ProfessorBainbridge.com

Wine Label Law

The Supreme Court declined to review a California decision holding that upheld a state law precluding the use of the word Napa on wine labels unless 75% of the wine in the bottle comes from Napa County. (Story) It's a big win for consumers, banning an increasingly common form of misleading advertising.

The underlying California Supreme Court decision is available here. Here's what I think is the key quote:

California is recognized as a preeminent producer of wine, and the geographic source of its wines--reflecting the attributes of distinctive locales, particularly the Napa Valley — forms a very significant basis upon which consumers worldwide evaluate expected quality when making a purchase. We do not find it surprising that Congress, in its effort to provide minimum standards for wine labels, would not foreclose a state with particular expertise and interest from providing stricter protection for consumers in order to ensure the integrity of its wine industry.

Neither do I. It would have been more surprising if Congress had intended to authorize misleading brand identification by these two buck rip-off artists.

Napa Wins One

The Supreme Court declined to review a California decision holding that upheld a state law precluding the use of the word Napa on wine labels unless 75% of the wine in the bottle comes from Napa County. (Story) It's a big win for consumers, banning an increasingly common form of misleading advertising.

Avoiding the Nuclear Option

As Republicans continue to try to figure out ways of dealing with continuing Democrat obstructionism over judicial appointments, former Tory leader Iain Duncan Smith offers up a cautionary tale on the demise of the filibuster in Parliament:

In 1887 a group of Irish Nationalist and Liberal members of Parliament brought the House of Commons to a standstill. Outraged by the Irish Crimes Bill, which imposed draconian sanctions on campaigners for Irish home rule, the rebel M.P.'s filibustered discussion for more than a month, forcing numerous all-night sittings and making government business impossible. But they failed to stop the bill, and in the process they stretched parliamentary procedures beyond the breaking point. The Conservative government then in power accused the Irish M.P.'s of unreasonable obstructionism and, by a substantial majority, it introduced the modern parliamentary "guillotine," which allows government ministers to set a cutoff for parliamentary debates.

The guillotine was sold to Parliament as an exceptional device to counter exceptional behavior by minorities. Today, however, British governments use guillotining and similar powers to curtail debate as a matter of course. The guillotine no longer applies merely to unreasonable behavior but is used routinely to gag parliamentarians.

Well so what, you ask? Smith answers:

A dangerous combination of frenzied news coverage and trigger-happy legislators has put many bad laws onto statute books across the world. As the old saying goes, providence moves slowly but the devil always hurries. Bicameral legislatures, powers of filibuster, and the need for supermajorities on issues of vital importance are useful blocks on devilish legislation.

A fair point. So is there a way to deal with Democrat obstructionism without going nuclear? Former Republican Senators Jim McClure and Malcolm Wallop think so:

For starters, the president can "go to the country," barnstorming the home states of certain members to force a change of heart. Within the Senate itself, there is the two-speech rule limiting the number of times a member may speak on the same topic within a "legislative day," which could continue indefinitely. Like all the other Senate rules, the two-speech rule has been carried over from the last Congress, no matter what anyone asserts to the contrary. It could eventually strangle an initial judicial filibuster, and it would make subsequent ones far less likely.

Personally, I doubt whether either of their suggestions will do much good. But their cautionary remarks about the effects of the nuclear option strengthen Smith's cautionary tale.

Michael Barone Coins a Good One

Michael Barone coins a new political term: "the trustfunder left."

Who are the trustfunders? People with enough money not to have to work for a living, or not to have to work very hard. People who can live more or less wherever they want. The "nomadic affluent," as demographic analyst Joel Kotkin calls them.

These people tend to be very liberal politically. Aware that they have done nothing to earn their money, they feel a certain sense of guilt. At the elite private or public high schools they attend, and even more at their colleges and universities, they are propagandized about the evils of capitalism and globalization, and the virtues of environmentalism and pacifism. Patriotism is equated with Hiterlism.

Their loyalties, as Samuel Huntington explains in "Who Are We?," are not national, but transnational -- they are citizens of the world with contempt for those who feel chills up their spines when they hear "The Star Spangled Banner." They are taught to have contempt for the economic contribution they make to their country as investors and to feel guilty if they make no other contribution. Their penance is that they must vote left.

