help in financing his attempt (unless you are talking about the people who pick up the buts from the street and are smoking for free). If a person doesn't quit, he will obviously be spending a ton of money on tobacco which he could have used for the gum. So why the subsidy?

I can only think of two reasons that this "help" makes any damn sense. First is the risk of not succeeding. The patches and gum don't come in convenient packs of 20 like smokes so that you can pay $8 at a time for your fix. You have to lay down around $70 at one time to begin quitting. Given the fact that only 26 percent of people make it to 12 weeks smoke free, there is a chance that a relapse will occur after only using a small portion of the $70 purchase. The rest is wasted, especially if not used quickly (the medicine comes with expiration dates). Secondly, the subjective value that a smoker places on his habit is lost in the milligram comparison. Chewing gum sucks balls compared to filling my lungs with smoke and carcinogens. That last sentence should make clear how much a difference subjectivity can bring to this discussion, as most would pay not to do what I find gratifying. How does a society quantify this? Although it may only cost $70 to buy the medicine, it may really feel like a greater loss; needing more motivation than simply what it is worth to be a non smoker.

I doubt the city thought of any of this when they concocted this plan though. They - at the cost of the taxpayer of course - are just trying to "do good" like always. I hope no one gets pissed that they payed me to try and quit smoking again - even though it would have cost me absolutely nothing.

Take Back NYU!

2009-02-24T19:40:00.025-05:00

The name implies that members of this group believe they were in possession of this school at some point ... subsequently dispossessed ... and they now want it back!

Who exactly are they wanting to take it back from? Moreover, why are they paying $37,000 a year in undergraduate tuition to people who they believe are thieves? How did these kids become such asinine retards?

The students who led this pathetic theatrical event (that's all it was and in some ways I am glad the administration treated it as such) have strange theories on force, "occupation," and property. A quote from their website:

Uncompromising, our power is growing. What has started as a singular strike against the structure of NYU's form of domination will become a strike against the general logic of domination.

When we occupy spaces and liberate their use, we appropriate for ourselves the means of our very existence. We find each other here and now, in the midst of conflict and crisis, overturning every role we're given, annulling every attempt to reconcile.

"Our power is growing?" First of all, no its not. Secondly, did you not just say in the same paragraph that you are striking against domination? Do you understand what the word power entails - namely the ability to force others to do without free will? Take for instance violently "occupying" a private university's cafeteria without their consent and "appropriating" what others own through domination thereby forcing them to give against their will.

Hobbes claimed that property was simply that which you could keep from all others by force (I'm paraphrasing). Right or wrong did not really enter into the picture. A sandwich you "own" at this moment will just as soon be mine after I hit you in the face, swipe it and put it in my belly. Who really owns the sandwich? Me, cause I won the fight.

Locke agreed with Hobbes on these essentials. He labeled his predecessor's theory the "state of nature." Since the dawn of time, smart men have been trying to get out of this state. In fact, I spend most of my day reading the millions of words these men have written down in that very attempt to get us out. But law presupposes an ultimate arbiter and monopoly of force in The State. Without such a monopoly, the law would be dead letters and powerless sentences. Having all these laws does not mean that the state of nature has disappeared. This is a well known fact to the sovereign and its citizens; as evidenced by the continual funding and enlistment of United States Armed Forces Personnel who are ready and willing to whip the shit out of anyone who would try and drag us backwards into such a state by not obeying the monopolist.

In the context of private property, the law has made who it deems the "owner" the ultimate source of power within the property's limits. So if a prowler comes onto your land, you get to use force to expel him. If the state is needed because you lack the requisite ability, call 911 and they'll back you up.

Take Back NYU are the type of people who would drag us back into the state of nature. It won't be their actions that get us there (they are pathetic pussies who no one should physically fear). Their mindset is what is concerning. They have no understanding of how law and property work, or, more importantly, why it should. But what if they get hold of the mechanisms of the state and rescind the feudalistic property rights that have been given to the various owners? These idiots obviously don't see anything wrong with what they did, and view NYU as fascist assholes for doing the same exact thing with legitimate state power behind them. Obviously, their politics should view property rights with some hostility, as these guarantees are the reason that Macbooks and doughnut holes failed to keep the administration, who were armed with police, at bay.

