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Saturday, March 22, 2008
Gun Rights and Reconstruction:
Charles Lane, author of The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction, writes in today's Washington Post about the import of Reconstruction for understanding the extent to which the Constitution protects gun ownership.
During oral arguments on Tuesday, the justices debated what the framers of the Second Amendment intended. The members of the court did not mention Reconstruction. Yet during this period, we the people gave the Union a second "founding" through constitutional amendments abolishing slavery, granting blacks citizenship and enabling them to vote. And, to clarify blacks' newly secured freedom, Congress wrote laws identifying the specific rights of individual U.S. citizens. One of these was the right to have guns.
Before the Civil War, gun ownership was a prerequisite not only of militia service but also of participation in sheriffs' posses and for personal defense. But it was a right for whites only. Southern states forbade slaves to own guns, lest they revolt. (Free blacks, in the North and South, could sometimes have guns under tight restrictions.) After the Civil War, the same Congress that made African Americans citizens through the 14th Amendment considered the antebellum experience and concluded that equal access to arms was a necessary attribute of blacks' new status.
The Freedmen's Bureau Act of 1866 promised that "personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens." This was no theoretical concern. As senators noted during the debate on the bill, many Southern states sought to reimpose legal bans on gun ownership by blacks -- leaving them at the mercy of Klansmen and other white terrorists.
Purim Headlines:
A day late, but the Jewish equivalent of April Fools headlines. Very funny.
Weingarten on the Pundustry:
In the Sunday Washington Post Magazine, humorist Gene Weingarten reports on his experiment wholly immersing himself in Web, TV, radio, and newspaper punditry for 24 hours straight.
Talk About Old News:
From the Associated Press: STAR EXPLODES HALFWAY ACROSS UNIVERSE The explosion of a star halfway across the universe was so huge it set a record for the most distant object that could be seen on Earth by the naked eye.
A star 7.5 billion light years away exploded, giving off the brightest gamma-ray burst afterglow ever seen.
The aging star, in a previously unknown galaxy, exploded in a gamma ray burst 7.5 billion light years away, its light finally reaching Earth early Wednesday.
The gamma rays were detected by NASA's Swift satellite at 2:12 a.m. "We'd never seen one before so bright and at such a distance," NASA's Neil Gehrels said. This story is sooooo 7.5 billion years ago.
Taiwan Presidential Election: Results and Process.
1. Election Results. The Nationalist Party (Kuomintang, KMT) presidential candidate Ma Ying-Jeou won a landslide victory today, defeating the Democratic Progressive Party candidate Frank Hsieh by 17% (58.5% to 41.5%). Ma won about 7.6 million votes, compared to 5.4 million for Hsieh. The results exceed even the election-eve expectations of the KMT, which was hoping that its internal polls showing a victory margin of about 11-13% would hold up.
Compared to the 2004 election (in which the DPP's margin of victory was only 0.22%), the KMT improved its performance in every Taiwan county by 7-10%, and won 20 of the 25 counties. (The only county where the KMT did not improve dramatically was Kinmen County, which consists of some small islands very near to China; a large percentage of the population of Kinmen County is military and their families, and the military has historically favored the KMT. The KMT got about 95% in Kinmen in both 2008 and 2008.) The only counties with the DPP won were a cluster in southwest Taiwan, the party's heartland.
The KMT and DPP positions on domestic policy were not greatly different, but the DPP nevertheless suffered from voter unrest about lower economic growth rates in recent years, in comparison to the rapid economic growth of not long ago. The parties have significant differences on international relations, particularly on how to deal with China, but both Ma and Hsieh are moderates within their parties. For further analysis of the policy implications of the election results, tune in next to a webcast of a TV program in which I interviewed a pair of Taiwanese political scientists. (Details later.)
The DPP also performed very poorly in the January elections for the legislature (Legislative Yuan), in part because a group of 11 DPP incumbents were defeated in primaries by hard-liners who could not carry swing districts. Nevertheless, because Hsieh is a moderate, there is a significant possibility that DPP's remaining moderates may be driven from leadership roles.
President-elect Ma will take office on May 20.
A pair of initiatives were also on the ballot, regarding Taiwan's membership in the UN. A DPP referendum asked if Taiwan should apply to join the UN under the name of "Taiwan." A KMT counter-initiative asked if Taiwan should apply to "rejoin" the UN under the name of "Republic of China" or "any other convenient name." Both initiatives received an overwhelming majority of votes cast, but neither passed, because the law states that no initiative will be valid unless 50% of eligible voters (not actual voters) vote on the initiative.
2. Election Process. The voting and vote-counting were a model of integrity, transparency, and efficiency. I observed voting at three north-central Taipei precincts: at St. John Bosco Catholic Church, and at a pair of precincts voting at National Taipei University.
Throughout Taiwan, voting was by paper ballot, with marked ballots placed into sealed ballot boxes. Photography during the voting process is forbidden, but is allowed while the ballot are being counted.
 When the ballot box is opened, and vote-counting begins, each ballot is held up one-by-one, and the vote is announced. The vote-counting is open to the public, and is observed by party representatives, as well as other interested citizens.
 Each vote is recorded on a tally sheet which is also visible. Each small box on the tally sheet holds a total of five votes, which are recorded one at time with hashmarks. The completed five-strokes of the hashmark form a Mandarin character which means "correct" or "upright."
 After the last ballot is tallied, the empty ballot box is displayed for all to see.
 The results are transmitted to a district election office, and then the district results are sent to the Central Election Commission, where results are displayed as fast as they are recorded.
 The Central Election Commission's work (which was conducted in an auditorium at the National Police Academy) is open for everyone to watch, with the data processors located at the front of the room.
Between the time when we left our precinct after the votes were counted, and when we arrived at the Central Election Commission, about half an hour had elapsed. By then, the CEC was already displaying over half of the votes cast nationwide.
In a typical American general election, which may have dozens of races and issue votes, it would be very difficult to achieve such speedy results with hand-counting. Even so, the transparency of the Taiwan process inspires confidence and helps assure legitimacy.
As in any election, there are plenty of people who are disappointed with the result, and no one should minimize the difficulty of the challenge that President Ma will face in ensuring that when he leaves office in 2012 or 2016, Taiwan's freedom and sovereignty have not been eroded by its aggressive neighbor. But for now, all the people of Taiwan should be proud of their beautiful island of freedom, and their successful exercise of the inherent right of the sovereign people to chose their government.
Friday, March 21, 2008
Post-Game Wrap Ups From the Heller Line:
Was it worth it to wait in line for a day or two to see the Heller argument? Apparently so, at least according to the people who did it. GW Law students Tyson Horrocks and Ryan Haws were #3 and #4 in line, and they raved about the experience. A few questions I asked them: Kerr: So you waited in line for about 36 hours for the Heller argument. Was it worth it?
