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Saturday, November 22, 2008
Isn't This a Bit Premature?
CBS News reports:
A school on Long Island has been renamed Barack Obama Elementary School in honor of his historic rise to the presidency.
The move at the largely black and Hispanic school in Hempstead is among the first in what will likely be a wave of name changes around the world now that Mr. Obama has been elected president, from schools and streets to parks and mountaintops.
The prime minister of the Caribbean nation of Antigua has said he's taking measures to have the island's highest mountain peak renamed Mount Obama. In Portland, Ore., students want to rename Clark K-8 At Binnsmead school. Elsewhere on Long Island, the Clear Stream Avenue School in Valley Stream will consider a renaming resolution in December....
The name Barack Obama Elementary School was the idea of children at the former Ludlum Elementary School, according to officials at Hempstead Union Free School District....
I wish President-Elect Obama does an excellent job, and if he does, he will be worth naming things after. But right now no-one really knows whether he'll be an excellent President, a mediocre President, a poor President, or a very bad President. (Keep in mind the sobering story of the Richard M. Nixon Freeway -- the name that the Marina Freeway in Los Angeles bore for a few years in the early 1970s.)
Of course, Obama has already achieved the status of the first black President, and it's quite natural for people -- especially, but not only, blacks -- to admire and celebrate this achievement, which is indeed quite stunning given American history of not so long ago. Likewise, I'm sure American Catholics celebrated John F. Kennedy's achievement of being the first Catholic President in 1960, as did non-Catholics who welcomed this marker of the decline of anti-Catholic sentiment. Other groups have celebrated similar milestones.
But important as getting a job might be, especially under the circumstances, the ultimate goal of getting the job has to be to do the job well. That's long been the premise of antidiscrimination law, and even many supporters of race- and sex-based affirmative action endorse it: The goal is to give blacks and members of other groups the same opportunity to do important jobs well -- and to help others through doing the job well -- that others have. And until a successful candidate does the job well, however historic his successful candidacy may have been, it seems to me that people should hold off on renaming institutions and landmarks in his honor.
What Is the Shortest Amendment in the U.S. Constitution?
An interesting trivia question, suggested by my father Vladimir. No fair peeking. (I didn't know the answer until I looked it up.)
Friday, November 21, 2008
Should there be judicial performance evaluation for federal judges? Campaign finance limits for state judges?
Most states have commissions which evaluate the performance of state judges. Would it be a good idea to institute similar performance review of federal judges? For judicial elections, are campaign contribution/spending ceilings constitutional? What about bans on candidates personally soliciting contributions? There are the topics of a symposium issue of the Denver University law review, including a foreword by Justice O'Connor. Comments on these topics are very welcome--but only after the commenter has read at least one of the articles in the symposium.
AG Mukasey on How to Handle Detainees:
Today's WSJ has an op-ed by U.S. Attorney General Michael Mukasey that addresses similar issues to the speech he was delivering last night at the Federalist Society's Annual Lawyers' Convention before he was incapacitated. Among other things, he called upon Congress to enact new legislation concerning the treatment and trial of detainees in accordance with the following principles:
First, Congress must make clear that release from the Guantanamo Bay military base does not mean that a detainee is entitled to enter the United States. Where a court finds that a detainee cannot be held as an enemy combatant, he should be returned to his home country or another country willing to receive him. He should not be permitted to jump the immigration line and enter this country.
Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies. Simply put, Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review. . . .
Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.
Of note, it appears that AG Mukasey is doing better, as he was released from the hospital earlier today. Like Orin, I wish Mukasey a full and speedy recovery.
Do You Now Own, or Have You Ever Owned, a Gun?
The Politico reports on a curious addition to the Obama transition personnel questionnaire for potential appointees to the new Administration.
Tucked in at the end of the questionnaire and listed under “Miscellaneous,” it reads: “Do you or any members of your immediate family own a gun? If so, provide complete ownership and registration information. Has the registration ever lapsed? Please also describe how and by whom it is used and whether it has been the cause of any personal injuries or property damage.”
Paul Light, professor of public service at New York University, said there was no such question for potential appointees when President George W. Bush took office in 2000.
“It kind of sticks out there like a sore thumb,” Light said.
He expressed uncertainty over why it was included but surmised it was out of an abundance of caution, a desire to avoid the spectacle of a Cabinet-level or other high-ranking appointee who is discovered to have an unregistered handgun at home.
“It’s the kind of thing that, if dug out, could be an embarrassment to the president-elect,” Light said.
UPDATE: Eugene posted about this here.
Illegal To Use the Rain Water That Falls on Your Roof?
From High Country News:
Conservation advocates, including many utilities, have embraced the idea of using water collected from roofs, and stored in cisterns or rain barrels, to reduce reliance on dwindling surface water or groundwater supplies. Yet in Utah, Colorado and Washington, it's illegal to do so unless you go through the difficult -- and often impossible -- process of gaining a state water right. That's because virtually all flowing water in most Western states is already dedicated to someone's use, and state water officials figure that trapping rainwater amounts to impeding that legal right....
Kris Holstrom, who runs an organic farm outside Telluride, Colo. ... asked the Colorado Division of Water Resources for a permit to collect runoff from building roofs -- and was denied. "They felt that the water belonged to someone else once it hit my roof," she says. "They claimed that the water was tributary to the San Miguel River" -- which runs some three miles from her place and is fully allocated to other users downstream....
Elsewhere, the practice thrives underground. In July, a store in Durango, Colo., [the Eco Home Center,] hosted about 30 people at a presentation about water harvesting. Laurie Dickson, owner of the ... Center ... readily acknowledges that she regularly sells such water-harvesting supplies as rain barrels and filters. "It's not illegal to sell the parts. It's kind of like 'don't ask, don't tell.'" ...
Thanks to Prof. Robert Sheridan for the pointer.
Attorney General Nominee Eric Holder, the First Amendment, and Crime-Facilitating Speech:
InstaPundit points to a 1999 program in which Eric Holder -- then Deputy Attorney General, and now President-Elect Obama's choice for Attorney General -- was expressing support for "reasonable restrictions" on certain kinds of Internet speech. I thought I'd give a bit more context, especially since it relates to one of my research areas.
The recording seems to come from an April 25, 1999 Face the Nation segment discussing the Littleton massacre. Here's an excerpt from the CBS transcript: [Host BOB] SCHIEFFER: Mr. Holder, you can also learn how to make a bomb on the Internet, on the Web. How do you police that?
Mr. HOLDER: Well, it's very difficult, given the tenor of the recent Supreme Court cases. The court has really struck down every government effort to try to regulate it. We tried with regard to pornography. It is going to be a difficult thing, but it seems to me that if we can come up with reasonable restrictions, reasonable regulations in how people interact on the Internet, that is something that the Supreme Court and the courts ought to favorably look at.
I assume that Holder was talking about what was then a bill, but was enacted four months later (Pub. L. 106-54) as 18 USC § 842(p): (p) DISTRIBUTION OF INFORMATION RELATING TO EXPLOSIVES, DESTRUCTIVE DEVICES, AND WEAPONS OF MASS DESTRUCTION.--
(1) DEFINITIONS.--In this subsection--
(A) the term 'destructive device' has the same meaning as in section 921(a)(4);
(B) the term 'explosive' has the same meaning as in section 844(j); and
(C) the term 'weapon of mass destruction' has the same meaning as in section 2332a(c)(2).
