"Relative to people in many European countries, Americans are much less likely to ask how much money you make, or to criticize your political or religious opinions," says Somin, pointing out that US has a strong culture of self-esteem that makes it socially awkward to openly criticize people in many contexts.

At least in the educated classes, he says, Americans are more sensitive than Europeans and Asians to suggestions of racism or ethnic prejudice, while also expecting greater respect for "personal space" than Europeans and especially Asians.

What's Distinctive About America? Immigration Daily. By Ilya Somin.
Excerpt:
"The Metafilter site has an interesting thread consisting of comments by foreigners about what they think is most distinctive about the US [HT: Tyler Cowen]. I’ve lived in the US since I was six, so I can’t really see the country from the perspective of a foreigner or a recent immigrant. On the other hand, I did grow up in an immigrant family, have spent time in many foreign countries (including teaching at universities in Germany and Argentina), and have lived in several different parts of the US. So I have some perspective on the issue.

"Obviously, there are the ideological and political differences that some of the commenters cite: compared to most other advanced democracies the US is more politically decentralized (though a few European nations, such as Switzerland, are even more so); more pro-free market (though Canada is now roughly equal to the US on various measures of economic freedom); more religious; and less class-conscious. These traits are, I think, well-known."

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In January 2012 the Supreme Court upheld Congress's power under the Patent and Copyright Clause to grant copyrights to foreign authors for their works that had been in the public domain in the U.S. as part of enabling legislation that followed the 1994 GATT agreements.

Mossoff, Newman, and Olson discussed whether the Clause should allow granting copyrights to existing, public domain works, as well as what limitations the IP Clause and the First Amendment place on Congress when it passes IP laws. Also considered were the effect of the challenged law on incentives to invent and create works and how the license granted to Congress by the Court might affect future laws.

The Teleforum format is a 60-minute conference call discussion or debate featuring one or more experts on a topic, with a live call-in audience. After opening remarks by each expert, the majority of each call is spent on audience questions.

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"It seems to me that the answer is no, Cordray cannot" take on the duties of nonbank lending and credit regulation, Zywicki said. "It seems pretty clear to me what they are saying" in the Dodd-Frank legislation, "which is that these powers do not transfer until certain things happen," he maintained, saying the chief thing that needed to happen was Senate confirmation.

Democrats and Republicans differ on the matter of the recess appointment. At issue is an argument that the statute creating the CFPB requires that the director actually be confirmed by the Senate, rather than appointed, in order to activate the agency's new powers to regulate consumer and business transactions.

A counter argument is that the language in Dodd-Frank is merely a restatement of the requirement for the Senate's advice and consent contained in Article II, Section 3 of the Constitution, which is followed by a paragraph that allows for recess appointments by the president, and that Constitutional intent prevails.

Will recess appointment handcuff top consumer cop? Cleveland Plain Dealer, January 17, 2012. By Stephen Koff.
Excerpt:
"We're intrigued by a different argument put forth by Republican Sen. Rob Portman of Ohio: that Obama might have limited Cordray's ability to do his full job because of the way he put the Ohioan in the director's chair.

"'The irony is that while this recess appointment may advance the White House's political goals, it does nothing to advance the work of the CFPB,' Portman said in a prepared statement the afternoon of Jan. 4, after Obama announced he was appointing Cordray. 'The statute creating the CFPB makes clear that only Senate confirmation of a director – not a recess appointment – can activate the new powers of this agency to regulate consumer transactions with Main Street businesses.'

"Portman, an attorney, was referring to the Dodd-Frank financial reform legislation of 2010, which created the consumer agency and split its duties. Starting in late July of 2011, this single agency would take over duties previously held by an assortment of other, often disconnected agencies that regulated consumer loans and credit cards issued by banks. But that excluded so-called nonbank lenders, such as some student loan companies, mortgage brokers and payday lending operations.

"Under the legislation, the agency could not pick up those additional duties and write new rules for those industries until it had a director in place. That's why Obama and congressional Democrats had been so adamant about installing a director. They said they wanted the consumer bureau to be able to do its full job."

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Somin cites Bond v. United States, a recent unanimous Supreme Court ruling, which emphasizes that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. "In addition to setting boundaries 'between different institutions of government for their own integrity,' constitutional federalism also 'secures to citizens the liberties that derive from the diffusion of sovereign power,'" says Somin.

