Archive | September, 2013

Are Judges “Judicial Executioners”?

A provocative blog post on those who want to be judges:

The best way to think about it is to ask yourself this question: “Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?” Those who covet a federal trial judgeship should think hard about this truth before pursuing the job.

I doubt they will. Instead, they will say to themselves, “I’m different. I am not weak. I am strong-minded.” Or, “I’m just doing what the law requires.” Or, “They did it to themselves. They deserve it.” Or, “Someone has to do it, and maybe I can improve things.” The rationalizations are endless.

But stripped of the BS that allows good people to do bad things, here is the essential truth: When sentencing people, federal trial judges literally and consciously destroy lives and most do so on a daily basis.

What makes this interesting? After all isn’t this what Robert Cover said 27 years ago (“The judges deal pain and death”)? Well, the post is interesting because it’s written by Richard Kopf, a (now-senior) federal trial judge. [...]

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Driverless Carts Are Coming Sooner Than Driverless Cars

I’m delighted to be spending this week committing overt acts in furtherance of the Volokh Conspiracy. Since joining Stanford in 2011, I’ve been studying the increasing automation, connectivity, and capability that promise to dramatically change our lives, institutions, and laws. My posts this week will focus on one key example: self-driving vehicles (or whatever you want to call them). The timing is fortuitous, since any remaining legal or technical issues that we fail to collectively solve in the comments section of this blog can be remedied at next week’s U.S. House hearing on “How Autonomous Vehicles Will Shape the Future of Surface Transportation.”

A number of other government bodies are already shaping the legal future of autonomous driving. Nevada, Florida, California, and the District of Columbia have enacted laws expressly regulating these vehicles, California’s Department of Motor Vehicles is currently developing more detailed rules, and a number of other states have considered bills. The U.S. National Highway Traffic Safety Administration (NHTSA) released a preliminary policy statement earlier this year, and Germany, Japan, the United Kingdom, and the European Union have also taken initial domestic steps. Meanwhile, parties to the 1949 Geneva and 1968 Vienna Conventions on Road Traffic are discussing how to reconcile language in these treaties with advanced driver assistance systems.

These efforts tend to view vehicle automation as an incremental process in which driving functions are gradually shifted from human drivers to automated driving systems. The taxonomies developed by the German Federal Highway Research Institute, NHTSA, and SAE International’s On-Road Automated Vehicle Standards Committee (on which I serve) are consistent with this view, even if they are not yet entirely consistent with each other. Yesterday’s cars have antilock brakes and electronic stability control, today’s cars are getting adaptive [...]

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“Terrorism,” “Hostage-Taking,” and the Government Shutdown

Some Obama administration supporters claim that Republicans who refuse to pass a bill funding the federal government are acting like “terrorists” or “hostage takers.” To some extent, this is just your typical exaggerated political rhetoric, similar to that of Republicans who absurdly claim that Obama is a “socialist,” for example. But it also presents a fundamentally misleading understanding of the situation.

Terrorists and hostage-takers are evil because they threaten lives and property that do not belong to them. “Your money or your life” is a terroristic threat, because the person making the threat has no right to dispose of either your money or your life. But there isn’t any terrorism or hostage-taking if you say you won’t give me any of your money unless I do something you want me to do.

In the case of the government shutdown, the GOP-controlled House of Representatives has no constitutional or other obligation to pass a funding bill that includes funding for Obamacare or any other particular government program. Part of the reason why the Constitution gives Congress the power of the purse is so they can decide which government programs are worthy of funding, and which are not. It is also worth noting that the Republicans are not the only side in this dispute who are willing to shut down the government if they don’t get what they want on health care policy. President Obama and the Democratic-controlled Senate could just as easily avoid a shutdown by accepting the House bill. In its latest version, it doesn’t even defund Obamacare completely, but merely delays implementation by a year and repeals the medical device tax, which is currently part of the law. This is not to say that Obama and the Senate Democrats are acting as “terrorists” or “hostage-takers” either. The Senate [...]

