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Saturday, August 21, 2004
WINE WARS--SUPPLEMENTAL MATERIAL ON WEBB-KENYON:
Given the primacy of Webb-Kenyon to the understanding of the 21st Amendment, I thought it might be useful to post some additional excerpts from the legislative history of Webb-kenyon to illustrate the point that the purpose of that Act was to enable the states to enforce their police powers against interstate liquor, not to given them a new power to engage in protectionism:
Senate Judiciary Sub-Committee
Senator Nelson:
* "The police power of the State does not extend to all of these subjects [such as clothing and wheat]. It is only those that are considered detrimental to health and morals. There the police power of the State is complete; but the police power of the State would not extend to prevent the sale of flour or any wholesome commodity .... In the Mugler case ... they passed upon the question of whether this commodity was within the police power of the State, and the question back of it all is the question that has not been discussed according to my mind, and that is this question: The Supreme Court has held that the State has complete police power over the sale and manufacture of liquor .... Now, if the people of Oklahoma have no right to engage in the manufacture and sale of intoxicating liquors in your State, why should I, as a citizen of Minnesota, have a greater right in your State than your own citizens?"
Hon. Fred S. Caldwell (the speaker before the Sub-Committee):
* "[T]ake the Mugler case. There the Supreme Court of the United States held this: That Mugler had no right as a citizen of the United States to maintain and operate his brewery in the State of Kansas in violation of the laws of the State of Kansas, even though he intended the product for his own personal use and interstate commerce to points outside of the State. That, I think, is what was held in that case. Now, then, in my judgment, they could not say that that would be the law if Mugler has been operating a gristmill. If the State of Kansas had passed a law providing that all gristmills, even though operated in a way that could not offend on any ground of public policy ... in my judgment the Kansas law would have been clearly unconstitutional and void .... And in that sense I say that whisky stands on a different basis from flour."
* "[In the lottery case, Champion v. Ames 188 U.S. 321 (1903), the Court said:] `As a State may, for the purposes of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the widespread pestilence of lotteries and to protect the commerce which concerns all the States, may prohibit the carrying of lottery tickets from one State to another....' The Court says there that Congress has the right to regulate interstate commerce so as not to defeat the police powers of the State."
* "Remember that the police power of the State is inferior to the power of Congress over interstate commerce. At any rate, if it is not inferior, where the two come in conflict the commerce power of the Constitution is supreme. So that if the State can in the exercise of its police powers prohibit a certain use of a thing or prohibit the sale of a thing, or prohibit its manufacture, what is there in the Constitution of the United States to prohibit Congress from saying that there shall be no interstate commerce in things so intended for use in violation of the laws of the States. I see no reason. But I think you would have to discriminate between flour and whisky. I do not think you could put them on the same basis. I think the Supreme Court would hold this, that as to whisky, as Senator Rayner has suggested, it might be absolutely taken out of interstate commerce, but flour could not be."
Senate Floor:
Senator McCumber:
* "Having power to prohibit interstate commerce in intoxicating liquors [Congress] has the lesser power, which must be included in the greater, of allowing interstate commerce in intoxicating liquors under certain conditions, and those conditions may be that the commodities shall be subjected to the police powers of a State the moment they cross the State line; not that the State law shall be the effective law and be approved by Congress, but Congress shall relinquish its hold upon the articles upon certain conditions when they arrive within a State." [Which seems to be why the Act is entitled: An Act divesting intoxicating liquors of their interstate character in certain cases - the certain cases language seems to refer to those cases when the state police power operates]
* "Has Congress the right to prohibit intoxicating liquors from entering into interstate commerce? If it has no such power, then I am willing to concede that it has no power to subject that liquor to the condition sought in the bill. If intoxicating liquors as a commodity have inherently all of the rights that clothing or bread could have, then we may well doubt the constitutionality of this law."
Senator Borah:
* "That having a right to prohibit interstate commerce in intoxicating liquors it has the lesser right, which is included in the greater, of declaring a condition for the allowance of the article to enter into interstate commerce that it shall be divested of its Federal protection as a commodity in interstate commerce whenever conditions arise, and that the condition which will so divest it may be that it is intended to be used in violaton of the police powers of the State."
WINE WARS, PART 7--WEBB-KENYON ACT:
The enactment of the Webb-Kenyon Act is consistent with the history that came before it in reconciling the state¡¦s police power over local affairs with the federal government¡¦s power over interstate commerce. As noted in Part 5, under the traditional balance of power, the states had essentially plenary power to regulate the manufacture and consumption of alcohol pursuant to its police power (including imposing state-wide prohibition), but did not have the power to discriminate against interstate commerce (Walling v. Michigan). But under the prevailing interstate commerce clause jurisprudence of the 19th century, states could prohibit internal manufacture and sale of alcohol, but could not prohibit its importation and resale in its ¡§original package.¡¨ This effected a perverse discrimination in favor of interstate commerce. As noted in Part 6, the Wilson Act attempted to correct this problem by providing that alcohol imported into the state for sale would be treated the same as local liquor. Moreover, the Supreme Court held in Scott v. Donald that the Wilson Act did not authorize states to discriminate against out-of-state sellers of alcohol. But the Wilson Act also left a loophole, in that it did not allow dry states to prohibit the importation of alcohol for personal use.
The Webb-Kenyon Act was passed in 1913 to enable the states to close this remaining loophole that essentially discriminated in favor of out-of-state sellers of alcohol and undermined the states¡¦ ability to enforce their laws in dry states. Webb-Kenyon prohibited, as a matter of federal law, ¡§[t]he shipment or transportation¡¨ of alcohol into a State of intoxicating liquor that ¡§is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State.¡¨ Webb-Kenyon, therefore, was an enforcement law, not a substantive law¡Xthe substance of Webb-Kenyon was grounded in state laws enacted pursuant to their police power. Thus, state laws first had to be a valid substantive exercise of the state¡¦s police power before it was incorporated into Webb-Kenyon and could be applied to interstate shipments of liquor. Thus, there was no indication that Webb-Kenyon was intended to modify the traditional limits on the state police power that forbade states from using the police power to discriminate against interstate commerce. Instead, the initial law that the state sought to enforce against interstate commerce must itself be an externally valid exercise of the state¡¦s police power. McCormick v. Brown, 286 US 131 (1932).
As Senator Kenyon himself stated about the Act, its purpose was to enable the states to better effectuate their police powers by eliminating the discrimination in favor of out-of-state sellers. He said: ¡§This bill, if enacted would not be a law to bring about prohibition. It would not be a law to stop personal use of intoxicating liquors ,,m Its purpose, and its only purpose, is to remove the impediment existing as to the States in the exercise of their police powers regarding the traffic or control of intoxicating liquors within their own borders.¡¨ 49 Cong. Rec. 760.
Kenyon also stated, "Every State in which the trqaffic liquors has been prohibited by law is deluged with whisky sent in by people form other States under the shelter of the interestate-commerce law. There are daily trainloas of liquors in bottles, jugs, and other packages sent into the State consigned to persons, real and fictitious, and every railway station and every express company office in the State are converted into the most extensive and active whisky shops, from which whisky is openly distributed in great quantities. Liquor dealers in other States secure the names of all persons in a community, and through the mails flood them with advertisements of whisky, with the most liberal and attractive propositions for the sale and shipment of the same.... It is eveident that under such circumstances the prohibition law of a State is practically nillified, and intoxicating liquors are imposed upon its people against the will of the majority." 49 Cong. Rec. 761 (1912) (Statement of Sen. Kenyon).
Other supporters of the Act echoed Senator Kenyon¡¦s views. Senator Sanders, for instance, indicated that the Act was designed to avoid the Court¡¦s precedents holding that a ¡§State [could] regulate the quality of liquor sold within the State, but it [could] not regulate the quality of liquor sold from outside the State.¡¨ The only effect he added, was that ¡§It only stops the business of selling liquor within dry territory by persons outside that territory in violation of law.¡¨
Webb-Kenyon, therefore, was intended to be a shield to protect dry states from being forced to receive imports in violation of its state laws, not to be a sword for wet states to engage in economic warfare against the products of other states.
