Archive | 2012

Legal Infrastructure for Driverless Cars, and Comparisons Between the Law and Ethics of Self-Driving Cars and Autonomous Weapon Systems

(Thanks Instapundit for the link.)  Driverless cars are coming faster than most observers would have thought.  One big reason, according to Bryant Walker Smith in a recent article in Slate, is that people predicting the driverless car future assumed that they would have to be part of centrally-run systems, with corresponding changes to physical infrastructure, such as special roads embedded with magnets.  Or for that matter, we can add, centralized computers to take control of all the vehicles in the system.  The changeover has to be centralized and take place for a given area all at once; it doesn’t scale incrementally.  That was the thought, anyway, and Smith (who is a fellow at Stanford’s Center for the Internet and Society) says that as a consequence, ever “since the 1930s, self-driving cars have been just 20 years away.”

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Self-Driving Cars

Today’s self-driving systems, however, are “intended to work with existing technologies.”  They use sensors and computers to act as individual vehicles responding to the environment around them individually, without having to be a cog in the larger machine.  This means that they can adapt to the existing infrastructures rather than requiring that they all be replaced as a whole system.  Smith’s real point, however, is to go on from physical infrastructure to include the rules of the road.  Infrastructure also includes, he says,

laws that govern motor vehicles: driver licensing requirements, rules of the road, and principles of product liability, to name but a few. One major question remains, though. Will tomorrow’s cars and trucks have to adapt to today’s legal infrastructure, or will that infrastructure adapt to them?

Smith takes up the most basic of these questions – are self-driving vehicles legal in the US?  They probably can be, he says – and he should know, as the [...]

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The Right to Display Armorial Bearings

The Case Western Reserve Law Review recently published the late Peter Junger’s essay “The Original Plain Meaning of the Right to Bear Arms.” According to Junger, “the ‘right to bear arms’ is the same as the right to display armorial bearings, and that the original plain meaning of the Second Amendment is that the government shall not infringe upon one’s right to be a lady or a gentleman.” Finally, a resolution to the debate over the true meaning of the Second Amendment. [...]

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Seidman: “Let’s Give Up on [Parts of] the Constitution”

Georgetown’s Louis Michael Seidman, author of On Constitutional Disobedience has an NYT op-ed (noted in the comments to Orin’s open thread) calling for ignoring the Constitution — or at least those parts that he does not like.

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions. . . .

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago. . . .

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

As commenters in the open thread have already noted, the Constitution itself provides for its own revision to cure deficiencies: Article V. This amendment process has allowed for dramatic changes to the document, from the Bill of Rights and the Civil War Amendments to women’s suffrage and changes to election procedures.

Seidman cites what he characterizes as a proud history of “constitutional disobedience” to suggest that ignoring the document would be all to the good, suggesting that the country would be better off if political disputes about everything from budgetary policy [...]

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“Plotting to Celebrate Christmas”

Al-Bawaba reports:

Saudi religious police stormed a house in the Saudi Arabian province of al-Jouf, detaining more than 41 guests for “plotting to celebrate Christmas,” a statement from the police branch released Wednesday night said.

The raid is the latest in a string of religious crackdowns against residents perceived to threaten the country’s strict religious code.

The host of the alleged Christmas gathering is reported to be an Asian diplomat whose guests included 41 Christians, as well as two Saudi Arabian and Egyptian Muslims. The host and the two Muslims were said to be “severely intoxicated.” …

The kingdom, which only recognizes Islamic faith and practice, has in the past banned public Christmas celebrations, but is ambiguous about festivities staged in private quarters….

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. [...]

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Foreign Child Custody Disputes Involving People Coming from Countries That Apply Islamic Family Law

From Souratgar v. Fair (S.D.N.Y. Dec. 26, 2012):

Petitioner Abdollah Naghash Souratgar, an Iranian citizen, petitions this Court for the return of his son, Shayan, to Singapore. Shayan, who will soon be four years old, was born in Singapore and has Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore. She traveled to the United States where neither petitioner, respondent, nor the child has any meaningful ties or connections.

The father sued in American court, seeking return of the child to Singapore. The relevant American legal rule is that provided by the Hague Convention treaty, and the federal statute — the International Child Abduction Remedies Act — that implements it:

The Hague Convention seeks to “secure the prompt return of children wrongfully removed to or retained in” signatory states. The United States has ratified the treaty and implemented its terms through ICARA. Singapore acceded to the treaty in May 2012.

Under the Hague Convention, a child’s removal from a signatory state is wrongful when “[ (a) ] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and [ (b) ] at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The treaty applies to children under the age of 16….

In order to prevail, petitioner must establish by a preponderance of the evidence … that “(1)

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Did White House Suppress Science on GMO Salmon?

Jon Entine details the evidence that the White House forced the Food & Drug Administration to sit on a scientific assessment concluding that approval of a genetically modified salmon developed by AquaBounty Technologies would have “no significant impact” on the environment. After Slate published an investigative report, the FDA quietly released assessment last Friday, over six months after it had been completed.

