Category Archives: Law: Constitutional Law

Ilya Somin of George Mason University School of Law has an op-ed in the Detroit News about the possibility that the Michigan Supreme Court might overturn the infamous Poletown decision. Michigan should alter property grab rules.

In Poletown the court allowed Detroit to seize the homes of more than 4,200 people under its power of eminent domain. This time-hallowed power lets the state seize property for public use. Although the state must pay market value, there's no way to monetize the value of the destruction of a neighborhood, its churuches, and its vanished sense of community. 'Public use' had been thought to mean something the government does for all of us, but in Poletown the purpose of the seizure was to give the land to General Motors so it could build a factory. (The idea was that the new jobs would benefit the public; in the event, far fewer jobs were created than promised and Prof. Somin argues that the project was a net economic loss to the community.)

I recall being outraged by this case when I read about it in the papers, and being outraged again when I read it in law school. Here's hoping…

Whatever his other peculiarities, William Safire has always been good on privacy — having been wiretapped himself by Nixon he understands how intrusive it is to have the government recording you. Today he shows he's good on anti-privacy too, that is the freedom of information: Behind Closed Doors. Of course, working in a profession which depends on access to public information may have helped inform this view.

The Bush administration's position in the Cheney energy task force case is maximalist. If there were a term beyond “extreme” I'd use it. Deciding in its favor would tilt the separation of powers much further towards the White House; deciding against it only preserves the status quo.

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Yahoo! News – Court Says Redistricting Unconstitutional

DENVER – In a decision that could have national implications, the Colorado Supreme Court threw out the state's new congressional districts Monday because the GOP-led Legislature redrew the maps in violation of the constitution.

The General Assembly is required to redraw the maps only after each census and before the ensuing general election — not at any other time, the court said in a closely watched decision. A similar court battle is being waged in Texas.

Under the ruling, Colorado's seven congressional districts revert to boundaries drawn up by a Denver judge last year after lawmakers failed to agree.

The issue before the court was whether the redistricting map pushed through the Legislature by Republicans this year was illegal. Colorado's constitution calls for redistricting only once a decade and Democrats contended the task was completed by the judge.

I look forward to reading this decision. I'm more than prepared to believe that there may be state Constitutional law issues here; but much as I think mid-term redistricting is despicable, it will take something substantial to convince me that there is a federal constitutional law violation here. (Although I can imagine what some of those arguments might look like.)

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Internet journalist (and nice guy) Declan McCullagh received a remarkable letter recently from FBI Supervisory Special Agent Howard Leadbetter II. The letter demanded that Declan “preserve all records and other evidence” relating to interviews of a computer hacker. According to The Reporters Committee for Freedom of the Press other journalists have received similar letters too.

It seems that the FBI's New York field office has decided that internet journalists are really ISPs and thus subject to § 2703(f) of the Electronic Communication Transactional Records Act”:

(f) Requirement to preserve evidence.—

(1) In general.—A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

(2) Period of retention.—Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

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The 10th Circuit decision in FTC v. Mainstream Marketing Serv is a huge win for the FTC. The court not only vacated the injunction blocking implementation of the do-not-call list, but said that it thinks the FTC is very likely to win on the merits.

The key to the panel's decision is that it finds in the agency's deliberative records, and in the original statute's legislative history, reasons why one could believe that commercial calls are (a) more annoying to consumers than non-commercial calls and (b) why the risk of fraud and other harms is greater from commercial calls than from non-commercial calls:

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