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Shouldn’t a Mazda Seatbelt Lawsuit be Allowed to go Forward?

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Faulty cars have been making all the news lately. Toyotas, especially, have been at the forefront of all this backlash for some time now. Just this morning I saw yet another article about how officials are blaming a faulty Toyota as the reason behind a fatal car crash.

So imagine if one of your loved ones was involved in an accident in one of these allegedly faulty cars. Further imagine that after the accident, you were not even allowed to bring a lawsuit against the car manufacturer because your claim was somehow “pre-empted.” While this is not happening with Toyota accidents (thank goodness), it’s exactly the case of what’s happening to one family whose loved one was killed in a 1993 Mazda minivan.

Apparently the passenger who was killed in this accident was sitting in the rear seat and was wearing a “lap-only” seatbelt. Family members are alleging that if the passenger had been wearing a “shoulder-and-lap” seatbelt instead, this death could have been prevented. I’m not an expert on all the scientific workings behind seatbelts, but from the face of this description, it seems like the family has made a legitimate claim and should be able to proceed with a lawsuit.

However, the Supreme Court is divided on whether to even allow this lawsuit to proceed because it’s allegedly pre-empted by federal law. The thinking goes that at the time the Mazda was made, federal law did not require car makers to install shoulder-and-lap seatbelts; a lap-only seatbelt was all the law required. (As a side note, this is no longer the law. Starting in September 2007 most passenger vehicles are required to have shoulder-and-lap seatbelts for rear seats).

Anyway, going back to the argument, family members and consumers understandably made the next logical point, which is that, just because Mazda complied with the federal law doesn’t mean that they’re immune from future lawsuits. However, Mazda is contending that federal regulators at the time knew exactly what they were doing when they enacted the law. Federal regulators had expressly considered the option of requiring shoulder-and-lap seatbelts, and had deliberately rejected that option for economical reasons. Thus, the federal regulators’ stance on seatbelt regulations back then was conclusive, and they had made it clear car makers were not to be sued for anything but failing to provide lap-only seatbelts.

So, the Supreme Court appears to be divided over this issue, and it will be interesting to see which way they eventually decide. Ultimately, the disposition of the case will probably turn on whether they really think the federal regulators had meant to make the law conclusive, in terms of exactly what kind of seatbelts were required. Or, if the federal regulators had only meant to set a minimum, rather than conclusive standard, on the type of seatbelts required.

Personally, I think that it’s kind of a pointless exercise to go about deciding the outcome of the case this way. I mean, courts can conduct all the research they want into the legislative history, but will they ever really be able to know what federal regulators were thinking at the time they enacted federal law? Even if they could find an answer to this, what’s the point of knowing what federal regulators were thinking anyway?

I mean, isn’t the issue really…what was Mazda thinking when they decided to forego the shoulder-and-lap seatbelts. For example, did Mazda think this was just an easy way to save on costs, and blindly look the other way in terms of consumer safety? Or did Mazda assess the situation, and come to their decision only after accurately concluding that shoulder-and-lap seatbelts were not necessarily more safe, economical, or practical to implement?

Of course, we’ll never get to explore these questions if the Supreme Court ultimately decides to not even let this lawsuit go forward based on pre-emption grounds. However, because it’s the Supreme Court deciding this case, they’re actually not bound to follow the law on pre-emption as strictly as other courts have to. They can instead choose to decide this case based on other factors, such as what’s best for public policy.

To me, this makes much more sense, because like I said before, who really knows (and cares) what federal regulators were thinking back then. But given public policy reasons, I believe it would be a good idea to let this lawsuit go forward. For example, allowing this lawsuit to go forward would give car makers more incentive to devise safer vehicles. Car makers would not be complacent with just meeting the minimum standards of safety by law, but would be more pro-active in considering consumer safety first.

However, I’m not the Supreme Court, and this case is obviously not for me to decide. It just seems ridiculous to me though, as a common observer, that a family whose loved one died in a car accident cannot even be allowed to bring a lawsuit against the car maker. I’m not saying the family is entitled to win by any means, but they should at least be able to have their day in court.

