Masterpiece Hypotheticals

Today the US Supreme Court heard oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  Transcript here. The biggest case of the year thus far, some say. In the case, a baker of custom wedding cakes in Florida refused to [sell a] / [create a custom] wedding cake for a gay couple. He argues that he cannot be prosecuted for such refusal under state anti-discrimination law because by forcing him to sell/create make such a cake (an expressive work of art), he would be forced to engage in speech. And the First Amendment does not allow a state to force speech.

The case is fun because it produces so many argumentative hypotheticals.  Here’s a few from today’s oral argument. Highlights include talk of Mexican mole and perhaps the first use of the word “rainbowness” in the history of Anglo-American jurisprudence.

JUSTICE GINSBURG: “What if it’s — if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight.”

* * *

JUSTICE GINSBURG: “Well, suppose we . . .  make the assumption that he — if he makes custom-made cakes for others, he must make it for this pair, but he doesn’t have to write anything for anybody. He doesn’t have to write a message that he disagrees with.”

* * *

JUSTICE KENNEDY: “Suppose the couple goes in and sees the cake in the window and the cake has a biblical verse. Does he have to sell that cake.”

* * *

JUSTICE GINSBURG: “Who else then? Who else as an artist? Say the — the person who does floral arranging, owns a floral shop. Would that person also be speaking at the wedding?”

* * *

JUSTICE GINSBURG: “How about the person who designs the invitation?”

* * *

JUSTICE GINSBURG: “Invitation to the wedding or the menu for the wedding dinner?”

* * *

JUSTICE KAGAN: “So the jeweler?”

* * *

JUSTICE KAGAN: “Hair stylist?”

* * *

JUSTICE KAGAN: “Why is there no speech in — in creating a wonderful hairdo?”

* * *

JUSTICE KAGAN: “The makeup artist?” “It’s called an artist. It’s the makeup artist.

(Laughter.)

* * *

JUSTICE KAGAN: — I’m quite serious, actually, about this, because, you know, a makeup artist, I think, might feel exactly as your client does, that they’re doing something that’s of– of great aesthetic importance to the — to the wedding and to — and that there’s a lot of skill and artistic vision that goes into making a — somebody look beautiful. And why — why wouldn’t that person or the hairstylist — why wouldn’t that also count?

* * *

JUSTICE BREYER: “Well, then, what is the line? That’s what everybody is trying to get at, because obviously we have all gone into a Mexican restaurant. They have this fabulous Mole specially made for the people at the table to show what important and wonderful evening it was, which it did import — impart. There are all kinds of restaurants that do that. And maybe Ollie’s Barbecue, you know, maybe Ollie thought he had special barbecue.”

* * *

JUSTICE KAGAN: “I guess I just didn’t understand your answers to Justice Sotomayor’s question. Same case or not the same case, if your client instead objected to an interracial marriage?”

* * *

JUSTICE SOTOMAYOR: “So how about disability; I’m not going to serve cakes to two disabled people because God makes perfect creations, and there are some religions who believe that?”

* * *

GENERAL FRANCISCO: “Well, Your Honor, I think what it boils down to is that in a narrow category of services that do cross the threshold into protected speech — and I do think it’s a relatively narrow category — you do have protection. For example, I don’t think you could force the African American sculptor to sculpt a cross for the Klan service just because he’d do it for other religious -“

* * *

JUSTICE KENNEDY: “If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings?”

* * *

JUSTICE KAGAN: “Which, you know — so I’ll just pick one of those. It’s like how about a — a — a — a couple, a same-sex couple goes to a great restaurant with a great chef for an anniversary celebration, and the great chef says I don’t do this for same-sex couples? How about that?”

* * *

JUSTICE KAGAN: “Okay. How about the same cake, if you don’t — if you want to, as I understand it, you want to treat the chef differently from the baker, but let’s say the same cake, and a couple comes in, a same-sex couple, and says it’s our first-year anniversary, and we would like a special cake for it.Can he then say no? No cake?”

* * *

JUSTICE KAGAN: “What if somebody comes in, it’s a baker who’s and atheist and really can’t stand any religion, and somebody comes in and says I want one of your very, very special, special cakes for a First Communion or for a Bar Mitzvah. And the baker says no, I don’t -­ I don’t — I don’t do that. I don’t want my cakes to be used in the context of a religious ceremony.”

* * *

GENERAL FRANCISCO: “Well, Your Honor, I think that the way you do it is because none of these Courts’ cases has ever involved requiring somebody to create speech and contribute that speech to an expressive event to which they are deeply opposed. And if I could go back to my example, when you force that African-American sculptor to sculpt that cross for a Klan service, you are transforming his message. He may want his cross to send the message of peace and harmony. By forcing him to combine it with that expressive event, you force him to send a message of hate and division.”

