Manningdro

Manningdro.
I don't doubt that his Leandro decision, declaring that a sound, basic education is constitutionally required, caused many otherwise distracted progressives to take note of and form a liking to Superior Court Judge Manning, a Republican and offshoot of the old Chapel Hill Manning clan that gives the hospital's address a namesake. I don't doubt this because I am one of those newcomer Manning fans.

So is the N&O, who named Manning the Tarheel of the Year. The editors offer a summary of their appreciation in today's editorial. Here is their leading paragraph:

Judge Howard Manning Jr., The News & Observer's choice for Tar Heel of the Year, was beaten in his most recent campaign, that for the state Supreme Court. But in losing, "Howdy" Manning perhaps enhanced his reputation. He cited the need for an impartial judiciary in rejecting the possibility of endorsement from his own Republican Party, and he sternly cautioned those who wanted him to take specific stands on legal issues to take a hike. Manning found a distaste in the way some candidates played to interest groups; he vowed he wouldn't do it, and he didn't.

The editorial goes on to describe his tireless work on NC's public school system. I'll be interested to see how we look at his efforts in the future.

Judge Manning is taking on a no-less active role than did the courts during integration. And, as I posted several days ago, many observers don't take to well at all to the courts' involvement. Further, there are those observers that grimace at any new right that is newly enumerated. If opponents of judge-created rights are consistent, they will not go quietly along with Manning's good fight.

Get Ready

if you think about it...

If you think about it...
I've hesitated from a full out criticism of our Defense Secretary. I'm not much on military smarts. And what has been the biggist popular critism--that Rumsfeld under-trooped our venture in Iraq--is, I think a product of his ambition to slim down the military. My gut reaction is to agree with the notion that we can modernize our military and become less human-life dependant.

However, the under-trooping was also a product of miscalculating the Iraqi insurgency. Even I remember fearing that blowing the lid off Iraq would scatter weapons for street revolters.

This latter point is open for criticism. Miscalculating is human--albeit less-excusible if you are the defense secreatary. But add to that disingenuity, and we have something worrisome indeed. For those untroubled, may I commend this New Republic online article. An important summation of Rumsfeld's recent handling of our troop's concerns.

indecent greeks

We've been speaking of the FCC of late, and an issue in the comments section has been indecency.

Apparently, now, the FCC is reviewing tapes of the opening ceremony of this summer's Olympics- in response to indecency complaints. A bunch of webloggers are flipping their lids on this- so in order to throw a bit of water on the flames: this is an automatic response by the FCC. If people complain, the FCC takes a look. Most likely, the FCC will find no actionable indecency. While I disagree with the complaint lodgers, there's lots of people in the tv watching world, with many a trigger for complaint.

We can reflect, though: what do we think is indecent? I'm guessing the complaints toward the Olympics concern the bare bodies, frolicking lovers, or pregnant woman in the pond. There certainly were sexual themes; but, I would venture, a vast majority of viewers saw this as artistic rather than indecent. Do we come, then, to a what-makes-it-art-rather-than-porn question?

I'm being open ended because I want some comments on this one. Largely, am I right that most of us saw no indecency? And 2) does it having been artistic, or tasteful, have something to do with this?

Local Government tax incentives

Dept. of Local Government Beware
Local governments often offer corporations tax incentives to locate their offices and plants within the locale. It's a common enough scheme: lose some dollars in tax revenue but gain jobs, economic growth, and so on. It is so common, in fact, that I've never much thought of the obvious constitutional problem.

In Cuno v. Daimler Chrysler, though, the Sixth Circuit Court of Appeals rules that this set-up violates the commerce clause of the Constitution. That clause gives control of interstate commerce to the federal government; and by extension, if local/state governments interfere with interstate commerce, the local government has invaded the fed's turf. This bit of law is the dormant commerce clause.

The tax incentives for local business scheme is so old, though, certainly this has come up before. Yes, it has. As the 6th Cir cases discusses, the Court has set this precedence:

A tax provision satisfies the requirements of the Commerce Clause if (1) the activity taxed has a substantial nexus with the taxing State; (2) the tax is fairly apportioned to reflect the degree of activity that occurs within the State; (3) the tax does not discriminate against interstate commerce; and (4) the tax is fairly related to benefits provided by the state. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977).

...Indeed, the United States Supreme Court has indicated that the Commerce Clause "does not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry," nor does it prevent a state from "compet[ing] with other States for a share of interstate commerce" so long as "no State [] discriminatorily tax[es] the products manufactured or the business operations performed in any other State." Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 336-37 1977); see also Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 272 (1984) (the federal Commerce Clause "limits the manner in which States may legitimately compete for interstate trade"). Rather, the parties dispute whether Ohio's method for encouraging new economic investment - conferring investment tax incentives and property tax exemptions - discriminates against interstate commerce.

