Thomas, Crow, and Heirs Property?

ProPublica reported this:

In 2014, one of Texas billionaire Harlan Crow’s companies purchased a string of properties on a quiet residential street in Savannah, Georgia. It wasn’t a marquee acquisition for the real estate magnate, just an old single-story home and two vacant lots down the road. What made it noteworthy were the people on the other side of the deal: Supreme Court Justice Clarence Thomas and his relatives.

Lots of discussion about the propriety of the purchase, but I wonder about something else, given the last 5 words.  Apparently Thomas' mother lives in the home.  

Slate reports that:  "All three properties were co-owned by Thomas, Williams, and the family of Thomas’ late brother."   That sounds to me like confirmation of what I suspected when I started this post--the property was "heirs property", meaning the original owner died without a will. That's been a big issue for ASCS/FSA, since having clear title to the land you're farming used to be a requirement for obtaining some loans. Congress has recently provided money for FSA to dole out to NGO's who are supposed to help owners of heirs property. 

I've always mentally ascribed the prevalence of heirs property among blacks to the historical lack of lawyers in the community. But here we have one of the nine most powerful lawyers in the US involved with heirs property. The iriony.

Maybe Trump Was Right?

Right about unnecessary government regulations, that is. 

My wife and I had to set up a new account with our bank this week. The number of questions one has to answer has gone up (like are you closely related to any corrupt foreign leader?) and the number of pages of legalese which one has to ignore has expanded.  No doubt this keeps a number of lawyers in full employment, but it seems foolish. It seems as though there should be an easier way.

Having vented my frustration, I realize what we have here is an arms war between competing sets of attorneys--both sets aiming to obtain the most money they can for themselves and their clients, with one set on the side of right and the public interest and the other set on the side of enterprise. 

And no, Trump wasn't right. He represents the extreme of one side of the arms war.

Countervailing Judicial Power

Ezra Klein has a piece on Vos about "countervailing power", a concept from John Kenneth Galbraith. Briefly, he saw "big labor" as countering "big business", and "big government" as an essential balancing player.  So Klein summarizes his argument:

" If the [political] question is framed as socialism or capitalism, it’s difficult to state the obvious: We may need a bit more socialism now, even if that may create a need for more capitalism later.
But if it’s framed as the balance of countervailing powers, that truth becomes more obvious. There is no end state in a liberal democracy. There is only the constant act of balancing and rebalancing. The forces that need to be strengthened today may need to be weakened tomorrow. But first they need to be strengthened today."

I've always liked the Galbraith's concept.  I'm struck by a tweet from Orin Kerr, suggesting that if conservatives become dominant in the judiciary, it will evoke a countervailing response from legal academia.

The Rule of Law and Forgiveness

Interesting piece in the Times--the thesis in two paragraphs:

The implication is that the only proper thing to do is enforce laws uniformly, all the time, without exceptions — and that an immigration amnesty would thus be a threat to truth, justice and the American way.

But there’s a problem with that theory: Amnesties, though not always labeled as such, are central to how the nation’s legal system functions.

Administrative Procedure and Bathrooms

Jonathan Adler at Volokh posts on the federal judge's order blocking the administration's guidance to schools on bathrooms, finding that they didn't comply with the Administrative Procedure Act beloved of all bureaucrats.  Adler doesn't note that similar problems arose with the administration's effort to change the rules on undocumented immigrants.  The bottom line is the executive branch didn't go through a rule-making procedure, allowing the public to comment, before issuing the document.  To be cynical, the executive thought if the document wasn't labeled a "regulation", rule-making wasn't required.

So the Obama administration has suffered two defeats this year on issues dear to liberal hearts.  There's some small consolation in this idea: if the Trump administration (:-( should try similar tactics in order to undo or change liberal policies, liberals would have a stronger case to force the Trumpites into the long rule-making process.

Just as a matter of history, I suspect these two episodes are just another step in the long history of changing administrative procedure into formal regulations.  The lawyers have to make work for themselves.

How Many Square Feet for a Company

Under one.

From a Times post on Chinese internet problems:

A simple Google search reveals that the address on Thomes Avenue in Cheyenne [to which Chinese web traffic was redirected] is not a corporate headquarters, but a 1,700-square-foot brick house with a manicured lawn.

That address — which is home to some 2,000 companies on paper — was the subject of a lengthy 2011 Reuters investigation that found that among the entities registered to the address were a shell company controlled by a jailed former Ukraine prime minister; the owner of a company charged with helping online poker operators evade an Internet gambling ban; and one entity that was banned from government contracts after selling counterfeit truck parts to the Pentagon.

I'm probably a reactionary but sometimes I get fed up with "entities" which don't do anything for society.

Into the Bureaucratic Weeds with the Farm Bill

From Farm Policy:

"A news release yesterday from Committee Chairman Bob Goodlatte (R., Va.) noted in part that, “[Chairman Goodlatte] introduced an amendment that would ensure regulations imposed under the FARRM Act are subject to promulgation under the Administrative Procedure Act and the Congressional Review Act, which falls under the jurisdiction of the House Judiciary Committee.  The version of the bill reported by the House Agriculture Committee last month waived this requirement. Congressman Goodlatte’s amendment passed the House Judiciary Committee by voice vote with bipartisan support.”

 I've not followed this closely.  Farm Policy goes on to explain this action on the part of House Judiciary is part of the infighting over the dairy provisions in the House Ag farm bill.  Chairman Goodlatte wants USDA to do some studies.  But from the description, it sounds more general, perhaps applying to all provisions of the farm bill. 

In my memory the farm bill always contained an exemption from the APA for production adjustment programs.  The usual reason was that Congress never got the legislation completed in time, so we were always behind the eight ball in getting the program in the field.  By waiving APA requirements Congress could ask us to act quickly and keep their constituents happy.  Now as I write my memory is being tickled with the idea that maybe one of the attorneys in OGC did push us to comply once or twice, but by putting out an interim rule instead of doing the proposed rule/public comment/ final rule process. 

I may also be wrong on this, but I think the APA always technically applied to the farm bill, but in the 70's ASCS ignored it.  It was only with the 1983 PIK program with its contracts that we got really serious about involving the lawyers and dotting every i.

Form and Reality: Binding Signatures and Notaries Public

Our legal system tends to operate on notarized signatures: you take a document to a notary public, present proof of identity, sign the document and the notary impresses her seal.  But these days it seems one could document a signing by technology:  use a video camera to record the proof of identity and the person signing. Of course, it's likely it will take a century or two to change the rules to use the new technology.

Good Legal Writing: Fish and Kagan

Here's the end of a Stanley Fish post discussing Justice Kagan's style:

Nothing flashy here. Just a steady unrolling of point after obvious point in a relatively tranquil and moderate prose punctuated by an occasional flaring of amiable wit — “not really,” “what ordinary people would appreciate the Court’s case law also recognizes.” (Sometimes even the Supreme Court rises to the level of common sense.) If I am right, what we are seeing here is the emergence of a powerfully understated style of argument, inexorable without being aggressive, comprehensive without claiming to be so, regnant even when it is on the losing side. I look forward to more of the same.

Is Your Work Worth $1.2 Million?

That's what law firm partners in DC bill, $600 an hour according to Orin Kerr at Volokh passing on a study.  I'm giving them a break by saying they only bill 2,000 hours a year. (Indeed, one commenter says they can bill 5,000 hours easily.)  I'm not sure what a government lawyer gets, but it can't be more than 15 percent of that.

This disparity could explain why corporations always sometimes outmaneuver the federal government. What it doesn't explain, indeed it aggravates the mystery, is why the right claims federal government employees are so vastly overpaid.