The Volokh Conspiracy

A pretty interesting conversation, via Michael Dorf.

I blogged about this case several months ago; Gavel to Gavel reports that the New Hampshire legislature is considering whether to pass a “bill of address” asking the governor to remove the judge who issued the decision:

A bill of address requires only a simple majority of both the House and Senate and need not specify any “bribery, corruption, malpractice or maladministration, in office” as in the case of an impeachment. “The governor with consent of the council may remove any commissioned officer for reasonable cause upon the address of both houses of the legislature...” ...

Here’s the text of the bill of address:

The House of Representatives and Senate in General Court convened, under Part 2, Article 73 of the New Hampshire Constitution, satisfied that the public good requires that Michael Garner, Marital Master, should no longer hold and retain his judicial office and that there is reasonable cause for his removal, respectfully address and request the governor, with the advice and consent of the council, to remove said Marital Master Michael Garner from office.

The cause for removal of the said Michael Garner is that he brought his office and the judiciary into disrepute, and exceeded his constitutional authority and abused his discretion, resulting in the failure to preserve the rights of individuals appearing before him of their liberty by not providing an impartial interpretation of the laws, contrary to Part I, Article 35 of the New Hampshire Constitution, when he recommended to the presiding justice an order removing a child from an educational setting on the basis of religious prejudice, depriving them of their liberty of conscience guaranteed by Article 4 and their religious freedom guaranteed by Article 5 thereof.

The underlying case is apparently pending before the New Hampshire Supreme Court.

Megan McArdle summarizes the post-“snowmageddon” state of Washington, DC, which isn’t good:

You will probably have noticed that I did not post this morning. That’s because sometime before 8 am, I decided that I should get to the grocery store and pick up my lung medicine in the hiatus between snows.

Four hours later, I returned with a trunk full of whatever could be scavenged from the grocery store shelves. You have never seen a city as completely incompetent at dealing with snow as Washington DC.

I mean, two feet of snow is inconvenient anywhere. But in DC, only the main streets have been plowed. And by “plowed”, I mean that one meager lane has been cleared, so that even major arteries like New York Avenue frequently narrow to one lane. The side streets have been turned into defacto one-way streets–except that no one knows which way. The result is a lot like driving on a country road in Ireland, where you are apt to come upon someone going the other way, and then spend precious moments staring at each other until one party reluctantly backs up to a wider spot.

In fairness, a jurisdiction that gets massive snowstorms as rarely as DC can’t be as well-prepared for them as a northern city. If it was, that would be a sign that DC authorities have invested too many resources in snowstorm preparation. That said, things are a lot better where I am in northern Virginia. Until the second round of snow began tonight, the main roads were completely cleaned, and I was able to drive out to buy last minute supplies in Arlington and Falls Church with minimum trouble. Our own street (a small side street) was only just barely driveable, but still could be used. Much of the difference between DC and Virginia is probably attributable to DC’s famously incompetent municipal government. I’m very glad that I “voted with my feet” against them when I first moved to the region.

Megan also describes major shortages in DC stores. Again, things seem to be less bad in Northern Virginia. We were able to buy many things in Whole Foods and Safeway yesterday and today, though only Trader Joe’s had salad greens available. After searching several stores, I was even able to restock my supply of ice-melting salt at Bed, Bath & Beyond, which had a large supply. Apparently, many Virginians don’t realize that you can buy such supplies there. 

We did have an interesting adventure trying to purchase ice-melting salt at Home Depot earlier. The salesperson there said they were all out, but advised us to come back Wednesday morning when they expect to get a new shipment in. I pointed out that another major snowstorm will be raging at that time, and asked if I might be able to come back on Thursday. He said the new supply would probably be exhausted by then. If they expect the new shipment to be exhausted that quickly, why not simply order more to begin with? The Bed, Bath & Beyond people told me that they got a new shipment in this afternoon, which leads me to wonder why Home Depot couldn’t get equally prompt suppliers.

Ultimately, however, it’s understandable that businesses, consumers, and local governments would make mistakes in reacting to such a rare event. At least in Virginia, things haven’t been as bad as I might have expected. Of course, I may change my mind once I get down to the work of scheduling makeup sessions for all the classes I had canceled this week....

Discussions about the Fourth Amendment sometimes include arguments that look like this:

The Fourth Amendment protects reasonable expectations of privacy. I expect privacy in _________, and I’m pretty reasonable, so I have a reasonable expectation of privacy in ________ and the Fourth Amendment should therefore protect it.

This reasoning is really common, but it’s also based on a misunderstanding. It is based on the erroneous belief that the test for whether government conduct violates a “legitimate” or “reasonable” expectation of privacy under the Fourth Amendment is whether a reasonable person would expect privacy in what the government learned. I can certainly understand why a lot of people think that way. After all, the test is “reasonable expectation of privacy,” which sure sounds like it should be based on whether a reasonable person would expect privacy. But it turns out that this isn’t how the Fourth Amendment works, and I wanted to explain why.

The key idea is that the phrase “reasonable expectation of privacy” is a constitutional term of art, much like other constitutional terms of art like “due process,” “free speech,” “strict scrutiny,” or “fundamental rights.” You normally can’t answer if something violates “due process” just by asking if there was a “process” that seemed “due,” much like you can’t answer if a regulation satisfies “strict scrutiny” by scrutinizing the regulation while being “strict.” In all of these cases, the phrase captures a complicated body of caselaw; You can’t just repeat the name for the test and think that the name accurately captures the doctrine. Rather, you need to recognize the test as a term of art that reflects a large body of caselaw, and you need to get the answer from the caselaw. 

In the case of the “reasonable expectation of privacy” test, the Supreme Court has repeatedly refused to provide a single test for what makes an expectation of privacy “reasonable.” Instead, it has used different approaches in different settings. In some settings, an expectation of privacy becomes reasonable when it is a good thing as a policy matter for the Fourth Amendment to protect it. In other settings, an expectation of privacy becomes reasonable when it is backed by positive law outside the Fourth Amendment. In other settings, an expectation of privacy becomes reasonable when it shields the government from particularly private facts. Finally, in some settings, an expectation of privacy is reasonable when common social norms make exposure jarring or unlikely. I have called these four approaches the Four Models of Fourth Amendment Protection; they are four different ways of interpreting what makes an expectation of privacy reasonable, and they each apply in various degrees in different factual settings. 

It sounds complicated, I realize, and it is. But I think there are good practical reasons why the Supreme Court has refused to provide a single test for what makes an expectation of privacy reasonable; no one test consistently and accurately distinguishes government investigative steps that need Fourth Amendment regulation from those that don’t. (See the Four Models paper linked to above starting at page 25 for the detailed answer of why.) Whatever the reason, the key point is that a “reasonable expectation of privacy” is not just an empirical question into whether a reasonable person would expect privacy. You can’t just mull over the words “reasonable expectation of privacy” and derive an answer from those words any more than you can mull over words like “due process” and derive an answer from for what the due process clause forbids. 

A Massachusetts woman is suing her real estate broker over exposure to second-hand smoke in her condo, which the broker helped her purchase:

Alyssa Burrage says she was smoked out of her new $405,000 condominium.

Burrage, a 32-year-old advertising company employee with a history of asthma, had smelled cigarettes when she first visited the bright, parlor-level condo in Boston’s South End in 2006 with her real estate broker. But the broker, she alleges, assured her that the owner must be a smoker and the stench would disappear.

After Burrage moved into the Milford Street brick row house, she says, she discovered the secondhand smoke was coming from one of two men living in the condo below. The men and the condo association refused to fix the problem, she adds, and she had to move out.

Today, in what tobacco law specialists call one of the first lawsuits of its kind to go to trial in Massachusetts, a jury is scheduled to decide whether Burrage’s real estate broker is liable for damages. 

I hate cigarette smoke myself. And I think the real estate broker should not have been so quick to assume that the stench was left over from a previous owner. Despite these points, I think this is a very dangerous lawsuit, and I hope it fails. 

Regardless of what the broker said, any reasonable buyer should realize that there’s no way to guarantee that you won’t have neighbors who smoke in a building where smoking isn’t forbidden (as it apparently was not in this condominium association). Even if the current neighbors are all nonsmokers, you don’t know who might live there in the future. If asthma or some other factor makes it necessary for you to live in a home completely isolated from smokers, you should buy a unit in a condominium association that forbids smoking, rent an apartment in a building with such a ban, or buy a free-standing house. Another possible option is to engage in Coasean bargaining with neighbors (i.e. — compensating them in some way for foregoing the right to smoke in their condo). 

If real estate brokers can be held liable for remarks like this, the end result will be to make brokers more expensive and/or that brokers will be very reluctant to give advice to their clients for fear that it might turn out to be wrong and land them in legal hot water. Indeed, that may happen even if the broker wins this particular suit. The Boston Globe article on the case says that the broker offered Burrage a settlement because doing so was cheaper than litigating the case. Unless the courts or the Massachusetts legislature firmly slam the door on these types of lawsuits, this result could be a signal to future plaintiffs and lawyers that this kind of case is an effective nuisance suit. That, in turn, will reduce the value or increase the cost of real estate brokerage services for all Massachusetts buyers.

