heurich house

reviving the gothic revival

Back in the last decade of the 19th century, local DC brewer, Christian Heurich, built his gothic revival, late-Victorian house in Dupont Circle. The house was, and is, called the brewmaster's castle as Mr. Heurich remained a brewer until he passed, as the world's oldest brewer, at age 102 and a half. Apparently, Heurich's relatives started up the local Foggy Bottom lager with a brewery that stood where the Kennedy Center now resides.

The house is now the most intact late-Victorian house museum in the United States.

Some hundred and 10 years after it was built, the brewmaster's castle still makes headlines. It was featured, and the interior museum's continuance was urged, by DC's verion of the ist-blogs, DCist. The photo here is from their Mike Grass.

Also, some 110 years after it's inauguration, I moved across the street. That's actually my apartment, the beautiful neo-boxonian mid 80s looking construction in the lower left. Here, here, Heurich House. Thank you for sitting pretty outside my bedroom window.

Constitution-Making in Action (Lily)

Constitution-Making in Action; Lily

This is a link to a blog entry by Dan Murphy, a reporter in Baghdad, where he talks about what he sees as the disparity between the high ideals for personal rights and liberties outlined in the Iraqi Constitution, and the living conditions of present-day Iraqis, who put up with unexpected, warrantless raids on their property, private armed militias, and getting kicked out of their homes by US soldiers who are conducting urban warfare.

It's a fascinating insight into one of OR's working hypotheses: that a nation's constitution can be a living, breathing, dynamic document, but only insofar as the body politic (or what Mr. Murphy calls the "political culture") is able to embrace it and find it workable.

the dc national anthem

The DC Olympic team.

We have no real representation in Congress. We have taxes. We have no representatitve team at the Olympics. We have petition to create one.

And i quote:

Please take a minute, and use the form to the left to send a message to the International Olympic Committee. We need them to support our efforts to field an Olympic team for the District of Columia. They've approved teams for the other territories of the United States, like Puerto Rico, Guam, and the U.S. Virgin Islands, why not DC?

Sounds good to me. And a bit more attention than the little "Taxation without Representation" licenses.

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And speaking of awesomeness here in DC. Mark Jenkins pulled off a wonderful new tape project - lollipop parking meters.. See more at Wooster.

Andrew #2 on Sov Imm

Andrew #2; Common Sense?

I recognize the historical rooting of state sovereign immunity, and that the principle was an unspoken backdrop against which the Constitution was framed. So, despite it being a completely unenumerated principle, except for the immunity of a state against suits from citizens of other states (11th amend), I don't think it jurisprudentially erroneous to allow the principle of state sovereign immunity into the argument. Otherwise, anyway, there would be no argument, right? Without the super-precedent of state sovereign immunity, Katz is and open/shut bankruptcy law case, and the only question is what already-distributed funds the administrator can collect.

I've always thought that, when considering most legal questions, one can apply common sense to guess at what the outcome will be; and then the legal analysis eventually catches up and arrives at the same result. For instance, when people get hurt, blame and distribution of costs for treatment can be very difficult to determine. Common sense tells us, if you should have avoided the hole, then you can't blame someone else...and sure enough that is the basic legal principle.

In any event, here: this bankruptcy case simply doesn't seem an appropriate place to assert sovereign immunity.

The rationale for maintaining sovereign immunity, in my mind, is the need to allow government to govern. The overwhelmingly consequential decision-making that government officials must perform is simply in a different field from the day-to-day private actors for which the legal system is built. The Constitution and state constitutions provide the rules for governments, and finding violations of those rule-books is the legitimate way to legally challenge fed/state/local governments.

But with this bankruptcy case, none of the above principles apply. The state universities simply got a check from a failing bookstore company...and, so far as I can tell, none of this had anything to do with governing. So why in the world should the state universities be treated differently from any other entity to whom the bookstore company distributed money in its last throes?

The majority decided that, during the Constitutional convention, the states ceded their otherwise immune status in the specific field of bankruptcy suits. Forget for a moment the precedents between us and the convention. Doesn't it simply make sense, if the Constitution contemplates a system wherein federal officials take control of what happens when a person goes broke but still has debts, that the system would be entirely silly if certain actors (states) that are quite certainly often involved in bankruptcy issues/debts/credits/finances* are simply exempt from the game? I just don't understand allowing such a glaring loophole. Oops, I'm going bankrupt. Well, might as well shell what I have out to my favorite state official as opposed to letting some judge collect and distribute fairly.

