The Washington Postreports that district cort judge Emmett Sullivanheld three DoJ lawyers in contempt for withholding information from Senator Stevens' defense attorneys.
Stevens and his lawyers complained during the trial about prosecutors withholding information. In December, they asked for his conviction to be tossed out. As part of their request, they asked for the documents related to Joy.
During yesterday's hearing, Sullivan repeatedly asked three Justice Department lawyers sitting at the prosecution's table whether they had some reason not to turn over the documents. They finally acknowledged they did not, and Sullivan exploded in anger.
"That was a court order," he bellowed. "That wasn't a request. I didn't ask for them out of the kindness of your hearts. . . . Isn't the Department of Justice taking court orders seriously these days?"
He said he did not want to get "sidetracked" by deciding a sanction immediately and would deal with their punishment later. But he ordered them to produce the material by the end of the day.
"That's outrageous for the Department of Justice — the largest law firm on the planet," he said. "That is not acceptable in this court."
Sullivan held all three lawyers at the table in contempt and demanded repeatedly to know who else was involved in withholding the information. Another government lawyer sitting in the back of the courtroom stood up and gave her name.
UPDATE: "Upon reflection" Judge Sullivan removed the contempt finding for one of the four DoJ attorneys. Details at BLT.
Libertarian Stop Signs:
Blogger BK Drinkwater has a reaction to my post yesterday analogizing libertarianism first principles to a cheat sheet for a multiple choice exam:
I’ve always found libertarianism to be an attractive political philosophy. But since I’m a pretty bad political philosopher—in fact, I suck at philosophy generally—the libertarian perspective has a couple of traps. The trap Barnett describes is a particularly tough one to get out of: once seduced by a libertarian idea, like “goods and services are produced & distributed more effectively when markets are not interfered with by coercive agents like government”, it’s apparently obvious correctness turns it into a sort of semantic stop sign.
I went through a phase where if, say, education or healthcare policy came up in conversation, I’d say “Markets! Markets markets markets! MARKETS!” I found these conversations astonishingly unproductive, but I didn’t think to blame myself.
Truth is, I didn’t know much about education or healthcare policy. The semantic stop sign—“Markets!”—shut down my own investigations into these matters. I was frustrated that I couldn’t convince conservatives, social democrats, and socialists to come round to my view. To myself, I blamed their intransigence. In terms of Barnett’s analogy, I had the “right answer”, but I couldn’t explain why it was right, and so I didn’t truly understand the subject being tested.
I’m slowly maturing. I’ve learned more about education & healthcare policy. What I’ve learned has moderated my beliefs a little, but I still claim that our schools and healthcare would benefit from a policy that lets markets do more of the heavy lifting than they’re currently able. I’m just better able to argue it now.
I still don’t argue it well—I still don’t know enough. But I’ve run the stop sign, and I’m no longer stalled. On this issue.
Thank you for your excellent & long overdue editorial in today's WSJ. However, as a real estate appraiser who specializes exclusively in litigation, Conyer's bill would enable me to equate the bankruptcy court with an annuity.
So as I replied to him--the way to think about bankruptcy mortgage modification is really as part of the job stimulus plan by creating jobs for appraisers!
Eastern Pennsylvania has a terrible reputation for judicial corruption and venality -- the stories one hears from practitioners and others around Philadelphia are truly awful, with bags full of money and all the rest. But a story in the NY Times today breaks new, and more nauseating, ground. Two judges in the Wilkes-Barre area have pleaded guilty to taking kickbacks -- $2.6 million worth -- from local juvenile detention centers for sentencing young offenders to time in the facility (the facilities were reimbursed by the state on a per-prisoner basis, so the more kids they had, the more money they earned). So dozens and dozens of kids who would ordinarily have expected to get a slap on the wrist -- for writing nasty things about their high school principals on Facebook, for starting fights in the playground, that sort of thing -- received sentences of several months in the detention facility instead, all, it turns out, to line the pockets of the judges.
Maybe it's just because I am a parent with two kids of my own, or maybe I'm just a soft-hearted romantic, but to do this to young people for the sake of a few bucks (or 2.6 million bucks, or 260 million bucks) is -- well, you pick your own adjective. One has to assume that lives were ruined because of this -- 3 months in juvy for a high school kid who doesn't belong there is a terrible, terrible thing - and I hope these two (for the record, and for the benefit of Internet readers in the 22nd century, and to insure that their names do not disappear from the List of the Wicked, the judges in question were Judge Mark A. Ciavarella Jr., and Judge Michael T. Conahan) get the punishment they so truly deserve. 2009, I hope, won't give us anything more shameful than this.
Something to Keep in Mind:
According to 1 U.S.C. 1,
In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the words "insane" and "insane person" and "lunatic" shall include every idiot, lunatic, insane person, and person non compos mentis[.]
Left/Right bloggers pessimistic on bipartisanship, split on Afghanistan surge:
This week's National Journal poll of leading political bloggers find over 90% of Left-wing and Right-wing bloggers being either "less encouraged" or having "no change" in their hopes for bipartisanship in Washington. (And the "no change" people never had much hope in the first place.) I was among the tiny minority that was "more encouraged," although not because I think that Obama's current course is going to attract Republican support. Rather, "The opposition of some Blue Dogs to the House version of the 'stimulus' (actually just a long-term spending spree, not a short-term stimulus) raises hope that more and more centrist Democrats will join in bipartisan opposition to irresponsible and overreaching measures pushed by Pelosi/Obama."
Should the U.S. send 30,000 more troops to Afghanistan? About 2/3 of the Right and 1/3 of the Left thought so. My view: "President Bush led us to victory in Iraq. Let's hope President Obama does the same in Afghanistan." I do agree with bloggers who suggested that "more troops" is not the only issue; improved strategy and tactics are also important.
Last week we came to the section on academic freedom in my course on the law of higher education and I posed this hypothetical to the students: Suppose you were a member of a law firm or a mid-level executive in a corporation and you skipped meetings or came late, blew off assignments or altered them according to your whims, abused your colleagues and were habitually rude to clients. What would happen to you?
The chorus of answers cascaded immediately: “I’d be fired.” Now, I continued, imagine the same scenario and the same set of behaviors, but this time you’re a tenured professor in a North American university. What then?
I answered this one myself: “You’d be celebrated as a brave nonconformist, a tilter against orthodoxies, a pedagogical visionary and an exemplar of academic freedom.”
Fish then describes a particularly egregious case at the University of Ottawa, where a professor apparently used academic freedom and tenure as pretexts for gross neglect of his duties and abuse of his authority. While the Ottawa situation described by Fish strikes me as an extreme case, the general problem he identifies is real: The combination of tenure and overbroad conceptions of academic freedom really do sometimes enable academics to behave irresponsibly with little or no sanction.
Many view academic freedom as a kind of sacred, intrinsic value. I think that Fish is closer to the truth in seeing it as a limited, prudential institution that gives professors the discretion they need to teach and research effectively, and to avoid retaliation for expressing unpopular political views outside of class. However, academic freedom should not be considered a blank check to shield our teaching methods and research from all outside scrutiny.
UPDATE: I am aware, as various commenters have noted, that the Ottawa professor in this case may end up being fired. For that reason, Fish was probably wrong to make the case such a central focus of his argument, and I was remiss in the initial post for failing to point out this shortcoming in his piece. However, the fact that removal is only likely in such an extreme case (and even then is not a certainty and requires jumping through many procedural hoops) suggest that tenure and academic freedom can serve as shields for a great deal of lesser but still significant misconduct.
"The pancreatic cancer for which Justice Ruth Bader Ginsburg had surgery on February 5 has been determined as TNM Stage 1 by doctors at Memorial Sloan-Kettering Cancer Center in New York City. All lymph nodes proved negative for cancer and no metastasis was found. . .
"Extraordinarily, the approximately 1 cm lesion revealed on a late January CAT scan, the discovery of which led to the February 5 surgery, proved benign. But in searching the entire pancreas Dr. Brennan identified a previously undetected single, even smaller, tumor which upon examination was found malignant. Justice Ginsburg was released from Memorial Sloan-Kettering today and is recuperating at home."
Is the "Stimulus Bill" the Patriot Act of the Obama Administration?:
It's October 2001, and a new President has declared a crisis that demands immediate action. The old policies of the past have failed, he announces, and it is time for far-reaching action that will expand the government's power to combat the serious threats against the Nation. Time is of the essence, he declares: We must act now.
The opposing party tries to stop the President's plan. They complain that the President and his minions in Congress are acting too fast and going too far. Sure, some kind of change is needed. But the President and his allies are going too far, they complain, passing a "wish list" to capitalize on the public's fear of the crisis continuing.
Even worse, no one seems to know exactly what is in the massive bill. Senators and Representatives in the minority party complain that they never even had time read it! The bill is hundreds of pages long, and it was impossible for anyone to read all that legislation in time for the vote.
The President is dismissive about their complaints, however. The opponents are stuck in the old discredited way of thinking: Change is needed, and quickly. The bill quickly passes, and it becomes known as the USA Patriot Act.
Now fast forward. It's February 2009, and a new President has declared a crisis that demands immediate action. The old policies of the past have failed, he announces, and it is time for far-reaching action that will expand the government's power to combat the serious threats against the Nation. Time is of the essence, he declares: We must act now.
The opposing party tries to stop the President's plan. They complain that the President and his minions in Congress are acting too fast and going too far. Sure, some kind of change is needed. But the President and his allies are going too far, they complain, passing a "wish list" to capitalize on the public's fear of the crisis continuing.
Even worse, no one seems to know exactly what is in the massive bill. Senators and Representatives in the minority party complain that they never even had time to read it! The bill is hundreds of pages long, and it was impossible for anyone to read all that legislation in time for the vote.
The President is dismissive about their complaints, however. The opponents are stuck in the old discredited way of thinking: Change is needed, and quickly. The bill quickly passes, and it becomes known as the American Recovery and Reinvestment Act — aka the "stimulus bill."