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Watching this video containing the final moments of this pathetic "occupation" almost made me ill. The sheer lack of understanding and reality of the situation they had put themselves into was astounding. They were actually (in high whiny voices) telling the security guards of the university "hey, we didn't say you could come in here" and "we're using the democratic process here, I don't know if you guys know what that is" and "do not use brutality ... do not use force you are on camera" etc.

These kids, by usurping the rightful monopoly of force given to NYU over their property, had thrown themselves into Hobbesian land ... with the state of nature being a big, tired and pissed of looking police officer rampaging through the "barricade" of chairs and desks the students had set up the night before. Did they really think asking him to stop would make him stop? Could they not remember just 24 hours earlier to a moment when they took the very same space by force in the face of pleas by the administration not to? Sorry idiots, you better turn your "free Tibet" flag upside down and start swinging cause this here's a fight.

They are lucky NYU is such a liberal university. No one was even arrested and they probably won't even be expelled. No one was hurt - except maybe some feelings. This is a shame. NYU should have taken the opportunity to teach them what usually happens to people who break the law. I'm going to go occupy the liquor store down the street and see if they let me off with a suspension.

Here's an idea: if you don't like how NYU is spending its endowment, stop contributing to it and go somewhere else.

More on this story from Acre of Independence and The Cigarette Smoking Blog

Here are some more videos:

She Makes It Look Better

2009-02-23T20:15:00.002-05:00

Thought This Was Worth Posting

2009-02-16T02:17:00.002-05:00

Cutting Taxes is not "Spending"

2009-02-14T02:51:00.007-05:00

I was browsing the Times today in an attempt to see how they were covering the stimulus fiasco. I was surprised that nowhere on the front page was there even a mention of the fact that we are about to burden ourselves with a trillion dollars in new debt. There was however a link to Paul Krugman's op-ed on the stimulus which contained his commentary on Rebublican concerns over the lack of tax cuts versus actual spending in the bill. He also went on at lengths on how the new law created too many tax cuts and not nearly enough spending.

He was quite defensive concerning the attacks coming from the right over the cost of all this stimulation:

... [I]t's now clear that the party's commitment to deep voodoo ... is as strong as ever In both the House and the Senate, the vast majority of Republicans rallied behind the idea that the appropriate response to the abject failure of the Bush administration's tax cuts is more Bush-style tax cuts.

And the rhetorical response of conservatives to the stimulus plan - which will, it's worth bearing in mind, cost substantially less than either the Bush administration's $2 trillion in tax cuts or the $1 trillion and counting spent in Iraq - has bordered on the deranged.

"It's destroying my daughter's future. It is like sitting there watching my house ransacked by a gang of thugs," said Arnold Kling of the Cato Institute.

First of all, I guess I need to see a shrink for so called "derangement" because I also thing this type of deficit spending is nothing more than punching our unborn babies in the face with an up-turned palm extended. Secondly, "cost" is a substantially relative term in this situation. If you are like Krugman, you will see tax cuts as a "cost" to government. If your skin is not the shade of pink ... you might see spending more than what tax revenue there is as the actual "cost" to government.

The idea of private individuals must be foreign to the esteemed laureate. Cutting taxes is "spending" to him and raising taxes is "saving." If John Doe makes $100 a day and is taxed 40% on every dollar, Krugman would view such a situation as Congress "spending" $60 on one of its citizens. I'm sure not even Krugman would think that the tax rates should be 80% or higher, but the reasoning behind this is different from why you or I would think the same. The view of these types is that the government should allow its citizens to have some of the fruits of their labor for policy orientated reasons ... but only as much as they need.

And in reality ... what is the main difference between tax cuts in the stimulus v. spending. One thing mainly: who gets to spend the money. Pumping $1 trillion into the economy by government spending is no different than simply not taking $1 trillion out in the first place. But then who gets to decide where the money is spent? Not Pelosi or Obama, but individuals like you and I.

At Least Give Us Our Existing Use

2009-02-10T17:42:00.011-05:00

Class: Land Use and Regulation

Professor: Serkin

Topic: Existing Use Exception to Regulatory Takings

Word to the wise: if you think that government regulation of your land is inherently evil or unconstitutional ... don't take a course on "land use and regulation." You will be surprised to find out that the preceding belief is not taken seriously or even debated within the first week. It's a given that private property is created and maintained by the government and you (the wretch that you are) are blessed that "they" let you do anything with it.