Haws: Absolutely. Oral arguments were incredibly interesting, and the Justices' interplay over the limits of the second amendment was lively and included some great one-liners. I feel like I couldn't have chosen a better day for a first visit.
Kerr: What was the high point of the experience?
Haws: The argument was obviously the high point, but the wait wasn't bad. The line was full of law students, attorneys, and gun enthusiasts, and the discussion was always interesting. Also, who can complain about having so much time to spend reading the best casebook ever?
Kerr: What was the low point of the experience?
Horrocks: The low point was Sunday night into Monday morning. The wind was brisk so it was FREEZING cold. It was one of those mornings that you looked at your clock around 3 in the morning and were thankful the night was halfway over.
Kerr: What did you do with all your stuff when you finally got into the Supreme Court building?
Horrocks: Ryan Haws' wife came and picked up the bulky gear at around 6:15 Tuesday morning. The rest of our stuff was placed into a locker inside the building. Another group of GW law students was near the end of the line that got in to the argument; "Mr. MG" filed his report here.
Oh, Those Hypocritical Conservative Justices.
Here they talk about "strict construction, federalism, and judicial modesty." And now we see that the Heller Second Amendment argument "is about" "the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe." "After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right." That's what Dahlia Lithwick (Slate) reports.
Here's the trouble: To some people, the Second Amendment is not a new constitutional right. It's an old constitutional right, right there in the text. To say "that 'when a fundamental right is at stake, there is a role for judicial review,'" as Lithwick quotes Heller's lawyer saying, is not "in the spirit of Roe v. Wade." It's in the spirit of every case (say, every First and Fourth Amendment case) that is applying a constitutional right that's right there in the constitutional text.
Now of course some argue that the Second Amendment's text, properly interpreted, does not secure an individual right. I disagree with this, and so apparently do the conservative Justices, but there's obviously such an argument to be made. But Lithwick doesn't make it.
Lithwick says the conservatives are "abandon[ing] ... strict construction." But to actually make this bare assertion into an argument, she has to do two things. First, Lithwick must show that the conservative Supreme Court Justices have actually espoused "strict construction." Justice Scalia, for instance, has expressly rejected it: "Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be -- though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be constructed reasonably, to contain all that it fairly means ...." Second, Lithwick must show that an individual rights view of the Second Amendment is inconsistent with strict construction (or, better yet, with whatever the conservative Justices have actually endorsed). Her account doesn't even try.
Likewise as to "judicial modesty." (David Bernstein has covered federalism very well in an earlier post.) Judicial modesty can mean many things; for instance, it could mean not reaching out beyond the facts of a particular case in order to set forth broad principles for the future. On this view, striking down the handgun ban on individual-rights grounds but reserving for later other questions (such as the proper standard of review for narrower regulations, the proper rules for other weapons, and so on) would be quite modest.
Or it could mean reading the provision in a way that doesn't unnecessarily interfere with the political branches, which sounds like what Lithwick is referring to. ("[Dellinger] reminds Kennedy that he of all people would hate a 'national government that sets a single standard for rural and urban areas, for East and West, North and South,' and that the right to own guns causes 'disputes among experts' such that the courts should hang back and allow the local legislatures to thrash it out.")
But again this assumes the conclusion about what the text means. After all, the conservative Justices agree that, for instance, the First and Fourth Amendments "set[] a single standard for rural and urban areas, for East and West, North and South" and constrain "local legislatures." They may disagree about the particular standard that should be chosen (and in very rare circumstances, such as obscenity law, they may endorse slightly different standards for different areas). Yet they agree that "judicial modesty" means not unnecessarily interfering with the political branches, and they agree that it is necessary to enforce those constitutional constraints that the constitutional text actually imposes.
There are a few scholars whose view of "judicial modesty" is that judicial review should be largely or entirely abandoned. (Lino Graglia at the University of Texas is one.) But none of the conservative Justices on the Court have ever endorsed this view.
Finally, consider one more quote: "When Gura says that the court should be taking normative questions out of the hands of legislature," Lithwick writes, "the transition to Upside-Down World is complete. This question is too complicated for anything but the policy judgments of the court? It's as if he's channeling the whole Warren Court at once." The conservative Justices have many disagreements with the Warren Court, on matters such as Miranda or (reaching into the early Burger Court) Roe v. Wade. But all of them have agreed that enforcing those rights that are actually constitutionally protected isn't "channeling the whole Warren Court" but rather channeling Chief Justice Marshall's position in Marbury v. Madison and in the other constitutional cases that went after it.
It's always appealing to accuse the other side of hypocrisy or inconsistency with its own stated beliefs -- after all, one can then set aside the hard work of actually showing why their beliefs are wrong, and instead point out that their positions are mistaken even under their own stated principles. But to do this, one actually needs to demonstrate an inconsistency, with the other side's actual beliefs and not with the beliefs that one is ascribing to them for rhetorical purposes. Related Posts (on one page): - Oh, Those Hypocritical Conservative Justices.
- Lithwick on Heller:
Taiwan Election Coverage:
In about seven hours, the polls will open for Taiwan's presidential election. Incumbent President Chen Shui-Bian is term-limited, so the race is between Frank Hsieh, of the Democratic Progressive Party (the same party as Chen), and Ma Ying-Jeou, of the Kuomintang (Nationalist Party). The public release of polling information is forbidden in the days before the election, but many observers believe that Hsieh is rapidly closing a large gap in the polls.
An important factor working in Hsieh's favor is the rioting in Tibet, a reminder of China's brutal suppression of a formerly independent nation; although the Chinese government has renamed Tibet as the "Tibet Autonomous Region," Chinese treatment of the Tibetans ever since the Chinese conquest half a century ago serves as a reminder that the Chinese government's promises of autonomy are sometimes worthless.
Mr. Ma, the former mayor of Taiwan's capital city, Taipei, has proposed forming a common market with China, and his party, the KMT, is generally seen as more conciliatory to China than is the DPP. (However, DPP candidate Hsieh is seen as much less inclined than President Chen to push the envelope on China issues.)
As a result, Ma has made a point of taking a tough line on the Tibet issue. He contrasted Taiwan and Tibet by stating that unlike Tibet, Taiwan is "sovereign"--an indisputably accurate fact, although one with many appeasement-minded KMT members have been reluctant to say out loud. Further, he said that if Chinese government violence in Tibet continues, Taiwan might boycott the Beijing Olympics.
Over 200,000 Taiwan citizens living overseas have come home to vote in the election. The majority of these traveling voters are Taiwanese entrepreneurs and their families who live in China. One elderly man traveled 20 hours from Brazil to be able to vote.
The Taiwanese are very enthusiastic participants in their democracy, and, happily, the electorate seems less polarized than in the bitterly-contested 2004 election.
