The authors argue for local-government and land use scholars to pay attention to the key insights of agglomeration economics and to some of the central lessons from political economy as they bear on governmental decision making in a complex and constrained market and to note the ways in which the location market impacts policy choice.

Titled "Investigate The Other Guy," the discussion centered on the questions of how agencies should deal with groups that may be higher risk than others and whether profiling is ever appropriate. 

Joining Somin on the program were Cameron King, tax accountant; Jim Clemente, retired FBI Supervisory Special Agent and Profiler; Kevin Jackson, Ex-Director at The Black Sphere; and Peter Caram, former Head of Terrorist Intelligence for the Port Authority of New York and New Jersey.

Watch the program

On May 16, the program host leads a debate on the role of the Supreme Court in Modern America in which Somin is joined by Georgia State Constitutional Law professor Eric Segall for a vigorous discussion. 

On the second program on May 20, Somin and host Dominick discuss Somin's forthcoming book Democracy and Political Ignorance, to be released this fall by Stanford University Press.

Listen to the May 16 program

Professor Adam Mossoff, Co-Director of Academic Programs and Senior Scholar for CPIP, helped organize the event, which took place at the National Press Club before a maximum-capacity crowd and was presented to viewers over a live webcast.

Entitled "Is the Patent System Working or Broken? A Discussion with Four Distinguished Federal Judges," the program considered conflicting perspectives on whether today's patent system promotes or hampers innovation. Panelists were The Honorable Arthur J. Gajarsa, former Judge, U.S. Court of Appeals, Federal Circuit; The Honorable Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit; The Honorable Richard Posner, Judge, U.S. Court of Appeals, Seventh Circuit; and The Honorable Douglas H. Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit, and Professor of Law at George Mason, who acted as moderator of the panel.

Watch the webcast 

"Where an ISP action is anticompetitive, such acts already are illegal under antitrust law," he points out. "Hence, net-neutrality regulations are superfluous. They impose a blanket prohibition on a large class of business models that are highly efficient."

"Allowing ISPs to operate without burdensome regulations does not deter the development of the Internet," Hazlett says. "It unleashes dynamic economic forces that continually discover new and better ways to compete. Mind-boggling innovation is the product of truly open markets—an unregulated, 'non-neutral' space of incredible scope and promise. That is what we have had. New regulations do not protect that model, but abandon it." 

Arguing in favor of net-neutrality rules in the article is Gigi Sohn, president and chief executive of Public Knowledge, a open-Internet advocacy group based in Washington, D.C.

Should Congress Overturn the Net Neutrality Rules? The Wall Street Journal, May 10, 2013. 

Excerpt:
"Internet service providers have produced rich innovations. AOL, for example, created much original content for subscribers within its 'walled garden' of the mid-1990s. When abundant rival sources of news and entertainment appeared, the walls melted away. Both of AOL's approaches were efficient adaptations to its environment at the time. The lack of regulation prevented lock-in, allowing AOL to adjust to customer preferences.

In "Debate on the Treaty Power," Somin joins Nick Rosenkranz, Eugene Kontorovich, and Rick Pildes in a series of blog posts designed as an online debate as to whether a treaty can increase the legislative power of Congress (The Volokh Conspiracy, Jan. 13-Feb. 3, 2013).

In "Asian-Americans, Affirmative Action, and Fisher v. Texas," Somin discusses the University of Texas’ affirmative action program, challenged in Fisher v. Texas, an important affirmative action case before the Supreme Court (The Volokh Conspiracy, May 31, 2012).

The Journal of Law: A Periodical Laboratory of Legal Scholarship is a publication of the Green Bag.

Read the blog entries 

Greve examines such popular concepts as tax "neutrality" and the "origin principle," noting that "Our existing Internet sales tax regime honors neither tax neutrality nor the origin principle" and fails to please any of the involved parties. 

In a twist on suggestions by pro-tax states that sellers could use sophisticated software to calculate, collect and remit local taxes, Greve suggests the same could be done by consumers.

"I don't mean to give state governments any ideas, but if we need snazzy computer programs anyhow, why not deploy technology to collect the tax from the people who actually owe it—the local citizens? Put the software online, and make taxpayers report and remit the use tax for all interstate purchases of, say, more than $100 (unless the seller already has collected the tax). The chore is inconvenient, but that is true of all tax reporting. And what price is too high for marketplace fairness?

The Internet Sales Tax Reveals Its Foolish Head Yet Again, Forbes, April 25, 2013. By Michael Greve.

