Saturday, April 14, 2007Randy Barnett for Attorney General:
It's not likely to happen for any number of reasons, but Glenn "Instapundit" Reynolds has proposed appointing the VC's very own Randy Barnett as the next Attorney General. For what it's worth, Randy has my full support! He'd be a major improvement over both the incumbent AG and his recent predecessors. "Whiplash and Other Useful Illnesses":
I've read most of this very interesting and entertaining book, written by Toronto psychiatrist Andrew Malleson. I'm not sufficiently familiar with the scientific literature to vouch for his conclusions, and there are places in the book where Malleson seems to me to go well beyond his own expertise and reach conclusions that are not directly supported by his evidence. Indeed, I think the book would benefit from being edited down by about a third, with the weaker and more speculative material deleted. Nevertheless, there are many useful tidbits of information and startling hypotheses in this book, with sufficient citations to the academic literature that the reader could look up the relevant studies for himself if he is skeptical. This is certainly a book that should be on the shelf of, among others, (a) anyone who represents insurance companies in automobile accident injury litigation; (b) anyone interested in "junk science" in general; (c) anyone interested in how the medical profession, or elements thereof, sometimes creates official "illnesses" that are really just clusters of symptoms with no common or known physical cause; (d) anyone interested in the effects of litigation on accident victims, and whether the victimization that are required to exhibit for legal purposes may hinder their emotional and physical recovery; (e) anyone interested in somatic illnesses; (f) anyone interested in malingering and fraud in the workers' compensation and tort systems; and (g) anyone interested in how the legal system encourages, profits from, and sometimes precipitates (c). Perhaps because the book was written by a Canadian and published by a Canadian press, it hasn't received much attention from American legal scholars since its initial publication in 2003; indeed, it has only been cited once on Westlaw so far. But the book provides abundant material to inform debates on a host of legal issues. Wisdom vs. Intelligence:
An interesting essay by Paul Graham; thanks to Arnold Kling (EconLog) for the pointer. Here are some excerpts, selected by Kling:
Gary Kasparov Arrested:
Russian opposition leader and former chess world champion Gary Kasparov has been arrested in Moscow while leading a demonstration protesting the government's policies. Here is the New York Times account, and a shorter one by CNN. Kasparov is arguably the most famous political opponent of President Vladimir Putin's increasingly authoritarian government, and a strong supporter of democracy, civil liberties, and free markets. Here is a January Wall Street Journal article describing Kasparov's opposition activities in more detail. Back in 2001 - at a time when George W. Bush was still assuring us that Putin was a "good man" because he had "see[n] into his soul," Kasparov sounded an early warning about the ex-KGB President, noting that "Putin's KGB roots have informed a style of governance that is neither reformist nor particularly democratic" and that Russia's government was sliding towards authoritarianism by suppressing opposition media and playing on nationalistic fears. Since then, Putin has suppressed nearly all opposition electronic media, and probably connived in the murder of print journalists who had criticized the regime. Kasparov's arrest is not only an outrage in its own right, it is significant as an indicator of Putin's willingness to further tighten his authoritarianism. If Putin is able to get away with arresting even a world-famous opposition leader, less exalted opponents of the government can expect even harsher treatment. Hopefully, there will be enough of an international outcry to persuade Putin to desist and force him to tread more cautiously in the future. But it is hard to be optimistic about Russia's immediate political future after the experience of the last several years. As Kasparov put it in 2005, Putin has "abolished the nature of democratic institutions [and] he will go further." The mere fact that the current president of Russia is an authoritarian former high-ranking KGB official is a strong indication that things have gone badly wrong 15 years after the fall of communism. It is as if the Chancellor of West Germany in 1960 had been a former high-ranking Gestapo or SS leader. UPDATE: For those who read Russian (I know we have some readers in that category), here is a link to the website of the United Civic Front, the opposition political movement that Kasparov founded in 2005. It has extensive coverage of his arrest, as well as that of some 250 other opposition leaders and protestors arrested at the same demonstration in Moscow. UPDATE #2: Apparently, Kasparov has been released, but only after being forced to pay a fine "for participation in a banned protest rally." Related Posts (on one page):
Administration Seeks More Surveilance Authority:
Today's Washington Post reports that the Bush Administration has asked Congress for greater authority to conduct surveillance of foreign citizens and international communications.
