Other legal blogs on the Superferry decision

Professor of Law Emeritus Gideon Kanner at his blog, Gideon's Trumpet -

As far as we are concerned, the 216-page Hawaii Supreme Court opinion, plus the 11-page dissent, amount to a case of never-has-so-much-been-said-by-so-many-in-defense-of-so-little, to paraphrase Winston Churchill, and maybe someone should sue the Hawaii Supreme Court for contributing to global warming certain to increase after laying waste to the forests that had to be chopped down for the paper used thus far in that controversy.

In case you aren’t keeping this in mind, Hawaii is an island archipelago in the middle of the Pacific Ocean, which means that most of the stuff the Kanakas and their Wahines consume has to be brought in by ship. And, though claiming no seafaring expertise, last time we looked, transpacific freighters were pretty hefty vessels, probably bigger that that ferry. So why they would pose no threat to the environment as they shuttle from the mainland to the islands or among islands to unload their cargo, while the Superferry would do so is beyond our meager intellectual capacity to parse.

But, hey man, this is 21st century America where nothing of substance can get done without judges’ say so. What the hell, it keeps lawyers gainfully occupied.

Attorney Robert Thomas, who has been covering this case extensively on his blog, inverscondemnation.com -

The saga of the Hawaii Superferry has always seemed to be touched by George Lucas.

A certain segment of Hawaii's population has from the get-go considered the interisland vehicle ferry as nothing less than the Death Star: a whale-killer, a transporter of invasive alien species, and harbinger of a militarized imperialist government. (Others don't view it so malignantly, just as a much needed and long overdue alternative to interisland transportation, or as a refutation of Hawaii's reputation as a horrid place to conduct a business...but work with me here).

Attorney Benjamin Lowenthal's Hawaii Legal News -

The Spectre of Populism? The Hawai'i constitution limits the exercise of legislative power to exercise only "general laws" rather than special legislation. The majority concluded that this limitation was intended to prevent the inherent dangers in passing special legislation that favors specific individuals or entities. This, according to the HSC, was a corollary of the constitutional prohibition against governmental discrimination against persons or entities. By comparing the equal protection with the "general laws" limitation, the HSC has hit upon an older, long-abandoned interpretation of the Fourteenth Amendment. If that is the case, then the Hawai'i Constitution neither permits legislation favoring entities and legislation discriminating against entities.

This latter principle actually began in a piece of dictum from Santa Clara County v. Southern Pac. R. R. Co., 118 U.S. 394 (1886), in which the U.S. Supreme Court announced that the 14th Amendment forbids a State from denying corporations as well as persons equal protection under the laws. This sparked the beginning of personhood for corporations, a concept well established in the law today (and subject to much scholarly debate). Of course, there was no balance in the federal constitution, which does not have a "general laws" limitation. That meant that a large corporation, like Jay Gould's railroad company, could lobby a state legislature for special laws and attack state railroad regulations and taxes on the grounds that they were in violation of the 14th Amendment.

The opponents of special interests and railroads were the Populists, a political party that was prevalent in Western States like Nebraska and Colorado. Perhaps this "general laws" limitation is their lasting legacy? So if the Superferry is a modern day railroad company, then the HSC's analysis, which relied heavily on cases from states with similar limitations would have made the Populists proud.