The Volokh Conspiracy

It's a bit late, but I thought I'd pass along the always amusing Supreme Court summary, from Mark Stancil at Baker Botts. It's funny and actually pretty informative:

Hoping to put the "win" back in Erwin, Professor Erwin Chemerinsky (formerly of USC, now slinging fed. courts and con. law at Duke) scored his second grant of the Term with Van Orden v. Perry, Gov. of Texas (03-1500). The question presented is whether a large monument, six feet high and three feet wide (eight cubic cubits for our Biblical scholars), presenting the Ten Commandments, located on government property between the Texas State Capitol and the Texas Supreme Court, is an impermissible establishment of religion in violation of the First Amendment. The Fifth Circuit descended on Chemerinksy's argument like a plague of locusts, concluding that the display advanced a valid secular purpose and "would look nice with a gun rack, too." If you believe what you read on the Internet (and, when you're as lazy as I am, you have no choice) this is the Court's first foray into the Commandments game in 20-plus years.

Complementing Van Orden (but not consolidated with it), the Court granted cert. in McCreary County, KY v. ACLU of Kentucky (03-1693), which asks: (1) whether the Establishment Clause is violated by a privately donated display on government property that includes eleven equal size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only one of the framed documents is the Ten Commandments and the remaining documents and symbols are secular; (2) whether a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by the court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols; (3) whether the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence; (4) whether a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion. The Sixth Circuit found the display unconstitutional, but it's tough to see the Court affirming here without sandblasting Moses and the Commandments off the frieze in the Court's argument chamber.

Appropriately, these two cases are likely to be resolved in accordance with I Kings 3:16-28. ("And [O'Connor] said: 'Fetch me a sword.' And they brought a sword before [O'Connor]. And [O'Connor] said: 'Divide the living child in two, and give half to the one, and half to the other.'").

Rounding out the day's Establishment Clause action is Cutter v. Wilkinson, Dir. Ohio D.O.C. (03-9877) - Whether the institutionalized-persons provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc-1, are valid under the Establishment Clause of the First Amendment. As relevant here, RLUIPA addresses the religious accommodations required for prison inmates.

Orff v. United States (03-1566) involves the slightly less exciting dispute over whose salmon was gored when a federal irrigation project was cut back to accommodate the Endangered Species Act. The Ninth Circuit concluded that petitioners, farmers who preferred that water flow to their crops rather than frisky fish, are not entitled to sue under the agreement governing the federal irrigation district. The question presented is whether the farmers are "intended" third-party beneficiaries of their irrigation district's water service and repayment contracts with the U.S. Bureau of Reclamation and therefore entitled to sue for breach thereof, or whether they are merely "incidental" third-party beneficiaries and therefore not so entitled?

Exxon Mobil Corp. v. Saudi Basic Industries Corp. (03-1696) comes to us from the Third Circuit and asks the age-old question: May the Rooker-Feldman doctrine, which bars lower federal courts from conducting de facto appellate review of decisions by state courts, be expansively interpreted to additionally incorporate preclusion principles and divest federal courts of jurisdiction solely because a pending state-court proceeding presents identical issues, notwithstanding the long-established system of dual federal and state jurisdiction? There is nothing particularly funny to say about the Rooker-Feldman doctrine.

In Exxon Corp. v. Allapattah Services, Inc. (04-70) and Maria Del Rosario Ortega v. Star-Kist Foods, Inc. (04-79) (consolidated for 90 minutes of oral argument), the Court granted cert. only on the question whether the supplemental jurisdiction statute, 28 U.S.C. § 1367, authorizes federal courts with diversity jurisdiction over the individual claims of named plaintiffs to exercise supplemental jurisdiction over the claims of absent class members that do not satisfy the minimum amount-in-controversy requirement? (Exxon had also asked the Court to determine whether Rule 23 of the Federal Rules of Civil Procedure authorizes the certification of a multi-state class action where individual reliance by each class member is at issue and where the predominance of common issues can be established only by distorting the law of the applicable states.)

