All three of us, by some means or another, managed, between Nuremberg and the Black Forest, to get into trouble.
Harris led off at Stuttgart by insulting an official. Stuttgart is a charming town, clean and bright, a smaller Dresden. It has the additional attraction of containing little that one need to go out of one’s way to see: a medium-sized picture gallery, a small museum of antiquities, and half a palace, and you are through with the entire thing and can enjoy yourself. Harris did not know it was an official he was insulting. He took it for a fireman (it looked like a fireman), and he called it a “dummer Esel.”
In German you are not permitted to call an official a “silly ass,” but undoubtedly this particular man was one. What had happened was this: Harris in the Stadgarten, anxious to get out, and seeing a gate open before him, had stepped over a wire into the street. Harris maintains he never saw it, but undoubtedly there was hanging to the wire a notice, “Durchgang Verboten!” The man, who was standing near the gates stopped Harris, and pointed out to him this notice. Harris thanked him, and passed on. The man came after him, and explained that treatment of the matter in such off-hand way could not be allowed; what was necessary to put the business right was that Harris should step back over the wire into the garden. Harris pointed out to the man that the notice said “going through forbidden,” and that, therefore, by re-entering the garden that way he would be infringing the law a second time. The man saw this for himself, and suggested that to get over the difficulty Harris should go back into the garden by the proper entrance, which was round the corner, and afterwards immediately come out again by the same gate. Then it was that Harris called the man a silly ass. That delayed us a day, and cost Harris forty marks.
I followed suit at Carlsruhe, by stealing a bicycle. I did not mean to steal the bicycle; I was merely trying to be useful. The train was on the point of starting when I noticed, as I thought, Harris’s bicycle still in the goods van. No one was about to help me. I jumped into the van and hauled it out, only just in time. Wheeling it down the platform in triumph, I came across Harris’s bicycle, standing against a wall behind some milk-cans. The bicycle I had secured was not Harris’s, but some other man’s.
It was an awkward situation. In England, I should have gone to the stationmaster and explained my mistake. But in Germany they are not content with your explaining a little matter of this sort to one man: they take you round and get you to explain it to about half a dozen; and if any one of the half dozen happens not to be handy, or not to have time just then to listen to you, they have a habit of leaving you over for the night to finish your explanation the next morning. I thought I would just put the thing out of sight, and then, without making any fuss or show, take a short walk. I found a wood shed, which seemed just the very place, and was wheeling the bicycle into it when, unfortunately, a red-hatted railway official, with the airs of a retired field-marshal, caught sight of me and came up. He said:
“What are you doing with that bicycle?”
I said: “I am going to put it in this wood shed out of the way.” I tried to convey by my tone that I was performing a kind and thoughtful action, for which the railway officials ought to thank me; but he was unresponsive.
“Is it your bicycle?” he said.
“Well, not exactly,” I replied.
“Whose is it?” he asked, quite sharply.
“I can’t tell you,” I answered. “I don’t know whose bicycle it is.”
“Where did you get it from?” was his next question. There was a suspiciousness about his tone that was almost insulting.
“I got it,” I answered, with as much calm dignity as at the moment I could assume, “out of the train.”
“The fact is,” I continued, frankly, “I have made a mistake.”
He did not allow me time to finish. He merely said he thought so too, and blew a whistle.
Recollection of the subsequent proceedings is not, so far as I am concerned, amusing. By a miracle of good luck — they say Providence watches over certain of us — the incident happened in Carlsruhe, where I possess a German friend, an official of some importance. Upon what would have been my fate had the station not been at Carlsruhe, or had my friend been from home, I do not care to dwell; as it was I got off, as the saying is, by the skin of my teeth. I should like to add that I left Carlsruhe without a stain upon my character, but that would not be the truth. My going scot free is regarded in police circles there to this day as a grave miscarriage of justice.
