Oyez! Oyez! Oyez! The 2016 First Monday In October Report Is Here!

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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78 Responses

  1. Avatar Damon says:

    Murr v. Wisconsin, No. 15-214: Is this a taking? Of course it is. Any restriction, is by definition a taking, if you could do that thing you wanted to prior to said restriction coming into place.. Unless there’s some legal chicanery regarding how the land was purchased, personally & via coorp, that existed when the last was purchased.Report

    • Avatar Burt Likko says:

      I want you to be right, @damon ; I think what St. Croix County did here is some grade-A bullshit. The standard for a taking is pretty high, though: the Murrs have to be denied any reasonable use of the land and they can pretty obviously clear it and use it as part of their vacation home’s yard.Report

      • Avatar Damon says:

        The standard is defined by the gov’t (how curious!). And the Murrs HAVE been denied a reasonable use-selling a separate lot-which was joined to the other lot by gov’t action. But I tend to be pretty rabid when it comes to “takings”.Report

        • Avatar J_A says:

          Were the lots joined by “government action”, or where they joined as one at the request of the owner(s)?

          I doubt that the government went sua sponte joining lots. So probably a lot hinges on how the lots came to be joined.

          If it had been a single lot for ever, before the new regulations came in place, I doubt anybody would argue the big lot could be segregated. When the two lots became one, as long as it was before the new regulations took place shouldn’t make any difference.

          And if the Murrs legally joined the two lots into one after the new regulations were in place they have no leg to stand.

          The only thing I can imagine is that actually the lots have never been joined legally.Report

          • Avatar Oscar Gordon says:

            They were never legally joined. The regulation in question is one communities often use to stymie high density development in places where such development is not desired (like lakefront property).Report

          • Avatar Slade the Leveller says:

            I’ll agree with Jaybird below. The fact that this case is on the Supreme Court’s docket is a sign of the apocalypse.

            All one has to do is look at the property tax bills for these properties. Are there one or two? If there are two the state loses. If there is one, was the property owner notified as to the change, and given a chance to respond?Report

      • Avatar Mo says:

        @burt-likko Would you feel the same if someone purchased a single lot the size of Lot E + Lot F before the minimum lot size laws went into effect and then tried to sell off part of the lot equal in size to Lot F off. Would you think that is also a taking? I guess the question is, which part do you dislike, the lot size regulation or the fact that the two lots were combined into one?Report

        • Avatar Jaybird says:

          I think it’s arguable that if any other party on the planet had owned Lot E that they’d be able to sell it.

          That is, they wouldn’t be told “sorry, you have to wait for those other bastards to sell Lot F and they’ll have to sell it to the guy who is buying it as a unit with Lot E”.

          But since these bastards happen to also own Lot E, they’re being told that they have to sell them together.

          Which is… odd.Report

          • Avatar Mo says:

            Correct, they had the small lot size grandfathered in. But there are lots of situations where changing characteristics of a property end that grandfathering. For example, the residence I lived in while attending college was not ADA compliant. However, if renovations were made above X% of the property value over Y years, then it would have to be (which includes installing an elevator). The question is, “Does putting two adjoining parcels under one owner count as a trigger to end grandfathering?” Unless it is part of the minimum lot size regulation, I would lean to no.Report

            • Avatar Jaybird says:

              “If you were anyone else, we’d let you sell this, but since you’re you, you can’t” strikes me as something that ought to have been resolved far below SCotUS but this is the world we live in today.Report

              • Avatar Mo says:

                But it’s not if they were anyone else. If someone else had bought two adjacent parcels, presumably they also would have been treated the same.Report

              • Avatar Jaybird says:

                If there aren’t any examples of this in the past, though, we’re stuck saying “hey, we understand that parcels A, B, C, and D have been bought and sold a dozen times in the last 20 years, but that’s because they had four different owners! If they were the same seller, we wouldn’t have allowed them either!” and sounding really, really sincere.

                Is the precedent being set here? Because, if it is, that makes this an even dumber argument.

