Tag: hit&run

New Jersey Gov. Phil Murphy, a Democrat, is renewing his push to strengthen the already-strict guns laws in the state by raising the fees required to buy a firearm by 2,000 percent or more.

New Jersey residents already have to jump through a lot of hoops to buy a gun, though Murphy’s proposal would make the process considerably more expensive. As State Police Capt. Stephen Jones detailed to New Jersey 101.5 in 2016, it starts at the police department, where would-be gun owners must apply for a Firearms Purchaser Identification Card. It takes about a month or more for the police to run a background check on someone’s criminal and mental health history. (This check is in addition to the one required by federal law at the point of sale for people looking to purchase a firearm from a licensed dealer.) The New Jersey ID card itself currently costs $5, but Murphy wants to raise the price to $100.

Potential handgun buyers must go through an additional, separate process to obtain a handgun permit, which currently costs just $2. Under Murphy’s proposal, it would cost $50.

And what happens if you want to carry that handgun around? Well, good luck. It’s largely illegal to open carry a handgun (though not a legally owned rifle or shotgun). Carrying a concealed handgun is permitted, but New Jersey is a “may issue” state, meaning you have to prove that you have a good reason to carry. It costs $20 to obtain a concealed carry permit. If Murphy gets his way, that will rise to $400.

Right now, a New Jersey resident looking to buy a handgun for concealed carry purposes is looking at $27 (at least) in state fees. That would go up to $550 under Murphy’s proposal, an increase of more than 2,000 percent. His proposed 2020 state budget also calls for a 2.5 percent excise tax on gun sales, as well as a 10 percent ammunition tax, NJ.com reported last month.

“There’s no war on responsible gun owners,” the governor claimed to The New York Times recently. “We can support the efforts of the attorney general, state troopers, county and local law enforcement, to do the stuff we need to do: track crime, track gun violence, combat trafficking of illegal guns.”

Murphy specifically cited the $10 cost to obtain a dog license in Jersey City, comparing it to the $2 cost of a handgun purchase permit. “That is backwards and it must change and it will change,” Murphy said at a Rutgers University event on Tuesday.

It’s a curious argument, to be sure. Dog licenses have absolutely nothing to do with handgun purchase permits, and even if they did, lowering the cost to get a dog license is a better solution than making it even harder to buy a gun. New Jersey, after all, already has the second-strongest gun laws in the country, after California, according to the Giffords Law Center To Prevent Gun Violence.

Amazingly, Murphy’s own budget suggests that his proposal won’t help gun violence go down. “In 2018, roughly 80 percent of guns used in the commission of a crime came from out of state,” he notes in the budget. Making it more difficult to legally obtain a gun in-state, of course, will do nothing to lower this number.

“Most crime guns in the Northeast are thought to come from the ‘iron pipeline’ from the South, and then they’re sold on the street,” Daniel Feldman, a professor of public management at the John Jay College of Criminal Justice, told the Times.

Murphy wants to spend the new revenue on anti-gun violence initiatives. The various additional fees would raise about $9 million revenue, just a small fraction of his $38.6 billion proposed budget, which needs to be approved by the end of June.

It’s Murphy’s latest effort to make New Jersey’s gun laws even more strict. In November, he signed into law legislation banning “ghost” guns (i.e. homemade firearms, particularly 3D guns, that are made from untraceable parts).

As expected, Second Amendment advocates and gun store owners are not pleased with his proposal to raise fees.

“It’s specifically designed to deter people that can’t afford it or don’t have the time to go to the police department, take three [or] four days off of work, to be able to go apply, to go pick up the application,” New Jersey Second Amendment Society President Alexander Roubian tells WNBC.

“Anything that increases or puts a tax on law-abiding citizens that want nothing more than to be able to protect themselves is discriminatory and is specifically designed towards targeting low-income individuals,” Roubian, who’s threatening a lawsuit, adds to WNYW.

Mel Katz, who owns Defense Security in East Windsor, New Jersey, expressed similar concerns about the limited resources of many gun owners.

“The majority of the people who are buying firearms are blue-collar. It’s a hobby. They go hunting. They go target-shooting,” he told NorthJersey.com last month. “And it’s discretionary funds they use to support that hobby.”

“But if now they want to go out and buy a handgun for $400 or $500, and it’s going to cost them $100 just to get a permit to purchase,” Katz added.

Lisa Caso, the owner of Caso’s Gun-A-Rama in Jersey City was a bit more blunt. “I think what Murphy would want to happen,” she told the Times, “is for every gun shop in the state of New Jersey to just close.”

It is difficult to see what good would come out of Murphy’s proposal. Considering this is the same state that banned high-capacity magazines, only for very few citizens to actually turn over their illegal magazines once a federal appeals court allowed the ban to take effect, it’s not all that surprising. New Jersey politicians like to enact strict-sounding gun laws, but their effectiveness in actually lowering crime doesn’t seem to matter all that much.

Murphy’s proposal, meanwhile, faces an uphill battle in the state legislature. “We are the most progressive state in the nation when it comes to gun reform,” state Senator Stephen Sweeney (D–3) previously told NorthJersey.com. “And just to check a box to say you did something, I’m not sure that’s necessary.”

Citing sources in Trenton, New Jersey’s capital, WNBC’s Brian Thompson reported that Assembly Speaker Craig Coughlin (D–19) is “very skeptical” about the proposal as well.