* * *

JUSTICE SOTOMAYOR: “I — I — I am very confused -­”

* * *
GENERAL FRANCISCO: And I would submit, just to finish up, that if you were to disagree with our basic principle, putting aside the line
about whether a cake falls on speech or non-speech side of the line, you really are envisioning a situation in which you could
force, for example, a gay opera singer to perform at the Westboro Baptist Church just because that opera singer would be willing to perform at the National Cathedral.
* * *
CHIEF JUSTICE ROBERTS: — I think there are many different faiths, but Catholic Legal Services, they provide pro bono legal representation to people who are too poor to avoid it and they provide it to people of all
different faiths. So let’s say someone just like Respondents here, except needing the pro bono assistance, goes into Catholic Legal Services
and say, we want you to take this case against Masterpiece Cakeshop. And the people at the -­ the lawyers say: well, we — we’re not going to, because we don’t support same-sex marriage. Are they in violation of the Colorado law?
* * *
JUSTICE SOTOMAYOR: And this gentleman says one of two things: If you’re same-sex, I’m not going to provide you with a rainbow cake or I don’t create rainbow cakes for weddings because I don’t believe in same-sex
marriage. I’m not going to sell it to you. I’m not going to sell it to a same — a heterosexual couple. I just don’t want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding.
* * *
JUSTICE BREYER: I’m asking can you do this? Can a baker say do this? Could the baker say, you know, there are a lot of people I don’t want to serve, so I’m going to affiliate with my friend, Smith, who’s down the street, and those people I don’t want to serve, Smith will serve. Is that legal?
* * *
JUSTICE ALITO: And we have a history of — in the questioning by — of Petitioner’s counsel, we explored the line between speech
and non-speech, but as I understand your position, it would be the same if what was involved here were words. Am I wrong? If he would put a particular form of words on a wedding cake, on a cake for one customer, he has to put the same

form of words, the same exact words on a wedding cake for any other customer, regardless of the context?
* * *
JUSTICE ALITO: So if someone came in and said: I want a cake for — to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in,
wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we’re going to have a party to celebrate Kristallnacht. He would have to do that?
* * *
MR. COLE: A bakery could refuse to sell a birthday cake to a black family if it objected to celebrating black lives. A corporate photography studio could refuse to take pictures of female CEOs if it believed that a woman’s place is in the home. And a florist could put a sign up on her storefront saying we don’t do gay funerals, if she objected to memorializing gay people.
* * *
MR. COLE: Yeah, thank you. No one is suggesting that the baker has to march in the parade, as Mr. Francisco said here. What the Colorado law requires is that you sell a product — when a — when a mom goes into a bakery and says make me a happy birthday cake for my child, and then she takes that cake home for her four-year-old son’s birthday party, no one thinks that the baker is wishing happy birthday to the four-year-old.
* * *

JUSTICE GINSBURG: Would that be true — would that be true if what the message – the message, let’s say Craig and Mullins said

we would like to have on this wedding cake of ours these words: “God bless the union of Craig and Mullins.”
* * *
JUSTICE KENNEDY: Suppose that either in this case or some cases you have a very complex case — cake, and — case and cake -­
(Laughter.)
* * *
JUSTICE KENNEDY: That — that — and you need a baker, a baker’s assistant to be right there at the wedding so you cut it in the right place and the thing doesn’t collapse. Does the baker have to attend that wedding and help cut the cake?
* * *
JUSTICE ALITO: There are services, I was somewhat surprised to learn this, but weddings have become so elaborate, that will write custom wedding vows for you and custom wedding speeches. So somebody comes to one of these services and says: You know, we’re not good with words, but we want you to write wedding -­ a vow — vows for our wedding, and the general idea we want to express is that we don’t believe in God, we think that’s a bunch of nonsense, but we’re going to try to live our lives to make the world a better place. And the — the person who is writing this is religious and says: I can’t lend my own creative efforts to the expression of such a message.
* * *
JUSTICE GORSUCH: Well, let’s take -­ let’s take a case a little bit more likes ours, and — and it doesn’t involve words, but just a cake. It is Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?
* * *
JUSTICE ALITO: Along the same lines as the Chief Justice’s question, would you say that Colorado can compel a religious college that — whose creed opposes same-sex marriage to provide married student housing for amarried same-sex couple or allow a same-sex wedding to be performed in the college chapel?

Winter Racing

Rory is willing to join Robert in some sailboat racing this weekend.  So we’re gonna do it in a serious but perhaps too tiny borrowed boat. This will be the first race of the midwinter racing series at RYC.  Very often there is NO wind.  And often there is rain and cold.  But this Sunday is predicted to be perfect!  Woo Hoo!

RSFeva.jpgImage result for richmond yacht club small boat racing

IMG_6430

Here’s someone else’s photos of this event.  Just so you can check out.