Friday, April 13, 2007The State of Post-Kelo Reform - Final Rejoinder to Bert Gall:
Bert's most recent criticism of my analysis of post-Kelo reform focuses on one major point: that the majority of post-Kelo reforms have been effective in curbing eminent domain power. While Bert is right to note that important progress has been made since Kelo (a point I never contested), he still paints a rosier picture than is justified by the evidence. Even with the recent passage of what I agree are effective reform laws in New Mexico, Virginia, Wyoming, it still remains the case that 22 of the 43 reform laws enacted by 38 states and the federal government have been largely ineffective, in the sense that they impose no meaningful new constraints on the power of government to condemn property. This total includes the forty laws analyzed in my paper, plus the three passed in recent weeks, but excludes one or two ineffective laws passed in the aftermath of Kelo, which have since been superseded by effective ones (e.g. - in Alabama). Far more important than the raw total of effective and ineffective laws is the fact (noted in my previous post, as well as in my paper), that very few of those states that engage in Kelo-style takings the most have enacted effective reforms. Even after Virginia's recent enactment of an effective reform law, thirteen of the twenty states that recorded the most private-to-private condemnations from 1998 to 2002 according to an Institute for Justice study have enacted ineffective reforms or none at all (see Table 5 of my paper). This is also true of fourteen of the twenty states with the highest numbers of "threatened" condemnations for private owners, according to IJ (ibid., pg. 44). To understand the true state of post-Kelo reform, it is essential to recognize that many of the strongest new laws have been enacted by states with little or no record of eminent domain abuse to begin with. Tellingly, two of the three most recent states to enact effective reforms (Wyoming and New Mexico) recorded no condemnations for private development at all, according to IJ. For example, IJ described New Mexico as:
By contrast, several large states with extensive records of abuse - including California, New York, New Jersey, and Texas, among others - have enacted either no reforms at all or ineffective ones. Reforms in states with little or no preexisting record of abuse are not completely useless. Such laws do serve to prevent future abuses, even if the possibility of such is slight. However, they cannot make up for the lack of success in most states with records of serious abuse. Bert lists 20 states that have enacted reforms restricting the definition of "blight." I agree with him that such limits are extremely important, and have argued for their necessity myself. In fact all but three of these states (Utah, Wisconsin,and South Carolina) are listed as states with effective reforms in my paper. Of the exceptions, Utah is not included because it passed a law forbidding blight condemnations even before Kelo was decided, so its law is not part of the Kelo backlash proper; indeed, as the Institute for Justice recently noted, Utah has just engaged in some backsliding from its pre-Kelo achievements. On Wisconsin and South Carolina, I stand by the analysis of these two states' laws in my paper. The issues are technical in nature, so I will not go into them in detail here, though I may do so in a later post if there is enough reader interest in the subject. Bert also mentions the Colorado law (whose effectiveness he defends to a limited degree). He is right to note that the law eliminates judicial deference to local governments' determinations of blight, but wrong to suppose that this will make a big difference. As I explain in my paper (pp. 16-17), Colorado's definition of "blight" is so broad that virtually any area can be declared blighted, whether judges are deferential or not. As I noted in my previous post, it is still not clear how many state laws Bert and I actually disagree about. Depending on how one interprets his posts, the figure may be as low as three (Wisconsin, South Carolina, and - to a lesser degree - Colorado). It is also not clear whether he accepts my conclusion that most of those states with the worst abuses have enacted ineffective reforms or none at all. Bert does seem to question with my view that political ignorance is a principal reason for the large number of ineffective reforms, but does not present any alternative explanation or explain why mine is wrong. I end on this point of agreement between us: Bert is undoubtedly correct to say that there has been significant progress, and he is also right to note that "proponents of reform shouldn't declare victory and go home." Related Posts (on one page):
Bert Gall Responds to my Critique of Post-Kelo Reform:
Last week, Bert Gall of the Institute for Justice engaged in a debate on post-Kelo eminent domain reform triggered by my paper arguing that most of the reform laws enacted since Kelo have been largely ineffective. For the earlier posts, see here and here. Bert has submitted the following reply to my arguments, and I have agreed to post it. I will be writing a brief rejoinder:
Related Posts (on one page):
How Not to Use PowerPoint:
A video on the Law LIbrarian blog offers some advice. Muller's Medals - Update
Eric Muller got good news about his Uncle Leo's medals. Related Posts (on one page):
The "Defense of Property" Defense:
I much appreciate Orin's posts on the subject, and I should note again what I noted at the outset — there are quite plausible policy arguments for barring "hacking back" even when it's done to defend property against an ongoing attack, and Orin has expressed some of them in the past. That an action falls generally within the ambit of an existing defense, or is closely analogous to an existing defense, doesn't preclude the conclusion that we should nonetheless bar the action because of special problems associated with it. Nonetheless, I do disagree with two parts of Orin's analysis. First, it seems to me that the defense-of-property defense has indeed been recognized as part of a general class of common-law defenses — including justifications such as self-defense and defense of others, and excuses such as duress or insanity — that are by default accepted in all jurisdictions, or at least all jurisdictions that have not expressly codified their defenses. (I say "by default"; they may be expressly statutorily precluded, as a few states have done as to insanity.) Robinson's treatise on Criminal Law Defenses describes it well, I think,