Perhaps current Massachusetts law allows these kinds of suits nonetheless. If so, it should be changed.

UPDATE: The linked Boston Globe article has been updated to indicate that the case has been settled for an undisclosed amount.

UPDATE #2: Some commenters who claim that it is important to prevent brokers from making inaccurate statements may be misconceiving the role of real estate brokers in such transactions. Much of what the broker does is give his client probablistic advice about such matters as the condition of the property, its likely future market value, and so forth. Such claims are necessarily fallible and will often turn out to be wrong. They are nonetheless valuable to clients because, on average, they are more likely to be correct than the client’s own less expert judgments. If brokers risk a lawsuit any time their advice on such issues turns out to be wrong, they will probably either be much less willing to give advice, charge more for their services, or some combination of both. None of these options is likely to be good for consumers. Obviously, the situation is different if the broker and the client sign a contract in which the former assumes liability for any mistakes in his advice on a particular range of subjects. But that doesn’t seem to have happened here.

Political scientist Jeffrey Friedman has an excellent article arguing that political ignorance by both regulators and voters played a key role in causing the financial crisis:

You are familiar by now with the role of the Federal Reserve in stimulating the housing boom; the role of Fannie Mae and Freddie Mac in encouraging low-equity mortgages; and the role of the Community Reinvestment Act in mandating loans to “subprime” borrowers, meaning those who were poor credit risks. So you may think that the government caused the financial crisis. But you don’t know the half of it. And neither does the government....

Given the large number of contributory factors — the Fed’s low interest rates, the Community Reinvestment Act, Fannie and Freddie’s actions, Basel I, the Recourse Rule, and Basel II — it has been said that the financial crisis was a perfect storm of regulatory error. But the factors I have just named do not even begin to complete the list. First, Peter Wallison has noted the prevalence of “no-recourse” laws in many states, which relieved mortgagors of financial liability if they simply walked away from a house on which they defaulted. This reassured people in financial straits that they could take on a possibly unaffordable mortgage with virtually no risk. Second, Richard Rahn has pointed out that the tax code discourages partnerships in banking (and other industries). Partnerships encourage prudence because each partner has a lot at stake if the firm goes under. Rahn’s point has wider implications, for scholars such as Amar Bhidé and Jonathan Macey have underscored aspects of tax and securities law that encourage publicly held corporations such as commercial banks — as opposed to partnerships or other privately held companies — to encourage their employees to generate the short-term profits adored by equities investors.....

This litany is not exhaustive. It is meant only to convey the welter of regulations that have grown up across different parts of the economy in such immense profusion that nobody can possibly predict how they will interact with each other. We are, all of us, ignorant of the vast bulk of what the government is doing for us, and what those actions might be doing to us. That is the best explanation for how this perfect regulatory storm happened, and for why it might well happen again.

For more of Jeff’s analysis of the ways in which ignorance contributed to the crisis, see here, and his much longer academic article on the subject in a special symposium issue of Critical Review (which also includes important contributions by many other scholars).

I don’t know enough about financial regulation to have any strong opinion on whether Jeff’s arguments are correct (though many of them strike me as persuasive). However, his analysis does overlap with my own work suggesting that the size and complexity of modern government greatly exacerbates the dangers of political ignorance (e.g. here and here). It is definitely a good and thought-provoking piece, even if there are parts that are hard for me to judge.

CONFLICT OF INTEREST WATCH: Jeff was one of the people who played a key role in getting me interested in the issue of political ignorance back in the 1990s. As editor of Critical Review, he published my very first article on the subject back in 1998. So I owe Jeff a great debt for, among other things, pointing me towards a subject that is one of the main parts of my research agenda, and promoting my work at a time when I wasn’t well-known at all. At the same time, we have disagreed in print over several major issues relating to political ignorance. So I’m hardly an uncritical cheerleader for Jeff’s arguments, or he for mine. In this series of articles, I think he makes a valuable contribution to the debate, even if we ultimately conclude that some other explanation of the crisis is more compelling. My guess is that the ignorance Jeff points to was at least an important contributing factor, even if other causes also played a major role.

I’ve written a fair bit — in my book, in a couple of articles here and here, and on this blog from time to time — about the extraordinary development of the new science of networks, an amalgam of research in biology, physics, systems engineering, mathematics, sociology, and other disciplines, all focused on unraveling the laws governing the growth and development of networks. So here comes a wonderful illustration of some of the connections that these researchers are uncovering, in this week’s issue of Science. A team of researchers at Hokkaido University in Japan investigated the network-creation behavior of the slime mold, an extraordinary createure that grows on forest floors in the form of an interconnected network of tube-like tendrils which transport nutrients around the organism. The researchers put out a bunch of oat flakes (a favorite slime mold food) on a platform in a pattern replicating the distribution of population centers in and around Tokyo, Japan, and then plunked the mold down in the middle and let it get to work. The idea was to see what kind of network the mold would build, connecting the various food sites together.

And lo and behold, the network of tendrils the mold — an organism, incidentally, without anything remotely resembling a “brain” — came up with bore a striking resemblance to Tokyo’s actual existing rail network. As a report in The Economist put it, the slime mold “had not simply created the shortest possible network that could connect all the cities, but had also included redundant connections that allow the creature (and the real rail network) to have resilience to the accidental breakage of any part of it.” It’s quite astonishing. The Shortest Viable Network problem is mathematically quite daunting — engineers have any number of algorithms that attempt to produce the right pattern of links and connections, but it’s a tricky, difficult business. But somehow, the most primitive organism imaginable seems to “know” how to solve the problem. Fabulous! How do they do it? Good question!

Last week the petitioners in City of Ontario v. Quon filed their merits brief. Quon is the pending Supreme Court case on Fourth Amendment rights of government employees in their text messages created using government-provided text pagers. I’ve read the brief, and it makes a surprisingly narrow argument: I suspect that this narrow framing will make Quon a significantly less important case than it otherwise could have been.

To recap, the issue in Quon is whether city employees violated the Fourth Amendment rights of Jeffrey Quon, a SWAT sergeant who had been provided a pager by the city, when employees went to the pager service provider and obtained stored copies of text messages that Quon had sent using his pager. I think there are three basic issues at play in Quon: 1) Does an individual generally have a reasonable expectation of privacy in copies of his text messages stored by a third party service provider?, 2) If so, is that expectation of privacy eliminated in the specific facts of Quon given that he was a government employee who had been specifically notified that he had no privacy rights, and 3) If Quon did retain a reasonable expectation of privacy, is the search of his messages reasonable under the speical needs exception to the Fourth Amendment? (To be clear, these are my questions, not the formal questions presented.)

I was particularly interested in the first question, as it has tremendously far-reaching implications for how the Fourth Amendment applies to e-mail and other contents of communications sent over computer networks. To put it simply, Question 1 is the question of interest to those of us who follow how the Fourth Amendment applies to new technology; Questions 2 and 3 are of interest to those interested in the general privacy rights of government employees.

I raise this context because the petitioner’s merits brief in Quon simply ignores the threshold first question. Its argument mostly assumes that there are Fourth Amendment rights in text messages generally, but then says that even if this is true, Jeffrey Quon sure didn’t have any of those rights given the specific facts of his case. The only mention of the first question comes on page 29 of the brief, when it notes the first question in passing:

Whatever expectation of privacy a sender or recipient of text messages on a government employer’s equipment can ever legitimately have—if any [fn3] —certainly none existed within the operational realities of the Ontario Police Department.

[fn3] In its amicus brief supporting rehearing en banc, the United States pointed out the serious analytical errors in the Ninth Circuit’s conclusions, arguing, among other things, that there generally is no reasonable expectation of privacy in text messages sent and received. App. 163–180.

The rest of the brief hammers questions 2 and 3, and to my mind quite persuasively.

On the whole, I think it was a wise strategic choice not to argue the first question. The Court granted the case because of Judge Ikuta’s dissent, and her dissent didn’t get into these issues. The facts are very strongly in the petitioner’s favor on the later questions; the Ninth Circuit’s ruling that the operational realities of the workplace didn’t eliminate Quon’s Fourth Amendment rights was an outlier. This framing of the issues lets the Court correct the outlier without going into the other issues.

Further, the Justices probably don’t have any particular interest in speaking on Question 1, as the Ninth Circuit panel decision in Quon was the first circuit to address the issue. Given the rapidly changing technology and the difficult Fourth Amendment terrain, the wise course is to stay out of the issue for now (even though I think there is a correct answer, that a user does normally have Fourth Amendment rights in his text messages). Finally, the City is on much easier ground arguing this case as an uncontroversial no-privacy-for-SWAT-team-officers case rather than a controversial no-privacy-for-text-messages case. So on the whole, it’s a wise choice, even if it does mean that the Court is much less likely to get into the technology issues that I personally find so interesting.

From the online diary of Mr K, inhabitant of the snowbound city of W.

Day 1.15. As the snowdrifts begin to build, making it impossible to go about to Superfresh or Starbuck’s or Pain Quotidien or any other of the city W’s cherished Spring Valley locations, as it mounts just beyond the door, making it impossible even to go out, a slow sense of helplessness and frustration begins to build.  Good, dark Michel Cluizel chocolate helps calm the gnawing anxieties that we will never get out, we will never see the sun again, never get beyond the snowbanks — but the supply, which seemed adequate only yesterday, is now dwindling at an alarming rate.