Lingle, Gov. of Hawaii v. Chevron U.S.A. (04-163) will be a nice companion to last week's grant in Kelo v. New London (04-108) (does condemnation of slums to allow high-end development meet the public purpose prong of the Takings Clause?). At issue here is a state law capping rents that oil companies can charge gas station lessees, which ostensibly was designed to keep retail fuel prices low. The Ninth Circuit struck down the law, finding it does not substantially advance the state's asserted public interest. The questions presented are: (1) Whether the Just Compensation Clause authorizes a court to invalidate state economic legislation on its face and enjoin enforcement of the law on the basis that the legislation does not substantially advance a legitimate state interest, without regard to whether the challenged law diminishes the economic value or usefulness of the property. (2) Whether a court, in determining under the Just Compensation Clause whether state economic legislation substantially advances a legitimate state interest, should apply a deferential standard of review equivalent to that traditionally applied to economic legislation under the Due Process and Equal Protection Clauses, or may instead substitute its judgment for that of the legislature by determining de novo, by a preponderance of the evidence at trial, whether the legislation will be effective in achieving its goals.

The Court CVSG'd in three cases:

Bank of China, NY Branch v. NBM L.L.C. (03-1559) - (1) Did the Second Circuit err when it held, contrary to its own previous holding and the holdings of the First, Third, Seventh, and Ninth Circuits, that civil RICO plaintiffs alleging mail and wire fraud as predicate acts must establish a "reasonable reliance" under 18 U.S.C. § 1964? (2) Did the Second Circuit err when it held, for the first time ever by any court, that civil RICO plaintiffs alleging bank fraud as predicate acts must establish "reasonable reliance" under 18 U.S.C. 1964(c)?

McFarling v. Monsanto Co. (04-31) - (1) May a patent holder lawfully prohibit farmers from saving and replanting seed as a condition to the purchase of patented technology? (2) Does obtaining patents on products which are the subject of licensing agreements afford an absolute defense to any claim that the licensing agreements violate the Sherman Act?

Comstock Resources v. Kennard (04-165) - Whether, under the False Claims Act, individuals who possess no personal, firsthand knowledge of any aspect of an alleged fraud have the requisite "direct and independent knowledge" to qualify as an "original source" under 31 U.S.C. § 3730(e)(4).

Little-known fact — Indiana Code sec. 33-43-1-3 (and similar laws or professional oaths in Alabama, George, Idaho, Iowa, Michigan, Minnesota, Mississippi, New Mexico, Oklahoma, South Dakota, and Washington) states that

An attorney shall . . . [a]bstain from all offensive personality . . . .

Some of them even require lawyers to abstain from all offensive personalities.

UPDATE: Many thanks to reader Josh Dale, who pointed out that a similar California statute, which I originally cited, has been repealed (I was working off an old printout that I'd found in my files). I've updated the post to reflect the other, still-existing statutes.

A fascinating short piece by James Gleick, the author of a recent Newton biography. (Naturally, especially fascinating for those who have just read Neal Stephenson's trilogy.)

Slate's Election Scorecard projects — and, yes, who knows how it will come out on November 2? — Bush 271, Kerry 267. Close electoral vote + likely close popular votes in many states + the experience of 2000 = likely major nastiness come November 3. Yes, I know this has always appeared possible, but polls just remind us of it.

UPDATE: I forgot to link to Rick Hasen's piece on possible election disasters -- much worth reading it.

Stephen Bainbridge has some thoughts on why we can't expect complete coherence from Supreme Court decisions, responding to Charles Fried's op-ed criticizing the Court for incoherence in recent cases, and also citing Jack Balkin's response to Fried's op-ed. (For citations to Fried and Balkin, go to Bainbridge's site.)

My friend Steve Kurtz had an odd idea: Photograph various amusing businesses named Steve's, and put the photos, together with various anecdotes, in a book. Sounds like a fun gift for people named Steve (though we Eugenes are still waiting for our volume).

A reader had asked me whether fisking was fair use, so I thought I'd put up a link to my old post on this.

Various people, including John Perry Barlow, Drew Carey, Nat Hentoff, P.J. O'Rourke, Glenn Reynolds, Nobel Prize winner Vernon Smith, various Reasoners, and yours truly, answer.

specifically as to the Guardian (U.K.) campaign of persuading Ohio voters to vote for Bush, out of sheer revulsion at British strangers' attempts to patronize them into voting for Kerry.

Eric Muller (IsThatLegal?) writes:

IsThatLegal? Why, No. It's Not.