 

Carpenter v. US

Here’s the recording of this week’s oral argument in the US Supreme Court in Carpenter v. US.

https://www.oyez.org/cases/2017/16-402

This is a good case for first-time listeners of a supreme court oral argument.

Facts of the case

In April 2011, police arrested four men in connection with a series of armed robberies. One of the men confessed to the crimes and gave the FBI his cell phone number and the numbers of the other participants. The FBI used this information to apply for three orders from magistrate judges to obtain “transactional records” for each of the phone numbers, which the judges granted under the Stored Communications Act, 18 U.S.C. 2703(d). That Act provides that the government may require the disclosure of certain telecommunications records when “specific and articulable facts show[] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” The transactional records obtained by the government include the date and time of calls, and the approximate location where calls began and ended based on their connections to cell towers—”cell site” information.

Based on the cell-site evidence, the government charged Timothy Carpenter with, among other offenses, aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, 18 U.S.C. 1951. Carpenter moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on probable cause to obtain the records. The district court denied the motion to suppress, and the Sixth Circuit affirmed.

Question

Does the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violate the Fourth Amendment?

 

Reading List

What are the Pierces reading now?

 

 

Doing Business 2018

Nice discussion on Econtalk about the World Bank Doing Business Report 2018.

From Wikipedia:

The ease of doing business index is an index created by Simeon Djankov at the World Bank Group. The academic research for the report was done jointly with professors Oliver Hart (economist) and Andrei Shleifer. [1] Higher rankings (a low numerical value) indicate better, usually simpler, regulations for businesses and stronger protections of property rights. Empirical research funded by the World Bank to justify their work show that the economic growth impact of improving these regulations is strong.[2]

“Empirical research is needed to establish the optimal level of business regulation—for example, what the duration of court procedures should be and what the optimal degree of social protection is. The indicators compiled in the Doing Business project allow such research to take place. Since the start of the project in November 2001, more than 3,000 academic papers have used one or more indicators constructed in Doing Business and the related background papers by its authors.”[3]

 

Methodology

The report is above all, a benchmark study of regulation. The survey consists of a questionnaire designed by the Doing Business team with the assistance of academic advisers. The questionnaire centers on a simple business case that ensures comparability across economies and over time. The survey also bases assumptions on the legal form of the business, size, location, and nature of its operations.[4] The ease of doing business index is meant to measure regulations directly affecting businesses and does not directly measure more general conditions such as a nation’s proximity to large markets, quality of infrastructure, inflation, or crime.

The next step of gathering data surveys of over 12,500 expert contributors (lawyers, accountants etc.) in 190 countries who deal with business regulations in their day-to-day work. These individuals interact with the Doing Business team in conference calls, written correspondence and visits by the global team. For the 2017 report, team members visited 34 economies to verify data and to recruit respondents. Data from the survey is subjected to several rounds of verification. The surveys are not a statistical sample, and the results are interpreted and cross-checked for consistency before being included in the report. Results are also validated with the relevant government before publication. Respondents fill out written surveys and provide references to the relevant laws, regulations and fees, based on standardized case scenarios with specific assumptions, such as the business being located in the largest business city of the economy.[4]

A nation’s ranking on the index is based on the average of 10 subindices:

  • Starting a business – Procedures, time, cost and minimum capital to open a new business
  • Dealing with construction permits – Procedures, time and cost to build a warehouse
  • Getting electricity – procedures, time and cost required for a business to obtain a permanent electricity connection for a newly constructed warehouse
  • Registering property – Procedures, time and cost to register commercial real estate
  • Getting credit – Strength of legal rights index, depth of credit information index
  • Protecting investors – Indices on the extent of disclosure, extent of director liability and ease of shareholder suits
  • Paying taxes – Number of taxes paid, hours per year spent preparing tax returns and total tax payable as share of gross profit
  • Trading across borders – Number of documents, cost and time necessary to export and import
  • Enforcing contracts – Procedures, time and cost to enforce a debt contract
  • Resolving insolvency – The time, cost and recovery rate (%) under bankruptcy proceeding

The Doing Business project also offers information on following datasets:

  • Distance to frontier – Shows the distance of each economy to the “frontier,” which represents the highest performance observed on each of the indicators across all economies included since each indicator was included in Doing Business
  • Entrepreneurship – Measures entrepreneurial activity. The data is collected directly from 130 company registrars on the number of newly registered firms over the past seven years
  • Good practices – Provide insights into how governments have improved the regulatory environment in the past in the areas measured by Doing Business
  • Transparency in business regulation – Data on the accessibility of regulatory information measures how easy it is to access fee schedules for 4 regulatory processes in the largest business city of an economy

For example, according to the Doing Business (DB) 2013 report, Canada ranked third on the first subindex “Starting a business” behind only New Zealand and Australia. In Canada there is 1 procedure required to start a business which takes on average 5 days to complete. The official cost is 0.4% of the gross national income per capita. There is no minimum capital requirement. By contrast, in Chad which ranked among the worst (181st out of 185) on this same subindex, there are 9 procedures required to start a business taking 62 days to complete. The official cost is 202% of the gross national income per capita. A minimum capital investment of 289.4% of the gross national income per capita is required.