The first week of this class was given to review of the regulatory takings doctrine which basically allows a city council to tell you what you can't do with your land without having to pay for the benefit of the restriction. Penn Central is the hallmark of the case law at the moment with some insurgency via Scalia in Lucas. I'm going to save my bitching about zoning for a later date ... but, if your interested, read those two cases and you'll have the gist of the situation.

What I do want to discuss is the Existing Use Doctrine. Every lay lawyer has heard of the idea called "grandfathering." Basically, if a law is passed by way of the police power of the state which restricts your current use or activity, you generally get the benefit of not having to conform like all the other suckers who were putting off the same action for whatever reason. So if Loganville, GA decides to rezone the area surrounding a Walmart from commercial to residential, Walmart gets to continue its activities until they decide to cease and desist - at which time the land will be restricted to dwellings. The guy owning five acres next to Walmart with a single residence who was waiting for the property value to go up in his commercial zone before developing is screwed. The down-zoning destroys the value of his land, and he cries himself to sleep knowing he made a bad bet of waiting too long. Again ... the obvious complaint in this situation is with zoning itself; but one thing at a time.

Non-conforming existing use is generally protected much more than what I will call "future use." So, for the most part, if your property gets down-zoned from industrial to residential, the present use of your land, a factory for instance, would be given much more protection than say a future plan that you had to build a similar factory - grandfathering in action. If the government wanted to stop your current use, it would have to compensate you. If it wanted to prevent your future use, all it would have to do is down-zone before you built the factory itself.

But this protection is under attack with my professor leading the charge. His general premise, interestingly, is one that I agree with. Having read his journal submission beta (he was nice enough to be self depreciating in assigning it - so the vanity complaint is struck) I gather that he believes that there is no difference between existing use and future use. Fine enough, except for what he proposes this entails: namely that existing use protection should be limited to the Penn Central type analysis - meaning that the government should be able to tell you to demolish your factory at the event of down-zoning.

God bless the kid in the blue shirt one row ahead. He led the charge with the obvious counterattack stating that the opposite assumption could be given equal weight. If future use and existing use are one in the same, why not apply the protection for existing use to future use. That way the government must compensate you for any diminution in value your property receives whether it be future (within reason), or existing. My classmate's main argument was that there was a strong intuitive impulse that would work against allowing a government to, say, force you to demolish your dwelling because it wanted a twenty foot set back instead of ten. What is the real difference between a land owner who has a house that is non conforming and a landowner who wants to build a house that is also non conforming? My answer: not much.

An illustration: In Smith, a woman inherited her father's mobile home which had only been allowed to stay outside of a "mobile home park" because of a grandfathering provision in the recent restriction on mobile homes in the county. When title transferred to the daughter by way of will, the city maintained that the existing use ceased with said transfer. At this point the daughter had to go to court or simply remove the trailer from the land. She went to court and lost the existing use (boon for the trailer park lessors). What is the difference between her father and someone who has some land and wants to put a trailer on it but cant because he didn't get the memo from the county telling him he better act now? The harm is similar. The difference between where this evaluation takes you is important however. Should the protection given to existing use extend to future use or the other way around? Should someone who owns a piece of commercially zoned property who is waiting to build a strip mall, for whatever reason, be as protected as someone who already has? Or is there a distinction?

The real point (don't take me too seriously) is that the minute you allow a city council who just finished their spaghetti dinner at the local VFW to bang a gavel and tell you what you can and can't build on your property (excluding real harm prevention like nuisance) is the minute this country goes to hell. In some states this is the case ... but in many, the existing use exception still maintains a bulwark ... build fast.

Getting Over the Laziness

2009-02-03T17:18:00.004-05:00

Well, the holidays are long past and week four of the new semester is upon me, so I thought it was about time to light up the old libertarian rant machine. My course load is much lighter this semester which may be a double edged sword as far as the blog is concerned. For one, I might have less material due to the lack of exposure to jibber jabber between myself and the so called 'enemy' (with respect as always). But I also may have more time to sit around and ponder the few debates which do arise and write more thought out arguments from my perspective.