Barone concludes:

The good news for Democrats is that they have found a new source of votes and money. The bad news is that an important part of their core constituency has the characteristic that the British Prime Minister Stanley Baldwin ascribed to the press, "power without responsibility, the prerogative of the harlot throughout the ages."

Ouch.

One More Justification for Tort Reform

From Confederate Yankee:

Rachel Corrie's parents are suing the IDF, the State of Israel, and Caterpillar, Inc. because Corrie, a pro-Palestinian activist, stood in front of a bulldozer where the operator has severely restricted line-of-sight and decided to play "chicken."

Why drag poor Caterpillar into it? It's just one more case of suing everybody in sight, whether they have any real moral culpability or now. Sheesh.

Update: Walter Olson explains that the lawsuit:

... alleges that Caterpillar violated international and state law by providing specially designed bulldozers to Israeli Defense Forces, knowing the machines would be used to demolish homes and endanger people."

Still seems like a pretty weak case to me.

Carney on SOX and Going Private

Bill Carney's got a very interesting new paper on SSRN evaluating a critical question:

The enactment of the Sarbanes-Oxley Act ("SOX") in 2002 may represent the final act in regulation of corporate disclosure. By that I mean that regulation

may have reached the point where the costs of regulation clearly exceed its benefits for many corporations. When the securities acts were originally enacted in the 1930s, one justification was that they would restore investor confidence and allow honest businesses to raise capital once again. The relevant question today is

whether regulation has gone so far that honest businesses, at least those of modest size, are being forced to consider abandoning public markets for less regulated private markets.

More From the "It's Enough to Make You a Libertarian" Department

Congressman Henry Waxman on the baseball-steroid hearing:

"Given this problem, we've got to do something about it," Waxman said. (Link)

Look. It's bad enough that the House Committee decided to hold a publicity stunt hearing on this topic. But if all the Congressmen were doing was abusing their investigatory powers so as to get some free TV time, I wouldn't mind (too much, anyway). But why does the federal government have to get involved in what is basically a labor relations issue? Why not devote their time and effort to a real problem, such as - oh, I don't know - the freaking deficit?

James Joyner has more, with analysis of whether the Committee has jurisdiction.

From the "It's Enough to Make You a Libertarian" Department

Terrance Powell of the Los Angeles County Department of Health Services recently made a shocking discovery: Wild mushrooms grow in the wild! My God! Something must be done!

And so Mr. Powell has done something no other health commissioner in the state has done. He has banned the sale of wild mushrooms at farmer's markets unless the vendor complies with extensive and expensive disclosure requirements. This, as the LA Times reported, despite the fact:

No reports of anyone getting sick from mushrooms preceded the county's action. In fact, there has never been a report from any state or local health organization of anyone in the United States becoming ill from wild mushrooms purchased in a store or farmers market or eaten in a restaurant.

It's a non-problem. But that never stops the safety cops from butting their busybody noses in where they aren't needed. Or, as George Wallace put it, "what we have here is another example of throwing resources at a perceived risk far out of proportion to the degree of that risk." As for me, I'm going to find some fresh morels this season even if I have to smuggle them across the county line.

From the "It's Enough to Make You a Libertarian" Department

Terrance Powell of the Los Angeles County Department of Health Services recently made a shocking discovery: Wild mushrooms grow in the wild! My God! Something must be done!

And so Mr. Powell has done something no other health commissioner in the state has done. He has banned the sale of wild mushrooms at farmer's markets unless the vendor complies with extensive and expensive disclosure requirements. This, as the LA Times reported, despite the fact:

No reports of anyone getting sick from mushrooms preceded the county's action. In fact, there has never been a report from any state or local health organization of anyone in the United States becoming ill from wild mushrooms purchased in a store or farmers market or eaten in a restaurant.

It's a non-problem. But that never stops the safety cops from butting their busybody noses in where they aren't needed. Or, as George Wallace put it, "what we have here is another example of throwing resources at a perceived risk far out of proportion to the degree of that risk." As for me, I'm going to find some fresh morels this season even if I have to smuggle them across the county line.

Volokh: Pro-State-Sponsored Lynching?

My friend and colleague Eugene Volokh enthuses over the brutal execution of a depraved serial killer by the Iranian government. Over at the Right Coast, Maimon Schwarzschild offers a very persuasive reply:

This man was "executed" by being publicly tortured to death, with relatives of the victims egged on by the authorities to participate. It was a lynching, and lynching is not the "rule of law": lynching is what the rule of law is meant to sublimate and replace.