(2) PROHIBITION.--It shall be unlawful for any person--
(A) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence; or
(B) to teach or demonstrate to any person the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of, an activity that constitutes a Federal crime of violence.
I discuss this statute, among many others, in my Crime-Facilitating Speech article in the Stanford Law Review. I conclude that subsection 2(B), which basically deals with individualized giving of crime-facilitating information to a particular person, is constitutional (much like aiding and abetting laws are generally constitutional, even when applied to speech, and even when they require only knowledge that the aid will be used in criminal ways rather than a purpose that it be so used). But I argue that subsection 2(A), even though it is limited to speakers who have the purpose of promoting violent crime by some of their unknown listeners, is not constitutional, for reasons I go into at great length.
Nonetheless, I think there are plausible arguments in favor of the constitutionality of subsection 2(A), canvassed at length in this 1997 Justice Department Report on the Availability of Bombmaking Information. So if I'm right that then-Deputy Attorney General Holder was discussing this proposal -- which seems likely -- rather than some more comprehensive attempt to restrict online speech, then it seems to me that his view of the matter is moderate and defensible, though I have come to disagree with it.
The latest Global Trends report is out.
Here are some of its predictions for 2025, with some comments.
A global multipolar system is emerging with the rise of China, India, and others. The relative power of nonstate actors—businesses, tribes, religious organizations, and even criminal networks—also will increase.
By 2025 a single “international community” composed of nation-states will no longer exist. Power will be more dispersed with the newer players bringing new rules of the game while risks will increase that the traditional Western alliances will weaken. Rather than emulating Western models of political and economic development, more countries may be attracted to China’s alternative development model.
International legal institutions will weaken as the power of members with diverse ideological and political goals increases relative to that of the United States and the rest of the west. Consensus-based organizations (nearly all of them) will become paralyzed. As the still wealthier west finds itself increasingly outnumbered it will pull out of or subvert majoritarian institutions such as they are. Likely victims: the UN Security Council and General Assembly, the WTO, and the International Criminal Court. A “league of democracies,” a “responsibility to protect” (civilian populations from genocide), and other fantasies that can be found in political discourse from time to time today will disappear entirely. Human rights norms, however, will expand to include prohibitions on defamation of religion and of ethnic groups.
Terrorism is unlikely to disappear by 2025, but its appeal could lessen if economic growth continues in the Middle East and youth unemployment is reduced. For those terrorists that are active the diffusion of technologies will put dangerous capabilities within their reach.
Opportunities for mass-casualty terrorist attacks using chemical, biological, or less likely, nuclear weapons will increase as technology diffuses and nuclear power (and possibly weapons) programs expand. The practical and psychological consequences of such attacks will intensify in an increasingly globalized world.
The early twenty-first century civil libertarian critique of government surveillance and detention activities will seem as eccentric in 2025 as the early nineteenth century critique of the national bank seems to us today.
Council Member Says She'll Vote Against Church Rezoning Request Because of the Church's Ideology:
The Beaufort (S.C.) Gazette reports:
A county board voted to rezone a greater Bluffton church over the objection of one County Council member who said she'll vote against it because of the Catholic church's stance on reproductive rights and other issues....
During the discussion, Laura Von Harten, who represents Beaufort and Port Royal, but is not a member of the land committee, said she won't support the rezoning when it comes before the council because official Catholic policies are an "affront to my dignity and all of womankind."
Von Harten cited the Catholic church's position against female clergy and "uterus rights" as her reason for opposing the rezoning request.
"I don't want to support anything that will perpetuate that," she said. "I just have to vote in favor of love and not hate." ...
The Catholic News Agency reports the councilwoman's quote further:
If land must be rezoned, she said, “I want it to be to create a loving inclusive mixed-use community and that's the only way I will give up rural land... I just have to vote in favor of love and against hate when I see hate.”
How about voting in favor of First Amendment rights and not against them, or in favor of being "inclusive" of views you disagree with? Fortunately, the member has apparently acknowledged that denying a rezoning request on such a basis is improper:
Saying she intended no infringement of anyone’s religious freedom and did not intend to disparage any individual member of the Church, she added:
“I respect the rights of all people to worship in the church of their choosing. Given the history of persecution endured by members of the Catholic Church, I regret my insensitivity on this matter.”
Saying she was “truly sorry” for having “interjected” her concerns about the Catholic Church into a zoning discussion, she claimed she had “meant only an extension of my overall opposition to development that restricts access on the basis of factors such as race, age or gender but it was an inappropriate forum.”
“Please be assured that I have been reminded of the importance of separation of church and state in matters of land use, and have learned a great deal from this incident,” Von Harten continued, asking for forgiveness and pledging “to approach my duties as councilwoman from a more restrained and objective viewpoint.”
Glad to hear it, though I hope she also recognizes the importance of not discriminating against land users based on their speech, whether they are "church[es]" or not: Such discrimination is a Free Speech Clause violation, not just a matter of the "separation of church and state."
Thanks to Religion Clause for the pointer.
The Attorney General:
I was there along with about half of the other Conspirators (and many VC readers) when Attorney General Michael Mukasey collapsed tonight during his speech to the Federalist Society at its annual banquet. As I write this, we still don't know what happened, but we are all thinking of the Attorney General and of course we all wish him a very speedy recovery.
Thursday, November 20, 2008
Eric Holder on firearms policy:
Earlier this year, Eric Holder--along with Janet Reno and several other former officials from the Clinton Department of Justice--co-signed an amicus brief in District of Columbia v. Heller. The brief was filed in support of DC's ban on all handguns, and ban on the use of any firearm for self-defense in the home. The brief argued that the Second Amendment is a "collective" right, not an individual one, and asserted that belief in the collective right had been the consistent policy of the U.S. Department of Justice since the FDR administration. A brief filed by some other former DOJ officials (including several Attorneys General, and Stuart Gerson, who was Acting Attorney General until Janet Reno was confirmed)took issue with the Reno-Holder brief's characterization of DOJ's viewpoint.
But at the least, the Reno-Holder brief accurately expressed the position of the Department of Justice when Janet Reno was Attorney General and Eric Holder was Deputy Attorney General. At the oral argument before the Fifth Circuit in United States v. Emerson, the Assistant U.S. Attorney told the panel that the Second Amendment was no barrier to gun confiscation, not even of the confiscation of guns from on-duty National Guardsmen.
As Deputy Attorney General, Holder was a strong supporter of restrictive gun control. He advocated federal licensing of handgun owners, a three day waiting period on handgun sales, rationing handgun sales to no more than one per month, banning possession of handguns and so-called "assault weapons" (cosmetically incorrect guns) by anyone under age of 21, a gun show restriction bill that would have given the federal government the power to shut down all gun shows, national gun registration, and mandatory prison sentences for trivial offenses (e.g., giving your son an heirloom handgun for Christmas, if he were two weeks shy of his 21st birthday). He also promoted the factoid that "Every day that goes by, about 12, 13 more children in this country die from gun violence"--a statistic is true only if one counts 18-year-old gangsters who shoot each other as "children."(Sources: Holder testimony before House Judiciary Committee, Subcommitee on Crime, May 27,1999; Holder Weekly Briefing, May 20, 2000. One of the bills that Holder endorsed is detailed in my 1999 Issue Paper "Unfair and Unconstitutional.")