By Taiwanese law, all public rallies must end by 10 p.m. on the night before the election. A little bit ago, I attended the KMT's final pre-election rally in Taipei. Neither presidential candidate Ma Ying-Jeou nor his running mate Vincent Siew were at the rally, since both spent the day in campaigning in southern Taiwan. Below are some pictures from the rally. I didn't arrive in Taipei in time to attend the DPP's big rally there two nights ago; I wish I had, so that I could also post DPP photos.
VC readers will be pleased to know that both Hsieh and Ma have law degrees, and that Ma earned a LLM from Harvard.
These photos are taken from near the front of the rally; they don't convey the size of the crowd, which was huge, or the sounds of the loud and enthusiastic crowd.
The woman in the middle of the above picture (to the left of the man in the lavender shirt) had flown in from Los Angeles to vote.
The KMT is the leading party of the pan-blue coalition; while the DPP leads the pan-green coalition. Hence the DPP's campaign symbol of a bluebird. The flags, of course, are those of Republic of China, which is Taiwan's formal name.
Siew is on the left, Ma on the right.
Fellowships for Aspiring Law Professors:
Paul Caron has a very useful list here. Interestingly, almost none of these programs existing when I was on the teaching market 13 years ago, though I somehow managed to procure a one-year grant to be a research fellow at Columbia. FWIW, of the five entry-level professors George Mason has hired so far this year, four have served as either post-J.D. research fellows or visiting assistant professors.
Child Abuse:
I find the following quote, from the article on vaccines linked to by Jonathan, below, horrifying:
In the wake of last month’s outbreak, Linda Palmer considered sending her son to a measles party to contract the virus. Several years ago, the boy, now 12, contracted chicken pox when Ms. Palmer had him attend a gathering of children with that virus. "It is a very common thing in the natural-health oriented world," Ms. Palmer said of the parties.
I had chicken pox as a kid, and I remember it as a very unpleasant experience, to say the least, and I didn't have an especially severe outbreak. Measles, I take it, is worse and also more dangerous. Parents like Ms. Palmer are not only exposing their own children to horrible illnesses easily preventable by vaccines, but they are putting other children, including my own daughter, at risk, since the measles vaccine is only 95% effective. (And what about adults who either received an ineffective vaccine or immigrated from a country where vaccination was not universal)? A Ms. Carlson says, "I cannot deny that my child can put someone else at risk."
Without the externality of putting other people at risk, I think mandatory vaccination would be a close call. With it, I'd say that unless a parent is going to keep his children at home and not expose them to vaccinated children, make them get vaccines. Too unlibertarian for you? Make them pay a fine equal to the monetary value of the level of risk to others they're creating, to be used perhaps to subsidize vaccination programs for the poor, thus reducing the risks from elsewhere.
The Risks of Rejecting Vaccinations:
The New York Times reports on public health concerns about the growing number of parents who refuse vaccinations for their children.
Children who are not vaccinated are unnecessarily susceptible to serious illnesses, they say, but also present a danger to children who have had their shots — the measles vaccine, for instance, is only 95 percent effective — and to those children too young to receive certain vaccines.
Measles, almost wholly eradicated in the United States through vaccines, can cause pneumonia and brain swelling, which in rare cases can lead to death. The measles outbreak here alarmed public health officials, sickened babies and sent one child to the hospital.
Every state allows medical exemptions, and most permit exemptions based on religious practices. But an increasing number of the vaccine skeptics belong to a different group — those who object to the inoculations because of their personal beliefs, often related to an unproven notion that vaccines are linked to autism and other disorders.
Twenty states, including California, Ohio and Texas, allow some kind of personal exemption, according to a tally by the Johns Hopkins University. . . .
In 1991, less than 1 percent of children in the states with personal-belief exemptions went without vaccines based on the exemption; by 2004, the most recent year for which data are available, the percentage had increased to 2.54 percent, said Saad B. Omer, an assistant scientist at the Johns Hopkins Bloomberg School of Public Health.
While nationwide over 90 percent of children old enough to receive vaccines get them, the number of exemptions worries many health officials and experts. They say that vaccines have saved countless lives, and that personal-belief exemptions are potentially dangerous and bad public policy because they are not based on sound science.
“If you have clusters of exemptions, you increase the risk of exposing everyone in the community,” said Dr. Omer, who has extensively studied disease outbreaks and vaccines.
It is the absence, or close to it, of some illnesses in the United States that keep some parents from opting for the shots. Worldwide, 242,000 children a year die from measles, but it used to be near one million. The deaths have dropped because of vaccination, a 68 percent decrease from 2000 to 2006.
“The very success of immunizations has turned out to be an Achilles’ heel,” said Dr. Mark Sawyer, a pediatrician and infectious disease specialist at Rady Children’s Hospital in San Diego. “Most of these parents have never seen measles, and don’t realize it could be a bad disease so they turn their concerns to unfounded risks. They do not perceive risk of the disease but perceive risk of the vaccine.”
Thursday, March 20, 2008
A New Pun to Complement
"erogenous zoning": sex-traterritorial jurisdiction (as in "Sex-Traterritorial Jurisdiction and the Exercise of Federal International Police Power after United States v. Clark, 435 F.3d 1100 (9th Cir. 2006)").
"Erogenous zoning," by the way, seems to be credited to Larry Tribe; it's used in the 1988 edition of his treatise.
Pro-Business Lawyering and Punitive Damages:
Jeff Rosen's
New York Times Magazine article on the Supreme Court and business reports, among other things, on Ted Olson's work with getting the Court to review punitive damages awards. ("According to his peers in the elite Supreme Court bar, he more than anyone else is responsible for transforming the approach to one of the most important legal concerns of the American business community: punitive damages awarded to the victims of corporate negligence.") I'm a great admirer of Olson's generally. Olson did argue the first such recent case, Bankers Life & Cas. Co. v. Crenshaw (1988), though the Court there held that all the constitutional claims other than the equal protection had been waived below. And Olson has worked a great deal to promote the anti-punitive-damages claim in public debate.
Nonetheless, at the Supreme Court most of the punitive damages work has come from other lawyers — and, more than any other lawyer, from my Mayer Brown colleague Andrew Frey (I consult for Mayer on a part-part-part-time basis). Andrew argued four such cases: Browning-Ferris Industries v. Kelco Disposal (1989), Honda Motor Co., Ltd. v. Oberg (1994), BMW v. Gore (1996), and Philip Morris USA v. Williams (2007). The last three of these he won.
There were, of course, other cases argued by other lawyers -- besides Olson in Bankers Life, Bruce Beckman argued to limit punitive damages in Pacific Mutual Life Ins. v. Haslip (1991), Sidley's Carter Phillips argued TXO Production v. Alliance Resources (1993), Howrey Simon's William Bradford Reynolds argued Cooper Industries v. Leatherman Tool Group (2001), and Skadden's Sheila Birnbaum argued State Farm v. Campbell (2003). But Frey, I think, is the one who stands out in the sheer number of cases he has argued -- nearly half of all the Court's recent constitutional punitive damages cases -- as well as is the number of his victories. I've got to say that it's pretty cool to work with people like that (though it would surely be cool to work with Ted Olson, too!).
