Tuesday, July 15, 2008

Gristmill, Same Facts, and Volokhs are wrong

Gristmill's Gar Lipow is wrong to blame carbon trading for the recent defeat of an almost-okay clean air law in court. Lipow, who hates carbon trading, wrongly says the court used a "takings" argument to strike the law because it eliminates certain other kinds of pollution trading. The opinion that he never provides is here, and it doesn't making a takings argument. On page 43 the court rejects the idea that existing pollution permits in circulation are a currency (property right). On page 44 the court says the problem is not that EPA is prohibited from modifying permits, but that EPA hasn't cited a grant of permission to modify them. Nowhere does the court make or even accept "fairness" as a legal justification.

Whether the court's analysis is any good is another question. Two of the three judges (at least) are extremely conservative (we Californians remember Janice Rogers Brown), and even the plaintiffs didn't expect this outcome, so I'm doubtful. Might get overturned, but not before the end of the Bush Administration.

Same Facts is wrong for saying of Sudan's tyrant that "Immunity and a comfy exile in a non-ICC state can be offered as part of a deal that ends the killing and lets the refugees return. The deal would have to be made by the UN Security Council under Article 16 of the Rome Statute, which allows it to suspend prosecutions, with such eventualities in mind." Article 16 suspensions are only for one year. While suspensions can be renewed, no self-respecting tyrant will count on that after he's gone from power, or repeat the exact same scenario offered to Liberian murderer Charles Taylor (now on trial after being given exile). I could've sworn I've written something about this but can't find it - the problem with the International Criminal Court is that no one can issue pardons that would help ease out the dictators.

Volokh's Jonathan Adler is wrong for calling liberal lawprof Chemerinsky's federalism inverted. Adler ingenuously quotes another critic as saying "Mr. Chemerinsky sketches a vision of federalism that would empower government at all levels and delight civil plaintiffs and criminal defense lawyers of every description." They fail to realize the contradiction in claiming that delighting civil plaintiffs (against government) and defense lawyers (also against the government) is "empowering goverrnment." This freedom-is-slavery argument has got to go.

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