Archive | September, 2004

More on the Mainstream Media:

Following this post, several readers have asked me where the press got the idea that the recent court decision in New York invalidated a major part of the Patriot Act. I assume the main source is this ACLU press release, which begins:

In ACLU Case, Federal Court Strikes Down Patriot Act Surveillance Power As Unconstitutional

  NEW YORK – Saying that “democracy abhors undue secrecy,” a federal court today struck down an entire Patriot Act provision that gives the government unchecked authority to issue “National Security Letters” to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. The court also found a broad gag provision in the law to be an “unconstitutional prior restraint” on free speech.
  “This is a landmark victory against the Ashcroft Justice Department’s misguided attempt to intrude into the lives of innocent Americans in the name of national security,” said ACLU Executive Director Anthony D. Romero. “Even now, some in Congress are trying to pass additional intrusive law enforcement powers. This decision should put a halt to those efforts.”
  The American Civil Liberties Union and the New York Civil Liberties Union, which brought a challenge to the law earlier this year, hailed the ruling as a signal blow to the current administration’s efforts to expand government surveillance powers in violation of the Constitution.
  “Today’s ruling is a wholesale refutation of excessive government secrecy and unchecked executive power,” said ACLU attorney Jameel Jaffer. “As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place.”
  The ruling is the first to strike down any of the vast new surveillance powers authorized by the Patriot Act.

  I can understand the difficulties that long and complicated legal opinions raise for many reporters. Imagine […]

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Congratulations to Governor Arnold for vetoing a counterproductive piece of legislation in California that would have imposed new disclosure requirements on pharmaceutical benefits managers. As the FTC noted in an analysis of the bill (from the press release):

The staff analysis finds that AB 1960 is likely to have an adverse effect on consumers in two ways. First, mandated disclosures may actually increase prices. “Whenever PBMs have a credible threat to exclude pharmaceutical manufacturers from their formulary, manufacturers have a powerful incentive to bid aggressively. . . Whenever competitors know the actual prices charged by other firms, tacit collusion – and thus higher prices – may be more likely. It is for this reason that California law requires the state to use sealed bids to procure desired goods and services whose value exceeds $25,000,” the FTC’s letter states.

Second, the bill has a number of provisions that are likely to make drug substitution more expensive. PBMs frequently use drug substitution to reduce costs and promote competition between branded drug makers. Generic substitution is encouraged by the FDA and widely recognized as safe, and California already requires prescriber approval for the substitution of one branded drug for another. Because current safeguards appear sufficient to protect consumers, AB 1960 is likely to increase costs to consumers without providing any additional benefits.

The Governor’s veto message points to the FTC analysis as influencing his decision to veto it. […]

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Supreme Court to Hear Medical Cannabis Case on November 29th:

Some may have noticed that I have been blogging a lot less of late. There are probably several reasons for this, among which is the work I have been doing on Ashcroft v. Raich, the medical cannabis case now before the Supreme Court. Our brief is due in 2 weeks and, this weekend, we made a major breakthrough in our Commerce Clause argument. (I cannot disclose it now, of course. Wouldn’t be prudent.)

Yesterday the clerk announced that the Court will hear argument in the case on Monday, November 29th. So expect blogging by me to be intermittent at best until then. […]

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Welcome Jim Lindgren!

A belated welcome to my friend Jim Lindgren of Northwestern. Jim and I were once on the same faculty at Chicago-Kent College of Law, and it is good to be colleagues again. I am sure the same attention to factual detail that led to Jim’s exposure of the fraudulent gun ownership data of Michael Bellisiles along with his boundless enthusiasm will make Jim a truly excellent blogger. I look forward to reading his future posts.

Update:The immediate response of one reader: “Oh, THAT Jim Lindgren. I knew his name sounded familiar. Excellent!” Indeed it is. […]

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Mainstream Media Ruled Unconstitutional:

No, not really. But is it too much to ask that when the mainstream media reports on court decisions that they properly identify the law that is struck down and the Administration that is rebuked? Apparently it is, at least if the Thursday morning papers are any guide.