Day 1.17. Whence this terrible stifled feeling?  The feeling that if I cannot get out, I shall go ... go mad!  I have read of this grim phenomenon, cabin fever.  I believe I have it.  Of course, we should not be surprised; after two or three hours cooped up in the house, who would not be in my condition?  Beloved wife and adorable daughter look on with concern.  I pace and pace.  Shall there be no respite from the weather?

Day 2.6.  I pick up my cello and endlessly play the Ricercars of Domenico Gabrielli.  Only a Renaissance Italian can soothe me.  Beloved wife and adorable daughter are mute with horror, particularly upon the many bad notes on Ricercars 3, 5, and 7, which I don’t know very well and play horribly out of tune.  I feel deeply for them.

Day 3.0.  I awaken to a brief weather report from a station that is signing off in the storm, wishing its listeners good luck and God bless.  More snow on the way.

Day 5.0.  I have finished the collected works of Richard Posner.  I itch with the strange inactivity of it all.  Is that all he has written?  That’s it?  My head thrums with his conversion to Keynes.  Apparently nothing is certain in this world, not even Chicago Law & Economics; we are like dust in the wind.  Nothing can be seen beyond in our windows save for white drifts and gently falling snow.  We are reduced to tins of octopus in olive oil on crackers.  I chew gently on the cephalopod and wonder if this was one of the octopuses that dragged around coconut shells in a sign of non-mammal intelligence and tool-use.  Funny, when I think of tools these days, I somehow think of axes and hatchets, not coconut shells.

Day 6.4.  My Kindle!  My very, very strange Kindle!  It has mysteriously and unbidden delivered me a book by Stephen King.  Listed at 9.99 in the Kindle edition, and yet no charge showed up on my Amazon account — and shortly thereafter, the price shot up to 89.99, with an odd note saying if I wanted to know why this might be so, ask Virginia Postrel.

Day 7.67.  I cannot help myself, I am drawn into The Shining on my Kindle.  Everything about it seems ... so true!  So real!  Snowbound until the end of the semester!  I have never seen myself so clearly before or the world around me.

Day 8.9.  My beloved wife pleads with me to give up the Kindle.  Never!  Never!  It is filled with strange and peculiar graphics that are not the usual portraits of artists and writers.  I know not from whence.  Only that they bid me, they bid me ...

Day 9.5. I have prayed to St. Jobs for relief, but the words ominously drew themselves in the grayscale monochrome of the e-ink ... “It’s a Kindle, chump, not the IPad.”  Then I know all is lost, I cannot save myself — or them!  The messages on the Kindle, so compelling, so seductive, they insinuate themselves into my brain, and they cannot be resisted.

Day ... Jack’s back!

A bill pending in the South Carolina Legislature would provide that,

Members of the General Assembly may use athletic clubs or gymnasiums owned by a state or local agency, entity, commission, or institution without charge.

The sponsors are Reps. Williams, Jefferson, Brantley, and Hodges.

This recent Daily Kos-sponsored poll showing that large proportions of self-identified Republican voters hold irrational and extremist views has gotten a lot of attention recently. In the above-linked post, Markos Moulitsos writes that the results are “startling.”

There are some methodological problems with the survey (see here and here). In my view, the most important is that it probably oversamples the most committed Republicans. Strong partisans are more likely to hold extreme views, such as the “birther” belief that Obama wasn’t really born in the US (endorsed by 36% of Kos’ respondents). Some 83% of the Kos respondents say they are likely to vote in the 2010 elections, which is a much higher proportion than in the general population; Committed partisans are far more likely to turn out (especially in midterm elections) than lukewarm ones. 

Despite such flaws, I think that many of the Kos findings are roughly accurate. The mistake is not the conclusion that partisan Republicans hold many irrational views, but the implicit assumption that this problem is confined to one side of the political spectrum. 

I. Ignorance and Irrationality are Common Among Democratic Voters Too.

One can easily find parallel examples for Democrats. Thus, Kos makes much of the finding that 23% of Republicans in the survey say they want their state to secede. But a 2008 Zogby/Middlebury College poll found that support for secession was vastly more common among liberals than conservatives. In that poll 32% of liberals claimed that their state has a right to secede (compared to only 17% of conservatives), and a whopping 33% of African-American respondents (an overwhelmingly Democratic group), said that they would support a secession movement in their state. I suspect that supporters of the opposition party are always disproportionately likely to express support for secession when they are angry at an incumbent administration of the opposite party (as Republicans are today, and Democrats were in 2008). I don’t think that support for secession is necessarily ignorant or stupid. To the extent that it is problematic, it’s not a problem limited to Republicans.

Kos also points out the 36% of Republicans in his study who seem to endorse birtherism and the 22% who say they aren’t sure. Birtherism is indeed ridiculous. Yet a 2007 poll found that 35% of self-identified Democrats believe that Bush knew about the 9/11 attacks in advance, and 26% say they don’t know if he did. 

Other examples of ignorance and irrationality by Democratic voters are not hard to come by. For example, some 32% of Democrats believe that “the Jews” deserve a substantial amount of blame for the financial crisis (compared to 18% of Republicans). In November 2008, some 59% of Obama voters did not know that the Democrats then had control of Congress.

II. Voter Ignorance and Irrationality are General Flaws of Modern Government.

The truth is that voter ignorance and irrationality are general shortcomings of modern democracy, not pathologies that afflict only the dim-witted rubes on one side of the political spectrum. As I have argued elsewhere (e.g. here, here, and here), voters have incentives to be “rationally ignorant” about politics because the extremely low chance that any one vote will be decisive means that there is little payoff to acquiring additional knowledge. For similar reasons, they also have incentives to do a poor job of evaluating the political information they do have. Thus, voters tend to discount any information that goes against their preconceptions while overvaluing anything that seems to confirm them. This explains both Republican susceptibility to birtherism and Democratic receptivity to 9/11 conspiracy theories. The problems of voter ignorance and irrationality are exacerbated by the size, scope, and complexity of the modern state, which is so enormous that even the best-informed voters can’t keep track of more than a small fraction of its activities, or rationally evaluate the available data about them.

If you are genuinely concerned about voter ignorance and irrationality, the best solution is to work to reduce the range of decisions made by the political process. When people act in the market and civil society, they have much better incentives to make well-informed decisions, though of course it’s impossible to eliminate ignorance completely. Reducing the size and complexity of government would also diminish the number of issues rationally ignorant voters have to keep track off, thereby enabling them to monitor government more effectively.

For committed partisans, it’s always fun to denounce the other side’s voters. And there’s no shortage of data proving that many of them are ignorant and irrational. Unfortunately, partisan activists tend to ignore the inconvenient truth that their own party’s voters are just as bad. 

Recused, it turns out, if the brother is Justice Stephen Breyer and the other brother is Judge Charles Breyer. As Tony Mauro (Legal Times) reports, “Breyer makes it a practice to recuse in cases that were handled by his brother Charles, a federal trial judge in the Northern District of California.” My quick search for (charles +3 breyer) through the Westlaw SCT database supports this — in all three cases found by the search (Olympic Airways v. Husain, Department of Housing and Urban Development v. Rucker, and U.S. v. Oakland Cannabis Buyers’ Co-op.), Judge Breyer was the judge below and Justice Breyer recused himself. 

This turns out to be important in the case involving the jail strip search / visual body cavity search policy, Bull v. City & County of San Francisco. Judge Breyer was the trial judge in that case, so presumably Justice Breyer will recuse himself. So if plaintiffs petition for certiorari, they need five votes without Justice Breyer’s vote (since a 4–4 vote affirms the decision below).

To get to those five votes, plaintiffs would have to get at least two votes from the Court’s conservative wing. I doubt they will get those two votes. They might not even get some of the liberal votes — even Justice Breyer wouldn’t be a sure vote for the plaintiffs. Still, without Justice Breyer, the plaintiffs would have to persuade not just the moderate conservative Justice Kennedy, but also one of the more solid conservatives (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). Pretty unlikely, it seems to me.

So plaintiffs’ lawyers face an especially tough choice when deciding whether to petition for certiorari. The lawyers, given the nature of this case, are interested in jail inmates’ Fourth Amendment rights more broadly, and not just in getting a victory for their clients in this particular litigation. (I suspect the clients have a similar view.) They must thus be worried that if five votes come out against them, the Ninth Circuit precedent would become nationwide, and diminish the Fourth Amendment rights of jail inmates throughout the country. That’s the cost of a cert petition. And the possible benefit of a cert petition seems especially improbable, given Justice Breyer’s likely recusal. So Judge Breyer’s role in this case might lead the plaintiffs’ lawyers to avoid petitioning for Supreme Court review in this case.

UPDATE: On the other hand, here’s a different analysis from commenter tvk:

[If plaintiffs] lose 4–4, with Kennedy joining the liberals and where Breyer’s vote might have made it a win ... from a long-term strategic standpoint, [that’s] not a bad result. The equally divided court creates no precedent; the Ninth Circuit opinion stays on the books but is heavily undermined. Everyone will predict that in the next case, Breyer will jump onboard with Kennedy and the liberals, so you can predict that other courts of appeals will jump in front of the bandwagon. The individual petitioner loses, but that was never quite the point anyway, as you point out.

