“Rational Self-Interest and Libertarian Magic Dust”

This video is well worth the 59 seconds of your life it will take to watch it. Enjoy, and have a fine weekend here in Socialist Hell.

Capital Punishment Avoids Execution

The 2009 Session of the 67th Colorado General Assembly adjourned sine die on Wednesday.  House Bill 1274, which would have abolished capital punishment in Colorado and channelled additional funds to the Colorado Bureau of Investigation’s cold case unit, went down to a narrow 18-17 defeat in the state senate. Democratic Senators Mary Hodge, Jim Isgar, John Morse and Lois Tochtrop sided with the senate’s fourteen Republicans in voting to keep capital punishment. Earlier, the bill passed the state house of representatives by an equally slender vote of 33-32.

For now, at least, troglodytic Old Testament savagery is safe in Colorado.

And what would Gov. Ritter have done had the bill passed? He ain’t sayin’.

CERCLA Jerk

On Monday, the U.S. Supreme Court decided Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. ____ (2009) (pdf, 27 pages). At issue was the scope of liability for environmental cleanup costs under the federal Comprehensive Environmental Response, Compensation and Liability Act (”CERCLA”). In brief and grossly oversimplified terms, CERCLA authorizes certain federal and state agencies to clean up contaminated lands and collect the costs of cleanup from certain types of entities Congress deemed responsible.

Among the parties that can be held liable for cleanup costs are those who “arrange[] for disposal . . . of hazardous substances” on the site. The Court ruled that “arranger liability” requires a finding that the defendant intended that at least some of the hazardous material at issue would be disposed of on the site in question; mere knowledge or foreseeability of disposal on the land is not enough.

CERCLA imposes a general rule of joint and several liability for cleanup costs. In other words, if more than one entity contributed to the problem, any one of those entities can be compelled to pay the full cost of cleanup. In effect, joint and several liability places the risk of insolvency of one co-defendant on the other co-defendants rather than the plaintiff. However, CERCLA provides that each defendant is liable for only a proportionate share of the cleanup costs (several-only liability) if “there is a reasonable basis for determining the contribution of each cause to a single harm.” The Supreme Court arguably lowered the bar for obtaining several-only liability by approving the trial court’s apportionment, which suffered from what appears to be a rather serious lack of evidentiary support.

A hoity toity law firm’s analysis of Burlington is available here. I’m not especially interested in these cases, but I blogged about this one because it’s morally repugnant to pass on an opportunity to use  the term “CERCLA jerk.”

Judge McConnell leaving 10th Circuit

The U.S. Court of Appeals for the Tenth Circuit announced yesterday that Judge Michael McConnell is resigning effective August 31. After seven years on the bench Judge McConnell is returning to academia. He’s going to be a law professor and director of the Constitutional Law Center at the prestigious Stanford Law School.

Judge McConnell has served with distinction since being appointed to the Tenth Circuit in 2002 by President George W. Pencilcock. Here’s wishing Judge McConnell all the best in his new endeavor.

The Tenth Circuit’s official announcement, along with the resignation letter Judge McConnell send to President Obama, is available here (pdf, 4 pages).

CO Senate Republicans officially “malicious”

In times past I’ve draw attention to ColoradoSenateNews.com, the online voice of Republicans in the Colorado State Senate. The unintentional hilarity associated with watching Republicans lose their shit in print is usually well worth a mouse click or two, but no longer!

Colorado Independent reports that ColoradoSenateNews.com, “that rich vein of ‘news and information from the Senate Minority Office,’ has morphed from a public relations faux-news outlet to an Internet ‘attack site’!”  Seems that web browsers’ security protocols are flagging CSN as a site that hosts malware, computer software that worms its way into your computer to do damage and/or gather private information and send it to another computer. The site is apparently lousy with viruses as well.

Colorado Independent concludes that “It’s tempting to believe the Republican techies were just clumsy in their attempts to fish data from visitors; but it’s equally tempting to believe they cluelessly left the site exposed and were hacked.” Stated differently, our Colorado Senate Republican brethren are evil, incompetent or both. No surprises there.

In any event, let’s all stay away from CSN for the time being. It won’t be easy, I know, but worthwhile endeavors rarely are.

Republic collapses after court enjoins new regulations authorizing concealed weapons in national parks

Back in January 2008, I wrote about the efforts of forty-seven U.S. Senators to remedy a horrific injustice by urging the Secretary of the Interior to amend a couple of Reagan-era administrative regulations to protect the God-given right of all Americans to pack loaded, concealed weapons on lands under control of the National Park Service and the Fish and Wildlife Service.

