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Saturday, February 28, 2009

Federal District Judge Samuel B. Kent Pleads Guilty to Charges of Obstruction of Justice and Resigns from the Bench:

I missed this when it happened a few days ago. But it's worth noting that Texas federal district Judge Samuel B. Kent pleaded guilty to charges of obstruction of justice last week, and is resigning from the bench as part of the plea deal:

No means no — even if you are a federal judge with a lifetime appointment and a larger-than-life ego.

That is but one lesson in the ugly and utterly avoidable case of United States of America v. Samuel B. Kent. On Monday, Kent, a U.S. district judge since 1990, pleaded guilty to lying to investigators about sexually abusing his secretary. In exchange, federal prosecutors dropped five sex-crime charges alleging he groped two women. Kent could have faced up to life in prison if convicted of all charges, but prosecutors say they will not seek more than three years in prison for Kent, who is 59...

As part of his plea deal, Kent has agreed to retire immediately from the bench, likely avoiding impeachment by Congress, the constitutionally prescribed method for unseating a federal judge.

Eugene Volokh and I discussed the Kent case in a series of posts in 2007 and 2008. At the time, I took a certain amount of flak for urging that Congress investigate the possibility of of impeaching Kent. Kent's forced resignation makes the impeachment issue moot, of course. But it does suggest that there was good reason to consider the possibility until Kent finally agreed to resign on his own. As I pointed out in my first post on the subject, the sexual harrassment that caused Kent's downfall was the latest in a long series of ethically dubious actions by the judge. The federal judiciary will be the better for his absence.

UPDATE: Apparently, Judge Kent is trying to retire on "disability" rather than resign. If he manages to do the former, he would be eligible for a $169,300 annual pension for the rest of his life. Otherwise, he wouldn't get that amount, because he has not yet reached the age of 65 (the age federal judges must reach before being eligible to retire at full salary). In order for this dubious ploy to work, Kent would have to get the approval of Edith Jones, Chief Judge of the Fifth Circuit, which seems unlikely. Also, as the above-linked article notes, some members of the House Judiciary Committee are threatening to move ahead with impeachment proceedings if Kent persists in trying to retire rather than resign.

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The Future of Russia:

Economist Moscow correspondent Arkady Ostrovsky has an interesting article on the future of Russia in the wake of the economic crisis. Like me, Ostrovsky worries that the crisis will strengthen communist and radical nationalist political forces that may be even worse than Vladimir Putin's authoritarian regime. As he points out, the Kremlin is trying to avoid blame for Russia's current economic troubles by claiming that it's all the fault of the US and the West. More generally, they have been using the government's control of the media to promote Russian nationalism and anti-Americanism and minimize the crimes of communism for several years now. Obviously, this has the effect of making the Russian public more receptive to the ultrananationalist message.

The problem is not unique to Russia. Nationalists everywhere love to whitewash their own country's history while blaming foreigners and ethnic minorities for all their problems. That, however, will not be much comfort if radical anti-Western nationalists manage to take over one of the world's largest oil producers and second biggest arsenal of nuclear weapons. Unfortunately, the harmful legacy of Putin's propaganda campaigns and repression of the liberal democratic opposition might well outlast Putin himself.

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More on the "Rich":

I caught some flack from commenters a couple of days ago after wondering aloud how purportedly "rich" Obama supporters who have a family income in the 250 to 380K range and who live in expensive, high-tax urban areas, especially those with hefty mortgages and large child-care expenses, feel about his tax plans. Some commenters suggested that even raising the question suggested I was an out-of-touch troglodyte.

So imagine my amusement to read the following today in that bastion of reaction, the New York Times:

The wealthiest stand to lose the most under President Obama’s proposed budget, while individuals with lower incomes could gain in many different ways. But many of those in between — those with household incomes of $200,000 to $400,000 or so — may not see as much of a difference in their tax bills as they may have feared.

Plenty of people in this income range live in high-cost areas of the Northeast and California and stretched, rightly or wrongly, to afford their homes when real estate prices were higher. They may not consider themselves rich at all, laughable as that may seem to people earning far less in the middle of the country. But they've been worried sick as the president has persistently defined them as rich enough to pay more in taxes —at the exact moment when their jobs may be in danger or their small businesses or commission income may be suffering.


Professor Files Complaint With Police Based on College Student's Class Presentation in Favor of Concealed Carry:

From The Recorder (Central Connecticut State University):

On October 3, 2008, [John] Wahlberg and two other classmates prepared to give an oral presentation for a Communication 140 class that was required to discuss a “relevant issue in the media”. Wahlberg and his group chose to discuss school violence due to recent events such as the Virginia Tech shootings that occurred in 2007.

Shortly after his professor, Paula Anderson, filed a complaint with the CCSU Police against her student. During the presentation Wahlberg made the point that if students were permitted to conceal carry guns on campus, the violence could have been stopped earlier in many of these cases. He also touched on the controversial idea of free gun zones on college campuses.

That night at work, Wahlberg received a message stating that the campus police “requested his presence”. Upon entering the police station, the officers began to list off firearms that were registered under his name, and questioned him about where he kept them.

They told Wahlberg that they had received a complaint from his professor that his presentation was making students feel “scared and uncomfortable”....

Professor Anderson refused to comment directly on the situation and deferred further comment.

“It is also my responsibility as a teacher to protect the well being of our students, and the campus community at all times,” she wrote in a statement submitted to The Recorder. “As such, when deemed necessary because of any perceived risks, I seek guidance and consultation from the Chair of my Department, the Dean and any relevant University officials.” ...

It's hard to evaluate these stories without knowing more about the details of what the student said and how he said it, especially if the call to the police is just a request to investigate, rather than an outright complaint in the sense of an allegation of a crime being committed. (The story says "complaint," but it's not clear how precisely the term is being used.) If the presentation was indeed simply advocacy of concealed carry, then the police investigation sounds quite heavy-handed, and the professor's worry based on the student's political views on the subject sounds unjustified. If something was said that gives a reasonable person some reason to worry, then some level of inquiry would indeed be sensible. Still, the story seemed worth passing along — please let me know if any of you have more specific information on the subject.