The Supreme Court also recognized that Webb-Kenyon was merely an effort to extend the Wilson Act to reach this remaining hole in the states¡¦ enforcement power. As the Supreme Court noted in upholding the constitutionality of Webb-Kenyon, ¡§Reading the Webb-Kenyon Law in the light thus thrown upon it by the Wilson Act and the decisions of this court ... there is no room for doubt that it was enacted simply to extend that which was done by the Wilson Act.¡¨ Clark Distilling Co. v. W. Maryland Ry. Co., 242 U.S. 311, 323-24 (1917). In particular, the court held, the purpose of the Webb-Kenyon Act was ¡§to prevent the immunity characteristic of interstate commerce from being used to permit the receipt of liquor through such commerce in states contrary to their laws, and thus in effect afford a means by subterfuge and indirection to set such laws at naught.¡¨ Clark Distilling Co., 242 U.S. at 323-324. In contrast, nothing in the legislative history or elsewhere suggests that Congress intended to modify or repeal the non-discrimination principle of the Wilson Act recognized in Donald, which is particularly noteworthy in that the Court had decided Donald more than a decade beforehand.
In fact, contemporaneous court decisions applying Webb-Kenyon expressly held that the nondiscrimination principle of the Wilson Act was preserved in Webb-Kenyon. Interpreting Webb-Kenyon in 1916, for instance, the South Carolina Supreme Court held: ¡§The act of Congress of March 1, 1913, known as the Webb Kenyon Act, * * * does divest intoxicating liquors shipped into a state in violation of its laws of their interstate character and withdraw from them the protection of interstate commerce, [but] it evidently contemplated the violation of only valid state laws. It was not intended to confer and did not confer upon any state the power to make injurious discriminations against the products of other states which are recognized as subjects of lawful commerce by the law of the state making such discriminations, nor the power to make unjust discriminations between its own citizens.¡¨ Brennen v. Southern Express Co., 106 S.C. 102, 90 S.E. 402, 404 (1916).
Indeed, it was well-understood for decades (based on cases such as Brennen and other similar cases of the era) that Webb-Kenyon did not permit discrimination against interstate commerce. See Note, 85 U. Pa. L. Rev. 322 (1946-1937) (¡§The aim of the legislation, culminating in the Webb-Kenyon Act, which preceded the Twenty-First Amendment was to prevent the exclusive power of Congress over interstate commerce from rendering nugatory state police regulation of the liquor traffic.¡¨); Rogers, Interstate Commerce in Intoxicating Liquors Before the Webb-Kenyon Act, 4 Va L. Rev. 174 (1916); Howard S. Friedman, 21 Cornell L.Q. 504 (1935-1936) (¡§The cases under the Webb-Kenyon Act uphold state prohibition and regulation in the exercise of the police power yet they clearly forbid laws which discriminate arbitrarily and unreasonably against liquor produced outside of the state.¡¨) Note, 55 Yale L.J. 817 (1945-1946) (noting that under the Act ¡§it was successively reiterated that only uses specifically forbidden by state law were prohibited, that interference with interstate commerce was permissible only in the exercise of valid state police power, and that discriminatory state statutes did not represent proper exercises of such power.¡¨). Brennen and similar cases simply evidenced the prevailing consensus that Webb-Kenyon did not create a new power for states to discriminate against interstate commerce.
Following Prohibition and its repeal, there was some concern that the enactment of the National Prohibition Act (which had implemented the 18th Amendment) had implicitly repealed Webb-Kenyon. In particular, it was thought that the National Prohibition Act may have eliminated the states¡¦ authority to define the term ¡§liquor¡¨ pursuant to their state police power. Indeed, this challenge was raised expressly in McCormick v. Brown. In order to quiet this objection, in 1935 Congress reenacted Webb-Kenyon. As one commentator observed in 1938, ¡§Most congressmen seem to have believed that the Webb-Kenyon Act was still in effect, but to make certain, it was reenacted in 1935.¡¨ 7 Geo. Wash. L. Rev. 406 (1938-1939).
This is where things stood at the time of the enactment of national prohibition by the 18th Amendment.
Update:
In reviewing the legislative history of the 21st Amendment in connection with preparing more recent posts, I noticed the following colloquy that nicely demonstrates that the purpose of Webb-Kenyon expressly was not to delegate Congress's interstate commerce power to the states. Cong. Rec. p. 4140 (Feb. 15, 1933):
SEN. BLAINE: "Then came an amendment ot hte Wilson Act known as the Webb-Kenyon Act.... The language of the Webb-Kenyon Act was designed to give the State in effect power of regulation over intoxicating liquor from the time it actally entered the confines of the State...."
SEN. WAGNER: "Mr. President, will the Senator yield?"
SEN. BLAINE: "I see my able friend from New York shaking his head. I yield to him."
SEN. WAGNER: "I do not want to enter into a controversy, because it really is not very important, but I do not think the Senator meant to say that by this act [Webb-Kenyon] Congress delegated to the States the power to regulate interstate commerce; Congress itself regulated interstate commerce to the point of removing all immunities of liquor in interstate commerce."
SEN. BLAINE: "I think the Senator. I think he has given the correct statement of the doctrine. My understanding of the question was identically the same--that it was the action of the Congress of the United States in regulating intoxicating liquor that protected the dry State within the terms of the law passed by the Congress."
AN ECONOMIC ANALYSIS OF THE CONSUMER BANKRUPTCY CRISIS
Law Review editors can be on the look-out for my new article, a comprehensive empirical analysis of the causes of the consumer bankruptcy crisis over the past twenty-five years. I have not yet posted the paper as a working paper (I'll let you know when the working paper is available), but here's the abstract for those who are interested:
ABSTRACT
Since the inception of the first permanent American bankruptcy law in 1898, the intellectual and political understanding of consumer bankruptcy has been anchored in a model that views bankruptcies as resulting from household financial distress. For much of the Twentieth Century, this "traditional model" provided a plausible explanation of bankruptcy filing patterns and clear normative policy implications. Moreover, the widespread intellectual and social consensus on the traditional model was reflected in the enactment of the current Bankruptcy Code in 1978, which rests on the intellectual foundation of the traditional model. To this day, leading bankruptcy scholars adhere to the traditional model and its implications. Over the past twenty-fiver years, however, the traditional model has broken down. During a period of unprecedented prosperity and economic stability, personal bankruptcies have soared, raising fundamental questions about the validity of the traditional model.
This article argues that there has been an unacknowledged sea-change in the economics of consumer bankruptcy in America. This article first provides a scientific analysis of the traditional model to determine whether these new trends can be accommodated within the traditional model. It focuses on the key variables offered by the traditional model as components of household financial distress: first, high levels of household indebtedness, including the influences of credit cards and home mortgages; second, unemployment and downsizing; third, divorce; and fourth, health problems, health care costs, and lack of health insurance. A scientific analysis of the evidence demonstrates that although these factors can explain part of the background exogenous level of bankruptcies, as well as some regional variation in bankruptcy filing rates, they cannot explain the upward trend in bankruptcy filing rates over the past twenty-five years. The article then briefly discusses an alternative model of consumer bankruptcy that can explain the increased propensity for consumers to file bankruptcy through an examination of the legal, social, and economic institutions of the consumer bankruptcy system.
If anyone is itching to get their hands on it, I'll be happy to email you a copy of the current draft of it if you would like.
Friday, August 20, 2004
A note about the Air America debate:
My friend Glen Whitman (Agoraphilia) writes this, apropos the debate:
I was amused by the following juxtaposition:
(1) Within 5 minutes of the debate's opening, they were openly discussing the need to expand the assault weapons ban to include some handguns, and you had to argue against full-on gun prohibition.
(2) Toward the end of the debate, Scher called gun owners "paranoid" for thinking that minor gun restrictions would lead to full-on gun prohibition.
Indeed.