The issue, then, has arisen. But, apparently no ruling has done much to stop the practice. And you have the Court saying 'you can give tax incentives to corporations in order to woo their local enterprise. So, how does this case reach its conclusion? The problem, it turns out, is in the tax scheme's discrimination towards other states. From the opinion:

Although the investment tax credit at issue here is equally available to in-state and out-of-state businesses, the plaintiffs nevertheless maintain that it discriminates against interstate economic activity by coercing businesses already subject to the Ohio franchise tax to expand locally rather than out-of-state. Specifically, any corporation currently doing business in Ohio, and therefore paying the state's corporate franchise tax in Ohio, can reduce its existing tax liability by locating significant new machinery and equipment within the state, but it will receive no such reduction in tax liability if it locates a comparable plant and equipment elsewhere. Moreover, as between two businesses, otherwise similarly situated nd each subject to Ohio taxation, the business that chooses to expand its local presence will enjoy a reduced tax burden, based directly on its new in-state investment, while a competitor that invests out-of-state will face a comparatively higher tax burden because it will be ineligible for any credit against its Ohio tax.

I can't tell if this is all a bit of legal play, or a real difference from other cases. I'm no tax whiz- but it seems this would always be the case when states offer tax incentives. If so, the case will have far reaching impact and local governments everywhere will be watching the appeal to the Supreme Court. This will be fun.

Now- getting away from the case, what do we think of the tax incentives. I, quite honestly, had never given it much thought. That has changed. One, it seems suddenly clear that this is a dormant commerce clause problem. Moreover, as this James Surowiecki comments in the New Yorker, these incentive schemes do more harm than good. It is an excellent piece, so give a read. He points out the local government shopping that businesses do when considering a plant, with the loser so often being the winning bidder.

local governments beware

Read this. I have to run, and will comment on this soon. Briefly: do you think tax credits given by local governments to lure in business are 1) a good thing, and 2) constitutional. The case linked to says no to number two. Very exciting.

Thomas

Dems, learn this lesson: Never, ever, ever dismiss a conservative as dumb.
As the New Republic points out in their blog, our new Senate Minority leader latched on, during Meet the Press, to the idea that Justice Thomas doesn't have the smarts to be on the Supreme Court.
Folks. Thomas is smart. Very Smart. Read this, a book review from The New Republic- pointing out the inanity of underestimating Thomas' intelligence. As far as politics go- this tendancy to dumb-label only costs us votes. Why do you think so many people feel they'd like to have a beer with Bush?

By the way, conservatives have learned the lesson. They never call us (lefties) dumb. 1) they realize that alienates tons of folks. But, largely, it excuses the subject from his works...as dumb mistakes, rather than contrived what have you. Rather, conservatives, to be very very broad here, use words like "seductive," and "clever." Watch and listen. You'll see.

new law blog

Go visit Professors Becker and Posner's new weblog. Currently, they are posting once a week (Mondays).

Judge Posner is the fedral judge/law professor at UofC, and Becker is the Noble Prize wining economist at the same school. I can assuredly project that this will be a consistently fun read. Here is their introduction to the blog:

Blogging is a major new social, political, and economic phenomenon. It is a fresh and striking exemplification of Friedrich Hayek's thesis that knowledge is widely distributed among people and that the challenge to society is to create mechanisms for pooling that knowledge. The powerful mechanism that was the focus of Hayek's work, as as of economists generally, is the price system (the market). The newest mechanism is the "blogosphere." There are 4 million blogs. The internet enables the instantaneous pooling (and hence correction, refinement, and amplification) of the ideas and opinions, facts and images, reportage and scholarship, generated by bloggers.

We have decided to start a blog that will explore current issues of economics, law, and policy in a dialogic format. Initially we will be posting just once a week, on Mondays. In time we may post more frequently. The first postings will be tomorrow, December 6.

You can find the link under my "legal" dropdown menu.

Times op-ed Floor

To be a fly on the N.Y. Times' editorial floor. The eds think, apparently, that their columnist, Bill Safire, is a hound.

All the same, after reading Safire's series on the UN's oil for food program with Iraq, and his calls for Annan's resignation ...

This marks the end of the beginning of the scandal. Its end will not begin until Kofi Annan, even if personally innocent, resigns - having, through initial ineptitude and final obstructionism, brought dishonor on the Secretariat of the United Nations.

...(joined by many many others) and then reading the Times' editorial today, one feels happy for the pluralistic thinking at the grey lady.

From the Times today:

Mr. Annan, who drew the wrath of Republican Washington for opposing President Bush's war in Iraq, will have to face the judgment of United Nations members on how much responsibility he bears. But before the call for his scalp gains more political momentum, it is important to disentangle the melange of charges swirling around. The United Nations bureaucracy does not bear the primary responsibility for letting Saddam Hussein amass a secret treasury estimated by official investigators at $10 billion to $21 billion.
...
But the ever-shriller attacks on oil-for-food and on Mr. Annan play down this fact: Iraq accumulated far more illicit money through trade agreements that the United States and other Security Council members knew about for years but chose to accept.