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Reality Imitates The Onion on Public Ignorance About Obamacare

In this recent article, The Onion pokes fun at public ignorance about Obamacare [HT: several readers and Facebook friends who alerted me to the article]:

As debate continues in Washington over the funding of President Obama’s health care initiative, sources confirmed Thursday that 39-year-old Daniel Seaver, a man who understands a total of 8 percent of the Affordable Care Act, offered a vehement defense of the legislation to 41-year-old Alex Crawford, who understands 5 percent of it.

“First of all, Obamacare will reduce insurance premiums for most people, and no one can be denied coverage if they have preexisting conditions and stuff like that,” said Seaver, displaying over half of his 8 percent grasp on the sweeping health care reform policy. “Which means a whole bunch of uninsured Americans—I’m talking millions of people here—will finally have access to health care. How can you not get behind that?”

“And Medicare has nothing to do with this, by the way—that’s a separate thing,” continued Seaver, adding one of the few remaining facts he knows about Obamacare. “This just deals with the private insurance companies and makes sure they can’t, you know, drive up costs through the roof.”

According to reports, Seaver mounted an impressive case given his severely limited knowledge of the actual law itself, bolstering his 8 percent understanding of the Affordable Care Act with his 6 percent awareness of the nation’s current economic landscape. Crawford, meanwhile, demonstrated just about the full extent of his understanding of Obamacare by claiming that its provisions could potentially kill jobs.

Sources confirmed that, if asked, neither man would actually be able to correctly define the term “HMO” or coherently explain what a health care exchange actually is and how such a thing would actually work on a regional basis.


The Onion’s
fictional characters [...]

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Ban on “Advis[ing or] Encourag[ing] … Another” to Commit Suicide Violates First Amendment

So holds today’s State v. Final Exit Network, Inc. (Minn. Ct. App. Sept. 30, 2013). The court concluded that the statute “criminalizes any and all expressions of support, guidance, planning, or education to people who want to end their own lives, whether from a public platform, such as a book, or in the private setting of a hospital room or family home,” and was therefore unconstitutionally overbroad. The court disagreed on this issue with State v. Melchert-Dinkel (Minn. Ct. App. 2012), which is now being reviewed by the Minnesota Supreme Court; presumably the Minnesota Supreme Court will consider the reasoning of the court of appeals’ opinion in this case (Final Exit Network) in reaching its ultimate decision.

The court did not decide whether a statute focused on speech to a particular person, advising or encouraging that person to commit suicide, might be outlawed, by analogy to the “solicitation of crime” exception (see United States v. Williams (2008)). “The state urges us,” the court noted, “to construe the statute to prohibit only speech ‘that intentionally advises a specific person, with the specific intent to aid the person in taking the other person’s own life,’ but acknowledges that the plain language of the statute does not so read.” [...]

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How the EU Continues to Fund Settlements in Occupied Territory

The EU recently issued guidelines blocking research and other grants to Israeli institutions with activities (archeological digs, etc.) across the Green Line. In the yesterday’s Jerusalem Post I reveal that the EU continues to actively fund settlements in occupied territory, against their own understanding of international law:

Under guidelines prepared earlier this summer, euros would not be allowed to go to Israeli entities located cross the Green Line – or to those that have any operations there. All Israeli entities applying for funding would have to submit a declaration that they do not have such operations.

Europe claims that such a move – unparalleled in its dealings with any other country – is mandated by international law. The EU does not recognize Israel’s sovereignty over the territories, and thus has an obligation to keep its money from going there. Those who celebrated the move said that Israel is finally paying the international price for its occupation.

Yet it turns out that despite the guidelines, the EU still knowingly and purposefully provides substantial direct financial assistance to settlements in occupied territory – in Turkish-occupied Northern Cyprus, that is. So the EU funds the occupation of an EU member state. . . .