After 9/11, he penned a Washington Post op-ed, "Keeping Guns Away From Terrorists" arguing that a new law should give "the Bureau of Alcohol, Tobacco and Firearms a record of every firearm sale." He also stated that prospective gun buyers should be checked against the secret "watch lists" compiled by various government entities. (In an Issue Paper on the watch list proposal, I quote a FBI spokesman stating that there is no cause to deny gun ownership to someone simply because she is on the FBI list.)
After the D.C. Circuit Court of Appeals ruled that the D.C. handgun ban and self-defense ban were unconstitutional in 2007, Holder complained that the decision "opens the door to more people having more access to guns and putting guns on the streets."
Holder played a key role in the gunpoint, night-time kidnapping of Elian Gonzalez. The pretext for the paramilitary invasion of the six-year-old's home was that someone in his family might have been licensed to carry a handgun under Florida law. Although a Pulitzer Prize-winning photo showed a federal agent dressed like a soldier and pointing a machine gun at the man who was holding the terrified child, Holder claimed that Gonzalez "was not taken at the point of a gun" and that the federal agents whom Holder had sent to capture Gonzalez had acted "very sensitively." If Mr. Holder believes that breaking down a door with a battering ram, pointing guns at children (not just Elian), and yelling "Get down, get down, we'll shoot" is example of acting "very sensitively," his judgment about the responsible use of firearms is not as acute as would be desirable for a cabinet officer who would be in charge of thousands and thousands of armed federal agents, many of them paramilitary agents with machine guns.
Judge McConnell on When a Suspect Is Seized:
In a decision handed down last week, United States v. Thompson, Judge Michael McConnell of the Tenth Circuit had an apt observation about the Supreme Court test for when a person is "seized" for Fourth Amendment purposes: According to formal legal doctrine, an encounter between an individual and the police is consensual when “a reasonable person would feel free ‘to disregard the police and go about his business.’” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991). In addressing this question, however, we must be guided by the Court’s decisions in similar cases rather than our own experience regarding how reasonable people actually respond to police investigations.[Fn1]
[FN1: It might bring greater clarity to this area of the law if the test were framed in terms of whether the officer’s behavior is coercive rather than whether, under the circumstances, the reasonable person would feel “free to disregard the police,” which we suspect is unrealistic.] I think Judge McConnell is basically right here. The Supreme Court's stated test is artificial: the Justices have a sense of the kind of circumstances that they want to be regulated by the Fourth Amendment, and they haven't done a very good job of articulating that sense through a legal standard. The Court ended up adopting the "reasonable person would feel free to leave" test because it does cover a number of useful cases: If the police order someone to stay, then they have exerted control over the situation and that should be regulated, while if the police haven't made a showing of force, then that is something that the Fourth Amendment should sensibly not regulate. But the "reasonable person" formulation ends up being artificial, as Judge McConnell suggests, because (as you might guess) most people just don't feel free to walk away from a police officer. The Supreme Court has tried to address this problem a bit by clarifying that the standard is of a reasonable innocent person, apparently on the theory that a reasonable innocent person has no reason to fear the police. But again, that's unrealistic: most people don't feel free to walk away even if they feel they're totally innocent. I end up advising my students along the lines of what Judge McConnell suggests: Apply the test based on analogy to decided cases applying it rather than by relying on the natural meaning of its words. But even then, judges — and Justices — sometimes split on this. An interesting example of the split is Yarborough v. Alvarado, 541 U.S. 652 (2004), an AEDPA case where the Supreme Court divided on whether a state court had reasonably applied the law to whether the suspect was in custody for Miranda purposes (an inquiry that is very similar to when a person is seized for Fourth Amendment purposes). The majority, in an opinion by Justice Kennedy, applied the test by analogy to the facts of decided cases: From that perspective, the state court's application of the law was reasonable. The dissent, in an opinion by Justice Breyer, applied the test by relying on its formal terms: From that perspective, the state court's application of the law was unreasonable. Whether the state court application of the law was reasonable depended on whether you interpreted the doctrine by analogy to case-by-case application or as the formal test, and the Court split 5-4 on that. Thanks to FourthAmendment.com for the link.
Where Barack Obama and I Agree:
In earlier posts, I have highlighted some issues on which I agree with prominent liberal politicians, such as with Hillary Clinton on Iraqi oil, and Dennis Kucinich's opposition to public subsidies for the new Yankee Stadium. I am glad to be able to add Barack Obama to this list, as he has recently taken a position on an important issue that I agree with completely:
Barack Obama has revealed his first major policy initiative: college football reform. In Obama's first televised interview since winning the presidency, he explained what's wrong with the current system, in which computers help determine the two teams that play for the national championship. "I think any sensible person would say that if you've got a bunch of teams who play throughout the season, and many of them have one loss or two losses—there's no clear decisive winner—that we should be creating a playoff system," Obama said. "I don't know any serious fan of college football who has disagreed with me on this. So, I'm gonna throw my weight around a little bit. I think it's the right thing to do."
I'm much more a pro sports fan than a college fan. But I too believe that the BCS computer system is a terrible way to determine a national championship. True champions win their bragging rights on the field.
Bankruptcy and the Detroit Three:
Jim's excellent post notes one-half of the argument against a Detroit bailout--that it is an unusually bad case for a bailout because of the need for long-term structural reform that a bailout is not going to provide.
But the other half of an argument against a bailout is that GM (or the others, but I'll use GM to illustrate the point) presents an unusually good case for Chapter 11 reorganization. GM is, in fact, the textbook example of what Chapter 11 was invented to do. GM almost certainly will not liquidate, and if it does, then this will almost certainly be beneficial from a social perspective because it will illustrate that the resources are better deployed elsewhere in the economy.
The fundamental question for any bankrupt business is whether the business is economically failed or financially failed.
Economically Failed: If the business is economically failed, then this means that the current deployment of assets to that company is economically inefficient--i.e., the opportunity cost of using the assets in this manner is less than their current deployment. For instance, if a typewriter manufacturer were to file bankruptcy today, it is likely that the firm would be economically failed. There is a limited market for typewriters and it is shrinking. The financial, physical, and human capital dedicated to typewriter manufacturing would probably be better redeployed to other places in the economy, such as to making computers.
Financially Failed: A financially failed firm is one where the value of the current asset deployment still exceeds the opportunity cost of the assets, but the firm is temporarily unable to generate sufficient revenue to cover its costs. This might be either because revenues are too low or costs are too high. For instance, when Texaco got tagged with a gigantic liability judgment by Pennzoil, Texaco was basically a healthy enterprise with one gigantic liability to deal with. When Boston Market filed bankruptcy, it used bankruptcy to close unprofitable stores (it basically expanded too fast)--there the liabilities were the contingent liabilities of landlord claims associated with closing the stores. When the Pittsburgh Penguins filed bankruptcy, there the idea was both to deal with certain liabilities (Mario Lemieux's unproductive contract) and also to try to generate more revenues by renegotiating bad contracts for sale of concessions, etc.
The basic idea of a financially failed enterprise is that there are economic rents or "going-concern surplus" from the current deployment of assets. The idea of a Chapter 11 reorganization is to preserve this going-concern surplus or economic rents.
GM is a classic example of a firm that looks like a financially failed rather than economically failed. We have both physical capital and human capital with high firm and industry-specific value, namely factories and uniniozed work forces, which value would be lost if those assets were redeployed. It also has at least some going-concern value in its goodwill and namebrands.
