There has been quite a bit of blogging about the Ninth Circuit's decision on Los Angeles's law against sleeping in the streets. (Steve Vladeck, Orin Kerr, Doug Berman, and collected links from Howard Bashman). I confess that upon consideration, it seems rather implausible to me.

I am willing to concede to history and logic that there are probably constitutional limits on the governnment's ability to punish involuntary status instead of conduct. But of course sleeping on a street is conduct. So I'm dubious of the move to say that Hobson's Choices aren't choices at all. And all the more dubious in this case, since sleeping in a public way (as opposed to other public property) hardly seems an "unavoidable" result of not having a private place or shelter to sleep in.

Put differently: Suppose people can only sleep 1, in homes, 2, in public shelters, 3, in public streets, and 4, in public non-streets. I take Wardlaw's decision to decide that for people who are too poor for 1, in cities that don't provide 2, it is "cruel and unusual" to force those people to pick 4 rather than 3. This seems very odd.

[I also don't think that the conduct-not-status principle derives, if anyplace, from the Eighth Amendment but more likely as a judicial prophylactic rule necessary to implement the procedural promises of the Due Process Clause, but that's a less important quibble. For an alternate, non-constitutionalized regime, see Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces (discussed here).]

While in much of my life I prefer ad-hockery over excessive planning, there are exceptions. The chief one is picking classes-- I think every semester of college involved a new spreadsheet with some new set program. The vast majority of these plans never happened (I never too playwriting, or portugese, or Shakespeare, or math logic, or much more), but even imagining the possibilities was fun.

Now it's time for a new round-- Yale has just announced the limited-enrollment classes for next fall. The pickings are rather slim, but Professor Rose's, Banner's, and Ellickson's classes are all attractive.