All that being said, the three classes I am attending (Land Use and Regulation, Employment Discrimination, and War and the Presidency) all seem to have the potential to create fruitful blogging. If my courses don't provide the goods though, I can always fall back on the NYC government for a whipping boy. Bloomberg's third term has already proved inspirational to my ire ... more on that soon.

Laziness

Crunch Time

2008-12-02T11:11:00.002-05:00

Well, between Thanksgiving, finals, and Christmas, you probably won't be hearing much from me. Unless I find time or some news item dissuades me from my studies, I probably won't be back until next semester.

- nyu law libertarian

Crack v. Powder

2008-11-24T17:43:00.007-05:00

Class: Criminal Procedure

Professor: Jacobs

Subject: Should Crack Cocaine Carry the Same Penalty as Powder Cocaine.

The class started out with a couple of regulars lamenting the discrepancy in federal sentencing for the respective forms of cocaine. I think everyone is aware of the disparate impact the harsher punishments for crack has had on blacks. Much like methamphetamine today, which is overwhelmingly found in rural white poor areas, crack was a phenomenon that took root in areas that were distinctly definable: mostly inner cities with black users.

Here are some statistics from the National Association of Criminal Defense Lawyers:

The average crack cocaine sentence, 120 months, is greater than: the 103-month average for robbery; the 76-month average sentence for arson; the 64-month average sentence for sexual abuse; and the 31-month average sentence for manslaughter.

Sentences for crack offenders are roughly two to six times as great as sentences for powder cocaine offenders distributing equivalent quantities of drugs.

The average sentence for crack cocaine (ten years) is thirty-five percent longer than the average methamphetamine sentence and fifty-two percent longer than the average powder cocaine sentence.

I would take those statistics with a grain of salt. The point is, there is a major differentiation in federal sentencing for coke and crack. And apparently this is the way Congress wants it. They reaffirmed their decision to keep the disparity in 1995 after the Federal Sentencing Commission recommend a change.

I won't rehash the arguments for parity in sentencing between the two different cocaine derivatives; I'll just post a link. My classmates for parity explained themselves well and, as a result, the issue boiled down to really only one question: Is crack the same thing as coke?

My answer: Hell no!

If God came down from the clouds and commanded that you had to make a choice between smoking crack or snorting a line of coke one time and one time only, which would you choose? Yeah I thought so.

Look, I've never done either, and frankly, I'm for decriminalizing both. But, because of the 90's and its lessons, I know enough to not swallow the argument that the two drugs are one in the same. As one of my classmates stated succinctly: "I ain't never heard of any 'cocaine babies." Well put.

I'm going to let Wikipedia do the scientific talking for me concerning the chemical differences between the two, with the exception of saying that crack is derived from coke, and is much more potent, addictive, and debilitating.

When I brought these facts up in class (only after someone said that they are both equally addicting) I received the sarcastic lambasting of: " ... oh, well I didn't know there was a doctor in the room." Of course I'm not a fucking doctor, but my computer is asshole.

Anyway, besides the facts, how bout some analogies.

Swords and pistols are both made from steel. They're both weapons meant to kill people. But they are completely different in both their form and function. Is it appropriate for the law to take notice of this? Or, is it wrong, simply because one type weapon derived from steel is hypothetically used more predominantly by a specific group in society?

If the purpose of the federal sentencing were to only punish narcotic use per se, there might be an argument for creating equal guidelines. But I don't really think this is the argument. Like I said earlier, I would like to see all drugs legalized for personal consumption. However, if we are going to enter into prohibition, shouldn't we be rational about it and take notice of the drugs that are more dangerous than others? I hope no one out there really thinks marijuana should be on the same level as heroin.

Still, the arguments about racist motivations continue. Because the drugs are both "cocaine," it is wrong to punish one user because he is poor and not the other because he can afford the better stuff. Well, if the motivation were truly to afflict the poor and let the rich snort up, then I might be with you. But I think the crippling effect of violence and dependency which ravaged inner cities was the real motivation for the legislatures of this nation on cracking down (no pun intended) on the rock.

Beyond this, isn't it perverse to claim that a drug which disproportionately afflicted black communities shouldn't be dealt with because doing so would amount to racism? Wouldn't the fact that the lawmakers in this country tried to do something about the epidemic signal that there is concern for the law abiding citizens who live in those areas that were plagued by crime? I think turning a cold shoulder would allow a much harsher indictment of those in the position to do something.