What GM needs to do is shed labor contracts, retirement contracts, and modernize its distribution systems by closing many dealerships. It appears to need new management as well. Bankruptcy gives them the opportunity to do all that.
So GM will almost certainly reorganize, as will the other car companies. GM does not look like an economically-failed typewriter manufacturer at this point, but rather a financially-failed company that needs to reorganize and go forward.
Federal Assistance for a Reorganization: Which brings us to the final benefit of a reorganization over a bailout--reorganization forces a market test on the enterprise to determine what is economically valuable and what is not. A bailout will inherently be a political process. Political processes are not in any way designed to determine which assets are allocated in an economically-efficient manner.
Some have expressed concern that the credit crunch has made DIP financing temporarily unavailable. I have seen no strong evidence that this is the case, although it is certainly possible. But if this is the case, then this seems like this might be a proper place for governmental intervention--basically have the government provide the DIP financing or guarantee the DIP financing (thanks to my colleague Steve Eagle for suggesting this idea).
To the extent that there was a rationale for the TARP, it was that there was a liquidity crisis in financial markets, not a solvency crisis. The idea was to save healthy banks from a bank run, not unhealthy banks from their own bad decisions. Well, GM is unequivocally a solvency problem, not a liquidity problem. As George Will has observed, it is not a quesiton of whether GM will be allowed to fail, it already has failed.
But even though GM is insolvent, an absence of DIP financing to reorganize GM in Chapter 11 would presumably be a liquidity crisis. So whereas a straight GM bailout does not follow from the logic of the TARP, it is at least arguable that the provision of DIP financing as part of a reorganization filing is consistent with the underlying premises of the bailout. But it is crucial that this money be made available, if at all, only as part of a chapter 11 filing that forces new discipline and ideally only after a demonstration that there really is no private DIP financing available.
Lessons of the Libertarian Party's Most Recent Failure:
It's hard to remember now, but back in the spring and summer, some libertarians were optimistic about Bob Barr's presidential campaign under the Libertarian Party banner. Barr's eventual failure exemplifies the flaws of the LP as a vehicle for promoting libertarianism.
As a former prominent Republican congressman, Barr was probably the best-known politician ever to run on an LP ticket. And libertarian-minded voters might have been expected to flock to his standard in a year when the Democrats nominated a highly statist candidate like Barack Obama, and the Republicans went with John McCain - a nominee whom most libertarians and pro-limited government conservatives viewed with great suspicion. Supporters hoped that Barr would win many more votes and raise much more money than previous LP nominees, and would effectively spread the libertarian message.
As Brian Doherty documents in this interesting recent article, Barr and the LP didn't even come close to meeting the high expectations. Barr only got about 500,000 votes, and his percentage of the total vote was lower than that achieved by three previous LP nominees, including the lackluster Harry Browne in 1996. Barr's fundraising results were also disappointing.
Brian's article discusses numerous possible causes of Barr's failure that were specific to his particular campaign. Some of these theories may be correct. In truth, however, Barr's failure is of a piece with the more general failure of the LP throughout its entire 36 year history. In that time, the Party has never gotten more than a miniscule share of the vote, and has failed to increase its share over time (the LP's best performance in a presidential election was back in 1980, and its performances in state and local races have also stagnated over time). The LP has also failed in its broader mission of fostering greater acceptance of libertarian ideas. There is little if any evidence that its efforts have increased public support for libertarianism to any appreciable extent. Such consistent failure over a long period of time can't be explained by the personal shortcomings of individual candidates. Barr's performance undercuts claims that the LP can do better simply by nominating a candidate with greater name recognition and more political experience than its usual selections.
For reasons that I explained in this post, the truth is that third party politics simply is not an effective way of promoting libertarianism in the "first past the post" American political system. That system makes it almost impossible for a third party to win any important elected offices. And such a party also can't be an effective tool for public education because the media isn't likely to devote much attention to a campaign with no chance of success.
Libertarians have had some genuine successes over the last 35 years. These include abolition of the draft (heavily influenced by Milton Friedman's ideas), deregulation of large portions of the economy (of which libertarians were the leading intellectual advocates), major reductions in tax rates (facilitated by libertarian economists, libertarian activists, and the legislative efforts of libertarian-leaning Republicans), the increasing popularity of school choice programs, increases in judicial protection for property rights, gun rights, and economic liberties (thanks in large part to advocacy by libertarian legal activists), and heightened respect for privacy and freedom of speech (promoted by libertarians in cooperation with other groups). Libertarian academics and intellectuals have also done much to make libertarian ideas more respectable and less marginal than they were in the 1960s and early 70s.
What all these successes have in common is that they were achieved either by working within the two major parties or by efforts outside the context of party politics altogether. The Libertarian Party didn't play a significant role in any of them.
Libertarians often emphasize that failed enterprises should be liquidated rather than kept going on artificial life support. That enables their resources to be reinvested in other, more successful firms. The point is well taken, and it applies to the Libertarian Party itself. For 35 years, the Party has consumed valuable resources, both financial and human. The money spent on the LP and the time donated by its committed activists could do a lot more to promote libertarianism if used in other ways.
In the current economic and political environment, libertarians face many difficult challenges, including a potential massive expansion of government. Now more than ever, we can't afford to fritter away our limited resources on failed political strategies. The time has come to admit that the LP is a failure and spend our precious time and money elsewhere. Related Posts (on one page): - Speech Before the Penn Libertarians:
- Lessons of the Libertarian Party's Most Recent Failure:
DOJ and New York Police Department Fight Over Wiretapping:
The New York Times reports: An effort by the New York Police Department to get broader latitude to eavesdrop on terrorism suspects has run into sharp resistance from the Justice Department in a bitter struggle that has left the police commissioner and the attorney general accusing each other of putting the public at risk.
The Police Department, with the largest municipal counterterrorism operation in the country, wants the Justice Department and the Federal Bureau of Investigation to loosen their approach to the federal law that governs electronic surveillance. But federal officials have refused to relax the standards, and have said requests submitted by the department could actually jeopardize surveillance efforts by casting doubt on their legality.
Wednesday, November 19, 2008
The Story of District of Columbia v. Heller:
Reason's Brian Doherty, has an excellent article telling the fascinating story of the origins of the lawsuit that eventually resulted in the Supreme Court's decision in District of Columbia v. Heller. Brian shows how the suit was initiated and carried forward by a small group of libertarian activists and lawyers, sometimes in the face of surprising skepticism by the NRA and other gun rights supporters.
I differ slightly with Brian in so far as I think he may overstate the extent to which Heller will actually result in increased protection for Second Amendment rights. For the reasons I set out in this Legal Times article, I think that Heller's impact may well turn out to be extremely limited. Still, the Heller litigation was at least an important symbolic victory in so far as it led the Supreme Court to recognize for the first time that the Second Amendment establishes an individual right for gun owners as opposed to a "collective right" limited to militia members.
Why I Don't Approve of My Congressman:
Polls routinely show that most Americans give very low approval ratings to Congress as a whole, but give much higher ratings to their own representatives. Count me among the minority that would give an even lower rating to their own representative than Congress as a whole. That's because my representative is the egregious Jim Moran.