I also thought I'd note that, excellent as Solicitor General Rex Lee was, my colleague Stephen Shapiro -- in league with Paul Bator, one of Mayer's earliest academic affiliates -- was doing business law Supreme Court cases from 1983, the year he left his Deputy Solicitor General.
Disclosure (beyond the above): I worked a very little bit on the briefing in the Philip Morris case.
Misrepresentation by JuicyCampus?
The AP reports:
New Jersey prosecutors have subpoenaed records of JuicyCampus.com, a Web site that publishes anonymous, often malicious gossip about college students.
Language on the site ranges from catty to hateful and offensive. One thread, for example, on the "most overrated Princeton student" quickly dissolves into name-calling, homophobia and anti-Semitism.
JuicyCampus may be violating the state's Consumer Fraud Act by suggesting that it doesn't allow offensive material but providing no enforcement of that rule -- and no way for users to report or dispute the material, New Jersey Attorney General Anne Milgram said Tuesday....
The attorney general has also subpoenaed the Web site's advertising agency, Adbrite, to determine how JuicyCampus represented its operation and what advertising keywords the site requested....
Can anyone tell me, please, just what JuicyCampus has been saying that is supposedly a misrepresentation?
I agree that speakers and service providers are bound by their contracts, including contracts not to say or host certain things. They may also in some situations be bound by explicit promises they make in their advertising. But it would obviously be dangerous to have them be liable for broadly "suggesting" certain things. Imagine a state Attorney General prosecuting the New York Times for "suggesting that it" is fair and accurate, and investigating whether they've defrauded consumers because of supposed bias and error. (No, seriously, that sort of prosecution would be bad.)
Likewise, imagine an attorney general going after us for "suggesting" with our comment policy that we'd delete offensive comments, but then not doing a good enough job of deleting them. Of course, we don't say we'll delete offensive comments (we try to discourage such comments, and we may delete them, but we never say we will), but who knows what someone might think we suggest? So can anyone report on what exactly JuicyCampus said that might have been false or misleading?
Fake Hyperlinks Used in FBI Child Pornography Stings:
Declan McCullagh reports that the FBI has begun using fake hyperlinks to alleged child pornography images to build cases in child porn investigations: The FBI has recently adopted a novel investigative technique: posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them.
Undercover FBI agents used this hyperlink-enticement technique, which directed Internet users to a clandestine government server, to stage armed raids of homes in Pennsylvania, New York, and Nevada last year. The supposed video files actually were gibberish and contained no illegal images.
A CNET News.com review of legal documents shows that courts have approved of this technique, even though it raises questions about entrapment, the problems of identifying who's using an open wireless connection--and whether anyone who clicks on a FBI link that contains no child pornography should be automatically subject to a dawn raid by federal police. . . .
The implications of the FBI's hyperlink-enticement technique are sweeping. Using the same logic and legal arguments, federal agents could send unsolicited e-mail messages to millions of Americans advertising illegal narcotics or child pornography--and raid people who click on the links embedded in the spam messages. The bureau could register the "unlawfulimages.com" domain name and prosecute intentional visitors. And so on. This is a very interesting technique, although I disagree with Declan's claim that the "implications" of it are "sweeping." The key question is whether clicking on a link constitutes probable cause to search a home. There is no "automatic" answer to this question; it is always fact-specific. See Illinois v. Gates, 462 U.S. 213 (1983) ("The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him,. . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.") So you really can't analyze the technique without knowing the facts. Consider the facts of the case described in Declan's story. (Warning: The facts are graphic.) An undercover FBI logged in to a now-defunct message board hosted in Russia called "Ranchi," which the agent knew to be used for distributing images of child pornography. The agent posted a message, "here is one of my favs — 4yo hc with dad (toddler, some oral, some anal) — supercute! Haven't seen her on the board before" with links to URLS that appeared to host a file named "4yosuck". The links ended up being to an FBI computer that didn't host anything criminal, but the FBI computer collected the IP addresses of the people who clicked on the link. When the IP address resolved to an ISP in the U.S., the FBI obtained the home address associated with the account and then raided the house for the computer and any child pornography stored inside the house. Did the government's affidavit create probable cause? I would need to look at the entire affidavit to know for sure, but just based on these basic facts I would think the case for probable cause is likely to be pretty good. I assume the FBI did not in any way broadcast their IP address or host anything on that computer, and that the link came in soon after the message was posted, so it seems likely that the only incoming web traffic request would be from a link other than from the message board. And given the context, this seems like an unlikely link that someone might come across by accident. To be sure, it's possible to imagine scenarios involving innocent links or some other break in the connection between the home and the possible evidence (unsecured wireless connections, for example), but my sense is that this would still likely create probable cause (again, a call hard to make without seeing the whole affidavit, just something that is likely). Nor is there a case for entrapment at trial on these facts. For a defendant to have an entrapment defense, the government needs to pressure him to commit the crime in some way. Here there was no significant pressure; the government created and advertised the opportunity but did not excessively push the defendant to click on the link. Does this mean that the government could send you spam with apparent links to child pornography, and that if you clicked on the link the government could raid your home? No, I don't think so. In the case of spam in an inbox, a person might click on a link by mistake or out of curiosity as to what the file may be without actually knowing or expecting it to be child porn. That seems significantly less likely in the case of a link on a message board such as the one in this case. Second, a spam e-mail is unlikely to be as clearly labeled as the image in this case. What tends to make the case for probable cause in the case Declan described is the likelihood in context that a person who clicked on the link was actually looking for images of child pornography. If you change the context, you change the strength of the case for probable cause. Thanks to Michael Cernovich for the link.
Libby Loses Law License:
The Washington Post reports:
Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, was disbarred today by a District of Columbia court that ruled that his convictions last year for perjury and obstructing justice in a White House leak investigation disqualify him from practicing law.
Under the ruling by the D.C. Court of Appeals, Libby will lose his license to practice or appear in court in Washington until at least 2012. As is standard custom, he also would lose any bar membership he might hold in any other states.
Although President Bush commuted Libby's sentence, Libby was nonetheless convicted of perjury and obstruction of justice, and such convictions make the loss of his law license virtually automatic.
