Perspective on the legality of the 90% tax on $250k+ salaries for TARP recipients:
http://blogs.wsj.com/law/2009/03/18/would-an-aig-bonus-tax-pass-constitutional-muster-a-tribe-calls-yes/
Larry Tribe says the AIG bonus tax is not unconstitutional.
Friday, March 20, 2009
Monday, March 16, 2009
Executive Bonuses
Obama: AIG Bonuses an 'Outrage' to Taxpayers - Am I the only person who thinks people are irrationally freaking out about this? I guess I can see where taxpayers are coming from - they see their money going to this giant company, and going toward executive pay, at a time when their own paychecks are dwindling. The populist in me shares that theoretical outrage.
But look, there's such a thing as a contract. And usually, when you breach contracts, there are consequences (i.e. lawsuits). I'm guessing AIG has already broken as many contracts as it has found it efficient to breach, and that these last $165 million in bonuses were what they calculated to be the necessary payoff to avoid more than $165 million in lawsuits. If this is the case, I don't see any problem with paying out these executive bonuses... except that now the country - and its president - is in uproar about it.
But look, there's such a thing as a contract. And usually, when you breach contracts, there are consequences (i.e. lawsuits). I'm guessing AIG has already broken as many contracts as it has found it efficient to breach, and that these last $165 million in bonuses were what they calculated to be the necessary payoff to avoid more than $165 million in lawsuits. If this is the case, I don't see any problem with paying out these executive bonuses... except that now the country - and its president - is in uproar about it.
Thursday, February 19, 2009
GM and Bankruptcy
Excellent op-ed in the WSJ today: GM's Plan: Subsidize our 48 Year Old Retirees. Ultimately, the author argues that GM et al. should be filing for bankruptcy. I think I agree. I really liked the article in that it wasn't quick to blame anyone - despite its title, it doesn't just slam GM, or UAW:
A bankruptcy filing may even be a way for the major actors to avoid the political fallout for What Must Be Done. Both the companies and the union can hide behind the Bankruptcy Court and say 'they ordered me to' when their constituents come hollerin'.
I just thought it was awesome that this article combines my bankruptcy class with the journal article I am editing on retiree health benefits.
[XY Comment]: I think that letting GM go bankrupt would be unambiguously correct if there weren't so many other problems in the economy. It's definitely a blackhole for taxpayer money right now and represents transfers from the taxpaying base to the employees and shareholders of GM. While I sympathize with the employees of GM, I think there are people in worse conditions. Using taxpayer money directly for the unemployed would seem to be fairer and a better use of resources.
A lot of losses in the economy are real but they have already hit (see stock market down to a 6 year low). There are multiple equilibria for the market and if everyone thinks it's going down, it's gonna go down. If people think it'll steady out and start spending again, then it will steady out. The worry is that letting GM fail means that people will believe the former rather than the latter.
So why were these problems allowed to fester, when smart people recognized them
all along? The answer is that the solutions were painful, requiring not just
brains but considerable amounts of courage.
A bankruptcy filing may even be a way for the major actors to avoid the political fallout for What Must Be Done. Both the companies and the union can hide behind the Bankruptcy Court and say 'they ordered me to' when their constituents come hollerin'.
I just thought it was awesome that this article combines my bankruptcy class with the journal article I am editing on retiree health benefits.
[XY Comment]: I think that letting GM go bankrupt would be unambiguously correct if there weren't so many other problems in the economy. It's definitely a blackhole for taxpayer money right now and represents transfers from the taxpaying base to the employees and shareholders of GM. While I sympathize with the employees of GM, I think there are people in worse conditions. Using taxpayer money directly for the unemployed would seem to be fairer and a better use of resources.
A lot of losses in the economy are real but they have already hit (see stock market down to a 6 year low). There are multiple equilibria for the market and if everyone thinks it's going down, it's gonna go down. If people think it'll steady out and start spending again, then it will steady out. The worry is that letting GM fail means that people will believe the former rather than the latter.