But all lesser sin sinks into insignificance beside the lawlessness of George. The bicycle incident had thrown us all into confusion, with the result that we lost George altogether. It transpired subsequently that he was waiting for us outside the police court; but this at the time we did not know. We thought, maybe, he had gone on to Baden by himself; and anxious to get away from Carlsruhe, and not, perhaps, thinking out things too clearly, we jumped into the next train that came up and proceeded thither. When George, tired of waiting, returned to the station, he found us gone and he found his luggage gone. Harris had his ticket; I was acting as banker to the party, so that he had in his pocket only some small change. Excusing himself upon these grounds, he thereupon commenced deliberately a career of crime that, reading it later, as set forth baldly in the official summons, made the hair of Harris and myself almost to stand on end.
German travelling, it may be explained, is somewhat complicated. You buy a ticket at the station you start from for the place you want to go to. You might think this would enable you to get there, but it does not. When your train comes up, you attempt to swarm into it; but the guard magnificently waves you away. Where are your credentials? You show him your ticket. He explains to you that by itself that is of no service whatever; you have only taken the first step towards travelling; you must go back to the booking-office and get in addition what is called a “schnellzug ticket.” With this you return, thinking your troubles over. You are allowed to get in, so far so good. But you must not sit down anywhere, and you must not stand still, and you must not wander about. You must take another ticket, this time what is called a “platz ticket,” which entitles you to a place for a certain distance.
What a man could do who persisted in taking nothing but the one ticket, I have often wondered. Would he be entitled to run behind the train on the six-foot way? Or could he stick a label on himself and get into the goods van? Again, what could be done with the man who, having taken his schnellzug ticket, obstinately refused, or had not the money to take a platz ticket: would they let him lie in the umbrella rack, or allow him to hang himself out of the window?
To return to George, he had just sufficient money to take a third-class slow train ticket to Baden, and that was all. To avoid the inquisitiveness of the guard, he waited till the train was moving, and then jumped in.
That was his first sin:
(a) Entering a train in motion;
(b) After being warned not to do so by an official.
Second sin:
(a) Travelling in train of superior class to that for which ticket was held.
(b) Refusing to pay difference when demanded by an official. (George says he did not “refuse”; he simply told the man he had not got it.)
Third sin:
(a) Travelling in carriage of superior class to that for which ticket was held.
(b) Refusing to pay difference when demanded by an official. (Again George disputes the accuracy of the report. He turned his pockets out, and offered the man all he had, which was about eightpence in German money. He offered to go into a third class, but there was no third class. He offered to go into the goods van, but they would not hear of it.)
Fourth sin:
(a) Occupying seat, and not paying for same.
(b) Loitering about corridor. (As they would not let him sit down without paying, and as he could not pay, it was difficult to see what else he could do.)
But explanations are held as no excuse in Germany; and his journey from Carlsruhe to Baden was one of the most expensive perhaps on record.
Jerome K. Jerome, Three Men on the Bummel, 1914.
June 21, 2015
QotD: Getting into trouble in Imperial Germany
June 14, 2015
More on that Reason grand jury subpoena
At the Foundation for Economic Education, Ryan Radia discusses the free-speech-quashing subpoena issued by a federal prosecutor in New York state:
In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.
A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.
One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”
Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”
This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.
[…]
Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.
Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.
QotD: The law-abiding Germans
Another excellent piece of material for obtaining excitement in Germany is the simple domestic perambulator. What you may do with a “kinder-wagen,” as it is called, and what you may not, covers pages of German law; after the reading of which, you conclude that the man who can push a perambulator through a German town without breaking the law was meant for a diplomatist. You must not loiter with a perambulator, and you must not go too fast. You must not get in anybody’s way with a perambulator, and if anybody gets in your way you must get out of their way. If you want to stop with a perambulator, you must go to a place specially appointed where perambulators may stop; and when you get there you must stop. You must not cross the road with a perambulator; if you and the baby happen to live on the other side, that is your fault. You must not leave your perambulator anywhere, and only in certain places can you take it with you. I should say that in Germany you could go out with a perambulator and get into enough trouble in half an hour to last you for a month. Any young Englishman anxious for a row with the police could not do better than come over to Germany and bring his perambulator with him.