Recent data reveal that Moran is one of the biggest porkers in Congress, and second only to Pennsylvania Rep. John Murtha in reaping campaign contributions from the beneficiaries of his earmarks. Of course, that's exactly what you would expect from the man who said back in 2006 that "[w]hen I become chairman [of a House appropriations subcommittee], I'm going to earmark the shit out of it." He has certainly kept his campaign promise.
Massive earmarking hardly exhausts the list of Moran's shortcomings. He has also flirted with anti-Semitism, notoriously blaming the Iraq War on "the strong support of the Jewish community for this war with Iraq, [without which] we would not be doing this." This despite the fact that Jewish opinion has consistently been more hostile to the war than general public opinion. Such statements don't definitively prove that Moran is an anti-Semite. But they do suggest that he is either anti-Semitic or grossly ignorant about the true distribution of Jewish opinion (despite the fact that his district has Virginia's largest concentration of Jewish voters), or both. None of these three possibilities speak well of Moran, to put it mildly.
Finally, Moran is likely guilty of corruption (see, e.g., here).
There are probably some congressmen who are worse than mine. But even in a body not known for its high moral standards, there can't be too many.
Opening Arguments in United States v. Lori Drew:
Kim Zetter of Wired has the story. I feel compelled to point out the very bottom of the story, which briefly notes the side that has mostly been absent from press coverage of the case: Defense attorney H. Dean Steward, delivering his opening remarks, painted a very different picture. He claimed that Drew knew about the plan to create the hoax MySpace profile and manipulate Meier, but neither encouraged nor participated in it.
Steward told the jury that forensics evidence will prove the account was not created from Drew's computer, and that no messages were sent by Drew.
A Simple Argument Against the Auto Bailout: A Bailout Would Destroy Jobs.
I have hesitated writing about the GM bailout for two reasons. First, I like GM cars; I bought two of them in March, and every car I’ve ever bought was a GM car. Second, a professor with tenure should be somewhat circumspect in writing about the jobs of people who do not have the protections that we have.
But in watching CNBC debates on the Auto Bailout, I have been frustrated by the arguments of those who favor bailouts that government largesse will on balance lead to more employment, rather than less.
Those inclined against the bailout seem mostly to say, “When will the handouts end?”
Yet the best way to meet the “jobs argument” is with another jobs argument. Making bad, uneconomic investments in failing industries does not, on balance, preserve jobs; it tends to destroy more jobs – and more good jobs – than it saves.
If you give money to failing industries to save jobs, then you are probably taking even more jobs away from other industries who would hire or retain workers but for their higher expenses. In essence, throwing money down a hole may preserve jobs in the short term but should lose jobs in the medium and long term.
If you pay for an auto bailout with today’s tax money, then over the next couple years you are taking jobs away from lots of people currently working.
If, on the other hand, you pay for today’s auto bailout with an increased deficit, then lots of future workers will be unemployed or take worse jobs in order to pay for today’s auto workers. Again, you would be taking jobs away from lots of people (mostly in the future) to preserve the jobs of auto workers and their suppliers today.
Heavily unionized businesses usually have trouble competing with non-unionized businesses. Unions are successful in getting above-market wages and benefits, which makes it difficult for the businesses to compete. In the auto industry, there are many more dealerships than necessary. And, according to Larry Kudlow, the average compensation and benefit rate for auto workers in Detroit is $72 an hour, compared to $44 an hour for foreign car workers at US plants.
Even if two of the three Detroit automakers were to go out of business, most of their workers and the workers for their suppliers would be able to get some sort of job. That the jobs they would get would pay a lot less suggests just how much they are overpaid now. If General Motors has become a health and pension plan that makes cars on the side – in other words, unions pressured bad management to make promises they couldn’t keep – then inducing GM to go out of business should be on balance good for the economy. Any government bailout should go to the Federal Pension Benefit Guarantee Corporation, to provide money to cover partial pensions for the employees of companies in the bankruptcies certain to come.
As with so many problems, it is unlikely that GM would have made such foolish deals if the government had not forced it to bargain with striking workers, rather than simply replace them. As with mortgages in the banking industry, the federal government pressured businesses to make deals that were economically bad for the businesses involved.
If an industry is contracting and there is an oversupply of productive capacity, then the worst thing we could do is prop up that industry by taking jobs away from the healthier portions of the economy (including better run automakers). If government planners really were a lot smarter and better planners than business people (they aren’t), then the government’s strategy should be to try to drive bad businesses out of business quicker, not try to destroy the healthy companies by propping up the dying companies.
The argument that the auto unions and the auto executives have already made sufficient givebacks is not credible. And as the Congressmen pointed out, the Detroit executives could have flown to Washington on commercial flights (in first class), instead of in private planes. If a business is failing, union auto wages should be priced well BELOW what nonunion auto workers make, not well ABOVE what nonunion workers make. So until the unions have given back everything above the market value of their labor, they haven’t given back nearly enough. I don’t know enough about what goes into the $72 compensation rate, but perhaps the parties should consider having all current employees, both management and union workers, take a 50% pay cut.
The only job-saving justification I can think of for a Detroit bailout is if the problem were only temporary; then destroying jobs might be imprudent. If Detroit’s business model were strong, if there were little or no overcapacity, and if Detroit’s problems were only temporary, then one could reasonably think that a bailout might be efficient. But there is no temporary market failure here to redress. Detroit’s problems have been here since the late 1970s.
Anyone who thinks that giving money to a company losing 2-3 billion dollars a month — with overpaid workers and overpaid executives – would usually save jobs in the long run, rather than lose them, doesn’t understand economics.
UPDATE: I see that David Yermack said it better.
In 1993, the legendary economist Michael Jensen gave his presidential address to the American Finance Association. Mr. Jensen's presentation included a ranking of which U.S. companies had made the most money-losing investments during the decade of the 1980s. The top two companies on his list were General Motors and Ford, which between them had destroyed $110 billion in capital between 1980 and 1990, according to Mr. Jensen's calculations.
I was a student in Mr. Jensen's business-school class around that time, and one day he put those rankings on the board and shouted "J'accuse!" He wanted his students to understand that when a company makes money-losing investments, the cost falls upon all of society. Investment capital represents our limited stock of national savings, and when companies spend it badly, our future well-being is compromised. Mr. Jensen made his presentation more than 15 years ago, and even then it seemed obvious that the right strategy for GM would be to exit the car business, because many other companies made better vehicles at lower cost. . . .
Over the past decade, the capital destruction by GM has been breathtaking, on a greater scale than documented by Mr. Jensen for the 1980s. GM has invested $310 billion in its business between 1998 and 2007. The total depreciation of GM's physical plant during this period was $128 billion, meaning that a net $182 billion of society's capital has been pumped into GM over the past decade -- a waste of about $1.5 billion per month of national savings. The story at Ford has not been as adverse but is still disheartening, as Ford has invested $155 billion and consumed $8 billion net of depreciation since 1998.
As a society, we have very little to show for this $465 billion. . . . Yet one can only imagine how the $465 billion could have been used better -- for instance, GM and Ford could have closed their own facilities and acquired all of the shares of Honda, Toyota, Nissan and Volkswagen.
The implications of this story for Washington policy makers are obvious. Investing in the major auto companies today would be throwing good money after bad. Many are suggesting that $25 billion of public money be immediately injected into the auto business in order to buy time for an even larger bailout to be organized. We would do better to set this money on fire rather than using it to keep these dying firms on life support, setting them up for even more money-losing investments in the future.
