Red Cross declares Syrian conflict to be civil war

In this citizen journalism image provided by Shaam News Network SNN, taken on Saturday, July 14, 2012, a Syrian man mourns over the body of a man killed, in Homs, Syria. On Sunday Syria denied U.N. claims that government forces used heavy weapons during a military operation that left scores dead. (AP Photo/Shaam News Network, SNN)THE ASSOCIATED PRESS IS UNABLE TO INDEPENDENTLY VERIFY THE AUTHENTICITY, CONTENT, LOCATION OR DATE OF THIS CITIZEN JOURNALIST IMAGE

In this citizen journalism image provided by Shaam News Network SNN, taken on Saturday, July 14, 2012, a Syrian man mourns over the body of a man killed, in Homs, Syria. On Sunday Syria denied U.N. claims that government forces used heavy weapons during a military operation that left scores dead. (AP Photo/Shaam News Network, SNN)THE ASSOCIATED PRESS IS UNABLE TO INDEPENDENTLY VERIFY THE AUTHENTICITY, CONTENT, LOCATION OR DATE OF THIS CITIZEN JOURNALIST IMAGE

In this photo released by the Syrian official news agency SANA, Syria's foreign ministry spokesman Jihad Makdissi speaks at a news conference in Damascus, Syria, Sunday, July 15, 2012. Syria on Sunday denied U.N. claims that government forces used heavy weapons during a military operation that left scores dead. Makdissi said the violence Thursday was not a massacre as activists and many foreign leaders have asserted but a military operation targeting armed fighters who had taken control of the village of Tremseh. (AP Photo/SANA)

In this citizen journalism image provided by Shaam News Network SNN, taken on Saturday, July 14, 2012, Syrians pray during the funeral procession of a man killed, in Homs, Syria. On Sunday Syria denied U.N. claims that government forces used heavy weapons during a military operation that left scores dead.(AP Photo/Shaam News Network, SNN)THE ASSOCIATED PRESS IS UNABLE TO INDEPENDENTLY VERIFY THE AUTHENTICITY, CONTENT, LOCATION OR DATE OF THIS CITIZEN JOURNALIST IMAGE

In this citizen journalism image provided by Shaam News Network SNN, taken on Saturday, July 14, 2012, Syrians chant slogans during a demonstration in Damascus, Syria. On Sunday Syria denied U.N. claims that government forces used heavy weapons during a military operation that left scores dead. (AP Photo/Shaam News Network, SNN)THE ASSOCIATED PRESS IS UNABLE TO INDEPENDENTLY VERIFY THE AUTHENTICITY, CONTENT, LOCATION OR DATE OF THIS CITIZEN JOURNALIST IMAGE

In this citizen journalism image provided by Shaam News Network SNN, taken on Friday, July 13, 2012, Syrians chant slogans during a demonstration in Damascus, Syria. On Sunday Syria denied U.N. claims that government forces used heavy weapons during a military operation that left scores dead. Partial translation of Arabic on the banner reads, "a horrible regime, killing and destruction." (AP Photo/Shaam News Network, SNN)THE ASSOCIATED PRESS IS UNABLE TO INDEPENDENTLY VERIFY THE AUTHENTICITY, CONTENT, LOCATION OR DATE OF THIS CITIZEN JOURNALIST IMAGE

DAMASCUS, Syria (AP) ? Syria's 16-month bloodbath crossed an important symbolic threshold Sunday as the international Red Cross formally declared the conflict a civil war, a status with implications for potential war crimes prosecutions.

The Red Cross statement came as U.N. observers gathered new details on what happened in a village where dozens were reported killed in a regime assault. After a second visit to Tremseh on Sunday, the team said Syrian troops went door-to-door in the village, checking residents' IDs and then killing some of them and taking others away.

According to the U.N., the attack appeared targeted at army defectors and activists.

"Pools of blood and brain matter were observed in a number of homes," a U.N. statement said.