Proving yet again that no idea was too stupid for the Bush administration to entertain, the Department of the Interior (”DOI”) swallowed the whole mess hook, line and sinker. The Department amended the existing rules to allow people to carry concealed, loaded, operable firearms in national parks and wildlife preserves so long as it’s legal in the state in which the park or preserve is located. See 73 Fed. Reg. 74,966, 74,972 (Dec. 10, 2008). The final rule took effect on January 9, 2009.

On March 19, 2009, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia granted a preliminary injunction against enforcement of the new regulation.  The injunction was issued in connection with two consolidated lawsuits, one filed by the Brady Campaign to Prevent Gun Violence and the other by the National Parks Conversation Association, the Coalition of National Park Service Retirees and the Association of National Park Rangers.

The outrage over the ruling is damn near palpable, a fact due in no small part to the fact that the National Rifle Association sought and received permission to intervene in both lawsuits as a defendant. The NRA has appealed the preliminary injunction ruling.

One needn’t look around the internet very far or hard to find some winger talking about how the preliminary injunction was wrong because Jesus gave us the right to have guns in the Second Amendment, as the Supreme Court itself recently recognized in District of Columbia v. Heller, 554 U.S. ___ (2008).  Going back to the old regs, which were born on the watch of former Interior Secretary and starry-eyed liberal hippie environmentalist freak James Watt, would deprive us of our most sacred and holy freedoms. So yes, as with most “conservative” “argument,” the basic thrust here is OMFG T3H FREADUM!!1!

Trouble is, these case have precisely jack shit to do with gun rights in general or the Second Amendment in particular. The validity of the amended rule boils down to the comparatively mundane question of whether DOI complied with applicable provisions of the National Environmental Protection Act (”NEPA”) in promulgating the new rule.

Generally, NEPA requires federal agencies to conduct a detailed environmental analysis (called an Environmental Impact Statement) of proposed agency action.  An EIS isn’t necessary if the agency conducts an Environmental Assessment (”EA”) and issues a “finding of no significant impact” presenting the reasons why the proposed action won’t have a significant impact on the human environment.

The Interior Department didn’t do any of that shit before promulgating the amended rules. It decided instead that its actions in amending the rule were subject to a statutory “categorical exclusion” from the EIS/EA requirement. Why? Four reasons: (1) the amendment was “strictly legal” in nature; (2) the amended rule won’t have any environmental effects because it doesn’t authorize any such effects; (3) people were allowed to carry concealed weapons on other federally owned lands with no indication of any increase in poaching, illegal firearms use or danger to the public; and (4) the amended rule maintains existing reastrictions on actual firearm use.

The court’s opinion and order granting the preliminary injunction (pdf, 44 pages) is available here. Getting a preliminary injunction against enforcement of a law is no easy job. The plaintiff has to prove:

(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.

The judge found that the plaintiffs cleared those imposing hurdles easily. As to substantial likelihood of success on the merits, the court found that “DOI’s Decision Memorandum reflects a significant misunderstanding of the obligations imposed by NEPA.” The statute required the agency to take a “hard look” at potential environmental impacts before implementing a new rule. DOI obviously didn’t do that here. The issue isn’t merely whether the amended rule authorizes environmental impacts but rather what environmental effects were foreseeable as a result of the rule.

DOI not only used the wrong legal standard but totally ignored its own long-standing view that the prior regulations prohibiting concealed weapons were “necessary to ensure public safety and provide maximum protection of natural resources by limiting the opportunity for unauthorized use of weapons.” The agency is free to amend its views, of course, but NEPA requires some explanation as to why the rationale underlying the prior rule no longer applies.

If that weren’t enough, DOI’s bare conclusion that the new regulation would have no environmental impact because the concealed weapons would likely never be used on federal land was belied by statements of numerous supporters of the amended rule submitted during the public comment period. Those supporters argued that the amendment was needed so that people can use concealed firearms for self-defense while on federal land. Oops.

NEPA doesn’t provide a direct right of action against administrative agencies, but NEPA’s requirements are enforceable through 5 U.S.C. § 706(2)(A), part of the federal Administrative Procedures Act, which provides that a court may set aside administrative agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” The court had no trouble finding a “substantial likelihood” of the plaintiffs proving that DOI’s actions were arbitrary and capricious with regard to NEPA requirements.

At this point, the lawsuits will proceed along the normal lines. Unless and until the preliminary injunction ruling is reversed on appeal, visitors to National Park Service and Fish and Wildlife Service lands are subject to the old regulations prohibiting concealed, functioning firearms. Despite the title of this blog entry, the republic remains intact despite Judge Kotelly’s commie ruling.

