In praise of Justice Thomas. (Contra Tyler Cowen on status.)
The surprising constitutional issues in Baby Girl.
OPM doesn’t understand choice of law.
Shelby County and federal power.
Shelby County highlights.
I like (lots) Clyde Spillenger’s article on the history of extraterritoriality.
Did Justice Powell know he had a gay clerk?
When should executive branch officials do what courts say?
Do we trust Supreme Court opinions about biology?
Are there First Amendment claims (rather than Fourth Amendment claims) against NSA surveillance?
Justice Stevens’s revisionist account of Gant.
Miscellaneous thoughts on today’s five decisions.
When I wrote papers in law school, I often succumbed to a particular temptation– to write long, source-packed footnotes whose main purpose was to demonstrate that I’d read a bunch of interesting stuff, or managed to chase down a slightly difficult but ultimately irrelevant point. This is ultimately not a habit that is kind on the reader. (Sorry, Carol Rose and Bob Ellickson!) But consider this blog post an entry in the same genre.
The frantic “Save Trestles” stories from Surfrider sparked my curiosity about where “they” could possibly be building a road that would threaten a beach break, who “they” were, and what was going on. So far as I can tell, the following things are true. A state agency called the Transportation Corridor Agency had plans to extend the 241 toll road, which would fork off of I-5 and run north (and inland of the interstate). The road would have gone through San Onofre State Park, where it arguably would have impacted the sand and water drainage in a way that ultimately might have disturbed the beach break at Trestles. The California Coastal Commission and U.S. Secretary of Commerce ultimately invalidated the plans, in part because there was an alternate route for the road that didn’t go through the park.
The Transportation Corridor Agency now wants to build a small chunk of the road, presumably with plans to keep extending it in the future. The chunk may be consistent with both the original and alternate route (I can’t tell).
So far so good. One reason for Surfrider to be concerned is that the alternate route really is inferior– the new toll road wouldn’t actually intersect with the interstate, but would instead require a short drive over surface streets to get from one to the other. And for that reason, I find it easy to imagine that once the road has started, there will be strong political pressure to connect it to the interstate after all. But even imagining that to be true, I’m not sure which way it cuts. If the justification for for bidding Option 1 is the adequacy of Option 2, then the undesirability of 2 might just reinforce that 1 was okay all along.
There’s also room for an observation here about incentives, environmentalism, and the public trust. When the government wants to build a road through private property, the law of just compensation forces it to (roughly) internalize the costs it imposes on those whose land it takes. But when the government builds a road through public property with environmental benefits or uses, it imposes costs too. It’s just that those costs aren’t commodified and aren’t compensated. (Hence the idea of the public trust.) Ideally, the government would consider those costs too, but I rather doubt that it works that way.
A friend of Crescat 2.0 notes this observation by Tyler Cowen, with broader applicability than just finance: “Go back and read the classics, and hang your heads in despair.” (Tyler is referring to the lack of progress in intellectual consensus.)
Yet this observation by Frank Easterbrook is also apt:
Most mutations in thought, as well as in genes, are neutral or harmful– but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure of most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain.
The fact that we have the classics to go back to gives us a high vantage point, even if most of us fall from it rather than rise above it.
expect nothing. live frugally
(by Alice Walker)
A little while ago, Tyler Cowen blogged about whether there are values more important than happiness:
“Happiness” to me sounds boring, as if the person has a limited imagination when it comes to wants and an inability to be frustrated by the difficulty of creating new peak experiences.
I think happiness is extremely important, and most people do not spend nearly enough of their life trying to be happy. But in my own values, I rank knowledge even higher. And every time I read about this topic I am reminded of one of my favorite exchanges from The Hitchhiker’s Guide to the Galaxy:
“I’d far rather be happy than right any day.”
“And are you?”
“No. That’s where it falls down, of course.”
Yet happiness is a “thick” concept. As a dear friend once put it on her now-defunct blog:
A professor once asked me, apropos of why I don’t party or why I spent Friday nights in the library or some such thing, what I thought I was, some sort of ascetic? I said that no, I was actually a hedonist. We just had very different ideas of fun.