Thanks to Paul Hsieh, who has more thoughts on the subject, for the pointer.

177 Comments

Friday, February 27, 2009

The Kindle 2 is shipping from Amazon.

The new Kindle 2 has been released, offering more memory and a longer battery life than the original Kindle.

Those who have it already, what do you think?

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Bailout Prize Patrol:

If you haven't seen it, this video on the "Bailout Prize Patrol" is quite funny in places.

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The Market Response:

The Ayn Rand Center reports that sales of Atlas Shrugged have tripled over the same period last year. Amazingly, a record of 200,000 copies were sold in bookstores in 2008--I would've never guessed that the sales figures would've been so high.

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Cert Petition and Reply Briefs in the AmeriSource Takings Case:

Last year, Orin Kerr and I had an extensive debate on the VC over AmeriSource Corp. v. United States, an important case in which the Federal Circuit Court of Appeals ruled that the Takings Clause does not require the government to compensate innocent property owners for destroying their possessions by seizing them in the course of a criminal investigation.

Interested readers may want to know that AmeriSource has filed a cert petition to the Supreme Court. Columbia University Law Professor Ronald Mann, counsel for AmeriSource, has posted the cert petition. the government's opposition brief, and AmeriSource's reply brief. For the reasons I discussed in the original series of posts on AmeriSource, I think this is an important issue, and I hope that the Court decides to hear the case.

UPDATE: I have corrected the flawed link to the opposition brief.

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Reasons to Look Outside the Judiciary for Supreme Court Nominees: In the Chicago Tribune, lawprof Tim O'Neill makes the case against nominating another court of appeals judge to the Supreme Court. Oddly, though, O'Neill doesn't seem to have an affirmative argument for what nominating someone without prior judicial experience would actually add. He suggests that the diversity of experience would add something, but I don't think he says what that is.

  We have blogged about this issue before, but I wanted to add a few thoughts anyway. In my view, the argument that a President should nominate someone to the Supreme Court who lacks experience in the court of appeals to ensure "diversity of experience" doesn't make a lot of sense. If typical Supreme Court nominees are 50 years old, and have spent 5-10 years on the appellate bench, they will have spent most of their lives doing something beyond filling up the Federal Reporter. The will have been practicing lawyers, public interest advocates, government officials, legislative staffers, academics, and the like.

  True, few federal judges have experience in public office, a lack of experience that O'Neill finds troublesome. But then I'm not sure how that's relevant. Take the case of former legislators, who I would think are the most common type of former public officeholders who are often considered for judgeships. What exactly is it that legislators do that judges need to know? What does that experience teach that jurists who have not been elected to public office suffer from not knowing? Given the realities of work in Congress or state legislatures, I'm not sure.

  Perhaps the argument is that those who want former legislators to become judges really don't want "diversity of experience," but rather like it when judges act like legislators. That is, maybe a former legislator is more likely to legislate from the bench -- an overused term, but here I think an accurate one -- and some think that's a good thing. Perhaps. But if so, I think that argument should be made directly, not hidden behind an argument for "diversity."

  None of this means that there are no arguments against nominating court of appeals judges to the Supreme Court. I find one argument pretty strong: The pool of appellate judges is just too small.

  Here's my thinking. A Presidential term might see only about 35 confirmations of appellate judges. Of that group, fewer than ten are likely to have the intelligence, personality, and work ethic to be likely Supreme Court material. (Indeed, it's harder to get top court of appeals nominees confirmed if it looks like they might be Supreme Court material down the road.) If you cross out the judges who are too old, are unconfirmable, or who don't want the job, the group gets smaller still. As a result, if a President confines himself to sitting judges, the "short list" starts off as very short indeed. By looking outside the court of appeals for nominees, the President can vastly expand the pool of possible candidates and likely find someone who better matches his idea of an ideal candidate. I think that's the best reason to look beyond the court of appeals, not the diversity of experience of someone who has no experience in the federal judiciary.
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Crime Victims Win in the Ninth Circuit:

The Ninth Circuit has justed entered an order, found here, granting the crime victims petition for a writ of mandamus in the W.R. Grace prosecution in Montana. At the same time, however, the court sent the case back for more particularized findings on whether or not the victims' testimony would be affected by watching the trial. So it looks like further proceedings will happen in Missoula.

It's disappointing that the Ninth Circuit didn't provide more information about why it reached the conclusion it did. This is an important question that will recur in many other cases.

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Journalistic stages of grief:

Today's on-line Columbia Journalism Review features an article titled Rocky Mountain, Bye: Rocky Mountain News staffers share their thoughts on the paper’s closing. Yesterday the CJR asked Rocky staffers to send in a paragraph or so of their thoughts. There are a wide variety of reactions.

A small number of Rocky writers, including the excellent sports columnist Dave Krieger (whose CJR comment expresses his frustration with Scripps' corporate priorities) will be moving to the Denver Post. As many of you know, I've never been a full-time employee of the News, just a bi-weekly columnist; my regular job is Research Director of the Independence Institute, one of the oldest state-level think tanks in the U.S. I wish that the Ind. Inst. had a few million dollars sitting around in a vault, so we could hire some of the great journalists who will be losing their jobs.

The CJR's request for a reaction put me in a historical mood:

It’s been a very high-tech day, with the Rocky posting near-instant video coverage of its own death. Yet today evokes for me a picture of Italy around 450 A.D., with declining literacy, and the crumbling of what used to be the great institutions of civic engagement. As a media columnist, I’ve written often about media bias, which is a very serious problem, but which is not the primary cause of the current collapse of the newspaper business. We have a society that reads less and less, and which passively watches more and more video. Over the long term, I expect that quality coverage of national business and national politics will survive, because there will be enough highly-literate readers who will pay the premium prices necessary to support sophisticated reporting. But I am not at all confident that there are enough readers who will pay what is necessary for the existence of good coverage of local news. At a time when governments are growing more and more powerful, we are losing a crucial part of our checks and balances. "Quis custodiet ipsos custodes?" as they used to say. A healthy society needs someone to guard us from the government "guardians." Newspapers have been far from perfect in performing this vital, protective civic role, but more protection is better than less. With the Rocky's demise, Colorado is going to have much less.
Today's final edition of the Rocky Mountain News, available, of course, for free on the web, includes a 52-page special wrap-around section about the nearly-150-year history of the paper. It would have been a great addition for the Rocky's 150th birthday, 55 days from today. But I guess the birthday edition had to come a little early, combined with the funeral edition.