"Singapore to Compensate Kidney Donors":
BioEdge reports:
Singapore is to allow compensation for kidney transplants and for eggs. A government proposal has been approved by a bioethics committee and legislation will be introduced early next year. The committee declared that reimbursement for kidney donation was acceptable as long as it is not "an undue inducement, nor amounting to organ trading".
What exactly this means for kidneys is difficult to fathom. According to the BMJ, a sum of S$10,000 [currently about $6500 US -EV] was mentioned. According to the Straits Times, the health minister, Mr Khaw Boon Wan, mentioned "at least a five-figure sum, possibly even six-figure" as appropriate reimbursement. This would include expenses, such as transport and medical costs, as well as loss of earnings. Also, the donor should be covered for follow-up medical costs and higher insurance premiums as a result of losing a kidney....
The committee has recommended that the reimbursement scheme begin with donors who are Singapore citizens and permanent residents....
I'm not sure that sums like these are adequate or fair, but it sounds to me like a step in the right direction. For my thinking on the subject, see this chain of posts, especially those starting with "Medical Self-Defense and Bans on Payment for Organs."
UPDATE: James Wimberley (at The Reality-Based Community) blogs about Spain's way of increasing organ donations, which seems to focus on internal hospital procedures. If it works, that's great; but I'm pretty sure it wouldn't be enough to clear out the waiting lists, so compensation would still be needed -- and eminently justified -- on top of the Spanish solution. Thanks to Victor Steinbok for the pointer.
The Report on the Clinton Pardons That Called Eric Holder's Conduct "Unconscionable":
In its NRO editorial on Eric Holder, the NRO editors pointed out the congressional report that had described his conduct in the Marc Rich pardon as "unconscionable." I haven't seen the report linked to online, but you can find the report here: Justice Undone: Clememcy Decisions in the Clinton White House (2002), by the House Committee on Government Reform chaired by Dan Burton. (Search for "unconscionable" to get to the key section.)
The report offers a combination of factual reporting and speculation, and it contends that Holder's action in the Marc Rich pardon was "unconscionable" mostly because it bypassed the career attorneys who clearly opposed the pardon: One of Holder's primary duties in the pardon process was to make sure that the views of the Justice Department were adequately represented in the pardon process. In addition, as a Justice Department employee, he was bound by federal regulations that required the Justice Department to review pardon petitions before they were presented to the White House. Finally, as a simple matter of prudence, Holder should have ensured that he knew something about the pardon before he took action that substantially assisted the chances that the pardon would be issued. By helping Quinn circumvent the Justice Department, Holder ensured that his own prosecutors would not be able to express their opinion about the Rich case. In so doing, Holder disserved his own Department, as well as the statutes he was sworn to uphold. I'm not sure what the statutes were that were allegedly violated (I haven't read the full report yet), but I did want to just flag the report for readers who are interested in following the Holder nomination.
California Supreme Court Agrees To Decide Constitutionality of Prop. 8:
The AP reports:
California's highest court agreed Wednesday to hear several legal challenges to the state's new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.
The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court's decision in May that legalized gay marriage.
All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change....
The court directed [Attorney General Jerry] Brown and lawyers for the Yes on 8 campaign[, who had joined the challengers in arguing that the court should consider the case,] to submit their arguments for why the ballot initiative should not be nullified by Dec. 19. It said lawyers for the plaintiffs, who include same-sex couples who did not wed before the election, must respond before Jan. 5. Oral arguments could be scheduled as early as March ...
I think it's good that the California Supreme Court agreed to decide the case, and get it resolved sooner rather than the later. It's important to know what the law is on this, especially given the likelihood that Prop. 8 invalidates same-sex marriages that had been entered into after the earlier court decision but before Prop. 8's enactment. I also think that the California Supreme Court will reject the state constitutional challenges to Prop. 8, and conclude that Prop. 8 amends the state constitution in a way that supersedes the court's interpretation of the preexisting constitutional provisions. (Here's my response to the "unconstitutional revision" argument, but I think the other arguments I've heard about are unlikely to prevail, either.)
Of course, Prop. 8 can't overrule any federal barriers to its enactment. I think there are no such federal barriers, but it's not as clear to me that the California Supreme Court will agree. [UPDATE: After a correction from Rick Hasen, I now think that the California Supreme Court is highly unlikely to reach this question, given the issues that it ordered briefed and argued.] And if the California Supreme Court invalidates Prop. 8 on federal constitutional grounds, for instance on the grounds that it's precluded by the Romer v. Evans decision or that the federal constitution bars discrimination against same-sex marriages, then the issue will be reviewable by the U.S. Supreme Court (and I think the U.S. Supreme Court will indeed agree to review it).
Thanks to How Appealing for the pointer.
UPDATE: Rick Hasen (Election Law Blog) reports that, contrary to my suggestion, "it does not appear that an argument that the measure violates the federal constitutional guarantee of equal protection is fairly before the court in its review." Reviewing the issues listed in the court's order granting a hearing leads me to think that Rick is likely right.
Rick also says, "It is also noteworthy that the California Supreme Court denied a stay request pending briefing in this case, with only Justice Moreno voting to grant a stay. That is some indication, though not necessarily a very strong one, that the court will vote to uphold Prop. 8 (the reason is that one of the factors in determining the grant of a stay is likelihood of success on the merits)."
An Economic Bright Spot?:
According to Wikipedia, Americans consumed 138 billion gallons of gasoline in 2006. Now that gas is down about $2 a gallon, that puts $276 billion extra in the hands of consumers relative to what was expected earlier this year. Combine that with reductions in the price of home heating oil, plus reductions in the price of other imported commodities, and the benefit to consumers dwarfs the $150 billion stimulus package enacted earlier this year, which had the downside of coming out of the U.S. Treasury. Meanwhile, 10 year Treasury bonds are yielding under 3.4%, a potential boon for people looking to take out mortgages or refinance. (I read somewhere that the S&P 500 is now yielding more than the 10 year T-bill for the first time in many, many years; probably a great buy signal for stocks for those with courage and a long-term perspective.)
That doesn't mean that all the doom and gloom is wrong. But the declines noted above are a bright spot, at least for the U.S. economy.
The Case for Accepting Obama's Nomination of Eric Holder for Attorney General:
Like co-blogger Orin Kerr, I tend to believe that Republicans shouldn't fight the confirmation of Eric Holder, Obama's nominee for attorney general. Most of the objections to Holder articulated by the National Review and other conservatives seem to be ideological in nature. I too believe that Holder is wrong on many issues. But that is not enough reason to justify opposing his nomination.
In the past, I have argued that senators can legitimately consider ideology in deciding whether or not to support presidential judicial nominees. Executive branch nominations, however, are a different matter. Federal judges are not the president's subordinates. They belong to an independent branch of government. The president isn't entitled to a judiciary that defers to his preferences. By contrast, cabinet officers and other executive officials are supposed to follow the president's policies and take his orders. Therefore, it is important that the president be able to choose people who share his policy priorities. Conservative advocates of the unitary executive should be among the first to appreciate the importance of allowing the president to choose his own top advisers. Realistically, any attorney general nominated by Obama will likely be a liberal Democrat; after all, that is what Obama is himself.
