Archive | August, 2012

District Court Orders Restoration of Weekend Early Voting in Ohio

Have there been enough big election law decisions this week? Apparently not, as earlier today a federal district court in Ohio has held that a change in the Ohio Revised Code that ends in-person early voting the Friday before election day (for all voters other than overseas military personnel) is unconstitutional and issued an injunction ordering that such voting be allowed through the weekend. Here are the decision, local Ohio coverage, and (as usual) early analysis from Election Law Blog’s Rick Hasen. According to this report, Ohio Attorney General says he plans to appeal the decision to the U.S. Court of Appeals for the Sixth Circuit. [...]

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How Not to Label Biotech Foods

In November, Californians will vote on Proposition 37, a ballot initiative to impose a mandatory labeling requirement on all foods produced with or from genetically modified organisms (GMOs). For reasons I discuss in this New Atlantis article, this requirement is unnecessary, unwise and potentially unconstitutional.

The effort has been endorsed by numerous progressive organizations and the California Democratic Party. Of note, those who usually police the misuse or politicization of science have been strangely quiet about the misleading and inaccurate scientific claims made by Prop. 37 proponents. Although the proposition warns of “adverse health consequences” from genetic engineering of foods, there is not a single documented case of adverse health consequences due to the use of GMOs. Yet about traditional crop-breeding techniques, we can say no such thing. It’s no wonder that the National Academy of Sciences has issued numerous reports concluding that the use of modern genetic modification techniques, in themselves, have no bearing on the relative safety of a food product. What was done to a specific GMO matters more than whether specific modification techniques were used.

It is even misleading to single out crops and other organisms modified by modern genetic modification techniques as “genetically engineered. Many common crops are “genetically engineered” in that they are the result of direct human modification. Corn, for example, does not exist naturally. It was “engineered” by humans, albeit using less precise breeding methods centuries ago.

The organizers of the effort claim consumers have a “right to know” whether their foods contain GMOs. But nothing stops consumers from obtaining such information. Organic producers and others who wish to cater to those who dislike GMOs are free to label their products accordingly (and, in my view, should be able to do so without some of the excessive disclaimers urged by [...]

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Harvard Cheating Scandal

The Associated Press reports on a massive cheating scandal at Harvard:

Harvard University is investigating whether dozens of undergraduate students cheated on a take-home exam last spring.

School officials said they discovered students may have shared answers or plagiarized on a final exam. They declined to release the name of the class, the students’ names or the exact number being investigated, citing privacy laws.

The undergraduate class had a minimum of 250 students and possible cheating was discovered in roughly half the take-home exams, university officials said Thursday.

Bloomberg reports the investigation is looking at approximately 125 students.

While the AP and Bloomberg reports don’t identify the class, the Crimson does: Goverment 1310 – “Introduction to Congress.” [Insert snarky comment here.]

Instapundit reader Scott Wiehle comments: “What’s so pitiful about this story is that about 200 or so of our best and brightest had to cheat on an open book exam at a school where grade inflation is so rampant you would have to cite ayn rand or favorably refer to W. to get a B.” [...]

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Fifth Circuit Historical Cell-Site Case: The Most Relevant Ripeness Precedents

This is the second in a series of posts on the justiciability of Fourth Amendment disputes. Specifically, the issue is whether magistrate judges have the power, when asked to review a statutory court order for surveillance under the Stored Communications Act, to decline to sign an application that satisfies the statute but that the magistrate fears will be executed in ways that violate the Fourth Amendment. The question is currently pending in the Fifth Circuit, with oral argument scheduled for October 2nd. As I argue in my amicus brief, I don’t think judges have that power because such cases are not yet ripe for adjudication. The facts of how the government will obtain the records are unknown, so there are no facts yet on which to apply the law. Without actual facts, Article III jurisdiction does not yet exist, so the magistrate judge has no constitutional authority to opine on the legal issues and the Court of Appeals has no constitutional authority to rule on the issues in the appeal. The Court of Appeals therefore must reverse the district court with instructions to sign the order because the statutory threshold has been satisfied. In this post I want to run through some of the major cases that support this argument, and then consider the two major precedents that have been asserted against my position.