A reader informs me that this blog has been blocked by the Seminole(Fla.) County Public Library.

It's hard to know what got me on the banned blogs list. Perhaps the librarian is a big fan of Duran Duran. Or of Siegfried and Roy.

Or maybe it's the dog.

Seriously, this seems like an odd censorship policy to me. There could be a story here. Drop by your public library and see whether you can reach the blogs you like to read. (Unless they're, uh, you know, not safe for work.) If you can't reach some of them, ask your librarian why not, and leave a comment here.

Sounds like a good idea -- and maybe it turns out that some off-the-shelf filtering software blocks some blogs, which suggests that messages to the filter producer (once it's identified) might help get them unblocked wholesale.

(1) There's an interesting interview with Neal Stephenson on Slashdot.

(2) I recently finished reading his The System of the World and much liked it. The three books -- Quicksilver, The Confusion, and The System of the World -- are not as good as Cryptonomicon (at least on first reading). But I liked them a lot, and even Quicksilver, which I liked least of the three (though I still enjoyed it), is better in retrospect, now that I've read the other two. I'm looking forward to rereading all three in a few years.

(3) Reading the interview reminded me of one thing (though far from the most important thing) that I like about the triology and about Cryptonomicon: They aren't just engaging books about ideas, but their core topics are chiefly how science affects society, commerce, war, and politics, and vice versa. As it happens, I'm a math-computer science undergraduate major and computer programmer who went into law and public policy commentary; one of the topics I write about is law and technology. Many readers of this blog -- and many of my friends who have enjoyed Cryptonomicon -- are lawyers with a technological bent, and many others are technologists who are interested in law or public policy.

It's no surprise, I think, that "my kind of people," the tribe I belong to, would find the books so engaging. And this is especially because such books -- books that not only are well-written and have well-crafted characters and plots, but which also discuss these themes, themes that are as central to modern human existence as are love, grief, and the other overwritten topics -- are so rare.

We had 35,000 unique visits yesterday according to eXTREMe Tracking, and 45,000 according to SiteMeter. Many thanks to InstaPundit for the link that brought the great majority (and of course for the Supreme Court nomination . . .).

Some people replied to the post below on section 3 of the Fourteenth Amendment by asking whether the nation can have "Enemies" for section 3 purposes without a declaration of war.

Well, the Civil War itself, to which section 3 clearly applies, was not a declared war. That suggests that "Enemies" include actual enemies with whom we are in a state of war (which included the Confederacy and North Vietnam) regardless of whether there has been a formal declaration of war. What's more, as I've argued often before, U.S. law generally does not distinguish between declared wars and undeclared wars. The question is whether we are in an armed conflict with an entity, not whether there has been a Congressional declaration of war.

Is John Kerry disqualified from being President by section 3 of the 14th Amendment? Several readers — starting with Pierce Wetter, with whom I've corresponded on the subject, and who has just blogged about it, referring partly to our correspondence — have e-mailed me to ask this question, and I noticed more chatter about it on the Web. And the question turns out to be more interesting than it at first seems (though I think the answer ends up being pretty clear).

Here's what section 3 says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Kerry, the argument goes, gave "aid or comfort" to the North Vietnamese by opposing the war, and by apparently meeting with a North Vietnamese peace delegation in Paris in 1971. One or both of these things (probably the former much more than the latter) may have emboldened our enemies and sapped our soldiers' morale, thus giving the enemy aid or comfort. Kerry had previously taken an oath to support the Constitution when an officer of the United States (military officers, including lieutenants, definitely count). The Presidency is an "office" (see, e.g., art. II, sec. 1, cl. 5.) Therefore, the argument concludes, Kerry is disqualified.

1. The bottom line: I think this argument is unsound, because section 3 can't possibly apply to all people whose actions end up helping the enemy. During the Civil War itself, for instance, which prompted section 3, many government officials spoke out in favor of the North's agreeing to peace on terms that are favorable to the South. That too would have aided the South — quite possibly much more than Kerry's statements, if the speaker was a prominent Northern politician. But I'm fairly certain that section 3 wasn't understood as disqualifying them; "aid or comfort" must have been understood to mean actions intended to help the enemy that actually gave it aid, and not simply actions that had the effect of helping the enemy but that were motivated solely by a sincere desire to help the United States save lives or prevent the United States from acting immorally, rather than by a desire to help the enemy win.