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Why Prop 19 Failed And What Will Happen Now

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In case you didn’t know already Prop 19, the marijuana legalization bill, was defeated by voters in California’s mid-term elections.  Much to the dismay of the Golden State’s many pot-lovers, the drug will remain illegal for all intents and purposes in California, but nonetheless still be available for all those with chronic migraines.

There are many reasons why Prop 19 failed; however the larger question is what will happen now among legalization enthusiasts and the legalization movement in general?

But back to the first question: why didn’t Prop 19 pass?  I think its failure can be attributed to a number of factors:

Voter Apathy

Despite a slightly higher voter turnout for this election, many supporters of Prop 19 failed to actually vote or even register to vote for their beloved marijuana legalization.  Who were these voters?  Here’s a hint: this demographic generally smokes up a lot despite the fact that homework still poses a problem in their lives.  Give up?

Youth voters.  Specifically, those in the 18 to 24 year old demographic.  This large and potentially game-changing group continues to remain blissfully unaware of their power to change state and national governance.  Many polls indicated that despite heavy support for Prop 19 among young people, many of those polled stated they didn’t intend to vote for its passage citing a number of reasons such as distrust of the democratic process and not believing their vote would affect the proposition’s outcome.  All of this is code of course for being too lazy.  Older voters on the other hand turned up in record numbers to ensure Prop 19 was crushed.

Questionable Monetary Gain

As Prop 19’s campaign continued, many questions began to emerge over how much money its passage would actually bring to California.  Conflicting research reports started to raise doubts over the original $1.4 billion tax revenue estimates; some citing the figure could be as low as $351 million.  Furthermore, the potential immediate loss of federal funding, estimated at over $9 billion if Prop 19 passed, served to further degrade the proposition’s support.

Though it was estimated that Prop 19 could have saved California over $17 billion annually, many viewed this potential savings as more speculative and not as real or immediate as the impending federal funding loss.  Growers and distributors of marijuana also started to worry about their earnings.  Currently medical marijuana remains a highly profitable niche market.  The thinking became if Prop 19 passed, the price of marijuana would drop significantly as new growers and distributors entered and competed in the market, ultimately resulting in lower profit margins.

Federal Government’s Vow To Fight Legalization

Though marijuana would be legal in California if Prop 19 passed, it would still remain illegal under federal law.  US Attorney General Eric Holder stated that if California legalized pot he’d prosecute those who imbibed in the drug to the full extent of federal law.  This stance was backed by the president and, if legalization occurred, would likely have create a Prohibition Era-like situation in which DEA agents would be converging on California.  It would have also tied up the state in a lengthy and expensive legal battle.  All of this made Prop 19 look less and less sexy.

It also didn’t help that the Gov. Schwarzenegger reduced marijuana possession to an infraction right before the election in a transparent attempt to kill off support.

Ultimately though, despite the fact Prop 19 was defeated, it’s likely that we haven’t heard the last of this push for legalization.  Prop 19 failed only by a 6 percent margin; this reflects Californians’ changing sentiments toward the drug.  Furthermore, attitudes toward decriminalization across the country seem to be lightening, too, especially among young people.  The question isn’t why Prop 19 and other similar bills continue to fail, but rather when will the young adults of today finally outnumber the older generation and legalize marijuana?

For now though, we’ll likely see Richard Lee and the folks over at Oaksterdam University continue to lobby for the Prop 19 inevitable return to the ballot in the next election cycle.

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Is The Minimum Wage Unconstitutional?

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No, and no.Minimum Wage

But, a few candidates (also reported here) for the United States Senate have gone on the record as being of the opinion that it is, despite unambiguous holdings by the U.S. Supreme Court that both state and federal minimum wage laws are perfectly constitutional. The case upholding the federal minimum wage was unanimous, and over the past 70 years or so, under Courts of widely varying political and judicial philosophies, there has been no serious move to overturn either of those cases. Virtually every Supreme Court justice, regardless of their liberal or conservative leanings, views those cases as well-settled law. Even in today’s court, an argument that the minimum wage is unconstitutional is unlikely to fall on sympathetic ears.