Todd’s Wall Street Journal op-ed makes many good points but it doesn’t address the main argument for bankruptcy reform. The basic problem posed by the housing crisis is that millions of people find themselves with negative equity and rationally abandon their homes. Banks have trouble seizing, maintaining, and selling these houses, and bankers will tell you (anyway, they’ve told me) that the rule of thumb they use is that a foreclosed house will lose fifty percent of its value. I am unaware of any studies that prove that this figure is correct but the anecdotal evidence is powerful. In some communities, abandoned houses become havens for drug dealers and squatters who strip away wiring and whatever else might be valuable in the house. The derelict houses reduce the value of neighbors’ houses, who then can be plunged into negative equity themselves, causing them to abandon their houses as well, leading to further degradation of the neighborhood, in a vicious spiral.
From a theoretical perspective, there are really two problems. First, bankers and mortgage holders are unable to negotiate contracts that provide for an automatic mortgage modification in the event that the value of the house falls below the debt. An optimal, complete contract would provide for such a debt adjustment, but it seems likely that bankers fear that any such provision could be too easily gamed, and so they prefer to renegotiate ex post if necessary or simply swallow the costs by having a policy of automatic foreclosure. Second, bankers and mortgage holders have no incentive to take into account the possible negative effects of mortgage default on neighbors.
As I have argued in earlierposts, the solution to such a problem in principle is mortgage modification. A banker does better by voluntarily reducing principal and interest than by foreclosing; however, big banks have traditionally refrained from renegotiating, perhaps because the transaction costs are high (smaller banks have traditionally agreed to renegotiate, by contrast). In the current climate, big banks are rethinking their earlier policy, but in any event it is hard to renegotiate with someone who has abandoned his house and disappeared.
If people can strip down their mortgages in Chapter 13, they will be less likely to abandon their houses, and this will have positive effects on their neighborhood. It is possible that such a rule could increase the cost of credit, as Todd argues, but the opposite effect is just as likely. On the one hand, banks might be reluctant to extend credit if they know that, in effect, repayment amounts will be reduced if housing prices decline, or banks will raise interest rates to cover this risk. On the other hand, if the result is a reduced incidence of foreclosure, then banks will do better rather than worse, and so interest rates should fall. If the right to modify the mortgage is limited to cases of financial crisis (which is not in the current bills), then the positive or negative effect on the cost of credit will be correspondingly smaller, minimizing a risk of disruption in the mortgage market.
We have learned from this crisis that every mortgage imposes potentially serious negative externalities on third parties. When someone defaults and abandons his house, he causes harm to others. The law currently does not punish that person or try to deter him from what is essentially a kind of pollution (like abandoning a car in the street); any attempt to do that would be impractical. So in a second-best world in which wrongdoers cannot be punished for the harm they cause others, restrictions on the contracts that bring about this state of affairs may well be justified. That is what bankruptcy law has always done; mortgage modification is a further development in bankruptcy law that would be justified in crisis (and possibly even normal) conditions.
Cockfighting, the First Amendment, and Internet Jurisdiction:
So here's more "crazy Internet jurisdiction stuff" - with a nice First Amendment overlay, to boot. Federal law (who knew?) makes it a crime to sell depictions of animal cruelty:
18 USC § 48. Depiction of animal cruelty
(a) Creation, sale, or possession. Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
. . .
(c) Definitions. In this section--
(1) the term "depiction of animal cruelty" means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State . . .
A website based in Puerto Rico, www.toughsportslive.com, is challenging the law on First Amendment grounds. Our own Eugene Volokh is quoted in the NY Times story as holding the opinion that the statute is probably unconstitutional — and I agree. The statute makes it illegal to depict conduct if the conduct is illegal in the State in which the depiction is created, sold, or possessed — even if the conduct being depicted took place somewhere (like Puerto Rico) where it is legal. Speech that concerns conduct that is illegal in Virginia or Rhode Island cannot be banned consistent with the First Amendment - can it?
And beyond the First Amendment question — what if the website server, and all of the conduct depicted, came from a country (let's say Thailand) in which the conduct depicted (cock-fighting) is legal? Could a US court entertain an action against the website operator? [Alert readers will notice that this is the mirror image of the action recently filed in an Italian court against Google executives, discussed here].
Putting aside the question of whether a US judgment can be enforced against the foreign website, would the Thai website be violating 18 USC 46? By its terms, it looks like the answer is 'yes' — if cock-fighting is illegal under, say, Virginia law, and if the depictions are 'possessed' in Virginia, the statute appears to criminalize the creation/possession/sale of the image.
But I'd argue that the statute does not apply at all. The conduct in question, and which is depicted in the image, is not "cock-fighting," it's "cock-fighting in Thailand." And cock-fighting in Thailand is not illegal under federal law (because federal law does not apply to any conduct in Thailand), nor is it illegal under the law of any State (same).
And if you've read this far and find these issues of interest, hopefully you won't be too annoyed if I say, again: you should really read my book. The implications for the future of the Net in cases like this are profound, and we need to figure out how to deal with them in a sensible way.
DavidP
The final text of the House-Senate compromise stimulus bill was finally posted on-line last night at 11pm. For additional links and detail, visit ReadtheStimulus.org.
UPDATE: One little addendum. On Wednesday, the House voted unanimously in support of an instruction that there be no vote on the final stimulus bill "unless the text of such agreement has been available to the managers in an electronic, searchable, and downloadable form for at least 48 hours." But this morning's news reports say the House will vote this afternoon.
ANOTHER UPDATE: The Washington Postreports the stimulus contains pork and other special interest provisions. I'm shocked! Shocked! I tell you.
Don't Let Judges Tear Up Mortgage Contracts:
Amidst the so-called "credit crisis," there is much talk about how libertarianism is dead, or at least how libertarian first principles are irrelevant. One appeal of libertarianism is that its basic principles are simple and easy to understand. Private property, freedom of contract, self-defense, restitution for rights violations, etc. While some libertarians hold these principle as ends in themselves, all libertarians also believe they lead to good consequences. And the general public is concerned with consequences along with its views of morality. When a public policy debate arises, however, it is not persuasive simply to invoke libertarian general principles. One must know something about the subject at hand to explain how violating these principles is likely to turn out badly.
Libertarian first principles can be analogized to having a cheat sheet of answers to a multiple choice test. While you might know the right answer--which is certainly useful--you won't know exactly why the answer is right, which is needed to truly understand the subject being tested. And without such an understanding, one cannot explain the "right answer" to others and why it is right.
One of the basic libertarian principles is that persons have a right to enter into contracts of their choosing, and that the government should not intervene to hold such a contract unenforceable. But contract law recognizes valid defenses to a contract that are needed to protect contractual freedom. And contract law has long co-existed with bankruptcy laws. (For a libertarian analysis of bankruptcy laws see here.)
While libertarians today might instinctively object to letting bankruptcy judges modify existing mortgages, to be persuasive, one needs to know something about both the mortgage market and how bankruptcy proceedings work to know exactly why this is a bad idea. Co-conspirator Todd Zywicki has an op-ed in today's Wall Street Journal opposing giving bankruptcy judges the power to modify existing mortgages. His essay well illustrates why libertarian principles alone are not enough to enter into a public policy debate. One also needs knowledge of the subject at hand. You should read the whole thing, but here is an excerpt:
In the first place, mortgage costs will rise. If bankruptcy judges can rewrite mortgage loans after they are made, it will increase the risk of mortgage lending at the time they are made. Increased risk increases the overall cost of lending, which in turn will require future borrowers to pay higher interest rates and upfront costs, such as higher down payments and points. This is illustrated by a recent example: In 2005, Congress eliminated the power of bankruptcy judges to modify auto loans. A recent staff report by the Federal Reserve Bank of New York estimated a 265 basis-point reduction on average in auto loan terms as a result of the reform.
Allowing mortgage modification in bankruptcy also could unleash a torrent of bankruptcies. To gain a sense of the potential size of the problem, consider that about 800,000 American families filed for bankruptcy in 2007. Rising unemployment and the weakening economy pushed the number near one million in 2008. But by recent count, some five million homeowners are currently delinquent on their mortgages and some 12 million to 15 million homeowners owe more on their mortgages than the home is worth. If even a fraction of those homeowners file for bankruptcy to reduce their interest rates or strip down their principle amounts to the value of their homes, we could see an unprecedented surge in filings, overwhelming the bankruptcy system.
Finally, a bankruptcy proceeding sweeps in all of the filer's other debts, including credit cards, car loans, unpaid medical bills, etc. This means that a surge in new bankruptcy filings, brought about by a judge's power to modify mortgages, could destabilize the market for all other types of consumer credit.
There are other problems. A bankruptcy judge's power to reset interest rates and strip down principal to the value of the property sets up a dynamic that will fail to help many needy homeowners, and also reward bankruptcy abuse.
Consider that the pending legislation requires the judge to set the interest rate at the prime rate plus "a reasonable premium for risk." Question: What is a reasonable risk premium for an already risky subprime borrower who has filed for bankruptcy and is getting the equivalent of a new loan with nothing down?
In a competitive market, such a mortgage would likely fetch a double-digit interest rate -- comparable to the rate they already have. Thus, the bankruptcy plan would offer either no relief at all to a subprime borrower, or the bankruptcy judge would set the interest rate at a submarket rate, apparently violating the premise of the statute and piling further harm on the lender.
More worrisome is the opportunity for abuse. [snip]
If Congress wants to deal with the rising number of foreclosures, it should not create a new mess by converting the mortgage crisis into a bankruptcy crisis. Doing so will open the door to a host of unintended consequences that will further freeze credit markets, raise interest rates for new home buyers, and spread the mortgage contagion to other types of consumer credit. Congress needs to reject this plan and look for better solutions.
The financial crisis and especially the recent decline in oil prices have hit the Russian economy hard, and have shaken previously strong popular support for Vladimir Putin's regime. In late January, there were widespread anti-government demonstrations organized by a variety of opposition groups. Russia's growth during the 8 years of Putin's rule has been overwhelmingly based on revenues from oil exports, which boomed as oil prices rose. Now, however, the game seems to be up. Although oil prices might go up again, they are unlikely to regain their pre-recession levels anytime soon.
Putin's popularity has suffered enough that even Russian President Dmitry Medvedev - whom Putin handpicked for the post - is beginning to distance himself from his longtime patron - criticizing Putin's economic policies and tabling a Putin-sponsored law that would have criminalized most political dissent as "treason."
