History shows again and again how nature points out the folly of man
How did this happen? How did one inch of accumulated snow bring a major American city and a region to a grinding and extended halt in the span of an afternoon?
People raised and residing in communities and regions where snow is a common seasonal precipitate tend to focus on snowfall amounts when they look at Southern snowfall situations. They measure their winters in how muchs and how longs, so that focus makes sense. Others classify their winters, from a snowfall perspective, in ifs, however, and when they have snow-related troubles, the amount of snow has little to do with the cause and manifestation of those troubles.
“How could one inch of snow shut down a city?” That starting point not only will cause the questioner to miss the real cause of the problem, but it indicates a basic misunderstanding about the questioner’s own, inevitable snow troubles. When it comes to problem-inducing snowfall events in different regions, the difference is a matter of degree, not of kind. Some communities, like Detroit and Boston, merely have higher tolerance thresholds than others, like Atlanta and Birmingham. The “how much?” question is relevant to the determination of those thresholds, but, for every community, significant seasonal struggles only materialize “if” that threshold, whatever it may be, is met. It could be two inches in Hattiesburg or two feet in Harrisburg; that twenty-two-inch difference is not really important.
People who live in communities that are familiar with and expect and are prepared for snow laugh when those who do not take anticipatory actions like cleaning out grocery stores and cancelling school. I have learned that these are not irrational, panic-driven actions, however. When even an inch of snow falls in an area equipped to handle no more than zero inches of snow, vehicular and even pedestrian transportation can become very dangerous. When some of those anticipatory actions are not taken, real problems can result.
Infrastructure deficiencies are a central cause of winter weather problems. Communities that only rarely receive any snow are unlikely to have or have in sufficient quantity rudimentary implements and equipment like snow plows, shovels, salt trucks, and tire chains. In such cases, even an inch of snow on roads and sidewalks can quickly become a broad sheet of ice that would present a movement challenge regardless of latitude.
In addition, a community’s more traditional infrastructure– the road system– can play a role. Atlanta is known for having bad traffic on a good-weather day. While a lack of city planning may bear some of the blame, historical and daily demographic realities, while not unrelated, may be of a magnitude that simply overshadows the other factors. Georgia’s population has doubled over the last forty years or so. Additionally, with the well-known exception of Washington, D.C., no city of at least 250,000 people experiences as large a workday population increase as Atlanta (62.4%; next largest is Tampa, Florida, at 47.5%). Choreographing the movement of that relative volume of (overwhelmingly automobile) commuters is messy on a good day.
More than anything, it was traffic, and the weather’s disruption of typical traffic flow (and not the fact of the weather itself), that was central to most of the well-publicized problems Atlanta and the region experienced last month. For example, some outside the region seemed to believe that the reason many schoolchildren spent the night at their schools was because their parents were too afraid of the snow to venture out to pick them up. In reality, the schools were inaccessible to parents due to the gridlocked status of the roads, just as the children’s homes were inaccessible to school buses. The story of Grace Anderson, the baby born on the interstate while her pregnant mother and father attempted to reach a hospital, is more fully illustrative of the circumstances.
From an emergency management response perspective (as distinct from an emergency preparedness perspective), then, the failure here– and the flaw in the perception of those observing from outside the region– was a failure to appreciate that the problems that would arise would be problems of infrastructure, rather than possibly irrational responses to weather qua weather.
From the first-ever eminent domain case to one of the most recent: Last week, the Georgia Supreme Court decided Dept. of Transp. v. McMeans, No. S13G0614 (Jan. 21, 2014), a case involving the condemnation of land owned by a man named Brian McMeans. McMeans Leasing, Inc. (“MLI”), a corporation solely owned by McMeans, operated as a business on the land.
McMeans filed an answer acknowledging ownership in the condemned property. MLI then filed an “amendment” to McMeans’ answer, asserting that McMeans’ original answer was for MLI; that it was a leasehold tenant on the property; and that it would suffer business-loss damages as a result of its removal from the property. McMeans filed another answer for himself, asserting that he would suffer damages from a) loss of the use of the property; b) interruption in business income; c) loss of business; and d) damage to business; in addition to the value of the property itself. McMeans then sought to amend his answer to add a separate business loss claim. The Georgia Department of Transportation (“DOT”) moved to strike MLI’s answer and McMean’s answer adding the business-loss claim, and the trial court granted DOT’s motion. McMeans immediately appealed.
