Archive | July, 2012

Congratulations to Ted Cruz

Congratulations to Ted Cruz, who has won the runoff election for the GOP nomination to the U.S. Senate from Texas. In Texas, the GOP nominee is almost certainly the next U.S. Senator. This was a long campaign overcoming enormous odds; when we first blogged about his announcement to run for the open seat, the campaign looked like a huge long shot. So this is a pretty remarkable win. I’ve known Ted since college, and I expect him to be a major force in the Senate. So congratulations to him, and to everyone who worked on the campaign. [...]

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Milton Friedman’s 100th Birthday

Today is Milton Friedman’s 100th birthday. Friedman was the greatest libertarian economist of the last century, and one of the greatest economists of all time, regardless of viewpoint. In my view, what separated Friedman from most other great economists, and also most other leading libertarian thinkers, was his ability to speak to both expert and popular audiences effectively. Few other great scholars – and no libertarian ones – combined these two skills as effectively as he did.

Friedman’s work is also remarkable for the way most of it remains relevant even decades after he initially wrote it. Capitalism and Freedom was first published in 1962. But very little of it seems dated today.

Friedman was not the libertarian thinker who had the most influence on me personally. But he probably had a greater impact on scholars, policy-makers, and interested laypeople than any other.

I commented on Friedman’s legacy in more detail in this post, which includes links to earlier posts about Friedman.

Economist Bryan Caplan has posted a thoughtful tribute here:

Today would have been Milton Friedman’s 100th birthday. I only met the man long enough for him to sign my copy of Capitalism and Freedom, but he’s been a tremendous influence on me.

All of my other adolescent intellectual heroes – Ayn Rand, Murray Rothbard, Ludwig von Mises – gradually came to seem less impressive in my eyes. But the greatness of Milton Friedman is as constant as the Northern Star. Whether he’s calling for the abolition of medical licensing in Capitalism and Freedom, or analyzing the co-movement of the money supply and money velocity in A Monetary History of the United States, Friedman takes controversial stances, and actually convinces people.

Why does Friedman stand apart from my other idols? In the end, it’s the

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Huawei’s Pride Goeth Before Its Fall

Here’s the head of Huawei’s enterprise business last year, telling the Financial Times that the whole security thing is overblown:

Mr Xu said Huawei represented no threat to national security anywhere.

“There has never been a single network security breach case that has ever happened with Huawei.”

Whoops.  Here’s a recent ComputerWorld report on the penetration testing of Huawei’s routers:

Security researchers disclosed critical vulnerabilities in routers from Chinese networking and telecommunications equipment manufacturer Huawei at the Defcon hackers conference on Sunday.

The vulnerabilities — a session hijack, a heap overflow and a stack overflow — were found in the firmware of Huawei AR18 and AR29 series routers and could be exploited to take control of the devices over the Internet, said Felix Lindner, the head of security firm Recurity Labs and one of the two researchers who found the flaws.

The researcher, who also analyzed the security of Cisco networking equipment in the past, described the security of the Huawei devices he analyzed as “the worst ever” and said that they’re bound to contain more vulnerabilities.

“This stuff is distrusting,” said security researcher Dan Kaminsky, who is best known for discovering a major vulnerability in the world’s DNS (Domain Name System) infrastructure in 2008 and who worked for Cisco in the past. “If I were to teach someone from scratch how to write binary exploits, these routers would be what I’d demonstrate on.”

“What FX [Lindner’s moniker in security circles] has shown is that the 15 years of secure coding practices that we’ve learned about — the things to do or not do — have not been absorbed by the engineers at Huawei,” Kaminsky said.

The Recurity Labs researchers specified during the talk that they didn’t test any “big boxes” like the Huawei NE series routers — which

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Recent Developments — Both in the Courts and in Congress — on the Scope of the Computer Fraud and Abuse Act

I’ve blogged a lot on the scope of the Computer Fraud and Abuse Act, and specifically on whether using a computer in violation of a computer use policy or Terms of Service is a federal crime. I’ve been banging the drum urging courts to adopt a narrow interpretations of the Act for a decade, and the question has recently reached several courts of appeals. A lot has been happening on this front recently, so I thought I would bring readers up to speed. To follow this issue, you need to watch all three branches. So let’s start with the pairing of Judiciary/Executive, and then cover the pairing of Legislature/Executive.

First, the Judicary/Executive. Last Thursday, the Fourth Circuit deepened the apparent circuit split by joining the Ninth Circuit in adopting a narrow interpretation of the CFAA in WEC Carolina Energy Solutions v. Miller. A day later, DOJ asked for another extension of the period in which a cert petition could be filed in United States v. Nosal, the Ninth Circuit en banc case. DOJ’s request for more time may have been at least in part a response to the Fourth Circuit’s decision the day before, although I haven’t seen the filing so I don’t actually know. It’s also possible that DOJ wasn’t planning on filing for cert in Nosal but might reconsider in light of WEC. It’s hard to know.

