prior probability

When can a president use military force inside the United States? Article I, Section 8 of the Constitution gives to the Congress—not to the president—the power “to raise and support armies” as well as the power “to provide for calling forth the militia.” Nevertheless, the Congress delegated its constitutional calling forth power to the president early in our nation’s history, when it enacted the first Militia Act of 1792, and this was the law that President George Washington invoked when he called forth four State militias in response to the Whiskey Rebellion of 1794. In summary, the 1792 Act law spells out three different procedures the president must follow to call forth a militia, depending on the type of domestic danger he is responding to:

• Invasion. When there is an invasion or an imminent threat of invasion, the president may act unilaterally to repel the invasion.
• Insurrection. When there is an internal insurrection within a State, the president’s authority to use military force is subject to a State veto of sorts. Specifically, the president must first request authorization from the State legislature or from the governor of the State, if the legislature cannot be convened in time.
• Execution of the laws of the union. In order to use military force to enforce federal law, the president must first request a certification from an associate justice of the U.S. Supreme Court or from a federal district judge. Specifically, the associate justice or district judge must certify that the laws of the United States are being obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings.”

Furthermore, the 1792 law contained two additional checks on a president’s use of domestic constitutional violence. First, it imposed a public proclamation requirement on the president. That is, in any of these three situations—whether it be a foreign invasion, an internal insurrection, or an obstruction of federal law by powerful combinations—the president was required to issue a formal proclamation before using force, or in the words of the 1792 Act: “whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.” Next, the 1792 law contained a two-year sunset provision.

At the behest of President Washington, however, the Congress repealed and replaced the 1792 Act with a new domestic violence law, which was enacted in 1795. The new law made three important changes to the old law. First off, the new law removed the cumbersome judicial certification requirement in situations involving obstructions of federal law. Under the old law (from 1792), if the president wanted to call forth the militia to enforce a federal law, he first had to obtain from a federal district judge or an associate justice of the U.S. Supreme Court a certification that the laws of the United States are being obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings.” Under the new law, by contrast, the president was delegated the unilateral power to decide how serious or severe an obstruction was.

Secondly, the new 1795 law also modified the public proclamation requirement. Under the 1792 law, the president was required to issue a formal proclamation before he used force to respond to an emergency or other domestic danger. The new law, by contrast, deleted the words “and previous thereto.” Third and last, the new law removed the sunset clause. Unlike the 1792 law, which was temporary, the new 1795 replacement law was designed to remain on the books permanently.

But wait; there’s more! The Congress would further expand the president’s power to use military force inside the United States when it enacted the Insurrection Act of 1807. We will explore the details of this dangerous law in our next blog post …

Happy 19th Birthday Aritzia!

Yes, he does, and he doesn’t have to wait for the Governor of Minnesota to make a formal request for federal help. Beginning in 1792, the Congress enacted five specific laws authorizing the president to use military force within the United States: (1) the first Militia Act of 1792, (2) the Militia Act of 1795, (3) the Insurrection Act of 1807, (4) the Suppression of Rebellion Act of 1861, and (5) the Enforcement Act of 1871. Combined, this remarkable body of law pre-authorizes the president to commit acts of domestic constitutional violence under certain conditions.

As it happens, several scholars have studied the content and historical context of these laws. For an in-depth history of this body of “domestic violence” law, the best place to start is Robert W. Coakley’s beautiful 1988 book “The Role of Federal Military Forces.” Another helpful source is Stephen Vladeck’s excellent 2004 law review article on “Emergency Powers and the Militia Acts,” which was published in Volume 114 of the Yale Law Journal. Lastly, I can also recommend Dominic J. Campisi’s 1975 law review article on “The Civil Disturbance Regulations: Threats Old and New,” which was published in Volume 50 of the Indiana Law Journal.

But wait; there’s more! In addition to these scholarly sources, yours truly also explored this dangerous body of law in my 2019 paper “Domestic Constitutional Violence,” which was published in Volume 41 of the University of Arkansas Law Review. (My paper is available free of charge here, via SSRN.) As a public service, I will further delve into the details of each of these laws in my next few blogs posts.