More generally, defense of property, self-defense, and defense of others are generally treated by the law more or less similarly, though subject to the general principle that defense of property will generally not justify the use of lethal force. I have never seen in any case, treatise, or other reference any indication that federal law differs from this, and rejects the notion that defense-of-property is a general default. I agree with Orin that the defense has been rare. But I suspect that it is rare because defense of property generally doesn't authorize the use of deadly force, and because use of supposedly defensive nondeadly force is less likely to draw a federal prosecutor's attention than the use of supposedly defensive deadly force. The typical nonlethal defense of property scenario — someone says I punched him, and I claim I did this in order to keep him from stealing my briefcase — just isn't likely to end up prosecuted by the local U.S. Attorney's office, even if there's some reason to doubt my side of the story. Second, Orin points to the Model Penal Code as evidence that "when stated as a defense in federal criminal cases, 'defense of property' seems to mean only defense of physical property from physical access or removal"; and the MPC does define defense of property as limited to "use of force upon or toward the person of another ... to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property ..., [or] to effect an entry or re-entry upon land or to retake tangible movable property" (plus provides for a related but different defense in § 3.10). But the MPC seems to define defenses in a way that's focused on those crimes that the MPC covers. For instance, the MPC's self-defense provision literally covers only "the use of force upon or toward another person"; it would not cover imminent self-defense as a defense to a charge of being a felon in possession of a firearm (though no such crime is defined by the MPC in the first place). Yet federal law does recognize this. Likewise, state cases recognize self-defense as a defense to the use of force against an animal, when the use would otherwise be illegal (I could find no federal prosecutions involving the question). Now perhaps the answer is that federal law would reject even self-defense as a defense to non-physical-force crimes, and that the defense in felon-in-possession cases is actually a species of the necessity defense. But if that's true (which isn't clear, since it's not even clear that federal law recognizes a general necessity defense), then one could equally argue for digital self-defense under the rubric of necessity. Likewise, while Orin brackets § 3.10, that might very well be the defense-of-property provision (though labeled by the MPC under the more general rubric of "justification in property crimes") that an MPC-following federal court might adopt, if it chooses to take a narrow view of the common-law defense-of-property defense. Section 3.10 generally allows "intrusion on or interference with property [when tort law would recognize] a defense of privilege in a civil action based [on the conduct]," unless the relevant criminal statute "deals with the specific situation involved" or a "legislative purpose to exclude the justification claimed otherwise plainly appears." And the common law has generally recognized defense of property as a privilege in civil actions. (See, e.g., Restatement (Second) of Torts § 79, which allows even nonlethal physical force against a person when necessary to terminate the person's intrusion on your possession of chattels. That doesn't literally cover use of nonlethal electronic actions against a computer, but the point of common-law defenses is that they are applicable by analogy; the Restatement is thus a guide, not a detailed code to be followed only according to its literal terms even in novel situations.) So we have to remember, it seems to me, that the federal law of criminal defenses is common law, borrowing from both the substance of the traditionally recognized common-law defenses, and from the common-law method, which involves reasoning by analogy. The common-law method also allows analogies to be resisted, if the new situation is vastly different from the old; and of course Congress can trump common-law defenses by statute. But the background remains that there's a common-law defense of defense of property (buttressed, where necessary, by the necessity defense, and to the extent one is influenced by the Model Penal Code, by § 3.10's borrowing from the common-law tort defenses), and that there's no reason to think that federal law takes a narrow view of this defense. Related Posts (on one page): More on the ERA:
There are new posts on the subject from John Rosenberg (Discriminations) and Andrew Koppelman (Balkinization). An excerpt from Koppelman's post:
More on the "Hacking Back" Defense:
I wanted to add one more round to the exchange Eugene and I were having about whether a defendant charged with a federal computer intrusion crime can assert a "hacking back" defense. I'm still of the opinion that defendants cannot assert such a defense, and I wanted to respond specifically to Eugene's most recent post about it. Specifically, I want to make two points. First, I'm not entirely sure a general defense of property defense doctrine exists as a default in federal criminal law, and second, if the doctrine exists I don't think it covers computer intrusions.
The reason I'm unsure that the "defense of property" defense exists as a Congressiional default is that the defense seems to be quite rare in federal court, and the cases appear almost entirely in a very specific context. Based on a quick Westlaw check, at least, I could only find about about 30 federal criminal cases that seem to apply it or discuss it at all. Further, those cases arise in almost entirely in a very specific context: a defense raised in a prosecution for physical assault. There's also a bit of homicide and one or other two crimes thrown in, but not much. Perhaps =a lot more cases exist beyond what I could find, but I couldn't find much — and what I found was quite narrow and applied only on in a very small subset of criminal cases. Clearly this doesn't rule out that Congress legislates all criminal offense against a general background norm of a "defense of property" defense being available, but I think it does shed some doubt on it. Second, when stated as a defense in federal criminal cases, "defense of property" seems to mean only defense of physical property from physical access or removal. For example, in the context of the Model Penal Code's defense of property section, which has been influential in federal court applications of defenses, the provisions are available only "to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property . . . , [or] to effect an entry or re-entry upon land or to retake tangible movable property." MPC 3.06. (The MPC seems to treat the kind of interference with property that includes computer intrusions under a separate section, § 3.10, Justification in Property Crimes, which seems to foillow a different set of principles. Also, while you might think "entry" includes virtual entry, entry in the context of criminal trespass statutes are generally understood to mean physical entry.) Given that, it seems that whatever "defense of property" doctrine is established as a background norm when Congress creates a new criminal law, it doesn't seem to me to apply to computer attacks. Anyway, I should stress that we don't yet have any cases on this, so both Eugene and I are guessing as to what courts would or should so based on the legal materials out there. It's a very interesting question. Finally, I'll just add further thoughts in the comment thread in the future, as I'm not sure a lot of readers are interested in this issue. Related Posts (on one page): Former AG Ed Meese to Speak at GMU Law School:
Next Wednesday, April 18, former Attorney General Edwin Meese III will speak at the GMU Law School at 5:00 p.m. on the subject of "Reclaiming the Constitution – Originalism Today." The speech is sponsored by The Federalist Society and the GMU Law SchoolL
What Exactly Happened at the Albuquerque Airport?:
I wanted to add one last post on the Walter Murphy story, addressing a part that I haven't focused on much before: the details of exactly what happened to Professor Murphy at the airport. (Sorry if this is a bit late; I wrote part of it yesterday morning, and didn't get to finish it until today.) In earlier coverage, I have tended to accept that Professor Murphy's name was in fact on the No-Fly list; but the work of some other bloggers and commenters has suggested that even this is untrue. Let's focus on what we know, based on combining the details of the original Balkinization post with what Murphy told Ryan Singel:
1. Professor Murphy arrived at the Albuquerque Airport and attempted to check in at the curbside. He was informed that he could not do a curbside check-in.So the evidence here suggests three events that deviate from the unusual (or at least might do so). First, on one leg of the flight, Professor Murphy could not check in curbside and had to wait for ten minutes (apparently while still at the curbside, although that's not entirely clear) before his boarding pass was brought to him. Second, the American Airlines clerks told him (a) that he was on a "Terrorist Watch List," and (b) that in their experience protesting against Bush or giving an anti-Bush speech could get a person on the "Terrorist Watch List." Third, Professor Murphy's luggage arrived a few hours late on the return flight. In trying to interpret these events, some background brought out by James Taranto and others is helpful. First, there is no such thing as a "Terrorist Watch List." There are two lists: a No-Fly list and a "selectee" list. As I understand it, if a name appears on the No-Fly list the person is not allowed to board a flight period unless the individual can prove they are not the person who the FBI had in mind when putting the name on the list. So for example, Ted Kennedy could fly even though his name was on the No-Fly list because he could prove he was not the same "T. Kennedy" as the terrorist suspect who used that name as an alias. As I understand it, that has to be done on each check-in for air travel, so if a name is on the No-Fly list people with that naame have to prove they are not that particular person targeted in order to fly. On the other hand, the selectee list is a list of individuals who are subject to extra screening for either a particular flight or all flights for any number of reasons. Those reasons may include buying a one-way ticket or paying in cash. Also, I know from personal experience that at least as of 2 or 3 years ago, buying a round-trip ticket online that combines multiple airlines would put a person on the selectee list (apparently because the airlines only know of their leg and see it as a one-way flight). Like individuals on the No-Fly list, people on the selectee list for a particular flight are not permitted to check in curbside. Why is this background relevant? Well, as Taranto and others have noted, it suggests quite strongly that Murphy was never on the No-Fly list. Rather, he was on the selectee list for one leg of one flight. He was not permitted to check in curbside for only one leg; on the return flight, his name was not on any list at all. Given that so many people have been on selectee list before — I suspect most VC readers have been on the list for a flight at some point — it seems pretty unlikely that Murphy was put on the list for that one leg of one flight for any reason related to his Princeton speech. (Think about it — what kind of oppressive government would punish its critics simply by taking away their right to curbside check-in for a single flight?) That leaves two remaning clues, the late luggage and the clerk(s)' statements. I trust that the luggage isn't bothering too many people. Note that the luggage was delayed on the return flight, the leg of the flight when Murphy was not on any list at all. Again, if an evil government is seeking to punish its critics, couldn't they come up with something better than delaying their luggage a few hours? This brings us to the most significant evidence: the statements from an American Airlines clerk. Trying to analyze these statements is a bit tricky because we don't know who said them. Unfortunately, Professor Murphy didn't provide or recall any names. But the statements don't seem to provide much support for Murphy's beliefs. First, there is no such thing as a "Terrorist Watch List," which suggests that perhaps the clerk was just playing games or didn't know what he was talking about. Second, even in Murphy's retelling, they at best reflect a clerk's general impressions of the kinds of things that get people on the selectee list — not anything at all specific about Murphy's case. And in our searching over the last few days, we've had a pretty hard time trying to come up with evidence that what the actually was correct. When the story first broke, it seemed possible that an airlines clerk could have a better impression than most of us as to who was made a selectee. But the evidence to back up the clerk's statements didn't seem to surface. (There were a handful of reports of fears that this was happening, but the actual evidence was sparse to nonexistent.) And once again, what are the chances that an evil government would punish someone for their speech by taking away their curbside check in for a single leg of a single flight? Anyway, sorry for the long post. But I did want to cover this aspect of the story, as it seems to further confirm that this is much ado about nothing. Related Posts (on one page): The Analog Hole is Worth Twenty-Four Cents (2 of 2):
Recently, Chris Sprigman published an article called the 99 Cent Question in the Journal on Telecommunications and High Technology Law. He asked a simple question: Why are almost all major-label songs sold online for exactly 99 cents? More to the point, why don’t music labels price discriminate? They can probably sell higher quality songs at a higher price or intentionally degraded versions for less. They can try charging more for DRM-free music, or they can offer a menu of DRM restrictions; the more restrictions you’ll accept, the less you’ll pay. Maybe law professors sometimes can influence decision-making, or at least maybe Professor Sprigman can. With last week’s announcements from EMI and Apple, price discrimination is coming to online music in the form of $1.29, DRM-free, higher quality downloads. The songs won’t be available for sale for a few more weeks, but many predict that they will sell well. Unfortunately for economists, Apple decided to alter two variables at the same time – DRM and audio quality – so this won’t be a pure price discrimination experiment. Even if people show up in droves to pay 30 cents more for these tracks, will they be doing it for the freedom from DRM, the quality, or both? This brings me back to our paper. We tested whether consumers would be willing to pay different prices for different sound quality. But instead of asking whether higher quality was worth more, as Apple and EMI are asking, we asked whether consumers would pay less for lower quality music. If yes, how much less? We also used this survey to answer some fundamental questions about the analog hole and signal degradation. Before I get to our results, a few words about signal degradation: Debates about the analog hole inevitably turn to signal degradation. Each trip through an analog-to-digital converter or digital-to-analog converter degrades the