prior probability

Note: This is the fourth of five blog posts covering Module 2 of my business law summer course (Tiger King edition).

Part D of Module 2 is devoted to the third major source of law: the Law of Nations or “public international law”, a broad and important domain that encompasses such disparate things as treaties, customs, and human rights. In keeping with the Tiger King theme of this course, this part contains a proposed wildlife treaty (The International Convention for the Protection of Animals or “ICPA”), a student law review article by Adrienne Ruffle on the International Whaling Commission, and a short video on international law by yours truly.

Among other things, my video emphasizes what I consider to be one of the most peculiar aspects of public international law. Unlike the domestic laws of a nation-state, which are in theory obligatory on all persons and firms inside that nation’s territory, the government of each country generally gets to decide which treaties to ratify and which norms or customs to comply with. Why? Because these rules are not enacted by an international legislature; nor are they enforced by an international police force. Instead, treaties are generally negotiated by the member states of the international community. Moreover, even widespread international customs and human rights norms are often up for grabs, since it is up to each government of each country to decide how, if at all, to enforce these customs and norms. (My video also contains an embarrassing blooper; I accidentally knocked my camera down. I decided to keep this brief blooper in to give everyone a laugh.)

So, returning to our metaphor, if law is seamless web, to quote the great English legal historian F. W. Maitland, where does “International Law” fit it? I could be wrong, but I would place such disparate things as treaties, custom, and human rights norms at the outer edges or fringes of our massive legal web. Some of these international rules might be enforced by domestic courts or otherwise seep into domestic law; most, however, are probably just symbolic or aspirational parchment barriers.

Note: This is the third of five blog posts devoted to Module 2 of my business law summer course (Tiger King edition).

Previously, we introduced F. W. Maitland’s beautiful metaphor of law as a seamless web, and we briefly examined the center of this organic and interconnected network: State and local law. Now, let’s turn our attention to Part C of Module 2, which is devoted to the dominant bulk of our vast and complex legal system, the ever-expanding domain of federal law.

The problem is, federal law has grown into an ugly monster, an unruly beast. The actual number of federal laws, let alone federal regulations, is so large that no one knows for certain the total number of extant federal crimes! By way of example, when the corpus of federal laws was first codified in 1927, all the laws that the Congress had enacted could fit into a single volume. By the 1980s, however, the United States Code had expanded to 50 separate volumes containing over 3000 separate federal crimes. And today? According to @CrimeADay (a popular legal Twitter account devoted to keeping this tally), no one knows for sure. So, how could I possibly tame this massive federal legal beast?

Here is where the Tiger King theme comes in handy! Tiger King allowed me to focus on just one small corner of this ever-expanding federal legal universe–namely, those laws specifically dealing with the animal kingdom. As a result, Part C contains excerpts from the Endangered Species Act of 1973; including a presidential executive order implementing this landmark law; excerpts from Lujan v. Defenders of Wildlife, a controversial Supreme Court case deciding whether private parties could sue to enforce the Endangered Species Act; and a Cornell Law School link for the entry to the “Standing Doctrine.” In addition, Part C contains four homemade videos on various aspects of federal law as well as two timely items: (1) a link to a Twitter account called “A Crime a Day” (@CrimeADay), and (2) a copy of a recent newspaper report of President Trump signing the Preventing Animal Cruelty and Torture Act into law.

My first of four videos on federal law explains the fundamental constitutional principle of federalism, the idea that government power is divided between two levels of government in the United States: the States and the Feds. In theory, at least, the powers of the federal government are supposed to be, in the words of James Madison, “few and well-defined”, while the States retain a general “police power” to protect the health, safety, and welfare of their residents.

My second video on federal law poses a timely and controversial legal question, is the Preventing Animal Cruelty and Torture Act constitutional? Although this law was recently enacted with broad bipartisan support and signed by President Trump into law, does the Congress really have the power to make animal cruelty a federal crime? I then discuss the power of Congress to regulate interstate, tribal, and foreign commerce under the Commerce Clause of the Constitution, probably the single-most important power that Congress possesses under the Constitution.