Is Donald Trump the Adam Silver of politics? For someone with such a big mouth, why hasn’t he addressed his fellow citizens yet? Sorry, but tweets and subtweets are no substitute for a live address to the nation.

Update (May 31): Still waiting … Although Trump made some ineffectual remarks about the need for “law and order” at a scheduled speech at the Kennedy Space Center in Cape Canaveral, Florida, he has yet to address the nation from the Oval Office during prime time. What in God’s name is he waiting for?

Update #2 (June 1): Trump addressed the nation today and implied that he might deploy the U.S. military to quell the current unrest. Here is a recap of the relevant laws that allow the president to take military action inside the U.S.

Did you know the 91st Congress (1969 to 1971) almost enacted a guaranteed income bill? The Chapman Law Review has just published a special symposium volume: “A Fifty-Year Retrospective on Major Laws of the 91st Congress.” My contribution, however, was about “the one that got away.” Instead of writing about the many historic (and I would argue, misguided) laws that were enacted by the 91st Congress, I wrote about President Nixon’s proposed guaranteed income bill, which was approved by the House but died in the Senate. I wrote my history of the guaranteed income bill in the form of a three-act legislative morality play and called it “A Chronicle of a Political Death Foretold.” Although my essay is historical in nature, it is nevertheless very timely, for it offers many lessons to both proponents and opponents of contemporary Universal Basic Income proposals.

Update (June 5): The NBA season will resume on July 31, 2020 at Disney World in Orlando, Florida!

Below is my original May 29 post (sans gif): “Leadership is a two-way street. Now that the coronavirus has been contained in most places and all 50 States have begun to reopen, when will the NBA playoffs resume? As Zach Lowe writes in this essay for ESPN, ‘The NBA’s cleanest method of resuming its season is to bring the 16 current playoff teams to its designated campus, seed them as they are now — eight East, eight West — and play the NBA’s normal postseason.’ So, what are we waiting for?”

Note: This is the last of five blog posts devoted to Module 3 of my business law course (Tiger King edition).

Thus far, we have surveyed the first three parts of my Common Law Module, which are devoted to the domains of Property, Contracts, and Torts. Alas, we are not done yet! Since my business law course is now based on Tiger King, and since Joe Exotic was accused of hiring a hitman to knock off a rival, I have decided to add a bonus section to my common law module. This bonus section addresses the problem of illicit promises, i.e. agreements that are either illegal or immoral or both. Although the idea of an “illicit promise” may sound esoteric, exotic even (pun intended), in reality illicit promises are everywhere. All you have to do is look around you!

By way of example, in addition to the alleged hitman agreement between Joe Exotic and Allen Glover in Tiger King, many high-profile individuals have recently been accused of making illicit promises. Consider the prominent actress Lori Loughlin, one of many wealthy parents who have pled guilty of participating in the college admissions scandal. Although, legally speaking, Ms. Loughlin and dozens of other parents were charged with mail fraud and honest services fraud, their alleged wrongdoing consists of making multiple illicit promises, including bribes and illicit schemes to fraudulently inflate SAT scores. (By the way, in my opinion these parents and their spoiled children should be sentenced to life in prison for gaming the system.) Or consider the pending criminal prosecution of Robert K. Kraft, the horny owner of the New England Patriots football team, who was charged by the State Attorney’s Office of Palm Beach County, Florida with two counts of soliciting prostitution at a massage parlor. Prostitution, sex for hire, and human trafficking are paradigm cases of illicit agreements.

I explore these and many more examples of illicit promises in greater depth in my working paper “Breaking Bad Promises.” Simply put, many forms of wrongdoing often involve immoral promises or illegal agreements, especially given the expansion of federal regulatory crimes as well as our evolving and expanding conceptions of morality, such as animal rights. For now, I just want to ask, What is the legal and moral status of illicit promises? Once again, common law judges have developed a sophisticated body of legal principles to solve a real life problem, a body of common law that in my humble opinion is far more polished and practical than anything academic moral philosophers have ever come up with.