But I hope no one construes this post to mean that I have no concern about the abysmal situation in our country's prison system at the moment. The "War on Drugs" has caused a lot of grief (disproportionately for minorities) in this nation and I personally think we need to reevaluate the situation. Chucking young men into prison is hardly an answer to our narcotics problem. I think legalization should be looked at and, interestingly, one of the Congressmen I loathe the most, Barney Frank, has introduced a bill to decriminalize marijuana. I hope he is successful in at least moving that drug back into the traditional areas of state regulation and getting the Feds out of it.

What the Hell is Happening to This Country?

2008-11-23T13:18:00.003-05:00

I read on Yahoo's news service today that the majority of our elected officials failed the Intercollegiate Studies Institute's "Civic Literacy Test." Their average grade was a 44% while average citizens scored 49%. So I guess we're electing people that are dumber than us; but even still, American citizens fail.

These types of "Americans are idiots" tests come around every once in a while and always make me question the adequacy of majoritarian democracy. I mentioned to my girlfriend the other day that I wouldn't oppose some sort of civic test that we would have to pass in order to vote. She called me a racist - with love. Her opinion isn't crazy apparently because, as I have learned this semester in Employment, Congress and the Courts share her view that facially neutral tests are in fact discriminatory under Title VII. And somehow I'm the racist (pardon me for not believing that some races will do better than others for inherent lack of ability).

Do these types of tests depress anyone else, or am I alone? Why even fucking bother with politics if its going to be used by a population that has no grounding in the forming principles of our nation? 71% of Americans failed a very basic quiz covering the Constitution and economics. Only 0.8% received an A.

Some findings from the report:

Although Congress has voted twice in the last eight years to approve foreign wars, only 53% know that the power to declare war belongs to Congress. Almost 40% ... believe it belongs to the president.

Only 55% know that Congress shares authority over U.S. foreign policy with the president. Almost a quarter incorrectly believe Congress shares this power with the U.N.

Only 27% know the Bill of Rights expressly prohibits establishing an official religion for the U.S.

[50%] incorrectly believe ... that the phrase "a wall of separation" between church and state ... can be found in the Constitution.

Less than 50% can correctly name the three branches of government.

This is a multiple choice exam! And there is no partisan awards here ... everyone fails; no matter their income, age, ideology, education, or whatever.

Here is the really depressing part: when asked "do America's founding documents still matter," 48% "strongly disagreed that America's founding documents remain relevant."

They might as well throw me in that last category - not because I don't want them to matter but because, clearly, they fucking don't.

The worst scores were on the free market vs. centralized planning portion of the exam, while the best scores could be found on questions concerning the Declaration of Independence.

You can take the quiz here. It is 32 questions. I got a 97% because I attributed "of the people, by the people, for the people" to the Declaration of Independence. And I am ashamed of myself for doing so.

NYU Law Is The Place To Be

2008-11-20T17:39:00.008-05:00

In what looks like another coup for NYU Law, it was announced this week that visiting professor Richard A. Epstein will be making a permanent move from Chicago to New York. From NYU Law's website:

Professor Richard Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, will join NYU School of Law as a permanent member of the faculty in Fall 2010.

Epstein, who is currently visiting the Law School for the fourth time, is considered to be one of the most influential thinkers in legal academia. He is well known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects

'I am honored to be able to join the NYU faculty whose collegiality and seriousness of purpose has been evident to me since I first started visiting at NYU four years ago,' Epstein said.

It's sad to see Chicago Law lose another libertarian thinker in its continuing metamorphosis from a bastion of conservative thought into one that teaches "Law and Poverty or other made up stuff" (This is Scalia talking ... I'm really just trying to fit this in the post and still think Chicago is a hell of a school).

In any case, NYU has made a habit out of coaxing great professors away from other prestigious schools lately. They don't kid around either. Columbia lost Catherine Sharkey to us after NYU sweetened the move downtown with a bad ass $4.2 million dollar floor of a turreted apartment complex near the park. Some other notables include Arthur Miller from Harvard (many believe he is the inspiration for Scott Turow's Perini in One L), Estlund from Texas (now working on the NLRB Obama transition), Hills from Michigan, and now Epstein from Chicago.