Commentators seem most perplexed with the squaring of Katz to Seminole Tribe, a case that would seem to disallow the result in Katz--holding that the 11th Amendment prevents Congress, acting pursuant to its Article I powers, from abrogating a state's sovereign immunity by subjecting it to suit in federal court without its consent. I don't think this is really the case. Seminole dealt with one provision, the Indian Commerce Clause; the stretching of 11th amendment into ALL of article 1 seems to me 1) simply dicta; and 2) classic judicial activism (my definition: wanting a result and getting it in spite of wisdom and intellectual honesty...that, and ignoring Congress and legislatures).

It seems to me the 11th amendment does what the 11th amendment says: citizen in state X can't sue state Y. Any further sovereign immunity must come by way of it being a bedrock principle built into the Court's precedent. In that context, I see no reason why not to take the approach of contemplating the common sense implications of writing and signing off of the bankruptcy clause.

A footnote in the Seminole addresses bankruptcy:

[a]lthough the copyright and bankruptcy laws have existed practically since our nation's inception . . . , there is no established tradition in the lower federal courts of allowing enforcement of those federal statutes against the States.

This opens a whole new bag of discussion, so I will only iceberg tip it for now: I get occasionally mystified by what I will call the established tradition fixation. This seems like a weird form of Constitutional relativism. If there was a tradition of something, it's cool? How about: if it's right/wrong, it is right/wrong. Either the framers contemplated surrendering state sovereign immunity on favor of a fair bankruptcy policy or not. If established tradition is another name for super-precedent, I am further confused. The proponents of established tradition jurisprudence, then, need another name; like, something can be super-precedent if people 200 years ago did it?! More on that sometime later.


*States play a major role in the bankruptcy process, appearing in many bankruptcy cases in a myriad of roles -- as priority tax creditor, secured creditor, unsecured creditor, police and regulatory authority, environmental creditor, landlord, guarantor, bondholder, leaseholder, and equity interest holder. Similarly, a debtor may have a number of potential actions against a state, including a stay violation, preferences, turnover of property, and lien avoidance.

Lily's Response #1 to Sovereign Immunity Discussion

Lily's Response #1 to Sovereign Immunity Discussion

The majority opinion in Katz holds that the 50 States consented to be sued (i.e. they waived sovereign immunity) when they signed off on the clause in the US Constitution that provides for a uniform bankruptcy system - i.e., essentially, when they consented that bankruptcy would be federal law, not state law. I find this to be a very odd rationale.

Sovereign immunity (the concept that the government cannot be sued) is an ancient common law principle dating back to Merry Olde England, where traditionally private subjects of the Crown could not sue the Crown. The default rule, ever since those days, has always been that governments cannot be sued; but, as everyone knows, this can sometimes lead to rampant injustice. So, legislatures, including the US Congress and most state legislatures, have enacted various bills listing situations where the government consents to be sued: for example, most states and the federal government have some type of Tort Claims Act, which gives citizens the ability to sue, for example, when a squad car runs over an innocent bystander in a police chase. There are other situations where states consent to be sued, too - a prominent example in Andrew's and my home state of North Carolina is that whenever the State purchases liability insurance, and the insured-against risk turns into an accident, the State can be sued (and, hopefully for the plaintiff, the insurance company will pay out rather than have to defend a lawsuit).

Generally speaking, the State can nowadays be sued whenever the liability-imposing action is the kind of action that a private citizen can do. Examples: a private citizen can run a bookstore or hire a contractor to build a building. A private citizen cannot, however, maintain a standing army or police force, or administer a judiciary. So if a lawsuit were to arise because a State breached a construction contract, then sure, it can be sued. But if the police, in the normal course of their jobs, arrest the wrong person, the police can't be sued for that.

As for cases when it's not clear whether a private citizen could engage in the sued-upon action (and there are lots!), courts have generally construed statutes waiving sovereign immunity narrowly. NARROWLY. The presumption is that a state is not going to waive its sovereign immunity lightly, or through ambiguous wording; if the statute doesn't clearly waive, then there is no waiver. That is why this Supreme Court majority opinion seems to me to depart from precedent; it says that the States impliedly waived sovereign immunity when they signed the Constitution which included the bankruptcy clause.