signal, as information is lost in the process. For example, ambient noise and distortion can be introduced and stereo information and bass can be lost. If it is typical for analog hole copies to be significantly degraded, perhaps they are a poor substitute for traditional fair use and First Amendment rights, and maybe the content industry should not worry so much about the analog hole being a “DRM loophole.” In reality, it is hard to say what is “typical” signal degradation. Some analog hole copies are horribly degraded (aim your digital tape recorder out the window in the direction of your neighbor’s blaring boombox) and others are near perfect (spend thousands of dollars on professional-grade equipment). We chose to use the “line-out to line-in” and “speaker to microphone” tests I described yesterday, with the understanding that they were just two types of a wide variety. We generated an online survey, asking respondents to listen to pairs of recordings of songs, and to compare their subjective quality. For each song, there were three different recordings, the digital original, the line-out/line-in copy and the speaker-to-microphone copy. These were played to the respondent in pairs, and each respondent heard and was asked to compare all nine possible pairwise combinations. (In other words, if the three recordings were A, B, and C, each respondent heard AA, AB, AC, BA, BB, BC, CA, CB, CC in some random order during the survey.) Seventy participants completed the survey. The results suggest first that our listeners could tell the difference between the analog hole copies and the original digital files, but perhaps not on the scale we had anticipated. In side-by-side preference tests, the digital original was picked approximately 51 percent more often than the line-out/line-in copies and 42 percent more often than the speaker-to-microphone copies. But we didn’t stop there. We also randomly assigned hypothetical prices to each song in each pair, and asked our respondents to select based on both quality and price. For example, if A was played alongside B, we would ask “If A cost $0.55 and B cost $0.25, which do you prefer?” In this way, we set up a stated preferences econometric model. This statistical technique allowed us to isolate specific consumer preferences when many factors—utility, cost, and quality—interacted. Read the paper if you want more detail. The bottom line is the model allowed us to calculate the population’s willingness to pay for quality. How much less, if any amount, were listeners willing to pay for signal-degraded, analog hole copies than for their digital originals? The answer is tantalizingly specific: our respondents found the difference in quality in the analog hole copies to be worth 24 cents (23.9828 cents to more significant digits). In other words, if ordinary digital tracks cost 99 cents, these respondents would be willing to pay 75 cents for a lower-quality copy. What does this all mean? If it wanted to, the music industry could probably price discriminate in the way we’ve described. If it offered lower-quality music downloads for less money, it would probably find a market. Although lower-quality tracks are no cheaper to produce than the standard-quality tracks sold today, lower-quality files are usually smaller, resulting in less bandwidth to distribute, leading to possible cost savings. Also, lower-quality tracks may be good enough for an iPod but not for a home audio system, which could possibly spur multiple purchases of the same song by the same consumer. More likely, the music industry will follow the lead of the EMI/Apple deal, and attempt to price discriminate for higher prices, if at all. It is unclear whether our result is generalizable to that situation. My stay here is almost up. This weekend, I'll try to post once or twice with some reflections about this week's stimulating discussions. Related Posts (on one page):
Sopranos:
I just finally watched the newest episode of the Sopranos last night. It took me 6 days and multiple phone calls to get Verizon Fios to activate HBO for me. They kept telling me that my order was having trouble "flowing" through the system--yet somehow there was no one who could get it unstuck. There are many reasons why I wouldn't recommend Verizon Fios, but the pure incompetence in dealing with that simple request, and the degree of frustration and time, is a big one. Since this may not be of interest to a lot of readers, I've put the extended under hidden text. I'd be interested in hearing your own comments and speculations on what is going on. I know a lot of people were down on the first part of Season 6, but I have enjoyed it throughout. I see three themes emerging and building to the end of the series: (show) Thursday, April 12, 2007Time to Revamp Rational Basis Review:
Eugene's most recent post notes yet another case where courts have purportedly applied "rational basis" scrutiny to a law, but in reality have held it to a stricter standard. If judges believes that a particular classification deserves a less deferential form of scrutiny, they may well have good reason for reaching that conclusion. But instead of pretending to apply the rational basis test, they should explicitly indicate that they are applying a higher standard, such as "intermediate scrutiny" (the level of scrutiny now applied to sex-based classifications), or "strict scrutiny (applied to racial, ethnic, and religious classifications). Traditionally, a law that is only subject to "rational basis" review by courts applying the Equal Protection Clause of the Fourteenth Amendment, would almost certainly be upheld. The law or regulation need only be "rationally related" to a "legitimate government interest," with no real judicial scrutiny of 1) the likelihood that the law actually will succeed in promoting the "interest" in question, or 2) the degree to which the enactment of the law actually was motivated by the supposed interest. The whole point of the rational basis test was to ensure that only most incredibly moronic of laws using a given classification would be struck down. In recent years, however, courts have increasingly used the rational basis test to strike down laws that would almost certainly be upheld under the traditional ultradeferential version of the test. Eugene's post on the Tenth Circuit's decision to strike down Oklahoma's rule for considering the admission of nonpublic schools to the state athletic association is a noteworthy recent example; as Judge McConnell explains in his concurrence, the rule would almost certainly be upheld under the standard form of rational basis review. Perhaps the most famous example is <Romer v. Evans, a 1996 case where the Supreme Court essentially held that some kinds of laws discriminating against homosexuals, although officially subject to rational basis review, would in reality have to pass a more stringent version of the test than that applied to most other laws. In many cases, I think that increasingly stringent judicial scrutiny is justified. But courts that decide to hold a given type of classification to a higher standard should be open about what they are doing, instead of pretending to apply the traditional rational basis test. Otherwise, it will be difficult to distinguish between those classifications that are still subject to the traditional highly deferential rational basis scrutiny, and those that must pass a stricter "rational basis