I should note that there is some disagreement among economists as to whether or not the minimum wage is good policy, and whether it makes economic sense, but I won’t be discussing that issue here, mainly because I’m not an economist, and this is not an economics blog.

So, what are the possible arguments that the minimum wage is unconstitutional? Well, it boils down to the nature of the federal government, and its constitutional power, compared to the constitutional power of state governments. Basically, the constitution sets up a federal government of enumerated powers. This means that it expressly grants certain powers to the federal government, and denies it the rest. So, in theory, if the federal government does something which it isn’t specifically authorized to do, that’s unconstitutional. Under the 10th Amendment, all other powers not granted to the federal government are granted to the states, unless it specifically prohibits the states from doing something.

So, this means that the federal government can only do that which is expressly permitted. And state governments can do anything which is not expressly forbidden.

Now, if you look through the constitution, you won’t see anything that authorizes the federal government to impose a minimum wage on private employers. So, that’s the end of the debate, right? Not even close. In fact, the federal government does a ton of stuff that isn’t specifically authorized under the constitution. So, what’s the deal?

Many, if not most, of the constitution’s grants of power to the federal government are extremely vague and broad. For example, one of the things Congress is allowed to do is regulated interstate commerce. Unfortunately, the Founding Fathers didn’t see fit to tell us what that means, nor did they think to place a copy of This is What We Meant: A Guide to Constitutional Interpretation from the Authors in the Library of Congress. That would have been nice of them, but alas, it was not to be.

What they did leave us, however, is a Supreme Court whose job it is (among a few other things) to be the final arbiter of what interpretation of the Constitution is the correct one. Since the Great Depression, the Supreme Court has gradually expanded the scope of power granted to the federal government under the Commerce Clause. At this point, it grants the power to regulate virtually any economic activity that might affect something in another state. In this interconnected day and age, that includes basically everything.

With that in mind, there can really be no doubt that establishing a minimum wage is well within the federal government’s power. Some constitutional scholars believe (and their argument is certainly not frivolous) that the Supreme Court has expanded the federal government’s regulatory power far beyond anything that the Founders intended. This may or may not be true, but the fact remains that

I don’t doubt that these Senate candidates are perfectly aware of this fact, and were likely playing to their “Tea Party” base.

But for any employers who want to test the law, they should know that the federal minimum wage is $7.25 per hour (your state may have a higher minimum wage, which you are also bound by), and that LegalMatch case data from the past several months shows that alleged wage and hour violations by employers are still very common. And while these cases might not net plaintiffs a lot of money, typically little more than back wages and possibly attorney’s fees, wage and hour violations are comparatively easier to prove than many of the other common employment causes of action, such as discrimination and harassment.

So, if you’re an employer, and don’t think you should have to pay your employees the minimum wage, you’re certainly entitled to your opinion. And it’s your right to vote for candidates who promise to eliminate or reduce the minimum wage, if you want. But if you decide to make a stand against the minimum wage laws that you view as unjust, prepare to face the likely consequences: a trip to court, a court order requiring you to pay your employees any back pay that they’re owed, their attorney’s fees, and possibly punitive damages.

In the long run, it will probably prove much easier and cheaper to simply pay your employees at least the minimum wage.

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California Might Legalize Marijuana: What Are The Feds To Do?

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It looks like Proposition 19 has a very real shot at passing in November. In case you haven’t been following the news, Proposition 19 is a California ballot measure which would legalize the recreational use of marijuana in that state. It would also legalize the sale and cultivation of marijuana for recreational use, while allowing local governments to grant licenses to retailers to sell marijuana, and to tax sales of the drug.

If this passes, it will be a true game-changer for national drug policy. The federal government already seems to be preparing for Proposition 19’s passage: Attorney General Eric Holder recently announced that the Justice Department would continue to enforce federal laws against marijuana, no matter what the voters of California decide.

This is certainly not a surprising response: in 2005, the U.S. Supreme Court ruled that it is constitutional for the federal government to enforce federal anti-marijuana laws anywhere in the U.S., even in states that have legalized medical marijuana, so there’s no doubt that the federal government has the constitutional authority to do this.