Maybe Epstein's move is a signal that NYU is moving in a new direction; away from that which made me name my blog after a shitty Gene Hackman movie.

Naming Epstein as my hero in a previous post and creating three articles in as many weeks about him may make some of my readers think I have turned into a fanboy of the man; and maybe you're right - I'll try to restrain myself from now on. But in any event, I'm glad he's staying at NYU ... we need at least a smidgen of libertarianism here in the Village.

Progressives Will Progress Into Government Jobs They Created and You Pay For

2008-11-19T11:35:00.006-05:00

It looks like the Center for American Progress will be playing a large role in formulating policies in the new Obama administration. Bloomberg reports:

The center is the premier progressive think tank in Washington,' said Mark Green, head of the New Democracy Project, and urban-affairs institute in New York.

Just eight days after the Nov. 4 election, CAP released a 3oo,ooo word volume called 'Change for America: A Progressive Blueprint for the 44th President' that offers advice on issues such as economic revival and fixing the Federal Emergency Management Agency. Work on the book began almost a year ago

CAP, which has 180 staffers and a $27 million budget, devotes as much as half of its resources to promoting its ideas through blogs, events, publications and media outreach.

This group is funded by Soros, and the blogs Think Progress and the Wonk Room are under CAP's wing. Apparently, Obama has already endorsed much of the groups ideas. Just what kind of ideas? Well in true "progressive" fashion most of CAP's policies are not in any way progressive at all: mostly just demands for more 'councils' and agencies to deal with all the problems of our world. A sample:

CAP ... is advocating the creation of a 'National Energy Council' headed by an official with the stature of the national security adviser and who would be charged with 'transforming the energy base' of the U.S. In addition, CAP urges the creation of a White House 'Office of Social Entrepreneurship' to spur new ideas for addressing social problems. [I guess CAP's staffers would think better in the White House with public funds]

Basically, CAP advocates the creation of government positions to deal with everything. Energy problems? That's a no brainer, just get a guy and name him the energy chief and he'll fix everything. Natural disasters? Easy, just get a better guy than Bush had and call him the head of emergency management ... he'll fix everything. Social entrepreneurship (whatever the hell that means), no problem, just hire some of us CAP kids and give us tax payer money and well do ... well, we'll think of something.

I Promised I Would: Affirmative Action

2008-11-18T14:14:00.008-05:00

Class: Constitutional Law

Professor: Guliboff

Topic: Affirmative Action

This is my attempt at what I think is an apt analogy to the doctrine of affirmative action:

Suppose I get burglarized. I call the police and run through all the bullshit and I never figure out who did it. I then rationalize a right to burglarize my neighbor. When he calls the police on me, do you think a valid defense would be to say "yeah I stole his stuff, but it's OK because someone else stole my stuff!" Probably wouldn't work.

But this is exactly how affirmative action works. There has been a harm to a group in our nation's history, and this somehow justifies committing a harm on another group regardless of whether the individuals bearing the burden are innocent or guilty of the original harm.

To make matters worse, the benefit of affirmative action does not even necessarily run to harmed individuals of the originally harmed group. Status in a group is the only prerequisite to whether you will be harmed or benefited regardless of whether you were culpable in the original harm or burdened by it.

So I should revise my analogy. I get burglarized, and then my neighbor goes and burglarizes someone in a different building with the rationalization that someone in his defined group (a resident of our building) was harmed. He gets the benefit of the second burglary, even though he was not a party to the first.

The whole problem in affirmative action is the law focusing on groups instead of individuals. That view distorts our understanding of justice and, in Thomas' opinion, creating the group is the harm itself.

Interestingly, the majority of the Supreme Court did find a harm principle in affirmative action cases. In Adarand, the Court required all racial classifications be subjected to "strict scrutiny" because "whenever the government treats any person unequally because of his or her race, that person has suffered an injury ..." Despite this finding of harm, the Court in Grutter allowed the affirmative action program of Michigan's law school to go forward because it had a "compelling interest in diversity." I still can't understand how diversity at a law school trumps a constitutional decree of being free from harm caused by unequal protection of the law; but hey ... maybe diversity really is that great.