In Germany you must not leave your front door unlocked after ten o’clock at night, and you must not play the piano in your own house after eleven. In England I have never felt I wanted to play the piano myself, or to hear anyone else play it, after eleven o’clock at night; but that is a very different thing to being told that you must not play it. Here, in Germany, I never feel that I really care for the piano until eleven o’clock, then I could sit and listen to the “Maiden’s Prayer,” or the Overture to “Zampa,” with pleasure. To the law-loving German, on the other hand, music after eleven o’clock at night ceases to be music; it becomes sin, and as such gives him no satisfaction.
The only individual throughout Germany who ever dreams of taking liberties with the law is the German student, and he only to a certain well-defined point. By custom, certain privileges are permitted to him, but even these are strictly limited and clearly understood. For instance, the German student may get drunk and fall asleep in the gutter with no other penalty than that of having the next morning to tip the policeman who has found him and brought him home. But for this purpose he must choose the gutters of side-streets. The German student, conscious of the rapid approach of oblivion, uses all his remaining energy to get round the corner, where he may collapse without anxiety. In certain districts he may ring bells. The rent of flats in these localities is lower than in other quarters of the town; while the difficulty is further met by each family preparing for itself a secret code of bell-ringing by means of which it is known whether the summons is genuine or not. When visiting such a household late at night it is well to be acquainted with this code, or you may, if persistent, get a bucket of water thrown over you.
Also the German student is allowed to put out lights at night, but there is a prejudice against his putting out too many. The larky German student generally keeps count, contenting himself with half a dozen lights per night. Likewise, he may shout and sing as he walks home, up till half-past two; and at certain restaurants it is permitted to him to put his arm round the Fraulein’s waist. To prevent any suggestion of unseemliness, the waitresses at restaurants frequented by students are always carefully selected from among a staid and elderly classy of women, by reason of which the German student can enjoy the delights of flirtation without fear and without reproach to anyone.
They are a law-abiding people, the Germans.
Jerome K. Jerome, Three Men on the Bummel, 1914.
June 9, 2015
QotD: Politics, as practiced in Europe
It is at first denied that any radical new plan exists; it is then conceded that it exists but ministers swear blind that it is not even on the political agenda; it is then noted that it might well be on the agenda but is not a serious proposition; it is later conceded that it is a serious proposition but that it will never be implemented; after that it is acknowledged that it will be implemented but in such a diluted form that it will make no difference to the lives of ordinary people; at some point it is finally recognised that it has made such a difference, but it was always known that it would and voters were told so from the outset.
Brian Micklethwait explains the sourcing of this quote at Samizdata: The above paragraph, originally written to describe the onward march of the European Union, is quoted by Delingpole, in his book Watermelons (p. 45), to help him explain how AGW went from crankery to globally imposed policy. Delingpole found it in The Great Deception (p. 605) by Booker and North. They got it from a Times editorial, published on August 28, 2002.
May 29, 2015
The legacy of the great satanic sex abuse panic still resonates today
Radley Balko reports on the recent release of two former Austin, Texas daycare owners … who’ve been in prison since 1992 on the testimony of a toddler and “expert evidence” from a satanic ritual expert and how the moral panic of the day made it impossible for the courts to see how utterly unlikely the case actually was:
The panic actually began in the 1980s. It was instigated and perpetuated mostly by groups of fundamentalist Christians who saw Satan in every heavy metal album, “Smurfs” episode, and Dungeons & Dragons game, along with a quack cadre of psychotherapists who were convinced they could dig up buried memories through hypnosis. What they did instead was shed some light on just how potent the power of suggestion can be. Remarkably, children were convinced to testify about horrifying — and entirely fictional — violations perpetrated on them by care workers and, in some cases, by their own parents.
But it wasn’t just children. As the Kellers’ conviction shows, the panic was so overwhelming, it could convince trained medical professionals to see abuse where there was none. Some defendants were convicted of gruesome crimes such as the aforementioned dismembering of babies despite the fact that there were no corpses and no babies missing from the immediate area.
[…]
That the highest court in Texas still can’t bring itself to declare the couple innocent, in spite of all that we know now, shows just how difficult it can be to undo the damage caused by a moral panic and junk science in the courtroom.