Somin believes Bond has relevance in arguments surrounding the mandate for individual healthcare and suggests the Court will not uphold the mandate unless it concludes there is some way of doing so without giving Congress unconstrained power to impose mandates.

Bond, Federalism, and Freedom, The Library of Law and Liberty, December 28, 2011. By Ilya Somin.
Excerpt:
"Bond has some important potential ramifications for the Obama health care plan individual mandate case. Twenty-eight state governments and numerous private parties have filed lawsuits challenging the constitutionality of the Obama health care plan provision requiring most Americans to purchase government-approved health insurance by 2014. Lower courts have split over the issue of whether or not the mandate exceeds the scope of federal power under the Constitution. Many defenders of the mandate claim that the plaintiffs aren’t making a “real” federalism argument against the law, but are actually trying to protect individual liberty under the guise of promoting federalism. Bond shows that this is a false dichotomy. A federalism-based limitation on congressional power can protect individual liberty as well as the authority of state governments. If the federal government’s power to impose mandates is limited, that both protects individual freedom and gives state governments greater scope to determine their own health care policies."

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The case in question challenges the constitutionality of the 2010 Patient Protection and Affordable Care Act. FRC's amicus brief was cited in the Supreme Court brief filed for the National Federation of Independent Business, which will make it likely that the Court will carefully read and consider the argument it presents.

The brief argues that the 'individual mandate' in the 2010 Patient Protection and Affordable Care Act requiring all Americans to have health insurance is unconstitutional and unseverable from the Act itself, and that striking down the individual mandate provision requires the Court to strike down the law in its entirety.

FRC, 27 Members of Congress File Amici Brief on Severability to the U.S. Supreme Court Regarding Obamacare, PRNewswire, January 9, 2012.

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Zywicki points out that the Federal Trade Commission, an agency with a similar charge, operates with a five-person, bipartisan leadership structure and is subject to budgetary controls by Congress. Neither of those checks and balances is in place for the CFPB, making it the most powerful and unaccountable agency within the government and exposing consumers to the risk of overregulation and resultant harm.

With Republicans claiming President Obama's recess appointment of Richard Cordray as the bureau's first director was improper, Zywicki maintains the challenge is the agency's structure, rather than the individual appointed to lead it.

Obama acts alone in picking head of consumer protection bureau, WTOP News, January 9, 2012.

Listen to the interview

Through bundling banks provide free or low-priced checking in exchange for basic services while offering premium products with additional benefits for those with greater needs.

"Everybody's going to take a different range of products, in a sense letting customers sort themselves out," explains Hazlett, adding that once a bank has established a relationship with an account holder, the bank can then "expand the relationship at a very low cost to the bank to pick up additional lines of service. "

"If banks are leveraging an existing relationship and trying to get more services and revenue because it's so efficient, the flipside of that is, if they do something that doesn't sit well with a customer," the banks stand to lose more money, Hazlett says.

Efforts to bundle services are expected to increase in the next year as banks attempt to regain revenues lost through recent new banking regulations.

Banks Revamp Checking by Watching Cable TV, American Banker, December 29, 2011. By Victoria Finkle.

Excerpt:
"Because premium accounts tend to include at least several perks, bank also don't need to worry about which perk specifically is attracting each consumer. Some customers might choose a higher-fee account because they want free cashiers' checks while others might want free access to non-network ATMs.

"Similarly, some people buy cable for ESPN2 while others want the Food Network. Both pay the same price for access to the TV shows they want, but may end up with additional stations they will never watch.

"Of course, one key difference in banking is that consumers can often waive account fees by keeping higher amounts of money in their checking accounts or by buying additional products and services from their banks. And when consumers deepen their relationship with a bank, they are likely bringing in enough money to offset the monthly fee the bank was charging for the checking account."

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"Election 2012 will be about jobs and the economy," predicts Professor J.W. Verret in an op-ed appearing in the Cedar Rapids Gazette. "It also will be about two competing visions of the government’s relationship with companies: whether those companies are publicly traded or privately held, and whether they have 10 employees or 10,000."

"The Republicans will require a nominee who has real economy CEO experience, Romney, to challenge Obama’s record," says Verret.