O'Connor, in Adarand, agreed that there was harm in racial classifications by their very nature, but limited her comments to the more ethereal types of harm that Thomas always cites which run to the supposedly benefited groups. The harms she didn't discuss are the ones running to third parties after an application of a race determined "point" system in a fixed pie scenario like law school admissions. Law school is not some utopia of abundance where the principles of economy do not exist. When applicants of a pool are competing against one another for slots (which demonstrates the limited resources) any preference given is a detriment to those who did not receive it also. This detriment does not just run against whites when the program is attempting to place blacks. It runs against everyone else. This includes Asians, Hispanics, and whatever other race you want to make up. Many races (but more importantly individuals) that had nothing to do with our country's history of racism are burdened.

The absurdity award for Grutter doesn't go to the 'diversity trumps constitutional protections' rationale however. In part three of her majority opinion - in which Scalia and Thomas tactically joined - O'Connor stated "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Wow ... the Constitution will magically change in 25 years and not allow racial classifications for the purpose of diversity. This was the first (and hopefully last) time a sunset provision was written by a Supreme Court Justice into our Constitution.

Stevens, Breyer and Ginsburg would not even require "strict scrutiny" review of "benign" racial classifications which aim to help minorities. They refuse to see any harm, or at least look past it. Chiding the majority in Adarand:

There is no ... constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.

What Stevens et al. believes, is that they have the ability to separate harmful race-based laws from the helpful. This is quite an impossible task. What makes it impossible is, again, the insistence on using group membership to define an individual's status. Thomas, in one of his best dissents I have ever read, takes the Grutter plurality to task:

I believe what lies beneath the Court's decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, and that the racial discrimination is necessary to remedy general societal ills ...

The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These over-matched students take the bait, only to find that they cannot succeed in the cauldron of competition. ... [T]his mismatch crisis is not restricted to elite institutions. Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue - in selection for [law review and law firms]. And the aestheticists will never address the real problems facing 'underrepresented minorities,' instead continuing their social experiments on other people's children ...

I would just add to Thomas' "harms" running to the supposedly "benefited" the social stigma that they face at school. If a young black man with a great LSAT score and great GPA goes to Michigan after this case and tells the admissions board not to give him deference because of his race, there is still no way to prevent his classmates from making assumptions about how he got in. The school is attaching the stigma to all members of a certain group which is unfair. Interestingly, O'Connor, in Adarand, saw the likely effects of this line of thinking:

Even though it is not the actual predicate for this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race. Because that perception - especially when fostered by the Congress of the United States - can only exacerbate rather than reduce racial prejudice, it will delay the time when race will become a truly irrelevant, or at least insignificant, factor.

It is surprising that she did not join part VI of Thomas' dissent in Grutter.

I would encourage everyone to read both cases in their entirety, but especially Thomas' dissent in Grutter. He summed up the problems with affirmative action extremely well. I'll leave you with his opening volley where he quotes Frederick Douglass speaking to a group of abolitionists 140 years before this decision:

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us ... I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury.

A NYU Law Classic

2008-11-13T18:10:00.006-05:00

I never knew about this story, which makes me figure my 4 readers did not as well. Classic NYU Law from 2005:

Justice Antonin Scalia recently visited NYU Law School, and if press reports are any guide the welcome was rather mixed. According to this story, Scalia visited NYU to receive an honor from the student members of the NYU Annual Survey of American Law, a law journal. While at the law school, the Justice gave a question-and-answer session that was met with insults inside the room and a protest outside the room.
The insult during the Q-and-A session has been widely reported online. Law student Eric Berndt, upset with Justice Scalia's oral argument questions and dissenting opinion in Lawrence v. Texas, asked the Justice: "Do you sodomize your wife?"

Underneath Their Robes has an eyewitness report:

"There was this loud collective gasp from the audience, and for about 5 seconds Scalia stared at the questioner - I wasn't sure whether he was in shock like the rest of us, or whether he was going to come down from the podium and throttle the guy. He finally got a hold of himself and said he wasn't going to answer that and tried to move on to the next question, but for about 30 seconds the guy kept on badgering him and Scalia kept on trying to move to the next question, which he finally did."

Wonkette reproduces an e-mail from Mr. Berndt explaining that his goal was to punish, embarrass, and dehumanize Justice Scalia for his allegedly bigoted views — what Mr. Berndt describes as an "act of resistance" against Justice Scalia's refusal to recognize his dignity.