An editorial regarding the proposal in the New Hampshire Union Leader may have characterized the plan best. “That will put the poor people in their place. No guns for you! The rich will still be able to afford weapons, of course. And since restrictive gun laws have never stopped criminals, they, too, will acquire them,” the editorial reads. “Utopia is near at hand.”

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As lieutenant governor, Gavin Newsom supported a 2017 bill increasing the state’s gas taxes. When running for governor in 2018, he opposed a ballot initiative that would have repealed that same increase. It’s 2019, and Newson, now the state’s governor, is demanding an investigation into why the state’s gas prices are so high.

On Tuesday, the governor sent a letter to the California Energy Commission (CEC) asking that the state agency investigate the Golden State’s roughly $4.03 per gallon gas prices, currently the highest in the country (and well above the national average of $2.86 per gallon).

“Independent analysis suggests that an unaccounted-for price differential exists in California’s gas prices and that this price differential may stem in part from inappropriate industry practices,” wrote Newsom in his letter to the CEC. “These are all important reasons for the Commission to help shed light on what’s going on in our gasoline market.”

Newsom is not alone in wanting answers to this difficult head-scratcher.

In January, 19 state legislators—17 of whom had voted in favor of that 2017 gas tax increase, while the other two had only entered office in 2018—sent a letter to State Attorney General Xavier Becerra demanding that the state’s Department of Justice (DOJ) investigate the “unexplained gasoline surcharge” that was estimated to cost Californian families $1,700 a year.

California currently imposes the second-highest gas taxes in the country. A state excise tax currently adds $.417 per gallon, a rate that will increase to $.473 come July. On top of that, the state imposes a 2.25 percent gasoline sales tax.

In addition, California has adopted a low-carbon fuel standard and a cap-and-trade scheme for carbon emissions which together increase the state’s gas prices by $.24 per gallon above the national average, according to a 2017 state government report.

That same report maintained that, even after all these state-imposed costs were tallied up, California’s gas prices remained above the national average, a finding that both those 19 state legislators and Newsom are using to justify their demands for an investigation.

Newsom, as mentioned, alleged there may be “inappropriate industry practices” at play.  State lawmakers, in their January letter, suggested the state’s retail gasoline market might lack “robust competition” leading motorists to pay more at the pump.

However, a lot of the higher, non-government-imposed prices Californians are paying currently could plausibly be chalked up to normal supply and demand.

Local media reports point to the twin effects of increasing demand and springtime maintenance at the state’s refineries as contributing to the price hikes.

The late March shutdown of a Valero refinery in the Bay Area added to the price hikes.  Something similar happened in 2015, when an explosion at the Torrance refinery in Los Angeles County caused the facility, then responsible for refining 10 percent of the state’s gas, to close for over a year.

Prior to that 2015 explosion, California’s “gasoline price premium tracked closely with our higher taxes and production costs,” wrote Severin Borenstein, a professor at University of California, Berkeley’s Haas School of Business in a blog post.

After the Torrance explosion, prices spiked, and then slowly began coming down over the next year, although they to this day remain higher than they were prior to that incident.

Industry representatives maintain that any difference in the state’s gas prices can be explained by normal market forces, and of course all those taxes and regulations.

“The petroleum industry on the West Coast has been subject to dozens of independent investigations by government agencies, all of which concluded the dynamics of supply and demand are responsible for movements in the price of gasoline and diesel fuel,” said Kevin Slagle, a spokesperson for the Western States Petroleum Association (WSPA), in a statement, adding that “state programs, such as cap-and-trade and the Low Carbon Fuel Standard, impact fluctuations in energy markets.”

It should be pointed out too that high levels of taxation and regulation and a lack of competition in the state’s fuel sector are not mutually exclusive explanations.  Government fees and red tape often have the effect of squeezing out marginal producers and retailers, giving remaining firms greater ability to raise prices.

And regardless of any “mystery premium” on California gas, the fact remains that state government polices are a huge component of the final price everyone is paying at the pump.

Indeed, in the case of the state’s cap-and-trade scheme—where the state caps the amount of allowable carbon emissions, and then auctions off emission credits—the explicit purpose is to raise the cost of emitting carbon, and thus burning gasoline.

Absent these policies, the state’s gas prices would be lower.

Clearly, for many of California’s politicians, the benefits of state policies aimed at producing cleaner air quality, mitigating climate change, and generating more revenue for road maintenance and light rail expansions surpass the costs of higher gas prices.

If that’s the case, however, Newsom and others should make that case to voters directly and explicitly instead of trying to appease motorists’ anger by pointing their fingers at industry.

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[I’m continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.]

So far, I have argued that the First Amendment does not preclude properly crafted anti-libel injunctions, in part because they are similar to constitutionally valid properly crafted criminal libel laws.

But should courts essentially recreate such mini-criminal-libel laws in states that have repealed their criminal libel laws?[1] Or would that improperly contradict the legislature’s judgment embodied in that repeal?

When the California Legislature, for instance, repealed its criminal slander law, it specifically said, “the Legislature finds and declares that every person has the right to speak out, to poke fun, and to stir up controversy without fear of criminal prosecution.” It likely had much the same motivation for repealing its criminal libel law five years before. Likewise, in the words of the Model Penal Code drafters, who called for decriminalizing libel, “penal sanctions cannot be justified merely by the fact that defamation is evil or damaging to a person in ways that entitle him to maintain a civil suit.” And the New Jersey Supreme Court relied on this in refusing to read the state’s criminal harassment statute as punishing defamation:

At the time the Legislature passed the New Jersey Code of Criminal Justice [which was based on the Model Penal Code], it repealed New Jersey’s last criminal libel statute. In doing so, the Legislature signaled that the criminal law would not be used as a weapon against defamatory remarks, thereby aligning our new criminal code with the Model Penal Code.