                Was the original Lot E buyer from the wrong socio-economic group or something?Report

            • Avatar Oscar Gordon says:

              I think what really matters is less ownership and more usage. If some manner of development had extended from lot F to lot E, then the lots would be conjoined by usage. But if they were kept largely distinct, then this strikes me as being too specific to an individual party.Report

              • Avatar Mo says:

                I agree 100% with this. If they built a structure that was on both sides of the property line, the municipality would clearly have a case for treating it as one parcel. If they built a fence around both parcels, with nothing dividing them, then it’s a bit sketchier, but there’s still a case for treating it as one. If there was a fence between the two parcels and they tore it down, it would be even less clear and I would lean against combining the parcels. If they left both parcels as is, then the case for combining them is much weaker and I would be opposed to it.Report

        • Avatar Burt Likko says:

          I dislike that the two lots were deemed effectively unified, without the owners so much as being given notice of this until they tried to alienate one. I also dislike that the property was not grandfathered in — when the property was purchased these restrictions weren’t there. If I bought property on that lake today, I’d know that there was a minimum lot size restriction and bake that into what I was willing to pay for it. But that wasn’t part of the deal with Mr. Murr first bought the land way back in the 1960’s.Report

      • Avatar DensityDuck says:

        I would also ask whether there is a procedure for severing portions of property, and if so, have the Murrs explored that procedure and been denied the use of it?Report

    • Avatar J_A says:

      “Any restriction, is by definition a taking, ”

      Under that criteria all regulations are takings.

      It might be that this is a taking. It very likely is, if I had bought the second lot, no doubt I could sell it, minimum size notwithstanding. But that doesn’t mean I can do anything on my land.Report

      • Avatar Damon says:

        “Under that criteria all regulations are takings.”

        Yes, that’s my view. I don’t see any other reasonable interpretation.

        “But that doesn’t mean I can do anything on my land.” Actually, it does, unless it’s covered under criminal law.Report

        • Avatar J_A says:

          So you can put a garbage dump in it?

          But if one single molecule of leach escapes your property boundaries in any direction, I can sue you.

          And after a couple of years, litigation, you are found guilty of your leach traspassing my property

          And then you declare bankruptcy and the Gods of Libertarianism are satisfied, but my property next door is still polluted

          Did I get it right?Report

          • Avatar J_A says:

            Alternatively, we can regulate where and how garbage dumps can be placedReport

          • Avatar Damon says:

            “Did I get it right?” No.

            Let’s assume (for the sake of argument) that I own land somewhere and there are no regulations on how that land can be used. Now, if the gov’t imposes some regulation prohibiting garbage dumps, then they have reduced the value of my land and I am due compensation. No doubt that compensation would be small if the land could be used for multiple uses, but none the less, the value has been reduced. That’s a taking.

            “Alternatively, we can regulate where and how garbage dumps can be placed”. Yes “we” can, and that regulation is a taking since you are restricting some kind of use to land that was not restricted prior to the regulation. That’s a taking. Regardless of whether or not said regulation is “good” or achieves some positive net social improvement, it’s still a taking.Report

            • Avatar Oscar Gordon says:

              Except @j_a has a solid point. If your usage imposes an externality upon your neighbors, ideally they could sue and try to force you to mitigate the externality, but you could then declare bankruptcy, walk away, and everyone is still stuck dealing with the externality.

              Hence regulation, or a vast reworking of bankruptcy laws and the obligations imposed upon a landowner.

              Now, we could craft land use regulations such that a particular use isn’t banned outright, but the permits to put the land to that use are crafted to impose costs that would prevent externalities from the word go (i.e. if Damon wanted a dump, he’d have to install underground barriers to prevent leaching, and fencing to block the view and secure the yard, etc.). So if he wants a dump, that’s fine, but he’ll have to spend $10M to prepare the site to be a dump, which is way more than he’ll ever make storing trash.Report

            • Avatar Mo says:

              Was building the interstate highway system a taking? Lots of towns that were along the prior highway system had their values go down immensely as they were no longer waypoints for travelers. Should they be able to sue the government and prevent the construction of highways that miss their town?Report

              • Avatar Damon says:

                “Was building the interstate highway system a taking?” Condemning the land it was to be built on was. Having the highway be different from the old road isn’t. But should the gov’t even be in the business of building roads?Report

              • Avatar J_A says:

                Are you planning to get out of your house ever?