[…]
Here’s an observation from the panic that I don’t think has been fully explored: These kids didn’t make up these stories. In this case and dozens of others, the kids were telling tales with details about geography, history and current events about which kids of their age couldn’t have known. That’s likely what made their stories seem somewhat credible. But the fact that it all was fictitious reveals a particularly unsettling truth: These sick, lurid, unimaginable abuses could only have been a product of the imaginations of the therapists, social workers, cops and/or prosecutors who interviewed the children. If the memories were implanted, those are the only people who could have implanted them. That means that the same people entrusted to protect these kids, and in whom these communities trusted to police the streets, prosecute crimes and administer therapy, were ultimately the ones capable of dreaming up detailed sexual fantasies that put children in bizarre rituals involving violence, animals, corpses and so on.
There’s a lot to be learned from these cases. For one, there are lessons about professional accountability: Not only were the vast majority of the prosecutors who put these innocent people in prison in these cases never sanctioned, but also most went on to great professional success, sometimes because of their role in these high-profile cases, and sometimes even after it was widely known that the people they prosecuted were innocent. There are other lessons here about how we screen “expert” witnesses, and how bad science gets into the courtroom. There are lessons about the power of suggestion that could be applied to eyewitness testimony and how we conduct police lineups.
But the drawing of lessons is something we typically do once a crisis is over. This one still isn’t. There are still people in prison awaiting exoneration in these cases.
May 28, 2015
The copyright fight over Sherlock Holmes … again
At Techdirt, Mike Masnick explains why the estate of Sir Arthur Conan Doyle is still trying to fight the public domain availability of anything Sherlock Holmes, even though they’ve lost at each stage of the legal proceedings:
And thus, Sherlock Holmes is considered to be mostly in the public domain. One might argue that a US federal court outside of the 7th Circuit might find otherwise, but it appears that the Estate has given up the fight and now will readily admit that the earlier works are in the public domain. That does not mean, however, that it is done suing. Not at all. The Estate has now sued over a book and movie that purport to tell the story of Holmes’ retirement. The author, Mitch Cullin, wrote the book A Slight Trick of the Mind about a decade ago, and that’s now been adapted into a film called Mr. Holmes, being released by Miramax.
First, the Conan Doyle Estate at least seems willing to admit that the earlier works are now fully in the public domain:
The first fifty of Conan Doyle’s Sherlock Holmes short stories and novels are in the public domain. But the last ten of his original Sherlock Holmes stories, published between 1923 and 1927 (the Ten Stories), remain protected by copyright in the United States. These copyrighted ten stories develop the details of Holmes’s fictional retirement and change and develop the character of Holmes himself.
And that’s where the trouble comes in. The Conan Doyle Estate makes some reasonable claims that Cullin used a few details from the stories that are still under copyright in developing the ideas for his book and the subsequent movie (where he worked on the screenplay). As the complaint notes, the public domain works mention Sherlock Holmes’ retirement just twice, without that much detail. The works still under copyright delve into it much more. The complaint also notes some pretty clear similarities in certain scenes. For example, it points to this passage from the (still under copyright) Holmes story “Blanched Soldier”:
It is my habit to sit with my back to the window and to place my visitors in the opposite chair, where the light falls full upon them. Mr. James M. Dodd seemed somewhat at a loss how to begin the interview. I did not attempt to help him, for his silence gave me more time for observation. I have found it wise to impress clients with a sense of power, and so I gave him some of my conclusions.
“From South Africa, sir, I perceive.”
“Yes, sir,” he answered, with some surprise.
And contrasts it with the following from Cullin’s work:
As was my usual custom, I sat with my back to the window and invited my visitor into the opposite armchair, where — from his vantage point — I became obscured by the brightness of the outside light, and he — from mine — was illuminated with perfect clarity. Initially, Mr. Keller appeared uncomfortable in my presence, and he seemed at a loss for words. I made no effort to ease his discomfort, but used his awkward silence instead as an opportunity to observe him more closely. I believe that it is always to my advantage to give clients a sense of their own vulnerability, and so, having reached my conclusions regarding his visit, I was quick to instill such a feeling in him.
“There is a great deal of concern, I see, about your wife.”
“That is correct, sir,” he replied, visibly taken aback.