Welcome, visitors from Air America Radio:
A few links you might find interesting:
Copies of original historical sources on the Second Amendment. My testimony on the Second Amendment. A list of people and organizations who have called for broad bans on guns, or on handguns. This is the reason I'm skeptical of claims that "no one is seriously proposing to ban or confiscate all guns. You hear that only from the gun lobby itself, which whistles up this bogeyman whenever some reasonable regulation is proposed." While we're talking of slippery slope fears — and, hey, you've made slippery slope arguments, too, whether you're liberal, conservative, or libertarian, you might just make them on different subjects (for instance, abortion, privacy, free speech) than others do — here's my article on the subject, plus a shorter version that I cowrote for Legal Affairs. It's a scholarly piece, not a political one; and, trust me, there's something in it for people all over the political map. In case we get into the perennial assault weapons debates, here's a quote from Tom Diaz of the Violence Policy Center, NPR, Mar. 11, 2004: "If the existing assault weapons ban expires, I personally do not believe it will make one whit of difference one way or another in terms of our objective, which is reducing death and injury and getting a particularly lethal class of firearms off the streets." Here's one from Charles Krauthammer, Wash. Post, Apr. 5, 1996, at A19, who is a proponent of a total gun ban:
Its [the assault weapons ban's] only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation . . . . De-escalation begins with a change in mentality . . . . The real steps, like the banning of handguns, will never occur unless this one is taken first . . .
And here's a recent source that makes clear that (1) assault weapons "were used in only a small fraction of gun crimes prior to the ban: about 2% according to most studies and no more than 8%" (PDF page 7) and (2) the differences between assault weapons and other guns are in large part cosmetic (things like whether it has a bayonet mount, or a folding stock) (PDF page 11).
Newly posted:
The paper I've been writing this summer instead of blogging (where are my priorities?) is now online (DOC, PDF.) [UPDATE: Links fixed.]
"Beyond Publius: Montesquieu, liberal republicanism, and the small-republic thesis"
Abstract: The idea that republicanism as a form of government was only suitable for small states, given its definitive 18th-century formulation by Montesquieu, rested in that formulation on three major pillars: the difficulty of sustaining public-spirited virtue in the face of diversity of interests and inequality of fortunes; the problem of knowing the public interest when citizens' circumstances varied; and the danger posed to republican government by a large state's large armed forces. The first two worries declined as republican theory changed from classical and civic to modern and liberal, a change associated with Hume's and Publius' re-understanding of faction and interest in large republics. But Publius did not offer the only, or the final, defense of large republics. Other liberal republicans understood the problems differently, or denied that there as a problem at all. The intertwined problems of executive-legislative and civil-military relations, the worry that republicanism in large states would end in military rule à la Caesar, Cromwell, or Bonaparte, stimulated continuing work in constitutional theory decades after The Federalist. Accordingly, even among those who endorsed the new logic of faction, institutional remedies for the problems facing large republics remained, with particular dispute over federalism, the makeup of the executive, and the creation of a neutral or conservation-preserving power. This paper aims to broaden our view of the shift in republican constitutional thought beyond Hume and Publius; to bridge the Atlantic gap in our understanding of late 18th-century constitutional thought; and to show the breadth of the rejection of civic republican assumptions as well as the range of thought about institutional design in the era.
New York Times interviewer saddened by teaching of scientific theories:
te-jik points to this New York Times Magazine interview with a Yale economics professor (thanks to Clayton Cramer for the pointer):
[Q:] As a professor of economics at Yale, you are known for creating an econometric equation that has predicted presidential elections with relative accuracy.
[A:] My latest prediction shows that Bush will receive 57.5 percent of the two-party votes. . . .
[Q:] Why should we trust your equation, which seems unusually reductive?
[A:] It has done well historically. The average mistake of the equation is about 2.5 percentage points.
[Q:] In your book "Predicting Presidential Elections and Other Things," you claim that economic growth and inflation are the only variables that matter in a presidential race. Are you saying that the war in Iraq will have no influence on the election?
[A:] Historically, issues like war haven't swamped the economics. If the equation is correctly specified, then the chances that Bush loses are very small.
[Q:] But the country hasn't been this polarized since the 60's, and voters seem genuinely engaged by social issues like gay marriage and the overall question of a more just society.
[A:] We throw all those into what we call the error term. In the past, all that stuff that you think should count averages about 2.5 percent, and that is pretty small.
[Q:] It saddens me that you teach this to students at Yale, who could be thinking about society in complex and meaningful ways. . . .
It saddens a New York Times interviewer that an economics professor is teaching students about what he thinks is a sound scientific theory. Not that the professor is wrong, if he is (which would indeed be cause for sadness). Not that voters are so focused on certain matters that their behavior is so predictable (which some might approve of and some disapprove of). She's sad that the professor is teaching students about such behavior. Funny, I thought that understanding facts (if they are facts) about human behavior is a meaningful addition to one's thinking about society, even if they are facts that New York Times reporters don't much like.
Of course, this also misses the fact that each class in a university is supposed to focus on a particular subject, not deal with society in all its complexity and depth of meaning. Doubtless students learn about lots of other aspects of society in other classes, which may intentionally omit econometrics and focus on other matters. Adding an econometric analysis into the mix gives students a more complex and meaningful picture of society than would be the case if one excluded this analysis.
Oh, and here's something from later in the interview:
[Q:] Are you a Republican?
[A:] [Arch game theory humor omitted. -EV]
[Q:] I don't want to do game theory. I just want to know if you are a Kerry supporter.
[A:] Backing away from game theory, which is kind of cute, I am a Kerry supporter.
[Q:] I believe you entirely, although I'm a little surprised, because your predictions implicitly lend support to Bush.
[A:] I am not attempting to be an advocate for one party or another. I am attempting to be a social scientist trying to explain voting behavior.
[Q:] But in the process you are shaping opinion. Predictions can be self-confirming, because wishy-washy voters might go with the candidate who is perceived to be more successful. . . .
Maybe the journalist is just trying to be provocative here, and the questions don't reveal her own thinking. Still, it seems a bit odd that the questions (1) express surprise that a scholar who is trying to describe the world would reveal (not just in political editorials, but in his scholarship or in his teaching) a truth that he himself finds politically unwelcome, and (2) implicitly criticize the scholar for expressing this truth (since this truth may, heaven forbid, influence people to vote in a way that he dislikes).
UPDATE: Reader Jack Sullivan writes: "If you read Solomon's interviews at the front of the magazine on a regular basis, you'll notice that the questions tend to be fairly jokey (think Jon Stewart or David Letterman type ironic attitude). Certainly not much cause for hand wringing." If this is so — and I don't read those interviews — then I would indeed be much less troubled by the interview.
Alan Keyes on slavery reparations:
Paul Caron (TaxProf) has more on Alan Keyes' slavery reparations plan, including Keyes' attempt to reconcile his plan with his harsh condemnation of reparations proposals in 2002. I'm not persuaded by Keyes' answer, which seems to distinguish the waiving of taxes from cash grants:
Not at all. I have taken a strong position against schemes of extortion from the fellow citizens of people here in America, based on the idea that somehow or another that would be requital for slavery. And I made clear over the years that I think the blood and treasured sacrifice during the Civil War constituted that requital.
But I have also made clear every time I was asked that there was objective damage done to black Americans by the slave system. And there have been frequent efforts in American history not thus far successful to address the wounds that were left by that legacy.
What I have laid on the table repeatedly is a thoroughly Republican, thoroughly conservative approach that is actually borrowed from ancient history in terms of what the Roman empire used to do to respond to damaged communities. You give them tax relief. You give them a tax break to make up for the fact, for instance in this case, the black folks toiled for generations at what was effectively 100 percent tax rate.
And by doing this, you unleash their enterprise. Give them an incentive to work. Give people an incentive to own businesses without taking pennies out of anybody else's pocket, you're able to create an environment where people are encouraged to work and put a strong foundation under themselves instead of putting money in a democracy to dominate their lives that undermines the moral foundations of their families and destroys their economic incentives.
As a matter of fact, it's a thoroughly conservative, thoroughly consistent Republican approach to a very serious challenge.
But if you compare (1) raising taxes on whites to pay for the lowering of taxes on blacks and (2) raising taxes on whites and blacks to pay for cash grants to blacks, it's hard to see how either is any more or less "extortion from the fellow citizens of people here in America, based on the idea that somehow or another that would be requital for slavery" than the other.
