December 19 roundup

A crisis of democratic legitimacy for the U.S.?

At National Review, Lyman Stone challenges the currently popular idea that American electoral processes are in the grip of a crisis of democratic legitimacy. While there is real room for process improvement, as with the issue of gerrymandering, it is less clear that imperfections in our electoral system 1) have worsened a lot or 2) are especially different from than those found in other mature democratic systems. It is also far from clear that over the long run the imperfections systematically benefit one “side”: at the moment Republicans hold more seats than their share of votes would predict, but one needn’t go far back in time to find periods when Democrats held the same sort of edge.

Two areas where the U.S. is unusual: we have low voter turnout, well below that of most advanced countries, and each member of our House of Representatives represents a very large number of people.

On coercion and plea bargaining

This fall the Cato Institute held a policy forum on plea bargaining featuring Clark Neily, vice president for criminal justice at Cato, Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the National Association of Criminal Defense Lawyers, and Somil Trivedi of the ACLU. Description:

Supreme Court Justice Anthony Kennedy has observed that “criminal justice today is for the most part a system of pleas, not a system of trials.”

Although nowhere mentioned in the text of the Constitution, plea bargaining has become the default mechanism for resolving criminal charges in the United States. Indeed, some 95 percent of criminal convictions today are obtained through plea bargains, which raises a number of serious concerns, including why so few people choose to exercise their hallowed and hard-won right to a jury trial. When one considers the many tools available to prosecutors to encourage defendants to accept plea offers, together with the incentive to resolve as many cases as efficiently as possible, one cannot help but ask how many plea agreements are truly voluntary and how many are the result of irresistible coercion. Are there constitutional or ethical limits on coercive plea bargaining, and if so, are they being properly enforced? And what should we make of an institution that has practically eliminated the criminal jury trial and with it the Framers’ painstaking efforts to ensure citizen participation in the administration of justice?

The Federalist Society also held a recent panel on the subject of plea bargaining, which David Lat covers here.

Banking and finance roundup

  • Gov. Jerry Brown signs into law California bill imposing minimum quota for women on corporate boards: “it’s very hard to see how this law could be upheld” [Emily Gold Waldman, PrawfsBlawg, earlier] “The passage of this law resulted in a significant decline in shareholder value for firms headquartered in California.” [Hwang et al. via Bainbridge]
  • Martin Act, part umpteen: “New York Attorney General Overreaches in Climate-Change Complaint Against Exxon” [Merritt B. Fox, Columbia Blue Sky Blog]
  • “Now he tells us! You’d think that maybe Bharara would have publicly acknowledged this ambiguity and haziness [in insider trading law] before bringing a series of cases that destroyed careers and imposed huge costs on the individuals who were accused.” [Ira Stoll]
  • “Because [Florida agriculture commissioner-elect Nikki Fried] took donations from the medical marijuana industry, Wells Fargo and BB&T banks closed her campaign accounts briefly, citing policies against serving businesses related to marijuana, which is still prohibited under federal law.” [Lori Rozsa, Washington Post, Erin Dunne, Washington Examiner (“fix the marijuana banking mess”)]
  • Survey: “Average cost of a settled merger-objection claim has increased 63% to $4.5 million over four years, with little benefit to shareholders” [Chubb] “Time for Another Round of Securities Class Action Litigation Reform?” [Kevin LaCroix, D&O Diary on U.S. Chamber paper, and more on trends in Australia]
  • “Congress Can’t Create an Independent and Unaccountable New Branch of Government” [Ilya Shapiro on Cato cert amicus in State National Bank of Big Spring v. Mnuchin, on constitutionality of Consumer Financial Protection Bureau (CFPB)]

A traveling Chinese executive is arrested

Urged by the U.S., Canada recently arrested Huawei Chief Financial Officer Meng Wanzhou. “Meng was traveling in Canada, switching planes using a Chinese passport, when she was taken into custody.” For Tyler Cowen, the “procedural normality of the arrest is precisely what scares me. There are so many international laws, and so many are complex or poorly defined, and there are a couple hundred countries in the world. Arguably most multinational corporations are breaking some law in some manner or another, and thus their senior executives are liable to arrest. If I were a top U.S. tech company executive, I would be reluctant to travel to China right now, for fear of retaliation.” [Bloomberg] See also the FIFA (soccer) controversy, 2015, and related: our series of 2006 posts about the arrest of traveling British executives on charges of remotely violating U.S. online gambling laws.

For more on the scope of white-collar crime laws, see my chapter on white-collar prosecution in last year’s Cato Handbook for Policymakers 8th Edition.

Property law roundup

  • Playlist: songs about eminent domain and takings, property law and the road [Robert H. Thomas, Inverse Condemnation]
  • In-depth look into problems that develop when title to land is held as “heirs’ property,” leaving a dangerous collective tangle in place of individual right and duty [David Slade and Angie Jackson, Post and Courier (Charleston, S.C.)]
  • Dispute over remains of two dinosaurs locked in combat 66 million years ago, lately unearthed in Garfield County, Mont. and extremely valuable, hinges on whether their fossils are “minerals”; Ninth Circuit says they are under Montana law [AP via Molly Brady (“property professor dream hypo”), Murray v. BEJ Minerals]
  • “Government Should Compensate Property Owners for Flood Damage It Facilitated” [Ilya Shapiro and Patrick Moran on Cato amicus petition for certiorari in St. Bernard Parish v. United States] “Texas Court Rules Deliberate Flooding of Private Property by State Government in Wake of Hurricane Harvey can be a Taking” [Ilya Somin]
  • Constituent-group politics continues to shape use of federal lands, to the detriment of its economic value [Gary Libecap, Regulation and related working paper]
  • Caution, satire: Facebook parody of super-intrusive, restrictive, and meddlesome HOA [East Mountain West View Home Owners Association]

Judge: First Amendment protects recording cops and officials performing public duties

“A federal court judge Monday ruled a Massachusetts General Law prohibiting the secret audio recording of police or government officials is unconstitutional. …In the 44-page decision [Judge Patti] Saris declared that ‘secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place and manner restrictions.'” [Noah Bombard, MassLive]

December 12 roundup

  • “Scott Gottlieb’s FDA Is Moving Toward a Stealth Ban on Cigarettes and Cigars” [Jacob Grier, Reason]
  • Supreme Court should take Melissa and Aaron Klein cake-refusal case from Oregon and resolve the issues of free expression it dodged in Masterpiece [Ilya Shapiro and Patrick Moran, ABA Journal, earlier on Melissa and Aaron Klein cake-refusal case including oppressive $135,000 fine levied by Oregon BOLI (Bureau of Labor and Industries)]
  • “Administrative Law Is Bunk. We Need a Bundesverwaltungsgericht” [Michael Greve, responses from Mike Rappaport, Philip Wallach, and Ilan Wurman, and rejoinder from Greve]
  • New York’s family court system is failing children and their families [Naomi Riley/City Journal, thanks for quote]
  • “The Emmys People Are Opposing A Pet Products Company Named After A Dog Named ‘Emmy'” [Tim Geigner, TechDirt]
  • Metaphor alert: “Lawmaker Injured by Flying Constitution” [Kevin Underhill, Lowering the Bar, and funny throughout]