Maybe so.

FURTHER UPDATE: I forgot to mention that the Court sometimes considers whether a Justice will be recused when deciding whether to grant a case. And I would think this would be especially likely if the case seems likely to split 4–4 — who wants to do the work required to prepare for the case (and make the lawyers do all that work), only to have the case affirmed by an equally divided court? So that, coupled with the greater difficulty of getting 4 votes to grant, coupled with the possibility that the liberal Justices who are deciding whether to grant will probably doubt that they’ll get 5 votes to reverse, decreases the probability of cert. The probability is still substantial, given the 6–5 vote below, and the circuit split. But it’s less than it would have been had the trial judge been someone besides Justice Breyer’s brother.

A very interesting and important decision, in Bull v. City & County of San Francisco (en banc). Because it’s 6–5 on the merits (Judge Graber joined the majority as to qualified immunity, but agreed with the dissent’s underlying constitutional argument), and because it appears to deepen a circuit split, there’s a good chance that the case will go up to the Supreme Court, assuming the plaintiffs petition for certiorari. (Note that the policy “requir[ed] the strip search of all arrestees who were to be introduced into San Francisco’s general jail population for custodial housing.” The majority does not opine on strip searches of arrestees who are being booked and released.)

I think the majority is correct on the merits, and I also agree with Chief Judge Alex Kozinski’s very interesting and thoughtful concurrence (joined by Judge Ronald Gould, the one Democratic appointee in the majority); the concurrence begins on PDF p. 32. I particularly think that the majority’s result is all but dictated by Supreme Court’s 1979 Bell v. Wolfish decision, which in relevant part reads:

Inmates at all Bureau of Prisons facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution. Corrections officials testified that visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution. The District Court upheld the strip-search procedure but prohibited the body-cavity searches, absent probable cause to believe that the inmate is concealing contraband. Because petitioners proved only one instance in the MCC’s short history where contraband was found during a body-cavity search, the Court of Appeals affirmed. In its view, the “gross violation of personal privacy inherent in such a search cannot be outweighed by the government’s security interest in maintaining a practice of so little actual utility.”.

Admittedly, this practice instinctively gives us the most pause. However, assuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, we nonetheless conclude that these searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, and under the circumstances, we do not believe that these searches are unreasonable.

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record, and in other cases. That there has been only one instance where an MCC inmate was discovered attempting to smuggle contraband into the institution on his person may be more a testament to the effectiveness of this search technique as a deterrent than to any lack of interest on the part of the inmates to secrete and import such items when the opportunity arises.

We do not underestimate the degree to which these searches may invade the personal privacy of inmates. Nor do we doubt, as the District Court noted, that on occasion a security guard may conduct the search in an abusive fashion. Such abuse cannot be condoned. The searches must be conducted in a reasonable manner. But we deal here with the question whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.

(I realize that the dissent argues, focusing on the last two sentences of this excerpt, that Bell “set the justification for strip searches at something less than probable cause, but declined to explicitly specify the level of suspicion.” But I don’t think that’s right, given the entire passage, which expressly upheld a blanket policy with no requirement of individualized suspicion and no categorical exemption of certain supposedly safer classes of inmates.)

Thanks to the invaluable How Appealing for the pointer.

See Chief Judge Kozinski’s concurrence in Bull v. San Francisco — and it’s as a hypothetical, not just because the case happened to involve such a weapon. The weapon was once mentioned as “Carl Gustaf” in an unpublished case, State v. Gustafson, 2003 WL 1566493 (Mont. 2003) (no apparent relation).

UPDATE: Thread winner from commenter Roscoe:

Typical liberal Ninth Circuit opinion. When Judge K reached for the heavy weapons he could have gone with the Javelin or TOW. But no, it had to be something made in Sweden.

There’s an old joke in conservative circles that the New York Times headline on the last day of time would read “World Ends: Women, Minorities Hardest Hit.” I had to think of that joke when reading this New York Times article on how the shortage of men on college campuses is impacting the social lives of female undergraduates.

Microsoft Outlook has worked well for me on somecomputers, but has always been troublesome on one of them. I tried upgrading to the Outlook 2010 beta, and that’s been a horror story. Accordingly, I humbly solict recommendations about an e-mail software program for accessing several POP accounts. Thanks.

I have no evidence of any kind that such discussions are proceeding — zero.  It’s just a thought on my part and possibly a silly one.  Feel free to tell me either way in the comments.

*

(Update 2:)  Let me add, based on the comments from Dutch scholar Martinned and others, it is starting to look as though Greece is not bribable because the rest of the EU doesn’t really have a legal option to force them out — meaning, quite apart from Greece’s internal coordination problems, its rational move is to threaten default and force the rest of the EU, ie Germany, to bail it out, under whatever suitable language and political cover can be found.  That does not seem like an irrelevant conclusion to investors.

How you frame that as an investment bet is not completely clear, however.  Betting against the euro is consistent with this hypothesis  - if it is true that Greece can’t be forced out, and it either defaults or gets bailed out, hard to see that this is not bad for the euro.  But now, betting against Greek bonds?  If you think Greece will get bailed out, then why bet against them?  But maybe you would prefer to see pressure put on Greek bonds in order to drive up the value of your euro-short?  The interaction of Greek bond strategies and short-euro strategies makes it hard to see a clear result simply from the surface of Greek bond spreads, looking back to the chart I posted yesterday.  Or am I missing something?  (End update.)

*

However, hunting around for Coase Theorem hypotheticals that didn’t involve the standard nuisance and pollution type cases for my 1L law and economics course — pure hypos without transaction costs, then gradually adding transactions costs back in — it occurred to me that I could structure a hypo around this kind of issue.

So ... as the WSJ and FT pointed out in my earlier posts on Greece and the problems of the southern Eurozone as against the northern Eurozone of Germany, the two main options for Greece are

• (i) withdraw from the Euro and devalue; or
• (ii) get a bailout from the Eurozone, which is particularly unpalatable to German voters (but which anyway would come with fiscal requirements that it seems hard to believe that Greece would ever persuade itself to meet).

Is there a way in which Germany and the still solvent part of the Eurozone of the north could bribe Greece to “temporarily” withdraw from the Euro?  Reaching an “efficient” solution in which Germany pays less than it otherwise would from a full euro-bailout, but pays something, essentially as a premium for getting Greece out of the euro with all the long term risks that presents. Continue reading ‘Should the Eurozone North Bribe the Eurozone South to “Temporarily” Leave?’ »

There’s a bizarre controversy brewing over the fact that New York Times Middle East reporter Ethan Bronner’s son has decided to volunteer for the Israeli military.  Anti-Israel activists are arguing that this means that Bronner will be tempted to bias his reporting in favor of Israel and the IDF, rendering his reporting non-objective, or at least suspect.  The Times’s public editor agrees with Bronner’s critics, but the Times editor-in-chief is defending Bronner.

I say that this is bizarre because I think friends of Israel would love to see media outlets adopt the standard proposed by Bronner’s critics, so long as it applies to both sides.  If the fact that Bronner’s son is serving in the Israeli military means that Bronner can’t be permitted to report on Israel and the territories, then Western media outlets should henceforth be banned from hiring Palestinian stringers who are responsible for doing much of the “on-the-ground” reporting in the West Bank and Gaza.   After all, if an American whose son joins the Israeli military as a non-citizen is too tied to one side to report the news, surely actual Palestinian citizens–many of whom no doubt have close friends and relatives affiliated with Hamas or the Palestinian Authority–are even more suspect.  It’s no secret that much of the hostile reporting against Israel in the Western media originates from work done by these stringers, both “journalists” and photographers.

For that matter, I assume we can expect Bronner’s critics (and Western media outlets) to no longer rely on reports from Human Rights Watch and other anti-Israel NGOs.  If Bronner’s objectivity is in question because he might be biased in favor of Israel, what of “factual” NGO reports commissioned by individuals who are blatantly hostile to Israel?  What about, for example, the likes of HRW Middle East director Sarah Leah Whitson, who lobbied in the U.N. against Israel and for the Palestinians during the Second Intifada, just before she joined HRW?

I could go on, but the point is that if the Western media is going to start seriously ferreting out biases and potential biases in how it reports on Israel, I don’t think Bronner’s critics would like the result.

UPDATE: Of course, Bronner’s critics likely expected the Times to keep Bronner on his Middle East beat, but hope that by stirring this controversy, Bronner will feel the need to bend over backwards to report the Palestinian side of the conflict, to show that he is “objective”.  They may be right.

President Obama entered office with a nearly unprecedented opportunity to remake the federal courts, but he has yet to take advantage of it.  The President has only made 38 judicial nominations, and the Senate has only confirmed 14.  Who is to blame for the slow pace?  It depends on who you ask — and when you ask them. (My own take can be found here and here.)

Writing on December 31, University of Richmond law professor Carl Tobias placed much of the blame on Republican obstruction, while excusing the Administration’s slow trickle of nominations and Senate majority’s focus on other priorities.