Car insurance discounts based on where you drive:
Ted Balaker (Out of Control, Reason Public Policy Institute) writes:
Insurance companies are beginning to monitor customers' driving in exchange for lower rates:
* Progressive will announce its TripSense trial in Minnesota on Aug. 24. Customers who sign up will get a device the size of a Tic Tac box to plug into their cars. The device will track speed and how many miles are driven at what times of day. Every few months, customers would unplug the device from the car, plug it into a computer, download the data and send it to Progressive. Depending on results, discounts will range from 5% to 25%.
* In Great Britain, major insurer Norwich Union will start its Pay As You Drive test in a few weeks. Volunteers will get a device the size of a Palm computer installed in their cars. The gadget will use global positioning satellite technology to track where the car goes, constantly sending information to Norwich Union wirelessly. Cars that spend more time in safer areas will qualify for bigger discounts. . . .
I wonder if technology used by Progressive and Norwich Union could be [broadened] . . . . Perhaps (with the driver's ok) the act of buckling up could be tracked by insurance companies. This approach would also throw a carrot into the mix, for buckling up would be rewarded with lower rates. . . .
Read the rest of Ted's piece for more.
I think this sort of monitoring is a good idea. Naturally, I'd want insurance companies to promise to keep the information confidential; and if I were an insurance company, I'd offer a deal by which people could disconnect the device for some time and lose part of the discount (naturally the fact of the disconnection would itself be interesting information, but less informative than the collected details would have been), perhaps a part related to the time the device is disconnected. But while I realize that such confidentiality can never be perfect -- and certainly if the insurance companies don't promptly throw out the data, a subpoena could pierce the confidentiality -- I think that on balance the benefits of giving more choices to safe drivers and drivers who drive in safe parts of town make the proposals worthwhile.
I realize that some drivers are stuck in bad parts of town because they live or work there, and they're not morally at fault for that. But I don't see why that's relevant. Those drivers will have foreseeably more expenses for which insurance will have to pay. If you make it illegal for insurance companies to distinguish those drivers from other drivers, then the low-risk drivers will essentially be legally required to cross-subsidize the high-risk drivers. I think that's both wrong and economically inefficient. If you want to subsidize drivers who may not be able to afford insurance, subsidize them directly (with the equivalent of food stamps) rather than by requiring the low-risk drivers to subsidize the high-risk ones, whether those high-risk ones are rich or poor. And this goes double if the insurance company does measure easily changeable behavior, such as speeding or seat belt use.
We don't require life insurance companies to charge the same premiums to old people as to young people. It's not the old people's fault that they're old, but they are higher risk than the young, and it would be wrong and inefficient to make young people subsidize the old. (The inefficiency comes because the result will be that young people will buy too little life insurance, since it's a bad deal for them; and the old people will still end up paying high prices, since as young people fall out of the pool, the old people will have to pay more.)
And, yes, I'd also support health insurance companies charging high-risk people more, though I'd want to make sure that the system doesn't discourage the buying of health insurance early in life (or even before your birth, when your parents would buy it for you), when your future health is relatively uncertain, and when you can pool risk with a lot of other people. If we think that we should compensate people with genetic predisposition to disease, or help poor sick people, we should do that directly, rather than by requiring cross-subsidization. And at the very least this should be so as to people whose diseases are in part affected by their lifestyles (smoking, low exercise [like me], obesity, high-risk sports, excessive drinking or drug use, and the like), to the extent that this can be determined.
Finally, I realize that there are some prohibitions on race and sex discrimination in insurance sales that don't make actuarial sense, in that they require people who are known to be higher risk to pool their risk with people who are clearly lower risk. But if they are justified, they are justified because of some special concerns about race and sex discrimination, concerns that shouldn't, I think, carry over to other situations (such as age in life insurance, which is just as much outside our control as race or sex).
White House Press Secretary
calling for restrictions on political speech?
Aaron Swartz points to this press conference:
Q There's a new ad by MoveOn.org that talks about — that criticizes Bush's record in the National Guard. What's your response to that, and what do you say to Harkin, who called Cheney a coward for not serving?
MR. McCLELLAN: We have been on the receiving end of more than $62 million in negative political attacks from these shadowy groups that are funded by unregulated soft money. And the President has condemned all of the ads and activity going on by these shadowy groups. We've called on Senator Kerry to join us and call for an end to all of this unregulated soft money activity. And so we continue to call on him to join us in condemning all these ads and calling for an end to all of this activity. . . .
Q But, Scott, the MoveOn.org ad, back to that. Senator Kerry denounced the ad specifically, saying it's not indicative of their — the way they feel about the Bush service in the National Guard. He specifically denounced the ad, which is something that they're saying the Bush-Cheney campaign has not specifically done about the Swift Boats ad.
MR. McCLELLAN: Let's be clear here. What the senator did was, he said one thing at the same time his campaign was doing another. His campaign went out there and essentially promoted this false negative attack at the same time Senator Kerry was saying he condemned it. The President has condemned all of this kind of activity, and he should join us in doing the same and calling for an end to all of it. Apparently he was against soft money before he was for it. And the President thought he got rid of all of this unregulated soft money activity when he signed the bipartisan campaign finance reforms into law. And so it's another example of — the senator's latest comments are another example of him saying one thing and doing another.
I certainly hope that the Administration is not indeed calling for "an end" — a legal end, via an extension to the Bipartisan Campaign Reform Act — to people pooling resources to express their political views, including their views about candidates. You can call it "soft money," but it's speech, of the sort that political movements such as the antislavery movement, the temperance movement, the civil rights movement, and many other movements (good and bad) have engaged in. Without such speech, who gets to speak effectively, in the large traditional media? The media itself; the parties; and the politicians who have the infrastructure to raise hard money in $2000 chunks; and a few super-rich people (unless they're shut up, too). People who care deeply about a subject, enough to pool even tens of thousands of their dollars with others who care equally strongly, would be shut out.
This sort of speech doesn't involve campaign contributions to officeholders, which Buckley v. Valeo has held can be restricted (in part precisely because such restrictions leave open alternative channels, such as independent expenditures). It isn't even corporate expenditures, which Austin v. Michigan Chamber of Commerce and McConnell v. FEC held — wrongly, I think — to be restrictable. This is independent spending on political expression, which Buckley specifically held was constitutionally protected, by a 7-1 vote that include liberals, moderates, and conservatives in the majority (the only dissenter was Justice White). I certainly hope that McClellan's views don't represent the policy agenda of the White House. (For a more detailed argument on why such speech should be protected, see here.)
UPDATE: Unfortunately, President Bush seems to be taking the same view: G. BUSH: Well, I say they ought to get rid of all those 527s, independent expenditures that have flooded the airwaves.
There have been millions of dollars spent up until this point in time. I signed a law that I thought would get rid of those, and I called on the senator to -- let's just get anybody who feels like they got to run to not do so.
KING: Do you condemn the statements made about his...
G. BUSH: Well, I haven't seen the ad, but what I do condemn is these unregulated, soft-money expenditures by very wealthy people, and they've said some bad things about me. I guess they're saying bad things about him. And what I think we ought to do is not have them on the air. I think there ought to be full disclosure. The campaign funding law I signed I thought was going to get rid of that. But evidently the Federal Election Commission had a different view. A reader suggested, in response to the original post, that maybe McClellan was calling for "an end" simply in the sense of urging people not to do this sort of thing. But the references to thinking that BCRA would have gotten rid of such speech strongly suggest that "an end" means a legally mandated end. Bad stuff.
Cool federalism debate
(in the context of assisted suicide) at Southern Appeal, between Steve (Feddie), Ramesh Ponnuru, and Jonathan Adler.
Vote Suppression in Florida:
Stuart Buck investigates continued allegations of voter suppression in Florida during the 2000 election.
Migration on the Move:
Earlier this week I heard a provocative talk on migration by Philip Martin of the University of California at Davis. In short, Martin argued that pressure for international migration will increase in coming decades for both demographic and economic reasons. Incomes are substantially higher, and population density is lower, in industrialized nations, making them more attractive places to live than many developing countries. Moreover, the income gap between rich and poor nations appears to be on the rise. At the same time, technology and globalization have made it easier for people to cross borders. Combined, these factors suggest a substantial increase in global migration.
Efforts to restrict or control immigration have generally failed, Martin suggested, in part because "people are very difficult to manage" and they fail to address the causes of population shifts. If anything it will be even more difficult to control national borders in the future than it is today, particularly without increased economic development in the developing world.