Next, the Legislature/Executive. The Senate Judiciary Committee is in the middle of its markup of The Cybersecurity Act of 2012, S3414, which you can read here. In its current version, it has no changes to the Computer Fraud and Abuse Act. However, Chairman Leahy has proposed an amendment to the Cybersecurity Act that would make two major changes. First, Leahy’s amendment would add a bunch of things [...]

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“Fermat’s Dilemma”

I’m on a family trip, and will be blogging little if at all this week; but I had a chance to look at a New York Times op-ed titled “Is Algebra Necessary?” and thought it was worth passing along to see what our readers thought of it.

My own quick reaction to the op-ed is negative — though I’m not certain of this, I suspect that algebraic problem-solving teaches useful mental habits that both open up possible future careers and also help train people’s general problem-solving abilities — but I don’t have time to say more about it. So instead of substance, I thought I’d note this sentence:

(How many college graduates remember what Fermat’s dilemma was all about?)

I remember both Fermat’s last theorem and his little theorem, but not Fermat’s dilemma — and neither does Google Books, which reports one hit for “Fermat’s dilemma,” referring to a problem in a book on math teaching in which a hypothetical math teacher named Mr. Fermat faces a dilemma.

Am I missing some thing that really is called “Fermat’s dilemma”? Or is it an erroneous reference to the seemingly very obscure Fermat’s Lemma (7 Google Books hits)? Or is it perhaps some deep joke on the author’s part that I’m missing?

UPDATE: Thread-winner from Orin Kerr: “Fermat’s Dilemma is whether to admit that you don’t know the proof for a theorem or just to pretend you know the proof but you don’t have space in the margin to explain it.” [...]

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Harvey Silverglate v. DOJ

Harvey Silverglate, my favorite criminal defense lawyer and champion of civil liberties, has another broadside against the DOJ at

When one steps back and takes in a broader view than Juszkiewicz allowed himself to see, it is apparent that the problem is not just a war against capitalism. When a businessman is harassed by overzealous prosecutors, he declaims a war on business just as when a newspaper is harassed, it declaims a war on journalism. It would be a boon to the nation as a whole if those under attack by federal prosecutors could better understand the scope of the problem: they are victims of a war against all of civil society, waged by a Department of Justice wielding incomprehensibly vague and broad criminal statutes enacted by a Congress that too often seems not to know what it’s doing. The supposed restrictions that federalism imposes upon the power of the national government become a farce in the face of such a tangle of laws and regulations, and we all stand to lose from such an outcome.


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How to Respond to the Individual Mandate Decision

My George Mason colleague Eric Claeys has an insightful piece at the National Review website on how opponents of the individual mandate should respond to the Supreme Court’s decision upholding it:

In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. Constitutionalists — partisans of limited, constitutional government — now face a critical decision: Should they acquiesce in the Sebelius decision and move on to campaign against Obamacare exclusively on policy grounds? Or should they continue to make constitutional criticisms of Obamacare — and broaden those charges by making the Sebelius decision part of their indictment? Definitely the latter.

I agree with Eric that Obamacare opponents have every right to continue attacking its constitutionality. The other branches of government and the general public have to obey Supreme Court decisions. But they don’t have to agree with them or refrain from urging their reversal. This goes double for a closely divided 5-4 decision resting on highly contestable reasoning that could well be reversed or narrowed by a future Court. Just as liberals continue to attack decisions they oppose, such as Citizens United, conservatives and libertarians should oppose Sibelius. I think Eric is also correct that the other branches of government can reject a policy as unconstitutional, even if the Supreme Court rules that it is permissible. This is particularly true in a case like this one, where Chief Justice Roberts explicitly rejected the “most natural” reading of the individual mandate law and adopted an extremely strained alternative for the purpose of saving it from invalidation.

Eric also has a good summary of some the reasons why the Chief Justice John Roberts’ opinion upholding the mandate as a tax was wrong:

To justify the mandate

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A Whale of a Federal Case

In today’s Washington Post, George Will describes what I can only call a real whale of an abusive federal criminal prosecution:

The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing

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Arms Trade Treaty conference ends without agreement

The weeks-long conference at the United Nations to produce an Arms Trade Treaty is ending without the creation of a treaty. None of the draft treaties which have circulated in the past several days came remotely close to finding consensus support.

The impossibility of achieving consensus involved a wide variety of issues and nations, far beyond the Second Amendment concerns that have been raised by many American citizens.