The seven month delay, sources within the government say, came after discussions late last spring between Health and Human Services Secretary Kathleen Sibelius’ office and officials linked to Valerie Jarrett at the Executive Office, who were debating the political implications of approving the GM salmon. Genetically modified plants and animals are controversial among the president’s political base, which was thought critical to his reelection efforts during a low point in the president’s popularity. . . .

The hurried release of the Environmental Assessment last Friday capped a frenzied two days behind the scenes at the White House and FDA. Within hours after the Slate article and leaked document were posted, an administration official notified the FDA that the administration was dropping its indefinite hold. “The White House had no place to hide,” said a government source. The “final” draft environmental assessment is identical to the document leaked to the GLP, but is dated May 4—two weeks later. . . .

According to sources, the White House political block—a direct violation of numerous ethics regulations and possibly of federal laws—was instituted over the objections of scientists at the FDA, but with the awareness of HHS Secretary Sibelius, her senior adviser Andrea Palm and the Office of Science and Technology Policy and its director John Holdren, who is responsible for enforcing “science integrity” across government agencies. . . .

FDA scientists and staffers say they were instructed not to

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2012 Unified Agenda Released Before End of Year

Regulatory policy mavens have been wondering all year when the federal government would release the Unified Agenda of Regulatory and Deregulatory Actions. This report details the various actions planned by federal regulatory agencies. The Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget is supposed to release the Unified Agenda twice a year, but until December — late December — no report had been issued. Now the wait is over. Just in time for Christmas OIRA released a single report for 2012 (available here). Some had speculated the report had been withheld because federal agencies were planning a “tsunami” of post-election regulations. Yet according to the Washington Times, that does not appear to be the case.

And speaking of OIRA, former administrator Cass Sunstein has posted a forthcoming article on myths and realities” about the office. [...]

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ASPCA Pays Circus to Settle Suit

The Associated Press reports:

An animal rights group will pay Ringling Bros. and Barnum & Bailey Circus $9.3 million to settle a lawsuit the circus filed after courts found that activists paid a former circus worker for his help in claiming the circus abused elephants.

The American Society for the Prevention of Cruelty to Animals said Friday it was not admitting any wrongdoing in settling the lawsuit. The New York-based animal rights group was one of several involved in a lawsuit filed in 2000 against the circus’ owner, Feld Entertainment Inc., claiming elephants were abused. Courts later found that the animal rights activists had paid a former Ringling barn helper involved in the lawsuit at least $190,000, making him “essentially a paid plaintiff” who lacked credibility. . . .

The Vienna, Va.-based Feld Entertainment Inc. sued the animal rights groups and Rider in 2007, accusing them of conspiring to harm the company’s business and other illegal acts. The lawsuit claims the groups were working together with the goal of permanently banning Asian elephants from circuses.

Friday’s settlement covers only the ASPCA. Twelve other defendants including The Humane Society of the United States, the Animal Welfare Institute and The Fund for Animals are still involved in the lawsuit.

UPDATE: More here.

FURTHER UPDATE: Here’s a WSJ editorial on the settlement. [...]

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Putin Signs Law Banning Adoption of Russian Orphans by Americans

Russian President Vladimir Putin recently signed a law banning the adoption of Russian orphans by Americans:

President Vladimir V. Putin signed a bill on Friday that bans the adoption of Russian children by American citizens, dealing a serious blow to an already strained diplomatic relationship. But for hundreds of Americans enmeshed in the costly, complicated adoption process, the impact was deeply personal….

The law calls for the ban to be put in force on Tuesday, and it stands to upend the plans of many American families in the final stages of adopting in Russia. Already, it has added wrenching emotional tumult to a process that can cost $50,000 or more, requires repeated trips overseas, and typically entails lengthy and maddening encounters with bureaucracy….

The bill that includes the adoption ban was drafted in response to the Magnitsky Act, a law signed by President Obama this month that will bar Russian citizens accused of violating human rights from traveling to the United States and from owning real estate or other assets there. The Obama administration had opposed the Magnitsky legislation, fearing diplomatic retaliation, but members of Congress were eager to press Russia over human rights abuses and tied the bill to another measure granting Russia new status as a full trading partner.

As the New York Times article quoted above points out, the new Russian law is a traumatic blow to American parents currently in the process of adopting Russian orphans, including some who have already formed relationships with particular children. It also probably violates a recent US-Russian agreement on adoptions, that requires a year’s notice prior to any termination by either side. Worst of all, the law consigns thousands of children who might have been adopted by Americans to life in Russia’s horrendous system of orphanages, which is among [...]