But if Prop 19 passes, the practical consequences for ordinary Californians are difficult to predict. The vast majority of drug busts are conducted by state law enforcement. While the federal government is also heavily involved in the enforcement of drug laws, it usually focuses on larger-scale dealers and traffickers, as opposed to users, of drugs. It also relies heavily on cooperation from state authorities.

So, what would the federal government’s options be if Proposition 19 passes? Well, it has a few options, but I doubt it finds any of them particularly attractive. Let’s go over them one by one.

1) Step up federal enforcement in California

This is the most obvious approach: if marijuana is legal in California, thus preventing state authorities from cooperating with the feds, the federal government can simply divert more enforcement resources to California to fill in the gap. While the DEA and FBI already have a significant presence in California, it’s likely that a huge increase in personnel would be needed to completely fill in the enforcement gap left by Proposition 19.

As you might be aware, the federal government is kind of strapped for cash. Its resources are finite. Under the Bush Administration, the Justice department vowed to vigorously prosecute everyone who sells marijuana, even if they’re selling for medicinal use, in accordance with state law. Well, medical marijuana dispensaries in California operated relatively unimpeded during those years. Sure, the DEA would occasionally raid a grower or dispensary, and indict the owners to make examples of them, but they were never serious about completely shutting down the business, so the overall risk that the medical marijuana industry entailed was fairly low.

The fact is, the federal government simply doesn’t have the resources to fill the enforcement void that Prop 19 would create without diverting significant resources from other areas.

2) Try to get Prop 19 overturned in court

In theory, the federal government could sue California in federal court, arguing that Prop. 19 is unconstitutional. The problem is that they wouldn’t have a very good argument. Nowhere is it written that California, or any other state, has to criminalize marijuana. Proposition 19, at its core, simply removes a California law. It would be one thing if California passed a law and the federal government wanted to stop its enforcement (perhaps on the grounds that it encroaches into territory that the constitution specifically reserves for the federal government, such as the Arizona immigration law). It’s quite another thing to have the courts force a state to ban a drug.

It seems very unlikely that the federal government could force California to criminalize marijuana, if the voters of that state decided to legalize it.

3) Make federal funding to states conditional on criminalizing marijuana

Ever wonder why every single state has made 21 its legal drinking age? Not that long ago, the legal drinking age in most states was 18. What changed? In an effort to reduce drunk driving, Congress, rather than simply passing a law raising the drinking age nationwide (it was highly debatable, at the time, whether or not they’d have the constitutional authority to do so), passed a law in 1984 that withheld federal highway funds from states that did not raise the drinking age to 21. Some states held out for a few years, but ended up caving when they realized that they simply couldn’t do without the money.

If the federal government is serious about keeping marijuana illegal, and other states begin flirting with the idea of following in California’s footsteps, this is probably their best option. However, it’s at least theoretically possible that states would be able to offset the loss of some federal funds through tax revenue generated by legal marijuana sales, and a reduction in expenditures on law enforcement and prisons, so the federal government might find this ineffective, but that would require the most optimistic predictions regarding tax revenues and savings stemming from legalization to be true.

4) Do nothing

Finally, the federal government could simply make no changes to its drug-enforcement activities in California. This is pretty unlikely, since small-time growers and users of marijuana would basically have nothing to fear, since they are almost never targeted by federal authorities.

This would essentially give other states the go-ahead to legalize marijuana, if they decide it’s a policy they want to pursue. If enough states legalize marijuana, and the federal government attempts to fill every void that this creates, the federal government would probably, for the first time in decades, have to seriously reconsider its own marijuana policy.

If Prop 19 passes, it will most likely be a watershed moment in our country’s legal history, and put our country’s drug policy at a crossroads. And even if it doesn’t pass, polls indicate that, if it is defeated, it will be by a very narrow margin. If this is the case, it would show other states that passage of similar initiatives may well be within reach, emboldening supporters to try and pass similar laws. So, whatever happens in November, it’s likely that marijuana policy in the U.S. is going to be seriously tested.