                That means you are looking forward to using government built streets.

                Or would you rather pay a toll every time you step out of your property?Report

              • Avatar Mo says:

                I didn’t say anything about eminent domain, since that’s unambiguously a taking, which is why there’s compensation. But you said the value is reduced, therefore it’s a taking. So if a new major highway is built miles away from your gas station, your property value will go way down. By your own criteria, that’s a taking.Report

              • Avatar Damon says:

                “But you said the value is reduced, therefore it’s a taking. So if a new major highway is built miles away from your gas station, your property value will go way down. By your own criteria, that’s a taking.”

                Yes but I was talking about regulation specifically. Now, if you want to include all gov’t action, hey, I’m game and I’ll agree.Report

            • Avatar Chip Daniels says:

              I’m still back on the more basic question of land claims being some sort of absolute right, non-negotiable and pre-existant.

              So if you claim a piece of land, that is your feudal fiefdom, untouchable by anyone.
              Of course, society has no voice, no agency, no standing.

              Society must acknowledge the claim as legitimate and affirmatively adjudicate and defend the claim at no cost to the owner.

              Society is not allowed to negotiate the terms of this engagement, not allowed to place terms and conditions upon their actions on behalf of the owner, but must merely acquiesce and provide these valuable services promptly.

              Because, reasons.Report

              • Avatar Stillwater says:

                I don’t think the argument needs to be phrased in terms of an “absolute right, non-negotiable and pre-existant” to get off the ground. All it needs is an accurate description: that gummint policy cost those people some money by changing the otherwise existing expectation of being able to sell it.Report

              • Avatar J_A says:

                But there was never a moment where there was property, and then came the government, and all went down the drain. It’s quite the opposite. All property claims derive initially from government action. The government was before you, and was never outside the equation.

                For instance, all the land in Texas belonged to the King of Spain, who granted or gifted some of it to certain individuals, in exchange for payment, services, or other obligations, and kept the rest for himself. Your land was never yours ab initio, it was the King’s, and his successors, the United Mexican States, and the State of Texas, and granted by them to someone some time ago in exchange for something, and under a regime than reserved for the King -and his successors- the ability to impose liens on your property, such as not using it as a garbage dump.Report

              • Avatar Stillwater says:

                All property claims derive initially from government action. The government was before you, and was never outside the equation.

                Which is why I said that the argument doesn’t need to be phrased in terms of a prior right to property. It can, and in my view, in fact is, phrased in terms of existing government law, regarding both private ownership of land as well as government takings. So even on your premise (that without government there would be no private ownership of land) the challenge makes sense: at T1 lot F was purchased by the lot E owner with the expectation that it could be individually sold; at T2 a restriction was imposed on lot F denying lot E owners the right to sell it.

                And that seems to me to be the case irrespective of any particular theory of the origins and justification of private property ownership and transfer.

                Adding: which is to say, the way I’m understanding the argument you and Chip are making, the issue isn’t so much government having its cake as much as its entitled to eat it too.Report

              • Avatar Chip Daniels says:

                I’m not pushing back against the argument in the SCOTUS case, so much as Damon’s argument about property rights, which takes a rather absolutist stance.

                Once we view property rights as a utilitarian creation designed to facilitate other ends, rather than an end in itself, then the interplay between society and the landholder becomes more nuanced, and subject to varying negotiated boundary lines.Report

              • Avatar Stillwater says:

                In Damon’s defense, I think he’s merely suggesting (hang with me here….) that the burden of proof ought to be on gummint action imposing a taking rather than the other way around. Which seems reasonable to me. I mean, if the taking, or even “taking”, is legitimate then it should be easily defended on it’s own terms.