Katz- State Sovereign Immunity

No vacination for the states

Today, the Court issued a 5-4 decision in Central Virginia Community College v. Katz, holding that States do not have sovereign immunity to suits by bankruptcy trustees seeking the return of preferential transfers under the federal bankruptcy act. Justice Stevens wrote the majority, joined by Justices O'Connor, Souter, Ginsburg and Breyer.

The petitioners were Virginia universities that did business with a bookstore that went bankrupt. While going down (while it was insolvent), the bookstore paid off debts to the universities.

In normal bankruptcy law, a court-appointed supervisor sort-of collects whatever hodge-podge of assets the bankrupt entity has/had, and distributes them in the fairest fashion, according to certain legal requirements. Often, this distribution to creditors involves reaping in some of the assets/$$ that the now-bankrupt entity shed out while going down. In other words, an insolvent entity can't shell out whatever it has to the detriment of folks that are due a fair share of what they'd loaned.

Here, since it was state universities that benefitted from the bookstore's assets-shelling, the universities claimed immunity from the bankruptcy administrator's request to have the money returned to the pot. State universities are arms of the state, and thus are allowed any immunity from lawsuit (for our purposes, the administrator's request is a lawsuit) that the state would have. Thus, the legal question is whether states are immune from normal bankruptcy administration. For states to be subject to suit, they must waive the existing (existing...this is a discussion that will haunt us for a bit, i believe) immunity. In a great many statutes, states do just that. In this case, the Court concluded that the states waived their immunity in bankruptcy proceedings while ratifying the Constitution, with it's Article 1 bankruptcy clause.

Sovereign immunity, as an area of jurispruence, reminds me of American Idol. It violates our sense of decency and what is right in the world, but we keep coming back. I think of the libertarian tendency to sue everything a government agency attempts, from preventing emissions to chewing big red. But they champion a state's immunity. Or the pure textualist that can't figure out where, in the Constitution, a right to privacy is enumerated. But, they find somewhere (in invisible ink?) words in the 11th amendment making a state immune from it's own citizens' suits. Most appropriate to the stretched analogy above, the relationship of state sovereign immunity to democracy has fair weathered legitimacy.

Here, for instance, it simply makes no common sense to me why the state ought to be treated differently that other creditors to the bankrupt bookstore.

On the other hand, the immunity of the sovereign is a bedrock principle...that the governing body is outside the lawsuit reach of the governed. Accountability is supposed to find manifestation in elections, not courts.

crossroads of administration law and federalism

Crossroads of Administrative Law and Federalism

Today's decision in Gonzales v. Oregon overturned a Justice Department interpretive ruling barred doctors from prescribing lethal drugs for suicides, in light of a law in Oregon allowing such practice. It is nearly purely an administrative law decision; however, the federalism principles sit on the sidelines of this one like Jack Nicholson at a Lakers game.

Quickly, a summary:

The legal question is whether a certain DOJ interpretive rule has any legal authority. The Controled Substances Act was inacted to combat drug abuse and control legitimate and illegitimate traffic in controlled substances; and criminalizes unauthorized dispensation of substances classified in any of its five schedules (classifications of drugs). The Attorney General may add, remove, or reschedule substances only after making particular findings, and on scientific and medical matters, the AG must accept the findings of the Secretary of Health and Human Services (Secretary).

An Oregon law exempts from civil or criminal liability a doctor who, compliance with the law's safeguards, dispenses or prescribes a lethal dose of drugs upon the request of a terminally ill patient.

In 2001, Attorney General Ashcroft issued an interpretive rule declaring that doctor-assisted suicide serves no "legitimate medical purpose" under federal drug control law, and that doctors who prescribed lethal drugs for this purpose risked their registration to prescribe drugs for their patients.

Interpretive rules are sometimes binding and sometimes not. To step back a moment, we must remember that government agencies have power only as given by their originating statutes; otherwise, non-elected regulatory bodies would replace the Constitutional system of a representative republic. So Congress enacts some piece of legislation in general terms, and then agencies take care of all the specifics. An agency is bound by the Act that directs it.

Of course, legislation is usually blurry on the corners, and agencies necessarily do some interpreting of the law. This is fine, if the interpretation is reasonable. What agencies cannot do is rewrite the law where it is unambiguous.