Monday, February 2, 2009
Not Cheap Talk
Check out this mayor - who definitely took unusual measures to back up his talk on lowering crime.
The best is his final quote: "We have some issues that are much bigger than the Constitution."
The best is his final quote: "We have some issues that are much bigger than the Constitution."
Saturday, January 31, 2009
Suppression of Evidence
Should evidence obtained as a result of police misconduct, or in violation of the accused's constitutional rights, be suppressed at trial?
As any watcher of Law & Order probably knows, as a general matter, under the exclusionary rule, fruit from the poisonous tree is no good at trial. (Mapp v. Ohio made the exclusionary rule applicable to the states.)
But in its 2008 Herring v. United States decision, the current Supreme Court seems to be heading towards saying... nuh-uh, not anymore.
Should the exclusionary rule stand or fall? (Not as a constitutional matter. Just as a policy matter.)
I feel like I ought to go with the Lefties on this one, but... I think I might actually agree with the Roberts crowd. Yes, true, the exclusionary rule currently acts as a powerful check on police power - holding them to respect 4th and 5th Amendment rights during the course of investigations. But oughtn't there be other ways to make the 4th/5th Amendments enforceable? Robertscalia points to the availability of civil suits against police officers as a deterrent, for example.
Cases where the police bust in and find the bloody knife with the accused's fingerprints, but then the evidence is excluded from trial because of police misconduct....... they just don't sit well with me. The evidence is there.
Maybe I have too much faith in the police. What do you think? I think some of my Lefty classmates would be aghast...
[XY Comment]: That is really interesting. Certainly seems like there could be room to have this judged case by case to allow the judge to determine if the police acted inappropriately and whether the evidence should be thrown out. You'd be worried with this type of discretion if the judicial system were weak or dependent on the law enforcement system. That doesn't generally seem to be the case in the US, so I have no problem giving up the current law.
As any watcher of Law & Order probably knows, as a general matter, under the exclusionary rule, fruit from the poisonous tree is no good at trial. (Mapp v. Ohio made the exclusionary rule applicable to the states.)
But in its 2008 Herring v. United States decision, the current Supreme Court seems to be heading towards saying... nuh-uh, not anymore.
Should the exclusionary rule stand or fall? (Not as a constitutional matter. Just as a policy matter.)
I feel like I ought to go with the Lefties on this one, but... I think I might actually agree with the Roberts crowd. Yes, true, the exclusionary rule currently acts as a powerful check on police power - holding them to respect 4th and 5th Amendment rights during the course of investigations. But oughtn't there be other ways to make the 4th/5th Amendments enforceable? Robertscalia points to the availability of civil suits against police officers as a deterrent, for example.
Cases where the police bust in and find the bloody knife with the accused's fingerprints, but then the evidence is excluded from trial because of police misconduct....... they just don't sit well with me. The evidence is there.
Maybe I have too much faith in the police. What do you think? I think some of my Lefty classmates would be aghast...
[XY Comment]: That is really interesting. Certainly seems like there could be room to have this judged case by case to allow the judge to determine if the police acted inappropriately and whether the evidence should be thrown out. You'd be worried with this type of discretion if the judicial system were weak or dependent on the law enforcement system. That doesn't generally seem to be the case in the US, so I have no problem giving up the current law.
Thursday, January 29, 2009
Religion and criminal law
I thought this was an interesting article about a religious group that still practices polygamy in Canada. What interests me about this is that the government has investigated the group previously in 1991 but did not pursue a case. Religious beliefs can be pervasive in all aspects of life and conflict with secular laws can create quite a dilemma.
[/XX Comment] So from a privacy standpoint, or from an equal protection standpoint, I don't really see a conflict between anti-polygamy laws and the Constitution. In other words, it's not an undue burden on people's privacy (like certain anti-abortion laws, or laws restricting hte use of contraception, or homosexual sodomy), and it's not an equal protection problem either from a doctrinal standpoint.