A protest against Justice Scalia followed the Q-and-A:

A planned protest in Washington Square Park followed the Q-and-A, which drew activists from OUTLaw, an organization of LGBT law students, the National Gay and Lesbian Task Force, the NYU Black Allied Law Students Association and the NYC Chapter of the National Organization of Women. The group held signs that read "Scalia Go Home To the Dark Ages" and "Repeal Scalia," and wore homemade t-shirts reading "Scalia Not My Chief Justice."

"Gifted people can either use their talents to help other people or hurt other people," said Bert Leatherman, a law student and the protest's organizer. "We all agree that Scalia has used his gifts to hurt people."

After listening to brief speeches around the fountain, the group organized and marched to Vanderbilt Hall, the law school building. The group stood inside the school's courtyard and chanted "Sexist, Racist, Anti-Gay, Nino, Nino, Go Away!"

"Scalia has got such a backwards world view and he wields so much power," said Dave Hancock, a Gallatin sophomore who joined the protest mid-march. "To be honored at a so-called progressive school is sickening."

Unsatisfied with the effect of their protest, the group quickly moved outside the law school and onto the corner of West 4th and MacDougal streets. They surrounded the first-floor room in which Scalia was receiving his honor and continued to chant and wave signs at bystanders. Some protesters wrote "Honk 4 Justice" on the back of their signs instigating cabs and cars to increase the noise volume.

All this is ripped off from Volokh

Eric started channeling his irritation for the status quo into his blog boozhy. One of his latest posts laments the schizophrenic election results for the gay community ... that is until he was distracted by a baby hippopotamus ... awwww look at it!

Hey Paulson, I Got Somethin' You Can Bail Out

2008-11-12T12:48:00.013-05:00

The Wall Street Journal had this to say about the ongoing bailout of Corporate America:

"The rescue efforts are evolving in ways that I don't think anyone anticipated ... "

I think they might mean the complete and utter circus that is "evolving" after the federal government put out a trough of loot. Treasury can't keep out the greedy pigs trying to feed. If they anticipated anything less they need to have their heads checked. Congress could have been smart and put clear restrictions on how the money was spent ... oh wait, they did ... and then conveniently did an end run around the rules to get their constituents in on the fun.

The first installment is almost all gone and the "reserve" will begin to spread out quick; especially with Congress clamoring for the money just as loudly as the constituents who will benefit.

Detroit just wised up and dispatched their lobbyists into the fray to defend their fair share of the taxpayers' money. And American Express conveniently gained "bank holding" status, which means they're now eligible to join the feast. The credit arm of the auto makers are in the process of lobbying the government for the same title. I guess restricting TARP money to "credit lenders" is meaningless when just who fits that definition is to be determined.

Apparently, a lot of folks bought a new car they couldn't afford alongside their new houses. Detroit securitized their loans and sold them; which means we're all going to foot the bill. Congress is mulling whether to include a tax deductible for interest accrued on car loans to try and boost consumption. I wonder how the foreign manufacturers are enjoying all of this - not to mention their consumers and hefty American Employee population. Someone should have told their workers that no matter how well they do they can't beat the big three; competition is an illusion in this country.

GM made a laughable proposition in its quest for TARP funds. They offered the American Tax Payers a stake in their worthless company in exchange for some money. Companies used to have to attract investors with the strength of their numbers and potential profits. That was a sucker's game apparently - especially for a business that burned through 7 billion last quarter. It's much easier to just use force.

The icing on the cake, however, is the way the tax payer is being treated now that their money has been stolen by Congress. The Fed refuses to disclose when, where and how their money was spent. Seem shady to anyone else? So much for political accountability. How the hell are we supposed to know whether our representatives screwed up if we can't see the results? Maybe that's the point.

Update:

Detroit (the city not the auto makers) now wants $10 billion, GE is getting $130 Billion tax payer insurance program, and Obama is asking for $50 billion to go to the auto makers.

Treasury actually put up a document online so that people can request their share of TARP.

And an independent research firm has deduced that since this bailout began, Washington has put $5 trillion on taxpayer funded credit. Thats a hell of a lot more than the $700 billion we were told this was going to take.