Eugene Volokh's Blog, page 2738
August 1, 2011
A threepeat for the Emmy Awards!
The annual "time machine" episode of Colorado Inside-Out garners a threepeat, winning the best documentary award for the third year in a row, from the Heartland Chapter of the National Academy of Television Arts & Sciences. This year's win is also a Triple Crown, with Emmy awards for best sound, and best program. Watch the triple-triple award-winning 1935 episode of CIO (produced in 2010), including Kopel as law professor Israel Ben Koplowitz, a Democratic supporter of Al Smith who is skeptical of FDR. Some other episodes: 1951 (produced in 2011), 1959 episode (Emmy winner, produced in 2009), 1858 episode (Emmy winner, produced in 2008).
Monday Bear Blogging
The NYT reports on an apparent increase in human-bear encounters in the western U.S.
Bears — dangerous and unpredictable always — are prowling broader areas of the West in closer contact with people than ever. In some places, drought is driving the animals out of their wilder haunts and into human settlements. Longer-term climate change, scientists say, is also disrupting bear foraging patterns, especially in and around Yellowstone National Park, where grizzlies have been compelled to search more widely for food in recent years as a tree that produces pine nuts crucial to their diets has been decimated. . . .
The intensified level of conflict is also spurring new research that is challenging some long-held assumptions about bears, notably the idea that bear population is the key variable. As solitary and often nocturnal creatures — unlike, say, elk, which herd together and can be easily counted — bear numbers are guesses at best, scientists say, especially for poorly studied species like the black bear. And shifting patterns of bear behavior, they say, like bears' learning new feeding habits, could be even more important than population trends. . . .
Human nature is often just as important as bear nature when the two species meet, wildlife managers say, and sometimes people make things worse by failing to see past the bumptious, innocent image that bears can sometimes project. Last month, for example, two people were seen buying cheeseburgers and hand-feeding them to bears near a Burger King in western Colorado. State wildlife officials said that act endangered both local residents and the bears, by cementing a message to the animals that people are a food source.
But with more people living or playing in closer proximity to public lands and national forests that are the bears' domain, the line between dangerous rogue bear behavior and natural wild behavior that just happens to be in a human backyard can get blurred.
Learning How to Fish
Overfishing is one of the world's more serious environmental problems, but it does not have to be that way. In 1974, less than ten percent of the world's fisheries were depleted or overexploited, according to the FAO. By 1998, over 30 percent of fisheries were overexploited and depleted. At the same time, the percentage of fisheries under or moderately exploited dropped from 40 percent to 15 percent. There is an urgent need for better fishery management.
As fisheries have declined, our knowledge of how to protect fisheries has improved dramatically. There is now a wealth of theoretical and empirical research documenting how to protect marine fisheries. As documented in the economic and scientific literature, rights-based systems, often referred to as "catch shares" or "IFQs" (for "individual fishing quota"), have been shown, encourage more sustainable fishery management. As an extensive study in Science documented, implementation of such systems halts, and can even reverse, the trend toward fishery collapse.
If property-based fishery systems are the key to avoiding fishery collapse, why aren't they more common? It's an interesting question, and one I pondered while attending a workshop on "Lessons Learned in Rights-Based Fisheries Management" at the Property and Environment Research Center in Bozeman, Montana, where I have been on a research fellowship for much of the summer. It was a fascinating and provocative session featuring cutting-edge work by important researchers in the field.
Existing fishery management systems, which largely rely upon command-and-control regulations of various sorts, have been failing, but some stakeholders remain resistant to change. The "race to fish" may be wasteful and inefficient (not to mention dangerous), but some fishermen like it that way. Overcoming their opposition often requires compromise in designing rights-based reforms, but if such compromises are not appropriately designed, they can undermine the value of the changes.
Political opposition to rights-based fishery management is a timely concern. Although rights-based management systems have been successfully adopted in several U.S. fisheries, as they have in other parts of the world, they are under threat. Earlier this year, Reps. Barney Frank (D-MA) and Walter Jones (R-MA) pushed successfully for an appropriations rider prohibiting the National Oceanographic and Atmospheric Administration (NOAA) from spending money implementing additional rights-based reforms in U.S. fisheries. Rep. Jones, in particular, is on the warpath against rights-based management – which is a shame as rights-based fishery management is about as market-oriented environmental policy as there is. (Indeed, even the folks at CAP recognize the value of rights-based fishery reforms.)
Opposition to catch shares is environmentally indefensible and economically foolish. Any program than can simultaneously increase the environmental sustainability and economic efficiency of a natural resource should be a no-brainer. It would also be good for the federal budget. A recent study in the Journal of Sustainable Development estimated the widespread adoption of rights-based fishery management could reduce the deficit by as much as $1.2 billion.
Economic and environmental goals may often be in conflict, but fisheries management is one area where they don't have to be.