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Left/Right bloggers both worried that stimulus will go to undeserving:

In this week's National Journal poll of leading political bloggers, 76% of Left-leaning bloggers and 100% on the Right are either "somewhat concerned" or "very concerned" that federal stimulus money will go to people who don't deserve it. I was among the very concerned: "Taking money from responsible and prudent homebuyers and renters and giving the money to reckless borrowers and lenders will promote more irresponsible borrowing and lending in the long run."

On the question of whether another stimulus will be necessary later this year, 88% ofthe Left and 40% of the Right thought so. I thought not: "Since the first package was not 'necessary' but will likely be inflationary and economically harmful, it is unlikely that a second round of even more debt could be necessary."

Earlier this week, National Journal published an annotated version of the President's State of the Union speech. Various portions of the text are marked to show where they relate to a campaign promise, mark a break with the Bush administration, etc. There is also highlighting for the reaction of pundits, bloggers, and experts to particular items in the text. I comment on the line: "And we will expand our commitment to charter schools." My view: "Constitutionally, Congress and the president have no business trying to manage local public schools. But as long as the federal government is involved, promoting charter schools is an excellent way to improve public education. More diversity, more choice, more accountability. A win-win-win."

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"Seven Jewish Children":

This, new short play opened in London recently, and it's hard to articulate how depraved it is without suggesting you first read the full dialogue. The essential "plot," if you can call it that, is to show how Israeli Jews, deranged by their suffering in the Holocaust, gradually turn into alter-egos of the Nazis.

Not surprisingly, the Guardian loved it. The Times did not. The Guardian also defends the play against charges of anti-Semitism, because, the author writes, "I cleave strongly to the view that it is possible to be critical of Israel without being antisemitic." Sure you can. But it's rather harder to make that defense when you start your play with parents trying to reassure children caught up in in the Holocaust, and end with this (including lines that evoke classic blood libels):

Tell her about the family of dead girls, tell her their names why not, tell her the whole world knows why shouldn’t she know? tell her there's dead babies, did she see babies? tell her she’s got nothing to be ashamed of. Tell her they did it to themselves. Tell her they want their children killed to make people sorry for them, tell her I'm not sorry for them, tell her not to be sorry for them, tell her we're the ones to be sorry for, tell her they can’t talk suffering to us. Tell her we're the iron fist now, tell her it's the fog of war, tell her we won’t stop killing them till we’re safe, tell her I laughed when I saw the dead policemen, tell her they’re animals living in rubble now, tell her I wouldn’t care if we wiped them out, the world would hate us is the only thing, tell her I don’t care if the world hates us, tell her we're better haters, tell her we’re chosen people, tell her I look at one of their children covered in blood and what do I feel? tell her all I feel is happy it’s not her.

That said, whether or not the playwright is anti-Semitic is somewhat besides the point. The play has many defenders, and one is left to wonder: if a non-member of any other minority group had chosen to psychoanalyze that group, implicitly claiming its members deranged and bloodthirsty because of earlier historic traumas, that they resemble the Nazis, are indifferent to the death of babies, believe they are superior to everyone else, etc., would the reaction be remotely the same?

UPDATE: Just to be clear, though, I'm not saying the author is anti-Semitic, or even that the play is inherently anti-Semitic (it is inherently ignorant and appalling to claim that Israel is Nazi-like in its treatment of Palestinians, and that this is the result of Israelis' own historical demons, but while anti-Semites can be condemned as appalling ignoramuses, not all appalling ignoramuses are anti-Semites).

I am saying that the author took no care to eliminate references that could easily be construed as anti-Semitic, that at least one reference (to Jews thinking of themselves as the "chosen people", which does not, in Jewish tradition, have any implications of ethnic superiority*) is inexplicable at least without reference at least to others' anti-Semitism that the author has absorbed, and that if a playwright had been similarly cavalier with the history and "psychoanalyis" of other historically oppressed ethnic group, in the process of accusing that group of being dominated by bloodthirsty fascists, she would be condemned, not lauded, in London's "progressive" circles.

[*I concluded in a previous post: "So, as far as I can tell, being the 'chosen' simply means that Jews are in a particular contractual relationship with God that our ancestors made, one that is not always to our advantage, and that is without prejudice to the status of Gentiles before God."]

FURTHER UPDATE: Howard Jacobson lambastes those who defend the play, particularly one Jacqueline Rose:

In its unquestioning espousal of [Rose's] theory that the Holocaust traumatised the Jews into visiting back upon the Palestinians what the Nazis had visited on them – a theory of dazzling psychological simplicity that turns Zionism (and never mind that Zionism long predates the Holocaust) into a nervous breakdown, and all subsequent events into the playing out of the Jews’ psychic instability. By this reasoning, neither the Palestinians nor the Arab countries who have helped or hindered them are relevant. Jacqueline Rose spirits them away from the scene of the crime. They are redundant to the working of her theory, of no significance (whatever they have done), since the narrative of the Middle East is nothing but the narrative of the Jewish mind disintegrating.

What Jacqueline Rose seems not to have noticed is that this theory is a perfect illustration of the very Jewish arrogance she decries, assuming to itself responsibility for every deed.

Putting aside the content of Jacobson's piece, I wish I could write like that!

And Jacobson, it turns out, makes a similar point to mine: "Only imagine this as Seven Muslim Children and we know that the Royal Court would never have had the courage or the foolhardiness to stage it."

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We'll lose more than a paper:

My farewell column for the Rocky Mountain News:

Unfortunately, the demise of the Rocky is more than a 50 percent diminution in newspaper quality in Denver. There's the direct loss of the stories which the Rocky covered and the Post didn't, or which the Rocky investigated thoroughly and the Post only superficially. But there's also the less visible loss of how competition with the Rocky has made the Post a better paper throughout all of that paper's own venerable history. Having two newspapers is more than twice as good as having just one, because each newspaper spurs the other to better work....