That is certainly the way that modern treason law operates: As I explained here, quoting the Supreme Court, "[A] citizen may take actions, which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." And this is true even if the actor knew his actions would help the enemy: The test is purpose, not knowledge of likely (or even certain) effects.

Now some might argue that Kerry's actions might have been more reprehensible than the actions of the Northern politician I describe above. Perhaps they were too intemperate, or perhaps his statements were inaccurate, or whatever else. (I haven't followed the exact factual allegations closely enough to make a definitive judgment, but for these purposes I don't need to.)

But for the purposes of the Treason Clause, and I suspect of section 3, the test isn't simply whether the actions help the enemy, or help the enemy through improper means, or help the enemy through improper means with the knowledge that they will help the enemy. If Kerry's purpose was not to help the North Vietnamese, but to help the United States or to help maintain U.S. compliance with its own laws and policies related to military conduct, then he's not covered. And I have no reason to think that Kerry's purpose was indeed anything other than to help the United States, whether or not his actions in pursuit of that purpose may have been misguided or excessive.

So that's my bottom line, and I want to stress it up front: Section 3 should not be read as disqualifying Kerry. That's the only sensible way of interpreting the provision, and I think the only way of interpreting it that's faithful to its likely original meaning.

But it turns out that under a purely textual analysis, the matter is a lot more complex. The section 3 argument against Kerry is, for the reasons, I gave above, a loser, but it's far from the harebrained theory that it might at first appear to be. And analyzing the text closely provides a fascinating example of the troubles we run into when analyzing constitutional provisions that were, after all, written many decades ago, by drafters who had experience with different situations than we do now.

2. Omission of "adhering to their Enemies": Let's start with the textual objection to the point I made above: First, "aid or comfort" literally means any aid or comfort, intentional or not. But good textualism doesn't just look at the literal English meaning of an isolated phrase; it also looks to the legal meaning of the phrase, and to other provisions of the Constitution. And the closest provision to this one in the Constitution is the Treason Clause itself, which defines treason to cover "only . . . levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." I don't think the "and" / "or" difference is that relevant here. But note that section 3 does not include the "adhering to their Enemies" language.

And the Supreme Court's treason precedents that stress that treason includes only intentional aid rely on the "adhering to their Enemies" language as the source of the intent requirement. (See, for instance, the Court decision I quote three paragraphs above.) In the Court's mostly 20th-century understanding, "aid and comfort" means help to the enemy, and "adhering to their Enemies" qualifies this to require intent to help the enemy.

So if one reads the text of section 3 literally, perhaps "aid or comfort" would mean all actions that help the enemy, even if the actor doesn't "adher[e] to [the] Enem[y]" by intending to help the enemy. I suspect this is not how the section was understood by those who ratified; I suspect they understood it as tracking the Treason Clause. But literally, it might indeed cover Kerry's actions.

3. Speech as aid or comfort: It's also pretty clear that speech can be treated by the law as providing aid or comfort. Decisions by Congress shortly before section 3 was enacted, under a loyalty oath regime that as I understand it section 3 was meant to clearly validate, took the view that publishing a pro-rebellion newspaper or letters qualified as aid or comfort, see Christy and Wimpy, Rowell's Digest of Contested Election Cases 725 (1901); Smith v. Brown, id. at 220; Switzler v. Anderson, id. at 219-20. (I have not had the time to check the original reports, in volume 2 of the Bartlett compilation, which Rowell's purports to condense.)

Modern treason law takes the same view: For instance, spreading Axis propaganda was found to be treason (see here). The main barrier to applying the section to antiwar speech lies in the intent requirement; but antiwar speech whose purpose was to help rebels would, I think, be disqualifying under section 3. (Whether the First Amendment would be a barrier to that is a difficult question that turns both on the scope of First Amendment rights for speech whose purpose is to aid the enemy, and on complex questions related to repeals by implication; I will set them aside here.)

4. Application beyond the Civil War: But wait, you may ask: Obviously this provision was just meant to deal with rebels during the Civil War. Isn't it a dead letter?

