The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

by Tony Guo


Over Fall Break I visited my fiancée in New York City.  As part of my visit we went to Washington Square Park.  We both graduated from New York University and Washington Square Park is a second home to us.  It was the first place I met my fiancée.  Before I graduated the park had undergone renovations forcing the two previous classes and my class to break tradition and graduate in Yankee stadium instead Washington Square Park.  I was curious to see the recent renovations and excited to visit my favorite park.  When we got near the park we saw rows of police vehicles.  We had stumbled upon an Occupy Wall Street protest.

My fiancée and I made our way to the barricaded fountain and in the process received several copies of the same Occupy Wall Street newspaper.  As we left the park to go to the vendor fair nearby I heard a protestor arguing with a resident.  The protestor held a copy of the Constitution and a copy of the Occupy Wall Street newspaper.  The protestor gave the newspaper to the resident who immediately threw it in the trash can.  As the resident moved away, the protestor shouted “you are suppressing my First Amendment right to be heard.”  The protestor having not taken William and Mary Professor Timothy Zick’s First Amendment class was unaware that the First Amendment only prohibits state actors such as a police officer from limiting his right to free speech and not private persons.  The protestors should have said please recycle.



Published in: on November 6, 2011 at 12:01 pm Comments Off on The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

Breaking Ground on the New Green Deal

Guest post by Prof. Erin Ryan, Associate Professor of Law at William & Mary

Reluctant members of Congress, listen up. You’ve tried bailing out the past. It’s time to bail in the future.

Now that we’ve pumped trillions into failing industries that drove economic growth on little more than a ponzi scheme, it’s time to invest in an economic engine that will propel us toward real progress–creating 

real jobs and alleviating real problems. Recognizing the stakes for our economy, security, and leadership in the world, President Obama campaigned (and won) on a promise to invest $150 billion in a clean-energy economy. Now that his stimulus proposal follows through with billions for electricity industry remodeling and private investment in renewables, it’s time to fall in. The stimulus package you are holding hostage is the down-payment on a new deal with the American public that finally takes on the Gordian knot of climate, energy, and environment. Don’t blow this for us.

Like the old New Deal, this new Green Deal will rescue the free-falling economy by investing in infrastructure that creates jobs and repositions American industry toward new kinds of growth. In the 1930s, FDR built a national network of roads, bridges, and parks, connecting producers and consumers, enhancing national security, and protecting natural resources. Today’s mission is exactly the same, but this time the infrastructure that can accomplish it will enable alternative energy generation, storage, and transmission. Sure, you could pass tax cuts instead, but if they don’t work, we’re left with a fistful of nothing. Investing in infrastructure gets people hired to build it, and the worst case scenario at the end of the day is a tangible bedrock for future economic growth.


Published in: on February 14, 2009 at 4:16 pm Comments Off on Breaking Ground on the New Green Deal

Child Neglect and the Economy

Everyone knows that the economy is not in great shape. The obvious results of the economic downturn are high unemployment rates, home foreclosures, and decrease in funding for schools. There may even be a connection between the slowing economy and increased rates of child abuse and neglect.

Child neglect comes in many different forms. Generally, neglect is the failure to provide. Physical neglect can result from a parent or guardian’s failure to provide life’s necessities, such as food, clothing, and shelter. Educational neglect involves a parent or guardian not sending their child to school at all or allowing the child be habitually truant. Emotional neglect results from not showing a child proper affection or verbally abusing a child. Medical neglect is the failure to provide care in emergencies and to adhere to medical advice given by a doctor concerning a child with a chronic illness. Parents in some situations can refuse to allow their child to receive medical treatment. Child protective services will step in if the child is suffering from a life threatening illness or other emergency, and the parent for some reason does not seek medical attention for the child. All the definitions of types of neglect involve omissions but, child neglect can also result from an act.

Chastity was a nine year old girl with Type I diabetes who died next to a bag of candy. Her mother is facing a felony charge of injury to a child in connection with the girl’s death. Chastity’s mother did not help her check her glucose levels and she often fed her food with high glucose levels. The day before she died, Chastity was very sick and her glucose was high. Her mother knew of Chastity’s poor condition, but she still fed her food high in glucose. Child Protective Services was aware that Chastity’s mother was not helping her daughter manage her diabetes, but they never found evidence of neglect.