Certainly a similar setup, but is it infringing? That’s where things get pretty tricky, and why I still have trouble with the idea of using copyright to cover “a character.” After all, copyright is supposed to only protect the specific expression, rather than the idea. That’s why it’s never made sense to see courts accept the idea that someone writing a different story using the same characters should be seen as infringing. The courts here seem to handle different cases differently, allowing something like The Wind Done Gone (a retelling of Gone With The Wind from another character’s perspective) but not allowing Coming Through the Rye, an unauthorized sequel to Catcher in the Rye. For reasons that are not entirely clear, judges seemed to feel that The Wind Done Gone was more acceptable as a commentary on the original, rather than just a new work building off of the original.
May 26, 2015
Ilya Somin’s new book on eminent domain
The book is being published in time to mark the tenth anniversary of the Supreme Court’s dreadful Kelo decision:
My new book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain is now in print. It is the first book about the Kelo decision and the massive political backlash it generated, written by a legal scholar. The Grasping Hand is coming out just in time for the tenth anniversary of Kelo on June 23.
Here is a summary from the University of Chicago Press website (the book is also co-published by the Cato Institute):
In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution – even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.
In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats.
The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed.
Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain, and an evaluation of options for reform.
May 9, 2015
Every time you extend copyright terms, you reduce the availability of our musical heritage
Michael Geist on the negative aspects of the Canadian government’s surprise extension of copyright terms:
The government yesterday tabled its budget implementation bill (Bill C-59), which includes provisions to extend the term of copyright for sound recordings and performances. The extension adds 20 years to the term (to 70 years). It also caps the term at 100 years after the first fixation of the sound recording or performance. The change is not retroactive, so sound recordings currently in the public domain will stay there. The government’s unexpected decision to extend the term of copyright for sound recordings and performances will not only cost consumers by reducing competition and stop cheaper, legal music alternatives from coming to the market – but it will also reduce access to Canada’s music heritage.
This is the inescapable conclusion based on studies elsewhere, which find that longer copyright terms discourage re-issuing older releases, which often means that the musical heritage is lost. For example, Tim Brooks conducted a detailed study in 2005 on how copyright law affects reissues of historic recordings. He concluded that longer copyright terms significantly reduce public access. First, he examined the data in the United States, which at the time had the longest term of protection:
our analysis shows that rights-holders have reissued – or as a practical matter allowed legal access to – only a small fraction of the historic recordings they control. Overall, 14 percent of listed pre-1964 recordings were found to be available from rights holders, mostly from the 1940s, 1950s and early 1960s. The figure drops to ten percent or less for most periods prior to World War II, and approaches zero for periods before 1920. This study focused on recordings in which there is demonstrated interest; it is likely that the percent of all recordings that have been reissued is even less.
May 5, 2015
The DEA don’t pay
At Techdirt, Tim Cushing carefully explains that the US Drug Enforcement Agency takes on no responsibility when they hijack your company’s equipment and set you up as a drug gang “competitor”, even when one of your employees dies in the resulting gunfight:
Craig Patty runs a tiny trucking company in Texas. He has only two trucks in his “fleet.” One of them was being taken to Houston for repairs by his employee, Lawrence Chapa. Or so he thought.
In reality, Chapa was working with the DEA, which had paid him to load up Patty’s truck with marijuana and haul it back to Houston so the DEA could bust the prospective buyers. That’s when everything went completely, horribly wrong.
[A]s the truck entered northwest Houston under the watch of approximately two dozen law enforcement officers, several heavily armed Los Zetas cartel-connected soldiers in sport utility vehicles converged on Patty’s truck.
In the ensuing firefight, Patty’s truck was wrecked and riddled with bullet holes, and a plainclothes Houston police officer shot and wounded a plainclothes Harris County Sheriff’s Office deputy who was mistaken for a gangster.
The truck’s driver was killed and four attackers were arrested and charged with capital murder.
Until Patty received a call notifying him that his employee had been killed, he was completely unaware of the DEA’s operations involving both his truck and his driver. Unbelievably, things got even worse for Patty after this discovery.
