Archive | February 16, 2011

Do Prop 8 Proponents Have Standing to Defend the Law?

Today, at the request of the 9th Circuit, the California Supreme Court agreed to address the question whether there is anything in California law that would give the official proponents of Prop 8 standing in the federal case challenging it, Perry v. Schwarzenegger.  The California court announced a briefing and oral argument schedule that will take us out until at least September, and probably beyond, while we await some word. 

One issue is whether the Prop 8 proponents can show they have suffered some “personal injury” — one that is particular to them — sufficient to let them sue in federal court under Article III.  That injury might arise because (1) Judge Vaughn Walker held Prop 8 unconstitutional, and/or because (2) they face imminent injury if same-sex couples start to wed when Walker’s ruling is enforced. I am not sure what California law could tell us about the answers to either of those questions that we can’t know independently, but I suppose that’s why we have briefing. 

Another possible basis for standing, hinted at in the 9th Circuit’s certified question to the California court, is that state law gives proponents standing to defend the law when state officials refuse to do so, regardless of any personal injury they may have suffered.  Does California law put them in the shoes of state officials?

As a constitutional matter, the Ninth Circuit doesn’t have to follow whatever advice the California Supreme Court gives it. Standing is an independent federal matter. Prop 8 proponents may have standing under federal law even if the the state court holds that state law doesn’t grant it to them; conversely, they may have no standing even if state law gives them some special status or “injury” to claim. But if the 9th Circuit went to the trouble […]

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Criminal Law Professor Suspended For Classroom Hypotheticals In Which Law School Dean is Murdered

One of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. I ‘m not sure why this is so funny, but students just love it. If you teach first-year criminal law, which typically focuses heavily on homicide crimes, that means you spend a lot of time imagining your colleagues meeting horrible fates. If A kills B out of revenge, that’s just a boring hypothetical. But if the hypo involves the students’ Torts Professor killing the Dean out of revenge — or better yet, a conspiracy in which the Dean and the students’ Torts and Contract Professors agree to kill their Criminal law Professor for beer money — well, that’s serious entertainment. It may seem a bit morbid at first. But it’s the opposite, I think. Putting Professors or the Dean in the place of real criminals and real victims makes the scenario so absurd that it adds a bit of levity to what is otherwise a very depressing topic. As a result, it’s a common tool Criminal Law professors use when teaching first-year students the basic doctrines of criminal law. I suppose over the years I’ve murdered pretty much every 1st-year teacher — and certainly all my Deans — and they’ve all murdered me, too. (All during in-class hypos, mind you.)

In light of this, I was astonished to see this article about a Criminal Law professor being put on administrative leave for posing hypotheticals in class:

During a spring 2010 criminal law class, Lawrence Connell shot and killed Linda Ammons — hypothetically speaking.

Connell considered the pretend notion of his murdering the Widener School of Law dean an absurd example meant to help students remember a legal principle.

But at least two students filed complaints with


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Guantanamo Detainees, What Next?

My home institution, Washington College of Law, American University, will be putting on an important lunchtime program on Friday, February 18,12-2 pm, on the vexed question of what happens next for the Guantanamo detainees.  I am committed to another program that day, so I won’t be attending, but this program has a stellar lineup of commenters.  Jack Goldsmith will deliver the keynote address and the commenters are Robert Chesney, Deborah Pearlstein, and Steve Vladeck; Dan Marcus will moderate.   My guess is that the Q&A will be outstanding as well, as knowledgeable people from DC organizations and the various government agencies have told me they plan to attend.  The program is below the fold, including information on signing up and CLE credit. […]

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A Tasty Treat for VC’s Soccerphiles:

Inasmuch as I feel it has become my duty to inform VC readers of extraordinary happenings in the world of international soccer, I’m writing to announce what those of you who follow these matters already know: today, at 245 PM (EST) (televised on Fox Soccer Channel) Barcelona travel to the Emirates Stadium in London to take on Arsenal in the first of two matches in the Round of 16 of Europe’s Champions League competition. [And yes, the rumors are true – I am indeed heading to Barcelona for the second match between the two on March 8] It promises to be a delightful affair — Barcelona this year, to many soccer fans, is not only probably the best team on the planet at the moment, but quite possibly the best team ever – and surely the most beautiful to watch. And Arsenal, though (imho) not quite up to Barcelona’s level in terms of overall talent and teamwork, nonetheless plays the same kind of game – free-flowing, short-passing, delicate and intricate — as their Spanish visitors. And neither team goes in for the kind of defense-minded bunker mentality stuff that often afflicts teams at the highest level 9and that can make soccer a bit of a snooze sometimes to watch). It should be, as they say, a cracker. Not to be missed. […]

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House Financial Services Committee Hearing on Durbin Amendment

The House Financial Services Committee is holding a hearing tomorrow on the Durbin Amendment price controls on debit card interchange fees.  Here’s the web page.  Only some of the testimony is up there now, but I assume more will be posted as the day goes on.