                {{Personally, being a pragmatically oriented utilitarian deontologist (in that order, maybe) I’m not opposed to these sorts of things, tho I do think the burden STILL rests on gummint to justify violating individual’s rights without redress.}}Report

              • Avatar J_A says:

                I can’t go there

                Not that I want individual rights to be violated without redress, but I cannot go to a place where individual rights are in principle unlimited, the individual has no duties towards the commonwealth, and the government must justify (before who?) every individual action before it can be taken, because everything is a limitation on some unlimited individual right or other.

                We went over this seme issue some weeks ago. Individual rights vs individual duties towards the commonwealth.

                This specific land regulation is likely invalid, because there are rights that have already been a stablishd by usage and law, including irretroactivity of the laws.

                But land use regulation -and land use changes- is something that does not constitute a taking needing to be compensated by the community (the government does not have money, its everybody’s money), unless Damon is also happy to return to the community any appreciation in value of the land he might own it it’s zoning changes from agricultural to industrial, for instance.

                Or when the value goes up is not a taking any more?Report

        • Avatar Francis says:

          fwiw, this has never been the law and never could be the law. The vast majority of Americans (including the Justices of the Supreme Court) do not accept the idea that the state has to pay for every diminution of value associated with reasonable land use regulation. Denying the state the power to impose reasonable land use regulation would elevate the concept of “property” beyond even what existed under common law.

          As to the case at issue this is the first I’ve heard of it. A few issues come to mind: (a) what is the state law regarding the merger of adjacent parcels that come into common ownership, (b) is there a distinct state law when one of the parcels is below legal size for development, (c) is there a state law that provides economic value to parcels that are below minimum lot size (for example, an open-space easement can be recorded thereon as part of a transferable development rights scheme).

          Historically, compensable takings were physical only. The development of the doctrines around regulatory takings is relatively recent.Report

  2. Avatar Kolohe says:

    Yay, SCOTUS preview!

    You gonna be like Kazzy and give us some pre-season picks?Report

    • Avatar Burt Likko says:

      Hell, no. I don’t even know who’s going to be on the Court to provide a decisive ninth vote in several easily anticipated 4-4 splits. Kazzy would quail at the thought of making picks if he had no idea who the quarterback would be.Report

      • Avatar Kolohe says:

        Actually, on that, is there easy way to determine how the lower court ruled and thus would be the result (but not precedent) in a 4-4 split? Is the name before the ‘vs’ always the people that are appealing the decision that the name after the ‘vs’ won at next level down?Report

        • Avatar Burt Likko says:

          The person whose name is listed first is the petitioner, who is asking the court for some kind of reversal. Sometimes the party named after the “v.”, the respondent, also seeks reversal of part of the lower court’s ruling, but usually seeks the the court affirm the decision below.Report

      • Quite possibly no one. I don’t see why a Republican Senate would schedule a vote just because there’s a different Democrat in the White House.Report

        • Avatar Guy says:

          Hypothetical: could SCOTUS make them, supposing the executive brings some sort of action against the Senate for not approving appointments in a timely manner?

          My guess is that SCOTUS could get away with it but would decline to do so.Report

          • Avatar Burt Likko says:

            A more intensely political question is difficult to conjure up. Very hard to imagine SCOTUS would ever issuing such an order or any Federal court doing anything with such a suit but dismissing it.

            Doesn’t mean the DoJ wouldn’t file it, on POTUS’ orders, as a political stunt. But that’s all it would ever be.Report

            • Avatar Guy says:

              I realized that I didn’t actually know the criteria for determining whether a question is political, so I looked them up. Here they are, for those who (like me) are ignorant of this rather important bit of law.

              The doctrine is rooted in Marbury v Madison, but the current standards are described in Baker v Carr. That case describes a question as political if it meets any of the following conditions:

              (1) The Constitution explicitly assigns to another branch the power to resolve the dispute.
              (2) There are no “judicially discoverable and manageable” standards for resolving the dispute.
              (3) Resolving the dispute would require the Court to express disrespect for another branch of government.
              (4) Resolving the dispute requires that some issue of policy be decided first.
              (5) There is an “unusual need for unquestioning adherence to a political decision already made”.
              (6) Resolving the question would or could result in a split between different branches of the government.