In summary, courts generally classify illicit agreements into two broad categories: (1) those that are inherently wrongful and immoral or mala in se, e.g. murder, rape, kidnapping, etc., and (2) those that are merely illegal or mala prohibita, e.g. regulatory crimes and technical violations of the law. Specifically, promises involving some form of moral turpitude are said to be mala in se and are thus void ab initio, while illicit agreements in violation of a commercial statute or an economic regulation are said to be merely mala prohibita and are treated as “voidable” by the party that stands to benefit from enforcing the illegal agreement. Either way, illicit promises should be of theoretical interest to philosophers and legal theorists because such promises exemplify the uncertain relation between ethics and law, a topic we will return to in Module 6 of my Tiger Law course. But Module 6 of “Tiger Law” is still a long ways off. We still have to explore the “Law of Ideas” (Module 4) and “Criminal & Civil Liability” (Module 5) …

Illicit promises of the rich and famous!

Note: This is the fourth of five blog posts devoted to Module 3 of my business law course (Tiger King edition).

We have been surveying the Common Law module of my business law course this week, starting with some foundational questions in the Law of Property and the Law of Contracts. (See my previous posts on May 26 and 27.) The next part of my Common Law module is devoted to the Law of Torts, with an emphasis on accidents or unintentional harms. To capture everyone’s attention, I begin this part of the module with a recording of the 911 emergency call Joe Exotic made when one of his employees, Saff, got his arm mauled by a tiger, and then I pose a general but important legal liability question that haunts all business firms, especially now in the age of COVID-19: When is a firm legally liable to its employees or its clients for their accidental injuries?

It turns out that the answer to this all-important question depends on which of the two major theories of tort liability is used by the courts to evaluate the conduct of the firm: Strict Liability or Negligence? Therefore, to illustrate the main differences between these two general theories of legal liability, I next introduce my students to the Florida case of Rockow v. Hendry, a “cattle trespass” case involving a crop farmer and a cattle rancher. The facts of this case are simple: the rancher’s cattle had destroyed some of the farmer’s pepper crops, so the farmer sued the owner of the cattle for money damages–the economic value of his destroyed pepper crops.

Why a cattle trespass case? For two reasons. First off, both rules of legal liability have been applied to the problem of stray cattle, so what better way of illustrating the difference between Strict Liability and Negligence (as well as the interplay between the common law and legislation) than cattle trespass? Historically speaking, for example, cattle trespass was considered a “strict liability” tort by the courts. In practice, this meant that the owner of the cattle was always legally liable for any damages caused by his cattle, no matter how much care the owner used to keep his cattle fenced in. At first glance, this rule makes good common sense. The rancher should be legally liable; after all, they are his cattle.

But hold up! What about car accidents caused by stray cattle? Eventually, the historical rule of strict liability gave way to a negligence standard in some places. How and why did this happen? Some localities in the U.S. began enacting so-called “open range” laws that favored cattle ranchers. Instead of strict liability, these laws required courts to apply a negligence standard to the problem of cattle trespass. Stated as simply as possible, under a negligence standard you are legally liable for the injuries suffered by a stranger only if you owed that stranger a duty of care and only if you failed to exercise due care and that failure on your part is what caused the injury to the stranger. The bottom line is this: if you are plaintiff, you would rather sue under a strict liability theory than a negligence theory because it is generally easier to recover under strict liability.

This temporal rule-switch takes us to the other reason why I have assigned a cattle trespass case to illustrate the law of torts. It turns out that cattle trespass was the same example an English economist (my hero Ronald H. Coase) originally used to illustrate an important point about most legal disputes. Instead of pre-judging the legal liability issue, let’s do what Ronald Coase did and take a deeper look at the cattle trespass problem. At a deeper level, isn’t the farmer just as responsible as the rancher for the problem? How so? Because the problem of stray cattle is foreseeable to both parties, so one could put as much blame on the farmer as the rancher. After all, why didn’t the farmer plant cattle-resistant crops or build a fence to keep the cattle out? Why should it be up to the rancher to fence his cattle in? (To appreciate the originality of Coase’s deep insight, just imagine that the cattle ranch and the crop farm were owned by the same business firm.)