Martin also suggested that escalating immigration, legal and otherwise, could force industrialized nations to scale back their welfare programs. This could improve assimilation, however, as participation in the labor force is a powerful integrative force. I don't know much about immigration policy, but it was a provocative talk.
Thursday, August 19, 2004
ExpressO:
(This post is for authors of law review articles, and for law review editors.)
I used Berkeley Electronic Press's ExpressO service ( FAQ here) to submit my last article, and I was quite happy with it — I basically selected the journals I wanted to submit to, uploaded my paper, my cover letter, and my list of publications, and they did all the work. There were a few small glitches, but all in all it went well.
And people who don't have secretaries who do the address location, copying, labeling, and envelope stuffing for them should find ExpressO indispensable. It's much better to pay $2 per electronic submission and $6.50 per paper submission than to go through all the hassle yourself, especially since nonlawprofs should typically submit to 50-100 journals (at least) to get a good shot at getting accepted. Plus some schools subsidize their students' ExpressO submissions — check whether yours does.
Kaimi at Tutissima Cassis points out, however, that several journals cannot be submitted to via ExpressO, including but not limited to: Alabama Law Review
Cardozo Law Review
Connecticut Law Review
George Mason Law Review
Georgia Law Review
North Carolina Law Review
Notre Dame Law Review
Ohio State Law Journal
Tennessee Law Review
U.C. Davis Law Review
University of Colorado Law Review
University of Miami Law Review
Washington Law Review This leads me to offer four pieces of advice:
- As I mentioned above, submit via ExpressO.
- If you want to be thorough, remember to submit to the above journals (many of which are in the Top 50) on paper.
- If you're an editor at one of the above journals, get on the ExpressO list, or else you're going to lose out on a lot of submissions. Some people will still submit to you on paper, but other people will just skip you and submit to the other journals.
The downside is that you'd have to accept electronic submissions; the ExpressO people tell me that they only do paper submissions to a few journals, mostly those in the Top 20 but also a few that I suspect are included for historical reasons. They don't want to do paper submissions to more journals, even though they charge more for the paper submissions, because they're short on manpower and doubt that the extra money will let them hire more people (and I assume that they don't think it's feasible to hike the paper submission costs much above the $6.50 to cover those extra costs). But while accepting electronic submissions can be something of a hassle (since you'd have to print out copies yourself), it can also prove to be a benefit, since it might let you organize the submissions more easily. And more importantly, I think you need to do that to compete effectively.
- Finally, if you're an editor at one of the journals that get paper submissions (Arizona, California, Columbia, Duke, Emory, Florida, Georgetown, Harvard, Michigan, Minnesota, NYU, Northwestern, Southern California, Stanford, Texas, UCLA, U Chicago, U Pennsylvania, U Pittsburgh, Vanderbilt, and William & Mary), also talk to your people about switching to electronic submissions. True, you do get the submissions in any event, and few people will be stymied by the extra $4.50. But you'll get them several days after your competitors who get electronic submissions.
Those competitors may give offers on some articles — likely the hottest ones — just a day or two after they get those articles electronically, and before you even get the paper copies in the mail. That means that when the author tries to shop up to you, you might not be able to respond quickly enough, and you might thus end up losing out on a great article. True, some submitters may adapt to this by using ExpressO to submit to you on paper, and then using it to submit to the other journals electronically a few days later, so it lands in everyone's e-mailboxes and mailboxes simultaneously. But most submitters won't do that; and as a result, your competitors will steal a march on you. You're law students, you're law review editors, you're super-competitive, no? So make sure you're competitive on this.
Speech in Chicago:
I will be speaking in Chicago on Monday at noon on behalf of the Chicago Lawyers' Division of the Federal Society. The topic: "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws." For details and RSVP contact CROHRBAC at skadden.com.
Self-Hating:
Eric Muller (IsThatLegal?) points out that some people may indeed be "self-hating Xs": "[B]ecause the person's X-ness is very important to him or her yet also at some subconscious level causes or has caused him or her a great deal of discomfort, he or she denies and even flees from his or her X-ness[, and m]aybe even disapproves of or is somehow repulsed by visible X-ness in others."
Doubtless this is so for some people, and if you really know a person well enough -- preferably from personal acquaintance, but possibly from serious observation of his public comments -- you might be able to legitimately criticize the person as "self-hating." But my point, which I stand by, was that many people use the "self-hating X" locution without any real evidence of actual self-hatred.
Rather, the term tends to function (not always, but very often) as a cheap smear, or at best as an entirely unsupported inference that any X (Jew, homosexual, Asians) who might find flaws in common attributes of fellow Xs must surely exhibit the psychological profile that Eric describes. So if you do have evidence that someone really is self-hating, that's fine. But in my experience, very few uses of this term actually rest on such evidence.
Grokster:
The Ninth Circuit has just affirmed a district court's decision that the distributors of Grokster, a peer-to-peer file-sharing service, weren't liable for contributory or vicarious copyright infringement.
My thoughts, which unfortunately probably presuppose a knowledge or reason to know of the legal structure of contributory infringement (which generally requires knowledge of specific illegal use or lack of substantial noninfringing uses, plus material contribution) and vicarious liability (which generally requires more or less direct financial benefit, plus right and ability to control, but that's all very terse shorthand for more complex doctrines): The Ninth Circuit decision is right on the bottom line, and on most of the analysis, but mistaken when it finds that Grokster didn't "materially contribute" to the infringement.
Providing a tool that makes an action easier is indeed material contribution. Gun manufacturers and distributors do materially contribute to crime; alcohol manufacturers do contribute to drunk driving, and car manufacturers to speeding; Grokster does materially contribute to infringement. The point is that all these products are dual-use products, usable for good as well as for ill. The distributors are also materially contributing to law-abiding behavior, and they don't know which particular user is going to act lawfully and which unlawfully (I think the Ninth Circuit was quite right on the knowledge prong). The distributors' actions therefore aren't banned, because the bans would interfere with lawful uses as well as unlawful ones.
On the other hand, if the knowledge element is satisfied — if, for instance, I sell a gun to someone knowing that he is going to use it for criminal purposes, or sell someone a device knowing that he will use it to infringe — it seems to me that the case for tort liability or in some situations even criminal liability is very strong. Selling such devices does help the person commit the tort or the crime, and there's little reason to shield such sales from liability when the seller knows the would-be tortfeasor's or criminal's intentions. See, e.g., RESTATEMENT (SECOND) OF TORTS § 876 ("For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he . . . (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance . . . to the other so to conduct himself"). (In criminal cases, some states allow aiding and abetting liability only when the actor's *purpose* is to help someone else to commit a crime, but other states allow such liability, or special criminal facilitation liability, simply based on a finding of knowledge).
So, again, I'd agree with the Grokster bottom line — I just think that it was mistaken on the material contribution element.
Republican Senatorial Candidate Alan Keyes
is now supporting reparations for slavery (thanks to Dan Gifford for the pointer):
Keyes proposed that for a generation or two, African-Americans of slave heritage should be exempted from federal taxes — federal because slavery "was an egregious failure on the part of the federal establishment." In calling for the tax relief, Keyes appeared to be reaching out to capture the black vote, something that may prove difficult to do, particularly after his unwelcome reception at the Bud Billiken Day Parade Saturday. . . .
No word on whether Americans whose ancestors died fighting in the Civil War would get special treatment as well, or whether having a slaveowner ancestor would double your tax bill. For a forceful argument against reparations, read this piece from 2002, which includes this language:
Those responsible [for reparations lawsuits] propose to settle the accounts of slavery leaving the Civil War out of the equation — complete and utter nonsense. The price for the sin of slavery has already been paid, in blood. . . .
Pettifogging lawyers and dishonest scholars will always be able to carp selectively and ignorantly about the warts upon our body politic.
But the truth of the Civil War is that the terrible price for American slavery has been paid, once for all, by the American people's deliberate acceptance of their duty to pay it when, in God's providence, Southern intransigence brought it due. . . .
The author of that piece? Alan Keyes.