I don't think so. The provision was enacted because of the Civil War, but its language is broad enough to cover other wars. The drafters could have chosen more focused language, but they didn't. As the Court held in Perry v. United States (1935), when dealing with section 4 of the Fourteenth Amendment, which confirmed the federal government's obligations to pay the federal debt, "While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation." Likewise with the language here; it clearly applies at least to all domestic rebellions.

5. Helping foreign enemies: Does section 3 even apply to people who help foreign enemies, rather than domestic ones? The answer to this might seem to obviously be yes, but note that the language is "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." The first half specifically doesn't cover people who fight in a foreign war against the U.S. (unlike the Treason Clause, which covers all enemies).

One can argue that the second half should be read as referring back to the first half, and thus covering only people who gave aid or comfort to enemies who were themselves engaging in insurrection or rebellion. And if that's so, then none of this could possibly apply to Kerry. (I set aside claims that he was present at some meeting of Vietnam Veterans Against the War at which there was talk of assassination. Even if he was present, a matter that is disputed, I think mere talk of assassination isn't enough to qualify as insurrection or rebellion, and mere presence at mere talk is likewise not enough to qualify as aid or comfort to insurrection or rebellion.)

I think that on balance the provision should be read as covering aid and comfort to all enemies who are fighting the U.S., whether they're fighting it overseas or whether they're rebelling against it here. "Enemies" is broad enough to cover both, and it's hard to see why the provision would have been understood, when enacted, as treating those who help enemy foreign armies better than those who help enemy domestic armies. Yet this isn't obvious: There's a powerful textual argument for treating the second clause ("enemies") as being linked to the first (enemies "engaged in insurrection or rebellion").

6. Congressional removal of disability: I don't think Congress has "remove[d] such disability by a vote of two-thirds of each House." The 1872 Amnesty Act, ch. 193, 17 Stat. 142, provided that:

all political disabilities imposed by the third section of the fourteenth [amendment] . . . are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth [1859-61] and thirty-seventh [1861-63] Congresses, officers in the judicial, military, and navel service of the United States, heads of departments, and foreign ministers of the United States.

An 1898 Act, ch. 389, 30 Stat. 432, provided that:

the disability imposed by section three of the Fourteenth Amendment . . . heretofore incurred is hereby removed.

The second Act clearly applies only to disqualifications for pre-1898 conduct ("heretofore incurred"). The first doesn't limit itself so explicitly, but it stands to reason that "disabilities . . . are hereby removed" likewise refers to disabilities that had already been incurred, rather than disabilities for future misconduct, the nature of which Congress wouldn't have even known.

7. Automatic disqualification? Is disqualification automatic, or does it require some statute to implement it (e.g., a statute that says that everyone who did this-and-such during this-and-such war is hereby stripped of office)? In re Griffin, 11 F. Cas. 7 (C.C. Va. 1869), a lower court case, suggests that disqualification happens only if there's a statute providing for such disqualification. But this is only a lower court case (written by Chief Justice Salmon P. Chase, riding circuit, but not endorsed by the Supreme Court). And it's in any event not clear that its logic would apply to federal Senators and Representatives, as to whose qualifications Congress traditionally acts not through legislation but through direct examination of a candidate's qualifications (see below), or to the President, whose qualifications Congress likewise probably has the power to directly test when counting the electoral votes (see below).

8. Who decides? Who decides whether whether the provision applies — would it be a court, Congress, or someone else? I would assume that it would be Congress, which is the body that is supposed to count the electoral votes; presumably this includes the power to reject votes that are cast for ineligible candidates (whatever the cause of the eligibility). But who knows?

9. The Presidency as different: Finally, one could argue that the Presidency is outside the scope of section 3's purpose. Section 3 was justified by the fear that voters in one state or district might elect candidates who are disloyal to the country as a whole. But when the electorate is national, as it is for the President and the Vice-President, we needn't worry about that: The judgment as to whether the person can be trusted to be loyal to the United States can be safely left in the national electorate's hands. I think this is a good policy argument; but a textualist would quickly reject it, because the text of section 3 covers all "office[s] . . . under the United States," which includes the Presidency, and our guess as to the purpose of section 3 cannot modify that.