We didn't study freedom of religion at all in my conlaw class, but here's my feeling about it...
Freedom of speech is not an unlimited right. Depending on what kind of speech you are making and where you are making it, government can limit your right to free speech, so long the regulation is viewpoint neutral.
Doctrinally, I don't know anything about freedom of religion, but I'm going to venture forth a guess that freedom of religion is not an unlimited right either, since it's covered under the same amendment. For instance, I doubt I could start a Religion Worshipping Gods Who Like Human Sacrifice, and then shield myself from prosecution for murder when I kill people on a purely religious basis.
So long as the secular law is constitutional, I don't see a problem with the enforcement of secular law infringing on freedom of religion. I don't see why your practising your religion should entitle you to violating secular laws. (Of course, I don't know how Canadian constitutional law looks at anti-polygamy laws.)
This mindset of mine is why I also had trouble with the torts cases I'd blogged about some time ago, where the religious person had a 'reasonable religious person' standard rather than a 'reasonable person' standard for liability. I just don't get it.
[/XY Comment] Well it seems to me that outlawing polygamy doesn't really make too much sense to me. Is a person allowed to have sexual relations with as many consenting people as they want? Yes. Could a man live with a dozen women and father children with all of them? Yes. Nothing there is illegal, and actually these actions are protected as regular freedoms.
It seems the only thing illegal is actually being `married' to multiple women, which is arbitrary and which most of society judges as morally questionable.
[/XX Comment] I think outlawing polygamy makes perfect sense, if you accept that the state should be in the business of regulating marriage in the first place (which I don't agree with). But if the state is in the business of regulating marriage, then it can regulate it however it wants.
The rationale for anti-polygamy laws is an anti-libertarian Protect The Woman rationale. It's thought that the state should protect women from themselves, from making decisions (i.e. marrying a polygamist) that are bad for themselves.
I think it's perfectly reasonable. But... the state should just get out of the the marriage regulating business all together.
[/XX Comment] So from a privacy standpoint, or from an equal protection standpoint, I don't really see a conflict between anti-polygamy laws and the Constitution. In other words, it's not an undue burden on people's privacy (like certain anti-abortion laws, or laws restricting hte use of contraception, or homosexual sodomy), and it's not an equal protection problem either from a doctrinal standpoint.
We didn't study freedom of religion at all in my conlaw class, but here's my feeling about it...
Freedom of speech is not an unlimited right. Depending on what kind of speech you are making and where you are making it, government can limit your right to free speech, so long the regulation is viewpoint neutral.
Doctrinally, I don't know anything about freedom of religion, but I'm going to venture forth a guess that freedom of religion is not an unlimited right either, since it's covered under the same amendment. For instance, I doubt I could start a Religion Worshipping Gods Who Like Human Sacrifice, and then shield myself from prosecution for murder when I kill people on a purely religious basis.
So long as the secular law is constitutional, I don't see a problem with the enforcement of secular law infringing on freedom of religion. I don't see why your practising your religion should entitle you to violating secular laws. (Of course, I don't know how Canadian constitutional law looks at anti-polygamy laws.)
This mindset of mine is why I also had trouble with the torts cases I'd blogged about some time ago, where the religious person had a 'reasonable religious person' standard rather than a 'reasonable person' standard for liability. I just don't get it.
[/XY Comment] Well it seems to me that outlawing polygamy doesn't really make too much sense to me. Is a person allowed to have sexual relations with as many consenting people as they want? Yes. Could a man live with a dozen women and father children with all of them? Yes. Nothing there is illegal, and actually these actions are protected as regular freedoms.
It seems the only thing illegal is actually being `married' to multiple women, which is arbitrary and which most of society judges as morally questionable.