Watch Out for Those Sources:
Yesterday Ilya blogged about Jeff Rosen's New York Times Magazine article on the Supreme Court and business, and also linked to Eric Posner's critique. Here, I wanted to note just one factual item, small by itself but illustrative of a broader problem: [T]he progressive antagonists of big business are understandably feeling beleaguered and outgunned. “The fight before the court is generally not an even one,” said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” ... Now Rosen and Vladeck are generally careful scholars, but I'm pretty sure that Vladeck's quantitative analysis is not accurate. I searched for Public Citizen's business law cases in the Supreme Court since 2000, and came up with five (four if you omit the case against the Department of Transportation, though that strikes me as focused on a business-related matter). Here's the tally of the amicus briefs in each: - Warner-Lambert v. Kent (forthcoming 2008)
On Public Citizen’s side: 5 — AARP; National Conf. of State Legis. et al.; Public Justice, P.C.; American Ass’n for Justice; Kansas et al.;
On business side: 6 — Chamber of Commerce; Generic Pharmaceutical Ass’n; U.S.; Washington Legal Found.; Product Liability Advisory Council; Pharmaceutical Research & Mfrs. of Am.
- Riegel v. Medtronic (2008)
On Public Citizen’s side: 6 — Sen. Kennedy & Rep. Waxman; AARP et al.; Consumers Union; Many States; Public Health Advocacy Inst. et al.; American Ass’n for Justice et al.
On the business’s side: 6 — Chamber of Commerce; Advanced Medical Tech. Ass’n et al.; Product Liability Advisory Council; Washington Legal Foundation; Croplife America et al.; U.S.
- Safeco Ins. Co. v. Burr (2007)
On Public Citizen’s side: 3 — Many States; Nat’l Consumer Law Center et al.; Many Insurance Commissioners.
On business side: 12 — Mortgage Ins. Cos. et al.; Farmers Ins. Co. et al.; Ford Motor Co.; U.S.; Nat’l Ass’n of Mutual Ins. Cos.; Property Casualty Ins. Ass’n; American Ins. Ass’n; Financial Servs. Roundtable et al.; Freedomworks Found.; Consumer Data Industry Ass’n; Washington Legal Found.; Trans Union.
- Koons Buick Pontiac GMC v. Nigh (2004)
On Public Citizen’s side: 2 — Nat’l Ass’n of Consumer Advocates et al.; Commercial Law League.
On business side: 3 — American Bankers Ass’n; Michigan Bankers Ass’n; Virginia Automobile Dealers’ Ass’n.
- Department of Transportation v. Public Citizen (2004)
On Public Citizen’s side: 5 — American Public Health Ass’n et al.; South Cost Air Quality Management Dist.; Many States; Defenders of Wildlife et al.; Eagle Forum;
On Department’s side, which is pro-business: 0.
So, unless I'm mistaken, one case — Safeco — fits Vladeck's description, and the remainder do not. Maybe I omitted some case, and maybe I should have omitted Department of Transportation. But unless the SCT-BRIEF database in Westlaw is wildly and systematically inaccurate, the numbers I found (even if they need to be amended in some measure) just don't bear out Vladeck's characterization.
Now Vladeck might have been recalling cases from over a decade ago, and assuming that the pattern continued as before (his assertion, recall, is about what the fight is, not what it was). Or he might have felt outnumbered because of the higher quality of the pro-business briefs (a matter I didn't investigate, but he may well be right about it) and therefore the difference might have lodged in his head as being one of quantity rather than just quality. Or he might have focused more on hostile briefs than friendly briefs at the time, and thus underestimated the number of friendly briefs in retrospect. Or perhaps he remembered right, and Rosen misunderstood some important qualifiers Vladeck mentioned, and thus quoted Vladeck out of context.
I'm sure both Rosen and Vladeck were sincerely trying to get this right. Nonetheless, unless I'm missing something big, the quote that Rosen gives — and that Rosen seems to be conveying as a true statement — is mistaken. (Rosen does start by saying this is what "the progressive antagonists of big business are understandably feeling," but in context it seems clear that he's reporting their statement of the facts as actual fact, and not just as their incorrect view.)
So the bottom line: Even experienced, thoughtful, scholarly sources can get the facts pretty badly wrong. When the facts are available to you (and here this is just a matter of a few Westlaw queries), it's better to check those facts yourself.
UPDATE: Some readers suggested that I misread Vladeck as speaking about Public Citizen lawsuits specifically, and that he was instead using "us" to mean "progressive antagonists of big business" and not "Public Citizen." This is quite possible, since he's no longer officially affiliated with Public Citizen. I read "us" to cover the group with which Vladeck had long been involved, and with which he presumably still maintains personal and emotional ties, but I might well have been mistaken.
Still, the Public Citizen cases I cited strike me as a reasonable stand-in for cases involving "progressive antagonists of big business"; and they suggest that such progressives do get lots of amicus briefs in their cases against big business, contrary to Vladeck's assertion. I also saw the same pattern when I went through 2007 and 2008 cases that seem to fit the progressive-vs.-big-business mold (setting aside employment law cases, which to my knowledge tend to involve a different sort of litigation dynamic; see, e.g., Fed Ex v. Holowecki (2008), 2 briefs for the employee and 2 for the employer): - Watson v. Philip Morris (2007) had 4 for business and 5 on the consumer side (counting on business's side two briefs that were ostensibly for neither party, but that focused on a procedural issue in a way that I imagine would usually benefit business).
- Bell Atlantic v. Twombly (2007) had 8 for business and 2 for the consumers.
- Environmental Defense v. Duke Energy (2007) had 11 for business and 9 for the environmental group.
- Philip Morris v. Williams (2007) had 12 for business and 12 for the consumers.
So the bottom line, it seems to me, is that whether one focuses on Public Citizen's cases or includes other recent "progressive antagonists of big business" cases, one does not see the general pattern that Vladeck describes. A few cases do fit that mold, of course (Bell Atlantic and Safeco), but not the bulk of the cases I analyzed. If someone has more comprehensive data, please let me know — but so far Vladeck's assertion seems to be mistaken.
FURTHER UPDATE: California Punitive Damages (subtitled, "An Exemplary Blog," for a little bit of tort law humor) points to the now-pending Exxon Valdez punitive damages case, which generated 7 briefs for the business side and 16 briefs for the other side. (And, yes, I checked the numbers myself.)
Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:
The New York Times covers this in an interesting article (which quotes and links to this post of mine on the subject). I'm inclined to agree with Rod Smolla that the law is likely constitutional; and this argument from Ron Collins doesn't seem to me to work:
“If the government cannot under the First Amendment compel reverence when it comes to our nation’s highest symbol [the flag],” asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, “why then can it compel reverence when it comes to lesser forms of symbolic expression?”
The law here doesn't bar speech that lacks proper reverence — it bars false statements of fact (and should reasonably be interpreted as barring only knowingly or recklessly false statements of fact), and the Court has held that false statements of fact generally lacks constitutional value. Nonetheless, as I argued in my earlier post, the caselaw is not entirely clear on this.