But three established major risk factors for neglect and child abuse were present in Chastity’s situation. Chastity was nine years old and was a diabetic. Young children and children with chronic illness are at high risk to be victims of abuse and neglect. Chastity’s mother was twenty-seven years old. Young parents, particularly those under thirty, are at high risk to be perpetrators of abuse and neglect.  A fourth risk factor exists that is not that well established and is common to us all, the economy.


Published in: on February 9, 2009 at 1:10 pm Comments Off on Child Neglect and the Economy

Why the Senate Has it Wrong on the Stimulus Bill

The House and the Senate have each produced stimulus bills this week, but there are marked differences between the two bills.  The NYT reports:

Congress is racing to finalize the legislation this week, with the price tag for the Senate plan now only slightly more than the $820 billion measure adopted by the House. Both plans are intended to blunt the recession with a combination of quick-acting tax cuts to help increase spending by consumers and businesses, and slower long-term government spending on public works projects and other programs to create more than 3 million jobs.

But the competing bills now reflect substantially different approaches. The House puts greater emphasis on helping states and localities avoid wide-scale cuts in services and layoffs of public employees, while the Senate cut $40 billion of that type of aid from its bill.

The Senate plan, reached in an agreement late Friday night between Democrats and three moderate Republicans, focuses more heavily on tax cuts, provides far less generous health care subsidies for the unemployed and lowers a proposed increase in food stamps. To help allay Republican concerns about cost, the Senate proposal even scales back President Obama’s signature middle-class tax cut.


Published in: on February 8, 2009 at 5:14 pm Comments Off on Why the Senate Has it Wrong on the Stimulus Bill
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Does Capping Executive Pay Violate the Constitution?

Short answer: no. But, some people who are stuck in the 1920s seem to think so. For example, Andrew Napolitano (a senior judicial analyst for Fox News) argues, “Salary caps are unconstitutional because they violate the well-grounded doctrine against unconstitutional conditions.” In other words, the government may not require someone to give up a constitutional right in exchange for some sort of governmental benefit. He analogizes: “The government cannot say to individual welfare recipients that they may not criticize the Congress or their welfare checks will be cut off.” Apparently the right to enter into a $15,000,000 contract is just as constitutionally protected as the freedom of speech. Who knew?

So, Mr. Napolitano is relying on the “right to contract,” an idea championed by the oft-maligned Lochner v. New York, which held unconstitutional a statute limiting the number of hours a baker could work (if a baker wants to work 100 hours a week, who are we to stop him?). The same idea was applied to strike down minimum wage laws in Adkins v. Children’s Hospital (if someone wants to work for $.01 per hour, who are we to stop him?). The theory is that the 14th Amendment’s guarantee of due process of law protects the so-called “right to contract.” While Lochner has not been technically overruled, it has been de-fanged, and it has been held that the Constitution does not protect a fundamental right to contract. So, unless we are to jump in a time machine and travel back to 1920, Mr. Napolitano’s argument doesn’t work.

But wait, there’s more. He also asserts that the salary cap is an unconstitutional “taking.” The “takings clause” of the Fifth Amendment reads, “…nor shall private property be taken for public use, without just compensation.” You may be thinking, “How is a salary cap an unconstitutional taking?” Napolitano attempts to explain:


Published in: on February 7, 2009 at 6:35 pm Comments Off on Does Capping Executive Pay Violate the Constitution?
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Auto-Bailout for Big Three?

In response to Kevin’s post, I have to take sides with the bankruptcy opinion.  The bailout, explained by Richard Shelby (thanks Oliver), seems to be providing a short-term solution.  The American auto industry is not even confident they will be able to pay the federal loans back.  The need for a major reconstruction of these companies, however, is certain.  The amount of reconstruction necessary is simply not attainable by a mere bailout.  These companies need to file for bankruptcy in order to really change how the American industry functions.