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Iowa Supreme Court torpedos gay marriage ban

Here I discusssed the August 30, 2007 decision in which an Iowa trial court judge held that the state statute limiting civil marriage to man-woman couples violated the due process and equal protection rights of same-sex couples under the state constitution. It was a big victory, especially considering that Iowa is pretty much the quintessential “heartland” state, but the decision was largely symbolic since the judge stayed his ruling pending the outcome of an appeal to the state supreme court.

Today the Iowa Supreme Court issued its own ruling in Varnum v. Brien. The court held UNANIMOUSLY (7-0) that the statute in question violated the state constitution’s equal protection clause. All the documents you’d ever want on the case, including the 69-page opinion and a much shorter summary, are available here.

This isn’t California or Taxachussets or some other wild-eyed, drug-addled hippie state, folks. This is goddamn IOWA. And the decision was unanimous. By contrast, the recent California Supreme Court ruling was 4-3.

Naturally, “conservatives” are already calling for an amendment to the state constitution that would overrule today’s decision. Fortunately for gay folk, amending the Iowa Constitution takes serious  time. Any amendment likely  wouldn’t take effect  until 2012.

In the meantime, we can all sit back and enjoy the inevitable tsunami of argumentum ad Santorum wherein “conservatives” scream bloody murder about how this ruling paves the way for people marrying donkeys and ventriloquist dummies and shit.

Ted Haggard: Class up the Ass

Disgraced former megachurch pastor and man-penis/methamphetamine enthusiast Ted Haggard is no stranger to this blog. Soon he will be no stranger to fans of the syndicate judge show Divorce Court, either.

Ted and his lovely wife, Gayle, continued their relentless efforts at restoring shine and functionality to the Haggard money making machine by sitting for an interview a few days back with Divorce Court “Judge” Lynn Toler. The show airs on April 1.

Lest there be any doubt about the matter, Gayle says:

Biblical principals of forgiveness, compassion, steadfastness and her husband’s genuine repentance helped Gayle through the darkest hours, she said, and she believes his struggles have deepened his Christian walk.

“I think he is better equipped to minister to people than ever before,” she said.

That’s right: better equipped to minister than ever before. It’s amazing what a Schedule I controlled substance and a dick up the ass will do for ya, eh Ted?

In any event, this teevee appearance comes hot on the heels of Haggard’s HBO documentary and the shitstorm of publicity accompanying that little venture. The Denver Post article linked above reveals that Ted and Gayle received an “undisclosed amount” for their Divorce Court appearance, and that Ted has multiple speaking engagements scheduled at “prominent U.S. evangelical churches.” Expect fleecing of the faithful and stupid to begin in earnest very soon.

Cases to Watch (CO Supreme Court)

Today the Supreme Court of Colorado granted cert. in Boles v. Sun Ergoline, Inc., No. 08 SC970. The issue is:

Whether the public policy of Colorado allows enforcement of an exculpatory agreement purporting to release a manufacturer from liability for possible future injuries caused by the manufacturer’s defective products.

The Court of Appeals didn’t designate its opinion for official publication, so that opinion isn’t publicly available.

Exculpatory clauses are nominally “disfavored” in this state, but they’re generally enforceable on some ridiculous freedom-of-contract theory absent some truly horrific disparity of bargaining power. Colorado also adheres to the near-universal rule that excupatory clauses are enforceable as against negligence claims, but are void as against public policy as applied to claims arising from willful and wanton conduct or some higher level of misconduct.

One of the issues in Boles will surely be what rules apply to enforcing exculpatory clauses as to “strict liability” claims. Strict liability means liability without proof of fault. In the product context, the idea is that someone injured in a product-related accident needn’t show that the manufacturer was negligent in designing, making or marketing the product. All the plaintiff has to do is prove that the product was defective and that the defect caused the plaintiff’s injuries. As a practical matter, though, proving that a product is “defective” under the applicable legal standards often involves proving fault on the manufacturer’s part.

In other states, the enforceability of exclupatory clauses as to strict liability claims often boils down to the identity of the plaintiff. If the person bringing the claim is a sophisticated commercial entity and the clause is contained in a contract entered into by the plaintiff  and the  defendant, the clause is likely enforceable. If the plaintiff is some poor schulb who got hurt by a defective product and lacks any direct contractual relationship with the defendant, courts won’t enforce an exculpatory  clause. Time will tell just how “business friendly” our Supreme Court wants our state to be.