Projects include study abroad scholarships for students at the numerous Northern Cyprus universities (imagine such funding for students at Ariel University!); developing and diversifying the private sector through grants to small and medium- sized businesses; various kinds of infrastructure improvements (telecom upgrades, traffic safety, waste disposal); community development grants, funding to upgrade “cultural heritage” sites, and so forth. They even put on a concert.

Amazingly, this information has never been discussed in the debate over the EU action. On the contrary, academic supporters of the EU measure have falsely stated that “There is no significant difference in the [...]

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Two Upcoming Speaking Engagements

Over the next two weeks, I will be doing two out-of-town speaking engagements that may be of interest to some of our readers.

On Thursday, October, 3, 12:00-1:15 PM, I will be doing a talk on my new book Democracy and Political Ignorance: Why Smaller Government is Smarter, at Columbia Law School in Jerome Greene Hall, Room 105. Columbia law professor Philip Hamburger will comment.

On Thursday, October, 10, 3:30-5 PM, I will be participating in a panel on the Supreme Court’s recent same-sex marriage decisions at Chicago-Kent Law School, along with Chicago-Kent professors Carolyn Shapiro and Kathy Baker. My presentation will expand on my answer to a question that Justice Scalia famously posed in oral argument in the Proposition 8 case: When did laws banning same-sex marriage become unconstitutional? [...]

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Could The New Jersey Civil Unions Case Go to the Supreme Court?

Michael Dorf has an interesting and careful post where he analyzes whether last Friday’s decision in Garden State Equality v. Dow (the New Jersey civil unions case discussed here) raises a question of federal law reviewable by the Supreme Court. While the opinion is ambiguous with respect to the key question, he concludes that the answer is “yes.”

This is yet another aspect of the decision that will hopefully be resolved with more clarity on appeal. (I should note, for those who aren’t closely attentive to the Supreme Court that the fact that the Court might have jurisdiction to take the case, does not mean that the Court would actually decide to do so. The Court has discretion over what cases it hears, and hears only a very small fraction of the cases presented to it.) [...]

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David Kris Publishes the Best Defense (By Far) of the Lawfulness of the NSA’s Telephony Metadata Program

Lawfare has posted a hugely helpful essay for those wanting to understand the NSA’s telephony metadata program and to read the best legal defense of that program: David S. Kris, On the Bulk Collection of Tangible Things (.pdf, 67 pages). Kris was the head of DOJ’s National Security Division from 2009 to 2011, and he is a co-author of the field’s essential treatise, National Security Investigations and Prosecutions.

Kris’s legal defense of the telephony metadata program runs laps around both the Administration’s white paper and the FISC’s recent opinion. As regular readers know, I have been pretty critical of the previous defenses of the lawfulness of the program. Kris’s analysis (especially pages 17-29) provides a lot more food for thought. It’s going to take me a while to work through his argument, and especially to read the additional cases he cites, so at this point I can’t say whether I am persuaded. But it’s essential reading for those interested in the legality of the program. [...]

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Thinking about Gridlock on the Eve of a (Potential) Government Shutdown

As the government-shutdown political theater continues to unfold, I naturally find myself wondering whether to blame the House for passing a spending bill that the Senate and President don’t like, or the Senate for passing a bill that the House doesn’t prefer either. This leads me to thinking about The Phenomenology of Gridlock, a recent essay by Josh Chafetz.

Here’s Chafetz (with footnotes omitted):

Gridlock is not a phenomenon. It is the absence of phenomena. Observers assert that gridlock exists in Congress when laws are not passed, nominees are not confirmed, treaties are not ratified, and so on. Gridlock, that is, is the name we give to the perpetuation of the status quo ante when we believe that perpetuation to be unwarranted.

This recognition of gridlock’s basic nature comes with an important corollary: The antithesis of gridlock is not no-gridlock. Rather, the opposite of gridlock is the enactment of some specific policy or policies, the confirmation of some specific nominee or nominees, and so on. There may be widespread outrage about “gridlock,” but unless there is sufficient consensus about what should be done, the status quo will — and should — endure.