Patty’s truck was impounded by the DEA. After it was released to him, it was out of service for several months as it underwent more than $100,000-worth of repairs. The DEA offered him no financial assistance for the truck it helped fill with bullet holes nor did it offer to make up for the revenue Patty lost while his truck was out of commission. His insurance company likewise turned down his claim, citing his truck’s use in a law enforcement operation.
Nor did the DEA offer to do something to repair his newly-acquired reputation as a drug runner and/or DEA informant — something that makes Patty’s life a little bit more dangerous.
April 30, 2015
The rise of “administrative law” in the United States
In City Journal, Myron Magnet reviews a new book by Philip Hamburger on the rise and rise of the regulatory state:
We conservatives like to complain about overregulation and point to this or that destructive rule, but few of us go so far as Philip Hamburger does in his immensely important Is Administrative Law Unlawful?, published last year. A Columbia law professor, Hamburger indicts the entire structure of executive-agency rulemaking as illegitimate. It’s not just the regulations that have to go but the regulators as well, since their job is to fling down the Constitution and dance on it.
For over 400 pages of a 511-page, doorstopper-weight text, Hamburger counts the ways in which the slithery Medusa’s head of executive-branch agencies — from the Interstate Commerce Commission and the National Labor Relations Board to the Environmental Protection Agency and the Consumer Financial Protection Bureau, all spitting out the venom of administrative law — constitutes a flagrant affront to the Constitution. For starters, the Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function. So it’s forbidden for Congress to pass a law creating an executive-branch agency that writes rules legally binding on citizens — for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit. “The power of the legislative,” as the Founding Fathers’ tutelary political philosopher, John Locke, wrote, is “only to make laws and not to make legislators.” And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it — namely, the power to hand out selective exemptions from its laws, which is what agencies do when they grant waivers.
Second, Constitution architect James Madison, following political theorist Baron de Montesquieu, saw the separation of powers as an essential bulwark of American liberty. But administrative agencies, which make rules, carry them out, and adjudge and punish infractions of them, blend together legislative, executive, and judicial powers in one giant anti-constitutional Cuisinart. Moreover, judicial power is as undelegatable as legislative power, since the Constitution lodges all of it in the judicial branch. So third, while administrative judges may look “just like real judges,” says Hamburger, they are no such thing — and not only because the Constitution makes it impossible for them to be so but also because, unlike real judges, their sole duty, rather than using their independent and expert judgment to carry out the law of the land, is to carry out the policy of their agency, as set and overseen by their department chief or the relevant cabinet secretary who in turn oversees him. As Justice William Howard Taft pronounced, an administrative tribunal is “miscalled a court.”
April 29, 2015
A simple, four-step plan to assist African-Americans
At Coyote Blog, Warren Meyer lays out his simple but effective plan to help African-Americans:
- Legalize drugs. This would reduce the rents that attract the poor into dealing, would keep people out of jail, and reduce a lot of violent crime associated with narcotics traffic that kills investment and business creation in black neighborhoods. It would also reduce the main excuse for petty harassment by police that falls disproportionately on young black men. No its not a good thing to have people addicted to strong narcotics but it is worse to be putting them in jail and having them shooting at each other.
- Bring real accountability to police forces. When I see stories of folks absurdly abused by police forces, I can almost always guess the race of the victim in advance. I used to be a law-and-order Conservative that blindly trusted police statements about every encounter. The advent of cell-phone video has proven this to be supremely naive.
- Eliminate the minimum wage (compromise: eliminate the minimum wage before 25). Originally passed for racist reasons, it still (if unintentionally) keeps young blacks from entering the work force. Dropping out of high school does not hurt employment because kids learn job skills in high school (they don’t); it hurts because finishing high school is a marker of responsibility and other desirable job traits. Kids who drop out can overcome this, but only if they get a job where they can demonstrate these traits. No one is going to take that chance at $10 or $15 an hour**
- Voucherize education. It’s not the middle class that is primarily the victim of awful public schools, it is poor blacks. Middle and upper class parents have the political pull to get accountability. It is no coincidence the best public schools are generally in middle and upper class neighborhoods. Programs such as the one in DC that used to allow urban poor to escape failing schools need to be promoted.