              I don’t really understand (2) or (5), and would appreciate an example or two if there is such to be had. In any case, though, my question runs afoul of at least (3) and plausibly (4). It’s also pretty clear that nobody is ultimately responsible for ensuring that the various branches actually perform their duties (other than voters, and them indirectly). This is interesting; after some thought I don’t think there’s a way to actually make someone responsible without setting one branch over the other two.Report

        • Avatar Stillwater says:

          I don’t see why a Republican Senate would schedule a vote just because there’s a different Democrat in the White House.

          GOP Sen. Jeff Flake is wondering the same thing, but with a reversie conclusion: vote now on Merrick because the nominee will be worse under Hillary. He also calls out GOP gamesmanship, which is pretty cool on his part.Report

          • Avatar Burt Likko says:

            I remain convinced the best available choice for Democrats is Sri Srinivasan. From the Republican perspective, Garland is a better choice if only because he’s older and therefore is more likely to turn the seat over that much faster. Garland also hasn’t staked out trailblazing new legal territory the way that, say, Ruth Bader Ginsburg or Sonia Sotomayor did before taking their seats on the Supreme Court.Report

          • Avatar El Muneco says:

            I’ve actually wondered if one of Obama’s last acts won’t be to not pull Garland(*) back off the table(**) after a hypothetical Clinton victory. If he really believes Garland was the right man for the job to carry forward the Obama legacy, it would be just like him to force the lame-duck Congress to fall all over themselves voting for the guy that they had been stonewalling for months. In the most public way possible. After all the rhetoric about “letting the people decide”.

            (*) I refuse to call him by just his given name. Merrick (unqualified) refers to Buffy’s original Watcher, dammit.
            (**) I think I got the right number of negations thereReport

  3. Avatar Saul Degraw says:

    Do you think the Court is going to resist assigning argument dates until the last possible moment?Report

    • Avatar Burt Likko says:

      Well, they have to give several weeks’ notice as a practical matter, if they want counsel to be prepared for a meaningful oral argument (and of course they do). But I’m looking for the Chief to play a lot of “kick the can” until after the election, when there’ll be a better idea of what Congress is going to do about the empty seat, and when it’s going to do it.Report

  4. Avatar Mo says:

    Helmerich & Payne seems somewhat straighforward. If a company creates a foreign subsidiary for assorted reasons (including tax avoidance) it seems like everything associated with being a foreign company, good and ill. In some ways, it reminds me of the businesses that were seeking restitution after Deepwater Horizon. The rules from the Feds were that you would be reimbursed based on the revenue and income you reported on your business taxes. There were a number of businesses that admitted, on TV, that they lied on their taxes and if they only got as little as their tax forms said, they’d be forced to go out of business. My reaction was, “Too bad, so sad.”Report

  5. Avatar Jaybird says:

    Moore v. Texas:

    IQ tests are BS. They don’t really measure anything but the ability to think like the person who wrote the test. There are a lot of different kinds of intelligences. You can’t say whether someone is intelligent or not based on a silly paper test.

    So on, so forth.Report

    • A low IQ is not technically a disability in Texas, since it doesn’t interfere with having a successful career in state government.Report

    • Avatar PD Shaw says:

      I think IQ correlates with too many things to not be a useful measuring of something, but not everything. I think here the problem is that lower IQ does not correlate with lack of moral accountability, if anything some studies show a lower IQ tends to increase conscientiousness. Obviously, its his legal team’s responsibility to get this young man off of death-row, but I don’t like the broader implications that someone greater than two standard deviations from the mean in intelligence lacks moral appreciation of murder. For one thing, it makes my sister-in-law’s job placing the intellectually disabled in employment much harder.Report

      • Avatar Burt Likko says:

        There are certainly other additional facts than Moore’s low IQ test scores from his early teen years; they are an easy-to-understand facet of what the defense team is calling a previously-undiagnosed intellectual disability. There’s also a pretty heart-wrenching story in his brief about his father beating him and then kicking him out of the house because he was “so stupid,” and the young boy just standing there, crying in pain but not otherwise reacting because (implied) he didn’t really understand what was going on or why his father was so mad at him.Report

  6. Avatar Jaybird says:

    As for The Slants, you’d think that they’d do a better job of understanding that there is a bigger fight at issue here and they are undercutting it.Report

  7. Avatar Michael Cain says:

    Re Trinity Lutheran Church of Columbia v. Pauley… There’s a somewhat similar case from Colorado, Douglas County School District v. Taxpayers for Public Education, No. 15-557 waiting for a decision on cert. The school district — third largest in the state, and head-and-shoulders the richest — has been trying for years to find a way around this language in the state constitution:

    Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.

    The case has been up to the Colorado Supreme Court a couple of times, which has basically said that there’s no degree of indirection, or alternate justification for payments, that gets around this.Report

    • Avatar J_A says:

      Short of adding “Never, ever, under no circumstances whatsoever, no means no” at the end, I cannot imagine how the CO constitution could be any clearer about their intention and meaning.Report

      • Avatar Michael Cain says:

        The majority opinion by the state appeals court found that plaintiffs lacked standing to sue, so the case should be dismissed. After that, they went on for most of 60 pages to explain that — my one-sentence summary here — the benefit of the voucher system accrued to the students and parents, and that any benefit to religious schools was incidental and immaterial, so the program didn’t violate any of the state’s constitutional and statutory limitations.Report

        • Avatar J_A says:

          @michael-cain

          Did I misunderstand and you are saying that, except for the lack of standing, the court would have ruled in favor of allowing rubber flooring aid (or whatever) in religious schools because it benefits the children’s knees and not the religious organization, or are you saying the opposite, that the court said that the CO constitution is too specific that there is no wiggle room?Report

          • Avatar Michael Cain says:

            @j_a
            The first. The state appeals court said plaintiffs had no standing. I was left with the impression that, in the opinion of the appeals court majority that made the ruling, no one could demonstrate a concrete harm necessary for standing. But the court went on to say that even if plaintiffs had had standing, they would lose. That even though public funds ended up in the hands of a church-operated school, the particular program that had done that didn’t violate the language I initially quoted.

            Subsequently reversed by the state supreme court, and now sitting in the cert queue at the SCOTUS.Report

    • Avatar DensityDuck says:

      This does provide an amusing rebuttal to all those claims of “if you think taxes are so rotten then what about police, firefighters, sewer and water service, mail service, etc”

      Because when you put “public services are benefits provided by the government” together with a close reading of “Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church…”, you end up thinking maybe it’s illegal for churches to receive police protection, firefighter coverage, sewer and water service, mail service, etc…Report

      • Avatar Burt Likko says:

        Well, the mail is Federal but otherwise I think that’s a damn good point.

        Obviously the church should participate in the sewer service. Obviously the fire department should put out a fire if it starts at a church.Report

        • Avatar Michael Cain says:

          The first argument for a more limited interpretation would be that the language appears in Article IX of the state constitution, titled “Education”. The second argument is that the section forbids payments, not the provision of general public services. Sewer service is a particularly bad example, as churches pay the same fees to be connected as anyone else. But IANAL, just a former legislative analyst who sometimes had to wear a lawyer hat.Report

      • Avatar DensityDuck says:

        Although, to flip the flip, you could say that if a church claims tax-exempt status as a religious organization then it’s not paying for those things anyway and so it’s entirely appropriate for it to not receive them.Report

        • Avatar Burt Likko says:

          Yes, but, perhaps there is a public benefit to these goods and services being universally available that supersedes any aid-to-religious concern. If the police tolerate crime in a church, that encourages crime elsewhere. A fire in a church might spread to a nearby residence. Filth from a church’s latrine denied access to the public sewer may contaminate the groundwater. And so on.Report

          • Avatar Oscar Gordon says:

            There is also the argument that churches are tax exempt because they provide services that reduce the burden upon similar public services. Although given how some people really enjoy abusing the tax exempt religious bit, it might be a good idea for a church to demonstrate the good it does, if it wants the exemption.Report

  8. Avatar DavidTC says:

    My thoughts:

    The Bolivaran Republic of Venezuela v. Helmerich & Payne International – confused here:

    Even if the Foreign Sovereign Immunities Act of 1976 permit suits in U.S. courts against foreign governments when those governments seize property “in violation of international law,”…where did Venezuela violate *international* law?