  As I noted in my post below, a recent decision of the Southern District of New York struck down part of a 1986 law known as the Electronic Communications Privacy Act. How does the press report the decision? No mention of the 1986 law, of course. Instead, the press is reporting that the court struck down a major part of the Patriot Act, in a blow to the Bush Administration’s overzealous response to terrorism. As I trace the history of the statute, this is quite inaccurate: the basic law was implemented in 1986, almost 20 years ago. To be fair, the Patriot Act did amend some language in this section; just not in a relevant way. As best I can tell, the court’s decision does not rely on or even address anything in the Patriot Act. (See page 14-22 of the Court’s opinion for the details of the statute’s history.)

  But of course you don’t get that from the mainstream press, which likes to report everything related to terorrism as if it were the Patriot Act. Here is the New York Times:

Judge Strikes Down Section of Patriot Act Allowing Secret Subpoenas of Internet Data
  A federal judge struck down an important surveillance provision of the antiterrorism legislation known as the USA Patriot Act yesterday, ruling that it broadly violated the Constitution by giving the federal authorities unchecked powers to obtain private information.
The ruling, by Judge Victor Marrero of Federal District Court in Manhattan, was the


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MoveOn is pressing CBS to run yet a third questionable story.

As if CBS isn’t in enough hot water already after running two stories in one month based on phony documents, has started a lobbying campaign to get CBS to run yet a third false story (hat-tip Kerry Spot). This one, on the attempts by Iraq to get Yellowcake uranium in Africa, was bumped from its original broadcast slot by the Bush Texas Guard story.

Here is MoveOn’s call to arms:

Date: Monday, September 27
From: Peter Schurman,
Subject: CBS censoring the truth about Bush’s case for war

Dear MoveOn member,

President Bush based his famous and false claim that Iraq was seeking uranium from Niger on a set of crudely forged documents. For the last two years, no one has uncovered who falsified these documents, which lie at the heart of Bush’s case for war.

Now, CBS’ 60 Minutes program has uncovered new and important revelations about the Bush administration’s reliance on the documents. But, in an unprecedented and astonishing move, CBS bumped the report back until after the election, saying it would be “inappropriate” to air the piece when it might interfere with the political season.

It’s outrageous that a major TV news outlet would censor an important piece of news for political reasons. Especially since this report has met CBS’ standards for accuracy — it’s true. One can only assume that CBS is buckling under pressure from the right — and that’s just plain wrong.

Call CBS and its parent company, Viacom, now, at: . . . .

The reason that CBS publicly gave for further postponing the story (that it was too close to the election) was indeed inappropriate on its face (unless of course CBS in the 2 months before the election would run investigative stories only if they favored one candidate).

But […]

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District Court Invalidates Part of Electronic Communications Privacy Act:

District Judge Victor Marrero of the Southern District of New York issued a 122 page opinion in Doe v. Ashcroft yesterday invalidating 18 U.S.C. 2709, the “national security letter” provision of the Electronic Communications Privacy Act, on Fourth and First Amendment grounds. This is big news: it might require heavily increased reliance on the controversial Section 215 powers of the Patriot Act, and creates considerable constitutional uncertainty as Congress heads into debates on revisiting the Patriot Act in 2005. To make matters more interesting, the Court’s Fourth Amendment analysis is rambling, self-indulgent, and rather odd — all of which will set up an interesting appeal in the Second Circuit. One warning, though: I’m a Fourth Amendment specialist, not a First Amendment scholar, so I am going to blog on the former and not the latter. I’ll leave the First Amendment part for Eugene in case he feels like blogging on it.

  First, a bit of introduction. Section 2709 allows the FBI to order ISPs to disclose certain transactional information about their subscribers in terrorism investigations. For example, imagine that the FBI has reason to believe that a suspected member of Al-Qaeda in Afgahanistan has a Hotmail account, and is using that Hotmail account to communicate with other co-conspirators. Section 2709 lets the FBI order an ISP to disclose the person’s name and address (in the unlikely case it was entered accurately), as well as transactional information such as when the account was accessed, from what IP address, and the e-mail addresses of other associates who sent e-mail to or received e-mail from the suspect account. The FBI sends a letter — known as a National Security Letter, or NSL — to the ISP ordering it to make the disclosure, and the ISP must do so. Also, the section provides […]

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The Rise of the Blogs:

Blogs seem to be getting the attention of the mainstream media. To get some idea of how long this has been happening, I ran month-by-month searches for use of the word “blog” appearing in the Westlaw ALLNEWS database covering the last two years. (The ALLNEWS database is a database of newspapers, more or less). You can chart the growing awareness of blogs — albeit quite imperfectly, of course — in the increasing number of uses. I have hidden the raw data behind the link below, but the numbers begin with about 100 mentions per month in late 2002; climb to 300-400 mentions per month in most of 2003; go up to 700 mentions per month in early 2004; and escalate to about 1300 mentions a month since this past July.