This point is often overlooked because political observers have a (perhaps natural) tendency to assume that there is widespread support for their preferred positions, engaging in what psychologists call “false consensus bias.”

And then …

Where there is widespread public disagreement or uncertainty as to a particular course of action, we should not expect to see that action coming out of Congress. At any given time, there will be certain issues on which public consensus is emerging — I think we can probably put gay rights into this category — and others on which we remain deeply divided — for example, issues surrounding government spending and the

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John Bellinger Explains How To Make a UN Security Resolution Legally Binding

Many commentators, including a lot of international lawyers and scholars, have scrutinized the (as yet unnumbered) UN Security Council resolution worked out between the US and Russia and among the P-5 members of the Council regarding Syria and chemical weapons.  My quick take when the draft resolution was released on Thursday night is here at Opinio Juris; Jack Goldsmith comments at Lawfare and the Heritage Foundation’s Brett Schaefer and Baker Spring comment at National Review.  One important question on everyone’s minds, however, is whether, and in what sense, the resolution is a legally “binding” one, an order of the Security Council that under the Charter requires compliance – legally binding on Syria, the government and the warring parties there.  Is this merely a recommendation or is it a legally binding order of the Council?

Many readers will shrug and think this is not actually of any importance, being merely – so to speak – the flotsam and jetsam of UN legal processes floating on the currents of realist waters where matters are genuinely determined.  One can be a realist and still acknowledge, however, that the legal forms are not always and necessarily supervenient on international politics; they both reflect perceptions of legitimacy and help shape them, and they don’t have to be “determinative” in some strong sense to be relevant and important. Given that the law has some independent weight here, the forms of legal signaling matter.  Former State Department Legal Adviser John Bellinger explains what they are in this informative post at Lawfare:

There is no agreed form of words to make UNSCRs legally binding and, over the last sixty years, the Security Council has been inconsistent in its practice.  In recent years, many international law experts (including many government lawyers for the P-5 members of

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Bryant Walker Smith Guest-Blogging This Week About Self-Driving Cars, Automation Technologies, and Their Regulation

Automation and robotic technologies have popped up in Volokh Conspiracy posts several times during the last few years – drone aircraft, autonomous or highly automated weapons, nursing and eldercare assistance machines and, of course, self-driving cars.  So I’m pleased to announce that Bryant Walker Smith, a leading expert on automation and the law, will be guest-blogging this week here at Volokh Conspiracy – on self-driving cars, and automation technologies and their regulation more broadly.

Bryant is a fellow at both Stanford Law School’s Center on Internet and Society (CIS) and Stanford’s Center for Automative Research (CARS). I first met him at a Stanford conference where he presented a CIS report giving the only genuinely comprehensive analysis of the whether a self-driving car would be legal under the law of each of the 50 states, the federal government, and the Geneva Convention you have never heard of – on driving automobiles.  He trained and worked as a civil engineer before studying law, and his academic writing focuses on torts, technology, legislation and regulation, as well as international economic and environmental law.

Apart from the CIS report, Bryant has also written a number of straightforwardly academic law review articles (he is on the law teaching job market this year, and is a lecturer at SLS, where he teaches a class on self-driving vehicles and the law).  Particularly interesting to me (in part because it is counterintuitive to some understandings of automation technologies and traffic management) is “Managing Autonomous Transportation Demand” – it suggests that genuinely successful automation might increase demand for driving and hence put greater, not lesser, pressure on road systems and traffic management; it applies a set of engineering concepts to make recommendations about how such demand, if it were to materialize in this way, might be managed efficiently. [...]

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Greenpeace & Russia – an International Pussy Riot

I blogged earlier about Russia’s illegal seizure of a Greenpeace vessel in international waters, and its laughable characterization of their acts as maritime piracy. The ship Arctic Sunrise had been boarded after an attempt to board or come alongside a Russian oil rig for some kind of non-violent protest. Subsequently, Vladimir Putin apparently poured cold water on potential piracy charges, leading some to think it would be a passing squall.