 

Summer Tour

The Pierce family is putting together a summer 2018 road trip plan.  The current thinking is to purchase a cheapish motor coach and hit the road for a National Parks + Canadian Rockies + Pacific Northwest tour. We’ve gotta knock out some of the bucket list of American funspots.

We are entertaining the idea of having another family  join us and share the the fun and expense. Maybe a portion of another family (eg. dad can stay at home and meet us for some of the time). Perhaps we can share the cost of purchase of the rig, or you can chip in for gas, or something else.  Please let us know if you or someone you know may be interested.

Examples:

1

https://sfbay.craigslist.org/eby/rvs/d/1993-jamboree-28-footmiles/6403069416.html

Curta

Robert has always wanted one. Now, 3D printable.

https://en.wikipedia.org/wiki/Curta

https://www.thingiverse.com/thing:1943171

The Curta is a small mechanical calculator developed by Curt Herzstark. The Curta’s design is a descendant of Gottfried Leibniz‘s Stepped Reckoner and Charles Thomas’s Arithmometer, accumulating values on cogs, which are added or complemented by a stepped drum mechanism. It has an extremely compact design: a small cylinder that fits in the palm of the hand.

Curtas were considered the best portable calculators available until they were displaced by electronic calculators in the 1970s.[1]

The Curta was conceived by Curt Herzstark in the 1930s in Vienna, Austria. By 1938, he had filed a key patent, covering his complemented stepped drum, Deutsches Reichspatent (German National Patent) No. 747073. This single drum replaced the multiple drums, typically around 10 or so, of contemporary calculators, and it enabled not only addition, but subtraction through nines complement math, essentially subtracting by adding. The nines’ complement math breakthrough eliminated the significant mechanical complexity created when “borrowing” during subtraction. This drum would prove to be the key to the small, hand-held mechanical calculator the Curta would become.

His work on the pocket calculator stopped in 1938 when the Nazis forced him and his company to concentrate on manufacturing measuring instruments and distance gauges for the German army.[2]

Herzstark, the son of a Catholic mother and Jewish father, was taken into custody in 1943, eventually finding himself at the Buchenwald concentration camp. Ironically, it was in the concentration camp that he was encouraged to continue his earlier research: “While I was imprisoned inside Buchenwald I had, after a few days, told the [people] in the work production scheduling department of my ideas. The head of the department, Mr. Munich said, ‘See, Herzstark, I understand you’ve been working on a new thing, a small calculating machine. Do you know, I can give you a tip. We will allow you to make and draw everything. If it is really worth something, then we will give it to the Führer as a present after we win the war. Then, surely, you will be made an Aryan.’ For me, that was the first time I thought to myself, my God, if you do this, you can extend your life. And then and there I started to draw the CURTA, the way I had imagined it.”[3][2]

Herzstark worked hard to move his invention from his knowing how to build the device “in principle”[3] to concise working drawings for a manufacturable device.

The department head’s celebration plan did not materialize, but Herzstark’s construction plans did. Between April 11, 1945, when Buchenwald was liberated by U.S. troops, and the following November, Herzstark was able, after making only a few “detailed improvements” to the design, to locate a factory in Sommertal, near Weimar, where machinists were skilled enough to work at the necessary level of precision, and walk away with three working models of the calculator.[3]

Soviet forces had arrived in July, and Herzstark feared being sent to Russia, so, later that same month, he fled to Austria. He began to look for financial backers, at the same time filing continuing patents as well as several additional patents to protect his work. The Prince of Liechtenstein eventually showed interest in the manufacture of the device, and soon a newly formed company, Contina AG Mauren, began production in Liechtenstein.

It was not long before Herzstark’s financial backers, thinking they had got from him all they needed, contrived to force him out by reducing to zero the value of all of the company’s existing stock, including his one-third interest.[1] These were the same people who had earlier elected not to have Herzstark transfer ownership of his patents to the company, so that, should anyone sue, they would be suing Herzstark, not the company, thereby protecting themselves at Herzstark’s expense. This ploy now backfired: without the patent rights, they could manufacture nothing. Herzstark was able to negotiate a new agreement, and money continued to flow to him.

Curtas were considered the best portable calculators available until they were displaced by electronic calculators in the 1970s.[1] Herzstark continued to make money from his invention until that time, although, like many inventors before him, he was not among those who profited the most from his invention.[citation needed] The Curta, however, lives on, being a highly popular collectible, with thousands of machines working just as smoothly as they did at the time of their manufacture 40, 50 or 60 years previous.[1][3][4]