With the Rocky gone tomorrow - and the Post perhaps gone within two years - who is going to report the news in Denver? The TV and radio stations only report a fraction of the number of stories that go into a daily newspaper, and the reporting is much less detailed than what's in the papers.

It's possible to have a republic without newspapers. But we've never done it in America, and there's no guarantee that we'll succeed at doing it.

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Thursday, February 26, 2009

Bringing Per Capita Carbon Emissions Down to Below 1700s Levels.

The most dangerous proposal in the new budget is the institution of a cap-and-trade system for carbon emissions. Indeed, the single largest source of new tax revenue in the budget going forward are these payments to be made by businesses for the right to emit excess carbon.

The goal is an 83% reduction in carbon emissions by 2050 compared to 2005 levels.

That would bring US per capita emissions of CO2 down to a level below what we had in the 1700s. As Steven Hayward wrote in the WSJ last April about an 80% reduction then on the table:

Begin with the current inventory of carbon dioxide emissions – CO2 being the principal greenhouse gas generated almost entirely by energy use. According to the Department of Energy's most recent data on greenhouse gas emissions, in 2006 the U.S. emitted 5.8 billion metric tons of carbon dioxide, or just under 20 tons per capita. An 80% reduction in these emissions from 1990 levels means that the U.S. cannot emit more than about one billion metric tons of CO2 in 2050.

Were man-made carbon dioxide emissions in this country ever that low? The answer is probably yes – from historical energy data it is possible to estimate that the U.S. last emitted one billion metric tons around 1910. But in 1910, the U.S. had 92 million people, and per capita income, in current dollars, was about $6,000.

By the year 2050, the Census Bureau projects that our population will be around 420 million. This means per capita emissions will have to fall to about 2.5 tons in order to meet the goal of 80% reduction.

It is likely that U.S. per capita emissions were never that low – even back in colonial days when the only fuel we burned was wood. The only nations in the world today that emit at this low level are all poor developing nations, such as Belize, Mauritius, Jordan, Haiti and Somalia.

Recognize that the cost of the cap-and-trade system far exceeds the tax collected from those who are willing to pay the money just to exceed the limits set by the government. The businesses that do not buy indulgences face the cost of the restrictions themselves.

If Obama succeeds in his quest to reduce carbon emissions by 83% by 2050, American business will be destroyed. Manufacturing in the US will essentially disappear to countries that do not have anti-business, anti-growth policies, mostly in the Far East.

It would be hard to imagine a government policy that is likely to be more destructive of jobs and economic growth than this one.

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Briefs All Filed on "Crime Victim" Issue in W.R. Grace Environmental Case:

I blogged recently about the W.R. Grace criminal trial, which started this Monday. As alleged in the indictment, the case involves crimes of "knowingly endangering" the residents of Libby, Montana. The district judge has ruled that these knowing endangerment crimes do not produce "crime victims" because they do not produce actual harm, only threatened danger. Accordingly, the victims could not exercise the right of crime victims to attend the trial, but instead were sequestered as witness.

Yesterday the defense filed their brief in the case. This excerpt gives a feel for the defense argument:

This case, however, is anything but run-of-the-mill, and it perfectly illustrates the dangers of departing from the hornbook rule that the CVRA’s application to pre-conviction proceedings must be determined from the factual allegations in the indictment. That is so in part because the freestanding, postindictment allegations of harm made by Petitioners depend on complex scientific and medical judgments that are strongly disputed by Defendants—who will at trial vigorously challenge the Government’s assertion that their alleged conduct endangered any alleged victim of the charges at issue in this case. But it is especially so because the indictment utterly fails to specify both the particularconduct upon which its broadly framed charges are based and the particular individuals against whom the alleged offenses were committed, and because the statute of limitations sharply circumscribes the extent to which the indictment’s few particulars support chargeable criminal offenses in the first place.

The district judge also filed his own response to the petition, which argues:

I am absolutely convinced my pretrial ruling, based on the issues and complexity of the case, was correct. . . . In light of the testimony of the eight witnesses who have testified I have no doubt that if any of the witnesses is allowed to sit in the courtroom to listen before testifying, it will significantly impact the ability of any of all of the defendants to cross examine witnesses to point out lack of memory, bias, confusion, and any other matter inherent to the notion that cross examination and confrontation are the crucible in which the truth must be tested.

I filed a reply contending that:

knowing endangerment charges have “victims” within the protections of the CVRA. Many federal criminal offenses are defined in terms of “endangerment” or “risk” – including the most important environmental crimes, attempted murder, drive-by shootings, assault, stalking, child endangerment, mailing threatening communications, and a whole host of other crimes where the essence of the offense is placing a person at risk physically, psychologically, or economically. These crimes are not by any stretch of the imagination “victimless” crimes – particularly given Congress’ “intentionally broad definition of ‘victim’ [in the CVRA]."

The Government has also filed a reply along similar lines.

The Ninth Circuit is working under the 72-hour decision requirement of the CVRA. Thus, it has to rule by tomorrow (Friday) evening. Its decision could be quite important in setting the boundary of who qualifies as a protected "crime victim" under the Crime Victims' Right Act.

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Al-Marri Indicted: The New Yorker is reporting that that Ali Saleh Kahlah al-Marri, the alleged Al Qaeda “sleeper agent," has been indicted in federal court. As I blogged back in December, when the Supreme Court granted cert in al-Marri's case, bringing criminal charges made sense from a lot of different perspectives:
They should charge Al Marri in federal court and try to get a conviction with a long sentence to avoid [the constitutional issues involved in his detention] for as long as possible. Such a choice would reinforce to the Justices that there's a new Executive Sheriff in town; it would look good to the world; it would make civil libertarians happy; it would keep Al Marri off the streets; and it would avoid litigation a battleground that the new administration didn't choose and presumably would rather have avoided in the first place. Perhaps these issues will come up again down the road, but maybe they won't: No need to fight a battle like that now.
  Now the interesting question is whether the Supreme Court will end up dismissing the case or rather will vacate the lower court decision and remand; the former would leave the Fourth Circuit decision on the books and the latter would not. (h/t: NabokovProdigy)
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Rocky Mountain News will close:

Tomorrow's edition of the Rocky Mountain News will be the last. Founded in 1859, the Rocky is the oldest business in the Denver, and its demise comes a few weeks short of its 150th birthday. The paper has been part of my family since before I was born. My father was an editor for the paper in the 1950s; I've been a biweekly media columnist there since 2001. The Rocky's coverage of today's announcement is here. Note the little icon on your browser's tab.