Excerpt:
"Bricks-and-mortar operations obviously like the idea, as do most state governments. Some Internet sellers are prepared to go along, provided state and local governments simplify and facilitate compliance with their nightmarishly complex tax regimes. There are nearly 10,000 U.S. taxing jurisdictions, all with their own tax rates, tax bases, tax holidays, etc. Other Internet sellers, such as eBay, oppose the Senate's proposal, as do the states that have no sales tax.

"The debate long predates the Internet—we had the same debate over catalogue sales. Good, bad and idiotic arguments on both sides have been rehearsed time and again. But the Senate's impending consideration of the Marketplace Fairness Act provides occasions for a few reminders."

Read the article  

In his lecture, Greve examined aspects of the public debt and the Constitution, concluding that, "We will have to re-think the wisdom of an Executive Government that operates effectively without judicial or legislative constraint, purely by dealmaking. We will argue about a nominally independent central bank that fine-tunes not only the currency but also the stock markets, and which bankrolls a dissolute government and in the process expropriates fixed-income investors. And we will re-examine and hopefully reform a federal system that fosters fiscal illusions and excess spending at all levels of government."

"In a sentence: our debts problems will become constitutional problems. They always have been," Greve noted.

The BB&T lecture series is part of a Pamplin College teaching program to explore the foundations of capitalism and freedom. The program’s courses, undergraduate and graduate, examine alternative economic systems, including socialism and communism, and compare them with the economic solutions offered by free markets. Previous BB&T speakers include retired BB&T chairman and CEO John A. Allison, veteran financial journalist John Berry, Greg Ip of The Economist, Nobel Laureate James M. Buchanan, and Pamplin alumnus and Forbes newsletter editor Vahan Janjigian.

Read the text of Greve's remarks

The panel discussion was anchored by host Ray Suarez and included Malcolm, former New York Times foreign correspondent and editor Craig Whitney, and Fordham University history professor Saul Cornell. 

Panelists examined the history of the Second Amendment and how it shapes discussion today, considering such questions as what the public really knows about it, who was behind it, what the authors were trying to achieve, and how it applies today in an age when muskets have been replaced by semi-automatic weapons.

Watch the program or read a transcript

In an April article in The Economist, Law School Dean Daniel Polsby points out that criminals may be less willing than law-abiding citizens to turn in guns for the amounts offered at buy-back events. 

"There are good reasons to believe mischief-makers value guns more than people who want to buy them for self-defence," Polsby says, "So it's utterly silly."

Others add that gun buy-backs fail to cut gun violence because they remove only a relatively small number of weapons, many of them old and unused, from the communities promoting the events.

Gun control: Money talks, The Economist, April 27, 2013.

Excerpt:
"America's smallest state held a gun buy-back day on April 6th that netted 186 firearms--97 shotguns and rifles and 89 handguns--collected anonymously from owners who were compensated with gift cards valued at $50 to $200, depending on the make and condition of their guns. Several companies, including SIMS Metal Management, a recycler, paid for the event, and the guns were to be melted down. Angel Taveras, the mayor of Providence, said such events were "one way for local governments to remove unwanted firearms from our streets." 

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In 1938 Franklin D. Roosevelt's Supreme Court handed down back-to-back decisions that in the first case declared any federal economic legislation constitutional, and in the second case allowed a significant expansion of state power over U.S. commerce. Discussion participants considered ramifications of the cases and whether the questions should be revisited three-quarters of a century later.

Greve moderated a luncheon debate between Professor Jack Balkin of Yale Law School and Professor Richard Epstein of New York University Law School. Following the debate, Rabkin took part in a discussion that included Professor Randy Barnett of Georgetown University Law Center, Professsor Barry Cushman of Notre Dame Law School, and Professor Suzanna Sherry of Vanderbilt University. Henry Olsen, director of the National Research Initiative at AEI, acted as moderated for the panel discussion.

View a video of the event   

"Dzhokhar Tsarnaev may not be an enemy soldier, but he's not a common criminal, either," Sales explains. "The proper place for him is a civilian court, but authorities should have interrogated him more fully to help thwart future atrocities." 

Rejecting the argument that Tsarnaev should have been held by the military as an enemy combatant, Sales concedes that military interrogation is an effective way to determine intelligence that could help prevent a future terrorist attact. 

