Roundup

by Ted on June 29, 2005

If I had all the time in the world, I’d have more to say about these links that I’ve been sleeping on:

– Phil Carter, lawyer, journalist, and soldier, is pretty much universally admired for his thoughtfulness, intelligence and insight. He’s being called to Iraq, and I’d like to join the chorus extending our gratitude and best wishes to him and his loved ones.

– Scott Lemieux of Lawyers, Guns and Money makes a good argument here, saying that the majority decision in Kelo was a reasonable application of precedent and judicial restraint:

I am sympathetic to the defendants, who were forced to sell their property for what seems to me like a boondoggle, and I understand what O’Connor means when she suggests that “for public use” might as well be deleted from the Fifth Amendment. But once the courts start making determinations about what constitutes the “public interest,” the Court becomes an all-purpose economic regulator, and history makes it quite clear that this is a state of affairs that is not good for democracy or for progressive interests in the long run.

Having said that, I can’t shake the feeling that the law is an ass. Radley Balko collects a group (and another group) of towns all over the country that are poised to use eminent domain to transfer land to private developers (after paying for it, of course). Liberals ought to understand that local governments have always been tempted to give preferential treatment to developers, who can concentrate favors and influence more powerfully than any group of homeowners and small businesses. The courts are designed to be largely insulated from that kind of influence, and it’s rather disheartening that the courts seem to be resigned to get out of the way.

Scott’s a law professor[1] and I’m an occasional Law and Order watcher, so he’s probably right about the Court decision. However, if the Supreme Court is showing deference to the state courts, and they’re showing deference to the local legislatures, and they’re showing deference to Rapacious Development LLC, you can see the problem. I don’t think that it will happen, but I’d be awfully happy if the Dems seized upon narrowing the definition of “compelling public interest” as a campaign issue before the Republicans do. I suspect that it’s a powerful one.

– I’m getting annoyed at the references to the supposed mass hysteria caused by Orson Welles’ 1938 War of the Worlds radio teleplay. It didn’t happen. If the link doesn’t convince, my Grandma remembers 1938 just fine. She told me that there was no hysteria, and she’s never been wrong about anything.

– Were annual military deaths actually higher during the Clinton years? Sadly, no. However, if you parse your words just right, you can leave that impression without technically lying. Watch for this in the Wall Street Journal editorial page and Hugh Hewitt soon.

– I had long believed that the environmental movement had successfully agitated for a DDT ban that led to widespread malaria deaths. But Tim Lambert has convinced me that I was wrong.

– Randy Paul has a helpful suggestion about Amnesty International.

Cooking for Engineers is just what it sounds like: a geeky cooking enthusiast with lots of product tests, food science and recipes. I haven’t tried any of them yet, but I’m enjoying reading it.

– I didn’t see anyone mention that this summer saw what I believe is the first major motion picture with a blogger as a character. In the apparently-unwatchable The Perfect Man, Hillary Duff plays a teenage blogger (loosely inspired by CT’s own Daniel Davies). One small step, and all that.

[1] Entirely my mistake; he’s a political science professor.

{ 26 comments }

1

SamChevre 06.29.05 at 3:07 pm

Scott Lemieux is in my opinion making the same mistake both the Court and many commenters make–confusing “public use” and “public interest”. The Bill of Rights provides for takings with compensation for public use; it says nothing at all about takings in the public interest.

2

Scott 06.29.05 at 3:37 pm

Funny to see liberals reacting to Kelo by suddenly wanting to defer to local govts. The feds need to oversee important things like local schools and how much dirt you dump on your own land (excuse me, ‘waterway’), but something insignificant like property rights can be trusted to the local yokels.

3

James Kroeger 06.29.05 at 4:03 pm

Lemieux’s concern that the court system might become “an all-purpose economic regulator” is curious. It may be true that courts do not like the difficult business of interpreting laws and making fine distinctions & balancing interests when applying them to special circumstances, but why should we care? THAT’S THEIR JOB. Legislative bodies cannot be rationally expected to anticipate every conceivable challenge that might arise in applying the laws that they generate. Traditionally, we have depended upon the judicial branch perform this necessary duty.