On Sunday, Syria denied U.N. claims that government forces had used heavy weapons such as tanks, artillery and helicopters during the attack Thursday in Tremseh.

Syrian Foreign Ministry spokesman Jihad Makdissi said the violence was not a massacre ? as activists and many foreign leaders have said ? but a military operation targeting armed fighters who had taken control of the village.

"What happened wasn't an attack on civilians," Makdissi told reporters in Damascus. He said 37 gunmen and two civilians were killed ? a far lower death toll than the one put forward by anti-regime activists, some of whom estimated the dead at more than 100.

"What has been said about the use of heavy weapons is baseless," Makdissi added.

The United Nations has implicated President Bashar Assad's forces in the assault. The head of the U.N. observer mission said Friday that monitors stationed near Tremseh saw the army using heavy weaponry and attack helicopters.

The fighting was some of the latest in the uprising against Assad, which activists say has killed more than 17,000 people. Violence continued across the country Sunday, with more clashes reported around the capital, Damascus.

The bloodshed appeared to be escalating. On Sunday, the International Committee of the Red Cross said it now considers the Syrian conflict a civil war, meaning international humanitarian law applies throughout the country.

Also known as the rules of war, humanitarian law grants all parties in a conflict the right to use appropriate force to achieve their aims. The Geneva-based group's assessment is an important reference for determining how much and what type of force can be used, and it can form the basis for war crimes prosecutions, especially if civilians are attacked or detained enemies are abused or killed.

"We are now talking about a non-international armed conflict in the country," ICRC spokesman Hicham Hassan said.

War crimes prosecutions would have been possible even without the Red Cross statement. But Sunday's pronouncement adds weight to any prosecution argument that Syria is in a state of war ? a prerequisite for a war crimes case.

Previously, the ICRC had restricted its assessment of the scope of the conflict to the hotspots of Idlib, Homs and Hama, but Hassan said the organization had determined the violence has widened.

"Hostilities have spread to other areas of the country," Hassan told The Associated Press. "International humanitarian law applies to all areas where hostilities are taking place."

Although the armed uprising in Syria began more than a year ago, the ICRC has previously hesitated to call it a civil war ? though others, including United Nations officials, have.

That is because the rules of war override and to some extent suspend the laws that apply in peacetime, including the universal right to life, right to free speech and right to peaceful assembly.

Stephen M. Saideman, professor at the Norman Paterson School of International Affairs in Ontario, Canada, doubted whether the Red Cross declaration would change anything significant on either side.

Assad and his supporters won't stop fighting or change their tactics because they have too much to lose, Saideman said. The opposition "can have their spirits lifted by this, but they have been fighting a civil war for quite a while. So it is not clear how this announcement improves much their ability to recruit or to reduce divisions among the many rebel groups."

On Saturday, U.N. observers entered Tremseh, a community of 6,000 to 10,000 people in a farming region along the Orontes River northwest of the city of Hama. They found pools of blood in homes along with spent bullets, mortars and artillery shells, adding details to the emerging picture of what anti-regime activists have called one of the deadliest events of the uprising.

Dozens of other bodies have already been buried in a mass grave or burned beyond recognition, and activists are still struggling to determine the total number of people killed.

Estimates of the dead ranged from 100 to 152. Activists expected those figures to rise since hundreds of residents remain unaccounted for, and locals believe bodies remained in nearby fields or were dumped into the Orontes River.

Some of the evidence suggested that, rather than the outright shelling of civilians depicted by the opposition, the violence in Tremseh may have been a lopsided fight between the army pursuing the opposition and activists and locals trying to defend the village. Nearly all of the dead are men, including dozens of armed rebels.

Independent verification of the events is nearly impossible in Syria, one of the Middle East's strictest police states, which bars most media from working independently in the country. The observers are in the country as part of a faltering peace plan by U.N. special envoy Kofi Annan, who has been trying for months to negotiate a solution to Syria's crisis.