[/XX Comment] I think outlawing polygamy makes perfect sense, if you accept that the state should be in the business of regulating marriage in the first place (which I don't agree with). But if the state is in the business of regulating marriage, then it can regulate it however it wants.
The rationale for anti-polygamy laws is an anti-libertarian Protect The Woman rationale. It's thought that the state should protect women from themselves, from making decisions (i.e. marrying a polygamist) that are bad for themselves.
I think it's perfectly reasonable. But... the state should just get out of the the marriage regulating business all together.
Tuesday, January 27, 2009
1st, 2nd, Manslaughter
Background (aka review of Law & Order basics)
Murder is homicide with "malice": (1) purpose to cause death or (2) intent to inflict serious bodily harm or (3) extreme recklessness with regard to someone's life with such unworthy purpose that it suggests callous indifference to human life. Under the typical state statute, murder is split into degrees:
First-degree murder: intentional and premeditated, or during the course of a specifically enumerated felony (felony murder). Generally punished by 15 years to a life sentence or the death penalty.
Second-degree murder: all other murder (without premeditation). Generally punished by 5 to 15 years.
Manslaughter is homicide without malice. Types:
Voluntary Manslaughter —intentional killing without malice. Killer either acted a) in heat of passion after “adequate provocation” or b) in honest but unreasonable belief that it was necessary for self-defense.
Involuntary Manslaughter —reckless or highly negligent killing. Some states break up into reckless manslaughter, negligent homicide, and vehicular manslaughter.
Question:
First off, I'm not sure I understand the difference between 2nd degree murder and voluntary manslaughter, given that in some jurisdictions, some courts have treated action in the "heat of passion" as both the distinction between (1) 1st and 2nd degree murder AND between (1) murder and [voluntary] manslaughter. At this point, after only having had 1 day of criminal law and a smattering of Law and Order episodes, I'm having trouble distinguishing the two.
Now, more as a POLICY question...
Why do we have lower sentences for 2nd degree murder (& voluntary manslaughter, since I seem to be conflating the two concepts...) than we do for 1st degree murder?
I think you could make an argument that prison sentences, at least, should be equivalent for 1st and 2nd degree murder (though perhaps death penalty should only be available for 1st degree murders, insofar as death penalty should be available at all -- but that's a different story).
If the justification for punishment is incapacitation - that is, incapacitating the perpetrator so that he cannot harm again for the period of his imprisonment, then I would argue that it is just as important to incapacitate one who intends to kill someone as a result of provocation, or in the heat of passion as it is to incapacitate one who plans to kill someone and carries out that plan. To me, the 2nd degree murderer (...& voluntary manslaughter-er) appears to be a person who cannot control his impulses.
So why not lock him up for just as long for the person who plans and schemes to kill someone? He is just as dangerous to society for his inability to temper himself, it seems to me.
Of course, there are other theories behind punishment -- deterrence, for example. Under a deterrence theory, there would be no reason to make sentences equal for 1st and 2nd degree murders. Then again, under a pure deterrence theory, I'm not sure imprisonment really deters ANY crime that is a result of provocation / lack of control of impulses, etc.
Under a retribution theory of punishment, then, yes, I guess you would punish the schemer more than the 2nd degree murderer. Maybe. Perhaps premeditation is evidence of more 'malice,' in a way, and is more deserving of punishment. Although I don't necessarily agree with that statement.
I tend to favor the incapacitation theory (combined with a little bit of retribution, I guess) behind punishment, and under that justification, I'm not sure I understand why there are different sentences at all between 1st and 2nd degree murder.
Any thoughts? You watch more Law & Order than I do, I think.
[XY comment]: I think deterrence provides a strong justification for distinguishing between 1st and 2nd degree murder. I also think part of the difference in punishment is the acknowledgement of randomness in actual outcomes and a person's responsibility for them. To the extent that a person's actions lead deterministically to another's death, that is the worst type of crime. To the extent that a person's actions were only part of the reason (i.e. other circumstances influenced the person - provocation for example) then the person is held to be less responsible. That is where deterrence comes in because a person can only be held accountable for his/her own actions. That is also how I think one should judge the different levels of murder, although the line between the different types of murder are definitely gray.