The more I’ve thought about this issue, the more I’ve come to think that society might actually be better off if it allowed THE MARKETPLACE to determine if and when a property is sold to the government, and at what price. On the plus side of this argument, the government would be able to further reduce its “coercive role” in the lives of citizens, something that really beings to rile people when they believe the government is about to force them to give up their property at a net loss. Why besmirch the name of Government for no good reason? On the other side of the coin, there would be concern expressed that individual owners of property might exploit any government commitment to pursue “only non-coercive means” of obtaining property (by demanding an extraordinary and unreasonably high price).

This is not really the problem it would seem to be. Yes, if there is only one seller in the market, and the government’s demand is quite inelastic, then the seller will enjoy a great deal of market power that he/she would feel encouraged to exploit. This should not be a problem, however, if the government always makes sure that it has at least two “equally” desirable locations that it is considering for the new highway, building, park, viaduct, etc., that it wants to build. If potential sellers are aware that the Government has alternatives, they will be persuaded by “market forces” to be reasonable in their price demands. Competition is always the magic that makes market prices “fair” prices.

So if (1) the government is generous enough to make potential land owners WANT to sell their land, and (2) sellers perceive that they are in competition for the opportunity to benefit from the government’s compensation generosity, then it should always be able to obtain the property it needs to promote the general welfare at a reasonable price, without resorting to coercion.

What I don’t get is why the Democrats have not recognized the extraordinary opportunity that this whole issue offers to them. The Republicans love to wrap their identity around issues like flag burning. If the Democrats were to wrap their identity around a Constitutional Amendment that absolutely forbids federal, state, or local “takings” EXCEPT IN THE MOST EXTRAORDINARY OF CIRCUMSTANCES, they would be able to present themselves as the defenders of the little guy against the unholy alliance of government & business. Duhhh!

(The most obvious reasons for making an exception would be (1) a pressing national security emergency or (2) when the actions of speculators have diminished the competitiveness of a market that the government wants to participate in.)

James

4

Purple State 06.29.05 at 4:07 pm

The problem with Kelo as I read it is it essentially gives city councils the power to decide whether a private citizen is using his or her property in the manner most economically beneficial to the city–and authorize a taking if the city decides the answer is no. Older rulings allowed takings for public use or in cases when the landowner’s use of the property did direct harm to the city (i.e., contributed to blight). Now, all the city council needs to show is that the city could economically benefit from the transfer of the property from one private individual to another–and that’s enough to force the transfer. I don’t think this was ever the framers’ intent–and I do think it expands the eminent domain power well beyond what it was before Kelo. I also think it tramples on property rights that are not enumerated in the constitution, but that are covered under the ninth amendment.

What, under Kelo, would prevent a town from demanding that a local farmer here in Massachusetts sell his land to a developer? Farms, after all, aren’t very profitable here and don’t generate much tax revenue. A housing development and office park would be much better for our town’s tax base and would create jobs. So why can’t the town council force the sale to the developer? To me, this would be an abomination, but I fear Kelo makes it plausible.

5

Purple State 06.29.05 at 4:12 pm

Any idea why some on the right are trying to reverse the ban on DDT? Is there some company that has a financial incentive for doing this or does this just reflect an irrational hatred of environmental regulation of any kind? I can’t figure this one out. DDT is terrible for birds and fish, at least, and it stays in the environment for a long time. It is less harmful (from what I’ve read, at least) to mammals, but it seriously hurts many other life forms.

6

Nat Whilk 06.29.05 at 5:25 pm

Is Malaria Foundation International a tool of the capitalist running dogs? Its position seems to be that DDT has its place in malaria prevention.

7

Nat Whilk 06.29.05 at 5:30 pm

Were annual military deaths actually higher during the Clinton years? Sadly, no. However, if you parse your words just right, you can leave that impression without technically lying.

The sentence in question appears to be: “Iraq fatalities are less than the rate of total military deaths under Bill Clinton, which averaged almost a thousand a year, and well below the rates of the 1980’s.” Anyone who finds the wording of that sentence devilishly subtle should probably be working in the food service industry.

8

Brian 06.29.05 at 5:52 pm

A couple of people here seem to be under the impression that there is such a thing as the ban on DDT. As you’ll see if you follow the link to Tim Lambert’s page, no such ban exists, at least not for anti-malarial uses of DDT. Though, as Lambert also notes, some of the the best successes at combating malaria recently have come from moving away from DDT.

9

Joe Welsh 06.30.05 at 2:13 am

For once we seem to agree. Your concern about Kelo providing the impetus for developers to run roughshod over homeowners with the aid of City Hall is a real one. My greater concern is that decision rides roughshod over the text of the Constitution.