"But based on what we know today, Dzhokhar Tsarnaev shouldn't be held by the military. There's no evidence he's affiliated with al-Qaida or any other foreign terrorist groups," Sales says.

Boston bomber should have been interrogated more thoroughly, U.S. News Debate Club, U.S. News & World Report, April 24, 2013. By Nathan Sales.

Excerpt:
"Military interrogation is an effective way to get answers to these questions. And the Supreme Court has held that the military can detain those who fight for the enemy—even if, like Dzhokhar, they're citizens who were arrested in this country.

"In World War II, the Court unanimously blessed Franklin Roosevelt's decision to transfer eight nazi saboteurs, including an American, to military custody after they were captured by the FBI. Federal cours likewise upheld the miliary detention of two citizens suspected of being al Qaeda operatives, including one arrested in Chicago."

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In an April 23 op-ed co-written with James K. Glassman for Bloomberg, Verret explains how Institutional Shareholder Services, Inc. (ISS) and Glass Lewis & Company have become "the most powerful arbiters of corporate governance in the U.S. today" through their roles as advisers, with the effect of outsourcing proxy decisions for the institutions that hire them.

"Meanwhile, the SEC gave the proxy advisers protective treatment not granted to similar financial gatekeepers, such as auditing firms," Verret explains.

That system is not working, says Verret, citing the two firms' lack of resources to examine questions in depth, incentives that do not align with those of investors, and the potential for conflict of interest as evidence of this. 

The system can be fixed, Verret finds, through three steps.

First, Verret says mutual funds and other institutions should themselves decide when it makes sense to spend resources analyzing and voting on a proxy question. Second, he believes there should be an end to the preferential regulatory treatment that proxy advisers currently enjoy. Finally, he says, end extraneous proxy requirements, such as say-on-pay votes. 

Fixing the Broken Proxy System, Bloomberg, April 23, 2013. By James K. Glassman and J.W. Verret.

Excerpt:
"In a classic case of unintended consequences, the 2003 SEC rule led to a result that was almost precisely the opposite of what many of its supporters, including Chairman Harvy Pitt, had wanted. Instead of eliminating conflicts of interest, the rule simply shifted them to the advisory firms. Instead of providing informed, sensitive voting on proxies, the incentive has been to outsource decision-making to two small organizations that most investors have never heard of."

Read the article 

"I think it’s not inherently illegal to target American citizens so long as American citizens are also combatants in a relevant war," said Somin. "Sometimes U.S. citizens can be classified as enemy combatants."

"It’s not important [what technology we’re using], what matters is we’re choosing the right target," Somin advised. "If we’re choosing the right target then we should use the appropriate weapons, we’d be wrong to ban specific technology."

In his testimony, Somin stressed that constitutional problems would arise in the event the government failed to ensure the use of drones was strictly limited to legitimate terrorist targets, paricularly in the case of American citizens.

"I would urge the Subcommittee and Congress generally to consider adopting procedural safeguards that would minimize the likelihood of erroneous or illegal drone strikes," Somin cautioned. "One proposal that deserves serious consideration is the establishment of an independent court that would oversee drone strikes in advance."

Boston Bombing Changes Lawmakers’ Views on Drone Killings of Americans on U.S. Soil, U.S. News & World Report, April 23, 2013. By Jason Koebler.
Read related article

Read more about the hearing, read testimony, or view a webcast of the hearing

Writing in the Harvard Health Policy Review, Somin suggests that Chief Justice Roberts' Commerce Clause and Necessary and Proper reasoning might put constraints on Congress' power to impose other mandates.

"The threat of such mandates is far from purely theoretical," says Somin. "Many industries could potentially lobby for laws requiring people to purchase their products, and Congress has a long history of enacting special interest legislation. The political process cannot be relied on to consistently prevent the enactment of future mandates that benefit narrow interest groups at the expense of the general public."

Potential benefits of Roberts' reasoning upholding the Act's insurance mandate under the Tax Clause are partially undercut, Somin says, by the reality that almost any purchase mandate could potentially be restructured to fit his definition of a tax.

"To qualify, the mandate would have to be enforced only by a monetary fine that is collected by the IRS, is not too high, and levied without regard to criminal intent," Somin explains. "At the very least, however, such future mandates could not be enforced by threats of imprisonment or by extremely high monetary penalties."

In addition, Somin says the Court's invalidation of the Medicaid condition makes it possible many states will refuse to expand Medicaid coverage. "What is not clear is whether any other federal conditional grant programs may be invalidated as coercive," he says.