Senators might still be justified in rejecting a cabinet nominee if he were clearly unqualified for the job, showed evidence of serious moral depravity, or had ideological proclivities that are dangerously far removed from the mainstream. I don't think Holder qualifies on any of these counts. He is obviously qualified for the job, and seems to be a fairly conventional left-wing Democrat. I'm not a fan of his apparent role in President Clinton's pardons of Marc Rich and others; but as far as I know there is no evidence that Holder did anything illegal or seriously unethical in these cases.
Holder would not be my choice for AG. But he is an unsurprising choice for a liberal Democratic administration, and his flaws are nowhere near serious enough to justify setting aside the president's prerogative to choose his own cabinet personnel.
"Let Detroit Go Bankrupt":
In yesterday's New York Times, Mitt Romney offered up an interesting essay arguing that Congress should not try to bail out the Big 3 automakers.
Interesting Analysis of Minnesota Senate Race Vote Totals
John Lott has an interesting analysis of recent corrections of "typos" in the vote totals in the Minnesota Senate race, found here. Its seems like the corrections have disproportionately favored Democrat Al Franken. Sounds like this is something that will bear watching.
Responding to the National Review on Eric Holder:
The National Review Online has posted an editorial criticizing Obama's apparent pick of Eric Holder as Attorney General. NRO's bottom line: "To be blunt, Holder is a terrible selection. If there’s any Obama cabinet nomination that Republicans feel moved to oppose, this should be it."
NRO makes two basic arguments against Holder. First, he is a "conventional" liberal. According to NRO, [Holder] is convinced justice in America needs to be “established” rather than enforced; he’s excited about hate crimes and enthusiastic about the constitutionally dubious Violence Against Women Act; he’s a supporter of affirmative action and a practitioner of the statistical voodoo that makes it possible to burden police departments with accusations of racial profiling and the states with charges of racially skewed death-penalty enforcement; he’s more likely to be animated by a touchy-feely Reno-esque agenda than traditional enforcement against crimes; he’s in favor of ending the detentions of enemy combatants at Guantanamo Bay and favors income redistribution to address the supposed root causes of crime.
In any other time, Holder would simply be an uninspired choice. But these are not ordinary times — we face a serious, persistent threat from Islamist terrorists. At the same time, Democrats have expressed outrage over both the alleged politicization of the Justice Department and the reckless disregard of its storied traditions. For these times, it is difficult to imagine a worse choice for AG than Eric Holder. I don't know Holder well (I once shook his hand, I think), and I don't have any particular reason to defend him. But I don't quite follow the argument here. Holder's views sound a lot like President-Elect Obama's, which are in turn more or less the views you might expect to be held by a Democrat appointee. Isn't that what you would expect from a Democratic President? Of course, you don't have to vote for the Democratic nominee: I didn't. But the Democrat won, and surely the standard for measuring who would be a good pick for AG has to factor this into account. Also, to the extent the NRO is arguing that Holder is too political or somehow has "recklessly disregarded" DOJ's traditions, the editorial hasn't even bothered to provide evidence for it. (Having served under Holder myself at DOJ for 2 and a half years, I can say that I never thought of him as political.) Next, NRO argues that Holder played too much of a role in controversial pardons and commutations that President Clinton granted. The lead example is of the Marc Rich pardon, which was the subject of a Congressional report that labeled Holder's role "unconscionable." But the NRO leaves out that the report was directed by Dan Burton, a ferocious Clinton critic who was famous for believing that Vince Foster was murdered (you may recall Burton as the guy who reenacted Foster's death in his backyard by shooting a pumpkin that was supposed to stand in for Foster's head in order to help show Foster must have been murdered). A report championed by Dan Burton hardly seems like a neutral source for a judgment like that.
More broadly, the idea that Holder somehow furthered the Rich pardon to help himself become AG never quite made sense to me. Holder was already a natural pick for AG in a Democratic administration, and it's unclear why he would have thought that helping Jack Quinn with a private client would help get him that job — or how giving the pardon that the President wanted to grant a "neutral leaning favorable" review would be a way of helping Quinn. The story just doesn't make sense. I am certainly open to hearing more about it: Maybe there are details to the story that remain unknown that make the criticism of him more understandable. I trust the confirmation hearings will go through these issues again, and that certainly seems fair. But based on what we know so far, the case that Holder's conduct was "unconscionable" seems pretty weak to me.
I recognize, based on yesterday's post on Holder, that this post is likely to enrage a number of our more partisan Republican readers. Holder is a "Dem," after all, and some Republicans are eager to get back in the aggressive posture of attacking the Dems with whatever they can. But in my experience, Holder was an honorable and apolitical public servant. It might serve Republican party interests to go on the attack against him, but it doesn't strike me as either fair or honorable to do so.
Tuesday, November 18, 2008
Just When Was That Revolver Manufactured?
KETV (Omaha) reports:
U.S. attorneys had a conundrum on their hands -- they had the evidence to prove a convicted felon was in possession of a gun, but they couldn’t prove the gun was a gun.
What [they] had on their hands was an American double-action revolver that was manufactured between 1880 and 1941.
The problem is that federal code states that the weapon is not a firearm unless it was manufactured after 1896....
I take it the reference is to 18 U.S.C. §§ 921-922, which ban felons from possessing firearms, but define "firearm" to exclude any "antique firearm," which is to say "any firearm ... manufactured in or before 1898." (The 1896 date appears to be an error in the news report.) So indeed the prosecutors didn't have the evidence to find the defendant guilty beyond a reasonable doubt of possessing a firearm manufactured after 1898, which is what the statute requires.
Fortunately for the prosecution, the felon-in-possession statute also bars felons from possessing ammunition, and the defendant was convicted of that.
Thanks to Sean Sirrine for the pointer.
Engleman v. Murray and Extraterritorial Enforcement of Arrest Warrants:
The Eighth Circuit decided a very interesting Fourth Amendment case yesterday involving extraterritorial enforcement of warrants: Engleman v. Murray. The case end up creating some interesting tensions in Fourth Amendment law, so I thought I would blog a bit about it.
First, the facts. Engleman made a 911 call to report a prowler, and he gave the address of the home where he was calling as "24512 Van Fleet Road, Siloam Springs, Arkansas." The call was routed to the Arkansas local police, who learned in the course of the call that there was an Arkansas warrant out for Engleman's arrest. The police ended up going to the home and searching for Engleman to execute the Arkansas warrant. In the home, though, the officers were told that the home was actually inside Oklahoma, not Arkansas. Indeed, believe it or not, it turns out that while the mailbox of the home is in Arkansas — and thus the mailing address of the home is in Arkansas — the Oklahoma/Arkansas line cuts through the property and the home itself is actually located in Oklahoma. (What is this, a law school exam?) The police arrested Engleman under the Arkansas warrant, and Engleman then sued the police for violating his Fourth Amendment rights by carrying out the Arkansas warrant in Oklahoma.
