Monthly Archives: May 2009

“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’.


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).