Verret believes the president will argue that large corporations were the cause of the financial crisis and that the new rules he has put in place will prevent such crises in the future. He also argues that the president will attempt to sidestep financial reform's failure to address Fannie Mae and Freddie Mac, which he views as prime causes of the financial crisis.

"Gov. Mitt Romney’s record at Bain Capital and his statements on the campaign trail urging respect for the rights of investors and employees of corporations shows that he is ready for the fight," says Verret.

Competing visions for economy, business, The Gazette, January 1, 2012. By J.W. Verret.
Excerpt:
"The 2012 presidential election will focus on jobs and the economy. President Barack Obama will be eager to tout his accomplishments in office, including passage of financial reform and the stimulus bill. The Republican nominee will be called upon to make a forceful and direct case to the American people that Obama’s record has made the economy worse.

"It will be a year where competing visions of the economy will be presented to the American people. Obama’s vision is a centrally regulated and planned economy based on stimulus spending. His opponent will need to show that America is a business-focused economic engine anxious for government to get out of the way.

"This also will require a discussion about the future of corporations that form the heart of economic innovation and that are heavily regulated by the government."

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Co-written with Philippe Bergevin, senior policy analyst at the C.D. Howe Institute, the article expands upon a federal task force interim report on payments systems and technologies that argues that Canada's payment system is in need of improvements.

Some Canadian payment methods, including debit cards, are heavily regulated. Interac, its primary debit card market, operates under a cooperative governance system and must set prices on a cost-recovery basis while also being subject to a federal Code of Conduct that discourages other networks from offering debit cards in Canada.

"To become a leader in payments, Canada's path is obvious," Zywicki says. "The federal government should favour competition, and remove the current prohibition on multiple payment networks on one card. And the Competition Bureau should allow Interac to compete on a for-profit basis."

Set Interac free; Burdensome federal regulations discourage innovation, National Post, December 20, 2011. By Philippe Bergevin and Todd Zywicki.

Excerpt:
"There are external barriers to change, too, such as participants who benefit from the status quo, such as merchants and their associations. Canadian merchants cite the low merchant fees on debit cards charged by Interac, contrasting it with the higher merchant fees charges on cards issued under the Visa and MasterCard logos.

"But low costs for merchants sometimes means less investment in better payment products. And those merchant fees come at a high cost to banking consumers. In the United States in 2009, about three-quarters of retail bank accounts were eligible for free chequing and the minimum necessary balance to obtain free chequing, unlimited free debit-card transactions, online banking, electronic bill payments and ATM withdrawals was only US$185.

"By contrast, a new study shows that only 30% of Canadian consumers are eligible for free chequing, and that the minimum balance to gain free chequing was five times higher than in the United States. And to gain unlimited debit-card transactions in a given month, Canadian consumers must pay annual banking fees that may exceed $150 per year."

Read the article

Roberts was singled out in the category Opinions for the Court for an entertaining grammar lesson he included in his March 1 decision in FCC v. AT&T, while Kagan was cited in the category Concurrences and Dissents for her forceful dissent in Arizona Christian School Tuition Organization v. Winn, an Establishment Clause case.

The late 7th Circuit judge Terence Evans, who dealt in an amusing manner with trademark issues surrounding the quilted pattern of certain toilet paper brands in Georgia-Pacific Consumer Products v. Kimberly-Clark Corp., joined Roberts as an additional winner in the category of judicial opinions. Judge Richard Posner, also of the 7th Circuit, won in the same category for his decision in the Alien Tort Statute case Flomo v. Firestone Natural Rubber Co.

Book winners were: William Coleman, Counsel for the Situation; Clare Cushman, Courtwatchers: Eyewitness Accounts in Supreme Court History; and William Stuntz, The Collapse of American Criminal Justice.

The Green Bag's board of advisers selected the works as exemplars of good legal writing from the year just passed. They will appear in the 2012 Almanac & Reader. Mason Law Professor Ross Davies is editor-in-chief of The Green Bag. A full list of winners is here.

Testifying along with Rabkin were Andrew Grossman, visiting legal fellow at the Heritage Foundation, and David Fontana, associate professor of law at the George Washington University Law School.