UPDATE: Surreal typo in title ("medical of honor" instead of "medal of honor") fixed. D'oh! Must have seemed pretty confusing at first glance. Related Posts (on one page): - Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:
- More on the First Amendment and Knowing Falsehood:
Wednesday, March 19, 2008
Missouri Supreme Court Decision Allow Small Cities to Condemn Property for Development:
Tim Sandefur of the Pacific Legal Foundation has a post discussing today's Missouri Supreme Court eminent domain decision, which holds that small cities in that state have the power to condemn property for transfer to private developers (much like the takings upheld under the federal constitution in Kelo v. City of New London). The decision is based on Missouri statutory law and doesn't reach the question of whether economic development takings are forbidden by the state constitution. Sandefur and the PLF represented the property owner in the case.
I'm not sure whether the decision is correct under Missouri law. The dissenting justice makes a good point in noting that in Missouri (as in many other states) ambiguities in eminent domain law are supposed to be resolved in favor of the property owner. The government is not allowed to take property unless it can cite a statute clearly giving it the power to do so. However, it's possible that the relevant Missouri statute is so clear that the majority's decision is still correct.
I will, say, however, that this case only arose in the first place because Missouri is one of numerous states that have enacted post-Kelo "reform" laws that claim to ban economic development takings, but actually fail to do so.
Are Iraqis Telling the Truth When they Tell Pollsters They Want U.S. Troops Out?
In past posts on Cuba and Iran, I have emphasized the dangers of giving credence to pro-government statements made by citizens living under repressive regimes. People are unlikely to tell pollsters that they disagree with the government line if doing so might attract the attention of Big Brother's secret police. Unfortunately, Western reporters often ignore this problem. How many Americans would speak out against their government if doing so carried even, say, a 1% risk of being imprisoned, killed, or even just fired from your job?
I'm glad to see, however, that John Burns of the New York Times is aware of the issue and has tried to keep it in mind in his reporting on Iraq:
Opinion polls, including those commissioned by the American command, have long suggested that a majority of Iraqis would like American troops withdrawn, but another lesson to be drawn from Saddam Hussein’s years is that any attempt to measure opinion in Iraq is fatally skewed by intimidation. More often than not, people tell pollsters and reporters what they think is safe, not necessarily what they believe. My own experience, invariably, was that Iraqis I met who felt secure enough to speak with candor had an overwhelming desire to see American troops remain long enough to restore stability.
As Michael Totten points out in his comments on Burns' article, it is not just the memory of Saddam that might lead Iraqis to tell pollsters "what they think is safe" but the very real current danger of being targeted by insurgents or terrorists if they are perceived as pro-American. Perhaps there is only a small chance that insurgents will find out about a pro-American statement and punish the speaker. But, as discussed above, even a small chance of retaliation might be enough to intimidate many people into hiding their true views.
Totten also perceptively notes that Iraqis might sometimes make pro-American statements out of fear, especially if US troops are present:
Why would Iraqis say to me, an embedded American reporter, that they want Americans to get out of their country while well-armed Marines are standing nearby? Marines won’t punish Iraqi civilians for saying so, but I doubt very seriously that everyone in Iraq understands that.
That possibility should not be ignored. However, I think it is less likely than the other. After five years of experience with US troops, I suspect that many (though by no means all) Iraqis probably realize by now that they are not going to shoot civilians merely for saying something anti-American.
The bottom line: We don't really know what percentage of Iraqis want US troops out and what percentage want them to stay. In the generally safe Kurdish areas in the north, I suspect that the pro-American opinions expressed by most Kurds are probably genuine; they are not in much danger of violence from either the US or insurgents (and of course have strong historic reasons to welcome a US presence). People living in other relatively safe parts of the country are also probably more likely to express their true views. However, it's difficult for outside observers to determine what Iraqis living in the most violence-prone areas truly believe. On balance, I suspect that there are many more Iraqis hiding pro-American views out of fear of the terrorists than Iraqis hiding anti-American views out of fear of US forces (or those of the Iraqi government). However, that is at best an educated guess.
The beginning of wisdom on this issue is to at least recognize the existence of the problem, as Burns and Totten have admirably done.
UPDATE: The recent ABC poll of Iraqi opinion has a lot of interesting data, though the above caveats obviously apply. It reveals that Iraqis have become somewhat more optimistic since the surge began and that 38% of Iraqis say they want US troops to leave immediately, down from 47% in August; 59% now say that US forces should stay until stability is restored or until the Iraqi government is "stronger." About half of Iraqis (49%) now say that the US was right to invade in 2003 (compared to 50% who say it was wrong). There are still deep differences on all these issues between Sunnis, Shiites, and Kurds (With the latter expressing by far the most pro-American views).
VC March Madness:
A reminder for anyone interested that we have a VC March Madness pool over at Armchair GM. To register, you can click http://www.armchairgm.com/index.php?title=Special:SpringSillinessGroupJoin/23
Our group in the Volokh Conspiracy (or Readers of the Volokh Conspiracy) and our password is "Volokh." Be sure to capitalize the V.
The brackets will be locked down Thursday morning around 10:00 a.m., so you still have time to make your picks.
There is no entry fee. My colleague Ross Davies, Editor of the Green Bag, has generously agreed to donate both a Scalia and a Kennedy bobblehead. The winner gets first choice and the runner-up the other. In addition, to the winner I will award a Volokh Conspiracy T-shirt.
Armchair GM has set up the scoring system as a simple one: 1 point for each correct first round pick, 2 for second, 4 for third, 8 for fourth, 16 for fifth, and 32 for picking the national champion. No points for picking upsets or any other bells and whistles.
PLEASE SUBMIT ONLY ONE BRACKET PER PERSON. I hope that admonition will be sufficient, but we will be checking as well. Anyone who submits more than one bracket will be disqualified. If you have submitted more than one bracket already, please withdraw your extra ones.
Good luck!
More Info on NSA Warrantless Wiretapping Program:
According to Paul Kiel, Eric Lichtblau's new book sheds new light on the program.
Lithwick on Heller:
Dahlia Lithwik writes that the case is (potentially) about "the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe."
Except, of course, that there is no federalism issue in Heller, because the gun law at issue is D.C. law, which for constitutional purposes is considered part of the federal government.
Admittedly, if the Justices recognize an individual constitutional right to bear arms, this right will likely be "incorporated" against the states under the Fourteenth Amendment. There are many flaws in the incorporation doctrine as it currently exists, not least the undefended (and indefensible, in my opinion) assumption that the scope of rights protected under the original Bill of Rights and the 14th Amendment are necessarily the same, even though the meaning of such rights in public discourse may have changed dramatically between 1791 and 1868, and even though the states have a police power, and the federal government does not.
But surely it would be problematic to refuse to enforce a federal right against a part of the federal government just because the incorporation doctrine suggests that the right will have to enforced in exactly the same way against the states. If that is indeed a problem, it's a problem with incorporation (essentially invented by the liberal Warren Court, though that is a very long and complicated subject), and not the current majority's fealty to federalism.