We are not done with the common law just yet. Recall one of the central episodes in Tiger King when Joe Exotic allegedly hired a hitman to knock off a rival? As a result, I added a bonus section to my common law module on illegal agreements, and I will delve into this section in my next blog post …

Available on eBay (see here).

Too many ex ante regulations, anyone? I am interrupting my series of blog posts on the common law to ask, What happened to the future? Where did we go wrong? Or as Peter Thiel once remarked, “We wanted flying cars; instead we got 140 characters.” This is one of my favorite quotes of all time, but coming from my fellow libertarian-minded colleague Peter Thiel–the first outside investor in the original Facebook, a social media platform that at one time was even more addicting than Twitter–a potential answer to my question becomes apparent. Aviation and transportation are two of the most heavily-regulated businesses in the world (see here, for example); social media, by contrast, is one of the few remaining activities that are almost entirely free from government regulation. As an aside, this is just another reason why I favor the common law approach to legal liability (ex post regulation) over the “modern” approach (ex ante regulation). Am I wrong? Change my mind!

Note: This is the third of five blog posts devoted to Module 3 of my business law course (Tiger King edition).

We reviewed the Property Law part of my common law module in my previous post. The next part of my common law module covers Contracts. In my humble opinion, however, the Law of Contracts is one of the most complex and cumbersome areas of the common law. Therefore, since I am teaching a survey course in business law, I have decided to focus on one of the most basic yet intriguing issues of contracts rather than get bogged down in the technical minutiae of this area of law. Specifically, I have decided to focus on the following fundamental question: when is a promise legally-binding?

Simply put, not all promises are legally binding under our common law tradition, for one of the most well-established principles of the common law is that a promise, in order to be judicially enforceable, must be supported by “bargained-for consideration.” In plain English, this principle means that each party to a contract must offer the other “something of value” in exchange for the other’s promise. This “something of value” can be money, services, or anything else, as long as it is lawful and offered with a serious intent, not in jest.

Another important maxim of the common law of contracts is that courts do not inquire into the adequacy of consideration, only its existence. That is, judges are not supposed to second guess the business acumen of the parties; their role is limited to making sure that the substance of a party’s promises is lawful and serious. In the case of a promise consisting of a reward offer, one’s performance of the requested service constitutes both an acceptance of the offer and the transfer of something of value to the person making the offer.

By way of example, consider the reward offer made in Episode 4 of the Tiger King docuseries, when Joe Exotic offers $10,000 for any information leading to the arrest of his rival Carole Baskin for the disappearance of her husband Don Lewis. Is Joe Exotic’s reward offer a legally-enforceable one? My tentative answer is yes–Joe Exotic’s offer is legally enforceable–unless it was made in jest. Now, let’s contrast Joe Exotic’s reward offer in Tiger King with a different reward offer–one that was made by Pepsi Cola in a now infamous TV ad.

In brief, Pepsi once ran a TV ad that offered a Harrier jet to any customer that accumulated seven million Pepsi points. Is that a serious offer, like Joe Exotic’s? While most television viewers may have taken Pepsi’s TV ad in jest, a 21-year-old, John Leonard, took it seriously. He rounded up five investors, and together, they purchased seven million Pepsi points for $700,000 as per the rules of Pepsi’s offer. Leonard’s group then demanded the jet as offered in the Pepsi commercial or its monetary equivalent; they took the cola giant to court when Pepsi refused to perform or pay. Footnote: At the time, a Harrier jet cost $23 million. Given these facts, how would you have ruled in the Pepsi case?

Now that we have said a few words about Property and Contracts, we will proceed to the Law of Torts–and the key choice between Strict Liability and Negligence–in the next day or two.