Although much of the international community has turned on Assad, Damascus still has some key allies ? including Russia and Iran. The Kremlin announced Sunday that Annan will meet President Vladimir Putin on Tuesday.

Also Sunday, Iranian Foreign Minister Ali Akbar Salehi said Tehran is ready to invite Syrian opposition groups and government envoys for talks, the semiofficial ISNA news agency reported.

Any proposal from Iran is likely to be rebuffed by rebel groups, which have rejected negotiations with Assad's government and have criticized Tehran for standing by its allies in Damascus. But the offer suggested Iran is seeking a more active role in mediation efforts after last week's visit to Tehran by Annan, who is seeking to keep alive his flagging peace efforts.

___

Jordans reported from Berlin.

Associated Press

Source: http://hosted2.ap.org/APDEFAULT/cae69a7523db45408eeb2b3a98c0c9c5/Article_2012-07-15-Syria/id-6a871ffd468a4ea2838f4ec2ce4faceb

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Edinburgh Festival under pressure to disinvite ?Brand Israel? group

Edinburgh International Festival organisers are under pressure to withdraw an Israeli dance group from the 2012 programme, after receiving an open letter criticising Batsheva Dance Company?s sponsorship by the Israeli state.?

?

Human rights organisations and supporters of Palestinian human rights from around the world endorsed the letter to Festival director Jonathan Mills in protest at how ?Batsheva willingly collaborates with the propaganda exercise, known as 'Brand Israel', which was conceived by Israel?s Ministry of Foreign Affairs (MFA).? This cynically aims to present positive spin about Israel and whitewash its oppressive regime and human rights abuses?.

?So far the open letter has collected endorsements from over seventy international organisations and from individuals such as journalist John Pilger.? The signatories reject the idea that culture is disconnected from politics and said that they were responding to a 2004 Palestinian call for a boycott of all cultural performers and exhibiters that are institutionally linked to the Israeli state.?

The open letter also highlights the situation for Palestinians, including artists and performers, who face restrictions and harassment because of Israel?s occupation and system of ?apartheid? an aggravated and state directed form of racial discrimination in which one group dominates and oppresses another?.

A coalition of Palestine solidarity organisations and activists coming together as 'Don?t Dance with Israeli Apartheid? are planning protests at all Batsheva performances at the end of August should the Festival go ahead with the scheduled programme.

?The Edinburgh International Film Festival issued an apology after taking sponsorship from the Israeli Embassy in 2006 and again in 2009. After returning the money, then-chairman, Iain Smith, admitted that ?our festival cannot keep itself entirely detached from very serious geopolitical issues and I am instituting a review of our procedures to ensure there can be no repeat incident?.??

http://www.alternativenews.org/english/index.php/news/economy-of-the-occupati...

Posted on 14-07-2012

Source: http://www.pacbi.org/etemplate.php?id=1954

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AFC West: Bold Predictions for the 2012 NFL Season

The 2012 NFL preseason will kick off in less than a month. Over the next few days I will be evaluating the league division by division; providing 2011 season recaps, predictions, odds and fantasy insight.

?

AFC West

?

Denver Broncos:?Lets see what can we talk about here?Last season the Broncos ranked 31st?in passing (for obvious reasons), but the addition of Peyton Manning will substantially improve on their 152 passing yards per game average. Manning will be equipped with young, talented receivers Eric Decker and Demaryius Thomas, as well as familiar faces Jacob Tamme and Brandon Stokley (side note: How does Stokley keep popping up on NFL rosters?).?

Defensively, the Broncos will have to lean heavily on their front seven led by Von Miller, D.J Williams and a healthier Elvis Dumervil. The secondary will be the Bronco?s biggest question mark with the loss of Brian Dawkins and the aging of Champ Bailey.

?