Somin concludes that the political and legal struggle over federalism will continue, absent consensus on the constitutional limits of federal power, within the Court and without.

Assessing the Health Care Decision, Harvard Health Policy Review, Fall 2012, Volume 13, Number 2. By Ilya Somin.

Excerpt:
"Some defenders of the mandate have advanced the argument that the Constitution gives Congress the power to address "national problems," especially those that states supposedly cannot address on their own. But nowhere in the Constitution is Congress given a blank check to solve any and all alledged national problems. If Congress were intended to have such a sweeping power, there would be no need for the detailed enumeration of numerious specific congressional powers in Article 1. The Framers could instead have replaced the eighteen clauses of Article with a single catch-all National Problems Clause. Moreover, to the extent that this argument relies on the idea that states cannot adopt an individual mandate on their own, it runs into the reality that they are entirely capable of doing so, as Massachusetts did in 2006."

Read the article 

The event took place on April 18 at The American University's Washington College of Law in Washington, D.C., and featured Sales, former Homeland Security Assistant Secretary for Policy Development, along with Stephen Vladeck, professor of law and associate dean for scholarship at AU WCL; Benjamin Wittes, senior fellow in governance studies at the Brookings Institution, member of the Hoover Institution's Task Force on National Security and Law, and co-founder and editor-in-chief of lawfareblog.com; and Joshua Frost, writer in international affairs (theatlantic.com, Registan.net, and PBS "Need to Know"), former research fellow at the American Security Project, and former senior intelligence analyst for the U.S. military.

The paper in question, Informing Consent: Voter Ignorance, Political Parties, and Election Law, was co-written with Professor Christopher Elmendorf of the University of California at Davis in 2012. In it the authors observe that voters in cities such as New York with partisan elections for local officials vote for the party they support in the national elections, despite the fact that local issues tend to be dramatically different from those occurring at the national level.

Can our mayoral candidates tackle the most urgent city issues? Reuters, April 15, 2013. By Reihan Salam.

Excerpt:
"One might be a 'liberal' on abortion rights and federal higher education funding but a 'conservative' on fixing potholes and controlling crime. In an ideal world, we might have local political parties - say, the Free Subways Party, the Stop-and-Friskers, and the Anti-Tax Free Love Alliance - organized around specifically local issues. But national political parties have the First Amendment right to take part in local races, and they take advantage of it." 

Read the article

The event was convened to commemorate the 100th anniversary of the ratification of the Seventeenth Amendment, with a principal focus on the legacy of the Seventeenth Amendment and the impact of direct senatorial elections.

The panel in which Somin participated included Professor Wendy Schiller of Brown University and Professor Bruce Cain of Stanford University, Straus Fellow of the NYU Strauss Institute for the Advanced Study of Law and Justice. Professor Richard Pildes of NYU Law acted as moderator of the discussion. 

On the preceding day, Somin gave a talk at NYU on the topic, "Federalism and Political Ignorance: Why Decentralizing Government Helps Us Make Smarter Decisions." Somin discussed how federalism helps citizens overcome political ignorance by enabling people to "vote with their feet," which gives them better incentives to acquire information and use it well than ballot box voting does, often benefiting minorities and the poor. 

The event, "Cyber Threats & The Economy: New Strategies to Secure Our Economy from Cyber Depredation," featured a keynote address by House Intelligence Committee Chairman Mike Rogers focusing on "Information Sharing to Improve our Cyber Security."

Following Chairman Rogers' address, a panel discussion took place in which Rabkin discussed "Retaliating in Cyberspace: Lessons from the History of War at Sea." Accompanying Rabkin on the panel were Dr. Rachael Ehrenfeld, Director ACD/EWI; Michael Mukasey, former Attorney General; R. James Woolsey, former Director of Central Intelligence; Stewart Baker, former Assistant Secretary for Policy, DHS; Mark Weatherford, Deputy Under Secretary for Cybersecurity, DHS; Steven Chabinsky, former Deputy Assistant Director, FBI Cyber Division; Christina Ray, Senior Managing Director for Market Intelligence at Omnis; and Brian Bruh, former Director, Financial Crimes Enforcement Network.

The event was co-organized by the Federalist Society's Intellectual Property Practice Group and the law school's Center for Protection of Intellectual Property (CPIP), for which Mossoff serves as Co-Director of Academic Programs and Senior Scholar. 