In an iVoices.org podcast taped this afternoon, Jon Caldara and I discuss what a terrible loss this will be for Colorado. A few weeks ago on Jon's TV show Independent Thinking (channel 12 KBDI, 8:30 p.m. on Fridays), Jon interviewed Rocky publisher John Temple. Temple accurately predicted that the Rocky would not survive until the end of the month. You can watch the interview here.

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Applying the Fourth Amendment to the Internet: A General Approach: For several years, I have been pondering the very difficult question of how the Fourth Amendment should apply to the Internet. In particular, I've been trying to come up with a set of general principles that should frame how to translate the Fourth Amendment to the Internet. I have just posted a draft article on SSRN that attempts to answer these questions: Applying the Fourth Amendment to the Internet: A General Approach.

  Here's the abstract:
This article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.
  Comments are very welcome, either in the comment thread or via e-mail. I haven't sent this out to law reviews yet, and so any final publication is likely a year away, and there are still aspects of this general framework that I'm not entirely sure of myself. (There are also some claims about the technology that I believe are accurate, but may not be; technical corrections are as welcome as legal points.)

  Also, for readers who are interested in the broader perspective, this article is the network sequel to an earlier work of mine on the stand-alone computer environment, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005).
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Reminder of Obama's Campaign Promise: A Net Spending Cut:

Obama, in the third debate, on the video below within the first minute: "what I've done throughout this campaign is to propose a net spending cut.... What I want to emphasize ... is that I have been a strong proponent of pay-as-you-go. Every dollar that I've proposed, I've proposed an additional cut so that it matches."

Also, I wonder how Obama's high-income supporters in high-tax, high-cost areas like NYC, California, and DC are feeling right now? According to an article I read today, the top 7% of taxpaying families make over 250K a year, while the top 1% make over 380K. So the vast majority of those affected by Obama's tax plans are in the 250-380K range.

If you live in DC, on your marginal dollar of you'll be paying 39.6% in federal taxes, 10% in DC income taxes (with no deduction thanks to the AMT), ... oh, and that 800K mortgage you took out in 2004, on which you pay 50K a year in interest? Instead of a 20K deduction, it will be 14K. And that's not counting the inevitable push to add 6% or so in social security taxes (really, 12%, half payed by the employer). Your other deductions with face similar limits. For a couple with adjusted gross income about 250K, I'm estimating a marginal tax rate without additional social security taxes of around 52%, 64%, including the employer share, if new social security taxes added.

Tax the rich?

My friends in this income bracket tend to have have high mortgages, work 60-80 hours a week, pay 40-50K or more a year for child care (a nanny is necessary when you often work into the late evening--and even day care for two kids in the DC area costs close to 40K a year), and have six figures worth of student loans, primarily from professional school, that they are still paying off. In other words, approximately 100K of their pretax income is taken up by their student loans and child care costs, which are the equivalent of "startup costs". Their mortgage costs may seem excessive, but you don't easily make six figures in low-housing cost cities like Des Moines, and living in outer suburbs is very difficult when you work 12 hour days.

If a hypothetical couple's initial income is a total of $300K, and they work an average of 70 hours each, and assuming two weeks vacation, they are in effect getting a grand total of $28.57 an hour for their labors, and a fair percent of that is going to pay interest on the mortgage. I'm sure they are glad to know that they are rich enough to be taxed at over 50% of their marginal dollar.

UPDATE: Of course, the situation described above only applies to some fraction of the relevant taxpayers, but in my experience, young professional couples in large urban areas were among the most enthusiastic Obama supporters. Yet they also find themselves lumped by his administration into the category of "the rich," when, because of scenarios like the one described above, they certainly don't think of themselves as such, and indeed, in practice are not, despite their high gross income.

For that matter, my friends and acquaintances in such situations who supported Obama tend to be somewhat fiscally conservative, but voted for Obama for other reasons. In part, I think his calming rhetoric on economic policy (see video above) persuaded them that he wasn't going to govern as a "tax and spend liberal," so they could vote on, e.g., the Iraq War, abortion, et.

Related Posts (on one page):

  1. More on the "Rich":
  2. Reminder of Obama's Campaign Promise: A Net Spending Cut:
540 Comments

Wednesday, February 25, 2009

Careful With Those Metaphors:

From an NRA letter to the Memphis Commercial Appeal criticizing their decision to publish the names of concealed-carry license holders:

The late Charlton Heston fittingly observed that the essence of Right-to-Carry is that in a world where wolves cannot distinguish between lions and lambs, the whole flock is safer.

There's much I agree with substantively in the letter — but I'd say the "lions and lambs" metaphor doesn't quite do the work its user would like it to do ....

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Pleasant Grove City v. Summum: The Supreme Court handed down Pleasant Grove City v. Summum today, a free speech case about the installation of a monument in a public park. I don't follow First Amendment caselaw very closely, but I thought Justice Alito's majority opinion was unusually good: Tight, well-reasoned, and persuasive. My only complaint was footnote 2, in which Alito reprints the lyrics to John Lennon's song Imagine. I don't think it was necessary, given the wide public familiarity with the song. Plus, it seems a bit too cute. But then I suppose I'm more skeptical than most to popular music references in judicial opinions.
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Truth No Defense in Libel Action?

So says the U.S. Court of Appeals for the First Circuit, in Noonan v. Staples, Inc., interpreting Massachusetts law. I'm inclined to agree with David Kravitz (Blue Mass Group) on this, and want to particularly stress this:

Second, the Court seems not to have considered any constitutional implications of its decision. That may well be because the parties did not raise any constitutional issues in their briefs; nonetheless, it's a strange approach for the Court to take. Imposing any kind of liability for disseminating true information strikes me as constitutionally problematic in any circumstances, and I'm surprised that the Court ignored the issue, instead kicking it down the road to the next case. It's all well and good to hew to the standard practice of not considering arguments not raised by the parties, but to willfully turn a blind eye to an obvious constitutional problem seems like, at best, a waste a judicial resources. The constitutional issue will have to be considered sooner or later -- most likely sooner.