The Georgia Court of Appeals reversed the trial court and, citing Dept. of Transp. v. Acree Oil Co., 266 Ga. 366 (1996), ruled that business loss is recoverable as a separate element of damages where the landowner owns the business and the taking results in a total loss of the business.
The Georgia Supreme Court reversed the appellate court. The court agreed with the court of appeals that, under Georgia law as enunciated in Acree Oil Co., business loss is recoverable as a separate element of damages (separate from the value of the taken land, the primary measure of damages in condemnation cases) when the business belongs to a lessee other than the landowner or when the landowner owns the business and the taking results in a total loss of the business. Basic tenets of corporate law apply to distinguish as separate legal entities McMeans and MLI, even though McMeans is the sole owner of MLI. Because MLI “owned the business located and operated on the condemned property,” MLI, not McMeans, was the party that could properly assert the business-loss claim.
Was McMeans’ error here the result of a basic misunderstanding of corporate law principles or a lack of precision in pleading? The inelegant series of answers and amended answers filed at the beginning of the action suggests he appreciated to some degree the legal distinction between himself, a natural person, and MLI, a corporate person, each with different, concurrent interests– an ownership estate and a leasehold estate, respectively– in the condemned realty.
My initial read of the case was that McMeans was trying to double dip: he wanted to claim business-loss damages for himself and for MLI. The Georgia Supreme Court appears to have interpreted the case that way as well, because it emphasized its corporate-law analysis, seemingly admonishing McMeans for forgetting that he and MLI were separate entities, and not engaging in any significant analysis of condemnation-law.
Maybe McMeans was trying to double dip by simultaneously respecting that he and MLI were separate legal entities and acting as MLI’s alter ego. The condemnation-recovery principle from Acree Oil Co. does seem to offer a potential avenue for McMeans, though:
Post-taking business losses can be recovered as a separate legal element in instances when the business belongs to a separate lessee or when the business belongs to the landowner and there is a total taking of the business.
Because “[t]he distinct corporate entity MLI owned the business located and operated on the condemned property,” the business-loss claim belonged to MLI, not McMeans.
While the court viewed this case under the first prong of the Acree Oil Co. language quoted above, as an “instance when the business belongs to a separate lessee,” the second– an “instance . . . when the business belongs to the landowner and there is a total taking of the business,” also seems to apply. McMeans, the landowner, does “own the business,” after all, even as “the business,” MLI, leases the land from McMeans.
Alternatively, as a matter of practical corporate law practice and parlance, “the business” and MLI may not be synonymous here. The possible confusion raised in the previous paragraph does illuminate the rub of this case, however. The administration of the power of eminent domain, in its compensatory facet, must balance the interests of those with direct interests in the taken property against those of the general public, the ultimate source of the compensatory funds. Double dipping by someone like McMeans harms the public at large. Additionally, when a corporate personhood element is in play, respecting corporate formalities is important in every case in order to protect the interests of, for example, leasehold tenants that lack a close legal relationship to the landowner.
Whatever entity “owns the business” in the McMeans case, there was only one business operating on the taken land, and the state therefore should pay, at most, one business-loss claim. In McMeans, as a practical matter, it did not make a difference whether McMeans or MLI brought the business-loss claim, as sole owner of MLI; McMeans was going to receive the money either way. By allowing only MLI to bring the business-loss claim, the court reached the correct result: it protected the citizens of Georgia from paying a windfall, and it protected the independent right of others with leasehold interests to recover in future condemnation actions.
The Unconstitutionality of the Affordable Care Act: A Comparative Case Study in Enforcement Discretion
The Affordable Care Act already has survived direct and indirect legal challenges in the courts, the early stages of which I analyzed here three years ago.
Facial legal challenges cast aside, the health reform legislation is facing a fresh round of scrutiny in 2013 as the time for implementation of the law has arrived.
In July, the President stated that he was suspending the law’s “employer mandate” provision for one year, meaning that employers would have additional time to meet their obligations under the Act. As former federal judge Michael McConnell explained, however, the president does not have the authority to refuse to enforce certain portions of a law:
President Obama’s decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.
Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.
This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II’s use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”
To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.
Michael McConnell, Obama Suspends the Law, Wall Street Journal, July 8, 2013 (emphasis added).
McConnell closed his article by explaining that such unauthorized executive action is likely to remain unchecked and could have ongoing, troublesome consequences:
The courts cannot be counted on to intervene in cases like this. As the Supreme Court recently held in Hollingsworth v. Perry, the same-sex marriage case involving California’s Proposition 8, private citizens do not have standing in court to challenge the executive’s refusal to enforce laws, unless they have a personal stake in the matter. If a president declines to enforce tax laws, immigration laws, or restrictions on spending—to name a few plausible examples—it is very likely that no one will have standing to sue.
Of all the stretches of executive power Americans have seen in the past few years, the president’s unilateral suspension of statutes may have the most disturbing long-term effects. As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress “would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.”
In support of his selective enforcement approach, subsequently used again to try to make good on his promise that Americans could retain existing health insurance coverage (which the Affordable Care Act actually did not allow in some circumstances), the President relied upon “an expansive reading of Heckler v. Chaney, an important Supreme Court decision from 1985 [in which] the Court held that agencies have wide discretion to decide whether, when, and how to enforce the law“:
No agency, the Court explained, has enough resources to police every technical legal violation. Instead, agencies must set priorities based on a host of factors—the harm caused by the violation, the likelihood of prevailing, the need to conserve scarce resources, and the like. Courts shouldn’t second-guess how an agency weighs all those factors. Enforcement, in the legal jargon, is “committed to agency discretion by law.”
Nicholas Bagley, Is Obama’s “like it/keep it” fix legal?, The Incidental Economist (Nov. 18, 2013, 8:00 AM). Professor Bagley, someone not unsympathetic to the Affordable Care Act, doubts the viability of the President’s discretionary enforcement approach. Echoing McConnell, above, he writes that the President may have stretched Heckler‘s discretionary principle too far: “Although federal agencies have wide discretion to decline to prosecute, they can’t dispense with the law altogether. That would contravene the President’s constitutional duty to ‘take Care that the Laws be faithfully executed.’” Id. In setting out the reasons why he doubted the President’s authority to act in this context and manner, Bagley explained that, in effect, the President simply was rewriting the law:
Heckler’s general assumption that agencies have enforcement discretion can be rebutted where a statute constrains that discretion. Here, the ACA probably does. On Thursday, the president acknowledged that he was trying to “fix” the ACA’s grandfather clause, which, in his view, was drafted too narrowly. But doesn’t that clause stand as persuasive evidence that the plans that it covers are the only ones that Congress wanted to grandfather? Whatever the scope of its enforcement discretion, the administration probably can’t exercise that discretion to deliberately rewrite the statute.
Whether or not requiring such disclosure is a good idea, I am aware of no provision in the law that authorizes such a requirement and, more importantly, I do not see how the Administration can impose such a requirement through an exercise of its enforcement discretion outlined in a press conference and a guidance letter. Put another way, if the Administration wishes to impose such an obligation on insurers, it could conduct a rulemaking and promulgate regulations. What it cannot do is simply announce that it will forbear enforcing the law provided that regulated entities “voluntarily” agree to a new, unauthorized set of regulatory requirements.
Jonathan Adler, More on the Legality of the Latest ObamaCare Fix, The Volokh Conspiracy (Nov. 18, 2013, 11:52 PM).
The simple lesson here is that, while the executive branch has some discretion in how it enforces laws, it generally must live with the terms of laws as passed by Congress and signed by the President.
Beyond the the primary question of enforcement discretion is the question of the President’s discretion to exercise that discretion. While he was willing to do so in July to ease the burden of the Affordable Care Act on businesses, as described above, he was not willing to short circuit Congress in November, when he was asked to ease the burden on immigrant families being split up as a result of deportation. Perhaps the criticism he received about his handling of the Affordable Care Act imparted upon him a newfound respect for congressional authority, the Constitution’s separation of powers, and Article II, Section 3′s Take Care Clause.
President Barack Obama renewed his call for the House to pass immigration legislation, framing the issue as crucial to boosting the U.S. economy in remarks that also included an unscripted exchange with a young man protesting deportations.