I would strongly encourage you to check out scotusblog.com for solid legal analysis on Supreme Court cases. There are now discussion boards that contain commentary, often from those that submitted the briefs or argued the cases in front of the Supreme Court. Other participants include noted law professors from both sides. Hands down the best resource for commentary on any major decision, unless you prefer a partisan tilt built into the commentary.

10

john b 06.30.05 at 4:56 am

Nat – why the hell would anyone say that sentence, other than with the intention of deceiving people (who may indeed be of foodservice industry calibre) into believing that *total* military casualties now are lower than under Clinton? If it’s not meant as a deception, it’s one of the most meaningless comparisons ever.

11

Jeremy Osner 06.30.05 at 6:51 am

Is Malaria Foundation International a tool of the capitalist running dogs?

Has Malaria Foundation International called for a resumption in use of DDT as a pesticide in farming? I would be surprised if they had as such use of DDT hastens the development of resistance in mosquitos and thus makes it less useful in combatting malaria. But if you have a reference do share.

12

jet 06.30.05 at 7:42 am

If you go to this wikipedia article, you’ll get a MUCH better sourced history of DDT that covers more than one relatively tiny land mass of Sri Lanka. The article explains that there was effectively a world ban on DDT in that countries were threatened with having their aid cut or faced sanctions if they continued DDT use which Western powers did not agree with.

According to the article, even in Africa where DDT was sometimes less effective, countries that revert to 1950/60s style of mass spraying of DDT have much lower rates of malaria than those that don’t, giving strong evidence that DDT in wide spread use, not shot down by EU sanctions.

Once again Tim Lambert cherry picks a data point (Sri Lanka), grabs one or two references that back him up, and calls it a win. Too bad the uncontested Wikipedia article calls bullshit on him along while confirming the world wide move to pressure all countries to cease using DDT (aka a DDT “ban”).

13

jet 06.30.05 at 8:02 am

Forgive the double post if I indeed did, but after 10 or so minutes my post had not shown up.

If you go to this wikipedia article, you’ll get a MUCH better sourced history of DDT that covers more than one relatively tiny land mass of Sri Lanka. The article explains that there was effectively a world ban on DDT in that countries were threatened with having their aid cut or faced sanctions if they continued DDT use which Western powers did not agree with.

According to the article, even in Africa where DDT was sometimes less effective, countries that reverted to 1950/60s style of mass spraying of DDT have lowered their rates of malaria much faster than those that don’t, giving strong evidence that DDT should be in wide spread use, not shot down by EU sanctions.

J F Beck over at Tim Lambert’s site points out that one of the definitions of ban is “Practical denunciation, prohibition, or outlawry, not formally pronounced, as that of society or public opinion.” According to the article, there certainly was, at least in one defintion of the word, a ban.

14

Gavin M. 06.30.05 at 8:04 am

Hey Ted and Kieran and you guys,

http://sadlyno.com/archives/001469.html

We need some expert help here. Come jump into the comments.

15

Tim Lambert 06.30.05 at 9:51 am

jet, the Wikipedia article is just a rehash of Africa Fighting Malaria’s dishonest stuff. I have provided sources for everything I have written, whereas you won’t find that for the Wikipedia article.

DDT is not banned, no matter what definition you use because it is still used in countries containing billions of people.

16

r. clayton 06.30.05 at 12:25 pm

Anyone who finds the wording of that sentence devilishly subtle should probably be working in the food service industry.

Naturally. A person working (successfully) in the food-service industry has to be able to distinguish between apples and oranges. The success of the argument quoted depends on not being able to make that distinction, as was pointed out by Sadly, No. That the argument smells is obvious; determining the smelly parts requires discernment. (Ok, I overstate: the smelly parts are obvious too.)

17

jet 06.30.05 at 12:29 pm

Tim,
Were the EU sanctions against Uganda the equiavalent of a ban or not? If they weren’t, what level of reprisal would be needed to qualify as a ban?

This is just the most recent case, it would easy to spend all day digging up examples of NGO’s, the UN, and Western powers pressuring malaria stricken third world countries to either not use DDT or restrict that use to indoors.

And why would you assume that just because DDT is banned, it wouldn’t be used (since it works)? Aren’t illegal drugs banned? Organizations (countries, NGO’s, the UN) retaliate against countries who use DDT in a way they don’t prescribe, which certainly is close enough to the definition of “banned” that argueing it is just playing on semantics.