The teleforum, termed a digital "fireside chat," explored a variety of issues in an effort to assess whether the patent system is broken or whether it is fundamentally sound. 

Teleforum calls are 60-minute conference call discussions and debates featuring one or more experts on a topic of the moment, with a live call-in audience. Previously recorded Teleforum calls are posted for download as podcasts on the Federalist Society's Practice Groups Podcasts page. 

Read more about the teleforum

The cases, decided in February and March 2013, respectively, were Florida v. Harris and Florida v. Jardines. 

The question in Florida v. Harris involved whether a narcotics detection dog's "alert" constituted probable cause for the search of a private vehicle, a question the Court upheld as valid. The second case considered whether taking a narcotics detection dog to smell the exterior of a house in which there was suspicion of marijuana propagation constituted a search under the Fourth Amendment. Justices held that it did constitute a search for purposes of the Fourth Amendment.

Listen to the podcast

The symposium, entitled Transactional Lawyering: Theory, Practice, & Pedagogy, brought together academics and practitioners to engage in conversation addressing deal lawyers, governance, lawyering and current financial markets, current conditions in practice, transactional law, pedagogy, and the evolution of the field.

Byrne was part of a panel discussing "Business planning and legal drafting pedagogy," while Davies' panel addressed the question, "What do transactional lawyers do?"

Read more about the event

"Our federalism brief merely claims that Congress lacks the constitutional authority to enact DOMA because the law exceeds the scope of Congress' enumerated powers," Somin wrote in a post cited in an article in the ABA Journal. "That conclusion is perfectly consistent with the view that state laws banning gay marriage violate individual rights protected by the 14th Amendment."

Would a gay-rights victory on DOMA include a 'constitutional Trojan horse'? ABA Journal, April 4, 2013. By Debra Cassens Weiss.

Excerpt:
"A law professor who supported a commerce clause attack on the health-care law, Randy Barnett of Georgetown University, is among a group of professors who signed an amicus brief backing the states’ rights argument in the DOMA case. 'DOMA falls outside Congress’s powers' because 'marriage is not commercial activity,' the brief says. It also argues that the law 'undermines the states’ sovereign authority to define, regulate and support family relationships.'”

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Lund argues that assurances offered by organizations representing social and behavioral scientists have no scientific foundation. 

"Same-sex marriage is brand new, and child rearing by same-sex couples remains rare. Even if both phenomena were far more common, large amounts of data collected over decades would be required before any responsible researcher could make meaningful scientific estimates of the long-term effects of redefining marriage."

The Supreme Court recently heard arguments in two cases in which the court is being asked to rule that constitutional equal protection requires the government to open marriage to same-sex couples. 

Nelson Lund: A Social Experiment Without Science Behind It, The Wall Street Journal, March 26, 2013. By Nelson Lund.

Excerpts:
"There has been only one study using a large randomized sample, objective measures of well-being, and reports of grown children rather than their parents. This research, by Mark Regnerus, a sociologist at the University of Texas Austin, found that children raised in a household where a parent was involved in a same-sex romantic relationship were at a significant disadvantage with respect to a number of indicators of well being—such as depression, educational attainment and criminal behavior—compared with children of intact biological families.

"One might expect this work at least to raise a caution flag, but it has been vociferously attacked on methodological grounds by the same organizations that tout the value of politically congenial research that suffers from more severe methodological shortcomings. This is what one expects from activists, not scientists."

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Lund, who formerly worked with Cooper, characterized him as one who staunchly defends the letter of the law. He described Cooper's thinking as being that "you had to obey the law, and not what you wanted the law to be."

Cooper, who is generally considered to be a champion of conservative causes, argued against former solicitor general Theodore Olson, also considered to be a conservative, in Hollingsworth v. Perry on March 27. 

The Other Lawyer in Gay-Wed Case, The Wall Street Journal, March 26, 2013. By Geoffrey A. Fowler.

Excerpt:
"Mr. Cooper's low profile is partly by design, say people who have worked with the 61-year-old Alabama native, known as Chuck. He has avoided discussing this case in the media, and his argument is rooted in deeply conservative views of both the justice system and the historical definition of marriage, they say. Keeping with his practice since the case began, Mr. Cooper declined an interview with The Wall Street Journal.

"His Proposition 8 strategy has been notable in part because he has avoided putting homosexuality—or even the policy of same-sex marriage—on trial. Instead, he argues that the high court should allow citizens to deliberate the issues through democratic processes and should let states make their own rules about marriage."

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