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Senators call for investigation of comments by Supreme Court leaks:

Here’s a letter from Senators Cornyn, Chambliss, and Graham to Senators Hatch and Sessions:

September 29, 2004

The Honorable Orrin G. Hatch
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, D.C. 20510

The Honorable Jeff Sessions
Subcommittee on Administrative Oversight and the Courts
Committee on the Judiciary
335 Russell Senate Office Building
Washington, D.C. 20510

Dear Senators Hatch and Sessions,

Recent articles in Vanity Fair and Legal Times strongly suggest that the duty of confidentiality owed to justices of the United States Supreme Court by their employees have been breached. If proven, these allegations present serious concerns about the integrity of judicial operations and warrant the attention of the Senate Judiciary Committee or its subcommittee on Administrative Oversight and the Courts.

According to an article published in the October 2004 issue of Vanity Fair, a number of law clerks who served at the U.S. Supreme Court during the October 2000 Term intentionally disclosed confidential information about the Court’s internal deliberations to a reporter. Such disclosures clearly violate the duty of confidentiality owed by every law clerk to the United States Supreme Court. Indeed, the Vanity Fair article itself quotes one former law clerk apparently complicit in the disclosure, who admits that such discussions “break[] an obligation” to the Court. These disclosures have been roundly condemned as “conduct unbecoming any attorney or legal adviser working in a position of trust” and “behavior that violates the Code of Conduct to which all Supreme Court clerks . . . agree to be bound,” in a recent letter published in the Legal Times and signed by numerous Supreme Court practitioners and former law clerks.

Judges throughout the federal judiciary, including the U.S. Supreme Court, rely on the assistance of law clerks to ensure the smooth and expedient administration of justice.


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More Establishment:

Oh, and the National Review, Oct. 11, 2004, lists us in the “second rank” of its Blog Guide (quite rightly behind the much more popular Drudge Report, InstaPundit, Andrew Sullivan, kausfiles, and OpinionJournal) (thanks to reader Stephen Dillard):

UCLA law prof parades his libertarian-leaning academics.

And everyone loves a parade! […]

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Todd Seavey reports:

FYI: The Sept. 30 – Oct. 7 issue of the megapopular stuff-to-do listings magazine TimeOutNY has a feature listing forty or so suggested sources of info during the prez campaign, and it includes and (as well as and, interestingly, but almost everything else is lefty). Another reminder you’re becoming the Establishment.

Cool! I’ve always wanted to be Establishment Cool. […]

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More on the email selective service hoax.

I posted on CBS’s new problems with its pushing an email letter without pointing out that it is a hoax.
If you want to see how these hoax emails prey on the gullible, consider this letter (scroll down) to the editor of the Northeast Times (Philadelphia area) from last June. It is from Beverly Cocco, whose family’s fears of a draft was the focus of Tuesday night’s CBS News report:

Put a chill on the draft bill

Just this week I received an e-mail so upsetting that I forwarded it to all my friends, who then forwarded it to all their friends. We are now a good size group.

The e-mail concerned Bill S89 and HR 163. The bill is about reinstating the draft, beginning in the spring of 2005. The draftees will be all males and females between the ages of 18 and 26. There will be no deferments; seniors will be allowed to finish the year, and underclassmen will only be allowed to finish the semester. There is already a document signed between the U.S. and Canada, the “Smart Border Declaration,” which will prevent crossing the border.

Since this is a federal bill, I was advised to contact Sen. Specter, Sen. Santorum and Congressman Joe Hoeffel. Sen. Specter’s office said that these bills are a “secret.”
When I told him that the cat was out of the bag, he offered to connect me with the Washington office. That office assured me that the senator was against this bill. I am still waiting for Sen. Santorum to respond, but Congressman Hoeffel is undecided. His office is sending me a letter detailing his thoughts.

We are now in the process of collecting as much information as possible about this bill and the candidates.

We keep getting told that there are


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