It makes sense for courts to likewise look to legislative judgment in deciding whether criminal contempt law should “be used as a weapon against criminal remarks,” would limit people’s “right to speak out, to poke fun, and to stir up controversy without fear of criminal prosecution,” and should lead to “penal sanctions” for “defamation.”

To offer an analogy: Say that a state legislature repeals the state’s criminal adultery statute (as most states have), but the state courts continue to recognize the tort of “alienation of affections,” under which a spouse can sue the other spouse’s lover.[2] And say that a plaintiff in a criminal conversation case not only seeks damages against the defendant, but an injunction ordering the defendant not to have sex with the plaintiff’s spouse. A court should be reluctant, I think, to issue such an injunction—an injunction that would threaten to punish the lover with criminal contempt for any continued adultery—when the legislature has generally concluded that adultery should not be criminally punished.

And indeed courts sometimes do take the view that “judicial application of equity-rooted remedies should be informed by—and, sometimes, altered significantly in deference to—the legislative policy judgments reflected in intervening statutory enactments, even where the statutes themselves would not directly reach the subject matter of the dispute before the court.” Texas courts, for instance, have so reasoned in refusing to authorize certain kinds of pre-suit depositions in libel, certain awards of prejudgment interest, and certain kinds of piercing of the corporate veil. In all those cases, courts looked closely at legislative judgments reflected in statutes that deal with similar questions, and tried to avoid judicial innovations that would conflict with those judgments.

Likewise, many courts have limited the equitable laches defense in light of a legislatively enacted statute of limitations, on the grounds that, “[t]o import laches as a defense to actions at law would pit the legislative value judgment embodied in a statute of limitations . . . against the equitable determinations of individual judges,” and thus “would alter the balance of power between legislatures and courts regarding the timeliness of claims.” Conversely, where a legislature has expressly authorized some tolling of statute of limitations, courts can rely on that legislative judgment in interpreting their own equitable principles: “[A] legislative policy judgment may be properly considered in determining the application of a common law [i.e., ‘judge-made’] doctrine such as equitable tolling.”

Indeed, some court opinions rejecting “obey-the-law” injunctions seem to reflect this concern with subjecting “defendants to contempt rather than the statutorily prescribed sanctions.” Congress, for instance, deliberately made employment discrimination, even repeated employment discrimination, a tort, not a crime. Enjoining a particular employer from engaging in discrimination would make such discrimination into contempt of court, courts stress. The courts generally don’t explain just why “subject[ing] the defendants to contempt proceedings” in such cases is wrong. But the reason may be that such proceedings would interfere with the legislative judgment to keep the criminal law out of employment discrimination cases.

Of course, a court that is open to considering legislative judgments when deciding whether to create an innovative remedy must answer the question: Just what judgment did the legislature make when repealing a criminal libel statute, beyond the necessary judgment that there ought not be such a statute?

Perhaps the legislature took the view that false and defamatory statements don’t merit criminal punishment; as I noted above, that seemed to be the view endorsed by the California Legislature (at least as to spoken words) and by the drafters of the Model Penal Code. If so, then this suggests that anti-libel injunctions, enforceable by punishment for criminal contempt, should likewise be rejected.[3]

But perhaps the legislature took the view that criminal libel law is too likely to chill a broad range of speech, because speakers know that they can be punished for any factual allegation, even one they think is accurate (so long as the jury errs, as juries might, about the speaker’s mens rea). If so, then that suggests that catchall injunctions, which likewise ban all knowing falsehoods about a particular person, should be rejected—but perhaps specific injunctions, which warn speakers away from specific claims that courts have already found to be false, might be permissible.

Or perhaps the legislature thought that people shouldn’t be imprisoned just for an isolated lie about someone, even a damaging lie, because such lies are so common—but the legislators might not have been contemplating what should be done about sustained campaigns of defamation. This would suggest that both catchall injunctions and specific injunctions, which are aimed at preventing such repeated defamation, would be consistent with that legislative judgment.

And, finally, perhaps the legislature lacked any widely shared judgment at all about the subject, other than that the criminal libel statute ought to be repealed. Maybe some legislators thought one thing, some thought another, and some simply voted for the repeal because it was part of a legislative package that gave them something else the wanted.[4]

Still, so long as courts take the view that judge-made principles should be developed in light of legislative decisions (rather than just that such principles shouldn’t outright violate express legislative commands), courts will have to infer something about the underlying legislative judgment. Perhaps the courts might err in their reading of what judgment the legislature made, but then the legislature can correct them. (A legislature can of course expressly forbid anti-libel injunctions; and, if my analysis in Part V is right, then it can expressly permit them.) In the meantime, if courts believe that the legislature has expressly rejected criminal punishments for libels, they shouldn’t recreate those criminal punishments through the route of injunctions and criminal contempt.