The 2001 UN Programme of Action on Small Arms remains in effect. Over the last two decades, a large gun control infrastructure has grown up in the United Nations, not only in the headquarters building, but also within many of the UN various commissions and departments. Likewise, there are a significant number of NGOs which have a strong commitment to global gun control, and to using international law and the UN to solve what they consider to be the problem of excessive gun ownership in the United States. The NGOs and their UN allies have successfully used the 2001 PoA to sharply restrict gun ownership in some parts of the world, and they would have used the ATT  for the same purpose. That they did not succeed in creating an ATT may be very disappointing to them; they are not going to go away, or relent in the pursuit of their objectives.

But in their pursuit, they are not going to have the new weapon of an ATT. This is good news for human rights worldwide, especially for the fundamental human right of self-defense against violent criminals, and against violent criminal tyrannical governments. [...]

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Munich and the Politics of the IOC

Tonight’s opening ceremony for the 2012 Summer Olympics has been marred by the International Olympic Committee’s refusal to hold a brief moment of silence for the 40th anniversary of the murder of 11 Israeli athletes by Palestinian terrorists at the 1972 Olympics in Munich. IOC president Jacques Rogge claims that the reason is that “the Opening Ceremony is an atmosphere that is not fit to remember such a tragic incident.” But, as various commentators have pointed out, the IOC has held commemorations for other tragedies at previous opening ceremonies, including for Bosnian victims of the siege of Sarajevo (1996 [update: possibly it was actually in 1994]) and the victims of 9/11 (2002). If the Opening Ceremony is an appropriate venue for acknowledging tragedies that have no connection to the Olympics, it is even more clearly appropriate for honoring the victims of the worst act of terrorism in Olympic history.

It’s pretty obvious that the real reason for the IOC’s refusal has nothing to do with appropriateness and everything to do with fear of offending Arab nations, as Rogge privately admitted to the widow of one of the Munich victims. This is not the first time that the IOC has been inconsistent in its political statements. For example, beginning in the 1960s, it understandably banned apartheid South Africa from participating in the Olympics. But it did not ban numerous dictatorships with comparable or worse human rights records, including communist regimes guilty of mass murder such as the USSR, North Korea, and Ethiopia. One cannot distinguish between these cases because South Africa’s racial discrimination violated the rights of athletes directly. Communist and other dictatorships also oppressed athletes, as well as many other people. Saddam Hussein’s regime even tortured athletes who didn’t perform as well as expected. North Korea also [...]

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When Is a Dog Sniff in Your Car Not a Search?

Today the U.S. Court of Appeals for the Sixth Circuit decided United States v. Sharp, a dog-sniff case. Here’s the court’s summary:

It is well-settled that a dog’s sniff around the exterior of a car is not a search under the Fourth Amendment. Defendant appeals the district court’s denial of his motion to suppress because a narcotics dog jumped into his car and sniffed inside the car before “alerting” to the presence of narcotics. The canine’s jump and subsequent sniff inside the vehicle was not a search in violation of the Fourth Amendment because the jump was instinctive and not the product of police encouragement. Therefore, we AFFIRM.

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Corporate Speech and Corporate Purposes

Here’s one argument I’ve heard with regard to Citizens United, most recently on this thread but also from others: Once upon a time, corporations were seen as having to announce a specific set of purposes in their charters — e.g., to make money by selling cheese — and couldn’t go outside those purposes. If only that rule were reinstated, that would be a constitutional way of avoiding Citizens United, because corporate speech supporting or opposing candidates is outside those purposes.

But I don’t think that will work (even setting aside the substantial practical economic problems that it will cause, given that the flexibility to enter into new lines of business is often vital to corporations, especially when they face international competition). There are basically two variants of this proposal:

1. One variant of the proposal would be for states to issue corporate charters that expressly forbid corporations from speaking about political candidates (or ballot measures or what have you). But I think that would run into the same Citizens United problem. A state has no obligation to grant a corporate charter; but I don’t think it can limit the charter to exclude political advocacy any more than it can tell newspapers, “if you want to use the corporate form, you can’t editorialize for or against candidates,” tell churches, “if you want to organize yourselves as corporations, you can’t proselytize,” tell medical establishments, “if you want to organize yourselves as corporations, you can’t perform abortions,” or tell businesses, “if you want to organize yourselves as corporations, you can’t manufacture or sell guns.”

2. Another variant would be to require that corporations list particular purposes, and then only spend investor money on things that seriously advance those purposes — likely by replacing the “business judgment” rule, which leaves corporations lots [...]

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Citations to Law Faculty Blogs

Prof. J. Robert Brown, Jr. (The Race to the Bottom) writes about how often law faculty blogs have been cited by Westlaw-accessible courts and legal publications — the count as of June 2012 turns out to be 88 court citations and 6340 legal publication citations.

Sentencing Law & Policy is still the titan of the court citation category, with just a bit over half (45) of all citations; we are a distant second, at 8. I’m pleased to say, though, that we have the most law review citations (742). [...]

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