And then...

Kofi Annan's role will also have to be laid out fully. He has, unfortunately, issued inconsistent statements about the role of his son, Kojo Annan, in working abroad for a Swiss company that won a contract to monitor imports under the oil-for-food program. The whiff of nepotism has set the hounds baying, and may bring grief to Mr. Annan, but what all that has to do with Saddam Hussein's illicit billions remains murky. It seems wildly premature to call for Mr. Annan's resignation.

High Speed slow down

Phone companies were forced to allow internet providers use of their lines. This makes sense- imagine the cost of interent use if aol, et all laid down their own lines. And imagine the construction if each new utility laid down its own lines.

So, shouldn't cable companies also share their lines with high speed internet providers? The Court decided today to hear the case. The question is whether cable is a "telecommunications service," and thus subject to the FCC rules that govern phone lines. Chairman Powell says no. Here is his reaction:

High-speed Internet connections are not telephones, and I'm glad the Supreme Court has agreed to review the 9th Circuit's ruling that they are. The 9th Circuit's decision would have grave consequences for the future and availability of high-speed Internet connections in this country. As the Commission is uniquely charged with the task of promoting the deployment of such advanced services to the public, we look forward to our opportunity to present our case before the high court.

Grave consequences? Like the grave consequences when phone companies had to lease lines to internet providers, and costs went way down?

FCC sum up

Understanding the FCC and Communications Law.
Chairman Powell offers a very good summation, in today's Times, of communications law and the FCC's role within. He is responding to some of the hype as of late, and I agree with his position. (For instance, giving a ruling before the airing of Saving Private Ryan would have been a prior restraint, running afoul of the 1st amendment.) But it is also simply a nice primer on the FCC's function under current law. As an example:

The F.C.C.'s job of regulating indecent content on the airwaves is not optional; it has been required ever since Congress first made the broadcast of obscene, indecent and profane material illegal more than 70 years ago. The law continues to enjoy strong bipartisan support.

Even so, there are important limits placed on the F.C.C. Our rules do not ban indecent content entirely; they merely restrict its broadcast during times in which children are likely to be in the audience, namely from 6 a.m. to 10 p.m. Courts have consistently held these rules constitutional, accepting that the government has a compelling interest in protecting children from inappropriate material.

For material to be indecent in the legal sense it must be of a sexual or excretory nature and it must be patently offensive. Mere bad taste is not actionable. Context remains the critical factor in determining if content is legally indecent. Words or actions might be acceptable as part of a news program, or as an indispensable component of a dramatic film, but be nothing more than sexual pandering in another context. That context and the specific facts of each program are reasons the government can't devise a book of rules listing all the bad stuff. In 2001, however, the agency issued policy guidelines summarizing the case law on indecency, and each new ruling since then clarifies what is prohibited.

New York's Leandro

Leandro comes to New York.
In North Carolina, the Constitutional demand for a sound, basic education is old, well- at least middle-aged, news. New York state courts have just made the same conclusion.

The Times has an interestingly annoyed take on this. The schools are, now, "wards of the court." The Times' complaint, in its editorial today, is that school officials and local leaders failed to act, where acting would have prevented the drag that is the courts. Now, durnit, we have to pay up.

I'm not sure I agree. From what I can tell, the Times is arguing that the courts will demand a much higher payment to the schools, where negotiations between local officials could have prvented what will now sall for some creative (if we don't increase taxes) fundraising. Sure- this is problematic.

But I'm not sure that having a sound, basic education declared a constitutional demand is all bad. We've talked recently about creating rights on this weblog. (Given, the "sound, basic education" isn't so judge-created when it's in the text of the state constitution itself, is it?) In education policy, I am in favor of both the Leandro declaration and New York's entry to the club.

Raich, Federalism, and stuff

Commerce Clause.
If the federalism post below was a bit short on the commerce clause, may I refer you to this offers a nice, albeit tinted, overview. The webpage decries the expansion of Congressional power, under the commerce clause, in the mid to late part of the century.

Also, let me recommend your going to the Volohk Consiracy. The lawyer that argued for Raich is a mamber of the legal weblog. See this post, for instance.

And here's another poster from the Conspiracy getting at what is mentioned in the post below:

[Nina Totenberg] ended her segment by suggesting that "by the end of the argument, it wasn't clear that Barnett had even one vote for his position," or words to that effect. Solum's transcript of the argument suggests otherwise, and I think that Randy did a great job. Whether that will be enough to overcome the statist liberal obssession with ensuring that every aspect of human life may be regulated by the federal government (despite a profound lack of constitutional legitimacy for such a position), and the statist conservative obssession with making marijuana users into criminals, remains to be seen. I'm not optimistic, largely because I think that the Court tends to take cues from the political branches, and the conservatives Randy needs to win over aren't exactly getting the sort of strong limited-government signals from Republicans in Congress they were getting in 1995, when the Court began its so-called "federalism revolution" (hah!) in Lopez.