I've gone on at such length partly because of a compulsive and likely unhealthy professional desire to be relatively complete, and partly because exploring these mostly forgotten constitutional provisions reminds us how complex the supposedly simple act of reading a sentence and applying it to the facts can be. I stress again that, for the reasons I gave in item 1, section 3 doesn't and shouldn't bar Kerry's candidacy. But the issue is considerably more complex than one might at first think.

The New York Post, citing an unnamed inmate at the Alderson, W.Va., minimum-security prison camp for women, reported that the guru of good living spent some time last week picking crab apples from trees on the camp grounds and used them to cook up sweet jelly.

"The normal person would get punished for that, but the prison guards managed not to see her," the inmate was quoted as saying.

Here is the full story.

My colleague Stephen Bainbridge liveblogged our own Jim Lindgren's talk on "Chasing Cherished Superstitions About Conservatives." Go to Bainbridge's post for more.

Leftist actors learned from Vietnam not to cozy up to dictators: Jane Fonda, one of the best actresses of her generation, hasn't worked in more than a decade.

Jane Fonda worked quite a bit in the aftermath of the Vietnam war, when you'd think her sympathies with the North Vietnamese would have hurt her most, and then during the Reagan Administration. She then apparently did nothing until the forthcoming Monster-in-Law — including through the Clinton era. Is it really that plausible that Fonda's not working in the 1990s, while having worked through the 1970s and 1980s, stems from her pro-North Vietnam activities?

It was a time-warp reaction. Fonda dropped out of acting for awhile in the '80s and made a great return with The Morning After, in which she played a blackout drunk. But the culture under Reagan had changed. Vietnam vets, once culturally ostracized, had become deservedly more sympathetic in the eyes of the media, and everything countercultural was now unhip—or worse. I was staying near Waterbury, Conn., when Fonda was filming Stanley and Iris there in the late '80s. I read that the vets were picketing the production and surrounding the set with signs that read, "Get out Hanoi Jane!" I drove over to see for myself and, yeah, it was pretty ugly. There were signs all over town and trucks honking and people shouting. ... Fonda reportedly tried to meet with the vets and came away devastated; and after the movie (a humanist stinker in which she taught Robert DeNiro to read) flopped, she decided to drop out of show business. (She didn't need the money—she was married to a billionaire.) A blacklist? No. But a big fat delayed-reaction shaming.

Oh, it's so fun to get letters from angry right-wingers: They're so cute when they preach at me that politics don't belong in movie reviews (because, of course, movies have absolutely nothing to do with the real world and do absolutely nothing to shape peoples' attitudes about anything). And I love it when they twitter about a couple of left-wing Hollywood types consorting with that syphilitic blowhard homophobic human-rights abuser Fidel Castro (because, of course, Republicans have never had anything to do with human-rights-abusing authoritarian regimes, ever).

Both are perfectly valid, but I wanted to use the more common one, since I have no personal preference. A google smackdown helps out: Advisor wins, by about a factor of four. I love modern linguistic research tools . . . .

The Eleventh Circuit case that struck down mandatory metal detectors for protest attendees (cited by Orin Kerr below) is noteworthy for one reason besides its important and likely controversial holding: It cites Wikipedia, a free online collaborative encyclopedia, for information on the Department of Homeland Security Advisory System. It is one of only two cases I've found that cite Wikipedia, the other being Bryant v. Oakpointe Villa Nursing Ctr., 471 Mich. 411 (2004), a Michigan Supreme Court case, which cites Wikipedia for information on positional asphyxia.

Now I much admire the Wikipedia project, and my hat would be off to Larry Sanger and Jimmy Wales, its cofounders, if I wore a hat. The concept of an encyclopedia that is cowritten by lots of people, each of whom has the power to edit any of its pages — with the main screening mechanism being the possibility of correction by others — sounds odd. But it seems to work pretty well; and of course the real question isn't whether the work is perfectly reliable, but (1) how reliable it is compared to the alternatives, (2) whether that's good enough for the particular use you're making of it (e.g., casual attempts to satisfy curiosity rather than decisions where someone's life or even a lot of money is on the line), and (3) whether the work's advantages in thoroughness, currency, convenience, and low cost exceed the possible reliability disadvantages. (Here, by the way, is the Wikipedia response to the arguments that free editing may make the encyclopedia too unreliable.)