plus" standard. This point is particularly relevant to appellate courts, especially the Supreme Court. Perhaps the most important function of appellate courts is to provide clear rules for lower courts to follow in making decisions. To be sure, it may be that Supreme Court justices would like to continue to fudge the meaning of the rational basis test in order to increase their discretion in deciding future cases. A law discriminating against homosexuals that the justices dislike (such as the one in Romer) can be struck down by applying "rational basis plus," while one that they prefer to leave alone (such as a ban on homosexual marriage), can be upheld under the traditional rational basis test. And all of this can be done without ever explicitly committing the Court to any clear general rule governing judicial scrutiny of sexual orientation classifications. However convenient for the Supreme Court, this kind of sleight of hand undermines the transparency of the legal system, and also makes it difficult for lower courts to apply Supreme Court precedent consistently. If the Supreme Court majority believes that laws discriminating on the basis of sexual orientation require greater scrutiny than that imposed on ordinary legislation, they should write an opinion explicitly stating that holding, and outlining the higher standard that such classifications must meet. It may be unoriginal to suggest that appellate court decisions should mean what they say and say what they mean. But it's a good - and even "rational" - rule nonetheless. Related Posts (on one page):
Religion:
From Judge McConnell's separate partial concurrence and partial dissent in Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n (Apr. 9):
The substantive question that divides the panel -- and that divides the Tenth Circuit from the New York Court of Appeals -- is also quite interesting. Related Posts (on one page): Ethnically/Racially Linked Law Journal:
What is the oldest (whether existing or defunct) ethnically/racially linked law journal — which is to say a publication for articles that are at least partly of intellectual interest (as opposed to pure professional news value), and that is expressly tied to a particular ethnic/racial subgroup within the U.S.? I think I have an answer, which I will post tomorrow, unless someone beats me to it. If you think you have an answer, please post it to the comments, and indicate the date that your candidate started publishing. Posing for a Playboy Video and a Would-Be Lawyer's "Character and Moral Fitness" Evaluation:
A reader pointed me to this story:
I would surely not advise would-be lawyers -- or almost anyone who doesn't really really need the money -- to pose naked in Playboy TV series. Rightly or wrongly, such behavior may make employers and clients think the less of you. This having been said, it seems to me that it would be a clear First Amendment violation for a state bar to consider this in the character and fitness evaluation. The government, even in its capacity as licensor, generally may not penalize you for exercise of your First Amendment rights; and making sexually themed videos is part of your First Amendment rights just as is making other videos (at least unless the videos are child pornography or are such hard-core porn that they fit within the category of obscenity). The government has been historically granted some extra latitude when it comes to licensing lawyers. Consider the controversial Illinois decision denying racist Matthew Hale bar membership based chiefly on his racism, see In re Hale, 723 N.E.2d 206 (Ill. 1999), or the Supreme Court decisions allowing exclusion of those who refuse to swear or affirm that they will support the Constitution of the United States (and that of the relevant state), see Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971). Lawyer speech may also be restricted in situations where citizen speech may not be, see Gentile v. State Bar, 501 U.S. 1030 (1991). But these are narrow exceptions to the broad protection that lawyers, alongside other citizens, enjoy; before lawyers may be disciplined, disbarred, or denied bar membership based on their speech there needs to be a pretty powerful explanation of why the speech may undermine the administration of justice. No such explanation seems likely here. I should note that I called up the Committee on Character and Fitness, to check whether the quote accurately represented the Committee's view; the person I spoke to said he couldn't comment on the subject. So it's possible that the Daily News misunderstood the matter, or that their source misspoke -- I much hope that this is so. But if the bar does try to exclude the applicant based on her participation in the making of a constitutionally protected video, that would be a pretty clear First Amendment violation. And I say that as a Penn & Teller-certified expert on naked breast law. The Price of Music and the Analog Hole (1 of 2):
Today, I will switch from the Superuser article to describe a short article I have co-authored entitled The Analog Hole and the Price of Music: An Empirical Study, which will be published imminently in the Journal on Telecommunications and High Technology Law. The citation will be 5 J. on Telecomm. & High Tech. L. 573 (2007). I talked briefly about the article last month while guesting at Concurring Opinions, and I’ll try not to repeat much of what I said over there. My co-authors — Doug Sicker, Assistant Professor of Computer Science at the University of Colorado, and Shannon Gunaji, a recent graduate of the University’s Interdisciplinary Telecommunications Program — conducted a series of experiments and surveys initially designed to test various aspects of the Analog Hole, but which ended up being much broader in scope. The first result, which appears last in the paper, is based on a survey of people who reported that “most of [their] digital music collection was obtained through illegal file sharing.” (Note, the older draft hosted on SSRN contains an inaccurate definition of the class of people in this survey.) We also limited our survey to people who reported not to have purchased music from an online store in the previous six months. I’ve learned this week to prepare to be called to task for terminology, and I’m sure many of you will let me know why we shouldn’t have called these people, “so-called pirates.” Our surveys explore the price of music. Some have complained that 99 cents is too much for a song, especially for students and other people with low incomes. They have argued that given the low costs of online music distribution, music companies should experiment pricing below 99 cents. Swirling around this discussion is the question: would pirates be willing to pay anything for music? Or are we dealing with a subset of people who would rather download music for free than pay anything? Our 90 survey respondents were asked at what price point they would be willing to pay for music. They split into a bimodal distribution. Twenty percent were not willing to pay anything for music. The remaining 80% were willing to pay from 20 to 40 cents for a legal download, instead of obtaining copies from non-paid sources. We also gave the respondents space to comment on why they would prefer to purchase instead of pirate. Aggregating these answers, they appear motivated by three things: the desire to own legal content, the convenience of being able more easily to find songs, and the guarantee of a high-quality product. Finally, we asked the survey respondents for their thoughts about DRM. Eighty percent indicated that were they to purchase music, they would want the flexibility to move the music onto different media players or to control and access it in various other ways. Second, we looked at the analog hole. As I said in the other blog post I have written about this paper:
This is known as the analog hole, which as I say in the paper, “arises as an inevitable byproduct of the interface between computer technology and human biology.” If we humans are to see or hear relatively-easy-to-protect digital content, it must first be converted into harder-to-protect analog signals. The analog hole comes up in the DRM/DMCA debates in interesting ways. For example, many debate whether the DMCA’s prohibitions on DRM circumvention should be amended to add exceptions for the exercise of First Amendment and Fair Use rights. Is the law unconstitutional without such exceptions? Those who oppose new DMCA exceptions for fair use (content owners, mostly) point to the analog hole in response. Don’t worry, they say, because you can always exercise these rights by exploiting the analog hole. In litigation, in the face of Constitutional challenges to the DMCA, courts in 321 Studios and Corley accepted similar arguments. Others have fired back, arguing that the Analog Hole is a poor substitute for DRM-protected content, because it is too complicated or costly to exploit. (See footnotes 17 and 18 of the article for citations to legal scholars who have made this argument.) In other words, exploiting the Analog Hole requires a Superuser. Our research suggested otherwise. We created analog copies of digital songs in two ways: first, by running a cable from a computer’s “line out” jack into the “line in” jack of another computer; second, by placing one computer’s high-end speakers next to another computer’s high-end microphones. In the latter case, we needed access to expensive hardware, and in both cases, we had to install software that did not come bundled with our computers. Furthermore, both tests were somewhat time consuming. Still, neither case required much technical know-how. Although this result probably does not surprise any VC readers, we thought it would be helpful to publish our anecdotal, qualitative observations. Tomorrow, I’ll talk about the loss of sound quality which results from exploiting the analog hole. Do consumers notice or care about this loss of quality? Would consumers be willing to buy music with degraded sound quality for less money? I’ll also talk about what all of our results may say about the recent EMI/Apple announcement. Here’s a teaser. What’s the analog hole worth? Exactly twenty-four cents. (of course, the article is short, so you can quickly learn the punch-line today.) Related Posts (on one page):
More on Joshua Bell Playing in the DC Metro:
A number of readers enjoyed the Washington Post's story this weekend about Joshua Bell playing in the DC Metro. On Monday, the Post did an online chat with the author of the piece, Gene Weingarten, that sheds light on the story and reader reaction to it. (Hat tip: ZSM)
Priceless:
From the University of Maine student newspaper (Sept. 16, 2002):
On the other hand, in 2005, when a fraternity upset with Fiacco because they were being disciplined for various offenses publicized, among other things, a "set of court documents and two newspaper articles discuss Fiacco’s conviction of Driving While Ability Impaired (DWAI), where he had a blood alcohol content of .089 percent," Fiacco sued it for intentional infliction of emotional distress. So let's see if I understand this: When a legally adult student is found through university administrative processes to have violated alcohol laws, his parents not only may but should be notified. But when someone discovers that a university administrator has pled guilty in court to violating drunk driving laws, notifying the public of this is supposedly tortious, and in Mr. Fiacco's view ought to lead to substantial damages liability (including punitive damages). I realize that it's possible that Mr. Fiacco, despite his fairly high position within the university disciplinary system, was simply following orders back in 2002, and wasn't involved in actually creating the parent notification rule, or opposed it internally. Maybe. But is it too much to ask that a university administrator in charge of enforcing a system such as this tolerate student revelations of his alcohol infractions, just as students are supposed to tolerate his revelations of their alcohol infractions? (Yes, I realize that the students tried to convey Fiacco's past to the public, and Fiacco's office has a policy of conveying it to the parents. But surely conveying something to parents can be highly embarrassing, and intrusive into the student's lives, especially given that the infractions may involve little threat to others, while Fiacco's infraction involved not just illegal possession of alcohol but drunk driving; and conveying the information to the public has the benefit of informing the public about the character of its public servants. I also realize that the university's motive is the students' own good and the fraternity's motive may have been retaliation, though it might also have been exposing someone who they thought was unfit for his job. But whatever the motive, the means strike me as pretty similar; and it seems particularly improper that an administrator who uses such means against students would try to use the legal system to punish students who use similar means against him.) Wednesday, April 11, 2007On Cooper, Nifong, and Actual Innocence:
The rap on Roy Cooper (the North Carolina Attorney General) among my friends who know a good bit about him is that he is overcautious — a smart guy who is too often hesitant and a bit of a plodder. People I know who followed the investigation closely were confident that Cooper's investigators had concluded that the charges against the lacrosse players were without merit and that the lacrosse players were in fact innocent, but the betting money seemed to be that Cooper would issue a bland statement saying that there wasn't enough evidence to support a trial and leave it at that. That, after all, is the easy way out — the path of least resistance. He could have said that there was insufficient evidence, and that he would not go beyond that characterization because no further statement about the strength of the evidence was necessary for his decision. And I imagine that his political advisors probably told him that this would be the politically safe route to take (I can see counter-arguments, but my guess is that would have been their advice). I find it remarkable, then, that he went so much further, saying that the accused players were in fact innocent, that there was no credible evidence against them, that the accuser's many different statements could not be rectified and that she contradicted herself, etc. This was not a garden-variety statement about insufficient evidence but instead was about as complete a vindication as the defendants could have imagined. Indeed, I think that Cooper said just about everything that the defendants could have wanted. Cooper must have really been convinced. One final note: A defense lawyer (or a libertarian) treating this as a cautionary tale about the awesome power of a "rogue prosecutor" to run amok is not a surprise. But an attorney general framing the case that way is more striking. Not that Nifong didn't deserve this drubbing — just that I wasn't betting on it. David Brooks on the Influence of Walt and Mearsheimer in the Arab World:
It seems that a significant reason that people believe conspiracy theories, whether about "Big Pharma," 9/11, the Bush Administration, the "Israel Lobby," or anything else, is that the theories in question provide what appear to be "rational" support for views that were already deeply held from "the gut". And it doesn't hurt if the conspiracy theory advances the believers' self-interest. Walter Murphy--The Argument From Authority:
With regard to Prof. Murphy's claims about himself and the TSA, discussed previously by Orin, I've noticed several comments on blogs and discussion lists suggesting that we should presumptively credit both his account of the event and his interpretation of it because he is a respected emeritus professor at Princeton. Without getting into the merits of the claims [acknowledgment: I do tend to agree with Orin's take], I find it interesting that some would think Prof. Murphy's academic position is meaningful evidence of credibility. Academics, it seems safe too say, often believe strange things, even (especially?) academics with prestigious positions at top universities. Whether or not they believe strange things less often than the average person, but it's certainly not exactly unheard of. Putting aside the bizarre attraction "scientific" Marxism has had among prominent academics for generations, consider, for example, that one of the leading opponents of the accepted theory that HIV causes AIDS is a professor of molecular biology at University of California at Berkeley and a (former?) member of the National Academy of Science. Then there's the Harvard psychiatry professor who has become a leading academic advocate of the view that people have been abducted by aliens flying "UFOs." More generally, in my work on expert witnesses and junk science, I've seen that it's not at all unusual for well-credentialed experts with impressive academic titles to sincerely believe (and testify to in court) all sorts of ridiculous nonsense. Of course, the fact that some professors at prestigious universities have not been paragons of believability does not mean that Prof. Murphy isn't 100% right. But, on the other hand, contrary to what some have argued, the fact that he taught at Princeton isn't evidence that he's right, either. University Administrator Suing Student Group:
By the way, a quick query on my part suggests that the Fiacco v. Sigma Alpha Epsilon Fraternity decision noted below hasn't led to any newspaper coverage. The Bangor Daily News covered the lawsuit when it was filed in Sept. 2005; but the April 5 decision I quote below doesn't seem to have made the news, or even the Foundation for Individual Rights in Education site. Related Posts (on one page):
New Twist for University Administrators Who Want To Silence Criticism:
Sue the critics for intentional infliction of emotional distress — even if their criticism consists of distributing accurate public record information about you. Here's an excerpt from Fiacco v. Sigma Alpha Epsilon Fraternity:
Fiacco then sued SAE for a variety of charges boiling down to intentional infliction of emotional distress. Fortunately, the court concluded that Fiacco was a public official or at least a limited public figure, and the statements about him were about matters of public concern, so that the First Amendment barred intentional infliction of emotional distress liability unless the statements about him were knowing or at least reckless falsehoods. (The Supreme Court's Hustler v. Falwell decision so held; whether such liability based on true statements or opinions is permissible where the subject is a private figure, or the statements are on matters of private concern, has not squarely been resolved, though the majority of lower court cases considering the subject have extended Hustler v. Falwell to all statements on matters of public concern, whether about public figures or not.) The court also held that the statements about Fiacco were substantially true. And, finally, the court quite sensibly held that "Even if the First Amendment did not prevent recovery on this cause of action, the dissemination of truthful, publicly available documents is not sufficiently outrageous to permit recovery [as a matter of state tort law]." My view: The SAE people sound like no saints, if the initial charges against them are correct (and they may well be). But whatever their possible sins, a high-level university official — an official who has judicial responsibility — shouldn't be trying to sue people or groups for telling the truth about him, a truth that may well bear on his suitability for his job. I think the emotional distress tort should generally be abolished as to otherwise protected speech (i.e., speech that doesn't fit within the First Amendment exceptions, such as for threats, falsehoods said with a sufficiently culpable mental states, and the like). But wherever you stand on that, university administrators should have more respect than Mr. Fiacco has shown for students' freedom to criticize them, and to convey the truth at institutions where truth is supposed to be the paramount value. David Fiacco "remains in his position as the Director of Judicial Affairs" at the University of Maine. UPDATE: Some commenters disagree with my condemnation of Fiacco on the grounds that the SAE people seemed to have been motivated by a desire to retaliate against him. But so what? Maybe they were just upset that he was taking them to task. Maybe they thought he had behaved badly in the proceedings against them, and saw themselves as blowing the whistle on his poor character. (I don't know why he had been recused from the proceedings, and who if anyone was at fault in that.) It doesn't matter. People are, and should be, free to tell the truth about university officials, without being dragged into court and having to spend tens of thousands of dollars in legal fees. And university administrators should not sue students and student groups who reveal the truth about them (even if they are suing with their own money, as seems to have been the case here). There was once a different rule, at least in criminal libel cases and in some jurisdictions in civil libel cases, too: Even true statements could be punished as libel if the defendant couldn't prove that he spoke "with good motives and for justifiable ends." But the Supreme Court rightly rejected this, reasoning: Debate on public issues [including the character and behavior of public officials -EV] will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, "it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded." Moreover, "[i]n the case of charges against a popular political figure ... it may be almost impossible to show freedom from ill-will or selfish political motives."Or, as the Court said in Hustler v. Falwell, "in the world of debate about public affairs [again, including the character and behavior of public figures -EV], many things done with motives that are less than admirable are protected by the First Amendment." University officials who sue students and student groups for telling the truth about them deserve to lose in court, and to be condemned by the public. Related Posts ( |