Instead, a Russian court has ordered all 30 crew members of varying nationalities jailed for two months pending an investigation. The ship also not been released, and the Netherlands, as the flag state, may file prompt release proceedings in the International Tribunal for the Law of the Sea.

The incident is a kind of international Pussy Riot. You may recall that Russia gave two-year jail sentences to members of that “feminist punk rock protest group” for some kind of raunchy, uninvited performance in a Russian Orthodox Church. (I am not entirely clear on the goals of the group or their methods.) While the sentence was widely decried, it does seem that Pussy Riot was engaged in a particularly provocative protest, that almost certainly took liberties with other people’s property. The legal action against them was not unreasonable – it was the nature and severity of the action that defied all proportion, and revealed a heavy-handed intolerance of protest.

Greenpeace is in a similar situation. They may have committed technical trespass, and certainly should not protest at finding themselves in court. But jail is another matter. There is one big difference: with Pussy Riot, Putin was bullying his own nationals, in his own capital. Now Russia is throwing its weight around against foreigners on a foreign-flagged vessel in international waters, which is not just thuggish, but a violation [...]

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The History of Debt Ceiling Votes and Government Shutdowns

James Fallows writes:

there is no precedent for serious threats not to honor federal debt — as opposed to symbolic anti-Administration protest votes, which both parties have cast over the years. Nor for demanding the reversal of major legislation as a condition for routine government operations.

There’s never been a “serious threat” to refuse to increase the debt ceiling? Glenn Kessler’s already shredded that claim. As this paper documents, “the use of the debt ceiling vote as a vehicle for other legislative matters,” had become a “pattern” in the mid-1970s and 1980s. Indeed, as Kessler notes, “Congress has used the debt limit to repeal a key legislative priority of a president,” and liberal lions like Senators Ted Kennedy and Walter Mondale sought to attach substantive legislation to a debt ceiling increase in the 1970s.

As for government shutdowns, as I noted here, there have been 17 since 1976, several of which were the result of disputes over substantive policy issues, ranging from limits on funding abortion to civil rights laws to reinstating the Fairness Doctrine. In Fallows defense, none of these involved demands for “reversal of major legislation,” but there were multiple efforts to attach measures that would overturn court decisions or change federal law. [...]

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Warsaw

So I’ve spent the past week in Warsaw, Poland, attending the European Law and Economics Association meetings and visiting the city. Although my family is Polish I’ve never visited the country. Perhaps my most distinct impression is how surprised I am at how middle class and prosperous the country seems, just 25 years removed from Communism. Walking the streets, the city superficially seems indistinguishable from any other major European city–except cheaper. (I didn’t get out of Warsaw at all, so maybe it is different in the countryside?).

And, my goodness, the food has been delectable. They actually have a dish that is meat-stuffed pierogi with a “gravy” of sauteed bacon bits. We need that back home. And last night I had the tastiest (and biggest) duck ever for dinner.

The Warsaw Uprising Museum is one of the most compelling historical museums I’ve ever seen. What a story. I was only vaguely familiar with it before visiting the museum, but what a compelling story. And the museum has some remarkable artifacts–Claire and I especially liked the newsreels made by the Home Army Propaganda Films unit. Quite fascinating. It is truly hard for me to imagine what it would be like to rise up against the Nazis only to hope that your Soviet “allies” will help–but then have the Soviets turn their back because refusing to intervene would make the city weaker for when the Soviets finally rolled in. What an era of evil. I also didn’t realize the extent to which Hitler utterly leveled the city in retribution for the Uprising. What an extraordinary story.

The rest of the historical sights were really great too, but the Uprising Museum is the one that is really going to stick with both of us for a long time.  Unfortunately, we didn’t make it [...]

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