... [In Iran], executions in this fashion are common for "culprits" who are not serial killers. People are executed in this way for political offences, and certainly for acts that would scarcely be crimes in most countries. The psychology of the situation, though, is that all such executions are more "legitimate" if any of them is. This may not be logical, but I don't doubt that the Mullahs are shrewd in thinking along these lines.

It is no accident that civilised countries don't torture people to death. One reason is that there's no way, really, of restricting the torture to people who "deserve" it. On the contrary, torture obviously encourages bloodlust, and Hobbesian behaviour generally. Is it coincidental that the Iranian authorities are channelling popular rage in South Tehran -- the poorer part of the capital -- towards this wretched man, at a time that their regime is threatened and democratic aspirations are mounting?

Go read both, please.

Update: Clayton Cramer's critique of Volokh's position is also well worth reading.

Chemerinsky

Duke law professor (and regular on Hugh Hewitt's show) Erwin Chemerinsky has been quoted fairly regularly of late supporting the Senate Democrat's use of the filibuster to block judicial nominations and opposing the so-called nuclear option by which the GOP would bypass the filibuster rule. E.g.:

• "The filibuster serves as a check against the most extreme nominees being on the bench," said Duke University law professor Erwin Chemerinsky. (Link)
• "If the Republicans try to do this, the Democrats will grind the Senate to a halt," said Erwin Chemerinsky, a Duke University law professor who also has researched filibusters. "So much operates on a consent calendar, and the Democrats can keep that from happening." (Link)
• "Without the filibuster, 51 Senators reflecting a relatively small percentage of the country's population can pass anything. In the new Congress, for example, the 45 Democratic Senators represent a majority of the population in the country. The filibuster is a way of making sure that the minority's will does not trump the majority's. Also, the filibuster has been a key check in a constitutional system that is all about checks and balances. Without the filibuster, there is no limit at all on the ability of the President to put anyone he wants on the Supreme Court, no matter how extreme the individual's views." (Link)

Huh. The next time Chemerinsky goes on Hugh's radio show, Hugh ought to ask him about his 1997 article in the Stanford Law Review, in which Chemerinsky and Catherine Fisk "first conclude that a judicial challenge to the Senate rules that permit it would be justiciable if brought by the proper plaintiffs. They then conclude that, although the filibuster itself is not unconstititutional, the Senate rule that prohibits a majority of a newly elected Senate from abolishing the filibuster is unconstitutional because it impermissibly entrenches the decisions of past Congresses." (Link) Obviously, Chemerinsky is allowed to change his mind, but 8 years ago he apparently believed that the nuclear option was permissible. I think he owes us an explanation.

Juan Non- Volokh and Patterico were on the case earlier, BTW.

Posner and Cardozo

Like them or not, there is no denying that Benjamin Cardozo and Richard Posner will go down as two of the most influential legal thinkers in our nation's history. Law professor Larry Cunningham posted to SSRN a very interesting paper comparing and contrasting their approaches to contract law:

This article critically evaluates the major judicial opinions on the law of contracts written by Judges Benjamin N. Cardozo and Richard A. Posner. Respectively, these judges are the first and third most influential judges on the subject measured by the frequency with which contemporary contracts casebooks reproduce their opinions. Exploring dozens of classic opinions of these judicial titans, the piece contrasts the philosophies and methods the two judges employ in wrestling with many fundamental challenges in contract law, from formation to performance to damages. The inquiry suggests that, using Isaiah Berlin's nomenclature, Judge Cardozo is the fox of American contract law while Posner is its hedgehog. Judge Cardozo displayed the thickly-textured doctrinalist, an optimizer of competing objectives; Judge Posner is a maximizer. (Accompanying tables report data on the contributions of the 15 most influential judges contributing to contract law.)

(Via Larry Solum; thanks to Howard Bashman for a correction.) I've often thought you learn more about a judge from his everyday opinions than the ones he writes for the history books. This article stands as solid evidence for that proposition; I came away from it with a renewed appreciation for both judges.

BTW, Cunningham also has an interesting paper Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting, which addresses an important topic in regulation:

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil and administrative sanctions, yet private actors generate, control and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach and no framework exists to facilitate analysis. ...