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Contraception Mandate Faces Justice Sotomayor and Seventh Circuit

It’s been a significant week for litigation over the contraception mandate. On December 20, a motions panel of the U.S. Court of Appeals for the Tenth Circuit denied employer Hobby Lobby’s motion for an injunction pending appeal. As a private employer, Hobby Lobby is not eligible for the safe harbor from enforcement, and will be subject to the mandate at the start of the new year. As a consequence, Hobby Lobby filed an emergency application for a stay with the Supreme Court, which Justice Sonia Sotomayor denied with a brief four-page opinion. According to Justice Sotomayor, Hobby Lobby could not meet the extraordinarily demanding standard for such an injunction. Lyle Denniston has a brief report on SCOTUSBlog, and Ed Whelan critiques the decision on Bench Memos (see also here). for what it’s worth, I am not as convinced as Whelan that Hobby Lobby’s rights under the Religious Freedom Restoration Act are “indisputably clear.” While I think religious institutions have a strong RFRA-based free exercise claim, and that religious institutions — and not the government — define the contours of what the exercise of a given religious faith requires — I am not sure that private, for-profit corporations can avail themselves of RFRA in the same way as avowedly religious institutions., even when privately held by religiously devout individuals, nor am I aware of any case law that would clearly establish this point (but see below).

Meanwhile, the U.S. Court of Appeals for the Seventh Circuit is looking more favorably on another private employer’s challenge to the contraception mandate. In what Lyle Denniston calls “the most significant federal appeals court ruling so far on the new federal health care law’s contraceptives mandate,” a divided panel of the Seventh Circuit granted a private employer’s emergency motion for an injunction [...]

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Copyright and Full Albums on YouTube

In the last year or so, a lot of full albums of recorded works have appeared and stayed up over at YouTube. Just to pick a few examples among thousands, maybe you want to listen to The Beatles’ Sgt Pepper’s Lonely Hearts Club Band, John Coltrane’s A Love Supreme, the Beastie Boys’s Paul’s Boutique, Pink Floyd’s Dark Side of the Moon, Miles Davis’s Kind of Blue, or Tupac Shakur’s All Eyez On Me. They’re all there for the listening over at YouTube, and they’ve been posted there for a while (on average, about half a year for the albums I have listed). And none of them appear to have been posted by the copyright holders.

I’m curious about why they’re up, though. I would think that all of these albums are still under copyright. They all sell pretty well, as far as I can tell: Dark Side of the Moon is #177 in Amazon music sales right now, and Kind of Blue is #203. It wouldn’t be hard for the copyright owners to have YouTube take them down. So why are these and many other albums still available? Is there a glitch in the copyright laws that makes it plausible that these albums are not infringing, perhaps related to copyright laws outside the United States? Alternatively, are copyright owners giving up and not trying to have their content removed for older works, figuring that enforcing their legal rights isn’t worth it? Or have copyright owners decided that it is to their advantage to have the copies of full albums available, perhaps on the theory that access to poor-audio versions at Youtube might create exposure that would spur legit sales of CDs or MP3s? (That worked with me for Keith Jarrett’s Live at [...]

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Descriptivism vs. Prescriptivism / Left vs. Right

Prof. Mark Liberman (Language Log) has an interesting post on usage debates and political debates; you should read the whole thing, but here’s an excerpt:

[T]he insistence on regulation by prescriptive “rules”, in whatever relationship to the direction of linguistic history, is another interesting inversion of the standard political metaphors as applied to matters of usage. Consider this passage from Friedrich Hayek, Law, Legislation and Liberty, Volumes 1: Rules and Order, p. 10-11:

[Constructivist rationalism] produced a renewed propensity to ascribe the origin of all institutions of culture to invention or design. Morals, religion and law, language and writing, money and the market, were thought of as having been deliberately constructed by somebody, or at least as owing whatever perfection they possessed to such design….

Yet … [m]any of the institutions of society which are indispensible conditions for the successful pursuit of our conscious aims are in fact the result of customs, habits or practices which have been neither invented nor are observed with any such purpose in view….

Man … is successful not because he knows why he ought to observe the rules which he does observe, or is even capable of stating all these rules in words, but because his thinking and acting are governed by rules which have by a process of selection been evolved in the society in which he lives, and which are thus the product of the experience of generations.

It would be hard to find a better statement of the descriptivist attitude towards linguistic norms.

But Hayek is using a general discussion of “all institutions of culture” to argue for a libertarian approach to economic and social policy, avoiding central planning and minimizing coercive regulatory intervention. Hayek was “one of Ronald Reagan’s favorite thinkers” and an important influence on Margaret

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Motion to Kiss My Ass III

For the first, see Washington v. Alaiimo. For the second, see State v. Law. For the latest, see this quote from champion boxer Juan Manuel Marquez, as reported in BoxingScene.com (though I admit that this likely won’t get to court):

[Trainer Freddie] Roach told me if I would would come out clean in the anti-doping tests, he would kiss my ass. The Nevada Commission has announced that both Pacquiao and I were negative for doping. That means Roach has to kiss my ass, and then some. He openly said that I had doped, and now he has to pay the consequences.

Rob Green (Abnormal Use) explains why a court would not indeed order Roach to kiss Marquez’s ass. [...]

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