“When it comes to immigration reform, we have to have the confidence to believe we can get this done, and we should get it done,” Mr. Obama said. “The only thing standing in our way right now is the unwillingness of certain Republicans in Congress to catch up with the rest of the country.”
During his speech, the president was interrupted by a protester who urged him to take immediate executive action to halt deportations, saying that his own family had been separated.
The president told the man—who later identified himself to reporters as 24-year-old Ju Hong —that he couldn’t take direct action without the cooperation of Congress.
“The easy way out is to try to yell and pretend like I can do something by violating our laws,” Mr. Obama replied. “And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal that you want to achieve. But it won’t be as easy as just shouting.”
Deportations have become a central issue for immigrant-rights groups as prospects for legislation have dimmed. Nearly 12 million immigrants live in the U.S. illegally, according to the nonpartisan Pew Hispanic Center. The Obama administration has been deporting about 400,000 immigrants annually, more than during the Bush administration.
Alejandro Lazo, Obama Immigration Speech Gets Heated Input, Wall Street Journal, Nov. 25, 2013.
This secondary level of discretion practically illustrates the danger to democracy this brand of selective enforcement presents. To place President Obama’s exercise of this discretion in context,
Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed [that the president may decline to enforce laws he believes are unconstitutional, but that he has no authority to refuse to enforce a statute he opposes for policy reasons]. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.
One yearTwoThreeFour years ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten.
My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. Things have slowed down here a bit in the past year, but with
nearly 3,500over 9,700nearly 1417,000 views in the first yeartwothreefour years, I still think we’re off to a good start.
Thank you for your readership and feedback.
A study making headlines today purports to conclude that Oreo cookies are “just as addictive as cocaine.” If a scientific study showed that a popular snack food had the addictive properties of a narcotic substance, popular press headlines would be appropriate. The study in question plainly does not support that conclusion, however.
The researchers conducted the study as follows:
On one side of a maze, they would give hungry rats Oreos and on the other, they would give them a control – in this case, rice cakes. . . . Then, they would give the rats the option of spending time on either side of the maze and measure how long they would spend on the side where they were typically fed Oreos.
. . .
They compared the results of the Oreo and rice cake test with results from rats that were given an injection of cocaine or morphine, known addictive substances, on one side of the maze and a shot of saline on the other. Professor Schroeder is licensed by the U.S. Drug Enforcement Administration to purchase and use controlled substances for research.
The research showed the rats conditioned with Oreos spent as much time on the “drug” side of the maze as the rats conditioned with cocaine or morphine.
From these two independent tests, it only seems possible to draw two independent conclusions: 1) rats like Oreos more than rice cakes, and 2) rats like cocaine or morphine more than saline. Plainly, because the testing did not directly compare Oreos and cocaine, it would be inappropriate to draw a conclusion that directly compares Oreos and cocaine.
From these two, independent tests, we do not know whether rats prefer Oreos in equal measure, for example, to cocaine. One seemingly easy way to find out would have been to ask them directly to choose between Oreos and cocaine, and it is strange that the researchers did not conduct such a test.
The testing conducted also appears to conflate preferentiality with addictiveness. Establishing that “hungry rats” consistently prefer one type of food over another does not necessarily mean that they are addicted to the preferred food option. The addictive force in a person would seem to be stronger than and fundamentally different from a mere preferential force; indeed, the power of addiction is that it can compel a being to act against its preferences in order to serve the addiction.
All we know from this research is that hungry rats would rather eat Oreos than rice cakes, not that the Oreos were “addicting” in a non-colloquial sense. A behavioral test for Oreos’ addictive properties might be whether rats choose Oreos over other, equally or more desirable food, or whether they eat Oreos even when they are not hungry, or otherwise consume Oreos to their detriment.
Addiction surely has a neurological component as well, but again, the difference between preference (or pleasure) and addiction (or need) would seem to be important. In follow-up research, one of the student-researchers conducted some neurological testing:
They used immunohistochemistry to measure the expression of a protein called c-Fos, a marker of neuronal activation, in the nucleus accumbens, or the brain’s “pleasure center.”
“It basically tells us how many cells were turned on in a specific region of the brain in response to the drugs or Oreos,” said Schroeder.
They found that the Oreos activated significantly more neurons than cocaine or morphine.