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San Diego Chargers:?Many fans and analysts picked the Chargers to run away with the AFC West last season, but instead they sputtered to 8-8. Statistically, the Chargers ranked sixth in the NFL in points per game with 25.4, total yards per game with 393 and passing yards per game with 276, but as Mike Ditka says ?stats don?t win football games gang." This rang true as some weeks the Chargers offense looked anemic, mostly due to injuries in the running game and to TE Antonio Gates.?

Four year lows in touchdowns, completion percentage and QB Rating for Phillip Rivers didn?t help the Chargers cause either. Matters could get worse offensively with key losses on offense in Vincent Jackson and Mike Tolbert.

The Chargers were an average unit on defense last season, as the team struggled to pressure QBs and registered only 32 sacks for the season. Former Ravens outside linebacker Jarret Johnson and rookie Melvin Ingram should marginally improve the Chargers pass rush this season.

Who Will Win The AFC West?

    Who Will Win The AFC West?

  • Broncos

  • Chiefs

  • Raiders

  • Chargers

?

Oakland Raiders:?When Matt Leinart is one of your key offseason additions, that should say it all about the state of your franchise. New Raiders head coach, Dennis Allen, will have his hands full with a defense that finished in the bottom third of all defensive categories last season.?

The Raiders defense ranked 29th?in total yards with 387 per game and 29th?in points allowed with 27.1 per game, and that?s prior to losing two of their top defenders in Kamerion Wimbley and Stanford Routt. Raiders running back Darren McFadden has top-five back talent, but injuries have limited him each season he has been in the NFL. Which is why the Raiders letting go perhaps their best and most consistent threat, running back Michael Bush, is mind-boggling.

?

?

Kansas City Chiefs:?The Chiefs ended the 2011 season on a high note winning two out of their last three, including a win over the Packers at Arrowhead. The Packer victory was enough to convince the Chiefs to retain Romeo Crennel?s services as head coach heading into 2012.?

Crennel?s biggest decision will be which direction to go in regard to quarterback play going forward. Matt Cassel's season was ended last year due to a broken hand suffered in week 10. Prior to that, Cassel was having a disappointing season, which led many to question if he should be replaced.? He led the Chiefs to being ranked 31st?in points per game at 13.2. Contributing to the lack of offensive production was an early season-ending injury to explosive running back Jamaal Charles. Charles will be returning from an ACL tear, with a reduced workload due to the addition of smash-mouth runner Peyton Hillis.

?

Predictions

Division Champions:?Denver Broncos

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Division MVP:?Peyton Manning

?

Division Rookie of the Year:?Ronnie Hillman (Broncos)

?

Bargain Fantasy Value

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Broncos:?RB Ronnie Hillman, WR Eric Decker, TE Jacob Tamme

?

Raiders:??QB Carson Palmer, RB Darren McFadden

?

Chiefs:?RB Peyton Hillis, WR Dexter McCluster

?

Chargers:?WR Robert Meachem, RB LeRon McClain

?

Odds

?

Division Odds

Denver Broncos ? ? ? ? ? ? 8 to 5

Kansas City Chiefs ? ? ? ?3 to 1

Oakland Raiders??????????? 6 to 1

San Diego Chargers ? ? ? 8 to 5

?

Super Bowl Odds

Denver Broncos ? ? ? ? ? ?20 to 1

Kansas City Chiefs ? ? ? 40 to 1

Oakland Raiders ? ? ? ? ? 60 to 1

San Diego Chargers ? ? ?30 to 1

?

Follow Me:?TM_Nelson

Source: http://bleacherreport.com/articles/1258779-nfl-preview-2012-bold-predictions-afc-west

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After Facebook freeze, IPO market starts to thaw

(AP) ? With new public stock offerings for guitar maker Fender and travel booking website Kayak on deck next week, there are signs demand is starting to grow for IPOs after a five-week freeze triggered by a steep decline in financial markets and exacerbated by Facebook's rocky May 18 debut.