 

[1] See, e.g., 1978 Alaska Sess. Laws 118-19; 2005 Ark. Acts 7469-72, § 512; 1986 Cal. Stat. 311; 2012 Colo. Sess. Laws 391-92; 2015 Ga. Laws 390, Act 70 § 3-1; 1976 Iowa Acts ch. 1245, ch. 4 § 526; 2002 Md. Laws 686; 1978 N.J.L. ch. 95, § 2C:98-2; 1985 Or. Laws 759; Commonwealth v. Mason, 322 A.2d 357, 359 (1974) (Jones, C.J., concurring and dissenting) (noting that the Pennsylvania criminal libel law was repealed by 1972 Pa. Laws 1611, Act No. 334); 1998 R.I. Pub. Laws 324-25; 2009 Wash. Sess. Laws 597-98.

[2] The alienation of affections tort remains commonly used in North Carolina (with over 200 filings per year, and with the pattern in appellate cases suggesting that the filings are evenly split among men and women), and continues to exist in several other states. See Data from N.C. Administrative Office of Courts, 2000–08; Eugene Volokh, Alienation of Affections—Still Alive, Volokh Conspiracy, July 28, 2009, http://bit.ly/2ITTVDo. The alienation of affections tort can theoretically cover nonsexual behavior as well as adultery; to be precise, the criminal conversation tort is the one that focuses just on sex. But in the few jurisdictions where at least one of the torts survives—including in North Carolina, where the alienation tort seem to thrive—most such adultery-based cases are brought as alienation of affections cases.

[3] Of course, if the legislature’s judgment repealing criminal libel law had been made in a legal regime where injunctions were commonplace, one could have inferred that the legislators were leaving the possibility of criminally enforceable prohibitions on libel to the discretion of judges in civil cases. Say, for instance, that the legislature criminalizes nuisances and then repeals that criminal ban. In a system where injunctions against nuisance are routine, we shouldn’t infer that the legislature meant to preempt these traditionally accepted injunctions.

But when most criminal libel laws were repealed by various states, the conventional wisdom was that courts would not be enjoining libel. The legislature thus couldn’t reasonably be presumed to be preserving such a remedy. And the decision to repeal the criminal libel statute should be seen as barring “obey the [tort] law” injunctions that have the effect of reinstituting criminal libel law for the defendant (at least when the defendant is speaking about the plaintiff).

[4] Compare the statutory construction literature arguing that legislative intent ought not guide statutory interpretation because such intent generally can’t be determined. See, e.g., Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983); John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 18–21 (2001); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517.

[You might also read my earlier posts on the subject,

• Anti-Libel Injunctions and the Criminal Libel Connection
• The First Amendment and Criminal Libel Law
• The First Amendment and the Catchall Permanent Injunction
• The First Amendment and the Specific Preliminary Injunction
• How Specific Anti-Libel Injunctions Underprotect Speech
• The First Amendment and the Hybrid Permanent Injunction
• Restricting Injunctions to Libels on Matters of Private Concern?
• The Limited Role of Mens Rea in Hybrid Anti-Libel Injunctions
• The First Amendment and the Hybrid Preliminary Injunction
• Beyond the First Amendment: Anti-Libel Injunctions and Prosecutorial Discretion

Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]

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The Department of Justice has been dismissing child pornography cases in order to not reveal information about the software programs used as the basis for the charges.

An array of cases suggest serious problems with the tech tools used by federal authorities. But the private entities who developed these tools won’t submit them for independent inspection or hand over hardly any information about how they work, their error rates, or other critical information. As a result, potentially innocent people are being smeared as pedophiles and prosecuted as child porn collectors, while potentially guilty people are going free so these companies can protect “trade secrets.”

The situation suggests some of the many problems that can arise around public-private partnerships in catching criminals and the secretive digital surveillance software that it entails (software that’s being employed for far more than catching child predators).

With the child pornography cases, “the defendants are hardly the most sympathetic,” notes Tim Cushing at Techdirt. Yet that’s all the more reason why the government’s antics here are disturbing. Either the feds initially brought bad cases against people whom they just didn’t think would fight back, or they’re willing to let bad behavior go rather than face some public scrutiny.

An extensive investigation by ProPublica “found more than a dozen cases since 2011 that were dismissed either because of challenges to the software’s findings, or the refusal by the government or the maker to share the computer programs with defense attorneys, or both,” writes Jack Gillum. Many more cases raised issues with the software as a defense.

“Defense attorneys have long complained that the government’s secrecy claims may hamstring suspects seeking to prove that the software wrongly identified them,” notes Gillum. “But the growing success of their counterattack is also raising concerns that, by questioning the software used by investigators, some who trade in child pornography can avoid punishment.”

Courts have sought to overcome concerns that scrutiny would diminish the effectiveness of the software for law enforcement or infringe on intellectual property rights by ordering only secret and monitored third-party review processes. But federal prosecutors have rejected even these compromises, drawing worry that it’s not legitimate concerns driving their secrecy but a lack of confidence in the software’s efficacy or some other more nefarious reason.

Human Rights Watch (HRW) has raised questions about how much data (not just on defendants but on all Americans) these programs have been accessing and storing.

In February, HRW sent a letter to Justice Department officials expressing concerns about one such program, called the Child Protection System (CPS). TLO, the company behind the CPS system, has intervened in court cases to prevent disclosure of more information about the program or independent testing of it.

“Since the system is designed to flag people as suspected of having committed crimes, both its error rates and its potential to exceed constitutional bounds have implications for rights,” HRW states. Yet “it is unclear what information the Justice Department has about CPS’ potential for error (and on what basis).”