Perhaps the most analogous ripeness cases are those dealing with the limitation of the federal courts to impose injunctive relief in Fourth Amendment litigation. In these cases, a party who has been searched or seized — or who expects to be searched or seized soon — comes into court and seeks an injunction ordering the government not to engage in the practice again because the practice is unconstitutional. The issue is whether the federal court [...]

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Things No Lawyer Should Want to See Written About Him in a Court Opinion

“Counsel shall not charge petitioner, directly or indirectly, for the attorney’s fees and costs associated with this petition. Within 30 days of this order, counsel shall file a certificate stating under oath that he has discussed this matter with his client and has refunded any money he may have charged her for working on this petition.” Law students who read this blog — view this as a cautionary tale. The details are in Monges-Garcia v. Holder (9th Cir. Aug. 28, 2012) (nonprecedential) (quoted partly from the Westlaw report of the case):

Eduardo Soto, Esquire, The Law Office of Eduardo Soto, Coral Gables, FL, for Petitioner.

Edward Earl Wiggers, Esquire, U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072–991–167.

Before KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and KORMAN, Senior District Judge….

We dismissed this petition last year because Noemi Monges–Garcia failed to submit an opening brief. We reinstated the petition but must again dismiss because the opening brief doesn’t comply with our rules and fails to raise a specific and distinct challenge to the BIA’s order dismissing her appeal.

The opening brief is very nearly the same counsel submitted to us in 2004, before we remanded this case to the BIA. See Monges–Garcia v. Gonzales, 228 Fed. App’x 665, 667 (9th Cir.2007). It adds a sentence and modifies another to tell us the agency was “incorrect” and “should be overruled,” but it’s otherwise cut-and-pasted from the previous filing. Our rules don’t allow parties to “append or incorporate by reference briefs submitted to … this Court in a prior appeal,” 9th Cir. R. 28–1(b), and this case shows why. Petitioner’s recycled

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Inviting A “Stop and Frisk” By Openly Carrying an AK-47 Pistol with a Thirty Round Clip In a Public Park: An Unusual Fourth and Second Amendment Case

The case is Embody v. Ward, handed down today by the Sixth Circuit in an opinion by Judge Sutton. It begins:

Tennessee law allows individuals with gun permits to carry handguns in public places “owned or operated by the state” such as “public park[s]” and “natural area[s].” Tenn. Code § 39-17-1311(b)(1)(H). The statute defines a “handgun” as “any firearm with a barrel length of less than twelve inches” that is “designed, made or adapted” to be fired with one hand. Id. § 39-11-106(a)(16).

Armed with knowledge of this law and one thing more — a Draco AK-47 pistol — Leonard Embody went to Radnor Lake State Natural Area, a state park near Nashville, Tennessee, on a Sunday afternoon. Dressed in camouflage, he slung the gun with its eleven-and-a-half-inch barrel across his chest along with a fully loaded, thirtyround clip attached to it.

Embody anticipated his appearance at the park would attract attention—he carried an audio-recording device with him—and it did. One passer-by spontaneously held up his hands when he encountered Embody. Two park visitors reported to a park ranger that they were “very concerned” about Embody and the AK-47. R.22-3 at 5. And an elderly couple reported to a ranger that a man was in the park with an “assault rifle.” Id. at 6.

Two more predictable things happened. A park ranger disarmed and detained Embody to determine whether the AK-47 was a legitimate pistol under Tennessee law, releasing him only after determining it was. And Embody sued the park ranger, claiming he had violated his Second, Fourth and Fourteenth Amendment rights.

For his troubles, Embody has done something rare: He has taken a position on the Second and Fourth Amendment that unites the Brady Center to Prevent Gun Violence and the Second Amendment Foundation. Both organizations think that

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Gov. Chris Christie’s Speech and First Person Singular Pronouns

Prof. Mark Liberman (Language Log) is unimpressed with the claim that Gov. Chris Christie “used the word ‘I’ 30 times, plus a couple of ‘me’s’ and ‘my’s’ tossed in for seasoning” in his speech, and that this somehow says something important about Christie. Liberman had in the past responded similarly to those who made similar charges about President Obama. [...]

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Which of these is a Sandwich?

In this (very critical) review of Justice Scalia’s new book, Judge Posner makes the following claim: “a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like.”