Steven Levitt (author of Freakonomics) puts the problem clearly, arguing that American car manufacturers are not profitable because of their high cost of labor.  Levitt contends that allowing the “Big Three” car companies to file for bankruptcy will allow bankruptcy judges to breakup auto unions, and finally allow these companies to compete with foreign manufacturers.

Obvious objections to these contentions can be raised: (more…)

Published in: on December 2, 2008 at 4:20 pm Comments Off on Auto-Bailout for Big Three?

What to Do with Detroit?

Automakers this week went before Congress to try to convince them that they needed a $25 billion bailout to avoid a massive disaster that would result in the loss of millions of American jobs.  Congress remained unmoved.  Congress gave the executives of these companies a little under two weeks to come up with a plan for the proposed bailout that would inspire confidence that the money they’d receive would be used properly.  We’ll see if the executives are up to the task.

There are a lot of different viewpoints about how best to handle this situation.  There’s the approach advocated by free-marketers that say that letting Detroit automakers fail is the best thing for the economy.  Jim Lindgren at The Volokh Conspiracy takes this approach, as does David Yermack at the Wall Street Journal.   Their basic contention is that the economic resources tied up in the American auto industry are being inefficiently used and have been since the 1970s.  They contend that letting these companies fail, while initially painful, would free up those resources to be used by more efficient firms in profitable industries.  This would create more jobs long term.  These arguments make intuitive sense.  However, there is a major problem with them.  We as a nation are already faced with the worst economic conditions since the Great Depression.  Allowing the Big 3 to fail would result in the loss of MILLIONS of jobs.  Those millions of jobless people aren’t all going to be able to jump into new careers.  Many will need to be re-trained and most companies aren’t hiring right now because of the current economic conditions.  This solution doesn’t seem tenable given today’s economic realities.

Then there’s the solution offered by Robert Reich, an economic adviser to President-elect Obama.  He suggests allowing the Big 3 to reorganize with a bailout, but as a condition of the bailout, the Big 3’s executives, creditors, and shareholders take losses equivalent to what they would suffer under Chapter 11 and that the United Auto Workers take wage and benefit cuts.  The bailout and savings from the aforementioned conditions, he argues, would allow them to retool their production process towards the more fuel efficient cars that are in high demand and are produced cheaper and better by their competitors from Japan (Honda and Toyota).  Todd Zywicki at The Volokh Conspiracy advocates a similar approach, although he argues for an actual Chapter 11 filing and reorganization, and would only allow government funds to be made available after a good-faith effort was made to try to secure private debtor in possession (DIP) financing.


Published in: on November 21, 2008 at 3:01 pm Comments Off on What to Do with Detroit?

Economic Worries Affect Renewable Energy Research

As the economy continues to struggle, and news of major world leaders meeting to discuss the crisis, many people wish they could get a break anywhere. At least we can look forward to cheaper renewable energy soon. Both Presidential candidates are offering “green collar” job plans, hoping to grow our economy and our independence from traditional energy sources. The future looks bright for renewable energy. Or at least, it used to.

Renewable energy is facing an uncertain future as the economy continues to struggle. The cost of gas has dropped slightly, but is still higher than most would prefer. With lower gas costs comes American complacency. Soaring prices and concerns over our reliance on foreign oil have caused people on all ends of the political spectrum to demand solutions. Just as in the 70s, interest in renewable energy has surged. What is uncertain is if the near future will turn out like the 80s, where lowered gas and oil prices caused a collapse in the focus on renewable energy.

After the collapse in renewable energy research and interest in the US, Europe overtook the US as the lead in research and development. European governments were eager for the jobs and technology, leading to large amounts of investment that were not present in the US. Only recently has America come back into the picture as a major center of interest, as concerns over high gas prices and our involvement in a war with a major gas producing country have brought the idea of renewable energy back into the forefront of our minds.