My third video on federal law introduces the Endangered Species Act of 1973, one of several historic federal laws that are supposed to protect wildlife. I then pose another important question: can you sue the government when it fails to comply with its own laws? And I introduce the case of Lujan v. Defenders of Wildlife, a landmark case that involves this very question. My fourth and last video on federal law explains how the Lujan case played out–how SCOTUS used the so-called “standing doctrine” to give the federal government immunity from its own laws.

Briefly, in order to sue the government to enforce its own laws, the plaintiff (the party who is bringing the lawsuit) must first have “standing to sue”, and to have standing, the plaintiff will have to show that he or she suffered or is about to suffer a concrete injury and that the injury is “redressable” by the courts. I then introduce my students to the two most common types of legal remedies that courts are authorized to provide: (1) the award of money damages (compensation), or (2) the issuance of an injunction (a court order prohibiting a party from doing something).

Time to take a deep breath. To sum up Parts A, B, & C of Module 2, the law is a seamless web, and State and federal law make up the bulk of this enormous, interconnected web. I will proceed to Part D, the outer edges of this vast and complex system (International law), in my next post …

Source: @CrimeADay (via Twitter)

Note: This is the second of several blog posts devoted to Module 2 of my business law summer course (Tiger King edition).

Let’s jump into Module 2, shall we? In summary, this module is devoted to the main “Sources of Law” in our U.S. legal system. Although I have tried my best to reduce the amount of reading materials in Module 2, this module is a relatively massive one by any measure. It contains eleven short videos, including two on State law, four on federal law, one on international law, and two additional videos on what I like to call “the problem of legal interpretation.” In this post, I will describe the first two parts of Module 2 (Parts A & B).

Part A, which consists of an introductory video, two textbook chapters, and two theme songs, is designed to introduce students to the main sources of law in the United States, providing them the big picture, so to speak. (The animal-related theme songs are just for fun.) But what is “law”? The great English legal historian F. W. Maitland once famously described the law as “a seamless web.” (My friend and colleague Larry Solum explains the meaning of this metaphor here.) To me, Maitland’s web metaphor is one of the most beautiful metaphors for describing the interconnectedness of the law. Think of a spider’s web, for example; every part of the web is connected to every other part, and the sum is greater than its individual parts. (Also, if you are prey, you do not want to get ensnared in the web!)

But because our laws are so interconnected, it turns out there are many different ways of defining and classifying the law. For my part, I prefer to keep things as simple as possible by breaking U.S. law down into three major geographic or spatial components, with State and local law at the center of the web, federal or national law occupying the middle of the web, and international law on its outer edges. Given this State/Federal/International breakdown of law, Part B of Module 2 begins with the center of the legal spider web: State or local law.

This part, in turn, contains two videos, a Florida case (Wilkerson v. Florida), a link to Florida’s animal cruelty law (Chapter 828 of the Florida Statutes), and a Cornell Law School link to the entry for “Vagueness Doctrine.” In one sentence, the main takeaway of this part of the module is this: Although State governments have a general “police power” to protect the health, safety, and welfare of its residents, courts will refuse to enforce criminal laws that are too vague for the average person to understand.

To illustrate the vagueness doctrine, I introduce my students to the case of Wilkerson v. Florida, a case in which the constitutionality of a State animal cruelty statute was called into question on vagueness grounds. Before I discuss the case, I ask my students, What would you do if you were caught breaking a law, caught red-handed? Why not challenge the legality or constitutionality of the law you were accused of breaking, which is exactly what happened in the Wilkerson case! In that case, the defendant was charged under Florida’s animal cruelty law. Apparently, the defendant could not dispute the facts of the case, so his lawyer decided to challenge the legality of Florida’s animal cruelty law on vagueness grounds instead.

Why was Florida’s animal law vague? Because according to Wilkerson’s lawyer, the word “animal” was not strictly defined in the statute, so how could a potential defendant know whether the law in question would apply to the killing of a wild raccoon, the type of animal the defendant was accused of harming? Although the Florida Supreme Court rejected this argument, a strong case could be made that the defendant should have won. Florida’s animal cruelty law defines the term “animal” to include “every living dumb creature,” but is a crafty nocturnal mammal like a raccoon really a “dumb creature”? What about domestic pets like cats or dogs? Ask any ethologist (ethology is the science of animal behavior), and they will tell you most, if not all, non-human animals are, in fact, very intelligent creatures indeed!