Until now, both Russian and foreign opinion has mostly seen Medvedev as a lackey that Putin installed in the presidency last year so as to circumvent term limits. If this particular rat is considering jumping ship, that means the vessel in question might really be in danger of sinking.
Russia is at a crossroads. There are basically two choices. Either it becomes more authoritarian, with state capitalism and protectionism — [and] then it has no need for cooperation with the European Union. Or we see a political and economic liberalization, which is the opposite direction.
I suspect that Aslund is right. It's possible that the regime will now be forced to liberalize, and Medvedev has been making a few gestures in that direction. Liberal democratic opposition leaders, such as Garry Kasparov, might be able to turn the crisis to their advantage.
The National Surveillance State: A Response to Balkin:
I have just posted a 5-page response to a recent essay by Jack Balkin on what Balkin calls "The National Surveillance State." My response, forthcoming in the Minnesota Law Review, is titled The National Surveillance State: A Response to Balkin.
The abstract:
In his recent Lockhart lecture, published in this journal as "The Constitution in the National Surveillance State," Jack Balkin warns of a "new form of governance" that he calls "The National Surveillance State." This brief response article argues that the changes Balkin details should be understood as a technology problem instead of a governance problem. We are witnessing a broad societal shift away from human observation and towards computerization. The widespread use of computers and the introduction of digital information have caused dramatic changes in how individuals can learn what others are doing. The government's goals have not changed, but the technological playing field has. The law must respond because technology has changed, not because a new form of governance has emerged. Understanding the changes as a technology problem rather than a governance problem also suggests solutions that draw support from a wide political base rather than a narrow one.
The NYT "Room for Debate" blog has a set of essays on the "Buy America" provisions in the stimulus bill. There's some good stuff in there, including the comments by economists Gary Clyde Hufbauer and Anne Kreuger noting that the provisions will cost more American jobs than they will save. The contribution by my Senator, Sherrod Brown, on the other hand, is embarrassing. He thinks it's a good idea to pay up to 25 percent more for, say, infrastructure projects to comply with a "Buy American" provision. So, in the case of a planned bridge replacement in Cleveland, it could add some $100 million (or more) to the cost of the project, which will mean fewer projects go forward. Yet somehow Senator Brown thinks this is in America's "national interest."
Lysander Spooner's Originalism:
Readers of this blog know I have a thing for Lysander Spooner. This traces back to my reading No Treason: The Constitution of No Authority while an undergraduate at Northwestern. Much later as a law professor, I became acquainted with his other works. Indeed, it was his book, The Unconstitutionality of Slavery, that started my movement towards originalism. This movement eventually culminated in Restoring the Lost Constitution: The Presumption of Liberty, which I dedicated to James Madison and Lysander Spooner. Now Helen Knowles, a political science professor at SUNY Oswego and an emerging Spooner scholar, has produced a new work on Spooner's debate with Wendell Phillips over the meaning of the Constitution. Her paper Securing the 'Blessings of Liberty' for All: Lysander Spooner's Originalism can be downloaded from SSRN. Here is the abstract:
On January 1, 1808, legislation made it illegal to import slaves into the United States; eighteen days later, in Athol, Massachusetts, Lysander Spooner was born. In terms of their influence on the abolition of slavery, only the first of these events has gained widespread recognition. The importance of Spooner's reading of the U.S. Constitution as a document that did not sanction slavery has been overlooked; his abolitionist work continues to be disparaged as the incoherent ramblings of an unserious polemicist. As this essay demonstrates, this conclusion about Spooner's mid-nineteenth century work, The Unconstitutionality of Slavery, is unfortunate, because his observations about the relationship between law and individual liberty are timeless.
Drawing on his writings (including a previously unpublished manuscript) and voluminous correspondence, with supporting material from abolitionist newspapers and periodicals, I focus on Spooner's contribution to a mid-1840s debate about constitutional interpretation. Spooner's natural-rights based reading of the Constitution's original meaning never matched the popularity of fellow abolitionist Wendell Phillips's emphasis on the Framers' original pro-slavery intentions. Phillips won the day with conclusions that seemed to vindicate the Garrisonian condemnation of the Constitution as a covenant with death, and an agreement with hell. However, Phillips's conclusions about the law were underpinned by a misleading emphasis on political history. They could not match the fiercely logical, and legal emphasis of Spooner's conclusions. In this respect, only Spooner offered an approach faithful to the Constitution's guarantee to protect the Blessings of Liberty.
I am now in the middle of writing a new book on the original meaning of the 9th & 14th Amendments, and the proper role of the courts in using these Amendments to protect liberty. As part of my research on the 14th Amendment, I have been reading other abolitionist constitutional theorists including William Goodell, Theodore Dwight Weld, James Birney, Joel Tiffany, and Frederick Douglass. All but Douglass were lawyers. I am finding that Spooner was influential on them all and that, taken as a whole, their works are both more persuasive and sophisticated than they are typically credited. Indeed, I find them more careful and powerfully reasoned than most of today's constitutional analysis. Not only that, but there is a direct connection--via John Bingham--between the text of the Fourteenth Amendment and these abolitionist writers' arguments concerning (a) U.S. citizenship, (b) the Privileges and Immunities Clause of Article IV, (c) the Due Process Clause of the Fifth Amendment, and (d) the duty of protection that every government owes those from whom it demands obedience. These four lines of argument led to the four working parts of Section 1 of the Fourteenth Amendment, and helps explain their original public meaning. This connection was first described by Jacobus tenBroek in his masterly little book, Equal Under Law, which regrettably is out of print.
Via BLT, comes news that the U.S. Court of Federal Claims has just released three special master reports examining claims of a link between vaccines and autism. Each report examines an alleged case in which vaccination allegedly caused autism, and each finds the allegations wanting. different theory of causation, and each finds the theory wanting. More to follow.
To say that the Israeli success reduced support for Hamas is not the same thing as saying that it caused Palestinians to take a more favorable view of Israel. The same poll shows that 54% blame Israel for the recent hostilities, with only 15% blaming Hamas (though these results too may be affected by lying due to fear of retaliation). But the Israelis don't need Palestinians to like them. Their more immediate need is to persuade Palestinians to stop supporting terrorism.
It is not surprising that military setbacks have reduced Hamas' popular support. We can see similar patterns throughout history. German support for Nazism collapsed because of Hitler's massive military defeat. In the Arab world, previously strong support for Egyptian dictator Gamal Abdel Nasser's ideology of pan-Arabism plummeted after his defeat in the Six Day War. Here in the United States, support for neoconservative hawkishness declined greatly as a result of setbacks in the occupation of Iraq. Most people are highly biased in their evaluation of political information, and tend to reject anything that cuts against their preexisting beliefs. But clear military defeat is such an obvious setback that all but the most committed ideologues find it difficult to ignore or explain away.
The fall in Hamas' popular support does not by itself justify Israel's recent policies. But it does provide an important data point in the longstanding debate over the impact of military action on public support for terrorists. It turns out that you can cause that support to drop - if you win.
NOTE: I know from previous experience that comments about issues related to the Israeli-Palestinian conflict produce a very high ratio of heat relative to light. As per my usual practice, I'm not going to aggressively police the comments. But I would suggest that we will have a better discussion if commenters focus on the specific issue raised in the post rather than on the broader rights and wrongs of the conflict. I highly doubt that we can say anything about the latter that hasn't already been repeatedly stated elsewhere.
Unintentional Seizures under the Fourth Amendment:
Last week, the Ninth Circuit handed down an amended opinion in United States v. Al Nasser that raises a fascinating and rather difficult Fourth Amendment question: Is a person "seized" for Fourth Amendment purposes if he reasonably thinks an officer is trying to stop him, and he stops in response, but the officer is actually trying to stop someone else? In the case, officers had pulled over some other cars for violations, and had their lights on, and the driver of a car apparently thought he was being pulled over, too, even though he wasn't. Here's the question: Assuming, for the sake of argument, that the driver reasonably thought that he was being stopped, and that he stopped as a result of it, was the stop a seizure if no officer actually intended to stop that car?
The Ninth Circuit concludes, in an opinion by Judge Kleinfeld (joined by Trott and R. Smith), that no seizure occurs in such a situation. I tend to think that is correct, under Brower v. City of Inyo, but it's actually a pretty difficult question. Unfortunately, I don't have time to blog all the complexities, but I did want to flag the opinion for readers interested in such a fun Fourth Amendment issue.
Thanks to Lee Rudofsky for the tip.
UPDATE: Some commenters think that the decision is wrong under Brendlin, but remember that in Brendlin the officer knew he was bringing that car and all of its contents to a stop and did bring the car to a stop. Also, note that if the result in this case is wrong, then an officer presumably violates the Fourth Amendment when he turns on his siren in traffic and it's not clear who he is stopping. If anyone stops out of reasonable confusion over whether he is the one the officer is trying to pull over, even if only temporarily, then the Fourth Amendment rights of the confused driver and all of his passengers are violated based on the misunderstanding. That seems like an odd result to me -- not impossible, but odd.
General Guide To Blogging, #128:
In a moderated comment thread, there is a 50% chance that a commenter who had an uncivil comment deleted will accuse the moderator of censorship and question the moderator's commitment to free speech. (Because if the First Amendment means anything, it's the right to do what you want with someone else's private property without the property owner being able to clean up your mess.)
As pretty much everyone is surely aware by now, the Associated Press has claimed that the iconic "HOPE" image created by Shepard Fairey for the Obama campaign, and featured on everything from posters to t-shirts to mugs to buttons, is an infringement of the copyright in an AP photograph of Obama, taken by Mannie Garcia.
Putting aside questions of whether the AP showed particularly good judgment in threatening Fairey with an infringement suit (it did not, imho), on the merits the AP claim looks very weak to me, on two grounds:
1. It's not an infringement of their copyright in the photo. Fairey admits that he copied from the photograph in making his image - but copying does not necessarily imply copyright infringement. You're allowed to copy things from others, if the things that you copy are not protected by copyright. Garcia's photograph is, certainly, a work protected by copyright — but only its "original" elements are protected. The photographer has no protection for depictions of what the world (including Pres. Obama) actually looks like, but only in the artistic and creative decisions that are given visible expression in the photo. There's certainly some of that in the photo — the background, for example, and perhaps the lighting and exposure that Garcia used. But what Obama looks like, and the tilt of his head, are not protected original elements of the photo, because they do not "owe their origin" to the photographer. And to my eyes, the things that Fairey copied are precisely those, unprotected elements of the photo. He didn't take the background, and he didn't take the lighting - those are the things he changed. What he took was Obama's face, and the tilt of his head — not infringment, to my eyes.