Prosecutors say they can’t share any details about it “because it is proprietary and not in the government’s possession,” notes HRW, which since 2016 has been researching cases involving the CPS system. “We fear that the government may be shielding its methods from scrutiny by relying on its arrangements with the non-profit,” states HRW. (Read more here.)

Another tool used in these cases, Torrential Downpour, was developed by the University of Massachusetts. The school has been fighting against the release of more information about Torrential Downpour, too. But defendants’ lawyers say it’s necessary after the program alerted authorities about alleged child porn on computers that couldn’t actually be found  anywhere on the physical devices.

“An examination of the software being used to build cases should be allowed, but the entities behind the software won’t allow it and the government is cutting defendants loose rather than giving them a chance to properly defend themselves against these very serious charges,” writes Cushing. “I supposed it ultimately works out for defendants, but it only encourages the government to tip the scales in its favor again when the next prosecution rolls around with the hopes the next defender of the accused isn’t quite as zealous”

Plus, if these defendants really are innocent, than the government has publicly and falsely smeared them as sickos and then balked at allowing them a true opportunity to clear their names.

“These defendants are not very popular, but a dangerous precedent is a dangerous precedent that affects everyone,” HRW’s Sarah St.Vincent told ProPublica. “And if the government drops cases or some charges to avoid scrutiny of the software, that could prevent victims from getting justice consistently. The government is effectively asserting sweeping surveillance powers but is then hiding from the courts what the software did and how it worked.”

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“If I weren’t in the class and I saw some of these speakers or people of certain stances walking around, I may feel uncomfortable,” she said. “But I think the way we do it in poli-rad is a very safe environment.”

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Twenty years ago, California’s pension system was riding high.

Investment earnings had averaged more than 10 percent annually for a decade, and most of the funds within the California Public Employees Retirement System (CalPERS) were running a surplus—meaning the funds had more than 100 percent of the assets needed to meet the projected liabilities as current workers retired. Lulled into a false sense of retirement security, state policymakers made the fateful decision to pass a law boosting pension payouts to public employees.

Supposedly, it would all be paid for by the ongoing, never-ending boom of the stock market. In an analysis provided to the state legislature at the time, CalPERS promised the new pension law would not cost “a dime of additional taxpayer money.” A separate analysis conducted by the legislature itself found that taxpayers’ contributions to the CalPERS system would “remain below the 1998-99 fiscal year ($766 million) for at least the next decade.” said the Assembly floor analysis of SB 400.

The funny thing about pension systems, though, is that the liabilities created today—that is, the promises made to current workers—don’t really become a problem for a few decades, until those workers retire.

Which is why, in California’s case, looking just 10 years into the future proved to be woefully myopic. Two decades later, the surplus is long gone and CalPERS is facing a $138 billion shortfall (that’s according to the system’s own rather sunny accounting; the actual total is likely higher).

But those higher pensions promised in 1999 must still be paid—and as a result, the number of retired California public employees getting six-figure annual pensions has doubled in just six years.

According to newly released data from Transparent California, a project of the Nevada Policy Research Institute, a free market think tank, the CalPERS system issued 30,969 pensions checks in 2018 that were worth $100,000 or more on an annualized basis—up from about 14,600 six-figure payouts in 2012. Of the $23 billion in pension benefits paid out by the CalPERS system last year, 17 percent went to the members of the state’s six-figure pension club.

California’s teacher pension system—the California State Teachers’ Retirement System (CalSTRS)—has seen a similarly sharp increase in six-figure pensions as teachers affected by the 1999 pension boost legislation have started heading into retirement. In 2018, CalSTRS handed out 15,559 pension checks worth $100,000 or more, up from just 6,033 six-figure pensions in 2011, according to Transparent California’s data.

Because of how public pension systems work, the new liabilities created by that 1999 pension boost will be haunting California’s state, local, and school budgets for decades to come. In fact, the worst has yet to arrive. According to a 2017 report from the Stanford Institute for Economic Policy Research, the state will have to spend $19 billion on the CalPERS and CalSTRS pension plans in 2030—up from about $9 billion this year. Those increasing costs, the Stanford report says, cannot be covered without significant cuts to existing government programs.

Because some education spending is fixed under California’s Prop 98 rules and public safety funding cannot be cut under other state rules, the state will likely have to slash spending on pretty much everything else—parks, social programs, housing subsidies—so it can continue cutting six-figure checks to a few thousand of its 40 million residents.

Contra what CalPERS said two decades ago, paying for all those lush retirement benefits is going to cost Californians a whole lot of dimes.

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Emily Oster is the parenting guru nerds have been waiting for. In her previous book, Expecting Better, Oster blew up the conventional wisdom around pregnancy using her training as an economist to dig into the academic literature on questions about what pregnant women can safely eat and drink, along with a variety of other hot-button topics. She was hailed (and occasionally vilified) for her finding that the occasional glass of wine or order of sushi did not pose a mortal danger to most uterus-dwellers.

In her new book, Cribsheet, the Brown University economist examines the evidence on best practices for babies and toddlers. Her advice for parents of the 0–3 crowd on breastfeeding, swaddling, toddler discipline, and more offers the same level of data-driven chill her fans have grown to expect.

In a wide-ranging podcast with Editor in Chief Katherine Mangu-Ward, Oster explains how to tell a good study from a bad one and why she thinks it’s important to help people make the best decisions for their families rather than assume there’s a single right answer.