18

jet 06.30.05 at 12:38 pm

And Tim, I suppose this is teh excerpt from Africa Fighting Malaris that is “dishonest” since the rest of the FAQ is pretty evenhanded?

However, some nations still effectively use DDT for malaria control. For example, Ecuador has increased its use of DDT since 1993 and has experienced the largest reduction of malaria rates in the world7. When South Africa removed DDT from its malaria control programme in 1996, one of the worst malaria epidemics in the country’s history followed. Only when South Africa reintroduced DDT in 2000 did it manage to bring the epidemic under control.

19

Tim Lambert 06.30.05 at 1:37 pm

jet, there were no EU sanctions against Uganda.

And giving examples of countires that use DDT sort of undercuts your claim that it is banned.

20

Ray 06.30.05 at 2:11 pm

“NGO’s, the UN, and Western powers pressuring malaria stricken third world countries to either not use DDT or restrict that use to indoors.”

That AFM site talks about the usefullness of DDT in IRS programmes. That’s _Indoor_ Residual Spraying.

21

mpowell 06.30.05 at 2:32 pm

I don’t buy Scott Lemieux’s argument at all. While it would be nice if the Supreme Court didn’t have to get into the business of making tough decisions on what constitutes public use, the appropriate answer is not to completely neuter that clause in the 5th amendment. An obsession w/ finding easy rules for the court to apply should not override important considerations of justice.

That being said, I have to disagree w/ James. The problem is that when you are building a freeway, you’re talking about hundreds (or even thousands) of property owners. Having two options on the table just does not prevent single hold-outs from extracting unreasonable payment for their property.

So I think its clear that public use should include freeways, but b/c ‘fair value’ can not possibly be fair to all the people who’s property you are seizing, it should not include simple ‘public value’ or (alleged) city revenue. And the court should draw a line. Maybe the line should include some deferrence to the locals. But only some.

22

jet 06.30.05 at 5:50 pm

Tim said “And giving examples of countires that use DDT sort of undercuts your claim that it is banned.”

The argument that drugs are banned is also undercut by the fact that so many people use them.

23

Tim Lambert 06.30.05 at 9:54 pm

Nice equivocation jet.

The Stockholm convention has a specific exemption for DDT for public health. So it is not banned in the sense of there being a law against it. You then claim that there is a de facto ban on it. That claim is refuted by showing that it is still used. So you turn around and say that that doesn’t prove that there isn’t a law against it. No it doesn’t, but we proved that already.

24

Rvman 07.01.05 at 9:58 am

A bit of background. The original Stockholm Convention on Persistant organic Pesticides from the late ’90s contained a ban on DDT, as one of 12 POPs to be banned. Anti-Malaria groups, including those within the UN such as WHO, had a slight panic attack. The pro-DDT campaign dates to this. Health organizations negotiated changes to the Convention which allow DDT use for public health to continue so long as there are no appropriate substitutes, though its use is strongly discouraged by the UN’s environmental wings. (WHO and others still encourage its use when appropriate; the UN is far from a monolyth.)

The link which should be attached under my nom de post is a UN report to the GC on malaria. The relevant info is paragraphs 32-35.

It is fair to say that DDT is legal but discouraged, banned, and encouraged simultaneously – it depends on circumstances and what bit of the UN is doing the evaluation.

25

jet 07.01.05 at 10:35 am

Here’s a little pseudo-psychology. The reason conservatives are so pro-DDT is that they have a hierarchy of how people value. Family, Countrymen, Allies, and Others (or whatever). So it simply follows that birds, fish, and frogs fall well below the Others, and thus screw the frogs, those Others need DDT cause they are human and much more valuable than animals. Spray that shit everywhere, cause those people are dieing.

Liberals tend to value everyone as equal and have long observed that in order to preserve the environment people must be constrained in their activities. And since a liberal would never use DDT to protect himself from malaria, so follows an Other shouldn’t use DDT either.

26

Ray 07.01.05 at 10:56 am

That’s a bizarre analysis jet. As far as I can see, the reason conservatives are pro-DDT is that environmentalists are against it.

(I’m against using DDT as a pesticide, because of the large doses involved – bad for _everyone_ – and because it means pests, including mosquitoes, build up resistance. Public health uses I’m fine with)

Comments on this entry are closed.