2. Even if Fairey copied copyrightable elements of the photograph, he's got a very, very strong fair use defense. One critical part of the fair use inquiry is: did the defendant have a "transformative purpose" in using the copyrighted original. That doesn't mean "did the defendant transform the original" - it means "did the defendant have a purpose significant different that the purpose for which the original was created. The AP photo was created for a purpose — as a news photograph. Fairely's purpose was completely different — he's making a political statement (duh!), and attempting to get voters to believe in the message of "hope," and all the rest. Courts have, in recent years, indicated that this factor is central to the fair use defense, and I think it gives Fairey a very strong case.
Prof. Jane Ginsburg, a prominent copyright law prof at Columbia Law School, is quoted here saying that she "questioned whether Fairey has a valid fair-use claim and says that he should have at least credited the AP.
"What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage," Ginsburg said. "I think that's pretty radical."
It is pretty radical - but it's also correct. Anybody's photograph is fair game — that's precisely what "fair use" is all about. "It is not infringement of copyright to make fair use of a copyrighted work," in the words of the Copyright Act — any copyrighted work, of any kind, anywhere, at any time, is fair game to be used, if it is used "fairly." And I don't think the failure to credit the AP has anything to do with that analysis — maybe it would have been nice for Fairey to give Garcia credit, but I do not believe that the law of fair use makes that a relevant consideration.
And finally, in the "be careful what you ask for, it might come back to bite you in the ass" department: now it turns out that the AP, having started this ruckus, might not even own the copyright in the photograph at all. Garcia is apparently claiming that he, and not the AP, is the copyright owner, because (a) he was not an employee of the AP when he took the photo (which would give the AP the copyright under the "work for hire" doctrine", and (b) that his contract with the AP does not transfer his copyright to them. So the end product of all this may well be that the AP has no claim against Fairey, and no copyright at all in the photo.
[Update -- Randy Picker, over at the U Chicago Law School faculty blog, has a somewhat more extensive analysis reaching basically the same conclusion as I do above - DavidP]
because (among other things) "An examination of the entire publication compels the Court to conclude that a reasonable person would determine that the book Hot Chicks With Douchebags is intended to be satirical humor. While it may in some eyes be vulgar and tasteless, it definitely is not an assertion of fact that anyone would take seriously." So says a New Jersey Superior Court opinion in Gorzelany v. Simon & Schuster. What, Johns Hopkins doesn't have a "Department of Scrotology"?
Congratulations to Judge Menelaos Toskos, for getting this right, and for being named Menelaos. Greeks get to have the coolest names. (OK, "Eugene" is originally a Greek name, too, and it's not at all cool, at least in the U.S. But Menelaos is hard to beat.)
Initiated in 2007, the Jackson Fellowship allows recent law school graduates an opportunity to work closely with FIRE's President and Director of Legal and Public Advocacy, substantively engaging issues and cases that represent the cutting edge of First Amendment jurisprudence and higher education law. Beginning in September, Jackson Fellows will work from FIRE's New York office for two years. More information about the Fellowship, including instructions on how to apply, is available here. Applications will be reviewed on a rolling basis.
Our inaugural Jackson Fellows, Azhar Majeed and Kelly Sarabyn of the University of Michigan Law School and Yale Law School respectively, have produced several pieces of original legal scholarship on subjects related to FIRE's work during their term as Fellows. Azhar has two articles slated for publication this spring: "Learning from DeJohn v. Temple University: The Misapplication of Peer Harassment Law on University Campuses and the Loss of Student Speech Rights" in the Journal of College and University Law and "Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes" in the Georgetown Journal of Law & Public Policy. Kelly also has a piece scheduled to be published this month: "The Twenty-Sixth Amendment: Resolving the Federal Circuit Split over College Students' First Amendment Rights," forthcoming in the Texas Journal on Civil Liberties and Civil Rights.
I only rarely post such items on the blog, but in the case of FIRE -- whose work I have long admired -- I thought I'd make an exception, especially since it's likely that quite a few of our readers would find this to be an excellent opportunity.
General Guide to Blogging, #127:
In a moderated comment thread, there is a 50% chance that any commenter who is given a warning for being uncivil will argue that they were not uncivil, demand an explanation of what exactly they did that was deemed uncivil, and seek an explanation of why others have not been warned when they did more or less the same thing.
Seventh Circuit Affirms Dismissal of John Lott's Libel Lawsuit Against Steven Levitt:
The opinion is relatively short, and quite readable. Note that the Seventh Circuit is applying Illinois law, which is relatively defendant friendly in this class of cases: "a statement that is reasonably capable of an innocent construction is not [in the absence of evidence of specific losses] defamatory."
Using an academic definition of “replicate,” Lott maintains that the passage [which said that "When other scholars have tried to replicate his results, they found that right-to-carry laws simply don’t bring down crime"] means that others repeated, to a tee, his technical analysis but were unable to duplicate his results, suggesting that he either faked his data or performed his analysis incompetently.
In [the] context [of a book, Freakonomics, aimed at the general public], it is reasonable to read “replicate” in more generic terms. That is, the sentence could mean that scholars tried to reach the same conclusion as Lott, using different models, data, and assumptions, but could not do so. This reading does not imply that Lott falsified his results or was incompetent; instead, it suggests only that scholars have disagreed with Lott’s findings about the controversial relationship between guns and crime. By concluding that this more generic definition of “replicate” is reasonable, we are not assuming that the reader is a simpleton. After all, econometrics is far from conventional wisdom. We are, however, taking into account the context of the statement and acknowledging that the natural and obvious meaning of “replicate” can lie outside the realm of academia for this broadly appealing book.
Respondent attempted to discredit Dr. Pike by claiming her definition of “gambler’s fallacy” was incorrect. Respondent relies on a definition of “gambler’s fallacy” he obtained from Wikipedia. Respondent did not call any witness, or expert witness, to counter Dr. Pike’s conclusions. Respondent’s reliance on a definition of “gambler’s fallacy” found in Wikipedia[18] is not persuasive. Dr. Pike and Mr. Nicely, a second expert witness whose testimony and opinions are discussed in greater detail infra, credibly explained that there is a difference in the definition of “gambler’s fallacy” depending on the field of study -- e.g., psychology versus mathematics. We find Dr. Pike to be credible and rely on her expert opinion.
[Footnote 18:] Although we conclude that the information respondent obtained from Wikipedia was not wholly reliable and not persuasive in the instant case, we make no findings regarding the reliability, persuasiveness, or use of Wikipedia in general.
Marc Ambinder has an interesting post in which unnamed Obama Administration officials and national security law experts explain the Administration's continued reliance on the state secrets privilege in the Mohamed v. Jeppesen Dataplan case.
Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.
"If you decide today precipitously to waive this privilege, you can't get it back,
an administration official said. "If you decide to assert it, you can always retract it in the future." . . .
The officials who spoke would not discuss the particulars of the case. They did agree to discuss the various cross-pressures that the administration finds itself facing.
One is that many Obama administration legal experts believe that the privilege was recklessly abused during the past six years in particular, and that its application became political or punitive. To that end, Holder directed his staff to review all current assertions of privilege -- a review that won't be completed for several more weeks. . . .
The state secrets privilege has been bureaucratically calcified to an extent that worries many experts, with the Department of Justice making the decision about what's harmful more and more often, and the CIA and other intelligence agencies having less of a say. There is evidence that the privilege has always been used in this way, but that the Bush Administration's invocations were subject to more (legitimate) watchdogging from the press and outside interests. Some Obama administration officials believe that the privilege's assertion is legitimate, but that the Supreme Court, in the case which gave rise to the privilege, was much too deferential to the government.
Lucy, Lady Duff Gordon:
Most first year law students still study the case of Wood v. Lucy, Lady Duff-Gordon in which they read Cardozo's sarcastic reference how she "styles herself a 'creator of fashions.'" In fact, Cardozo notwithstanding, Lucy was a highly influential and innovative fashion designer. Wikipedia has a nice biography of Lucy here. Professor Allen Kamp of the John Marshall Law School has located this photograph of a coat, c1923, silk brocade and velvet, designed by the House of Lucille, Lady Duff Gordon's fashion company. In addition to being famous in her day as a designer, Lucy and her husband Cosmo Duff-Gordon were survivors of the sinking of the Titanic, and she makes a brief appearance as a character in the James Cameron film. Here is an interesting composite photo combining Lucy and Rosalind Ayres, portraying her in the film.
Britain Refuses to Allow Dutch MP Geert Wilders To Enter:
Brussels Journal quotes this letter to Wilders stating that he is excluded from Britain:
Dear Mr Wilders
The purpose of this letter is to inform you that the Secretary of State is of the view that your presence in the UK would pose a genuine, present and sufficiently serious threat to one of the fundamental interests of society. The Secretary of State is satisfied that your statements about Muslims and their beliefs, as expressed in your film Fitna and elsewhere, would threaten community harmony and therefore public security in the UK.
You are advised that should you travel to the UK and seek admission an Immigration Officer will take into account the Secretary of State's view. If, in accordance with regulation 21 of the immigration (European Economic Area) Regulations 2006, the Immigration Officer is statisfied that your exclusion is justified on grounds of public policy and/or public security, you will be refused admission to the UK under regulation 19. You would have a right of appeal against any refusal of admission, exercisable from outside the UK.
Yours sincerely,
Irving N. Jones
On behalf of the Secretary of State for the Home Department
There's more at Brussels Journal about the story, which has an internal British Parliamentary political dimension.
I definitely do not support the British decision, and I would oppose any such decision by the U.S. government (not that I know of any in the wind). But I should note, for those who are interested in comparing European law and American law on free speech (as I sometimes do), that the American precedent on this question, Kleindienst v. Mandel (1972), generally allows the U.S. government to exclude speakers based on their political views.