Murder is homicide with "malice": (1) purpose to cause death or (2) intent to inflict serious bodily harm or (3) extreme recklessness with regard to someone's life with such unworthy purpose that it suggests callous indifference to human life. Under the typical state statute, murder is split into degrees:
First-degree murder: intentional and premeditated, or during the course of a specifically enumerated felony (felony murder). Generally punished by 15 years to a life sentence or the death penalty.
Second-degree murder: all other murder (without premeditation). Generally punished by 5 to 15 years.
Manslaughter is homicide without malice. Types:
Voluntary Manslaughter —intentional killing without malice. Killer either acted a) in heat of passion after “adequate provocation” or b) in honest but unreasonable belief that it was necessary for self-defense.
Involuntary Manslaughter —reckless or highly negligent killing. Some states break up into reckless manslaughter, negligent homicide, and vehicular manslaughter.
Question:
First off, I'm not sure I understand the difference between 2nd degree murder and voluntary manslaughter, given that in some jurisdictions, some courts have treated action in the "heat of passion" as both the distinction between (1) 1st and 2nd degree murder AND between (1) murder and [voluntary] manslaughter. At this point, after only having had 1 day of criminal law and a smattering of Law and Order episodes, I'm having trouble distinguishing the two.
Now, more as a POLICY question...
Why do we have lower sentences for 2nd degree murder (& voluntary manslaughter, since I seem to be conflating the two concepts...) than we do for 1st degree murder?
I think you could make an argument that prison sentences, at least, should be equivalent for 1st and 2nd degree murder (though perhaps death penalty should only be available for 1st degree murders, insofar as death penalty should be available at all -- but that's a different story).
If the justification for punishment is incapacitation - that is, incapacitating the perpetrator so that he cannot harm again for the period of his imprisonment, then I would argue that it is just as important to incapacitate one who intends to kill someone as a result of provocation, or in the heat of passion as it is to incapacitate one who plans to kill someone and carries out that plan. To me, the 2nd degree murderer (...& voluntary manslaughter-er) appears to be a person who cannot control his impulses.
So why not lock him up for just as long for the person who plans and schemes to kill someone? He is just as dangerous to society for his inability to temper himself, it seems to me.
Of course, there are other theories behind punishment -- deterrence, for example. Under a deterrence theory, there would be no reason to make sentences equal for 1st and 2nd degree murders. Then again, under a pure deterrence theory, I'm not sure imprisonment really deters ANY crime that is a result of provocation / lack of control of impulses, etc.
Under a retribution theory of punishment, then, yes, I guess you would punish the schemer more than the 2nd degree murderer. Maybe. Perhaps premeditation is evidence of more 'malice,' in a way, and is more deserving of punishment. Although I don't necessarily agree with that statement.
I tend to favor the incapacitation theory (combined with a little bit of retribution, I guess) behind punishment, and under that justification, I'm not sure I understand why there are different sentences at all between 1st and 2nd degree murder.
Any thoughts? You watch more Law & Order than I do, I think.
[XY comment]: I think deterrence provides a strong justification for distinguishing between 1st and 2nd degree murder. I also think part of the difference in punishment is the acknowledgement of randomness in actual outcomes and a person's responsibility for them. To the extent that a person's actions lead deterministically to another's death, that is the worst type of crime. To the extent that a person's actions were only part of the reason (i.e. other circumstances influenced the person - provocation for example) then the person is held to be less responsible. That is where deterrence comes in because a person can only be held accountable for his/her own actions. That is also how I think one should judge the different levels of murder, although the line between the different types of murder are definitely gray.
Subscribe to:
Posts (Atom)