prior probability

Alternative Title: Sources of Law (Module 2)

For the benefit of my fall business law students, I am including here a complete set of general overviews of the contents of Module 2 of our legal and ethical environment of business course (BUL3130). In summary, Module 2 is devoted to the big picture–the main sources of law in the USA–and one way of visualizing this messy and massive picture is the legal historian F. W. Maitland’s metaphor of “law as a seamless web.” (For your reference, a portrait of the great Maitland is pictured below. The artist is Susan Beatrice Lock. You can learn more about her life and work here.) I therefore use Maitland’s beautiful metaphor as a unifying theme throughout Module 2. Enjoy!

1. Preview of Module 2
2. The seamless web: State and local law
3. The expanding web: federal law
4. The outer edges of the web: international law
5. Law’s little spiders

Este pasado miércoles 9 de septiembre, mi ensayo jurídico “Guaranteed Income: Chronicle of a Political Death Foretold” (disponible aquí) fue otorgado el premio de mención honorífica en la categoría de ensayo libre por el Comité de Obra Jurídica del Año 2020 del Colegio de Abogados de Puerto Rico. Gracias a los miembros del comité, comenzando con su presidente, el Dr Daniel Nina, y sus demás miembros–el Dr Eduardo Villanueva, el Dr Hiram Lozada y la Sra María Zamparelli–por haberme otorgado este premio. Le dedico mi ensayo a la memoria del Dr Carlos del Valle Cruz, quien falleció en julio. #ColegioSiempre

(For my English-speaking readers, I am thanking the Colegio de Abogados de Puerto Rico, one of the oldest bar associations in the world, for recently awarding my 2020 paper “Guaranteed Income: Chronicle of a Political Death Foretold” (available here) an honorable mention in the category of best law essay of the year. As an aside, I have been a card-carrying member of the Colegio since 1994, the year I was authorized to practice law in the Commonwealth of Puerto Rico, and by the way, I also need to thank my colleague and friend Orlando I. Martinez-Garcia, who nominated my paper for this award, as well as my former student Hamed Santaella, who took the time to help me submit physical copies of my paper to the prize committee by the deadline. Lastly, I dedicate my paper to the memory of my colleague and friend, Carlitos del Valle Cruz.)

What should we make of the brouhaha depicted in the video below? Heckler’s Veto, anyone? In short, instead of protecting Kaitlin Bennett’s right to free speech, university police force her to leave campus. I don’t know who Ms Bennett is, but whatever happened to the right of free speech, especially on a college campus where the exchange of ideas is supposed to be sacrosanct?

Hey, Mr Madison, what went wrong? The co-author of the famous Federalist Papers, James Madison, was also the Founding Father who was the Secretary of the Constitutional Convention of 1787 and who is often referred to as “the architect” of the United States Constitution. In Federalist Paper #45, he tells us that the federal government will be small relative to the governments of the States:

The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system.

In addition, Mr Madison also tells us that the powers of the federal government will be “few and defined” compared to the residual powers of the States:

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government.

Ironically, Mr Madison was wrong on both counts. At last count, there are now about two million federal employees, and today there are no real limits on the power of Congress to regulate the economy. (By comparison, here is a compilation of the total number of State employees.) So, why was Madison so wrong! (While you consider this question, below is a poorly-edited but entertaining audio montage of every James Madison intervention in the hit musical Hamilton.)

Say what? Although the reliability of the map pictured below has been called into question (see here and here, for example), the private ownership of kangaroos is illegal in some 37 States. But what about zoos?

Here is the latest example of what I like to call “political junk science“–a paper published a few days ago in the prestigious Proceedings of the National Academy of Sciences (PNAS) and whose hyperbolic conclusion is that, and I quote, “substantial numbers of Republicans endorse statements contemplating violations of key democratic norms, including respect for the law and for the outcomes of elections …” blah, blah, blah. (For my readers overseas, the reference to “Republicans” in this paper is to the second-oldest political party in the United States–the one founded by Abraham Lincoln!) The author of this bullshit, Larry M. Bartels, holds the “May Werthan Shayne Chair of Public Policy and Social Science” at Vanderbilt University. We have but two words for you, Dr Bartels: OK, Boomer!

According to Wikipedia, the off-Broadway production of the hit musical “Rent” closed on this day (September 9) in 2012. As an aside, the song “Seasons of Love” from this popular production is one of my favorite musical numbers of all time. For your reference, below is the Glee version of this beautiful song:

Because of the Labor Day holiday, my Advanced Topics in Law class did not meet this week. Next week, however, we will resume full steam ahead with “the Commerce Clause problem.” But first things first: Why is the venerable Commerce Clause, which appears in Article I, Section 8 of the Constitution, a problem? I will tell you why! In brief, the powers of the Congress are supposed to be–in the immortal words of James Madison in Federalist Paper #45–“few and defined.” The problem is that one of Congress’s “few and defined” powers includes the power to regulate interstate commerce under the Commerce Clause, and almost every single human activity has an effect, however remote, on commerce. Accordingly, what real limits, if any, does the Commerce Clause impose on the Congress?

By way of example, does Congress have the power to prohibit the private ownership of dogs or cats? What about exotic animals like tigers and lions? If enacted into law, for example, the proposed “Big Cat Public Safety Act” would prohibit the sale, possession, and breeding of big cats–thus making it illegal to own a tiger or lion. (Look it up!) At the same time, this bill exempts certain wildlife sanctuaries like Harold and Carole Baskin’s Big Cat Rescue in Tampa, Florida–an exemption that potentially raises some “equal protection” concerns. Are big cats an article of commerce? Let’s assume for the sake of argument that Congress does have this power–that Congress can ban the private ownership of big cats. I now wish to pose the following second-order question: Why should the courts have the self-declared power to declare a democratically-enacted law unconstitutional?