Technology Liberation Front:
(No it has nothing to do with the Front for the Liberation of Technology, damn it.) Some of the leading lights in libertarian tech policy -- Adam Thierer (Cato), Jim Harper (Cato), Braden Cox (CEI), Sonia Arrison (PRI), Solveig Singleton, James Gattuso (Heritage), Wayne Brough (Freedom Works), Tim Lee (Cato), and Thomas Pearson (Cato) -- have now started a new blog, the Technology Liberation Front. Check them out!
The perils of being a passive law student --
a tale of woe, with a moral: I've just been corresponding with a reader who wants to get into law teaching. His problem — and it's a problem shared by many law students and young lawyers who want to get clerkships, fellowships, and other interesting jobs in government or in public interest law — is that he needs letters of reference from professors, and he's not sure he can get any.
Why is that a problem, you ask? He got very good grades in many classes; why not ask the professors who gave him those grades? Because those professors have no idea who he is.
If he calls them, they'll say that they'll gladly write a letter saying that he wrote a very good exam and thus got a very good grade. But a letter like that is worth little; it simply repeats what the transcript already shows. In his words (though pieced together from several e-mails):
[I had n]o significant relationships with any of my law professors ―- I was that guy who got A's without saying anything in class, and sometimes without regularly attending class. . . .
Although it sounds terribly arrogant (and probably is), I only talked in law school when I was tired of watching other students flail about. I'm sure part of it was my visceral distaste for the "gunners" in my class ―- I tended at the time to be so laid back that a rumor went around that I was an alcoholic and that the iced tea I brought to class every day was laced with whisky [EV: I infer from the person's message that the rumor was indeed false].
In any event, I really missed out on a huge chunk of the law school experience by shying away from academic engagement. Not only did I cheat myself out of full value, but I really did put myself behind [in the search] for academic jobs. . . .
Maybe my sad story can somehow help others. -sniff-
Look, if you don't want to speak in class except when called on, and if you don't want to talk outside class to your teachers, that's fine. I do think that students' speaking in class tends to help them understand the material better, and get more interested in it. It also helps the professor and the other students, precisely because then class discussions aren't just the usual five or ten talkers. But, other than in seminars, you aren't required to participate (again, except when called on), and you certainly aren't required to try to be friendly with us teachers. If you want to be the silent type, be our guest.
But understand that if you don't let the professors get to know you, you can't get the benefits that flow from their getting to know you: letters of recommendation, phone calls to prospective employers, and so on. Access to such personal help is one of the great advantages that students can have. You can only get it, though, if you build something of a personal relationship with the people from whom you'll want the help.
So, first, make efforts to talk in class. Don't talk just for the sake of talking, but surely you'll have some interesting questions — ask them. You'll also have some interesting answers that others in the class aren't coming up with — give them. Don't be afraid of sounding stupid to your classmates. Very few of the questions and comments that I've heard in class are at all stupid or embarrassing (yes, a few are, but really very few); and if you aren't a frequent talker, your classmates will be glad to hear a new voice, instead of listening to the usual suspects.
And, second, try to get to know the professors — not all of them, but just the ones you like — outside class. If you have questions, go to their offices to ask them. Go out to lunch with them; many schools actually provide funds for teachers to take their students to lunch, so both your and the teacher's meal could get paid for. And many of your teachers are actually pretty interesting people, who can say interesting and helpful things both about the class's subject matter (if that's what you ask them about) or about their other experiences (if that's what you prefer).
Again, you don't have to do it. If you think your professors are utter bores, and speaking in class is foolish, that's fine. But if you don't make an impression on your professors (except on the exam), you can't expect to get the benefits that flow from making a good impression.
UPDATE: A reader writes: Your comments about the perils of being a passive student are true for more than just law students. I'm an undergraduate engineering student and by being engaging with my professors, and interacting with them on a personal level . . ., I have developed relationships that have paid off well in the professional and academic world. One of my professors recommended me for an internship and now I have a permanent job at the company. Another is an adjunct professor who works during the day for NASA. Through him I was able to secure a fellowship for when I attend graduate school in the spring.
Enough about me though. This is really a life lesson about the power of interpersonal relationships. Hopefully people will learn the value of just being basically friendly to others.
ACS on Enemy Combatants:
Kate Martin and Joe Onek offer an ACS Issue Brief on enemy combatants. An excerpt:
The administration claims that the conflict with al Qaeda is a war and that therefore reliance on the criminal law is misplaced. It then claims that the conflict is a new kind of war, in which the traditional law of war, including the Geneva Conventions, does not apply. The President further claims, as Commander in Chief, the authority to write new rules for the conflict and to do so without Congressional approval. Finally, the administration claims that because this is a war, the usual role of the courts in enforcing protections against arbitrary deprivations of individual liberty must be suspended.
The administration's legal framework needs to be examined piece by piece. There are in fact circumstances in the conflict with al Qaeda - e.g. the invasion of Afghanistan - where the use of military force is both lawful and appropriate, and in such cases the law of war governs. But when the courts in the U.S. are open and the U.S. military is not engaged in combat inside the U.S. criminal law is the appropriate, adequate and constitutional means for dealing with alleged al Qaeda associates found in this country. In no instance does the Constitution give the President the authority to write new rules for this conflict on his own. I haven't read the rest of it yet, but it sounds very interesting. Thanks to Larry Solum for the link. (By the way, publishing an issue brief such as this seems to be another idea the ACS has borrowed from the Federalist Society. For a take on similar issues presented under the auspices of the Federalist Society, see here.)
Political Mudslinging:
Max Boot has a nice piece on modern political mudslinging, or comparative lack thereof.
Wednesday, August 18, 2004
Judge Kozinski on slippery slopes and privacy:
As I mentioned below, a Ninth Circuit en banc panel has just upheld the collection of DNA from people who are on probation after having been convicted of a crime. Judge Kozinski was one of the dissenters, and one of his arguments was that the majority's result could lead to requirements that the DNA of everyone, not just of convicted felons, be kept in a government-run database.
This is a classic slippery slope argument -- the seemingly appealing decision before us today (appealing because it's limited to criminals) can lead to a much more troublesome decision in the future. Here's how he crafts the argument (most citations omitted):
This isn't an issue we can leave for another day. Later, when further expansions of CODIS are proposed, information from the database will have been credited with solving hundreds or thousands of crimes, and we will have become inured to the idea that the government is entitled to hold large databases of DNA fingerprints. This highlights an important aspect of Fourth Amendment opinions: Not only do they reflect today's values by giving effect to people's reasonable expectations of privacy, they also shape future values by changing our experience and altering what we come to expect from our government. A highly expansive opinion like the plurality's, one that draws no hard lines and revels in the boon that new technology will provide to law enforcement, is an engraved invitation to future expansion. And when that inevitable expansion comes, we will look to the regime we approved today as the new baseline and say, this too must be OK because it's just one small step beyond the last thing we approved. See Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1077-1114 (2003). My colleagues in the plurality assure us that, when that day comes, they will stand vigilant and guard the line, but by then the line -- never very clear to begin with -- will have shifted. The fishbowl will look like home.
Anyone who doubts that CODIS will expand, prodded by the voracious appetite of law enforcement, has only to consider the growth of fingerprint databases. In 1924, when J. Edgar Hoover became head of what was to become the FBI, the Justice Department's fingerprint files contained only prints of those who had at some point passed through the criminal justice system. Hoover, who favored universal fingerprinting, moved to expand the database and aggressively lobbied local law enforcement officials to submit prints to the FBI. He took a further step in 1929 and began fingerprinting all civil servants. The Alien Registration Act, passed in 1940, eventually delivered over a million prints to the FBI. Today, the FBI's Integrated Automated Fingerprint Identification System contains the fingerprints of over 47 million people, including prints "acquired related to a background check for employment, licensing, and other non-criminal justice purposes" and "submitted voluntarily by state, local, and federal law enforcement agencies." Several states require fingerprints of all drivers' license applicants. California all by itself has the prints of over 22 million drivers' license holders on file, as well as the prints of lawyers, and certain welfare recipients. Not all these fingerprint databases are currently in searchable form, but given our improving ability to store biometric identifiers electronically, it's only a matter of time.
