Archive | 2013

Blasphemy Death Sentences in Pakistan

Two men were sentenced to death in Pakistan for “claim[ing] that they had seen God” and “invit[ing] other people to join them in their union with God through Chaman Sarkar” (apparently a local religious leader), The Express Tribune (affiliated with the International New York Times) reported Sunday. Thanks to Religion Clause for the pointer. […]

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Drinking the Kool-Aid

Today’s Abidor v. Napolitano (E.D.N.Y. Dec. 31, 2013), which deals with border searches of electronic equipment, includes the following passage:

Plaintiffs try to bolster their claim for standing in several ways. The NACDL [National Association of Criminal Defense Lawyers] alleges that its members routinely travel abroad to “collaborate with foreign colleagues and/or as part of their representation of their clients.” They almost always travel with electronic devices because those devices “are necessary to take notes, record interviews, perform legal research, draft legal documents, retrieve case files, and communicate.” The NACDL goes on to allege that because its “members have an ethical duty to safeguard attorney-client and other privileged information, they must spend time and money to mitigate the harm that future searches will cause.” Similarly, the NPPA [National Press Photographers Association] argue that the challenged policies “undermine NPPA members’ ability to guarantee confidentiality to the sources they communicate with abroad.” Consequently, “[t]he risk [their] sources’ identities will be revealed to border agents … will lead some sources who otherwise would have shared information or been recorded, photographed, or videotaped to decline to do so.” …

[But] it is difficult to understand how a threshold requirement of reasonable suspicion [which the plaintiffs claim is constitutionally required] significantly alleviates the alleged harm that plaintiffs fear. Reasonable suspicion is a minimal threshold standard for conducting a search…. Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to “guarantee” confidentiality to their sources, or to protect privileged information.

I can’t speak to the Fourth Amendment analysis, which I leave to Orin and others. But my quick check suggests that this is the first use of the idiom “drinking the Kool-Aid” in a federal judicial opinion at the judge’s instance (rather than just […]

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New York 7-Round Limit Struck Down on Second Amendment Grounds, Assault Weapons Ban and >10-Round Magazine Ban Upheld

The decision, by a federal trial court, is today’s N.Y. State Rifle & Pistol Ass’n v. Cuomo (W.D.N.Y. Dec. 31, 2013). The court’s conclusion:

[T]his Court finds that the challenged provisions of the SAFE Act — including the Act’s definition and regulation of assault weapons and its ban on large-capacity magazines — further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights. But, the seven-round limit fails the relevant test because the purported link between the ban and the State’s interest is tenuous, strained, and unsupported in the record.

Further, three aspects of the law — the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) — must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited.

Finally, because the SAFE Act’s requirement that all ammunition sales be conducted in-person does not unduly burden interstate commerce, it does not violate the Commerce Clause.

Here’s the heart of the analysis of the 7-round limit:

The SAFE Act adds New York Penal Law § 265.00(37), which makes it “unlawful for a person to knowingly possess an ammunition feeding device where such device contains more than seven rounds of ammunition.” Unlike the restrictions on assault weapons and large- capacity magazines, the seven-round limit cannot survive intermediate scrutiny.

It stretches the bounds of this Court’s deference to the predictive judgments of the legislature to suppose that those intent on doing harm (whom, of course, the Act is aimed to stop) will load their weapon with only the permitted seven rounds. In this sense, the provision is not “substantially

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The Privies Get Results — Judge Bybee Tries to Avoid Award for “Dumbest Privacy Case”

JaybybeeI’m shocked to discover that the august Ninth Circuit has been tampering with the balloting for the Privies, perhaps hoping to save its own Judge Bybee from winning the award for “Dumbest Privacy Case” of 2014.

The nomination was for a decision that exposed Google to liabilty for gathering wi-fi signals while driving by on the street.

As we noted in the nomination, “the law exempts the capturing of radio broadcasts and publicly accessible communications; there’s not much doubt that wi-fi uses radio waves and can be accessed by the public if it’s not secured.  But Judge Bybee of the Ninth Circuit wasn’t deterred by either of the barriers to holding Google liable.  He decided that radio communications are only those things we hear on the AM-FM dial.  As for being publicly accessible, he writes, why that’s ridiculous: if you listened to wi-fi signals on an AM radio, “they would sound indistinguishable from random noise.”