In a divided opinion by Judge Gruender, joined by Judge Beam, the Eighth Circuit concluded that under the originalist framework articulated by the Supreme Court in Virginia v. Moore, the Arkansas warrant was invalid in Oklahoma. Under the English common law, warrants had no force outside their territory: At the time the Bill of Rights was adopted, a warrant issued in one English county was not valid in another county unless a justice of the peace in that county “backed” the warrant. See William Blackstone, 4 Commentaries *292. “[W]hen a warrant is received by the officer he is bound to execute it, so far as the jurisdiction of the magistrate and himself extends.” Id. at *291; see Blatcher v. Kemp, (1782) 126 Eng. Rep. 10, 10 n.a (Maidstone Assizes) (“No constable can act under a warrant, out of his district . . . .”); R v. Chandler, (1700) 91 Eng. Rep. 1264, 1265 (K.B.) (“[W]here a precept or warrant is directed to men by the name of their office, it is confined to the districts in which they are officers.”). Under a historical understanding of the Fourth Amendment, the jurisdiction of the issuing judge and the executing officer is limited, and a warrant is not valid if an officer acts outside of that limited jurisdiction. See Lawson v. Buzines, 3 Del. (3 Harr.) 416, 416 (Sup. Ct. 1842) (concluding that “a constable of the city . . . has no authority out of the city limits” to execute an arrest warrant issued in that county); Copeland v. Isley, 19 N.C. (2 Dev. & Bat.) 505, 505 (1837) (“[A]n officer must proceed to arrest at some place actually in his own county . . . .”). The court then concluded that qualified immunity nonetheless applied because under the circumstances, the officers could reasonably believe that they were in Arkansas, not Oklahoma, and therefore had authority to carry out the warrant. (Confusingly, at the end of the opinion the court says that because the officers reasonably believed that they were in Arkansas, they reasonably relied on the warrant and did not violate the Fourth Amendment but that qualified immunity applied because the right was not clearly established — more on this in a moment.) Judge Bye dissented, arguing that the officers should have known they had no authority to do what they did.
A few thoughts and reactions to the case. First, it's fascinating that the court here, and a few other courts recently, are construing Virginia v. Moore as requiring an originalist analysis of the reasonableness of a search or seizure. Lower courts usually ignore methodological advice like that, and instead engage in either reliance on precedent or the balancing approach to reasonableness. Is Moore going to signal a more widespread reliance on originalism in Fourth Amendment law in the lower courts? Time will tell, but it might.
Second, the majority was somewhat confused in its doctrinal boxes. First it says that the Fourth Amendment doesn't allow it but qualified immunity applied; later, at the end, it says that the Fourth Amendment wasn't violated and that qualified immunity would apply even if it did. I think the court is just confusing categories at the end of the opinion: I believe the court should have said that the Fourth Amendment was violated by the arrest by a state actor without a valid (territorial) warrant, but that qualified immunity applies either on the ground of a reasonable mistake of fact — the officers thought they were in Arkansas — or on the ground of a reasonable mistake of law — there was no law clearly indicating that extraterritorial warrants had no force — or both. See generally Groh v. Ramirez (Kennedy, J., disenting) (discussing the difference between mistakes of fact and mistakes of law in qualified immunity analysis).
Third, there is a lot of law on extraterritorial arrests that the court doesn't address, presumably because none of the parties raised it. My understanding has been that the usual rule is that an officer who leaves his own jurisdiction has the rights to arrest of a private citizen, so courts normally look to the "citizen's arrest" law of the extraterritorial jurisdiction to see if the arrest was permitted. See generally State v. Stevens, 620 A.2d 789, 295 n.19 (Conn. 1993) (citing cases). If that's right, then the court should have (or at least could have) looked at the case by considering whether a citizen's arrest would have been permitted in equivalent circumstances. Or at least it would have been helpful for the court to square its cases with those or to explain that it thought that Moore required a new path. I suspect this didn't come up because the parties didn't address it, but it's worth noting that there's an additional step here: The fact that the warrant has no force outside the state doesn't necessarily mean that the officers violated the Fourth Amendment in arresting Engleman. (The court does talk about "reasonable reliance" on the warrant, which might suggest some sort of Leon good faith inquiry, but that's only relevant in the suppression context and in any event it's identical to the qualified immunity standard, see Groh v. Ramirez.)
Finally, in the end I think the court had it right: the Fourth Amendment law here is really pretty murky, and it sounds like there was a legitimate claim of reasonable mistake of fact. In my view, either the reasonable mistake of fact or reasonable mistake of law (or a combination) should be enough to satisfy the qualified immunity standard in this case.
Thanks to FourthAmendment.com for the link.
"Texas A&M International University in Laredo Fired a Professor for Publishing the Names of Students Accused of Plagiarism":
So reports the Daily Texan. The post at issue is here. The syllabus for the course stated, "No form of dishonesty is acceptable. I will promptly and publicly fail and humiliate anyone caught lying, cheating, or stealing. That includes academic dishonesty, copyright violations, software piracy, or any other form of dishonesty." True to his word, the professor -- an untenured and apparently part-time adjunct professor -- was indeed "promptly and publicly ... humiliat[ing]" the students who he believed were cheating; the university is paraphrased as stating that the professor "was terminated for violating the Family Educational Rights and Privacy Act, a federal law that prohibits the release of students’ educational records without consent."
I can't speak to whether FERPA indeed applies here. But I'm inclined to say that a university wouldn't be violating academic freedom -- or, as to public universities, the First Amendment -- if it provided that a faculty member generally may not publicize embarrassing things he learns about specific named students as a result of his teaching, even including dishonest conduct by those students.
Inside Higher Ed has more, including this:
Adding to the buzz has been an e-mail message sent to department chairs by someone in the administration (the provost denies knowing anything about it, and an article Wednesday in the Laredo Morning Times attributed it to deans) in which the chairs were reminded to tell faculty members that any F grades for plagiarism should be reviewed by the honors council and that professors need to always think about students’ due process rights before seeking to punish them.
Several faculty members, speaking privately because they didn’t want to anger administrators, said that they were taken aback by the way the university appeared to be viewing plagiarism as an issue requiring more due process for students, not more support for professors. For the university to follow the dismissal of an adjunct with this reminder, they said, left them feeling that they couldn’t bring plagiarism charges. Further, many said that they believed it was a professor’s right to award an F to a plagiarizer and that this should not require an honors council review.
Several e-mail messages are circulating among faculty members, expressing concern that their right to assure academic integrity is being undercut. Despite how widespread a problem plagiarism is among students, these e-mail messages say, the university is looking the other way and sending a public message to students that they are the victims when a professor takes plagiarism seriously....
Pablo Arenaz, provost at the university, said he was distressed that some faculty members are concerned about the university’s commitment to academic integrity. Asked whether a professor has the right to award an F to someone caught copying, Arenaz said that was “up to interpretation.”
It seems to me that if it's just "up to interpretation" whether a professor could give a student an F for cheating, then there is indeed reason to be "concerned about the university's commitment to academic integrity."
Thanks to Paul Caron (TaxProf Blog) for the pointer; follow that link to see links to the professor's defenses of his position (for instance, this one.
The Declaration of Independence and God:
A conversation I had today reminded me of something I meant to blog about: The Declaration of Independence, many argue, contemplates a Creator God, not a God who sets forth rules for human behavior, who judges such behavior, or who intercedes in human events, whether directly or subtly. And this, the argument goes, reflects the general attitudes of the Framers or at least of the political system they wished to establish.
But I don't think this is a sound way of reading the Declaration. It's true that the opening paragraphs refer to "Nature's God" and a "Creator":
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
But even this Creator of course is seen as endowing people with "unalienable Rights," which seems to suggest a Creator as arbiter of morality and rights. And, more importantly, consider the closing paragraph:
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. -- And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
God is thus not just Nature's God and the Creator, but also the "Supreme Judge of the world," to whom people may appeal to judge or witness "the rectitude of [their] intentions," and whose "Divine Providence" is said to "protect[]" them."
To be sure, one can only draw so much fro |