Recent criticisms of President Obama’s judicial nomination practices lack merit. The Judiciary panel majority expedited processing, but the minority’s routine dependence on holds has contributed to delay. The real obstacle has been the almost total dearth of floor action. Republicans must quit stalling floor consideration. If the GOP persists, Democrats should invoke cloture and similar measures that will foster prompt confirmations.

Tobias criticized Senate Republicans for holding over votes on committee or seeking more time for debate, yet ignored Senate Democrats’ use of the same tactics during Bush’s presidency. Indeed, Senate Democrats held over votes at a higher rate at the start of Bush’s first time than Republicans have thus far for Obama.  This doesn’t excuse the practice, but it undermines the claim Republicans are engaged in unprecedented obstruction.

Writing on Feb. 2 in Roll Call, Tobias was more even-handed, noting there are other explanations for the slow pace.

That the Senate has approved 14 judges and Obama has nominated 38 individuals are not criticisms of the president or the Senate. Appointing a new Supreme Court justice before the October 2009 Supreme Court term began was critical. Justice Sonia Sotomayor’s confirmation process consumed three months during which little additional judicial selection activity transpired. The previous administration also left numerous complex problems, such as the deep, ongoing recession; the Guantánamo Bay, Cuba, prison; and the Iraq and Afghanistan conflicts, which required much executive and Senate energy and time.

This is a point I’ve emphasized: The Administration’s focus on other matters, including Supreme Court nominations, combined with the concentration of judicial vetting in the White House Counsel’s office has led to fewer nominations and less pressure to confirm those in the queue.

In his Roll Call piece Tobias also noted that there is a long history of escalating tit-for-tat in judicial nominations.

Since the 1987 fight over Judge Robert Bork’s Supreme Court nomination, Democratic and Republican charges and countercharges as well as nonstop paybacks have plagued judicial appointments, mainly because of divided government. Although Democrats currently control the White House and the Senate, they should work closely with Republicans to halt or ameliorate this counterproductive cycle.

While he’s correct to note the “nonstop paybacks” that have “plagued” the judicial confirmation process, but I think the emphasis on the Bork nomination as a turning point is a mistake.  The Bork fight angered many Republicans, to be sure, but Bork was nominated to the Supreme Court, where the rules may be different.  Modern fights over appellate nominations actually began a few years earlier, when Democrats decided to target some of President Reagan’s lower court nominees, as the Washington Post reported on November 12, 1985.   As the Post reported:

Since they are loath to oppose a nominee solely on ideological grounds, the Democrats have trained their fire on other issues — credibility, temperament, discrepancies in testimony — to wound the most conservative nominees for judgeships and Justice Department vacancies.

When Democrats retook the Senate in 1986, they were able to begin defeating nominees.  Jeff Sessions, who now sits on the Senate Judiciary Committee, was the first they brought to defeat.  The late Bernard Siegan was another.  Other nominations were substantially delayed, as Senate Democrats sought to run out the clock on the Reagan Administration in case voters elected a Democratic successor.  Senate Democrats eased up a bit at the beginning of the Bush Administration, only to up the obstruction in the latter half of his term.  Senate Republicans, of course, returned the favor to President Clinton, and then some. And so on.

The simple fact is that since Senate Democrats began challenging lower court nominees in the 1980s, both parties have engaged in escalating obstruction of lower court judicial nominations, and both parties will need to make concessions if this destructive practice is going to end.  While Tobias repeats the White House talking point that President Obama has named 12 “consensus” and ideologically “diverse” appellate nominees (?!), the reality is President Obama has little to reduce nomination tensions.  President Bush, by contrast, nominated two individuals favored by his predecessor at the start of his term — Roger Gregory and Barrington Parker.  Perhaps if President Obama would follow Bush’s lead, it could lead to a deal to end political fights over appellate nominations.

UPDATE: It’s also worth noting Senator Jeff Sessions’ Nov. 27 op-ed explaining his decision to vote against cloture on the nomination of Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit, in which he expressed his willingness to eliminate filibusters of judicial nominees altogether if Senate Democrats would go along.

This year, a number of my colleagues and I have voted against just three judicial nominees, including Justice Sonia Sotomayor. Only in the case of Judge Hamilton have we raised a procedural objection to Majority Leader Harry Reid’s desire to proceed to a vote.

For Republicans to ignore the changed rules would be to acquiesce in a system where 60 votes are needed to confirm judges nominated by Republicans, but only 51 are required to confirm judges nominated by Democrats. To allow such a double standard would be akin to unilateral disarmament.

A return to the tradition of up-or-down votes on all judicial nominees would, I believe, strengthen the Senate. I have offered to discuss with my colleagues ways this could be permanently codified in the Senate’s official rules. So far, no takers.

The WSJ’s Jess Bravin has an interesting article on a debate within Democratic circles over President Obama’s next Supreme Court pick.

Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.

One thing found interesting about the story was its characterization of various prospective nominees.  Specifically, Bravin reports that the President’s lagging approval ratings could prompt a “less-controversial” nominee, such as D.C. Ciruict Judge Merrick Garland or Solicitor General Elena Kagan.  I certainly agree that Judge Garland would be a relatively uncontroversial choice, as Garland has a well-deserved reputation as an exceptionally intelligent, moderate judge.

SG Kagan also commands wide respect, and is highly qualified even if she lacks judicial experience, but I wonder whether she would be a “less-controversial” choice than some prospective alternatives.  As Ed Whelan notes, 31 Republicans voted against her confirmation to SG, suggesting she her nomination would start with a significant base of GOP opposition.  Given the prevailing political winds, I also wonder whether some Republicans will be more willing to fight against a nominee picked from within the administration.

I was also struck by the article’s suggestion that Judge Diane Wood would spark greater opposition than Kagan, largely due to her opinions in abortion cases.  As I’ve noted before, I’ve long thought Judge Wood was an obvious Democratic choice, and is so well-qualified that she would be safely confirmed.  I would also think that, right now, it would be easier to confirm a highly regarded appellate judge from the midwest than an administration insider.  But what do I know, I’m just a midwestern academic who’s old-fashioned enough to believe the Senate should be relatively deferential to a President’s judicial picks.

UPDATE: Justice Clinton? Color me skeptical.

UPDATE: More speculation here.

The Politico reports:

Senate Majority Leader Harry Reid used to consider recess appointments “an end run around the Senate and the Constitution” — so much so that he kept the chamber open during breaks to prevent President George W. Bush from making any more of them.

But with a Democrat in the White House, and Republicans blocking executive branch nominees, Reid and his allies are starting to sing a different tune.

Reid said last week that he’s “tried hard” to avoid the need for President Barack Obama to make recess appointments, but he added: “What alternative do we have? . . .

While Obama has so far shied away from using recess appointments, the Constitution gives presidents the power to install appointees to vacant positions when the Senate is on a recess.

Such appointments last only until the beginning of a new session of the Senate, meaning any Obama recess appointment would hold their posts until next year — when Republicans are likely to have more seats in the chamber.

Bush made 179 recess appointments, and President Bill Clinton made 139, according to the nonpartisan Congressional Research ServiceSen.

Reid’s change of heart appears motivated, in part, by Senator Richard Shelby’s blanket hold on some 70 pending nominees.  Yet as Politico also reports, Sen. Reid imposed a blanket hold of his own in 2004 to get a federal appointment one of his advisors.

The Constitution authorizes recess appointments, even if modern use of the power is more expansive than the Constitution may have contemplated.  As I see it, recess appointments are an appropriate response to the Senate’s persistent refusal to confirm nominees with strong majority support, particularly if that support is bipartisan.  As a practical matter, recess appointments risk political backlash, particularly if they are overused.  In this regard it is notable that President Bush made only four recess appointments after Democrats retook the Senate in 2006, after having made 175 during his first six years.

UPDATE: The NYT reports Senator Shelby has lifted his holds on all but three nominees whose positions are related to the Defense projects he’s seeking to advance.

So suggests John Avalon, in a Daily Beast column “The Secret History of the Birthers.” He traces birtherism to a Texas woman named Linda Starr, who was a Hillary Clinton delegate to the 2008 Texas state Democratic Convention. Avalon writes that Starr “was also cited as a key source for CBS’ discredited election year investigation into George W. Bush’s National Guard records that led to Dan Rather’s replacement after 24 years as the evening news anchor.” Avalon links to the Thornburgh/Boccardi report, which was conducted at the request of CBS News to examine CBS’s conduct in producing the infamous 60 Minutes story about Bush supposedly evading National Guard service and then having the records scrubbed. As the report details, Starr made the claim about Bush in an article on her website, three days before the 2000 presidential election. She also played a key role in serving as an intermediary for CBS to obtain the document which purported to be National Guard memo regarding the removal of NG records about Bush. The Thornburgh/Boccardi report does not claim that Ms. Starr knew that the document  was a clumsy fabrication.

At the very least, however, the fiasco of the Bush National Guard story shows that Ms. Starr did not provide her Internet readers, or CBS, with a story which could withstand factual scrutiny. Accordingly, if Avalon’s reporting is correct, he has provided yet another reason for people to disbelieve the (already-implausible) assertion that President Obama was not born in the United States. In contrast to the way the mainstream media initially handled the 2004 Bush National Guard story, the mainstream media did a better job in 2008 by not embracing a story about a presidential candidate which could not be supported by solid, verifiable facts.