Rabkin concluded his remarks by saying, "I do not advocate that Congress enact a 'blanket prohibition' on references to international or foreign practice, not even for decisions interpreting our own Constitution. I do not think it likely that Congress has the constitutional authority to tell Article III courts what they can or cannot consider when interpreting the Constitution. But I think it would be appropriate for the House to vote a non-binding resolution, expressing concern about this trend. The justices who are so determined to consider foreign opinion should at least be exhorted to give special weight to American opinion when they interpret the American Constitution. I believe the House would be speaking for most Americans if it affirmed that we do not need foreign assistance in interpreting our own Constitution."

Read Rabkin's Testimony

"In the normal course of business, outside the Washington Beltway, the revenue line on a company's income statement provides a logical discipline," says Verret. "It reflects a precise measure of how much the world values the goods a company is producing. But in the case of Solyndra and other companies like it, their revenue numbers relected imaginary demand created by a combination of government subsidies and preferential treatment by government regulators."

In addition, Verret says, the Department of Energy gambled with taxpayer resources, hurting the future ability of solar power and other green energy sources to compete with traditional sources, as the department's guarantee program caused much of the venture-capital industry to focus on firms other than those able to germinate profitable ideas.

No, dude, we don't need more Solyndras, The Washington Times, December 9, 2011. By J.W. Verret

Excerpt:
"Evidence brought forward in the congressional investigation surrounding Solyndra's $535 million loan guarantee from the department suggests that political pressure may have motivated both the original funding of Solyndra and the department's agreement allowing new investors to get paid out first in the case of the company becoming insolvent, as well as the department's continued support of Solyndra in the press even in the face of troubling financial reports from the company.

"However, even if the loan guarantee program hadn't worked to benefit political interests, it represents a bigger and, perhaps, more pervasive government folly: government interference in the private marketplace for innovation."

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Mossoff urged the Court to act with caution in patent cases, saying, "The Supreme Court does not want to formulate a rule that inadvertantly prevents the next wave of innovation. The potential error cost to future innovation is very high in these cases."

Blood-Test Case at Top Court May Send "Shock Waves," Bloomberg, December 6, 2011. By Greg Stohr and Susan Decker.
Excerpt:
"Mayo contends the patents would give Prometheus a monopoly over all uses of the natural relationship between the metabolites created by thiopurine and the drug's impact on the human body. The patents are so broad they would bar doctors familiar with the Prometheus method from even thinking about the connections between metabolite levels and the proper dosage for a patient, Mayo's lawyers say.

"The case is about 'how far can patents intrude into a doctor's thought processes when a doctor is ordering a routine test from a lab and then thinking about the results in the context of patient treatment,' said Jonathan Singer, a lawyer at Fish & Richardson PC in Minneapolis who represents Mayo.

"Prometheus counters that its patents concern concrete applications of scientific principles, which the Supreme Court has long said fall within the scope of the U.S. Patent Act."

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Appearing in the first of the Patent General Session panels, Mossoff spoke on the topic of the first-to-file provision of the America Invents Act, a piece of legislation enacted earlier in the year. Joining Mossoff on the panel were Robert Armitage of Eli Lilly and Co., Indianapolis, Indiana, and Dale Lazar of DLA Piper in Reston, Virginia.

Documents Mossoff included in the conference materials are available here and here.

Wright's report on the topic was for the International Center for Law and Economics and was based on data from the Administrative Office of Pennsylvania Courts. Wright found that Philadelphia juries find in favor of plaintiffs more often than non-Philadelphia juries "by as much as 23.7% in absolute terms in 2005."

Currently plaintiffs can choose the Philadelphia courts over local Pennsylvania venues. A new plan under consideration by the state's House Judiciary Committee would change the court's jurisdiction rules such that local courts could hear personal injury cases only in instances where the plaintiff is a resident, a corporation is headquartered, or the incident occurred within the district.

The City of Unbrotherly Torts, Wall Street Journal, December 3, 2011.

Excerpt:
"Verdicts are routinely north of $1 million, and last year the city was named America's number one judicial hellhole in the annual ranking by the American Tort Reform Foundation.

"Slowly, the political system has been fighting back. In 2002, a reform took on forum shopping for medical malpractice claims, which were raising insurance rates for small-town doctors who found themselves sued in Philadelphia.