As a bonus, she also breaks down that much-publicized study about eggs and offers some reassuring evidence that it’s OK to keep having those omelets for breakfast, no matter what you might have heard.

Subscribe, rate, and review our podcast at iTunes.

 

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The Department of Justice recently raised some eyebrows by announcing that it wouldn’t appeal a ruling striking down 18 USC § 116, the federal ban on female genital mutilation (FGM). The Solicitor General’s explanatory letter “condemns this practice in the strongest possible terms.” But it also argues that the FGM ban lacks a sufficient connection to Congress’s powers under the Constitution, and it suggests that Congress enact a new ban with a clear jurisdictional nexus—for example, forbidding conduct that takes place within D.C. or federal territories, or conduct using the channels and instrumentalities of interstate commerce.

This is a perennial problem for Congress, which often writes broad legislation without too much attention to the limits on its powers. So maybe Congress should supply a nexus, not just for the FGM statute, but for every statute at once.

Imagine a Jurisdictional Nexus Act, added to Title 1, Chapter 2 of the U.S. Code, that says something like the following:

Sec. 115. Jurisdictional Nexus

A criminal offense established by act of Congress that would otherwise exceed the powers of Congress in at least one of its applications shall be construed, with respect to such applications, to extend only to offenses committed by means of at least one act or omission of any person—

(a) within the District of Columbia, any territory or possession of the United States, or the special maritime and territorial jurisdiction of the United States;

(b) involving the use of a means, channel, facility, or instrumentality of, or occurring in or otherwise affecting, interstate or foreign commerce; or

(c) who is, or to the injury of a person who is, protected under Sections 351, 1114, or 1751 of Title 18 [e.g., federal officers and employees, including the uniformed services—ed.].

This is a back-of-the-napkin version, but a real statute like this would have several advantages:

1. As a background rule of construction, along with much of the rest of Title 1, the statute can do its job even when a future Congress forgets about it. Like other legal rules of interpretation—RFRA, the Dictionary Act, the general savings statute (1 U.S.C. § 109), and so on—it silently amends past statutes and changes the effect of future ones, until a future Congress indicates otherwise. So Congress can keep on passing bills in general terms, without putting quite so much pressure on the courts to uphold them (or else to let bad actors go free).

2. The statute would only matter for offenses that fail for lack of constitutional power, not offenses that directly abridge constitutional rights. The key language here is the word “otherwise.” A law banning Methodism might exceed the powers of Congress (“Congress shall make no law…”), but limiting it to Methodists in D.C. and the territories wouldn’t help. The offense wouldn’t “otherwise exceed” those powers, as compared to a world with the Nexus Act in place. So the Nexus Act would leave the Methodism law to fail on its own.

3. The statute would leave constitutional applications of existing statutes alone. Suppose that a statute can be applied in fifty-three ways, fifty of which are constitutionally fine, but three of which would exceed the powers of Congress. Using the Nexus Act to limit the whole statute would be inappropriate, especially because some of those fifty ways might be justified by other powers not listed above (the patent power, the counterfeiting power, etc.). Instead, the Act deals specifically with a statute’s otherwise-unconstitutional applications. It offers a rule of construction only “with respect to such applications,” so we don’t have to spend much time thinking about the constitutional ones.

4. Although the statute might have the effect of expanding the reach of the criminal law (preserving offenses that would otherwise be struck down), it doesn’t actually criminalize more conduct than Congress intended to reach. The statute acts only by limiting the scope of a criminal law, providing that the government can secure certain convictions only if it goes on to prove various additional elements. So it helps achieve Congress’s goals, while also fitting well with a preference for lenity.

5. When the constitutional issues are murky, a statute like this still offers an easy procedural means of satisfying its requirements. Suppose we’re not sure whether a given prosecution under a given statute is constitutional. If it is, everything proceeds as normal. If it isn’t, the Nexus Act applies, and additional elements are needed. So whenever the government expects a constitutional challenge, it can simply draft the indictment to include one of the listed elements (which usually aren’t very hard to prove).

This would have the effect of curing any error based on the absence of congressional power. When the court draws up the jury instructions, the defendant would have a choice: (1) to insist on the jury’s finding that the nexus exists, or (2) to waive the issue by asking for the instructions to leave the nexus out. In the first case, if the jury convicts, we don’t need to decide whether a nexus-less prosecution could have succeeded on its own; the government will already have proved any additional facts it might need. And in the latter case, the defendant would hardly be heard to complain of a constitutional violation, having just won a ruling that the charged conduct was constitutionally punishable as written and that no additional elements needed to be proved. Only if the government couldn’t prove the additional nexus—or didn’t want to try—would we have to consider the hard constitutional questions.

6. By setting out a list of individual jurisdictional hooks, instead of relying on all of Congress’s powers all at once, the statute avoids a potential vagueness challenge. By contrast, imagine a “Minimal Nexus Act”:

Any criminal statute that violates the Constitution shall be narrowly construed until it doesn’t.

Defendants faced with a general statute like that would be entirely in the dark as to what portions of their conduct were actually criminal, or what power might some day be pulled out of a hat to justify their prosecution. (The Treaty Clause? The Twenty-Sixth Amendment enforcement power?) Instead, the grounds listed above cover a very large proportion of the categories the federal government would actually want to go after, without leaving us guessing about the scope of our criminal code.