“This correlated well with our behavioral results and lends support to the hypothesis that high-fat/ high-sugar foods are addictive,” said Schroeder.
That we derive more pleasure from consuming Oreos than from consuming cocaine or morphine is interesting, but it does not necessarily mean that consuming Oreos creates the pervasive neurological shift that constitutes addiction. (This is probably why the researchers only describe a “correlat[ion]” on this point.)
As someone without formal neuroscience training, my assessment of this study and the conclusions drawn from it certainly may be incorrect, but my criticism seems obvious, appropriate, and easily addressed (and remedied, if necessary). I do not mean to suggest that this Connecticut College group is the only scientific research team susceptible to this critique, as the popular science news contains plenty of examples. Maybe something that seems obvious– Why not compare Oreos and cocaine directly?– to a lay reader like me would never occur to the trained researchers because it is not a scientifically relevant inquiry. If the scientific community wants to present its work to a popular audience, however, it should shed the thin veneer of social justice concerns, which the Connecticut College group attempted to apply, and focus on addressing that audience’s natural curiosities, which are particularly likely to arise in response to sensational headlines like “Oreos as ‘addictive as cocaine.’“
The growth of media and communication technology has provided us with greater volumes of utterances from more people than ever before. It is easy to capture the unfiltered, unvarnished thoughts of a broader portion of society. With emphases on access and immediacy, people are publishing more of their regrettable opinions, jests, thoughts, and other statements that upset members of their audience.
Setting aside an evaluation of the person-by-person authenticity of the widespread responses to off-color jokes, for example, the speakers’ apologetic responses to the reaction to these increasingly frequent statements have settled into a pattern that merits brief examination.
A recent instance of this now-reflexive call and response came earlier this month. MMA fighter and media personality Chael Sonnen was on Fox Sports Live, new sports network Fox Sports 1′s version of ESPN’s SportsCenter, to discuss boxer Floyd Mayweather’s match against Canelo Alvarez. Criticizing the perceived quality of Mayweather’s recent opponents, Sonnen said:
I’ve never seen anybody in the history of America get so rich and so famous off of having complete wimps throwing punch at their faces. I know what you’re saying. You’re saying, “Well, it’s happened before, what about Rihanna?”
Video of the segment is available here.
Sonnen’s inartful, imperfect analogy between Mayweather, who happened to have served jail time for domestic abuse, and Rihanna, a pop singer and a domestic abuse victim, triggered the issuance of an apology from the network before Sonnen’s remarks could blossom into a larger controversy:
FOX Sports regrets the comments Chael Sonnen made during last night’s edition of FOX Sports Live. They were an inappropriate attempt at humor that Sonnen acknowledges shouldn’t have been made and he apologizes to anyone who may have been offended by his remarks.
This cycle– statement, reaction, apology– has become both rote and swift in American media culture, to the point where a) the reaction phase no longer is a necessary way station before the apology, and b) the apology itself has become formulaic, always addressed to “anyone who may have been offended.”
The ubiquitous and seemingly harmless addendum about “anyone who may have been offended” is, at best, counterproductive. First, while the phrase usually comes at the end of the “apology,” blunting and qualifying what otherwise might simply be, “I’m sorry,” it actually indicates a limited, defined audience for the “apology.” Rather than allowing for a statement that could be simultaneously broader and more direct, this phrase shifts the attention and onus from the person who made the original statement to those people upset by the remark and whose sensibilities ostensibly necessitated the apologetic charade. This linguistic shift then draws negative attention to these supposedly overly sensitive people, who, it then will be said, must be members of the “P.C. police,” seeking nothing more than the suppression of free speech and the enforcement of antiquated moral values.
Second, and perhaps more fundamentally, the phrase renders the apologetic nature of the statement, because it refuses to acknowledge that even one person actually upset by the statement exists; at best, it is a conditional apology. A conditional apology is no apology at all, particularly where the apology’s recipients are not equally able to engage in dialogue with the apology’s issuer.
To remedy these deficiencies, in reverse order: 1) change “anyone” to “those” and “may have been” to “were,” so that the apology is addressed to “those who were offended” and the focus remains on the person apologizing, and 2) remove the phrase altogether. “I’m sorry for saying what I said” works just fine on its own.