Meanwhile, the Washington Times had two timely pieces today on the topic: an editorial and a commentary piece.  There is a little bit of confusion and it should be clarified that Durbin’s core price controls apply only to debit cards, but the underlying dynamics are similar between debit and credit cards. […]

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I’m Guessing This Legal Argument Won’t Work

From the in Cleveland/Akron, via SCOTUSblog:

Frank G. Spisak Jr., the convicted killer of three who is scheduled to be executed Thursday, is making a last-minute appeal to the U.S. Supreme Court to delay his execution based on comments against the death penalty by Ohio Supreme Court Justice Paul Pfeifer. Spisak has been on death row 27 years.

Spisak, a Nazi sympathizer, is scheduled to die Thursday for killing three men at Cleveland State University as part of what he called “hunting parties” to find and shoot blacks.

Spisak, 59, says recent comments by Pfeifer opposing the death penalty are a sign capital punishment has been carried out unconstitutionally in Ohio.

I’m not entirely sure, but I gather that the “recent comments by Pfeifer” refers to this recent op-ed. […]

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Third Circuit Judge Denies Lawyer’s Request for Order That “Will Compel … Volokh to Remove His … Blog [Post]”

I wrote about this controversy last month:

Check out the Appellant’s Emergency Motion to Seal Portions of Court Filings Referencing Libelous Statements Made by Others in Wolk v. Olson (3d Cir.). To review the bidding, Arthur Wolk sued, alleging Overlawyered had libeled him. The case was dismissed on statute of limitations grounds, and Wolk appealled. Glenn Reynolds (Instapundit), Marc Randazza (Legal Satyricon), Ed Whelan (National Review Online), and I signed an amicus brief supporting Overlawyered’s position in the appeal. Wolk’s lawyers then filed a response in opposition to the motion for leave to file that amicus brief.

That response, filed on Wolk’s behalf by his lawyers, made a false assertion about a post of mine on incest law. And it also wrongly suggested — with no foundation whatsoever — that my incest law post gave Wolk “more than a reasonable basis to question whether at least one of the amicus bloggers seeking this Court’s audience, one of whom apparently has a penchant for discussing sexual misconduct, may be responsible for the horrible [and false] accusations of sexual misconduct against Wolk on” The response quoted those [false] accusations of sexual misconduct (which had been posted by anonymous commenters, apparently prompted by coverage of Wolk’s lawsuit against Overlawyered).

I then blogged a post criticizing the response. That post quoted that whole passage from the response, to show the unsoundness of the claims that the response was making.

Wolk has now asked the Third Circuit to retroactively seal parts of his response, apparently including the passages that my blog post criticized. His request is not even limited to the particular [false] “accusations of sexual misconduct” that the response reproduced (though even such a limited request to retroactively seal would have been unfounded, I think). Rather, it


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Sealand and HavenCo Part III: Why Did HavenCo Fail?

Previously on Survivor: Sealand, I’ve discussed Sealand’s history and HavenCo’s rise and fall. Today, I’d like to move into Part III of my paper, and start thinking about what HavenCo’s experience means for the rule of law.

In my Internet Law class, I teach the HavenCo story by giving my students a slightly fictionalized version of the facts, circa 2000. I then ask them to take the role of lawyers advising a client considering investing in the HavenCo-style venture. Will it work? Why, or why not?

Most of my students, like most of the commenters here, come back with some variant on, “No, of course not!” Here are some of the common explanations for HavenCo’s failure:

  • You and What Army?: Shotguns suffice for fighting off German lawyers, but you’ll need more serious firepower if you plan to tangle with a government that has access to rocket launchers, speedboats, fighter jets, scuba divers, trained dolphins, and/or cruise missiles. HavenCo staff sometimes told the press that no other country would launch an attack so close to Britain — which, if you think about it, also presumably means that no other country would interfere if Britain moved to occupy the platform.

  • The Wrong Threat Model: HavenCo’s plan to destroy servers rather than let attackers get their hands on them was a plausible way of assuring client confidentiality. For the client whose only copy of sensitive data is stored on Sealand, though, a smoking wreck of a server is not exactly a good outcome. HavenCo was vulnerable to a concentrated denial-of-service attack.