7. For the same reasons, the statute avoids what might otherwise be a complex severability analysis. To use an example that Will Baude and I have batted around, suppose that Congress just chose to ban shoes, giving no jurisdictional nexus or even any explanation. (“It is hereby unlawful to possess shoes.”) Assuming that the statute is severable, how exactly would you sever it? Does it apply to shoes moving in interstate commerce or through the U.S. mails, shoes worn on military bases or post offices or national parks, shoes possessed by federal officers or employees or contractors or by members of the unorganized militia or by 501(c)(3) nonprofits or by persons applying for Medicare reimbursements or federal research funds or federally guaranteed student loans…?

This might have been one reason why the Court in Lopez just struck down the relevant provision of the Gun-Free School Zones Act instead of searching, Salerno-like, for some grounds on which it might have been constitutionally applied. (For example, on the “self-insurance” argument well-beloved of the ACA’s defenders, perhaps Lopez was engaged in the self-provision of security services, for which he might alternatively have contracted on the interstate market.) As Scott Keller and Misha Tseytlin have discussed, the Court hasn’t always been clear about when it will allow a facial challenge—or when it thinks an as-applied challenge is required, with other applications of the statute to be preserved. The Nexus Act does some of this work for us, providing a safe harbor for certain applications even after a successful constitutional challenge to others.

8. Finally, a Nexus Act would allow for focused debate on the scope of Congress’s powers and the appropriate range of federal criminal law. For those who take, say, a somewhat narrower view of the Commerce Power, one problem in implementing this view is the sheer number of statutes that might need to be revised if it were correct. Having a Nexus Act in place would allow those statutes to “fail gracefully,” diminishing the legal turmoil from the courts’ adopting a different view.

A Nexus Act would also help members of Congress to act without waiting for the courts to go first. If Congress thinks that a criminal offense exceeds its lawful powers, it can always repeal or amend it. But instead of having to dig through the code and amend thousands of statutes piecemeal, members of Congress could simply amend the Nexus Act, which would automatically narrow the scope of a variety of statutes. And in debating over the Nexus Act, they might have to articulate their views of the Constitution—which, one might think, is already part of their job.

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A new criminal justice reform push is building in Congress. The Clean Slate Act would help diminish the destructive power of previous drug convictions, automatically sealing records of simple marijuana possession charges. It would also let people with other sorts of nonviolent offense convictions on their records petition to have those sealed, too.

A bipartisan measure (which doesn’t spell disaster for a change), the bill comes from U.S. Reps. Lisa Blunt Rochester (D–Del.) and Guy Reschenthaler (R–Pa.). “I’ve seen so many stories of people who, because of a minor offense, it has stuck with them for the rest of their lives,” Blunt Rochester told Politico.

“We are still in the early stages for this bill, but I believe the prospects are good for strong, bipartisan support, especially given the White House’s continued push for criminal justice reform,” said Reschenthaler in a statement.

The bill (H.R. 2348) says that “at the time of sentencing of a covered individual”—covered individuals being anyone convicted of a federal, nonviolent possession offense involving marijuana—“the court shall enter an order that each record and portion thereof that relates to the offense shall be sealed automatically on the date that is one year after the covered individual fulfills each requirement of the sentence, except that such record shall not be sealed if the individual has been convicted of a subsequent criminal offense.”Additionally:

Sixty days after the date on which a covered individual is acquitted, exonerated, or otherwise subject to a judgment which did not result in a conviction for a Federal offense, each record or portion thereof that relates to the Federal offense shall be sealed automatically.

You can read the whole thing here.

“People have paid their debt, they just need a slate that’s clean so that they can go to work, so that they can get a home, so that they can go to college,” Blunt Rochester told Delaware’s NPR station. “But around the country, we need to do this in every state as well.”

Right- and left-leaning groups back the bill. “Both the Center for American Progress on the left as well as the American Conservative Union Foundation and the Koch-brothers-backed FreedomWorks have endorsed the new bill,” notes Marijuana Moment.

Sen. Bob Casey (D–Pa.) will reportedly file a companion bill in the Senate.

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FREE MARKETS

Freer marijuana markets not a voter priority. “A majority of Americans support legalizing cannabis, but a recent CBS News poll found the issue may not have have much sway from voters,” CBS reports.

According to the poll, 65 percent of Americans think marijuana should be legal, but 56 percent said the issue wouldn’t sway their vote for a candidate across party lines.

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FOLLOW UP

Massage parlor worker arrested. Another woman has been arrested for prostitution in conjunction with January video surveillance at a Palm Beach County, Florida, massage parlor and the arrest of workers, managers, and customers there. The woman’s identity and alleged activities have been known by police since raids and arrests in February. But police documents suggest they were trying to get her to cooperate as a “victim” and testify in the human trafficking case they were trying to build.

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FOLLOWUP

The question isn’t “should this particular terrible criminal get to vote?”

It’s “should the party in power be able to reshape the electorate to its advantage with criminal laws that target their opposition’s voters en masse?”

— Jacob T. Levy (@jtlevy) April 24, 2019

“I’m a prosecutor,” says Harris. After telling a televised town hall audience Monday that we should “have a conversation” about voting rights for the incarcerated, senator and presidential candidate Kamala Harris amended her answer on Tuesday. “Do I think that people who commit murder, people who are terrorists should be deprived of their rights?” asked Harris, answering her question:

Yeah, I do. I’m a prosecutor. There has to be serious consequences for the most extreme types of crimes.