The problem is familiar to us securities lawyers, who constantly deal with privately-promulgated accounting standards. Cunningham ambitiously (but correctly) asserts that:

The Article appeals to scholars of administrative law, theorists concerned with intellectual property law and its broader political and public policy contexts, and those interested in informational and standard-setting aspects of accounting. Contributions will be of practical use to governmental officials who look to private standards in their regulatory functions, standard-setters in developing standards to aid those officials, and judges in resolving disputes involving citizens subject to or using these standards.

Lovecraft

I mentioned the other day that I much admire the science fiction of Charlie Stross, even though I have no sympathy for his personal views on religion and politics (or probably much else, for that matter). Another ink-stained wretch who falls into that same category, albeit one of far greater renown, is the great master of horror H.P. Lovecraft. As John Miller recently observed, in a review well worth reading in full, Lovecraft's take on the world was a profoundly sick one:

He was a thoroughgoing materialist--a socialist in his politics and an atheist in his beliefs. "Now all my tales are based on the fundamental premise that common human laws and interests and emotions have no validity or significance in the vast cosmos-at-large," he wrote upon successfully resubmitting the original Cthulhu story. "One must forget that such things as organic life, good and evil, love and hate, and all such local attributes of a negligible and temporary race called mankind, have any existence at all."

That's nihilism, of course, and we're free to reject it. But there's nothing creepier or more terrifying than the possibility that our lives are exercises in meaninglessness. "As flies to wanton boys are we to the gods," says Gloucester in King Lear. "They kill us for their sport." From Lovecraft's perspective, this gives us far too much credit. In his grim milieu, we don't even rate as insect pests, but we still manage to get ourselves squished.

Hardly the sort of world view likely to appeal to a good Catholic conservative lad like myself, of course. And, if I paid attention to the good old Index Librorum Prohibitorum, I should probably find myself in trouble.

But I dote on horror stories and, perhaps because his personal world view was so yucky (to use a technical term of literary criticism), nobody did it better than Lovecraft. To return to Miller's take:

"The Call of Cthulhu" is also strangely engrossing, and contains many elements that will be familiar to fans of "The Da Vinci Code" by Dan Brown: The main character is an Ivy League professor determined to investigate ancient mysteries and their lingering effects on the present day. Readers who become accustomed to Lovecraft's writing style may find that it possesses a florid eloquence.

They will also appreciate his skill at producing a sense of mounting dread. Lovecraft knew what to place onstage as well as what to leave inside the haunted imaginations of his readers. "The oldest and strongest emotion of mankind is fear," he once wrote, "and the oldest and strongest kind of fear is fear of the unknown." If Lovecraft had been a film director, he might have come up with a movie much like "The Blair Witch Project," only scarier.

Indeed. It was a secret shared by another favorite of mine, J.R.R. Tolkien. One of the many things that distinguishes The Lord of the Rings from run-of-the-mill hack fantasy is Tolkien's awareness that the really bad stuff (Sauron, in particular) is scarier if kept off stage. Each individual reader will tailor his/her mental image of Sauron to maximize its effectiveness, something no writer could match. Likewise, Gandalf seems so powerful precisely because we almost never see him do any real magic. His powers just sort of loom in the background. Too many modern writers have completely lost touch with this basic skill, which is one of many reasons so much modern horror or fantasy sucks.

Anyway, Lovecraft's best work is now available in a lovely Library of America edition. Try it. You might like it.

Posner and Cardozo

Like them or not, there is no denying that Benjamin Cardozo and Richard Posner will go down as two of the most influential legal thinkers in our nation's history. Law professor Larry Cunningham posted to SSRN a very interesting paper comparing and contrasting their approaches to contract law:

This article critically evaluates the major judicial opinions on the law of contracts written by Judges Benjamin N. Cardozo and Richard A. Posner. Respectively, these judges are the first and third most influential judges on the subject measured by the frequency with which contemporary contracts casebooks reproduce their opinions. Exploring dozens of classic opinions of these judicial titans, the piece contrasts the philosophies and methods the two judges employ in wrestling with many fundamental challenges in contract law, from formation to performance to damages. The inquiry suggests that, using Isaiah Berlin's nomenclature, Judge Cardozo is the fox of American contract law while Posner is its hedgehog. Judge Cardozo displayed the thickly-textured doctrinalist, an optimizer of competing objectives; Judge Posner is a maximizer. (Accompanying tables report data on the contributions of the 15 most influential judges contributing to contract law.)