Now Judge Bybee seems ready to admit that he didn’t really think that whole “how would the signals sound on an AM radio/” thing through. Responding to the imminent threat of a Privy Award (and, okay, Google’s rehearing petition), the panel has modified the opinion to make it less, well, dumb. It has granted rehearing and dropped the entire discussion about what is and is not publicly accessible, leaving the definition of “publicly accessible” to be argued before the district court in the first instance. […]

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Justice Blackmun’s File on Smith v. Maryland

Smith v. Maryland and the third-party doctrine have been much in the news recently thanks to the dueling Leon/Pauley NSA opinions. In light of that, law prof Kyle Graham has posted Smith-related materials from Justice Blackmun’s papers at the Library of Congress. You can read them here. The documents include conference notes, the cert pool memo, the law clerk’s bench memo, and some internal memoranda about the opinion.

Blackmun’s law clerk on the case — the clerk who actually wrote the opinion, given how Justice Blackmun apparently worked — was Albert G. Lauber, now a tax court judge. Lauber’s bench memo to Blackmun is fascinating. It not only tracks the majority opinion, as you might expect, but in some ways it offers a clearer explanation and better justification of the reasoning of Smith than did the opinion itself. Really interesting stuff. (The cert pool memo writer in the case was a Rehnquist clerk, the late Judge Mark Kravitz.)

As I have written before, I think Smith v. Maryland was correctly decided. You can read my argument here and here in law review article form. If you want the short version, check out this 2012 debate between Greg Nojeim and me. […]

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Last Chance to Vote for the 2014 Privies — Plus Sebelius v. Reding for Privacy Hypocrite of the Year

Ksebelius VRedingVoting for the 2014 Privy Awards for Dubious Achievement in Privacy Law will close at noon EST tomorrow, January 1, 2014.  You can read the nominations here, and cast your vote here.

There are still some tight races, whether in voting by the public or by privacy professionals.  But there are differences between the two groups.  The most interesting difference concerns the crucial vote for “Privacy Hypocrite of the Year.”  Among the public, the top two contenders are Rep. James Sensenbrenner, for deliberately skipping classified briefings and then complaining that he wasn’t told about NSA’s classified program, and Sec. Kathleen Sebelius, for launching healthcare.gov without any of the security features her Department has penalized private health companies for failing to implement.

But among privacy professionals, the race for top honors is between Secretary Sebelius and a little-known Brussels bureaucrat, European Commissioner (and Vice President) Viviane Reding, who is notorious for trying to regulate US intelligence activities while admitting that she has no authority to regulate European intelligence agencies.

The votes of privacy professionals are weighted more heavily precisely to give obscure but outrageous abusers of privacy law a fair shot at winning, so privacy professionals with strong views on whether Commissioner Reding deserves the prize need to weigh in now.

You have only 24 hours to make your vote count. […]

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Christian Burset on William Baude on Federal Eminent Domain

Last year I published an article in the Yale Law Journal arguing that the Constitution did not give the federal government the power of eminent domain. The Necessary Proper Clause was originally understood not to implicitly grant “great” powers to the federal government, and I argue that eminent domain (at least over land) was best understood as an example of a great power. The Takings Clause, passed a few years later, was not understood to grant the federal government any new powers. And from the Founding until the Civil War, the federal government never exercised a direct power of eminent domain in the states, instead relying on states to take land for any federal project that needed it. (Ilya critiqued the article here.)

Now the California Law Review’s online supplement has published a substantial response to my piece by Christian Burset, a law and history student at Yale. My thoughts are below the fold. His piece begins:

This Response critiques Baude’s historical account. He is absolutely right that the “great powers” doctrine needs more sensitive historical treatment, and he has greatly advanced our understanding of that history by recovering the lost case against federal takings. But he takes his case too far in arguing that from the Founding to the Civil War, “the federal government was not understood to have the power to exercise eminent domain inside a state’s borders.”