This is a very fast note on the question of European political economy raised in my last post.  It’s not intended to be exhaustive, and yes, it is pretty conclusory.  My impression over many years as an international law professor who bridges the public and private law divides; not a specialist in EU law but someone watching closely from the outside ...  the movement toward ever closer union in the EU seemed to me always to have a double drive.

On the one hand, the Erasmians — the true believers, the ones who thought you just marched toward political union because it was, well, what civilized people did.  These folks included many of the non-economist professors, the law professors particularly.  I have long been struck by the astonishing levels of intellectual and ideological production — prodigious, really — by EU professors well-funded by the EU itself to come up with theories about why the EU was going to be such a dandy thing.  I long thought of it as a perfect instance of creating your own demand.

The result of all this prodigious activity was the marvelous elaboration of a vast edifice of constitutional structure, most of it aimed at saying that the EU could not go wrong as a project of union, if it just kept at it.  Go onto SSRN and see how much stuff continues to be cranked out in the category of constitutional theory about the EU itself.  What an observer on the outside might have thought was a pretty historically contingent project is made to look like the Unfolding of History as It Must Unfold.

I mean, of course it might work out that way.  But if so, it hardly seems like it on the basis of the theories offered by academics at institutions sponsored by the edifice presumably under study.  (This phenomenon of funders creating their own demand for ideological product is, of course, just as ordinary in the United States.)  Anyway, these are the Erasmian true believers.  They seem to be mostly law professors.

On the other side are the realists and skeptics who might, slightly paradoxically, still favor ever closer union — but for the opposite reason.  Many of them are economists.  They see the whole thing as a bicycle about to fall over.  It has to get up to speed to keep going.  Far from “naturally” unfolding according to a special Natural Law that God has especially enacted for the benefit of the EU, on the contrary, the bike is wobbly, unnatural, lacking in balance, and only forward momentum can save it.  The present moment is the worst, because it represents precisely the gap between currency union and fiscal/political union.

These two are not mutually exclusive positions, of course.  One can have some of both.  It’s simply my perception of the divide, as someone who reads the literature from each.  The easy money years underwrote the feeling that maybe it was possible to have monetary union without fiscal/political union, but the artificial supports have dropped away and everything is wobbling again.  The one thing I can predict with utter certainty as a law professor is that the EU will put up funding to produce yet a new iteration of constitutional theory to show how all this, too, will lead to ever closer union.  Look for the wave of papers over the next four years on SSRN.

My skepticism is about ideology, by the way — I am mostly an admirer of the EU and what it has done in many things, starting with the long term transformations in Spain, Portugal, and Greece, to start with, let alone the expansion eastwards.  But that does not lead me to any belief that it has worked out the deep internal contradictions in the political governance project, and less still any view that the EU points the way to some genuinely new kind of governance structure in human affairs.  It might, I suppose — I’m not ruling it out.  But let’s give it, say, a hundred years to see if it has staying power before we draft up too many theories of its historical inevitability.

In any case, how much does it matter? I’m not referring to myself — I mean simply that the Obama administration’s pooh-bahs seem to have written off Europe as the past, Asia is the future.  The irony is that it is precisely on account of striving so desperately, so mightily, to become a Western European democratic socialist state that the Obama administration feels no need any longer to look to Europe.  It has already priced-in internally anything of ideological value Europe might have to offer, on account of the transformations under way in the US.  We’ve now got — thanks to the decension of Bush and the inclension of Obama –anything of value Europe might offer in the way of values, so why pay attention to those losers?  What could Europe possibly teach President Obama about community, fraternite, welfare, socialism, social safety nets, unions, public sector employment, all the rest of the stuff in which Europe ideologically specializes?  This is President Obama, after all — on all of these things, O Europe, you should learn from him.  And from Rahm Emanuel.

Of course, the one missing piece of that puzzle is how it is that Europe went into decline, and whether that lesson for the US has been priced-in ....

We Atlanticists should all have paid greater attention to Raymond Aron.

In the New York Times, Adam Liptak has a Sidebar column on the remarkable story of Shon Hopwood. I have particular reasons to find the story compelling, as I’ve had the pleasure of working closely with Shon on briefs and I was clerking the Term that the Supreme Court decided Fellers. But it’s a really cool story either way: Sometimes a second chance makes all the difference. 

(Update.)  Thanks, Glenn, for the Instalanche!  Let’s add this front page article in the Financial Times today, Tuesday, February 9, 2010, “Traders in Record Bet Against the Euro.”

(You might also want to see my more general discussion in a post above on the directions of the EU regarding the unstable position of currency union without political/fiscal union.  Some people have raised some objections particularly to that post’s closing paragraphs regarding how the Obama administration views Western Europe — essentially losers in the globalized world, and no one worth paying attention to because anything of value that might have been learned from the internal European social democratic model has already been absorbed and priced into Obamism.  But I think it’s right — and I think that is the conclusion that European leaders have been drawing about what, not just Obama, but his senior cadre of intellectuals and elites think about Europe.

That’s quite apart from thinking that the Obama administration has so thoroughly absorbed the European lesson that a massive internal democratic socialist welfare state means geopolitical decline, that Obama is not just a weak leader in foreign policy — personally weak, as Sarkozy clearly thinks — but structurally weak as well, meaning that the foreign policy weakness is built into the structure of domestic policy shifts to a massive social democratic state.  These European leaders know better than anyone on the planet how the shift to their domestic social model implies geopolitical decline.  So they have no doubt as to where Obama is taking the US in foreign affairs.  As I said in the later post, we Atlanticists should have read Aron more recently.)

From the FT:

Traders and hedge funds have bet nearly $8bn (€5.9bn) against the euro, amassing the biggest ever short position in the single currency on fears of a eurozone debt crisis ...  The build-up in net short positions represents more than 40,000 contracts traded against the euro, equivalent to $7.6bn. It suggests investors are losing confidence in the single currency’s ability to withstand any contagion from Greece’s budget problems to other European countries.

The WSJ’s ‘Heard on the Street’ has an interesting item today comparing California and Greece from the standpoint of the bond markets.  Bottom line is that California fares far better than Greece in investors’ minds.  It’s a question, of course, how much of that is attributable to how investors see the underlying economies of each place and, instead, how investors are pricing the sugar daddi, er, the US government and EU-Eurozone institutions that might be called upon to offer a bailout.  But in terms of spreads, take a look at this chart from the story:

It is important to bear in mind that these kind of spreads can turn very quickly — indicators of short term sentiment concerning something that is basically a political and so, these days at least, a volatile issue.  These spreads for California could turn tomorrow, depending upon how investors read signals from Washington DC, or several other places.  Thus the WSJ article notes with respect to Greece’s dire situation:

Adoption of the euro, by removing the threat of currency fluctuations, encouraged yield-hungry investors to bid up Greek bonds. Leverage allowed Greece to run big current account deficits, despite low productivity growth. The result, once the credit bubble burst, is today’s crisis. There is no easy European fix.

Greece has two main options to restore competitiveness and narrow its current-account deficit: Withdraw from the euro and devalue, or win large and ongoing transfers from European states with surpluses like Germany.

Leaving the euro looks unpalatable. Bilateral transfers to Greece, even dressed up as loans, would be hard to sell to German voters. And such aid wouldn’t address Greece’s lack of competitiveness. Only grinding domestic deflation, with the risk of social unrest, or withdrawal from the euro could do that.

The imposition of EU “discipline” on Greece in return for transfers would represent creeping political union of an undesirable kind – one forced by Germany for fiscal reasons rather than one negotiated by member states. But Greece’s saving grace may be a default there would likely drag down Spain and Portugal. Such a risk will concentrate minds in Europe to find a solution, even if a bailout would not answer the question of the euro’s suitability for uncompetitive Mediterranean economies.

I’ll take up separately the question of California.  Likewise the question of political economy in the Eurozone — currency union without political or fiscal union?  But the article essentially thinks that California is saved not by a better internal structural economy, but instead because of its place deep in the heart of its guarantor.  California has better political hold-up.  It’s got better positioning to be able to force the US as a whole to internalize its difficulties, in ways (according to the article) that Greece will likely not be able to do with German voters.

One last quote from the FT quoted in the update:

Thomas Stolper, economist at Goldman Sachs, said: “ Behind this intense focus on Greece obviously is the long-standing unresolved issue of how to enforce fiscal discipline in a currency union of sovereign states.”

My class in private equity and venture capital doesn’t know it yet, but I think I might have them read Harvard Law School’s John Coates’ new empirical paper on the effects of ownership on M&A, or at least some important sections of it.  I’ve just been through it and think it’s terrific, with robust implications for differences between private and public targets.  (Plus, in the context of my class, it’s a good follow-on the some material from Larry Ribstein’s new book The Rise of the Uncorporation.)  You can find the full abstract and the paper at SSRN, but the one-sentence description is:  The paper “shows in a variety of ways how important M&A for private targets is to the economy, how different private target M&A is from public target M&A, and how important law is in creating those differences.”