    Also the statement ‘Venezuela was unlikely to actually pay a judgment rendered only in its own courts.’ is a bit baffling to me. That seems an extremely strange way to operate a country. I can see the government leaning on the courts and getting the outcome they want, but the courts coming to the ‘wrong’ outcome, finding against the government, and the government literally just ignoring it…is really weird to me.

    Moore v. Texas – Why the hell are states so demanding for the right to execute mentally disabled people? Seriously, if they’d back off that sort of bullshit, they might actually get to *keep* the death penalty a few more years, but, no, they’re determined to make the entire thing *extremely* unpalatable to everyone, aren’t they?

    Lynch v. Morales-Santana – Naturalization laws are almost incomprehensibly sexist for no obvious reason.

    Nelson v. Colorado – I think Colorado should just hand back all that money, and then *immediately* seize the money under civil forfeiture, which would magically put it under the ‘preponderance of the evidence’ standard. And watch the Supreme Court try to moron their way out of that.

    Lynch v. Dimaya – I love the fact the law puts extra penalties on felonies that *by their nature* are X…but, uh, if those felonies are X *by their nature*, surely they could be listed here, or, even better, have them so marked as X when defined. It doesn’t say ‘That *did* X’, it said ones that are *by their nature* X, which surely means they can be listed *beforehand*.Report

    • Avatar Burt Likko says:

      As to your first concern, I confess I’m not entirely conversant with what international law the seizure of the oil rigs violated. I’m going to have to tell you to dig around in the briefs, which at least are available for free at SCOTUSblog: Here’s Venezuela’s brief, and here’s Helmerich & Payne’s.

      As for the second remark, which is mine, I can see all sorts of reasons to doubt the quality of justice available in a Venezuelan court, and to doubt the solvency of the Venezuelan government, particularly given current events, which have included food riots and the purchasing of oil imported from the United States. I think Helmerich would have been within the realm of reasonable assessment of Hugo Chavez to have determined that he wouldn’t have paid this debt unless he had to.Report

      • Avatar DavidTC says:

        What do you think of my civil forfeiture point?

        It seems kinda absurd that ‘Can the government keep money paid in fines for a crime someone was convicted of, and then acquitted of?’ is a question when the government can just legally seize money from someone not convicted of any crime to start with.Report

      • Avatar J_A says:

        @burt-likko

        Be that as it may (and I fully support the ida that Venezuelan courts are not reliable at the moment), that’s not a concept you can (or you shouldn’t be able to) bring into a lawsuit.

        International law and the USA currently accept that the government of a Venezuela is legitimate, and functioning. No legitimate international authority, like the U. N. has declared Venezuela a failed state (perhaps they should, but they haven’t) or their courts a travesti.

        Once a Venezuelan person (the local Helmerich entity) access the USA courts with a claim that justice for them is impossible in Venezuela, there is nothing to stop USA companies or the USA government itself, to be sued in France, Uganda, China, Russia, Kyrgistan or Timor Leste, because “justice is not available in the USA”.

        You would not accept that argument ever (even Mitch McConnel has dawned on this concept). Hence we act under the principle that, unless the local government is deemed illegitimate, their institutions must be respected. At the very least, then, the USA should break diplomatic relationships with Venezuela,

        Plus, Helmerich has the recourse of Arbitration under the Business Investment Protection Treaties (BIT claim) which is the forum where they should be pursuing this claim, instead of the regular USA courts (like many other entities did, several of them successfully)Report