Reinhardt and Kozinski Duke It Out in United States v. Cruz:
If you're interested in some engaging opinion-writing, check out the majority and dissenting opinions in United States v. Cruz, a criminal case on whether the jury had sufficient evidence to conclude that the defendant was an "Indian" for the purposes of a federal criminal statute. Judge Reinhardt (joined by Judge Thomas) concludes that it was plain error to conclude that there was sufficient evidence, and thus the verdict must be overturrned. Judge Kozinski blows a gasket in dissent, ending with this paragraph:
The majority engages in vigorous verbal callisthenics to reach a wholly counter-intuitive—and wrong—result. Along the way, it mucks up several already complex areas of the law and does grave injury to our plain error standard of review. I hasten to run in the other direction.
Judge Kozinski's dissent is classic Kozinski, although if a few of the lines had been left as a VC comment, I would have deleted it and warned commenter "EZRider" to be civil or not comment at all. ("Worse still, after huffing and puffing for 11 hefty paragraphs and 12 chubby footnotes. . . " Sheesh.)
In a kind of reprise of the well-known Yahoo! case (involving a French lawsuit against Yahoo! for displaying Nazi memorabilia on its auction website in violation of French law) from a several years ago, four Google executives are facing criminal charges in an Italian court arising out of a third-party posting of a video at a Google site:
The Italian case relates to a three-minute movie uploaded to Google Video's Italian site in 2006. In the video, four teenagers from the Northern city of Turin are seen teasing a boy with Down syndrome. After Google received two complaints about the content, the company says it removed the clip within 24 hours. But Italian officials, who didn't return calls for this article, argue the video should never have been allowed to be uploaded in the first place.
Google concedes the content caused offense. In a statement the company says: "As we have repeatedly made clear, our hearts go out to the victim and his family. We are pleased that as a result of our cooperation the bullies in the video have been identified and punished."
There's a great deal one can say about this — indeed, one might even say you could write a whole book about it! At one level, it illustrates an interesting and important difference in substantive law: US law, through sec. 230 of the Communications Decency Act (oddly enough), provides intermediaries (like Google here) a very broad immunity from liability for third-party-provided content, while Italian law (I take it, not knowing much about Italian law) does not. It's an important difference, because it reflects (presumably) a real difference of opinion, and of values, and of policy.
The hard question is: how can we realize the benefits of a truly global communications medium like the Net — the first truly global medium we've ever come up with, and whose promise is unimaginably immense — while different sovereigns impose their different visions of the good onto network traffic? We do not have a good answer for that, at the moment. The conventional wisdom here leads to results that are absurd: to summarize (see chapter 11 of the book for more detail): Italy can legitimately assert jurisdiction over Google if Google's conduct is having "significant effects" within Italy, and Google has tangible assets (machines, offices, typewriters, servers) that are located in Italy (or executives who might set foot someday on Italian soil). Viewed from Google's perspective, and the question "With what law does Google have an obligation to comply?", the conventional wisdom says that Google has the obligation to comply with the law of all sovereigns within whose territory it has tangible assets, or where its executives might travel. In my book, I call this "Jurisdictional Whack-a-Mole."
"If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be – can legitimately be – applied to you. Your daughter’s junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having “significant effects” in one (or all) of those countries, and . . . the school’s obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.
That's a strange kind of law – law that only gets revealed to the interacting parties ex post, and which can therefore no longer guide the behavior of those subject to it in any meaningful way.
This is a really hard problem, and it is one that we need to solve. If I had a simple solution that I could summarize in a brief blog posting, I would do so — and I would not have felt the need to write a whole book about it. I'm hoping the book's website becomes a focus for some discussion about all this, because I'm pretty certain that we could use more discussion about it.
[with thanks to Paul B. Simon for passing along the links
An interesting case just decided today, in which it seems that the lawyers would have been wise not to appeal an erroneous district court decision -- and in which the lawyers' apparent error risked costing the clients many years in jail (though a Supreme Court case decided after the appeal was filed ended up precluding that result). I should note that I have not investigated the matter myself; but I'm inclined to trust Judge Reinhardt's analysis.
David Luban has an interesting commentary on the Obama Administration's decision to continue the assertion of state secrets privilege in Mohamed et al v Jeppesen Dataplan, Inc.. A taste:
The state secrets privilege is the so-called "nuclear option" in litigation, which makes lawsuits against the government vanish without a trace by declaring unilaterally that all the facts the plaintiffs would use to prove their case are state secrets. With no facts to back the claim, plaintiffs' cases must be dismissed.
This one is particularly egregious, because most of the facts are well known and well documented through other sources. One question is whether the state secrets doctrine concerns facts or documents. That is: does it mean that government documents cannot be entered into evidence because they are secret? Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?
The latter position -- that the state secrets privilege is a rule about facts, not about evidence -- is absurd, but it is the government's position. . . .
. . . Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing.
Have Gun-Will Travel Returns for Free:
CBS has just made available for free viewing on its website whole seasons of some of its "TV Classics" series. Beauty and the Beast, Beverly Hills 90210, Dynasty, Family Ties, Have Gun-Will Travel, Hawaii Five-0, The Love Boat, MacGyver, Melrose Place, Perry Mason, Star Trek: The Original Series, The Twilight Zone, and Twin Peaks.
I am particularly pleased to see the first season of Have Gun-Will Travel included. HGWT was one of the most intelligently written western series. Because it has not been rerun in many years, it is probably unknown to most readers.
The series features the excellent actor Richard Boone, as a hired gun who, like several characters of the era, has two lives. One as a silk smoking jacket resident of a posh San Francisco hotel, the other as the black clad Paladin ("a knight without armor in a savage land") who takes a substantial fee for his services. The back story on Paladin is left murky. What is clear is that he is highly educated and well read, a war veteran, and product of a military academy. More info on the series is here.
One of the distinctive features of the series is its opening credits, which always begin with a close up on his holstered gun. Paladin's hand then points the gun directly at the camera and Boone speaks one of the lines from the forthcoming episode. For example, at the beginning of episode 9, "Show of Force," he says:
"I could have taken that letter when I wanted it; even while you held a gun on me. Put the gun away counselor. What good is proof to a dead lawyer."
The series is well worth checking out, although of course it is of inconsistent quality. (The episodes are on the website in reverse order.) My major disappointment was that this release of "classic" series does not include The Defenders, the CBS series about a father-son New York criminal defense firm that first made me want to be a lawyer, and a criminal lawyer at that. The couple episodes I have seen on video tape--a gift from students--still hold up quite well. There seems to be some sort of rights issue with The Defenders. I hope one day it is sorted out.
Living Without Lederman:
Apropos the developments mentioned below in the Ninth Circuit state secrets litigation, commenter Anderson asks a good question: How are we supposed to follow developments in detention and torture law without Marty Lederman? His decision to take a vacation from the rigors of academia to enjoy a cushy government job left a serious hole in the blawgosphere on these issues.
The Obama Administration, Middle Ground, and the State Secrets Doctrine:
Jonathan links below to the news coverage of the Ninth Circuit oral argument at which Doug Letter, an attorney for DOJ, announced that the Obama Administration had elected not to change its position on the state secrets doctrine in Mohamed et al v Jeppesen Dataplan, Inc., an "extraordinary rendition" case.
It's always hard to know what's going on in a new Administration. But my initial reaction is that I'm not particularly surprised. Here's my thinking. Much of the leadership of the Obama Justice Department served as officials in the Clinton Justice Department. But the Clinton Justice Department wasn't necessarily modest when it came to claims of executive privilege. If you'll let me paint with an extremely broad brush, the Clinton DOJ mostly took a case-by-case, middle ground approach to these sorts of issues. My impression is that from the perspective of former Clinton officials — the officials back in power — what made the Bush approach so objectionable was that it its positions were extreme. Instead of trying to strike a balance, invoking these doctrines in some cases and not others, the Addington/Yoo/Cheney approach was to invoke them in every case. From this perspective, the goal, as reflected in DOJ's announcement today that it will review every state secrets case, should be a return to a case-by-case evaluation of when the state secrets doctrine is appropriate.
If the Mohamed litigation had arisen in the Clinton years, I would have expected the Clinton DOJ to assert the state secrets privilege. Even if you condemn what happened in extremely strong terms, the resulting litigation seeks to expose the details of a top secret program involving cooperation with foreign governments that are crucial allies in fighting terrorism. If the secrets get exposed in this litigation, it seems quite plausible that cooperation in the future for other critical programs will be much more difficult. If you're in a position of representing the executive branch, that's a very weighty concern even if you condemn what happened under the previous administration.
I should add that this isn't necessarily a defense of the Obama Administration. Some readers take the principled view that the state secrets privilege either shouldn't exist or should be dramaticaly limited. If you take that view, then the Obama Administration's position remains deeply troubling. My point is only that I think the folks running DOJ are cut from a more institutional cloth: To borrow from Bill Clinton in another setting, they likely see themselves trying, for better or worse, to take the state secrets doctrine and "mend it, not end it." That's my guess, at least.
Judges Reinhardt, Henderson and Karlton Indicate Plan to Order California to Release About 25% of Its Inmates:
Howard has the links to this very interesting news development here. The tentative order of the three judge panel (all Carter appointees, as it happens) is here.
This litigation is new to me, but it appears to have been going for a long time. The gist of the order is that California state prisons are terribly overcrowded, and the three judges have concluded that the only realistic way to avoid unconstitutional prison conditions is to force the state to agree to an order substantially decreasing the number of people in the California state prison system: "[G]iven the evidence presented to this Court, . . an order imposing a cap on the prison population and requiring the State to adopt a course of action to reduce overcrowding is warranted."
Sounds fishy to me, but then I suppose I often have that reaction when the name "REINHARDT" appears on a judicial opinion. I hope someone who has been following this litigation and understands the Prison Litigation Reform Act can weigh in and provide some context and more informed opinion.
Is Stimulus a Trojan Horse for Health Care Reform?
Are radical reforms of the private health care system buried in the stimulus bill? Betsy McCaughey, whose 1994 cover story in The New Republic helped sink the Clinton Administration's health care reforms, thinks so. In an opinion piece for Bloomberg, she writes:
The bill’s health rules will affect “every individual in the United States.” Your medical treatments will be tracked electronically by a federal system. Having electronic medical records at your fingertips, easily transferred to a hospital, is beneficial. It will help avoid duplicate tests and errors.