Five companies are scheduled to go public next week alone, including Fender, Kayak and Palo Alto Networks, a maker of computer network security products. After Facebook, just four deals made it to market by the end of June, marking the longest stretch without an initial public offering of stock since August-October 2011. Stocks sank then in the wake of the U.S. debt limit showdown and a deepening European financial crisis.

The resurgence now is a welcome indication that dealmakers are regaining confidence about raising money through IPOs.

But the situation is far from rosy.

There are 68 companies expected to raise $14.4 billion through IPOs later this year, according to research firm Dealogic, Last year at this time there were almost double that amount of companies ? 135, looking to raise $23.6 billion.

"If the market stays healthy ? the overall market ? I think we will see a lot of IPO activity in the second half," said Nick Einhorn, an analyst with Renaissance Capital. But another plunge in stock markets could make it difficult for companies to raise money by selling shares.

The types of companies that try to raise money will also affect the IPO market. Mutual funds and the other big investors who tend to buy IPO shares are less likely now to be attracted to technology companies like social networks and games maker Zynga Inc. They've shifted to business technology companies such as Palo Alto Networks, which they consider more stable.

Stocks of several of these kinds of companies have performed well since their IPOs. ServiceNow Inc., a provider of so-called "cloud" technology services to companies, went public in late June, pricing at $18, above its expected range of $15 to $17. The stock has risen 34 percent from its debut. Jive Software Inc., which makes internal social networks for corporations, started trading in December and has climbed 56 percent from its IPO price.

Well-known consumer brands also help drum up excitement for IPOs among retail investors, the "regular" people who buy and sell stocks. There are high hopes for Fender Musical Instruments Corp., the company behind the famous Fender Stratocaster electric guitars. It's looking to raise up to $160.5 million in its IPO next week.

Several other consumer-oriented deals could ignite excitement later this year, said Morningstar analyst James Krapfel, citing Bloomin' Brands Inc., the owner of Outback Steakhouse; English professional soccer club Manchester United; and Coty Inc., maker of OPI nail polish and Jennifer Lopez perfume. Krapfel doesn't expect much demand for deals in industries sensitive to economic concerns and weak commodity prices such as industrial and energy companies.

But even companies in industries considered appealing will have a hard time if the broader markets don't cooperate. Fears about the faltering global economy stalled the IPO market in May, when economic worries drove the Standard & Poor's 500 index down 6.3 percent. In June, the index rallied 4 percent, but the IPO market tends to lag the broader market and reacts to the prior month's decline.

That's one reason experts like Einhorn remain wary. The S&P 500 is down 2 percent in July and a sluggish U.S. economy, signs of slowing growth in China and financial crises in Europe may douse enthusiasm. Also, summer is traditionally a slow time for making deals since many bank executives take vacation in July and August.

And then there's the memory of Facebook's disappointing debut. The stock was expected to take off and ignite investor demand for other IPOs. Instead, it closed up just 23 cents from its IPO price of $38 on its first day of trading. The stock has fallen about 19 percent since then and now trades around $31.

Facebook's decline after its long-awaited, highly anticipated IPO of the social network was "no question" a big negative for the IPO market, so the more time passes, the better, said Sam Hamadeh, the CEO of PrivCo, a research firm that follows privately held companies.

On the plus side, investors may take heart from a spurt of IPO activity at the end of last quarter. The stocks of all four companies that went public in the last week of June are trading at or above their IPO price.

Next week's scheduled IPOs include Fender, the travel website Kayak Software Corp., which expects to raise as much as $87.5 million; network security company Palo Alto Networks Inc., hoping to fetch as much as $229.4 million; Five Below Inc., a discount teen retailer, seeking to raise up to $134.4 million, and biotech company Durata Therapeutics Inc., which could raise up to $81.9 million.

Associated Press

Source: http://hosted2.ap.org/APDEFAULT/495d344a0d10421e9baa8ee77029cfbd/Article_2012-07-13-IPO-Outlook/id-fa53f999e60a46e98857058b917523c7

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College Paterno loses benefit of the doubt

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Legal Conventional Wisdom versus Legal Reasoning - Blogs.com

? Crim Pro: How To Tame the Beast? | Main | Hiring Committees 2012-2013 ?