Because the great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence ushered in by Katz v. United States, 389 U.S. 347 (1967), it proceeded unchecked by any judicial balancing against the personal right to privacy. As a consequence, we have become accustomed to having our fingerprints on file in some government database. The suggestion that law enforcement agencies, including the FBI, must destroy the fingerprints of those who were wrongfully arrested and booked, and were later released, would today be greeted by reactions ranging from apathy to a disdainful snigger. Why? Because we have come to accept that people -- even totally innocent people -- have no legitimate expectation of privacy in their fingerprints, and that's that.
(Judge Kozinski also points out that while the mandated DNA collection applies only to people on probation after having been convicted of a crime, the DNA will be retained not just during their probation, but also after the probation is done and even if all their civil rights are legally restored.)
Of course, the slippery slope argument is forceful only if you think the bottom is bad. Judge Kozinski does: "Perhaps my colleagues in the plurality feel comfortable living in a world where the government can keep track of everyone's whereabouts, or perhaps they believe it's inevitable given the dangers of modern life. But I mourn the loss of anonymity such a regime will bring." I probably disagree (for reasons that I don't have the time to get into now).
But I think the slippery slope argument is indeed powerful, because many people would indeed dislike what's at the bottom of the slope. The real question is how to convince those people (who approve of such restrictions on convicted criminals' privacy but would disapprove of such restrictions on law-abiding citizens' privacy) that the slippage is indeed likely to happen -- that this result they like on its own should indeed be rejected for fear that it will lead to something worse in the future. Kozinski's opinion strikes me as an excellent example of how such a concrete, forceful argument can be made (and not just because of the law review article he cites).
Oh, and I think "the fishbowl will look like home" line is a classic.
Second Amendment footnote:
The Ninth Circuit en banc five-Judge plurality opinion upholding DNA collection from probationers has this material in n.28 on pp. 11459-60 (accompanying the text "[T]he Court has recognized that 'those who have suffered a lawful conviction' are properly subject to a 'broad range of [restrictions] that might infringe constitutional rights in free society,'):
In Morrissey v. Brewer, the Supreme Court observed:
Typically, parolees are forbidden to use liquor or to have associations or correspondence with certain categories of undesirable persons. Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or living quarters, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to the parole officer to whom they are assigned and sometimes they must make periodic written reports of their activities.
. . . Beyond these restrictions, parolees and probationers convicted of serious crimes are denied the right to vote by most states. . . . In addition, their Second Amendment rights are severely limited [citing the federal ban on felons possessing firearms].
Nothing much, I realize — I doubt that any future panel would feel remotely bound by the implication that individual people have Second Amendment rights, and that bans on firearms possession would severely limit such rights. (This is especially so since judges often join other judges' opinions without fully endorsing every tangential comment in a footnote — there's something of a collegial norm against joining judges' being too picky or micromanaging, though technically a join is indeed supposed to represent full agreement.)
Still, it's an interesting item, which might eventually help remind other judges that there is a substantial strain of judicial opinion that the Second Amendment secures a right of the people just as much as the First and Fourth Amendment do.
U T Law School Emerging Scholars Program:
Via Brian Leiter, I learn that University of Texas School of Law has instituted a fellowship program for aspiring law professors. Sounds like a great opportunity:
The ESP Fellows will be treated, in many respects, like regular tenure-track faculty, but with reduced teaching loads and without administrative obligations. Each Fellow will teach one course per semester, although for at least one semester that requirement can be satisfied by the teaching of a seminar. Fellows will be invited to participate fully in the law school's rich intellectual life, including faculty workshops, colloquia and conferences. Each ESP Fellow is expected to present one or more research papers to the faculty in a workshop series during the Fellow's time in residence.
Closely related law professors and closely related Supreme Court law clerks:
Prof. Laura Kalman at UC Santa Barbara is compiling (1) a list of law professors who are closely related by blood (parent-child, sibling-sibling, aunt/uncle-niece/nephew, grandparent-grandchild, but probably not any more distant than that), and (2) a list of Supreme Court clerks who are likewise closely related by blood. (She's not looking for married couples.)
If you have some definite information on this, please e-mail Prof. Kalman at kalman at history.ucsb.edu. Please include as the subject line the text
Lawprofs: NameA / NameB
or
Clerks: NameA / NameB
for instance
Lawprofs: Akhil Amar / Vik Amar
or
Clerks: Sarah Cleveland / her father
(though in the last case, "Clerks: The extremely cool Sarah Cleveland / her father" would also qualify, and naturally, if you have the father's name, that would be better yet). This will let Prof. Kalman sort the submissions more effectively.
Also, in the body of the message, please include (for professors) the schools at which the professors teach or taught and (for law clerks) the Justices for whom the clerks clerked. Please do not send the messages to me; send them to kalman at history.ucsb.edu .
Bank Robbery:
The Washington Post has a very interesting and comprehensive article in yesterday's edition about the dynamics of bank robberies -- how people do it, how banks react, and how the criminal justice system responds.
Colorado elector-splitting proposal
might swing the outcome of the Presidential election -- and might yield yet another controversial post-election lawsuit. Lawprof Peter Shane has a detailed piece on this; here's an excerpt:
On August 2, 2004, the Colorado Secretary of State approved for inclusion on the November, 2004 state ballot a measure that would revise Colorado's allocation of electoral votes. Under the proposed measure, Colorado would become the first and only state to allocate its electoral votes proportionately among the Presidential candidates. Maine and Nebraska, the only states that currently depart from the winner-take-all unit rule, allocate an elector to the victor in each congressional district, with a bonus of two additional electors going to the plurality winner of the overall state vote. Under the terms of the Colorado initiative, the new rules would, if approved, take effect with the casting of electoral votes in the 2004 election.
Championed chiefly by Colorado Democrats, this initiative -- if approved and upheld -- could well be enough to swing the presidential election. Colorado is currently rated in the independent Cook Political Report as "leaning Bush." If the state's nine electoral votes, however, split 5-4 with Bush over Kerry, Bush's Colorado victory might be insufficient to offset Kerry victories in the winner-take-all states. For example, had the initiative been enacted prior to the 2000 Election, Al Gore would presumably now be running for re-election.
Of course, there is no way of guaranteeing what the impact of a Colorado change might be. Senator Kerry might actually win Colorado outright, but lose in Oregon -- a current "leans Kerry" state with a 7 electoral vote prize. Under such a scenario, limiting Kerry's Colorado electoral vote edge to a single vote might swing the election to Bush. . . .
Go here for more analysis, including a brief discussion of some of the legal objections that could be raised to this.
Coloradans who are interested in maximizing the power of Colorado, by the way, should certainly vote against the proposal: By making the likely swing in the Colorado vote just 1 elector (5-4 vs. 4-5, which would be the case so long as each candidate gets over 3.5/9=roughly 39% of the vote), it will make candidates pay almost as little attention to Colorado as they do to the states whose outcome is a foregone conclusion. Under the current system, though, if Colorado is at all close, the potential swing would be 9 electors, which is pretty significant.
Of course, Coloradans could also vote from a perspective of maximizing the likely success of their preferred presidential candidate, in which case pro-Kerry voters should vote yes and pro-Bush voters no. Finally, Coloradans could vote from a perspective of what's the theoretically morally right answer -- but I agree with Prof. Shane that even if this is a sensible question to ask on the national level, I doubt that it makes sense on the state level, since whatever one thinks is the theoretically best result, having one state change its views won't really bring us closer to that result (except insofar as the state can start a cascade among other states, but I doubt that this will happen).
Naturally, all this supposes that voters are thinking "How should I vote assuming my vote will make a difference" -- a not uncontroversial position, given that the chances of any particular vote making a difference are vanishingly small, but I don't want to get into that debate again now.
Amusingly apt term of the day,
though largely obsolete and therefore extra amusing (because it's not that familiar): Alligator pear.
Corporate Admission Against Interest Revisited:
Last week I wrote about a proposed Bush policy to allow increased levels of coal dust at some mine sites and require that employees wear respirators. At first blush, such a policy might make sense -- if workers are not exposed to higher dust levels because of the respirators, there's no problem. The respirator manufacturer 3M criticized the policy change, however, suggesting that it's probably a very bad idea. After all, why wouldn't 3M support a policy change that would increase the sales of its product?