But the bill goes further. One new bureaucracy, the National Coordinator of Health Information Technology, will monitor treatments to make sure your doctor is doing what the federal government deems appropriate and cost effective. The goal is to reduce costs and “guide” your doctor’s decisions. These provisions in the stimulus bill are virtually identical to what Daschle prescribed in his 2008 book, Critical: What We Can Do About the Health-Care Crisis. According to Daschle, doctors have to give up autonomy and “learn to operate less like solo practitioners.” . . .
Hiding health legislation in a stimulus bill is intentional. Daschle supported the Clinton administration’s health-care overhaul in 1994, and attributed its failure to debate and delay. A year ago, Daschle wrote that the next president should act quickly before critics mount an opposition. “If that means attaching a health-care plan to the federal budget, so be it,” he said. “The issue is too important to be stalled by Senate protocol.”
I recognize McCaughey's 1994 analysis is disputed, and it is entirely possible she is mis-reading the language of the stimulus bill too. At the same time, it would not surprise me were all sorts of mischief buried deep within the massive bill. Hence my question: Is she correct in her assessment of the health care provisions of the stimulus? I would be particularly interested in the views of my co-blogger David Hyman (who's probably forgotten more about health care policy than I'll ever know) and others who follow this issue more closely than I do.
The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.
The case involves five men who claim to have been victims of extraordinary rendition — including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free. They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.
UPDATE: The NYTreports on today's oral argument before the U.S. Court of Appeals for the Ninth Circuit:
During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
“No, your honor,” Mr. Letter replied.
Judge Schroeder asked, “The change in administration has no bearing?”
Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.
Last week, Acting Solicitor General Edwin Kneedler filed a motion informing the Supreme Court that the federal government is no longer seeking review of New Jersey v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit invalidated the Bush Administration's controversial mercury rule that sought to create a cap-and-trade system for mercury emissions from coal-fired utilities. Instead, Kneedler informed the justices, the Obama Administration would develop new regulations in accord with the appeals court ruling.
SCOTUSBlog notes that this is a "fairly radical policy reversal for the EPA." That it is, but not because it changes the ultimate outcome. As I noted here, the Bush EPA's mercury rule was quite flawed, and almost certainly illegal under the Clean Air Act. Thus even had the Court accepted cert in the case, a victory for EPA seemed quite unlikely, and the Obama Administration would have to develop new rules. The justices could still take the case, as an industry-backed cert petition is still pending for Friday's conference, but the odds this case will be accepted would seem to have dropped quite dramatically. So the primary effect of this decision is to accelerate the timetable for developing new mercury rules.
Meanwhile, the Bush Administration finally scored a victory (albeit somewhat belatedly) in a lower profile Clean Air Act case, South Coast Air Quality Management District v. EPA. On Friday, the D.C. Circuit rejected an environmentalist challenge to the EPA's failure to develop more stringent emission standards for large marine diesel engines in a more timely fashion. Given the number of times federal courts of appeals have struck down Bush Administration air rules, this seems significant, even if the case is relatively minor. More on the decision here.
UPDATE: As Law Dork Chris Geidner notes, the EPA's reversal is welcome news to some states -- those that opposed the Bush EPA mercury rule -- but not to others.
Michael Petrelis has some interesting reporting and links on the opposition to the anti-SSM amendment that was defeated in the Wyoming legislature on Friday. It included an openly lesbian House member who says she's "too lazy to be closeted" and two heterosexual Mormon representatives who think their church is making a big mistake by backing such amendments. It also included 16 Republicans in a GOP-dominated body.
In comments, rather than rehash the arguments over SSM, I'd be curious to hear from readers familiar with Wyoming politics about why they think such an amendment has not made it through the state legislature.
Every person has worth as an individual. Every person is entitled to dignity and respect, regardless of class, color, disability, gender, nationality, race, or sexual orientation. Thoughts and acts of prejudice have no place in the UVA Law community.
Therefore, we pledge...
To treat all people with dignity and respect, to discourage others' prejudice in all its forms, and to strive to maintain a climate for work and learning based on mutual respect and understanding;
And from this day forward,
Knowing that both the UVA Law community and the world will be a better place because of our efforts, we will incorporate this pledge into our daily lives.
Some, I suppose, will find it threatening; I find it vapid. At some very high level of generality, almost every decent person agrees with the notion that "Every person is entitled to dignity and respect, regardless of class, color, disability, gender, nationality, race, or sexual orientation." For instance, even many people who believe that homosexuality is wrong believe that people who are attracted to members of the same sex are entitled to dignity and respect — they just think that those people shouldn't engage in homosexual conduct.
The trouble is that the dispute is chiefly about what constitutes "prejudice," and what the obligation "[t]o treat all people with dignity and respect" means. If "prejudice in all its forms" means irrational hostility, then again this is banal to the point of irrelevance: Few people support irrational hostility. If "prejudice in all its forms" means all differences in treatment, then few people would condemn such a broad category of behavior; to do so, they'd have to oppose all race- and sex-based affirmative action, all immigration restrictions (since those discriminate based on not being an American national), all exclusions — no matter how justified by the demands of the task — based on disability, and so on. The same would be true if "prejudice in all its forms" covers all generalizations and preconceptions based on the attributes, however tentative. How many rational people would (or should) have no preconceptions about the possible dangerousness of a passerby on a dark street based on whether the passerby is a man or a woman? How many rational people would (or should) have no preconceptions about whether a blind person should drive a school bus? And these are just some of the most obvious examples.
Of course, I suspect that "prejudice in all its forms" means behavior that right-thinking people treat as prejudice. We can guess what the drafters' notion of right-thinking might be, though I suspect that even the drafters, however ideologically similar to each other they might be, wouldn't completely agree on that. And what do the signers mean by that? Beats me.
So this is all a long way of saying that the diversity pledge strikes me as quite empty of any intellectual value — it's a form of political posturing rather than serious engagement with the actual controversies and problems that modern law schools face. And I suspect that it's also quite empty of any political or community norm-setting value, partly for the reasons I mention above and partly because it would so clearly be understood as political posturing.
By the way, I should note that many of these criticisms can also be levied at the Pledge of Allegiance, which likewise lacks deep intellectual meaning. But if the Pledge works, it works precisely because it is aimed at conditioning the minds of small children, and because its message is understood to be empty of specific commitments that would be substantially controversial in modern American society, which may help it function as a broadly uniting national ritual. ("Under God" is probably the most controversial part, and that only mildly so in modern America; and my sense is even many irreligious people deal with the phrase simply by not saying it, usually with the understanding that the exclusion doesn't affect the general meaning.) I would have thought that these defenses would not be available as to a law school "diversity" pledge.
1. If it has ex ante effects (that is, creditors expect that in any future financial crisis, the government will do the same), then it will help reinflate a credit and housing bubble. Loan servicers, creditors, and homeowners can divide ex ante the future government bounty. By contrast, loan moratoria, Chapter 13 reform, and the like, should reduce the incentive to extend credit (for better or worse).
First, we think you are criticizing TARP, not necessarily our proposal. TARP could generate ex ante effects of this sort, if you believe (which we do not) that the government is likely to spend this kind of money again. Also, we don't need to rely on TARP. Our original draft relied on an industry tax, but this would likely cause further damage to the industry when it is already receiving government help. We settled on TARP funds because we want a plan that can be implemented quickly and want to limit the waste of these funds on other proposals such as Hope for Homeowners and the FDIC plan proposed by Sheila Bair.
Second, loan moratoria would only prolong the current crisis; the last thing we want to do right now is restrict the supply of credit.
Third, if you want to restrict lending, we don’t need Chapter 13 reform. Given recent experience, future lenders will be naturally more cautious in offering credit, with or without changes to bankruptcy law.
Fourth, our proposal corrects a well-defined market failure (badly-written servicing contracts) and, by its very nature, is a temporary intervention. Changes to the bankruptcy code would have permanent, unintended consequences.
Put differently, while the ex ante effects of our proposal are highly speculative, the welfare losses from bankruptcy cramdown are real and documented.
2. Mayer et al. criticize the bankruptcy reform proposals for being crude, but their approach is crude as well. Why ten percent capped at $60 per month? Why not lower or higher? The proposal rests on pretty aggressive empirical assumptions about such things as the risk aversion of loan servicers and the likelihood that beneficiaries of renegotiated loans will default. And then there is the question of whether the estimated $9 billion in TARP funds have a better use.
We computed our Incentive Fee to mimic the fee earned by existing servicers who are successfully modifying mortgages. Also, please take a look at our cost-benefit analysis in Appendices 2 and 4 of our proposal. The empirical assumptions may seem aggressive to you, but they are fairly conservative and (importantly) were checked by many market participants.
Our litigation safe harbor should address your risk-aversion concerns.
Finally, your last point (about better uses of TARP) is a critique of TARP, not our proposal. If the $9 billion is going to be spent, how would you spend it?
3. Servicers will have an incentive to renegotiate loans even in cases where the homeowner should lose the house. In some places, the foreclosure value of the house will not necessarily be much lower than the market value—for example, in healthy neighborhoods where a homeowner defaults not because housing prices have plummeted but because the homeowner suffers a permanent loss in income. Here, the house should be foreclosed and resold. Instead, the servicer will renegotiate the loan down to a level the homeowner can afford, thanks to the subsidy from the taxpayer. The proposal makes a fetish of foreclosure: we don’t want to avoid all foreclosures; we want to reduce the incidence of inefficient foreclosure that results in the loss of home value.
Your hypothetical doesn’t track our proposal. Under it, a servicer is incentivized to modify a loan only if modification generates a greater recovery to investors than foreclosure. Your hypothetical is just the opposite: it is a case where modification generates a lower recovery to investors than foreclosure. Your servicer is acting contrary to investor interest and opening itself to lawsuits. This servicer would not be protected by our litigation safe harbor.
Perhaps you are thinking that there will be no lawsuit, because investors and servicers will split the booty. If that kind of coordination were possible, we wouldn't have inefficient foreclosures in the first place. Put differently, your critique is valid only in a world without coordination failures and transaction costs.