Thursday, July 12, 2012

Legal Conventional Wisdom versus Legal Reasoning: The Case for New York City's Power to Impose Congestion Fees

There is a useful but often overlooked distinction between what I will dub "legal conventional wisdom" ("LCW") and legal reasoning. LCW consists of those catchphrases, habits of mind, slogans, proverbs, maxims, half-truths, and rough predictions for what courts do, usually without much explanation or justification. Legal reasoning, by contrast, claims to be normative and justificatory: Some propositions are deduced from, or invalidated by, other more basic propositions, all of which hold together as a consistent system of rules serving some general goal or set of goals (say, obedience to the text enacted by an authoritative sovereign, internal logical consistency, etc). To understand a proposition deduced with legal reasoning, one needs to understand not only the reason for the rule but also the weight and scope of that reason against rival reasons that support rival rules.

Which should be regarded as "the law" -- LCW, or legal reasoning? If "the law" is a prediction of what people with legal power will do in fact, then the question has no easy answer. Most of the time, ordinary "street-level" decision-makers follow LCW without asking why. The bureaucrat follows the custom of the office, perhaps supplemented by the staff manual. The trial judge just follows the prevailing LCW, perhaps supported by a tagline from a precedent (assuming that they issue a written opinion rather than just rule orally from the bench). At times, however, LCW is destabilized by some crisis -- say, a popular movement, a widespread ideology, a scandal, or just a sense that old unthinking habits are failing -- in which case, LCW can be thrust aside by legal reasoning, just as habits give way to reflection whenever habits become too self-destructive.

A good example of the conflict between LCW and legal reasoning is the widespread belief in New York City that the City cannot toll bridges or roads without specific authorization from Albany. Having questioned some of NYC's top lawyers, public and private, with expertise in local government law, I can confidently say that this belief in NYC's legal impotence is the reigning LCW. Yet any careful look at the relevant state statute -- specifically, section 1642(a)(4) of the NY Vehicle & Traffic Law -- suggests that this particular piece of LCW makes little sense as a matter of legal reasoning. (In the likely event that you, like myself, are fascinated by the finer -- i.e., more tedious -- details of state laws on local government, I have published my reasoning in support of the City's power to impose congestion fees in CityLaw, Ross Sandler's preeminent publication on all things related to laws governing NYC (Download Hills CityLaw piece on Congestion Pricing)).

When asked by various interested parties whether NYC has the power unilaterally to impose congestion fees under existing law, I always give two answers. If the scope of NYC's powers were decided based on legal reasoning, then I cannot see how NYC could lose. Yet the reigning LCW is so powerfully against NYC that it would be rash to predict victory. A question I want to ask and answer (after the jump) is whether there is something normatively undesirable about being governed by LCW when it so blatantly contradicts legal reasoning.


1. First, why do I say that sound legal reasoning supports NYC's power to impose fees? You can read the article -- only three pages long! -- if you like, but the gist is painfully simple. In 1960, the state comprehensively re-wrote their traffic code, giving special authorization to cities with a million residents (aka New York City) to impose ?tolls, taxes, [and] fees ? for the use of the highway or any of its parts where the imposition thereof is authorized by law.? The question of whether this clause authorizes NYC to impose congestion fees on roads and bridges to reduce peak-hour traffic and finance mass transit turns on whether those last three words -- "authorized by law" -- mean "authorized by either state or local law" or merely "authorized only by state law."

The answer, I argue, is simple: Reading the statute according to the latter interpretation makes it a meaningless tautology, essentially reading the provision to say that "state law gives New York City the power to toll roads if state law gives New York City the power to toll roads." By contrast, reading the statute to allow NYC to impose congestion fees when "authorized by either state or local law" construes the statute to place a familiar "non-delegation" limit on local officials' power, by requiring the mayor or commissioner of transportation to secure a fee schedule from city council before they impose tolls on drivers.