In my view, libel liability -- even on statements on matters of private concern -- is premised on the notion that "there is no constitutional value in false statements of fact." If a factual assertion is true, it should generally be fully protected, whether a court labels it as being on a matter of "public concern" or "private concern," and whether the speaker was animated by "malice" in the sense of hostility or ill will or not. Perhaps the speech could still be restricted if it falls into some other First Amendment exception, but the libel exception can't apply unless the statement is false.

Note that conclusions like the First Circuit's are extremely rare in recent decades. The only recent case I can think of that reaches a similar result is the Rhode Island "whore" case.

For my criticisms of the "public concern"/"private concern" distinction, at least outside the narrow contexts of the government as employer and of false statements of fact, see PDF pp. 47-52 of this article. In particular, I think it's far from clear that statements said about a fired employee are indeed matters of purely "private concern." Presumably if a union was trying to persuade members that the employer was wrong to fire an employee, true statements about the circumstances of the firing would be seen as fully protected speech. I would think the same would be true when an employer is making true statements in trying to persuade employees that it was right to fire someone, and trying to warn the employees against engaging in similarly dishonest behavior. But in any case, for reasons I argue in this article, I think courts ought not be drawing this line, at least where true statements are concerned.

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Limits on Publication of Gun Carry License Records:

A Tennessee legislator has proposed a statute that would outlaw the publication of gun carry permit records:

(x) Any information or other records regarding an applicant or permit holder may be released to a law enforcement agency for the purpose of conducting an investigation or prosecution, or for determining the validity of a permit, but shall not be publicly disclosed except as evidence in a criminal proceeding.

(y)(1) Except as provided for in subsection (x), it is an offense for a person, other than the applicant or permit holder, to knowingly publish in any form any information or records described in subsection (w) or information concerning the validity of any permit.

(2) A violation of this subsection (y) is a Class A misdemeanor punishable by fine only.

Nothing in the First Amendment stops states from keeping these sorts of records private. That, for instance, is the norm with regard to income tax records, to psychiatric and medical records kept by government-run hospitals, and a good deal of other data. And the government may criminalize government officials' leaking of the records, as the federal government has done for income tax records.

But once the data is placed in the public record and then copied by private parties -- which is what happened in Tennessee, prompting this proposal -- the First Amendment protects people's right to redistribute it. Florida Star v. B.J.F., a case involving the inadvertent release of a rape victim's name, so holds; and if this is so as to data that was inadvertently released by the government, it would surely apply to data that was deliberately released, even pursuant to a policy that was later changed. So the law could bar the release of new license records, but it can't bar the continuing distribution of old license records by those who have already copied them.

Thanks to and Michael Silence for the pointer.

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Honk If You Love Incitement Law:

From Goedert v. City of Ferndale, 2008 WL 928315 (E.D. Mich.), a case decided last year, but just posted on Westlaw — a fun fact pattern, and one that rarely leads to First Amendment litigation. I offer the opinion as an interesting bit of First Amendment analysis for First Amendment buffs; I leave it to you to figure out whether and to what extent you think this is right.

Plaintiffs challenge the City of Ferndale's suppression of automobile horns as a form of expression. The City has enforced an ordinance to prohibit the display of signs asking motorists to "honk" their horns to express their support for the demonstrators, and prohibiting motorists from honking their horns for that purpose. Plaintiffs allege that the City's prohibition violates the First Amendment's guarantee of freedom of speech.

In support for peace in Iraq, Plaintiffs Nancy Goedert, Victor Kittila, and Jim Grimm have participated in a Vigil on the corner of Woodward Avenue and Nine Mile Road in the City of Ferndale on Monday evenings. The Vigil has been conducted at that location for nearly five years. At one point, Vigil participants began to display signs stating "Honk for Peace" and later "Honk if You Want Bush Out." Over the years, hundreds of motorists have communicated their agreement with the demonstrators by honking their horns as they passed by the Vigil. Plaintiffs characterize the honks in support of the Vigil as citizens electing to join in a conversation among the citizens on perhaps the most pressing public issue of the day.

For the first three and a half years of the Vigil, there were no traffic problems or accidents associated with the Vigil. Ferndale changed its approach towards the Vigil in June of 2006, when Police Captain Timothy Collins witnessed the same intersection crowded with health care reform demonstrators. Demonstrators were on every corner of the intersection, the sidewalks, and alongside the median. A concerned Captain Collins felt that the demonstrators were unruly and were causing a safety hazard by leaning into traffic with their signs, and he felt that the honking of vehicle horns was a distraction that could lead to safety problems. The next morning, Captain Collins discovered a Michigan Statute, M.C.L. 257.706(a), which provides that "the driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use the horn when upon a highway." This "Honk Statute," like the rest of Michigan's Motor Vehicle Code, has been incorporated into Ferndale's ordinances....

Captain Collins then contacted the City Attorney's Office to ascertain whether both statutes could be enforced against the demonstrators. The City Attorney's Office approved the enforcement of the statutes against those at the Vigil, and the decision to apply them to ban the use of the word "honk" on any signs at the Vigil. After receiving a warning from the Ferndale police department, Plaintiff Kittila revised his sign to read "Ferndale Cops Say: Don't HONK if you want BUSH OUT." Plaintiff Nancy Goedert was holding a similar sign that read "POLICE SAY DON'T HONK for PEACE." On July 3, 2006 Plaintiff Kittila was arrested for holding his sign, while two weeks later, on July 17, 2007 Nancy Goebert was ticketed by the City for violation of the "Honk Statute ." On October 9, 2006, Officer Carroll stopped and ticketed a motorist who honked in support of the Vigil, Plaintiff Brian Price....