You could argue that decriminalizing drugs is somehow wrong … but if you’re looking at the harm inflicted by drug abuse and comparing it to the harm to African-American communities in particular, you would have to admit that it’s significantly worse with drug prohibition than it would be under a legal drug-use scenario. Reforming the police? Check what kinds of stuff show up in my Militarization-tagged posts — if that doesn’t convince you, you can’t be convinced.
The minimum wage is one of those issues that seems beneficial to the poor, because it means they get a higher wage on the job than they might get otherwise — what isn’t seen is that this limits the number of jobs that a poor person may have access to. Our education system is not adequately equipping people for the working world, and the more we expect the schools to teach, the less they can teach in the way of life-skills. A bad school can negatively impact someone’s entire working life. In education especially, one size does not fit all. Having more varied educational offerings makes it much more likely that children will be able to get the kind of education they need to succeed in life.
April 24, 2015
Junk science watch – lie detectors
Gavin McInnes on the polygraph machines and their questionable accuracy:
I met Doug Williams in August while developing a pilot for a TV show about myth busting. He’s the most vocal critic of polygraph machines in the world and authored the book From Cop to Crusader: My Fight Against the Dangerous Myth of “Lie Detection.” Williams’ history in law enforcement brought him from the Oklahoma City Police Department to the White House where he served under Johnson and Nixon as a communications advisor (Johnson was cool, Nixon was a dick). He has issued thousands of polygraph tests over the years and even helped make the test part of federal law.
Doug started to realize the whole thing was a scam in the late 1970s and since then has devoted his entire life to giving everyone else the same epiphany. Unfortunately, the government doesn’t see it the same way and on May 12th, his trial will begin for the crime of “train[ing]… customers how to conceal misconduct and other disqualifying information.” He was busted by two undercover federal agents who took his course and decided the class had gone from simply “debunking” to “aiding and abetting.” The Feds are trying to say that Williams is hampering investigations, but all he’s doing is proving these machines don’t work by presenting evidence. 60 Minutes did the same thing in a 1986 episode where three out of three experts failed their own test. People are losing their jobs and going to prison based on the findings of a machine that appears to be totally unreliable. The only thing he’s hampering here is the abuse of power. The irony is, if it’s possible to beat a polygraph, it clearly isn’t a reliable piece of equipment. If it’s not possible to beat, his courses are irrelevant. You can teach someone to trick a police radar all you want. It’s still going to clock you if you’re going over the speed limit. This seems like common sense yet the state has won cases like this before. In 2013, an electrician named Chad Dixon was sentenced to 8 months in jail for helping people beat the machine.
April 22, 2015
QotD: Volunteer armies, conscription, and corporal punishment in Starship Troopers
I hate conscription. I regard it as human slavery of the vilest sort and do not think it can be justified under any circumstances whatever. To those who say “Yes, but without the draft we could not defend the United States” I answer violently, “Then let the bloody United States go down the drain! Any nation whose citizens will not voluntarily fight and die for her does not deserve to live.”
I despise jails and prisons almost as much, and for the same reasons, and I am contemptuous of punishment by fining because it is basically unjust, being necessarily uneven and discriminatory in application — e.g., there is a reckless driver in this neighbourhood who is quite wealthy. A $500 fine to him is nothing at all, less than nothing. To me it is an annoyance and one which might well cut into my luxuries and spoil my plans. But to my neighbour across the street, a cook with two children, a $500 fine would be a major disaster.
Yet $500 is what our local courts would charge any of the three of us for drunken driving.
I suggest that ten lashes would be equally rough on each of us — and would do far more to deter homicide-by-automobile.
Both of these ideas, opposition on moral grounds to conscription and to imprisonment, are essential parts of Starship Troopers. So far as I know, no reviewer noticed either idea.
Robert A. Heinlein, letter to Theodore Sturgeon 1962-03-05, quoted in William H. Patterson Jr., Robert A. Heinlein, In Dialogue with His Century Volume 2: The Man Who Learned Better, 2014).