More generally, Baude, like his scholarly predecessors, errs in searching for a single historical understanding of federal takings. Until the Supreme Court settled the issue in Kohl, there was no consensus on the matter. Debate emerged in the 1780s and quickly became entangled with broader questions of federal power, slavery, and states’ rights. Baude rightly argues that Kohl was the first case to declare definitively the federal government’s

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Confusing Cause and Effect for the Law School Bubble

Steven J. Harper has an essay on the popping of the law school bubble.

The lawyer bubble began to form when vital institutions—law schools and the American Bar Association—abdicated their responsibilities in favor of misguided metrics and insularity. Law-school deans are supposed to be the profession’s gatekeepers, but far too many have ceded independent judgment in an effort to satisfy the mindless criteria underlying law-school rankings, especially U.S. News & World Report’s annual list.

Those rankings didn’t exist until 1987; now they rule the law-school world for both students and administrators. Flawed methodology infects each category—quality assessment, selectivity, placement, and resources. But with the acquiescence of the ABA, deans inflate their schools’ rankings with incomplete and misleading information and encourage prospective students to pursue dreams that, for most of them, are impossible, all in the name of increasing applications, enrollments, and tuition revenues.

In the 1990s, the U.S. News law-school rankings began to gain in popularity and became a key element in the competition for new students. Meanwhile, as applications to first-year classes rose generally, universities increasingly saw law schools as profit centers worth expanding. Recently the Maryland Department of Legislative Services concluded that the University of Baltimore School of Law sent 31 percent of its 2010 revenue back into the general university budget. For private schools, these data are difficult to uncover, but the University of Baltimore report corroborates a widely held view that universities in general impose a “tax” amounting to between 20 and 25 percent of their law schools’ gross revenues.

When U.S. News published its first law-school rankings, in 1987, total law-school enrollment in the 175 ABA-accredited institutions had remained about 120,000 for a decade. Since then, 25 more law schools have come on line, and enrollments have steadily risen, to more than 145,000. By

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Christmas Reading Report

Quick reactions to a couple of books I had a chance to read over the Christmas break.
I can  recommend Company Man by John Rizzo.  Rizzo was one of the Rizzofirst lawyers at the CIA, and he recounts a thirty year career there with grace and a remarkable absence of rancor, even though he was denied the ultimate promotion —  to General Counsel — after a highly politicized confirmation hearing.  (His offense was asking the Justice Department whether certain harsh interrogation techniques were legal, and not selling out the CIA officers who relied on Justice’s advice by disavowing it when he got to the hearing.)

Rizzo had a ringside seat at all the most dramatic political events involving the CIA from the 1970s to the Obama Administration.  He brings self-deprecating wit and a lot of human insight to his portrayal of these events and the CIA directors he helped guide through them. It’s available on January 5, 2014. (Disclosure: I got an early copy because John and I have been friends and colleagues for a long time. But in the interest of full disclosure, I have no incentive to overpraise his book, since I’m afraid it’s actually better than mine.)

FrackersIn contrast, The Frackers by Gregory Zuckerman was a disappointment.  The book is getting praise from the right blogosphere because it tells the story of fracking straight, with only occasional flaming faucets and with considerable attention to the remarkable contribution that the frackers have made to the nation’s energy independence.  I tend to agree that that’s the right take on the industry, but as a read, the book is benefiting from conservative affirmative action. It’s long, dense, and full of characters whose stories are admirable but pretty much indistinguishable. Wait, which founder nearly went bankrupt and which one […]

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Privy Peek: Worst Use of Privacy Law to Serve Power — China or the Obama Administration?

Tom vilsack China flagVoting for the 2014 Dubious Achievements in Privacy Law is almost done, and the race is heating up.  Who used privacy law most egregiously to serve power and privilege?  There are plenty of candidates, but the leaders this year are two:  On the one hand, the Chinese government, which adopted a privacy law and promptly brought criminal privacy charges against a Western investigator examining corporate misdeeds. And on the other, the Obama administration’s Agriculture Department, which cited privacy grounds in refusing to name any of the beneficiaries of the notoriously fraud-ridden “Pigford” settlement.