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Supreme Court to Hear Potentially Important Property Rights Case:

On Monday, the Supreme Court granted writ of certiorari in Alvarez v. Smith, a potentially important case that underscores the dangerously weak state of protection for constitutional property rights, which I described in this recent article.

In Alvarez, a Seventh Circuit Court of Appeals panel that included Judge Richard Posner invalidated a section of the Illinois Drug Asset Forfeiture Procedure Act that allows the police to seize property that they have probable cause to believe was involved in a drug-related crime and hold onto it for up to 187 days without filing any kind of action for asset forfeiture in the courts. This rule applies even to property owned by persons who are entirely innocent of any wrongdoing, and who simply found their possessions caught up in a drug investigation through no fault of their own (e.g. - if someone else used their car to transport illegal drugs without their knowledge). The authorities also don't have to prove that keeping the property is necessary in order to prevent the loss of valuable evidence.

In other words, DAFPA authorizes the government to take away the valuable property of completely innocent people for up to six months at a time, without giving the owner any opportunity to contest the seizure whatsoever. The 187 day time limit applies to any personal property worth less than $20,000, which of course includes most cars. And note that even after an asset forfeiture action is filed, many more months might pass before the court actually hears the case. In this case, three of the six plaintiffs' cars were held by the police for many months without any judicial hearing (in two cases for over a year), even though none of the three were ever charged with any crime. The Seventh Circuit ruled that such practices sanctioned by DAFPA violate the property owners' due process rights.

Under the Due Process Clause of the Fourteenth Amendment, this should be an easy case. The Clause requires that states must not "deprive any person of life, liberty, or property, without due process of law." One can certainly argue about how much process is "due" in any given situation, and many lawyers make their living doing just that. But surely it is a violation of the Clause for the state to deprive an innocent citizen of valuable property for many months without any judicial process whatsoever. That is especially true if the deprivation imposes a substantial burden on the property owner, as is often the case when the property seized is a car. Perhaps little or no process should be required for a very small deprivation of property; but surely more is "due" when the owner suffers serious harm as a result of the government's seizure of his possessions. As the Seventh Circuit opinion puts it:

[T]he procedures set out in DAFPA show insufficient concern for the due process right of the plaintiffs....

The private interest involved, particularly in the seizure of an automobile, is great. Our society is, for good or not, highly dependent on the automobile. The hardship posed by the loss of one’s means of transportation, even in a city like Chicago, with a well-developed mass transportation system, is hard to calculate. It can result in missed doctor’s appointments, missed school, and perhaps most significant of all, loss of employment. This is bad enough for an owner of an automobile, who is herself accused of a crime giving rise to the seizure. But consider the owner of an automobile which is seized because the driver—not the owner—is the one accused and whose actions cause the seizure. The innocent owner can be without his car for months or years without a means to contest the seizure or even to post a bond to obtain its release. It is hard to see any reason why an automobile, not needed as evidence, should not be released with a bond or an order forbidding its disposal....

On the other hand, we recognize the City’s interest in being certain that a vehicle is not destroyed before a court can issue a judgment in the forfeiture proceedings. We also understand that the preforfeiture hearing would impose some administrative burden on the City. However, due process always imposes some burden on a governing entity. We are not contemplating protracted proceedings, but rather notice to the owner of the property and a chance, perhaps rather informal, to show that the property should be released.

Note that the Seventh Circuit does not hold that such property seizures are categorically forbidden, or even that they can only be undertaken after an in-depth judicial hearing. The court ruled only that the property owner must be given "notice" of the seizure and a fairly minimal opportunity to present evidence showing that there is no need for the authorities to deprive her of her property. The fact that such minimal enforcement of constitutional property rights remains controversial is a strong indication of the second-class status of property rights under current jurisprudence.

Of course we don't yet know why the Supreme Court decided to hear this case. It could be that they want to affirm the Seventh Circuit decision. However, it is rare for the Court to grant cert. simply to endorse a lower court opinion (though it sometimes does so in order to resolve a circuit split, which may exist here). Alternatively, the Supremes could affirm the Seventh Circuit ruling, but apply a different analytical framework to justify that result. However, given the recent record of the Court in property rights and suspects' rights cases, and the general fact that the Supremes are more likely to hear a case to reverse the lower court than to affirm, I think it quite possible that they will end up stripping property owners of even the minimal due process protections required by the Seventh Circuit opinion. The "question presented" endorsed by the Court in its grant of certiorari clearly focuses on the issue of whether the owners are entitled to any kind of hearing at all, not just on the precise nature of that hearing.

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Lori Drew, Take 2?: The Government's Computer Fraud and Abuse Act Prosecution in United States v. Nosal: I have blogged a great deal about the Lori Drew case, in which the government is arguing that mere breach of Terms of Service violates the Computer Fraud and Abuse Act, 18 U.S.C. 1030, which prohibits accessing a computer "without authorization." It turns out that there's another case in which the government is testing a similarly broad theory of the CFAA, if not an even broader one. The case is United States v. Nosal, No. CR 08-0237 MHP, a case in the Northern District of California presently before Judge Marilyn Hall Patel.

  The facts of Nosal are pretty close to those of the most common fact pattern found in the civil caselaw of Section 1030, raised for the first time in a criminal case. The basic fact pattern is this: Employee at Company A decides that he is going to leave company A and join competitor company B, and he accesses the computers of Company A before he leaves. During that access, he looks around the files stored on Company A's servers looking for information he might be able to use at Company B. After the employee leaves, Company A then sues the employee and Company B on the theory that by using Company A's computers with a subjective intent to help Company B, the employee was accessing Company A's computer "without authorization." That is, by acting contrary to the interests of Company A, the employee was implicitly no longer authorized to access the Computers of A.

  Courts are sharply divided on this theory in the civil context. Almost all the caselaw is district court caselaw, so there isn't a circuit split yet. But there have been about 20 district court decisions on this, about 10 of which were handed down in the last year alone, and the cases are divided almost 50/50 (or should I say 10/10?) between decisions accepting the theory and decisions rejecting it. Also, there is a clear trend in the caselaw: The earlier decisions generally accepted this theory, and the more recent cases tend to reject it. The one federal appeals court opinion to address the issue agreed with this theory, International Airport Centers v. Citrin, in a rather breezy opinion by Judge Posner in 2006 (I blogged about it at my solo blog here). As far as I know, however, this theory has not been tried in such a case in the criminal context.