July 31, 2011
After Debt Deal, Sunday Night Dow Futures Up 178 Points
Just before 9pm ET on Sunday night, Dow Jones Industrial futures are up 178 points and S & P 500 futures are up 20 points.
UPDATE: On Monday in Asia (Sunday night in the US), the stock markets in Japan, China, Australia, and South Korea are up 1.3% to 1.9%.
The Washington Post's "What's the Big Idea?" Item on Sasha's Prison Voucher Work
Congratulations to Sasha on being featured in Friday's "What's the Big Idea?" item:
"Some of the same factors that led early education reformers to suggest school vouchers apply with equal, if not greater, force in the prison context," Alexander Volokh writes in "Prison Vouchers," an essay forthcoming in the University of Pennsylvania Law Review.
How might prison vouchers work? Volokh imagines that a "convicted defendant would receive a coupon, good for incarceration for the duration of his term, which he would be required to redeem at a participating prison." This institution could be public or private — Volokh stresses that "choice is conceptually independent of privatization."
Read the Post story for more, or, better yet, read Sasha's posts on his article or perhaps even the article itself.
New Dean at Northwestern U. Law School
Congratulations to Daniel Rodriguez, a professor at University of Texas and former dean at the University of San Diego Law School, who will become dean at Northwestern starting on January 1, 2012. And congratulations to Northwestern for landing Rodriguez. I've only met him once, I think, but my friends at USD always speak highly of him.
July 30, 2011
Would Camreta v. Greene Permit Article III Standing to Challenge a Unilateral Raising of the Debt Ceiling?
Over at The New Republic, my colleague Jeffrey Rosen argues that a lawsuit challenging a possible decision by President Obama to unilaterally raise the debt ceiling would fail for lack of Article III standing:
[I]f Obama invoked the Fourteenth Amendment to raise the debt ceiling unilaterally, the most likely outcome is that the Supreme Court would refuse to hear the case. The conservative justices have long required clear evidence of legal "standing" before opening the courthouse door—something they showed in their recent 5–4 decision rejecting a taxpayer's challenge to an Arizona school vouchers program—and it's hard to imagine who could establish enough of a legal injury to establish standing in this case. Individual senators and representatives wouldn't have standing to sue on their own, according to a 1997 Supreme Court precedent, and although the House and Senate could, in theory, pass a joint resolution asserting that the president has injured Congress by usurping its power, they're unlikely to find the votes to do so. (If the House alone passed a resolution asserting a constitutional injury, its legal status is less certain.)
That's probably right, but I wonder if the May 2011 Supreme Court decision in Camreta v. Greene might alter the picture. In Camreta, the Supreme Court took the rather novel view that a government official has Article III standing to challenge a lower court ruling to obtain "clearance" from the ruling so long as the official "regularly engages" in the practice that the decision regulates. That is, the possibility that the official will face a penalty for engaging in the practice that the decision regulates itself creates Article III standing to challenge the decision.
If a judicial opinion can create standing, then I'm not sure why an executive order wouldn't. And I gather there are at least some state or local officials who would be happy to challenge a decision by President Obama to unilaterally raise the debt ceiling. (Think Ken Cucinelli, the Attorney General of Virginia, for example.) Given that the federal government pays for a large chunk of many state budgets, state officials presumably would need to know if any raising of the debt ceiling is constitutional. They would need "clearance" to know if their subsequent conduct is lawful. If I'm right about that, could Camreta be used to argue for Article III standing of state or local officials in a suit challenging the executive order?
I doubt it would work, and I'm not saying I would want it to work: I think Camreta is entirely unpersuasive, so I don't want its reasoning to spread. But it seems at least an argument worth flagging for those interested in this (hopefully hypothetical) question.
UPDATE: In response to my co-blogger Jonathan's comments, I'm assuming that there is some way that a state official could face some legal liability for taking the position that raising the debt ceiling is unconstitutional — such as for refusing to disburse federal funds. If that's not true, then this theory of Article III standing clearly won't work.
Could a Debt Ceiling Veto Be Unconstitutional?
If it could be unconstitutional for Congress to fail to raise the debt ceiling, thereby calling the government's debts in doubt, could not a Presidential veto of legislation increasing the debt ceiling also be unconstitutional? Michael Stern has an interesting post exploring this question at PointofOrder.com
How Long a Nap Is Ineffective Assistance of Counsel?
If your defense attorney falls asleep during your trial, and you are convicted, do you have an ineffective assistance of counsel claim? That may depend on how long your attorney was asleep, and whether you can demonstrate prejudice. Yesterday, in Muniz v. Smith, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination. A courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a "substantial portion" of the trial, and that could not be demonstrated here. Further, the defendant could not demonstrate he was prejudiced by his attorney's nap.
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