But if your favorite was a man who could afford both a naked five-hour, five-hooker sadomasochistic orgy and a litigation campaign to clear his name by proving that it was not a naked five-hour, five-hooker sadomasochistic orgy with a Nazi theme, well, Max Mosley isn’t quite out of the running yet.  With a surge of support, his privacy law campaign to force the Internet to forget  pictures of his naked five-hour etcetera still could qualify as the worst use of privacy law to protect the privileged.

If you’re sure you know which of the candidates is abusing privacy law most egregiously to serve the powerful, and you haven’t already voted, now is the time to review the candidates and then to cast your ballot. […]

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The Benefits of State Polarization

Many commentators decry the increasing polarization between “red states” and “blue states.” This recent Washington Post article summarizes some of the standard criticisms. But as my George Mason colleague Michael Greve explains, state polarization also has some valuable benefits:

Polarization (whether measured by single-party control over states, policy outcomes, or whatever) has its downsides. Single-part states may start to work like the House of Commons and “overshoot” in a red or blue direction. At the federal level, a polarized system is bound to produce politicians who aren’t used to compromise…..

On the other hand:… [the] “competitive” kind of federalism requires a certain degree of polarization (or sectionalism). And the price may well be worth paying. Consider a few well-understood but underestimated advantages:

Competitive federalism reveals information. We can debate the abstract advantages of “red” or “blue,” “American” and “European” social models until the cows come home: there’s no substitute for observing the actual effects in real life.

Competitive federalism satisfies preferences. A thoroughly blue or red United States would leave one half of the country very unhappy. That’s not true under federalism—not when preferences are heterogeneous across states and (relatively) homogeneous within states. As, increasingly, now.

Competitive federalism reveals preferences and reduces ignorance. People move across states lines in response to a ton of factors (climate, jobs, housing costs…)—many of which are policy-dependent. “Foot-voting” is a pretty good political feed-back mechanism: sooner or later, (state) politicians will pay attention….

You can’t have those sweet advantages without the bitter; the trick is to minimize the costs. Here, that means national-level solutions that allow the states to go their own way, instead of entangling them in federal schemes.

As Michael notes, I have explained why foot voting often leads to better-informed decisions than ballot-box voting in my recent […]

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Upcoming Heritage Foundation Event on Our Book A Conspiracy Against Obamacare

On January 7, co-bloggers Randy Barnett, Orin Kerr, and I will be speaking at an upcoming event at the Heritage Foundation in Washington, DC on our recently published book A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, which details ours and the VC’s role in developing the arguments in the Supreme Court’s Obamacare decision (the book is also coauthored with Jonathan Adler, David Bernstein, and David Kopel). The book’s editor, Trevor Burrus of the Cato Institute, will also speak at Heritage.

The event will be held on from 12 to 1 PM. More information, including how to RSVP is available here.

NOTE: This event has been rescheduled from December 10, when it was wiped out by a “snowstorm” that shut down most of the DC area, despite the fact that there was only about 1 inch of snow. We hope to avoid a repeat on January 7! […]

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Politifact’s “Lie of the Year” – Part Deux

Avik Roy writes on how Politifact’s assessment of the “if you like your plan, you can keep it” promise went from 100% true to half-true to a “pants on fire” lie to the “lie of the year.”  The column is fairly devastating by itself, but then Politifact’s Angie Holan, who authored some of the relevant evaluations, tried to defend Politifact with a tweet:

The mind reels.  Then-Senator Obama’s 2008 health care plan had numerous elements that were sure to disrupt health insurance markets, as Roy noted in the column.  (If, on the other hand, Politifact wants to argue that the initial promise was “true” because it represented then-candidate Obama’s honest intent in 2008, then there was no point in fact-checking it at all.)  More importantly, insofar as one wants to argue that the 2008 plan and the PPACA are sufficiently different to justify different assessments of the claim, the individual mandate is largely irrelevant — and this is the first time someone from Politifact has tried to suggest otherwise.  (For instance, there’s no mention of the mandate in Ms. Holan’s “Lie of the Year” post.)  The individual mandate is not what is causing individuals to lose their health insurance.  If anything, it has the opposite effect by reducing the effect of other PPACA requirements.  It’s as if Politifact “fact-checkers” don’t know very much about the subjects of their “fact checks.”

If any further proof were needed of the absurdity of our self-appointed political “fact-checkers” this is it. […]

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