2. Second, why is LCW so powerfully against NYC?
I'd say that the LCW has arisen from habit, mayoral political incentives, and political culture.

First, habit: For decades, NYC has made a point of going to Albany whenever it has wanted to do anything new relating to roads and taxes. This habit has a legal basis: The black-letter doctrine in New York is that cities' powers over both of these topics must be narrowly construed for the sake of freedom of movement and to protect local minorities from being expropriated by avaricious officials. This canon of narrow construction is defensible in terms of legal reasoning: Burdens on roads can have big network externalities that one might want the State Legislature to monitor. But, as VTL section 1642(a)(4) suggests, sometimes the habit can outstrip the legal basis: Even when the City seems unquestionably to have legal authority, city officials still make the trek upstate for a statute, because that is what they always have done in the past. The habit became so entrenched that many lawyers -- including some quite high up in the City's legal hierarchy -- simply assume that they need state authorization for anything transportation- or fee-related, even without reading the actual state code. (The majority of the lawyers with whom I had spoken never heard of VTL section 1642(a)(4) before I mentioned it to them).

Second, this habit is reenforced by a mayor who does not particularly like City autonomy, because it allows City Council to police his implementation of policy. (By contrast, delegations of authority straight from the State Legislature to the mayor bypass Council, which might explain why the mayor sought authority directly from Albany to increase the number of taxi medallions rather than just go to Council for a local law).

Finally, state judges just do not seem to like NYC: They seem to have hazy, unarticulated memories of Boss Tweed and Tammany Hall floating about that subconsciously induce them to read NYC's powers with persnickety hostility.

These three factors combine to make it hazardous to predict that a state supreme court justice would rule in the City's favor in the first instance. They'd instead read "authorized by law" to mean "authorized by state law," reduce the provision to an empty tautology, cite a few old cases on the narrow power of cities over roads, and call it a day.

3. Is it normatively desirable that LCW so trump legal reasoning? Here are two objections.

A. First, there ought to be a place for collective reflection when habit does not reflect a real popular settlement of an issue. Please do not mistake me: I am not calling for constant collective debate on public issues. For the most part, I tend to agree with Madison's argument in Federalist #49 that big questions of social policy should be debated infrequently. Once settled after debate, there is a good case for following the settlement relatively unthinkingly, at least until a policy entrepreneur can overcome the presumption in favor of settlement to place an issue on our collective agenda. After all, thinking is painful, and habitual adherence to old settlements avoids the acrimony that comes with debating policies in which some win and some lose. If we really have self-consciously reached some deliberate settlement regarding some practice, then lawyers should arguably facilitate unthinking adherence to that settlement.

But sometimes we have not really settled an issue so deliberately. City power to act independently on traffic is a case in point. There never was any publicized debate about whether the dangers of network externalities from city tolls outweighed the danger of upstate representatives' rent-seeking (by holding up legislation desired by NYC until the upstaters are properly greased with pork -- say, prisons, property tax caps, or revenue-sharing). Instead, courts backed into a habit of repeating the slogan that local government power over roads should be narrowly construed (mostly in cases not involving NYC); city officials made a habit of trekking to Albany and appeasing Shelly Silver (the Assembly Speaker); and no one bothered asking whether a city with the size and corresponding transit and finance expertise of NYC really should be kow-towing to a bunch of state assemblymen and senators with little experience or staff expertise on large-city infrastructure and mass transportation.

One problem with LCW is that it mistakes such open questions as closed questions, by treating the habit as a settled decision. Good lawyers ought to recognize the difference. Legal reasoning helps lawyers to do so, by pointing out the absence of any genuinely self-conscious legal settlement of an issue and insisting that default normative principles used in the event of an unsettled issue kick in. In the case of congestion fees, those principles include honoring of the best reading of legal text. If Albany does not like its own 1960 handiwork, then it can amend the code.