  • Law Doesn’t Work Like That: There’s a deep irony in the fact that a company that celebrated the transformative power of the Internet to erase all borders was so deeply invested in the idea that the

  • […]

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Should FCC Act to Promote “Real Journalism”?

The Hill reports on a comments by FCC Commissioner Michael Copps suggesting that the federal government needs to act to encourage “real journalism.”

“The commission can act now. It should have acted on the media before now. I am disappointed that it has not,” he said.

The decline of “real journalism” justifies federal involvement, according to Copps. “The news is suffering from a bad case of substance abuse,” he said.

The Democratic commissioner pointed to Fox News’ Bernie Goldberg and Bill O’Reilly as examples of the problem with today’s media landscape, saying the pair has taken his own words out of context. . . .

The key going forward, according to Copps, is “making sure there is media about, and originating from, the local communities a station serves.”


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Blasphemy Conviction in Austria

Nina Shea (The Corner) reports:

Today, Elisabeth Sabaditsch-Wolff, a young Viennese mother, was convicted under section 283 of the Austrian penal code of vilifying religious teachings for her negative commentary on Islam in a lecture before a political-party gathering in Vienna; she was fined 480 Euros. Sabaditsch-Wolff, a diplomat’s daughter, had lived and worked for several years in various Middle Eastern Muslim countries, and at the lecture in question spoke critically of the treatment of women and the practice of jihad in Iran, Libya, and other places that she had lived in. The court found that Austria’s free-speech guarantees protected her from hate-speech charges.

However, it seems the case turned on the judge’s reasoning that her statement that Islam’s prophet Mohammed was a “pedophile” was defamatory since his child bride Aisha (age six at the time of marriage and nine at the time it was consummated) remained his wife when she turned 18. The case was brought by prosecutors after complaints by a mainstream Austrian weekly magazine that had secretly taped and then wrote about her lecture. She plans to appeal.

If anyone has a pointer to the judge’s written opinion — preferably an English translation, but I’d be happy to try to generate one from the German original — please let me know.

Thanks to commenter Neo for the pointer. […]

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State Law Decision (from New York) on Felon Gun Possession

UPDATE: For news stories on the 2000 arrest of the applicant in this case, see here and here. The charges in that case were of quite serious misconduct, though of course they were just charges.

In the Matter of Caputo (Feb. 8):

James P. Caputo, Jr. has applied for a restrictive home premise handgun license pursuant to §400.00 of the Penal Law….

On April 16, 2010, Deputy Inspector Andrew Lunetta disapproved the application. (Exh. B). The reasons were given as follows:

The Applicant has an Arrest History as follows: (1) Arrest 9/28/99 Arrest #B00015121 charged with Assault 1st Degree (F)… Official Misconduct: Public Servant Performing Illegal Function 09/17/01. Convicted Upon Plea of Guilty to Assault 3rd Degree Sentenced to Probation 5 years. (2) Arrested 05/15/93 in Putnam County charged with Obstructing Governmental Administration. On 11/04/93 he was convicted upon Plea of Guilty to Disorderly Conduct. (3) Arrested on 10/21/92 in Town of Kent, Putnam County, NY charged with Grand Larceny 4th Degree credit card (F) 03/18/93 sentenced to 10 days Community Service. Due to the Applicant prior arrest record which includes two felonies one of which a violent felony the Applicant has been disapproved for a Premises Residence Handgun License.

Mr. Caputo, with counsel, then submitted an Administrative Appeal Affirmation dated May 15, 2010. In a lengthy and comprehensive affirmation from that counsel, first an overview of the cited arrests was given. It was pointed out that the 1992-93 arrests were linked and occurred when Caputo was 19 years old. It should also be noted that those arrests were known and were essentially disregarded by the New York City Police Department when Caputo was appointed to the Force. As a member of the force, he was given a gun to carry. The felony alluded to in the


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From Benjamin Oliver, The Rights of an American Citizen (1832)

An interesting quote, which I ran across yesterday and thought I’d pass along (not apropos any particular current event):

[T]he right of the people to resist their rulers, when invading their liberties, forms the corner stone of American Republics. This principle, though just in itself, is not favorable to the tranquillity of present establishments….

To overthrow a monarchy is one thing; to establish a permanent, free, popular government is another…. Well-disposed men therefore will hesitate long before they join in any attempt to overthrow or revolutionize their government, under any pretext whatever. For in many cases, revolutions do not result so much from a sense of intolerable oppression as from a fondness for an idol [–] … an imaginary degree of liberty, which if it were real, the frailty, perverseness, and folly of mankind … wholly disqualifies them from enjoying.