Here, the Court found that the Attorney General overreached the DOJ's authority under the Controlled Substances Act. Congress delegated to the Attorney General only the authority to promulgate rules relating to "registration" and "control" of the dispensing of controlled substances. "Control," under the statute, means "to add a ... substance to a schedule," following specified procedures.

"Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally....The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the State's police powers."

So. A read of this case is a good review of judicial deference to agency interpretations. I think the majority is right on the law, and that it is a fairly straightforward case. We can talk about the Scalia/Thomas/Roberts dissent later. I've read it and, surprise surprise, am not convinced.

Stepping away from the clear legal question, though, it is too easy to note the federalism issue involved (noting, all the while, that to have considered the federalism principle in deciding the case would be the height of judicial fault). We have, though, a federal agency versus the popular will of a state (an Oregon referendum overturned even it's own legislature to uphold the state law). Should an unelected federal official (here, Ashcroft) be able to nix a state's considered opinion? Is that what we want? (I don't answer these questions. I ask them.) (Typically, my answer these days is yes and no. More on that, sometime).

Stepping away from the actual legal question in the case concerning agency interpretive rules, all the policy issues bound up in the case are federalism principles. Take, for instance, the question of whether assisted suicide for terminally ill patients is legitimate medical practice. Is it? Does prescribing death take a doctor outside the practice of medicine? If so, what about doctors that advise families to transfer a patient to hospice care? The end of life, like it's beginining, is a powerful scientific and moral issue with which many thoughtful people wrestle and disagree. Should an unelected, single individual make that decision in an interpretive rule? Or should we allow different states to consider the issue?

Side note: Some folks are bringing up the medical marijuanna case where the Court allowed the federal government, under the commerce clause, to disallow California's law allowing medical marijuanna. In that case, though, there were specific congressional statues making even medical marijuanna illegal. Here, the Controlled Substances Act in no way addresses assisted suicide.

nye

playing auld lang syne.

?

Anyone got a good argument for why the truth/fiction of this dude's story matters?

At least momentarily, the online Times cover story is that author James Frey seems to've richly embellished his "memoir," A Million Little Pieces. The bestseller is about a man's rough life of jail, overcoming addiction, and so on. And now there is an apparent hubbub that the author didn't live out all the experiences in the story.

So what? Why is this news?

K. So here's what came to mind while looking at this artcle. We have a truth/belief/something problem. The problem for so many with the revelation that this author didn't actually live through the purported experience is not the falsity of his account; rather, it is that the readers' sense of what happened is disrupted. The only real affect this story being false or true has would be if the author's point has some stake in it actually happening...like a ufo account, or a cure to cancer.

So why does a meaningless falsity raise such a bother?

We have a peculiar relation with knowledge in present society. We seem to want some conclusion on things, but we don't seem too bothered with a careful search. Reflect upon our opinions of the private lives of celebrities, the guilt or innocence of defendants based upon scant gossip (ie, modern media), even, sometimes, our own sense of being. In trials. we have an entire set of rules by which we observe purported facts- and the full purpose of those rules is to offset human fallibility in the manner in which we receive information (we have forgone conclusions, we remember things differently, we tend always to live in assumptions). And so, we've set up an entire system based on two people presenting two sides of a story as best they can, and bound by certain rules of presentation, to allow the jury to come to an answer of what happened.

But life outside is the full opposite. We sit cozy with our opinions of Michael Jackson, OJ Simpson, ladies with McDonalds coffee, and the mindset of Presidents without any concern for the truth. What to call this? We are a society of opinions mistaken for truth.

Normally, once a posiiton is held popularly, society refuses reflection. OJ, the coffee, it is all set in stone popularly. So was this guy's story of drugs, jail and redemption. When popular society is forced to see that it was hoodwinked, the uneasy reckognition of the vulnerability of knowledge causes a massive stir. And it is a stir we generally tend to avoid. See ,for example, the dragged out recognition of faulty Iraq statements, and the continued insistence that Congress and the President made decisions with the same information. Or note, to be fair, the ease with which we simply ascribe stupidity or evil to the administration's policies.

Opinions are fine. Opinions without the vulnerability of attempted knowledge, though, will lead to the full on stupidity of our Nation.

Christmas with grandma

It was good to be back in North Carolina for Christmas.