April 20, 2015
The Wright Brothers – early practitioners of lawfare
David Warren casts his thoughts into the air, but a hundred years ago the Wright Brothers’ lawyers would have been doing their legal damnedest to bring him back down to earth in a hurry:
Work on powered, controlled flight in the United States was far behind that in France, or England, but fell farther behind thanks to the Wright brothers. Fixated on the problem of converting invention into wealth, they pursued rival aviators around the USA with teams of lawyers. Their numerous, voluminous, cumbersome lawsuits were based on often fanciful patent claims, emerging from their own intensely secretive research.
One thinks for instance of the great aviator, Louis Paulhan (first to fly London to Manchester), who arrived with two Blériot monoplanes and two Farman biplanes to give flying demonstrations across the USA. Amazed at the workings of the American judicial system, but ignoring legal injunctions to prevent them from flying their machines, they took every prize at the Los Angeles Air Meet in January 1910, setting new records for altitude and endurance.
The Wrights were present, there as elsewhere, though never competing. They and their gaggle of lawyers followed Paulhan and the other foreigners around the country, serving them with process papers, and demanding unbelievably huge sums to call off their dogs, in vile and obvious attempts at extortion. And then they’d hit the local impresarios with additional suits to impound all the cash from ticket sales, &c. Truly: vicious and contemptible men.
To avoid fines or imprisonment in backwoods American jurisdictions, the visitors took to giving their demonstrations entirely for free, but still the lawsuits kept coming. Finally they gave up and went home.
And there’s even a maple-flavoured sidelight in the story:
Part of the reason for Canada’s early advances in aviation (first flight of the Silver Dart at Baddeck in Cape Breton, with its ingenious ailerons, &c) was the migration of American inventors, such as the brilliant motor-mechanic Glenn Curtiss, to safe territory away from the corrupt and unpredictable U.S. courts.
This, I suspect, was among the reasons that the spectacularly inventive Scotchman, Alexander Graham Bell, re-located from his grand mansion in Washington, DC. At first he went north, back to Canada (where he had settled before), only for the summers; but soon he was staying through the winters, too. Not only in flight, but in all the many other areas of his pioneering work (he invented the telephone, &c), he was afflicted with lawsuits from American cranks, with those dollar signs twirling in their eyes and the slick lawyers lining up behind them, ready to exploit a patent regime wide open to political manipulation. For apart from the beauty of the Bras d’Or landscape, Bell was back under the protection of British Common Law.
Everything is “interstate commerce”
Last month, Elizabeth Nolan Brown reported on another case where the “interstate commerce” excuse is used to justify federal charges for a purely intra-state activity:
Until 2010, Oregon entrepreneur Lawrence George Owen, 73, owned one restaurant, eight strip clubs, and two adult-video stores in the Portland area. At these businesses, Owen installed ATM machines in case customers needed to take out cash. With that cash, customers could do an assortment of things — tip dancers, buy food and drinks, leave the establishment and go grocery shopping. And sometimes, customers used the cash to privately pay some strippers for sex.
Now Owen faces federal charges for “conspiring to use interstate commerce” in promotion of prostitution.
The charges are the results of a nine year joint-effort by Portland’s vice squad and the FBI. Between 2006 and 2009, undercover Portland police officers arranged for 18 acts of prostitution with dancers at three of the clubs. After that federal agents took over, searching Owen’s businesses and the homes of his alleged co-conspirators and seizing $843,000 in cash.
Owen, it should be noted, was living in Mexico most of this time. He is currently on a U.S. Marshall’s hold in a Portland jail, after being detained by federal agents in late February.
You might be wondering how Owen faces federal charges if all of the alleged prostitution-promoting took place in Portland. Promoting prostitution is only a federal crime under certain circumstances, such as when the perpetrator transports or coerces an individual across state lines for prostitution purposes. Using mail, telephone calls, or other “facilities of interstate commerce” in service of prostitution will also do the trick. But the FBI has no evidence that Owen enticed or transported strip-club employees from outside Oregon, nor that he used mail or telephone calls to help facilitate their prostitution efforts.
When the FBI wants to make a case against someone, however, they’ll find a way. In this case, the FBI decided that ATM machines count as “facilities of interstate commerce.”