4. Servicers will have an incentive to renegotiate loans even in cases where the homeowner would be able to avoid default without a loan renegotiation. Consider people with low or even negative equity who nonetheless want to stay where they are and possess the wherewithal to make loan payments. The loan servicer would be willing offer the homeowner better terms in return for a loan renegotiation that would enable the loan servicer to claim TARP funds. Perhaps, this behavior would be considered bad faith, creating a risk of litigation by MBS holders. But the loan servicer might be able to avoid the litigation by adjusting the loan only minimally—it would still be entitled to the TARP funds and the MBS holders might think that the cost of litigation exceeds the gain from any remedy.
This critique misunderstands our proposal. Our Incentive Fee does not depend on whether a loan is modified or not. A servicer receives an Incentive Fee for _every_ loan being serviced. The Fee continues to be paid until either (1) our program expires or (2) the loan goes to foreclosure. So a servicer will never be tempted to modify a loan when there is no risk of default. That would be a self-inflicted wound: the servicer would be reducing monthly payments by the borrower and, as a result, lowering its own Incentive Fee. Moreover, modification isn’t free. No servicer will invest up to $1,000 to modify a loan that needs no modification.
Our proposal should be contrasted with the FDIC plan, put forth by Sheila Bair. That plan offers $1,000 to servicers for every loan that is modified in a specified way. The FDIC plan, not ours, makes a “fetish of foreclosure,” because it encourages too many modifications.
Note also that our plan avoids micromanaging the modification process. We leave the choice—foreclose, modify a little, modify a lot, or don’t modify at all—in the hands of the servicer, who is incentivized to keep loans ongoing and modify only when modification is better than foreclosure for investors.
In a world where something is going to be done by Congress, we are trying to find an alternative that does the most good at the lowest cost. Doing nothing is not an option, at least from the perspective of Congress, and from our perspective too.
Really?!?
Saturday Night Live's "Really?!?" segment on its Weekend Update is starting to be one of my favorites. Here is SNL's "Really?!?" take on the Michael Phelps story.
Second best line: "Parents, if your kid says 'Michael Phelps smokes pot, why can't I?' say 'you can, right after you win twelve gold medals for your country.'"
The Timing of Supreme Court Retirements:
Over at SCOTUSblog, Tom Goldstein has a long post speculating on how Justice Ginsburg's illness might impact the decisions of other Justices to retire. The gist of the post is that "the retirement decisions of the Justices are inevitably tied together to some extent," and that other Justices might be more inclined to retire sooner if they think that Justice Ginsburg's illness might force her to retire later in the Obama Presidency. Why? Goldstein suggests that "a practice has developed" by which Justices try not to retire the same year "to avoid the complications of multiple Supreme Court confirmation hearings in a single summer." He writes:
Though precise accounts vary, it is understood that Justice O’Connor retired a year earlier than she otherwise was likely to because it seemed likely that Chief Justice Rehnquist would retire the following summer as a result of his thyroid cancer. A similar phenomenon may present itself here. The greater the odds that Justice Ginsburg will retire in 2010 or 2011, the greater the parallel incentive for Justice Stevens or Justice Souter to leave this summer.
Goldstein qualifies his suggestion with a lot of caveats. The most important is that we just don't know what Justices are going to do: These are highly personal decisions of a few specific people who have never done this before, so it's not something you can reason out from first principles. Even so, I'm skeptical about the basic dynamic Goldstein suggests.
First, I'm not sure "a practice has developed" that Justices try to space out retirements. True, it did happen with Justice O'Connor, at least as best we can tell. But I don't recall hearing other examples of it. (If you know of other examples, please let me know and I'll update the post.) Second, even if that is a general preference, timing a retirement around predictions of a colleague's declining health is pretty difficult. We learned that from Justice O'Connor's example: O'Connor resigned July 1, 2005, apparently in order to space out her retirement and Rehnquist's, but Chief Justice Rehnquist ended up passing away just two months later. Third, the Senate recently went through two Supreme Court confirmation hearings a few months apart, and the system worked just fine. Fourth, the Senate is firmly in Democratic hands, and it would likely confirm pretty much anyone Obama nominates (assuming no major surprises emerge in the confirmation process). That seems just as true if two vacancies arise at the same time.
For all these reasons, I tend to doubt that Justice Ginsburg's health will have any impact on what the other Justices are thinking in terms of their own retirements. It's certainly possible — as I said, these are highly personal decisions of a few specific people who have never done this before, so anything is possible. But I tend to doubt it.
UPDATE: A reader who follows the Supreme Court very closely tells me that there is in fact evidence that the Justices have talked about this issue in the past, and that there is a general preference for spacing out retirements if possible.
Economist David Friedman has an excellent post on the power of political labeling to influence opinion:
A well chosen name wins an argument by assuming its conclusion. Label cash subsidies to foreign government as "foreign aid" and who can be so hard hearted as to oppose them. Call subsidies to the public schools "aid to education" and you neatly skip over the question of whether additional spending in the public school system results in more education. Label something "pollution" and is no longer necessary to offer evidence that it is bad, since everyone knows pollution is bad—even thermal pollution, otherwise described as warm water. Occasionally we even get dueling names. Both "right to life" and "pro-choice" are obviously good things; how could anyone be against either?
For a more recent example, consider Obama's economic policy. Everyone—including Obama, back when he was running for President—is against deficit spending. Relabel it "stimulus" and everyone is for it. The label neatly evades the question of whether having the government borrow money and spend it is actually a way of getting out of a recession—a claim for which evidence is distinctly thin. It is stimulus, so obviously it must stimulate.
Why is such rhetorical manipulation effective? If voters were well-informed about the details of public policy, clever labeling would be unlikely to sway them. If you have a well-informed opinion about affirmative action or Obama's stimulus plan, you probably won't change your mind merely because of a change in terminology.
I should have posted this earlier. But this Monday at 12 PM , I will be taking part in a panel on "national service" at the Hudson Institute (1015 15th Street, NW, Washington DC), along with Bruce Reed of the Democratic Leadership Council, consultant Shirley Sagawa, and prominent conservative political scientist Leslie Lenkowsky. I anticipate that Mr. Reed and Ms. Sagawa will be defending federal government-sponsored national service, whereas Lenkowsky and I will be criticizing it.
Back in 2007, I wrote a series of posts criticizing mandatory national service and arguing that it violates the Thirteenth Amendment's prohibition of "involuntary servitude" for any purpose other than as punishment for a crime. On the panel, I hope to discuss both current proposals for voluntary service (which I don't think are necessarily unconstitutional, but are still seriously flawed), as well as the looming danger of mandatory national service - an idea that has been endorsed by many prominent political leaders, including White House Chief of Staff Rahm Emanuel and John McCain. The issue doesn't necessarily split people along left-right lines, though that may be the case on this panel. Many conservatives defended the draft until the 1970s, and conservative icon William F. Buckley published a book advocating national service in 1989 (he claimed his proposal was for voluntary service only, but also urged that those who refuse to serve be subject to various "sanctions," including denial of a drivers license and high school diploma).
UPDATE: The original version of this post gave the wrong address for the Hudson Institute. I apologize for any confusion.
Duke Ellington And His Orchestra Plays "Satin Doll":
It's been a while since I've done any weekend jazzblogging, mostly because I haven't come across clips that I found good enough to post. But here's one: The Duke Ellington Orchestra playing "Satin Doll," in color and with quite good sound sound. Enjoy.
I'm not sure if this really counts as a "food," but it's really good--at least if you like regular Hawaiian Punch. In fact, I don't think I've ever tasted a diet drink that tastes more like the original, and it's only ten calories per serving.
Even more good news: it's really cheap--in my experience, $2.50 for a gallon.
The bad news: it's really hard to find. Locally, in the D.C. area, I've only seen it at Wegman's, and since Wegman's is not convenient for me, I have to buy four or five at a time. Out-of-town, I've seen it in Walmart supercenters.
I'll be in Louisiana this coming week, giving talks about The Mechanisms of the Slippery Slope:
Tuesday, February 10, 12:30 pm to 2 pm at Loyola of New Orleans Law School, room 111. Free.
Tuesday, February 10, at 5 pm at Tulane Law School, faculty lounge. Free.
Wednesday, February 11, 11:15 am (cash bar), 12 noon (lunch) at the Plimsoll Club of the World Trade Center, Galvez Room. Costs $45 per person, $25 for students and judicial law clerks; RSVP to jinman at liskow dot com, but it might be too late now.
Thursday, February 12, 12:40 pm to 1:40 pm at Louisiana State University Law School, room 110. Free.
All events are put on by local Federalist Society chapters; the Wednesday lunch event is put on by the local lawyers' division, and the others by student groups. Many thanks to them for organizing everything!
Interpretation vs Construction:
Readers who think they may one day want to be legal academics should make it a habit to read University of Illinois Professor Lawrence Solum's Legal Theory Blog. There you will find his recommendations of recent legal scholarship, as well as his invaluable Legal Theory Lexicon. Today, for example, he explains the interpretation-construction distinction.
We can roughly define these two activities as follows:
* Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.
* Construction: The activity of translating the semantic content of a legal text into legal rules
In my experience, law professors conflate these two activities all the time. What matters is not the terminology--that is merely semantic--but that serious confusion results from failure to recognize them as two different sorts of activities. The failure to distinguish which of these two activities are being discussed obscures sources of potential common ground as well as the substance of whatever genuine disagreements may exist.
After a very useful discussion of the difference senses of "meaning" as well as the difference between "vagueness" and "ambiguity," Solum then asks, "What Work Does the Interpretation-Construction Distinction Do?"
Is this interpretation-construction distinction really necessary? What work does it do? Does the distinction reflect a real and fundamental difference between different modes of legal practice?
One way to think about these question is to imagine what things would look like if we didn't have the interpretation-construction distinction. What if we called everything "interpretation" and didn't recognize construction as a distinct activity. Well, we could reinvent the distinction within the concept of interpretation. You can imagine talking about two stages of interpretation--stage one corresponding to the narrower idea of interpretation and stage two corresponding to construction. But if we did that, we would simply be using different labels to refer to the same concepts.