(My class will have lots and lots of time to read, as class has been canceled and school closed — here in DC, the university hasn’t been open since last Thursday!  So I assume that my students are virtuously all snuggled up with texts on private equity, reading aloud with furrowed brows and cups of hot cocoa in one hand and yellow highlighter in the other.)

From Ware v. South Texas Family Planning & Health Corp. (S.D. Tex. Jan. 26), a case in which a father sued a clinic for giving a “morning-after” contraceptive pill to his 14-year-old daughter without the parents’ permission:

Plaintiff contends that Defendants are a public nuisance because the “activity” that Defendants engage in interferes with a “parent’s right to guide his child in a moral fashion” and interferes with “the moral standards of the community.” Under Texas law, a public nuisance “is maintained by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare.” Neither in his complaint nor during the initial pretrial conference was Plaintiff’s counsel able to allege the factual basis on which Defendants’ activities could be said to constitute a public nuisance. In fact, Plaintiff’s counsel, when asked during the initial pretrial conference to explain his public nuisance claim, was unable to name the elements of a public nuisance....

Plaintiff bases his third cause of action, his parental rights claim, on the grounds that Defendants failed to obtain parental consent before allegedly providing the morning-after pill to Plaintiff’s daughter. Plaintiff offers no other factual basis for this claim. Further, Plaintiff provides no legal basis for this claim. Indeed, when Plaintiff’s counsel was asked at the initial pretrial conference to provide authority for this cause of action, he stated, “I thought it was so basic I didn’t bother to do research.” Plaintiff has thus failed to state a claim for which relief can be granted for each of the three causes of action asserted, pursuant to Federal Rule of Civil Procedure 12(b)(6).

Not good.

Here’s a draft of the new section on Writing an Abstract, to be published in the fourth edition of my Academic Legal Writing book. There’s still plenty of time to improve it, so I’d love to get feedback. (By the way, the abstracts I give as examples are my own, but I’d prefer to use someone else’s abstracts, especially if they are very effective. So if you have any recommendations for very good abstracts, please pass them along.)

An abstract is a short summary — one to three paragraphs — of an article. Some journals include an abstract at the start of the article, or put all the abstracts from an issue on the issue’s table of contents, or put the abstracts on the journal’s Web site. These journals will either require you to write the abstract, or will offer to write it for you. Reject their offer, and write the abstract yourself: It’s your article, and you’ll know better how to summarize it effectively.

But even if the journal doesn’t publish an abstract, you should write one anyway. Services such as the Social Science Research Network (see p. 265) maintain e-mail distribution lists through which hundreds or thousands subscribers get abstracts of forthcoming articles. These distribution lists are invaluable tools for you to get readers for your work.

Whether in a law review or on a distribution list, the abstract is an advertisement for your article. True, you don’t want money from your “customers” (the audience) — you want their time and attention. But their attention is scarce, and lots of authors are competing for it. You want readers to “buy” your article in one of two ways: 

1. by reading the article (or at least the Introduction) right away, or
2. by remembering it (even if just vaguely) for the future, so that when the underlying issue becomes important to them, they can find and read the article then.

And the audience for your advertisement is quite demanding. They’ve generally found the abstract just through a quick skim of an SSRN e-mail or a law review table of contents. (People who find the article through a citation or a Westlaw or Lexis search are probably more likely to skim the Introduction, which is immediately available to them, rather than starting with the abstract.) Readers of your abstract therefore aren’t at all sure the article will be of any value to them.

You need to quickly show them this value. You need to clearly and tersely tell the reader (1) what problem the article is trying to solve, and (2) what valuable original observations the article offers. Naturally, the abstract can’t go into much detail. But it has to at least give the reader a general idea of what the article contributes.

Here, for instance, is an adequate abstract, adequate because it quickly captures the essence of the value added by the article:

Continue reading ‘Writing an Abstract for a Law Review Article’ »

Paul Krugman writes:

The truth is that given the state of American politics, the way the Senate works is no longer consistent with a functioning government. Senators themselves should recognize this fact and push through changes in those rules, including eliminating or at least limiting the filibuster. This is something they could and should do, by majority vote, on the first day of the next Senate session.

Don’t hold your breath. As it is, Democrats don’t even seem able to score political points by highlighting their opponents’ obstructionism.

It should be a simple message (and it should have been the central message in Massachusetts): a vote for a Republican, no matter what you think of him as a person, is a vote for paralysis.

Actually, I think that this was the central Republican message in Massachusetts.

That’s the odd result of Haskell v. Brown, decided a month ago by Judge Charles Breyer of the Northern District of California. Judge Breyer (not to be confused with Justice Stephen Breyer, his brother) refused to preliminary enjoin the collection of cheek swab samples from arrestees, largely because he thought that the searches are likely consistent with the Fourth Amendment. But wait: The Ninth Circuit had held, in Friedman v. Boucher that such cheek swabs of pretrial detainees are generally unconstitutional. (We’re talking here about the taking of DNA just because someone is arrested or detained; if there’s probable cause to believe the DNA will reveal evidence of some crime — for instance, if there’s probable cause to think that this person is guilty of a rape, and the DNA is to be compared against DNA left at the scene of the rape — and a warrant based on probable cause, that’s clearly constitutional.)

Here’s the district judge’s explanation:

Plaintiffs will argue that so holding conflicts with the Ninth Circuit’s decision in Friedman. However, Friedman did not engage in a thorough totality of the circumstances test: it did not consider government interests beyond supervision, nor did it examine the extent of Friedman’s privacy interest. See 580 F.3d at 862–65 (Callahan, J., dissenting) (dissent, instead, conducted balancing analysis between individual’s privacy interests and government’s legitimate interest in identification). Though Friedman warns that “[n]either the Supreme Court nor our court has permitted general suspicionless, warrantless searches of pre-trial detainees for grounds other than institutional security or other legitimate penological interests,” the Court finds that doing so here — certainly at this stage of the litigation — is proper under the totality of the circumstances test required by Rise, Kincade and Kriesel [earlier cases upholding forced DNA swabs of people convicted of a crime].

But I don’t see how this can be right: Part III-C of Friedman expressly considered whether the search was justifiable under a general Fourth Amendment “reasonableness” analysis — the same analysis that is often described as a “totality of the circumstances” test — and held that it wasn’t justifiable. It also did consider “the extent of [the claimant’s] privacy interest,” holding that “We have long recognized that pre-trial detainees retain greater privacy interests, for the purposes of Fourth Amendment analysis, than do persons who are incarcerated pursuant to a valid conviction” (thus distinguishing Friedman’s claim — and by extension the plaintiffs’ claim in Haskell — from the Rise, Kincade, and Kriesel precedents). And it also considered, in the “special needs” discussion, the asserted “government interest asserted by Nevada in taking Friedman’s DNA was to help solve ‘cold cases,’” certainly a “government interest[] beyond supervision.”

Now perhaps the district judge thinks that Friedman’s analysis of this was too sketchy; and maybe he’s right. (I’m not sure what the right Fourth Amendment analysis should be here, either as a matter of Fourth Amendment first principles, or under the emerging Fourth Amendment “reasonableness” test.) But it seems pretty clear that Friedman is the most on-point precedent, and that under it the testing of arrestees’ DNA — especially for purposes that include solving crimes, and not just identifying this particular arrestee — is unconstitutional. Or am I missing something here?

Over at The Faculty Lounge, there are some pictures of sit-ins from the early 1960s.  Regarding a 1963 sit-in in Jackson, Mississippi, TFL writes: “By one account, members of the all-White Jackson police force stood guard outside, while several FBI agents (the guys in back wearing shades) ‘observed’ from inside. That White guy at the counter, that’s Tougaloo professor and community activist Hunter Gray (John R. Salter) who helped organize the Jackson sit-ins.  And that’s blood on his shirt.  All of the protesters had been covered in slop, and some were beaten with brass knuckles and broken bottles.”

The non-violent Civil Rights protesters allowed themselves to be beaten in public while the media watched; the images helped win sympathy for the Civil Rights Movement in the North, and proved to be crucial in developing the political will for the passage of the Civil Rights Act of 1964.

In a limited sense, the media’s presence provided some protection for the protesters; there was never a case in which a civil rights protester was murdered in front of media cameras. At night, when everyone had gone home, things were very different. As Salter later explained:

I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.

When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus — faculty and students together — on that and subsequent occasions. We let this be known. The racist attacks slackened considerably. Night-riders are cowardly people — in any time and place — and they take advantage of fear and weakness.

Later, I worked for years in the Deep South as a full-time civil rights organizer. Like a martyred friend of mine, NAACP staffer Medgar W. Evers, I, too, was on many Klan death lists and I, too, traveled armed: a .38 special Smith and Wesson revolver and a 44/40 Winchester carbine.

The knowledge that I had these weapons and was willing to use them kept enemies at bay. Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.

In the 1970s, I was Southside director of the large, privately-funded Chicago Commons Association. Our primary focus involved assisting minority people in developing sensible community organizations — vis-a-vis schools, city services, anti-crime.