I will proceed to Part C of Module 2 (Federal law) in my next post …

I am interrupting my review of Week 2 of Tiger Law to share one of the most timely and creative chess sets I have ever seen. Crazy, right! Hat tip: the Amazing and Incomparable Tyler Cowen, via Marginal Revolution.

Module 2 of my legal/ethical environment survey course is devoted to the main sources of law in the U.S. legal system–State, federal, and international law–and is divided into six parts as follows:

• A. Introduction to the main sources of law
• B. State law
• C. Federal law
• D. International law
• E. The problem of legal interpretation
• F. Quiz & Discussion Post

The first five parts of Module 2 contain videos and reading materials, while the last part contains a quiz and discussion post, but because of our Tiger King theme this semester, each part features problems, questions, and materials relating to some aspect of the animal kingdom or to the protection of animals. Part A, for example, includes theme songs by the popular singer Doja Cat and the reggae artist Super Cat. Next, Part B contains the case of Wilkerson v. Florida, a State case challenging the constitutionality of Florida’s animal cruelty law. Part C then features the federal Endangered Species Act of 1973 as well as the case of Lujan v. Defenders of Wildlife. Lastly, Part D contains a proposed international treaty, the International Convention for the Protection of Animals, while Part E features the case of Yates v. United States, a federal case involving a commercial fisherman. I will delve into the details of each of these parts of Module 2 in the next day or two. In the meantime, below the fold are some screenshots of the homepage of my course. (Note: these screenshots are from my Summer A class.)

Continue reading →

The classic film noir “Double Indemnity” inspired the title of this pithy blog post; the nested dice pictured below are blowing my mind. (Also, imagine the look on the faces of your family or friends if you were to bust out a set of these “dice within dice” the next time y’all play a board game!) FYI: These double dice are available for purchase here, via Amazon.

Hat tip: Cliff Pickover (@pickover)

Yesterday (Friday, May 15), Ilya Somin and I debated whether the takings clause of the Constitution applies to coronavirus lockdown orders. (Because courts usually rule for the government, I championed a natural rights perspective to this question.) Our scholarly and spirited debate was hosted by the Federalist Society and moderated by Robert H. Thomas, who asked us a lot of great questions. I will share some of his questions, as well as a link to a recording of the event and my thoughts about the entire affair in the next day or two.

Updated on 5/15 (9:53 AM). How about: “Individuals (even ‘non-essential’ ones) have rights!” In preparation for my upcoming scholarly debate with my colleague and friend Ilya Somin, I have made significant revisions to my property-rights paper, available here (via SSRN), and which is now titled “A Nozickian or natural rights approach to the coronavirus pandemic.” Here is the introduction to my revised paper (references omitted):

In response to the current coronavirus pandemic, State governors all across the United States have issued a series of unprecedented and compulsory economic suppression orders, commonly referred to as “lockdown,” “stay-at-home,” or “shelter-in-place” orders. Broadly speaking, these orders require all “non-essential” businesses to close their doors and prohibit their employees from leaving their homes to work. But do these business lockdowns, however labelled, constitute constitutional “takings” under the Fifth Amendment to the U.S. Constitution?

This is not just a legal question, but also a moral and political one. Instead of waiting for the courts to decide whether shutdown orders are takings under the Constitution, this white paper will offer a Nozickian approach to the pandemic. Simply put, beginning today, local, State, and federal levels of government should start operating at once under the assumption that such orders are constitutional takings. The dire economic consequences resulting from the ad hoc patchwork of coronavirus shutdown orders are too severe and too urgent to leave to the courts.

Following this introduction, Part 2 of the paper will present a Nozickian or natural rights reading of the takings clause. Next, Part 3 will review existing case law and offer the best possible legal argument for why shutdown orders are constitutional takings, while Part 4 will discuss a recent takings case involving a shutdown order in Pennsylvania. Part 5 will then explore the public policy implications of lockdown orders from a Nozickian perspective. To do this, Part 5 will pose the following question: what is the morally optimal level of public theft in the coronavirus age? Lastly, Part 6, in the spirit of Robert Nozick, concludes with a simple thought experiment

Two cheers for Robert Nozick!