B. Second, sometimes habits really cease making any sense as a matter of policy. When they do, it is a good idea for lawyers to facilitate political action to address the obsolete habit rather than shut down politics by deferring to LCW. The old legal presumption that local governments should not be able to toll roads is rooted in a judicial sense that such tolls interfere with freedom of movement. Maybe this principle made sense before the age of mass ownership of private cars. But, as the distinguished economist and New Yorker, Charles Komanoff (among others) has demonstrated, untolled roads are a tragic commons for automobile drivers who, oblivious of the external cost that each imposes on the other, mire each other in traffic jams that stop free movement. In this sense, tolls are movement-liberating, not movement-impeding: They send a price-signal to drivers about the consequences of their decisions so that drivers can better coordinate their decisions to use the roads, with low-value trips making way for higher-value trips. To deprive the City of the power to toll roads and bridges in the name of freedom of movement is, therefore, perverse. Moreover, to say that the state legislature should handle such matters because the City might burden non-resident suburbanites is to ignore the political incentives of (a) the City to facilitate traffic movement into the downtown areas (and reap a corresponding yield of commerce and tourism) City and (b) up-state politicians to impose costs on NYC by holding legislation that the City desires hostage until the City's representatives pay a "toll" of pork, tax relief, or other up-state goodies.

Of course, had We the People of New York, through our elected representatives, opted for such senseless policies as "free" roads that toll everyone with traffic jams, then so be it: The judges ought to make us eat our words, democracy being the theory (as Mencken put it) that the people ought to get what they want good and hard. But we never made such a decision: We said exactly the opposite in 1960, when New York's traffic laws were being comprehensively re-codified anticipating the highway revolution of the 1960s. Through our state legislature, we declared that NYC was special -- that it could be trusted, because of its scale economies and financial sophistication, to impose tolls denied to other municipalities in the state. This is the obvious import of the words of VTL section 1642(a)(4). To read those words out of existence through mindless habit is the antithesis of good lawyering or good judging.

Posted by Rick Hills on July 12, 2012 at 06:25 PM | Permalink

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Rick - This immediately makes me think of the administrative state. I practiced with the NLRB for almost a decade and there were so many things that we did that no one could explain to me in other than LCW terms that I actually gave up asking for explanations. The administrative law context seems a nice application of the principle because everyone is so convinced at the level of practice - often self-righteously so - that the LCW "obviously" derived from legal reasoning. I have always thought that the true explanation for the broad acceptance of LCW was that not doing so would wreak such practical havoc that no one dares contemplate it.

Posted by: Michael Duff | Jul 12, 2012 11:25:58 PM

Yes, Michael, that's precisely the attitude that I encounter among grizzled practitioners. And -- I hasten to add, lest I offend some grizzled practitioner lurking out there -- it is actually often a really healthy attitude that we law profs should learn to understand and respect. Changing a real-life institution is much harder than just making a smart logical argument rooted in sound legal reasoning: If one has fallen into a "good-enough" pattern or habit of decision-making rooted in LCW, then there really ought to be a presumption against changing it, even if it is, in terms of legal reasoning, fairly arbitrary.

My very modest point is only that -- sometimes -- habit is not enough and legal reasoning ought to have its day. I think that NYC's legal powers to enact congestion fees likely falls into that category of cases.

Posted by: Rick Hills | Jul 13, 2012 9:47:34 AM

Rick - I agree generally but would add that the very question of whether something really is "good enough" is often not asked at all. I've been both a grizzled practitioner and a law prof and I'll throw my lot in with the "shaker-uppers" (or at least with the questioners) almost every time. So I suppose I'm (mildly) taking issue with your presumption.

Posted by: Michael Duff | Jul 13, 2012 11:06:48 AM

"a million residents (aka New York City)"

"aka," or "i.e."?

Posted by: andy | Jul 13, 2012 7:48:47 PM

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