Published in: on October 24, 2008 at 8:29 am Comments Off on Economic Worries Affect Renewable Energy Research

The Latest Victim of Economic Downturn: Climate Change Policy

In the last several weeks, the American media has been inundated with worries about recent economic problems.  President Bush and both presidential candidates, Barack Obama and John McCain, have focused on the effects of the economy on the housing market, spending, taxes, and other domestic issues.  However, the worldwide economic downturn has a much wider impact:  regional and global agreements on climate change may suffer.

Throughout 2007, the European Union took numerous steps toward a regional agreement that would both fulfill and extend beyond the promises made in the Kyoto Protocol.  In December 2007, for instance, the European Commission proposed binding limits on automobile emissions that would impose fines on automobile manufacturers who failed to reduce tailpipe emissions.  The European Union considered this reduction to be one step toward becoming the world leader in cutting carbon emissions.

Following the strong statement in support of taking direct action against carbon emissions, in July 2008, the Group of 8 pledged to reduce greenhouse gas emissions by fifty percent by 2050The G8 further agreed that developing nations, such as China and India, would be included in any future climate change treaty.  At the time of the July 2008 meeting, Jose Manuel, the president of the European Commission, stated that these agreements represented the growing understanding of the importance of protecting the environment, and claimed that there was a strong economic case for dealing with climate change.

Unfortunately, while acting against greenhouse emissions was seen as economically responsible less than six months ago, some European countries now believe that protecting the environment will create an unreasonable economic burden.  The European Union hoped to finalize an agreement to reduce emissions by twenty percent from 1990 levels by 2020, which far exceeds the promises required under the Kyoto Protocol.  During this week’s Summit meeting of the European Union’s heads of state, several Eastern European countries and Italy worried that they might not be able to afford to cut greenhouse gas emissions as much as planned.  On Thursday, the countries with the greatest worries about the plan won a huge battle: the right for any one of the 27 members of European Union to veto the plan.  Additionally, the group refused to set December as the goal for completing negotiations.


Published in: on October 17, 2008 at 5:04 pm Comments Off on The Latest Victim of Economic Downturn: Climate Change Policy

Is the Federal Bailout Plan Enough

This past week has not been kind to Wall Street.

Just shortly after the government takeover of mortgage buyer giants Fannie Mae and Freddie Mac, Wall Street entered into a major downward spiral. The investment bank Lehman Bros. declared Chapter 11 bankruptcy, American International Group faced a downgrade, Merrill Lynch was bought by Bank of America, and the Dow Jones plummeted. The financial troubles continued throughout the week, with an $85 billion bailout of AIG and the SEC temporarily banning “short selling” of 799 financial companies. Towards the end of the week, the Federal Reserve Bank has offered to let investment institutions borrow money for collateral since it has become harder for Wall Street investment banks and other financial institutions to obtain credit, as well as lower the interest rate for those special loans.

On Saturday, President Bush, along with the U.S. Treasury Department, announced a proposed $700 billion bailout for Wall Street. This bailout gives the Treasury Dept unprecedented power to buy troubled mortgage-related assets from faltering private financial institutions. This means that the burden to pay for the troubles of the falls on federal taxpayers, at least for now. After buying the mortgages and other bad assets at a below market rate discount from these private banks, the government will retain them until the stock market recovers and hopefully sell to investors for a profit. Along with the bailout plan, the Bush administration has agreed to incorporate mortgage assistance and congressional oversight to appease Congress into signing a bill as quickly as possible. Although the bailout plan seems drastic, administration officials as well as members of Congress seem to think that not taking action could hurt Americans worse in the long run- investments and retirement savings could be at stake.

While it does seem like the federal government needs to step in and help in some way, it’s hard to ignore the large price tag that will cost American taxpayers. Why is it that the government can afford to help out these private financial institutions now, but didn’t set more regulations and protections for homeowners when the mortgage crisis started? There needs to be more protections for the average U.S. homeowner, and less for the executives of big business. Especially if it’s the average U.S. citizen that’s supposed to bail out these corporations. Hopefully the bailout bill that comes to fruition will incorporate more protections for homeowners, and that new regulations will prevent a financial catastrophe like this from happening again in the near future.


Published in: on September 26, 2008 at 10:37 am Comments Off on Is the Federal Bailout Plan Enough