So let's do a thought experiment that involves our failing to distinguish between the lingustic meaning and legal effect of legal texts. Judges and legal theorists have actually done that (so I guess it isn't really a "thought experiment). For example, Allan Farnsworth once wrote, "[Courts] have more often ignored [the interpretation-construction] by characteizing the process of 'construction' as that of 'interpretation' in order to obscure the extentof their control over private agreement." If courts deliberately ignore the distinction in order to make their role opaque rather than transparent, then legal theorists can deploy the interpretation-construction distinction in order to expose what is really going on. (There is a Legal Theory Lexicon entry on transparency.)
But sometimes courts run interpretation and construction together without any awareness of the what they are doing. That is, the court may not realize that there is a difference between the inquiry into the linguistic meaning of a legal text and the creation or application of subsidiary rules that translate the semantic content into legal content. When courts (or legal theorists) are confused in this way, it is not surprising that their reasoning is likely to be confused or incoherent. On the one hand, they may try to squeeze constructions out of linguistic facts. On the other hand, they may try to reach conclusions about the actual linguistic meaning of a text on the basis of policy considerations. (Making the egregious error of arguing for the existence of a fact from its desirability.) When this happens, the interpretation-construction distinction allows the legal theorist to step in and reconstruct the arguments so that they make sense (or if they don't, then in a way that exposes the error).
So is the interpretation-construction distinction real and significant? Of course, it isn't the particular terminology that matters, but the substance of the distinction is not something that legal theorists can do without. The linguistic meaning of a legal text and the content of legal rules are really two different things.
The Interpretation-Construction Distinction and the New Originalism
One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism." One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction. (This is especially clear in the work of Keith Whittington and Randy Barnett.) The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation. Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work. New Originalists deny that this is true. They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene.
Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results. We might call the view that original meaning and a living constitutionalism are consistent "compatabilism"--the case for this view has been made by Jack Balkin.
This also suggests the possibility that continued appeals to "original intentions" or "original expected applications" beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning. Some originalists who resist compatibilism are really arguing the living-constitutionalist construction is inconsistent with originalist construction.
This is just one example of the interpretation-construction in action. It is relevant in a number of other doctrinal contexts, including contract law, trusts and wills, and the theory of statutory interpretation and construction.
Conclusion
Once you become aware of the interpretation-construction distinction, you will begin to notice its ubiquity and subterranean quality. The distinction is ubiquitous, because the law in theory and practice is almost always about the application of legal texts to particular cases. The distinction is subterranean, because of the failure of theorists, judges, and lawyers to observe the distinction, with resultant deception or confusion. With the distinction at hand, your own thinking about the law can become clearer and more transparent, and you possess a powerful tool for understanding or criticizing the work of others.
THE doctor who sparked the scare over the safety of the MMR vaccine for children changed and misreported results in his research, creating the appearance of a possible link with autism, a Sunday Times investigation has found....
The [original] research was published in February 1998 in an article in The Lancet medical journal. It claimed that the families of eight out of 12 children attending a routine clinic at the hospital had blamed MMR for their autism, and said that problems came on within days of the jab. The team also claimed to have discovered a new inflammatory bowel disease underlying the children’s conditions.
However, our investigation, confirmed by evidence presented to the General Medical Council (GMC), reveals that: In most of the 12 cases, the children’s ailments as described in The Lancet were different from their hospital and GP records. Although the research paper claimed that problems came on within days of the jab, in only one case did medical records suggest this was true, and in many of the cases medical concerns had been raised before the children were vaccinated. Hospital pathologists, looking for inflammatory bowel disease, reported in the majority of cases that the gut was normal. This was then reviewed and the Lancet paper showed them as abnormal....
UPDATE: By the way, I should note that if there was misreported data here, the failure was not a failure of "peer review" (at least as the term is, to my knowledge, generally understood). Peer review involves reviewers checking the written article to see if it has errors in its reasoning, or fails to consider important and already known contrary data or arguments, or is duplicative of preexisting research.
Peer review, as I understand it, generally doesn't involve source-checking the article to make sure that it accurately reports the underlying data. Law review cite-checking in some measure does that, but it's unusual as far as scholarly journals go (partly because it relies on the unpaid labor of student editors, who are common only in law; faculty editors and peer reviewers aren't willing to do this sort of thing). And I doubt that even cite-checking would usually go so far as to demand that the scholar provide the underlying medical charts on which the author based his data. Usually the tables from the author would suffice, especially if the author says -- accurately or not -- that the underlying charts aren't available (for instance, because of privacy concerns at the institution that maintains the charts).
To be sure, The Lancet and other such journals could institute systems in which all the underlying data is checked as much as possible, though even that can't catch certain kinds of errors (and especially certain kinds of deliberate falsifications). But it would require a tremendous amount of extra work. Perhaps some learned journals do invest this kind of work, but to my knowledge that is not and has not been the norm; much of academic publishing is built on trust of the authors, and even if some verification is done, it is not the sort of comprehensive verification that one does when one suspects that the data is badly wrong or even deliberately falsified.
In United States v. Cuniff, the U.S. Court of Appeals for the Sixth Circuit rejected a landowner challenge to federal jurisdiction. At issue was the scope of federal regulation under the Clean Water Act over privately owned wetlands after Rapanos v. United States. Assuming the Cuniff opinion paints an accurate picture of the relevant details, and the extent of the ecological connection between the relevant wetlands and local waters, the court may have been correct to rule against the landowners. But the Court's discussion of jurisdiction unnecessarily complicated the relevant analysis, suggesting (as have other courts) that there are multiple paths for asserting jurisdiction post-Rapanos.
In Rapanos, the Supreme Court split 4-1-4 over the proper test for determining when wetlands adjacent to tributaries could constitute “waters of the United States” subject to federal control. Justice Scalia’s four-justice majority adopted a narrow definition of “waters of the United States” that requires a relatively continuous flow of surface water to establish that a wetland is subject to regulation. Justice Kennedy adopted a more expansive view, holding that the Clean Water Act extends to any waters or wetlands with a “significant nexus” to navigable waters. The four dissenters adopted an even more expansive view of federal jurisdiction, completely deferring to any federal agency determination, and suggesting that lower courts could find jurisdiction if either the Scalia or Kennedy standard is met. This suggestion, noted in Cuniff and other cases, would suggest there are wetlands that would fail Justice Kennedy's "significant nexus" test, but somehow satisfy the other eight justices. I think this is wrong.
Cuniff dodged the issue in one respect, as it found that jurisdiction could be established under either the Scalia-plurality or Kennedy test. My point is that if Rapanos is read properly, the additional analysis was unnecessary. Only the Kennedy test is controlling as there is no reason to believe there are any wetlands that would meet the Scalia-plurality test for jurisdiction without also meeting the Kennedy test. This is a point the Scalia plurality made explicit, explaining that “relatively continuous flow is a necessary condition for qualification as a ‘water’ not an adequate condition.” (emphasis in original). Thus, even with a relatively continuous flow, additional indicia of a significant hydrological connection could be required for jurisdiction, and such indicia would almost certainly satisfy the relatively flexible test articulated by Justice Kennedy. Alternatively, were there to be a wetland connected to a navigable-in-fact water by a “relatively continuous flow” of water that is so inconsequential as to fail Justice Kennedy’s “significant nexus” test, there is little reason to think it would satisfy that of the Scalia plurality. [For more on my assessment of Rapanos, see here and here.]
In these sorts of cases I think lower courts should focus exclusively on the “significant nexus” requirement as articulated by Justice Kennedy. This may be time consuming, but it is the proper way to apply Rapanos. If courts (and others) want a clearer jurisdictional test than Justice Kennedy’s opinion provides, the U.S. Army Corps of Engineers and Environmental Protection Agency will have to refine its regulations to clarify its interpretation of the scope of “waters of the United States.” Such a rule-making is long overdue.
UPDATE: Speaking of Rapanos, here's an op-ed by PLF attorney Reed Hopper on John Rapanos' settlement of his case with the government.
Here's a nice little essay by Ray Pellechia, on the "official" NY Stock Exchange blog, suggesting that Harry Markopolos, who had figured out the Madoff scam a long time ago, would have been a lot more effective had he blogged about what he found, instead of doing what he actually did in 2005 (i.e., sending a detailed, 19-page memo to the SEC. Pellechia writes:
Certainly, any failure to convince others was not due to lack of effort. Perhaps Mr. Markopolos lacked only an effective medium to communicate his warning. Here's a thought experiment: What would have happened if Mr. Markopolos had blogged his analysis? That is, what if he had posted the entire piece on a blog, under his name or a pseudonym?
We'll never know the answer, but here's what I think might have followed:
• The post would have quickly spread far and wide among traders and investors. It's a small Street, as the saying goes, and an analysis raising questions about the investment results of a prominent name such as Madoff would have sent e-mails flying.
• Those who had money invested with Mr. Madoff -- or who were thinking of investing -- would have done the same math that Mr. Markopolos had done, undoubtedly reaching the same conclusion. The resulting rush to pull money out and the avoidance of adding new money would have meant a faster end to the alleged Ponzi scheme.
Last week, the U.S. Court of Appeals for the Sixth Circuit decided United States v. Cundiff, a case arising out of Mulhlenberg County, Kentucky, concerning the scope of federal wetland regulations post-Rapanos. The wetlands at issue were a "festering eyesore," according to the court, largely due to acidic runoff from an nearby abandoned mine site. Rather than describe the poor environmental conditions of the land in its own words, however, the Court dropped a footnote to "Paradise," a John Prine song about Muhlenberg County's environmental woes.
And daddy won’t you take me back to Muhlenberg County
Down by the Green River where Paradise lay
Well, I’m sorry my son, but you’re too late in asking
Mister Peabody’s coal train has hauled it away . . . .
Then the coal company came with the world’s largest shovel
And they tortured the timber and stripped all the land
Well, they dug for their coal ‘til the land was forsaken
Then they wrote it all down as the progress of man . . .
When a court quotes lyrics like this, you can assume a challenge to federal environmental regulation will not fare well. And so it was. The Sixth Circuit upheld federal jurisdiction over the Cundiffs land.
The full lyrics are available here, and here's a video of Prine performing the song.
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