Quite a few readers suggested there may be more to the story. Indeed, as I speculated in the initial post, 3M appears to have a very good reason to discourage the policy change: fear of liability. As recently chronicled in U.S. News & World Report, 3M already faces substantial litigation alleging that its respirators fail to provide adequate protection from some contaminants. Moreover, I've been told there is a relatively high rate of respirators failing due to either improper use or imperfect fitting (or some combination thereof). So, it's possible that the rule would, in practice, result in greater coal dust exposure. And even if it did not, 3M might be wary of promoting its respirators in an industry with high rates of worker illness, in this case black lung disease, and therefore a potential for substantial liability exposure.
Thanks to all those who wrote in on this matter -- and there were alot of you.
Flaws in prominent cryptographic algorithms?
I can't evalute the accuracy or the importance of this report (and I doubt I'll blog much by way of follow-up), but I thought I'd pass it along for those who are interested. From news.com.
UPDATE: Henry Farrell points out that computer science professor Ed Felten (Freedom to Tinker) has several posts on this; here are the first and the last. Felten's bottom-line: "Where does this leave us? MD5 [one prominent algorithm] is fatally wounded; its use will be phased out. SHA-1 [another] is still alive but the vultures are circling. A gradual transition away from SHA-1 will now start. The first stage will be a debate about alternatives, leading (I hope) to a consensus among practicing cryptographers about what the substitute will be."
Oh, and thanks to BNA's Internet Law News for the original tip.
USA Basketball Woes:
I would add two additional observations on the USA Olympic basketball team. First, I read this morning that Allen Iverson (29) is the oldest member of the team. While they are all great athletes, there is not much maturity or leadership. Second, everyone on the team is so used to being a star and "go-to" guy, that few are able to play team ball. Substitute a few of the juvenile stars with solid role-players and I bet you'd instantly improve the team.
U.S HOOPS DODGES A BULLET:
Wow, did the U.S. Basketball team look terrible yesterday at the Olympics. I missed the Puerto Rico game assuming that the U.S. would waltz through as usual, but watched yesterday once I learned there was some drama to this. This team is a joke--can't shoot, can't pass, and can't play team defense. Michael Wilbon's column today reports that they missed 15 straight shots at one point--during warm-ups! They really do just dribble around and throw up off-balance runners and have no clue how to play team defense. As a fan of college ball who rarely watches the NBA, it is amazing how much the quality of fundamental basketball has declined due to all those guys bypassing college and going to the NBA. The varying styles that teams play in college, I think, would help these guys to learn how to adapt to the different styles that these international teams throw at them.
As a soccer fan, it is interesting to compare the experiences of the U.S. in soccer versus basketball. In basketball, the rest of the world has worked hard and selflessly and has gained on the spoiled, fundamentally weak U.S. team. In soccer, a youthful, talented, driven U.S. team with a chip on its shoulder keeps gaining and gaining on the rest of the world. The U.S, is now 7th in the FIFA World Rankings (ahead of England, Italy, Argentina, and Portugal, among others), and advanced beyond many traditional powers at the last World Cup.
So here's my suggestion: (1) only send to the Olympics players who have 3 or more years of college basketball experience and have shown they can actually learn how to play a team game and are fundamentally sound, and (2) stop supporting guys like Rip Hamilton, Jason Kidd, and Shaq who refuse to play for the national team. In soccer, it is considered a great honor for players to play in the World Cup; American basketball players need to feel the same sense of urgency about the Olympics. Meanwhile, I'll be tuning into the U.S. Soccer team's World Cup qualifying game against the Reggae Boyz tonight.
WINE WARS, PART 6—THE WILSON ACT:
As noted in Wine Wars, Part 5, the alcohol jurisprudence of the 19th Century had the peculiar effect of discriminating in favor of out-of-state alcohol production. The Supreme Court had blessed the power of states to exercise their police power over local affairs to enact state prohibition or to allow local jurisdictions to exercise a "local option" to ban the production and consumption of alcohol, including even the production for personal use. On the other hand, the Supreme Court held that under the "Original Package" doctrine interpretation of the Commerce Clause, dry states could not prohibit the delivery of alcohol in its original package from out-of-state sellers and manufacturers. Because of the Original Package doctrine, the States were unable to regulate imported alcohol until the first sale in the State or until it was removed from its original package. As a result, states could regulate saloons and bars, but could not regulate even the resale of liquor that remained in its original package.
Congress responded to this anomaly by passing the Wilson Act, 26 Stat. 313 (1890), which provides that intoxicating liquors or liquids transported into any State or remaining therein for use, consumption, sale or storage, shall, upon arrival, be subject to the laws of the State "enacted in the exercise of its police power to the same extent and in the same manner as though such liquids or liquors had been produced in such State * * *, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise."
The language permitting States to regulate imported liquor "to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory," thereby eliminated the privileged status of interstate sellers under the Leisy and Bowman. But the Wilson Act also retained the long-standing prohibition on state discrimination against interstate commerce that was laid down in Walling v. Michigan; the Act was intended only to empower the States to impose the same regulation on imported alcohol as domestic products, not to discriminate against out-of-state products.
In Scott v. Donald, 165 U.S. 58, 100 (1897), the Supreme Court held that the purpose of the Wilson Act was to resolve the conflict between the federal Commerce Clause and the state's police power by closing the gap in the state's police power created by the original package doctrine. Thus the Wilson Act built upon the foundation of the state's police power to regulate alcohol—both the state's power to regulate local affairs under the police power was unaffected, but the traditional limitations on the police power that were recognized in Walling remained. Thus, the Court noted in Donald that the courts must first determine whether a given state law is a lawful "exercise of its police power," but even if it is, it must still comport with the Constitution. "We cheerfully concede that the law in question was passed in the bona fide exercise of the police power. *** But, as we have had more than one occasion to observe, our willingness to believe that this statute was enacted in good faith, and to protect the people of the state from the evils of unrestricted importation, manufacture, and sale of ardent spirits, cannot control the final determination, whether the statute, in some of its provisions, is not repugnant to the constitution of the United States." The court also noted that the law did not completely prohibit the manufacture or sale of alcohol, it simply discriminated against interstate sellers.
As to the effect of the Wilson Act, the Court observed, "That law was not intended to confer upon any state the power to discriminate injuriously against the products of other states in articles whose manufacture and use are not forbidden, and which are, therefore, the subjects of legitimate commerce. When that law provided that 'all fermented, distilled or intoxicating liquors transported into any state or territory, remaining therein for use, consumption, sale or storage therein, should, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and should not be exempt therefrom by reason of being introduced therein in original packages or otherwise,' evidently equality or uniformity of treatment under state laws was intended."
The Court continued, "The question whether a given state law is a lawful exercise of the police power is still open, and must remain open, to this court. Such a law may forbid entirely the manufacture and sale of intoxicating liquors, and be valid; or it may provide equal regulations for the inspection and sale of all domestic and imported liquors, and be valid. But the state cannot, under the congressional legislation referred to, establish a system which, in effect, discriminates between interstate and domestic commerce in commodities to make and use which are admitted to be lawful."
As Scott v. Donald indicated, therefore, the power to regulate alcohol remained grounded in the state police power, and the Wilson Act was intended to plug a hole that had been caused by the Original Package doctrine. Nothing in the Wilson Act suggested that Congress intended to overturn the longstanding principle recognized in Walling or to create a new and unprecedented power for the states to erect discriminatory barriers to interstate commerce or to treat out-of-state alcohol worse than in-state.
Subsequent court decisions, however, undermined the Wilson Act by barring dry states from prohibiting the interstate shipment of alcohol directly to consumers, so long as the alcohol was in its original package and was intended for purely personal use and not for resale. In re Rahrer, 140 U.S. 545 (1891); Rhodes v. Iowa, 170 U.S. 412 (1898). This led to the enactment of the Webb-Kenyon Act, which will be reviewed in the next post.
Incidentally, the Wilson Act remains in effect today, and Scott v. Donald has never been overturned or questioned. Presumably, therefore, if the nondiscrimination principle of the Wilson Act and Scott was intended to have been overturned by Webb-Kenyon or the 21st Amendment, one would expect to find some reference to it in those enactments.
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