(Via Larry Solum; thanks to Howard Bashman for a correction.) I've often thought you learn more about a judge from his everyday opinions than the ones he writes for the history books. This article stands as solid evidence for that proposition; I came away from it with a renewed appreciation for both judges.

BTW, Cunningham also has an interesting paper Privat e Standards in Public Law: Copyright, Lawmaking and the Case of Accounting, which addresses an important topic in regulation:

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil and administrative sanctions, yet private actors generate, control and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach and no framework exists to facilitate analysis. ...

The problem is familiar to us securities lawyers, who constantly deal with privately-promulgated accounting standards. Cunningham ambitiously (but correctly) asserts that:

The Article appeals to scholars of administrative law, theorists concerned with intellectual property law and its broader political and public policy contexts, and those interested in informational and standard-setting aspects of accounting. Contributions will be of practical use to governmental officials who look to private standards in their regulatory functions, standard-setters in developing standards to aid those officials, and judges in resolving disputes involving citizens subject to or using these standards.

Lovecraft

I mentioned the other day that I much admire the science fiction of Charlie Stross, even though I have no sympathy for his personal views on religion and politics (or probably much else, for that matter). Another ink-stained wretch who falls into that same category, albeit one of far greater renown, is the great master of horror H.P. Lovecraft. As John Miller recently observed, in a review well worth reading in full, Lovecraft's take on the world was a profoundly sick one:

He was a thoroughgoing materialist--a socialist in his politics and an atheist in his beliefs. "Now all my tales are based on the fundamental premise that common human laws and interests and emotions have no validity or significance in the vast cosmos-at-large," he wrote upon successfully resubmitting the original Cthulhu story. "One must forget that such things as organic life, good and evil, love and hate, and all such local attributes of a negligible and temporary race called mankind, have any existence at all."

That's nihilism, of course, and we're free to reject it. But there's nothing creepier or more terrifying than the possibility that our lives are exercises in meaninglessness. "As flies to wanton boys are we to the gods," says Gloucester in King Lear. "They kill us for their sport." From Lovecraft's perspective, this gives us far too much credit. In his grim milieu, we don't even rate as insect pests, but we still manage to get ourselves squished.

Hardly the sort of world view likely to appeal to a good Catholic conservative lad like myself, of course. And, if I paid attention to the good old Index Librorum Prohibitorum, I should probably find myself in trouble.

But I dote on horror stories and, perhaps because his personal world view was so yucky (to use a technical term of literary criticism), nobody did it better than Lovecraft. To return to Miller's take:

"The Call of Cthulhu" is also strangely engrossing, and contains many elements that will be familiar to fans of "The Da Vinci Code" by Dan Brown: The main character is an Ivy League professor determined to investigate ancient mysteries and their lingering effects on the present day. Readers who become accustomed to Lovecraft's writing style may find that it possesses a florid eloquence.

They will also appreciate his skill at producing a sense of mounting dread. Lovecraft knew what to place onstage as well as what to leave inside the haunted imaginations of his readers. "The oldest and strongest emotion of mankind is fear," he once wrote, "and the oldest and strongest kind of fear is fear of the unknown." If Lovecraft had been a film director, he might have come up with a movie much like "The Blair Witch Project," only scarier.

Indeed. It was a secret shared by another favorite of mine, J.R.R. Tolkien. One of the many things that distinguishes The Lord of the Rings from run-of-the-mill hack fantasy is Tolkien's awareness that the really bad stuff (Sauron, in particular) is scarier if kept off stage. Each individual reader will tailor his/her mental image of Sauron to maximize its effectiveness, something no writer could match. Likewise, Gandalf seems so powerful precisely because we almost never see him do any real magic. His powers just sort of loom in the background. Too many modern writers have completely lost touch with this basic skill, which is one of many reasons so much modern horror or fantasy sucks.

Anyway, Lovecraft's best work is now available in a lovely Library of America edition. Try it. You might like it.

Update: Be sure to follow the trackback link to Mark Coffey's Decision '08 blog.