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QUICK HITS

• During a White House meeting Tuesday with Twitter CEO Jack Dorsey, the president “spent an inordinate amount of time complaining about lost Twitter followers, according to a source familiar with the conversation.”
• Axios has a good guide to upcoming Supreme Court cases.
• Panic about “Internet Addiction Disorder” threatens free speech, writes surgeon and Cato Institute fellow Jeffrey Singer.
• California may ban mini-shampoo bottles in hotels.
• Kohl’s department stores nationwide are going to start accepting Amazon returns.
• Marijuana paradox: “The arrival of corporate giants and K Street firms represents a tipping point for the mainstreaming of marijuana legalization in Washington, even while marijuana remains illegal at the federal level.”
• Jesse Singal on “the near meltdown” of Roxane Gay and Christina Hoff Sommers’s #Feminist mini-tour in Australia.
• “Following the Trend, Kamala Harris promises to be a tyrant if elected,” quips National Review about Harris’ Tuesday night comments on CNN.
• Listen: “The 26 Words that ‘Created the Internet’—and Why They May Be on the Chopping Block.”

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Tanveer Basith and Abuzaffer Basith were married in India in 1979. In September 2017, Tanveer sought a divorce, in Illinois court; she says that the parties are Illinois residents. (All the facts and quotes here are drawn from In re Marriage of Basith, decided last week.)

Abuzaffer moved to dismiss the divorce petition, “assert[ing] that the parties’ marriage had already been dissolved in India on May 10, 2017, and that Tanveer had accepted a financial settlement of … about $447. Because she had accepted the financial settlement, Abuzaffer argued that Tanveer’s action was barred by res judicata.” Tanveer responded, “assert[ing] that she was never properly served with notice of the petition for dissolution filed in India, nor did she consent to the entry of that judgment.”

… Abuzaffer filed a reply. He asserted that Tanveer had requested a divorce. Therefore, pursuant to their culture and religion, he went to India in order to grant her request and obtain a divorce.

Abuzaffer further stated that as he and Tanveer were pious Muslims, his actions complied with sharia law that governs aspects of Islamic life for pious Muslims. As the trial court had the right to consider sharia law, Abuzaffer requested that the Indian divorce decree be upheld and Tanveer’s action be dismissed….

Abuzaffer’s attorney acknowledged that Tanveer “didn’t have formal notice that we talk about in our country [i.e., the United States]” regarding the dissolution proceedings in India. Nonetheless, Abuzaffer’s attorney argued that Tanveer’s petition should be dismissed anyway. The trial court [Lake County Judge Raymond D. Collins] agreed and dismissed Tanveer’s petition. The trial court made the following comments that reflected its reasoning:

“Well, when they were married in India, are there certain restrictions and guidelines that they need to follow? That’s what I don’t know. If [and] when they get married there, the marriage is valid if they follow certain rules, and I’m assuming they’re religious about getting divorced, then they would have jurisdiction, if she accepted the jurisdiction of the country when they got married there….

“But my question is, when they got married in India, there were certain things that they signed and agreed to when it comes to getting divorced. And, again, I’m assuming that’s religious in nature that they have to agree to, then they would have jurisdiction. So because it’s inequitable, that’s not a reason to dismiss it….

“[T]hey were following strict Muslim religion when they got married and he was following it when they got divorced[.]

“Well, it may be egregious in that the disposition of property may not have been equitable, but I don’t think I have any choice but to dismiss under 2-619 [presumably the part providing that a case should be dismissed if “the cause of action is barred by a prior judgment”-EV].”

The Appellate Court reversed:

Comity has been defined as the “recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws.” Under the doctrine of comity, Illinois courts may choose to recognize orders issued by foreign courts, although recognition may be withheld where the foreign court lacked jurisdiction over the cause and the parties….

Here, the trial court abused its discretion in granting comity to the Indian divorce decree. This was because Tanveer was never afforded the opportunity to appear, present her case, and be heard before the Indian tribunal. Thus, that tribunal never obtained personal jurisdiction over her.

Moreover, the trial court’s decision constituted an abuse of discretion because the Indian tribunal’s decision violated the laws and public policy of this state. The Illinois Marriage and Dissolution of Marriage Act provides that marital property must be divided in “just proportions” considering all relevant factors. The Act also provides that maintenance should be awarded if it is just and equitable. Here, the Indian tribunal awarded all of the marital assets to Abuzaffer except for approximately $447 that it awarded Tanveer. The Indian tribunal also did not award Tanveer any maintenance despite Tanveer earning substantially less than Abuzaffer during the parties’ more than 37 years of marriage. As the Indian tribunal’s decision was inconsistent with Illinois concepts of fairness and equity, the trial court should not have granted it comity….

Finally, we note that we find the trial court’s ruling troubling. The trial court’s comments reflect that, in dismissing Tanveer’s petition, it did not consider American law and fundamental precepts of due process such as the right to notice and the right to defend one’s interests. Rather, the trial court’s reasoning indicates that its decision was based on what it assumed the law was in India for pious Muslims…. We therefore strongly encourage the trial court to be more cognizant of the parties’ fundamental rights and controlling case law before dismissing an action….

Sounds right to me; for more on this general topic, see Religious Law (Especially Islamic Law) in American Courts and Foreign Law in American Courts. Note also that under American law a divorce must be obtained in the jurisdiction in which the parties are domiciled, rather than in the jurisdiction where the parties were married (often decades ago).

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