Is this right? In my experience, “sandwich shops” like Corner Bakery don’t sell hamburgers, and I’d be very surprised if someone offered me a sandwich and then handed me a hamburger. I’d be even more surprised to be offered a hot dog. Tacos, burritos, and quesadillas seem even further removed from what I think of as a “sandwich.”

Sure, you can make lawyerly arguments as to why any or all of these constitute sandwiches, but that’s not the question. Rather, I’m wondering if contrary to my own understanding, Posner is right that hamburgers and hot dogs are “regarded” as sandwiches, and that “some people regard” tacos and burritos as sandwiches.

This seems especially pertinent because Posner is criticizing Scalia and his co-author Brian Garner for advocating reliance on dictionary definitions of words. One reason to rely on dictionary definitions is because they provide an objective baseline, as opposed to idiosyncratic judges’ notions of what words might mean, which in turn are subject to manipulation if a judge wants to rule in favor of a particular party for whatever reason. If Posner is wrong about what people “regard” as sandwiches, I think that would tend to buttress Scalia and Garner’s point that we’re better off relying on dictionary definitions than on less objective alternatives–which is not to say that I think that I have a strong opinions on textualism in statutory and contractual interpretation (and indeed I don’t).

So what do readers think about the sandwich definition issue?

UPDATE: One unscientific online survey found that 77% of respondents [...]

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Academics’ Letter of Support for Colorado Amendment 64 – A Marijuana Legalization Initiative

I am one of over 100 academics in various disciplines who signed a letter supporting Colorado Amendment 64, a referendum initiative which would legalize marijuana possession and sales in that state for residents over the age of 21, and generally institute a regulatory regime for marijuana similar to that currently in force for alcohol. The other signatories include fellow VC-ers Randy Barnett and Sasha Volokh, as well as prominent scholars such as MIT economist Daron Acemoglu, Douglas Berman of Ohio State and the Sentencing Law and Policy Blog, Tom Ginsburg (University of Chicago Law School), and others. The full text of the letter is available here:

For decades, our country has pursued a policy of marijuana prohibition that has been just as ineffective and wasteful as alcohol prohibition. We have reviewed Amendment 64 and concluded that it presents an effective, responsible, and much-needed new approach for Colorado and the nation.

Marijuana prohibition has proven to be the worst possible system when it comes to protecting teens, driving marijuana into the underground market where proof of age is not required and where other illegal products might be available….

Given our current economic climate, we must evaluate the efficacy of expensive government programs and make responsible decisions about the use of state resources. Enforcing marijuana prohibition is wasting our state’s limited criminal justice resources and eroding respect for the law. Our communities would be better served if the resources we currently spend to investigate, arrest, and prosecute people for marijuana offenses each year were redirected to focus on violent and otherwise harmful crimes….

It is also important to note that Amendment 64 does not change existing laws regarding driving under the influence of marijuana, and it allows employers to maintain all of their current employment and drug-testing policies.

The State of

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Todd Zywicki’s question, “can you think of … things … [that] used to be for sale (expressly or implicitly) and today … are not?,” reminded me of a word I learned a few years ago: “Simony,” in the sense of “the sin of buying or selling ecclesiastical preferments, benefices, etc.” — that’s offices, not indulgences — and apparently derived from “Simon Magus, who tried to purchase apostolic powers.” Perhaps I just like it because I share with the Simons of the world the fact that each of us has a practice sharing our name (simony and eugenics) that is in ill odor.

In any event, you don’t hear much about simony these days, for obvious reasons. [UPDATE: It might happen under unusual circumstances even now, but I suspect that it’s extremely rare.] This Google Ngrams graph helps illustrate the point, though I’d stand by the point even discounting such bibliographic evidence.

Note that several commenters on Todd’s thread (mdjdfromny, MosheSyr, and Edward Rybsen) also gave the same answer. [...]

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Attorney General Holder grants BATFE expanded forfeiture powers

Details here, from Americans for Forfeiture Reform. In short, BATFE becomes another federal agency which gets to seize large sums of cash, based on presumption that a large sum of cash must be related to an illegal transaction in controlled substances. And notwithstanding the fact that the Bureau of Alcohol, Tobacco, Firearms and Explosives is a Bureau whose job involves federal laws about alcohol, tobacco, firearms and explosives, not controlled substances. [...]

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