"Another reform in June of this year restricted joint and several liability, which had allowed plaintiffs to collect 100% of their award from any defendant, even those minimally liable. The provision has been a major deterent to business investment in a state that could use more jobs. The reform restricts companies that are less than 60% liable in a case with multiple defendants to covering only their share of the verdict."

Read the article

Mossoff gave an overview of the case and answered reporters' questions at the press briefing, which was organized by the Federalist Society.

Mossoff provided reporters with a brief written statement as follows:

"The biotech revolution began in 1980 with the Supreme Court’s decision in Diamond v. Chakrabarty that genetically engineered organisms are patentable inventions, and not simply 'facts of nature.' In Mayo Collaborative Services v. Prometheus Laboratories, the Supreme Court will decide if this revolution has gone too far. The question in Mayo is whether a three-step method for delivering to a patient immunosuppressive drugs is a patentable invention—a new, useful and nonobvious process. If the Court rejects all such processes as unpatentable 'laws of nature' or 'abstract ideas,' the concern is that the Supreme Court may inadvertently foreclose future innovation from the protections of the patent system. This is important because the purpose of the patent system is to promote new innovation, as best exemplified by the biotech revolution itself. Thus the Court must be careful in Mayo not to confuse a possible mistake by the Patent & Trademark Office in granting this drug-delivery patent with the general principle that inventors of new and useful processes should receive protection for their inventions in the patent system."

"Courts have recognized that the takings clause can apply to intangible property such as shareholder rights," said Somin in the article. "It's not clear how valuable these rights are, especially given all of AIG's liabilities."

UPDATE 5-Greenberg sues U.S. for $25 bln over AIG takeover, Reuters, November 21, 2011. By Jonathan Stempel.

Excerpt:
"'The government's actions were ostensibly designed to protect the United States economy and rescue the country's financial system,' David Boies, a lawyer for Starr, said in the complaint.

"'Although this might be a laudable goal, as a matter of basic law, the ends could not and did not justify the unlawful means employed,' he continued. 'The government is not empowered to trample shareholder and property rights even in the midst of a financial emergency.'

"Shareholders of other companies, including mortgage financiers Fannie Mae and Freddie Mac and the bank Citigroup Inc , also saw their holdings diluted in the fallout from the 2008 financial crisis. It is unclear whether Starr's constitutional arguments might apply to them."

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Robert A. Anthony, 1931-2011, Foundation Professor of Law Emeritus at George Mason University, died on November 17 in Warrenton, VA.

Bob came to George Mason in 1983, continuing a distinguished career that began at Stanford Law School and included private practice in San Francisco, the chairmanship of the Administrative Conference of the United States, and ten years’ service on the Cornell University law faculty. He was one of his generation’s most gifted and prolific Administrative Law scholars and a teacher beloved by generations of law students. His many good works at George Mason included proprietorship of the law school’s Pre-Admission Summer Trial program and an Administrative Law course which was famous for rigor, comprehensiveness, and for Bob’s irrepressible good humor and personal kindness. He is survived by his widow, Joan Anthony, and sons Peter and Graham.

On Sunday evening, November 20, from 7:00 to 8:30 p.m., the Anthony family will receive guests at Moser Funeral Home, 233 Broadview Avenue, Warrenton. A funeral service will be held on Monday, November 21, at 10 a.m. at St. John the Evangelist Catholic Church, 271 Winchester Street, Warrenton, with a brief coffee afterward at the church. Burial will follow in Arlington at 2:30 p.m. Monday at Columbia Gardens Cemetery, 3411 Arlington Boulevard.

Those wishing to make a contribution in Bob's honor are invited to donate to Hospice of the Rapidan, 1200 Sunset Lane, Culpepper, VA 22701.

Appearing on a panel entitled "Healthcare: Accountable Care Organizations," Wright and fellow panelists discussed the authorization of accountable health care organizations intended to enable progess under the new healthcare reform law in both improving access to healthcare and also making the system more efficient. Specific emphasis of the discussion was on whether antitrust standards should apply, or whether public policy concerns warrant a more lenient review.

Joining Wright on the panel were Fiona M. Scott-Morton, Deputy Assistant Attorney General, U.S. Department of Justice, Antitrust Division; The Honorable J. Thomas Rosch, Commissioner, Federal Trade Commission; and Lawrence Wu, NERA Inc.