Cheney on Public Opinion About the War in Iraq:
Here's an interesting excerpt of an interview with Vice President Cheney about U.S. military involvement in Iraq: MS. RADDITZ: Two-thirds of Americans say [the Iraq war is] not worth fighting.
VICE PRES. CHENEY: So?
MS. RADDITZ: So? You're not — you don't care what the American people think?
VICE PRES. CHENEY: No, I think you cannot be blown off course by the fluctuations in the public opinion polls. I realize this exchange won't change any opinions. If you support U.S. policy, it shows how wonderfully steadfast Cheney is in doing what's right even when the American people don't appreciate it. If you oppose current U.S. policy, it shows that Cheney is arrogant and perhaps delusional. Either way, I thought it was an interesting exchange. For more on American public opinion about the war over the last five years, Wikipedia has this page. And thanks to Phil Carter for the link.
Snyder v. Louisiana:
The Supreme Court overturned a death sentence today in a 7-2 opinion written by Justice Alito, Snyder v. Louisiana. The decision is very fact-specific: It found clear error under Batson v. Kentucky for removing a black juror during jury selection. Justice Thomas dissented, joined by Justice Scalia, and accused the majority of unfairly reading the record to set aside the sentence.
Someone's Never Heard of the Constitution's "General Welfare" Clause?:
The U.S. Constitution gives Congress the power to tax and spend only for the "general welfare." The Supreme Court has essentially left it up to Congress to determine what constitutes the general welfare. ["The line must still be drawn between one welfare and another, between particular and general . . . . The discretion, however, is not confided to the courts. The discretion belongs to Congress."] Congress doesn't take this responsibility very seriously, if its members even recognize it exists, as evidenced by Senate Majority Leader Harry Reid's comment: "The Founding Fathers would be cringing to hear people talking about eliminating earmarks."
Doc Nix v. Knute Rockne:
For the first round matchup of George Mason v. Notre Dame, Rick Garnett of Mirror of Justice and Prawfsblog hereby announce the contest of the tournament--bobbleheads to the winner!
If Notre Dame wins then I will award Rick a bobblehead of the mighty Doc Nix, the fabulous conductor of the George Mason pep band (proceeds to the Edison High School Marching Band). As to the good Doc's natty attire, it was well-described in Dan Steinberg's Washington Post column this morning :
Nix was, as always, dressed in a style that could either be described as "flashy but classy" or "cut from a cloth that Elliot Spitzer's friends might recognize."
If I win, Rick will award me a Notre Dame bobblehead to be named later (watch his blogs for an update).
And for those who assume that God will give the Domers an edge, I note this additional observation from Steinberg:
At one point, campus chaplain Father Peter Nassetta appeared, in sunglasses and collar, slapping high five with the Doc and then exuberantly leading his band through Bon Jovi's "Livin on a Prayer;" Nassetta's [sic] later pointed out that the song's name has certain religious implications.
A Layman's Guide to Heller (unabridged):
Thanks to Jonathan for noting my Wall Street Journal column yesterday. I was up at 4am and in line at 5am to be number 19 in the Supreme Court bar line. It ended up being sort of fun. The people around me were interesting and when the sun finally rose, I saw lots of people I knew with whom to chat. The argument was well worth attending also. I may comment on it later if I can. Here is me, taken by Gary O'Connor with his IPhone in the near dark:
In the meantime, here is the original version of my op-ed for the WSJ, which ran the requested length of 1200 words. They then found themselves in a space crunch due to some market stories. (What sort of paper do they think they are running?? Where are their priorities??) Consequently, they cut my essay down to 800 words. It is not easy to cut a piece by 1/3, but their editing was skillful and clever. I thought some VC readers would find it instructive to compare the the published version with the original to see how the editors accomplished this, and what they decided to leave on the cutting room floor (Note that the unpublished version is unedited and may contain glitches for the pedants in the crowd):
A LAYMAN’S GUIDE TO HELLER
Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several DC citizens contending that the ban on the possession of operable firearms inside one’s home violates the Second Amendment. The Circuit Court of Appeals for DC agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions; and the majority and dissenting opinions in this case will be taught in law schools for years to come. Here’s a layman’s guide the significance of the case—and its limits.
Heller Will be Decided on Originalist Grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the “dead hand of the past.” They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the “dead hand” of dead justices?
Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be abridged.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context.
So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution. Heller reveals that today’s debate over originalism is really about whether old nonoriginalist Supreme Court decisions should supercede the Constitution’s original meaning when doing so leads to results that nonoriginalists like better.
The Second Amendment Protects an Individual Right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias—notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons and the Tenth Amendment expressly distinguishes between “the people” and “the states.” Beginning in the 1980s, a deluge of scholarship showed why the collective rights interpretation is false.
Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states. This is also true of the approach advanced by U.S. Solicitor General Paul Clement: find an individual right but then still largely defer to the judgment of the District (which is not how the Court protects other individual rights). Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much affect on current gun laws. Here’s why.
Heller is a Federal Case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the Fourteenth Amendment, which limits state powers. This conclusion is not forgone.
Nowadays, the Court asks whether a particular rights is “incorporated” into the Due Process Clause of the Fourteenth Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward—especially given the overwhelming evidence that the right to keep and bear arms was among the “privileges or immunities of citizens” to which the Fourteenth Amendment refers. Indeed, those who wrote the Amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias.
Heller Involves a Complete Ban on Operable Firearms in the Home. DC not only bans all handguns, it makes it illegal to possess in one’s home any operable firearm. No state has a comparable law; only scattered municipal firearms bans would be immediately threatened. And the Court would still have to decide how much scrutiny to give gun regulations that fall short of complete prohibition. Furthermore, the DC gun ban is only being challenged as it applies inside the home. So a ruling against DC would not immediately affect most laws governing firearms in other venues.
Most Existing Gun Regulations Would Likely Be Upheld. Under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would gun rights. However, because political support for the right to keep and bear arms is so powerful, only gun laws with pretty plausible justifications actually get enacted—e.g., laws against felons owning firearms. Therefore, even if the Court decides to scrutinize federal and state regulations, rightly or wrongly, most would likely be upheld.
Then Why Is Heller So Important? Although the implications of striking down the DC gun ban are limited, a decision upholding an unqualified individual right in Heller would still be significant. For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty. The right to arms is so politically popular, even Democratic candidates for president feel they must support it—albeit only for hunters. Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense. Once the Supreme Court recognizes an individual right, lower court challenges to pretextual regulations that may not currently be brought may well be allowed.