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Is it Time to Create a Justice Index?

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Modern society loves statistics. Perhaps there’s comfort in their apparent objectivity, their cold, dispassionate, and logical statements of fact. Political junkies follow polls obsessively, and come up with complex systems to analyze them and make predictions. The most obsessive of baseball fans breeze through statistical tables that might make a Wall Street broker’s head spin.

Various groups create indexes to evaluate the standard of living in a given place, the level of human development in a given country, the quality of a country’s healthcare system, etc. Almost all of these indexes are based on statistical data. The government of Bhutan has even tried to establish objective indicia of the happiness of its populous, and has created an index to measure Gross National Happiness.

In the U.S., there are statistical indexes to evaluate the quality of individual hospitals and schools. There’s one major sector for which no such index exists, however: the criminal justice system (also reported here and here). Some lawyers, scholars, and legal analysts have suggested that this needs to change. As far as anyone can tell, there have been few, if any, comprehensive audits of the American justice system. While most people agree that the principles on which our legal system was founded are sound (being built around due process, presumption of innocence, and the right of the accused to mount the best possible defense). However, because there’s never been a comprehensive audit of the justice system, we have no idea how well these principles are being put into practice.

A recent Op-Ed in the New York Times makes an excellent case for why we should come up with a “justice index” and periodically audit the nation’s court systems for performance.

This seems like a very good idea. Of course, a diverse group of experts would be needed to come up with the criteria that the justice system would be analyzed under. Off the top of my head, I know that criminal defense lawyers, prosecutors, judges, law enforcement officials, social scientists, corrections officials, and statisticians would be necessary. There are probably a few I haven’t thought of.

There are many criteria that would have to be considered to determine the effectiveness and fairness of a criminal justice system: recidivism rates, racial and economic disparities in arrest and conviction rates, the percentage of defendants who plead guilty without an attorney, and many others.

However, depending on how you slice it, there may be hundreds of distinct criminal justice systems in the U.S.: of course, there’s the federal court system, and there are plenty of federal criminal laws under which a person can be charged. However, the federal trial courts serve “districts” across the U.S., and each district court has jurisdiction over a distinct geographic area. There are almost 100 U.S. District Courts (each state has at least one, and larger states have several). Each district court has some discretion to make its own rules, and some of these courts undoubtedly function better than others.

On top of that, each state has its own criminal justice system. And most states have at least one trial court per county, each one of which has some of its own local rules, so you can imagine that, even within a state, there will be some courts that perform better than others under various metrics.

So, auditing all of these systems might be impossible. However, the author of the article suggests starting with the criminal justice systems of some of the most populous counties and federal districts in the U.S. If only, say, a few dozen court systems can be chosen at first, an effort should be made to ensure that they represent as many different regions of the country as possible. The resulting data would probably prove invaluable.

As Americans, we tend to pride ourselves on the fairness of our legal system, and the notion that nobody is above the law. And our legal system, even if only for its stated aspirations, does give us a lot to be proud of. However, we haven’t always been the most introspective people. There have been times when we haven’t lived up to our own standards. Slavery comes readily to mind, as does Japanese internment during WWII. Nonetheless, there have always been people in America who have done everything in their power to ensure that every aspect of the U.S. government lives up to the ideals upon which it was founded.

Such an audit of the justice system, and the creation of a uniform index for future audits, would likely prove invaluable. It would allow us to see where our justice system works, and where it doesn’t.

Furthermore, if one court system in the U.S. has implemented a program that has produced a highly desirable effect (reducing crime, protecting victims’ rights, reducing recidivism, reducing wrongful convictions, etc.), such an index, and easily-accessible data from it, would give other court systems in the country guidance on what they can do better. Conversely, measures which are found to be ineffective, or even counterproductive, could be abolished or modified.

Conducting such an audit would be a significant undertaking, to be sure.

However, I believe that it’s necessary, and whatever expenses are incurred in the process will likely be paid back many times over, in the form of a criminal justice system that is more efficient, inexpensive, effective, fair, and just.

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