Read more about the forum.

On a similar note, an essay by Malcolm on the August 2011 London riots currently appears in the London Society Journal, as well. In the article, entitled "The Road to the London Riots Was Paved with Good Intentions," Malcolm explores the recent history of British policy and law on self-defense in an effort to provide better understanding of the riots. 

The Road to the London Riots Was Paved with Good Intentions, London Society Journal, Issue 462 (Winter 2011/Spring  2012) By Joyce Lee Malcolm.

Excerpt:
"The illusion that disarming the British public would produce a safer community has proven tragically false. It has transformed a once peaceful country into a violent one. A government's first duty is to protect its people, but since no police force, however large, can protect everyone all the time, people must be allowed to protect themselves. And offenders must be punished, despite the financial cost. The riots were a wake-up call."

Read the article

In addition to Hazlett and Wright, the panel included Michael Pelcovits, Principal, MiCRA, and was moderated by Harold Furchtgott-Roth, Director of the Center and former Commissioner of the FCC.

Read more about the event

Since the Supreme Court's 2005 ruling in Kelo v. City of New London, public outcry has resulted in the passage of eminent domain laws in 44 of the 50 states, says Somin. However, he points out that many of the post-Kelo reforms have major loopholes that still allow abuses to occur.

"Referendum initiatives like Measure 31 tend to be stronger than reforms adopted by state legislatures because many of them are drafted by activists rather than by politicians," Somin explains, saying property rights activists do not need to appease powerful pro-condemnation interest groups in order to be elected.

Referendum initiatives prevent eminent domain abuse, The Daily Caller, November 9, 2011. By Ilya Somin.

Hosted by Wendy Mariner, Utley Professor of Health Law at Boston University School of Public Health, School of Medicine, and School of Law, the program offered a discussion of what is at stake in the individual mandate and how it might affect the country. Joining Somin for the discussion was Professor Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School.

Somin and Balkin considered such questions as whether the federal government can require people to purchase health insurance, implementation of state versus federal health care mandates, consideration of the mandate as an issue of commerce, and what outcome might be expected when the U.S. Supreme Court ultimately considers the question of the constitutionality of the law, as it is expected to do.

Perspective Roundtable: The Constitutionality of the Individual Mandate, The New England Journal of Medicine, October 27, 2011. By Wendy K. Mariner, JD, MPH; Jack M. Balkin, JD, PhD; and Ilya Somin, JD.

Watch the program

Later in the week, Verret's previous Hill testimony was cited in a FoxNews article examining political candidates' calls for repeal of Sarbanes-Oxley's Section 404 requiring public companies to include in their annual reports both the firm's own assessment of its "internal controls" and an outside auditor's assessment.

Testifying before the House Financial Services Committee last month, Verret told lawmakers the Securities and Exchange Commission (SEC) vastly underestimated the costs attributable to the Section 404(b) requirement for outside audits.

"Some large firms pay $5,000,000 a year. The smaller firms, it's even worse. They pay a lower amount, but it's a much higher part of their revenues,"
Verret told FoxNews. "Investors are paying in the form of lower returns. That money is spent on just paying more to auditors and accountants to really help these companies comply with the new red tape."

2012 Candidates Target Costly Enron-Era Law Aimed at Thwarting Accounting Fraud, FoxNews.com, October 27, 2011. By James Rosen.

Excerpt:
"Now, in a campaign season where excessive regulation has emerged as an improbable yet potent issue on the stump, Sarbanes-Oxley and its legacy are drawing new scrutiny on the 2012 GOP presidential campaign trail.

"And not just from Perry. Number 10 in the 59-point economic plan put forward by former Massachusetts Gov. Mitt Romney last month is a pledge that the candidate, if elected, 'will seek to amend' Sarbanes-Oxley, to make compliance with it 'less onerous' for mid-sized companies. While Romney did not mention Section 404 explicitly, there was no mistaking which provision he had in mind.

"Former House Speaker Newt Gingrich and Rep. Michele Bachmann of Minnesota have both called for the outright repeal of Sarbanes-Oxley. And so, too, has Rep. Ron Paul, who has the strongest record on the issue: The self-declared libertarian from Texas was one of only three House lawmakers who voted against Sarbanes-Oxley back in 2002."

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