We were opposed by white racist organizations (e.g., Nazi Party) and various youth gangs of many sorts. My staff and I received countless death threats, there were arson attacks on our offices, and, on one occasion, men with weapons came to my home and told my wife and children that they intended to kill me. (I happened to be at work.)

Again, I was glad I had many firearms and, again, we guarded our home and let this be known. We responded to hate calls on the telephone by telling the callers we were quite prepared for them.

For Salter, the right to own a handgun was apparently a crucial part of his ability to exercise his right to defend himself and his family, which was a sine qua non of his ability to stay alive in order to exercise his First Amendment rights to advocate for enforcement of the Fourteenth Amendment.

Yet in modern Chicago, decent law-abiding citizens are forbidden to own handguns. As I detailed in my amicus brief  in McDonald v. Chicago (pages 39–45), many people find that a handgun is best choice for family defense, especially in urban areas such as Chicago. As the history of the Civil Rights Movement demonstrates, the denial of the constitutional right to own a handgun could endanger other constitutional rights, particularly the rights of community organizers.

A pretty poor argument (see p. 6), it seems to me — the law applies to speech of a certain content, and is justified by a worry that the content of the speech will mislead people. 

I’ve argued that the ban is constitutionally permissible, because it fits within the knowingly-false-statements-of-fact exception to First Amendment protection. But it is definitely not content-neutral.

I saw this ad during the Super Bowl–sorry, I mean “The Big Game”–yesterday, and originally thought it was some sort of political issue ad. Although it is funny, in a creepy way, it is not clear to me what the ad agency and Audi are saying here about The Green Police (besides buy an Audi diesel).

There are more clips on YouTube of other Green Police spots, so this looks like the start of an ongoing campaign. I suspect the visceral reaction of many Americans will not be what Audi intended or desired, but maybe these folks are not the Audi market. Is Audi the new Volvo? How is Volvo doing these days anyway?

Last week’s National Journal poll of political bloggers asked for an estimate of House Democratic losses in the 2010 election. While the answers are reported in clusters of 10, the median estimate for the Left appears to about 20 seats. The median on the Right was in the mid-30s. I estimated 38, adding “Could be less if the congressional leadership and Obama correct their course, but they do not seem inclined to do so.”

Question 2 asked the Left if Democrats would benefit politically from another televised Q&A session by President Obama with House Republicans. Seventy-eight percent of the Left expected Democrats to benefit. Right-leaning bloggers were asked if Republicans would benefit, and 57 percent said yes. I was in the majority: “All Americans would benefit. All Republicans are Americans. Ergo, Republicans would benefit. The metric of success should not be partisan benefit, but rather national benefit.”

Last fall I was on a great panel at Stanford Law School on robotics and the law.  It had great people on it — Dan Siciliano, Paul Saffo, and Ryan Calo.  Great discussion; one of the things it brought home to me, as someone who came to law-and-robotics issues from laws of war questions, was how much those issues have cognates in other areas of emerging robotics, such as elder-care.  The panel discussion is up on video here:

Legal Challenges in an Age of Robotics, November 12, 2009.  One of the things I really liked about this panel was the way that Ryan Calo served as a very active moderator — he’s an expert in these issues himself, and so was able to lead the discussion, including the audience discussion.  The best parts are actually Dan Siciliano and Paul Saffo; I was a little unsure of how much the audience knew about the battlefield issues, and had too much wind-up.

(Ryan has also written very interesting stuff on privacy and technology.)

Thoughts on the game, the ads, or whatever.

NOTE TO SELF: If you are ever asked to sing the Star-Spangled Banner at the Superbowl (unlikely, I realize,but you never know for certain), do not — REPEAT, DO NOT — attempt to sing it a cappella. Remember Carrie Underwood’s gruesome, off-key performance at the 2010 SuperBowl, and resist the temptation to show off your magnificent singing voice and get yourself a backup band.

[Update — yeah, or a guitar . . .
But seriously, my son Sam, over at his blog, pointed me to a truly spectacular dixie Chicks version of the national anthem from the 2003 Superbowl. if you haven’t heard it, check it out . . .]

I realized, talking in office hours with a couple of my law students, that they did not really understand what is meant by the phrase “borrowing from our children” — as we often hear it raised or referenced these days in budget, deficit, and other policy debates.  These are bright students who have often taken some economics, but haven’t necessarily learned to think through common economic tropes in current arguments.  So it hadn’t really occurred to them to ask, what does it mean to “borrow from our children”?  The children who mostly don’t yet exist, and in any case don’t have any money from which to borrow.

As soon as it’s put that way, it is obvious that what we actually mean is, we will borrow today from people who do have money — and who are willing to forego consumption today, presumably in China and the rest of Asia — and our children will repay the principal and interest.  We have internalized the consumption (er, investment? –ed.) currently and externalized the repayment.  It might be more accurate to say that we have exercised an option with regards to the future — we are the holders and they the involuntary writers of an option.  But the fundamental public policy point is that in order to engage in this borrowing exercise today, even if we are going to “put” the repayment to our children, someone today has to be willing to give up consumption now and lend us those resources today.

To that end, David Sanger has a nice piece in the New York Times Week in Review, “The Debtor the World Still Bets On.” While we’re at it, Irwin Steltzer’s Weekly Standard essay, “Government Intervention Will Leave a Nasty Hangover.” 

And  finally Joshua Kurlantzick, in the Boston Globe, “Dazzled by Asia,” arguing that if you’re assuming an emerging Chinese hegemony, you might be disappointed.   (To which I’d add my own oft-repeated observation that if the corollary is longing for American decline and the rise of a new, post-American-hegemony, world of cooperative great powers in peace and harmony, think again — the human right universalism of the last fifteen years has been an epiphenomenon of American hegemony, and if it fades, the human rights universalists fade with it.  A multipolar world is competitive and more aggressively Westphalian, not less.)

Kurlantzick on President Obama’s Asia trip:  “Major media outlets covered the president as if he was some kind of Dickensian vagrant, appealing to his increasingly powerful creditors in China for leniency.”  And, to judge by spiraling Chinese hubris in its demands concerning the Dalai Lama, Taiwan weapons, and other things — well, the appetite grows with the eating, and the President has fed the beast.  (Responding to someone in the comments asking on what basis I thought China had raised the stakes, see among many articles in the last few weeks, this Jan 31, 2010 Washington Post front page new analysis, “China’s Strident Tone Raises Concerns Among Western Governments, Analysts.”)

(Update:) An Instalanche (thanks, Glenn) — and Megan McArdle’s quote of the day! Wow!

One last thought about thinking about various things as options.  Some of the comments have expressed surprise, and a certain amount of derision, at the idea that the option running in favor of the present at the expense of the future is non-trivial.  Speaking as a teacher, I consistently find that when students who are not in econ, business, or finance discover for the first time that what looks to be a “loan” actually (because of the limits of downside created by many legal rules, such as bankruptcy, or non-recourse rules, etc.) turns out to be an option is an “ah-ha” moment.

And even more so when, as in this case, one realizes that it is a loan from Party C(hina) to Party A(merica), but also a put of the loan from Party A(present) to Party A(future).  That’s not a trivial observation, whether speaking pedagogically or intellectually.  Commonly-made these days — of course — but not trivial, which is why unpacking “borrowing from our children” has to be unpacked if you’ve never unpacked it before.

And note that one of the comments notes with some condescension that this is merely pretentious — but then gives as an analogy something that doesn’t actually fit.  Kids “write” their parents “involuntary” options all the time and, yes, that’s pretentious and trivial. However, they less frequently (at least in the past) write them in the form of loans in the present from third parties located in China, with consumption by the present borrower and repayment by a future obligor.  That’s neither trivial nor pretentious.

And touching the intersection of debt and security, I cannot recommend highly enough the monumental history of the intertwining of public debt and democracy, A Free Nation Deep in Debt: The Financial Roots of Democracy, by James Macdonald.

Via Julian Ku at Opinio Juris comes news that the Obama Administration has no plans to submit the Rome Statute of the International Criminal Court (ICC) to the Senate for ratificaiton.  Prof. Ku comments:

This is not exactly a surprise, but it shows just how far the U.S. is from the Rome Statute. If President Obama and his sort-of supermajority in Congress do not wish to join the ICC, then it is hard to imagine the U.S. joining during a future Sarah Palin or Mitt Romney administration.  This doesn’t exactly bother me. But this raw political fact suggests that the U.S. failure to join the ICC is rooted in deeper political and structural concerns than partisan politics and ideology.

Indeed, if the Obama Administration is not even willing to sign the ICC treaty, the prospects of U.S. participation in the foreseeable future would appear to be quite small.

When President Obama met with House Republican leaders he noted that Rep. Paul Ryan, the ranking Republican on the House Budget Committee, had put forward a “serious proposal” for controlling federal spending and balancing the federal budget.  Rep. Ryan has also supported an alternative approach to health care reform, the “Patients Choice Act.” Unlike some (many?) Republicans, Rep. Ryan wants the GOP to be more than the “party of no” and wants to put forward a serious, principled policy agenda.

This past week, Ross Douthat considered whether Ryan’s proposals represent  a serious alternative agenda. Liberal blogger Ezra Klein also has a very interesting interview with Ryan about his proposals for health care.