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Human Rights Watch Appoints Terrorist (and “Human Rights Activist”) to Middle East Advisory Board

You can’t make this stuff up.

Daily Beast:

The man at the center of the dispute, Shawan Jabarin, runs the human rights organization Al Haq in Ramallah on the occupied West Bank. In 1985 he belonged to a Birzeit University student group associated with the PFLP, indicted as a terror group, by 30 countries including the U.S., the European Union, and Canada. He was convicted of recruiting members for terrorist training outside Israel and served nine months of a 24-month jail sentence….

In its 2007 judgment, the [Israeli] Supreme Court found that alongside activity in [peaceful NGO] Al Haq, Jabarin was also a senior figure in the Popular Front terrorist organization: “This petitioner is apparently active as a Dr. Jekyll and Mr. Hyde. In part of his activities, he is the director of a human rights organization, and in another part he is an activist in a terrorist organization.”

Ken Roth, head of HRW, first denied that Jabarin was ever a member of PFLP, then claimed that if he was, it was ancient history, and then added that he had no such affiliation since he joined Al Haq in 1987, though Roth refused to comment on the Israeli Supreme Court ruling to the contrary.

HRW, of course, rests much of its criticism of Israel on “international law,” or at least its dubious interpretation thereof and of the relevant facts. Let’s note, meanwhile, that terrorist bombings of the sort that the PFLP has been guilty of for decades are against international law.
Where does that leave HRW’s vaunted concern for international law?

H/T: NGO Monitor

UPDATE: I’m not sure how to make this clearer, but given the initial comments let me reiterate that the Israeli Supreme Court found in 2007 that Jabarin was, at that time, a senior […]

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Testifying Today Before the House Judiciary Committee

This morning at 9:30am, I am testifying before the House Judiciary Committee’s hearing on the constitutionality of the individual mandate. The other witnesses will be Virginia Attorney General Ken Cuccinelli, and former Solicitor General and Duke lawprof Walter Dellinger. I don’t know whether C*SPAN will cover these hearings, but I suspect that media interest in the Senate hearing was amped up because they were called by Senate Democrats to blunt the momentum of the constitutional challenges, and were held just two days after Judge Vinson’s decision invalidating the mandate. (A webcast might be available here though I do not see any link so this is doubtful).

An somewhat abbreviated version of my opening statement appears in today’s Washington Examiner: Obamacare’s individual mandate is a dangerous new federal power, and it begins like this:

Here’s a thought experiment. Imagine that I tell you 100 things that you may not do tomorrow. For example, you cannot run on a treadmill, eat broccoli, buy a car, and 97 other things. While your liberty would be restricted, there would still be an infinite number of things you may still do.

Now suppose I tell you 100 things that you must do tomorrow. You must run on a treadmill, eat broccoli, buy a car, and 97 other things. These 100 mandates could potentially occupy all your time and consume all your financial resources.

You can see why economic mandates such as the individual mandate in Obamacare are so much more onerous than either economic regulations or prohibitions, and why so dangerous an unwritten congressional power should not be implied.

You can read the rest here. […]

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The Compact Clause vs. the Multistate Tobacco Cartel

Over at Balkinization, guest blogger Michael Greve offers an excellent post explaining the Competitive Enterprise Institute’s pending cert. petition in a case challenging the tobacco cartel. In short, the 1998 Master Settlement Agreement for the lawsuits initiated by some state Attorneys General against the largest tobacco companies is a violation of the Compacts Clause. Article I, sect. 10, of the Constitution list some things that states may never do, and other things that states may only do with the consent of Congress.  The Compact Clause mandates: “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State…”

As Greve explains, the Supreme Court has not done much to enforce the Compact Clause for the last quarter century; but Greve points out that in 2009, the Roberts Court enforced another provision in section 10 (the Tonnage Clause) which had last been heard from in 1935. Even the Court’s most lax interpretations of the Compact Clause have not left the clause without meaning, and Greve persuasively argues that if the Compact Clause has any legal meaning, it must prohibit the MSA.

The CEI website has a page with links to various documents in the case, including an amicus brief in support of the cert. petition, signed by the impressively diverse and brilliant team of Kathleen Sullivan, Richard Epstein, and Alan Morrison.

As a practical matter, the MSA is a scheme by which a few tobacco giants, all of which were accused of decades of substantial misdeeds, including fraud, were allowed to create a system to cartelize the tobacco market, and to insulate their market shares against competition from smaller companies which had committed no wrong-doing. The VC’s Todd Zywicki participated in an antitrust professor amicus brief in favor of the cert. petition. That brief points out that […]

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