But gun rights supporters should also be careful what they wish for. While a Supreme Court decision favoring gun rights in Heller might induce more legislative caution before enacting gun laws, it could also allow legislators to shift responsibility for assessing constitutionality to the courts. And supporters of the gun rights groups that have so effectively protected the right to arms might become apathetic thinking the courts would protect them. Now that Heller is before the Court, however, these risks are worth running. To shrink from enforcing a clear mandate of the Constitution—as, sadly, the Supreme Court has often done in the past—would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen. Related Posts (on one page): - A Layman's Guide to Heller (unabridged):
- Randy Barnett on Heller in WSJ:
Law and Economics of Subprime Lending:
My new article, "The Law and Economics of Subprime Lending" is available for download on SSRN. If the past few months are any indication, I'll have to post an updated version of the article next week (and the week after...). Thanks also to VC Commenters who pointed me to some very useful sources when I posted on the foreclosure issue a few weeks back.
Here's the Abstract:
Abstract:
The collapse of the subprime mortgage market has led to calls for greater regulation to protect homeowners from unwittingly trapping themselves in high-cost loans that lead to foreclosure, bankruptcy, or other financial problems. Weighed against this catastrophe are the benefits that have accrued to millions of American families who have been able to become homeowners who otherwise would not have access to mortgage credit. Although the bust of the subprime mortgage market has resulted in high levels of foreclosures and even problems on Wall Street, the boom generated unprecedented levels of homeownership, especially among young, low-income, and minority borrowers, putting them on a road to economic comfort and stability. Sensible regulation of subprime lending should seek to curb abusive practices while preserving these benefits.
This article reviews the theories and evidence regarding the causes of the turmoil in the subprime market. It then turns to the question of the rising foreclosures in that market in order to understand the causes of rising foreclosures. In particular, we examine the competing models of home foreclosures that have been developed in the economics literature - the "distress" model and the "option" model. Establishing a correct model of the causes of foreclosure in the subprime market is necessary for sensible and effective policy responses to the problem. Finally, we review some of the policy initiatives that have been suggested in response to the crisis in the subprime market. Because new regulatory interventions will have costs as well as benefits, until the causes of the market‘s problems are better understood it may be that the best policy in the short-term is to do little until well-tailored regulatory approaches are available.
Five Years:
Today marks five years since the beginning of the Iraq War.
Tuesday, March 18, 2008
Supreme Court Decides Interesting Facial Challenge Case:
All the hubbub over Heller led many of us to miss today's very interesting First Amendment decision, Washington State Grange v. Washington State Republican Party. The Court voted 7-2 to reverse the Ninth Circuit and uphold Washington's blanket primary system against facial challenge; Justice Thomas wrote the majority opinion and Justice Scalia (joined by Kennedy) dissented. Ed Whelan has analysis over at Bench Memos.
VC March Madness Pool:
As I noted the other day, the good folks at Armchair GM have invited us to have a VC March Madness Pool over there. To register, you can click http://www.armchairgm.com/index.php?title=Special:SpringSillinessGroupJoin/23
Our group in the Volokh Conspiracy (or Readers of the Volokh Conspiracy) and our password is "Volokh."
There is no entry fee. My colleague Ross Davies, Editor of the Green Bag, has generously agreed to donate both a Scalia and a Kennedy bobblehead. The winner gets first choice and the runner-up the other. In addition, to the winner I will award a Volokh Conspiracy T-shirt.
Armchair GM has set up the scoring system as a simple one: 1 point for each correct first round pick, 2 for second, 4 for third, 8 for fourth, 16 for fifth, and 32 for picking the national champion. No points for picking upsets or any other bells and whistles.
Armchair GM says that they will be shutting down entries sometime Wednesday evening Thursday morning around 10:00 a.m.
I am told this is their first time hosting this sort of thing, so I hope it will go off without a hitch, but I hereby disclaim the risk that something will malfunction.
Good luck!
Update:
Brackets will lock about 10:00 a.m. on Thursday.
Update:
I ask all Conspirators to please enter only one bracket. Note that you will have to register with Armchair GM with a username then enter "Volokh" as the password--and be sure to capitalize it.
Could 3L Tuition Waiver Have Unintended Consequences?
Like Orin, my initial reaction to Harvard Law School's announcement of a tuition waiver for 3Ls who choose to work in public interest law for five years after graduation is a neat idea. Insofar as HLS is a trendsetter in legal education, this decision could induce other law schools to attempt similar measures (insofar as they can afford it). But could this policy have unintended consequences? UCLA economist Matthew Kahn thinks it might. Specifically, he thinks it could reduce the number of female HLS grads who become partners at large firms.
If women have a higher probability of accepting this new offer then men, and if once you pick this path you can't return to the private sector and make partner then my proof is complete that an unintended consequence of this new policy will be to reduce the number of women from HLS who get promoted to partner at the fancy NYC law firms.
Now , you may counter that these women weren't at the margin. You might say that the liberal women who want to enter public law were never at risk to prove Larry Summers wrong. You may be right but this subsidy doesn't help.
A key assumption in Kahn's prediction is that female law students, on the margin, will be more likely to accept the HLS offer than male students. Is this a reasonable assumption? For instance, is there empirical data suggesting that women are more inclined either a) to work in the public interest sector than men, or b) to seek alternatives to the traditional partner track? If not, is general research on political differences between men and women enough to support this assumption? And if Kahn's assumption is valid, if the new policy enables more women to pursue their desired career path, wouldn't that be a good thing? I'd be interested in the thoughts of those who know something about these issues.
UPDATE: More on Harvard's new policy at Law School Innovation.
Why Judicial Recognition of a Constitutional Right Doesn't Necessarily Mean that the Right Will Actually Be Protected:
Robert Levy, co-counsel for the gun owners in the Heller Second Amendment case, makes an excellent point in his op ed on the case today. Even if the Court recognizes the existence of an individual constitutional right to bear arms, that doesn't necessarily mean that the right will get any effective protection. The Court might recognize the existence of the right, but defer to the government in defining its scope, thereby effectively leaving the right to the tender mercies of the very officials whom constitutional rights are intended to protect against:
[C]an Washington's ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question might hinge on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, Washington's ban is impermissible....
If the district's outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it will mean that the Supreme Court intends to rubberstamp just about any regulation that a legislature can dream up - no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny. That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.
Recognition of a "right that cannot be enforced" is exactly what the Court has often done in the field of property rights. As I noted in my last post, the Court - especially in recent years - has often held that individuals are entitled to protection for property rights under the Fifth Amendment's Takings Clause and other constitutional provisions. However, they have heavily deferred to the government in defining the scope of those rights, often effectively negating them as meaningful protections for individuals targeted by the state. For example, the Court has allowed government nearly unlimited authority to define the scope of what constitutes a "public use" justify condemnation of private property under the Fifth Amendment. Entrusting the political branches of government with the authority to define the scope of a constitutional right is much like giving wolves the power to determine how much access they will |