  At least until the Nosal case, that is. I have posted some of the filings in the Nosal case here:
1) Initial indictment (later superceded, but it gives you the basic idea of the government's theory of the case),
2) Motion to dismiss indictment for failure to state an offense
3) Government opposition to motion to dismiss, and
4) Reply.
  There's a lot going on in the Nosal case beyond the broad theory of the CFAA, I should emphasize. The matter has also been charged as mail fraud and a theft of trade secrets, for example, and the government claims that there are facts to prove unauthorized access beyond the Citrin theory that an employee who uses an employer's computer with a bad motive is a criminal. Still, it appears that the government is indeed relying on that theory in several counts of the Nosal case, I believe for the first time in any criminal setting outside the Lori Drew case.

  In my view, the government's broad theory of the CFAA should be rejected in the Nosal case for the same reasons that the government's similar theory of the CFAA should be rejected in the Lori Drew case. Perhaps the conduct alleged in the Nosal indictment amounts to a theft of trade secrets, or mail fraud, or interstate transportation of stolen property, or some other criminal offense. But accessing a computer in a way contrary to the interests of its owners does not make that access criminal. The early civil cases adopting a very broad construction of the statute were simply incorrect, in my view. The early courts didn't understand that they were interpreting a criminal statute; they didn't understand that the interpretation of the CFAA should follow the fraud in the factum/fraud in the inducement dictinction; and they didn't apply the rule of lenity or consider how such interpretations would raise obvious overbreadth problems in the criminal setting. To the extent the government is relying on the Citrin agency theory of the CFAA, I hope the court will reject that effort and force the government to stick to the narrower reading of the CFAA that Congress intended.

   I raised a lot of the arguments against the government's theory in an article on the CFAA back in 2003, and I hope the court will address the theory and reject it squarely in the Nosal case. In the meantime, the Nosal case is very much worth watching: Judge Patel may hand down a ruling on this issue before Judge Wu decides the very similar issues in the Lori Drew case, meaning that Judge Patel may be the first judge to address these important issues.
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The Top 10 Ig Nobel Prizes of All Time:

Popular Mechanics has compiled its list of the Top 10 Ig Nobel Prizes of all time (HT: Instapundit). My personal favorite is Australian lawyer John Keough's award for obtaining an Australian government patent for reinventing the wheel (relabeled as a "circular transportation facilitation device" on his patent application).

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Tuesday, February 24, 2009

Ban on Single Beer Sales in Parts of Washington DC: The nanny state's latest, in The Washington CityPaper.
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Credit Default Swaps and All That:

In Michael Lewis's fascinating essay on "The End" of Wall Street, he mocks the alchemy of how Wall Street could take a bunch of junk mortgages and convert them into AAA rated paper and sell it over and over. But while he mocks, he doesn't really explain what was going on.

I just came across a really interesting article in Wired that explains how the alchemy of credit default swaps worked--and why it failed in the end. A really accessible introduction to an extremely complicated subject.

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North Carolina Senate Bill Would Extend Criminal Libel to Online Communications:

North Carolina law now bans "Communicating libelous matter to newspapers":

If any person shall state, deliver or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person or corporation, and thereby secure the publication of the same, he shall be guilty of a Class 2 misdemeanor.
A new proposal, Senate Bill 46, would extend this to electronic communications as well, though nonanonymous electronic communications would be punishable only if an apology is demanded but not promptly published:
§ 14‑47.1. Communicating libelous or slanderous material through an electronic medium.
(a) Definition. – The following definitions apply to this section:
(1) Communicate. – The term includes publishing, speaking, uttering, or conveying by words, acts, or in any other manner of a libel or slander.
(2) Electronic medium. – The Internet and any computerized or electronic information service. The term includes a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group.
(b) Offense. – It is unlawful for any person to communicate by transmission through an electronic medium any false, defamatory statement that is libelous or slanderous.
(c) Penalty. – A person convicted of an offense under this section is guilty of a Class 2 misdemeanor.
(d) Jurisdiction. – The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received or viewed in the State.

§ 99‑10. Libel and slander transmitted through an electronic medium.
(a) Definition. – The following definitions apply to this section:
(1) Communicate or communication. – The terms include the publication, speaking, utterance, or conveyance by words, acts, or any other manner of a libel or slander.
(2) Electronic medium. – The Internet and any computerized or electronic information service. The term includes a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group.
(b) Request for Apology and Correction Required Before Bringing Civil or Criminal Action. – Before any action, either civil or criminal, is brought for transmitting a communication of any libelous or slanderous material through any electronic medium, the plaintiff or prosecutor shall first give the person alleged to be responsible for communicating the libelous or slanderous material at least five days to correct the libelous or slanderous material. The plaintiff or prosecutor shall request that the person alleged to be responsible for communicating the libelous or slanderous material post an apology and correct the material as provided by subsection (c) of this section. A request may be made by mailing or delivering a written request to the person alleged to be responsible for communicating the libelous or slanderous material or by placing the request at one of the locations in the electronic medium known to the plaintiff or prosecutor where the libelous or slanderous material was placed.
(c) Apology and Correction of Libelous or Slanderous Material. – To correct the libelous or slanderous material, the person alleged to be responsible for communicating the libelous or slanderous material shall, within 10 days after receiving the request as provided by subsection (b) of this section, place an apology and correction in the same location in the electronic medium as the libelous or slanderous material was placed. The person alleged to be responsible for communicating the libelous or slanderous material shall maintain the apology and correction at that location for a period similar to the time that the libelous or slanderous material was at that location, to the extent that the person can control the location and period of that placement.
(d) Effect of Communication in Good Faith and Retraction. – If at trial it appears that the material was communicated in good faith, that the falsity of the material was due to an honest mistake of the facts, that the material was communicated without prior knowledge or approval of the person who administers the facilities for the electronic medium or, if with prior knowledge or approval, that there were reasonable grounds for believing that the communications were true, and that within 10 days after the request for an apology and correction a full and fair correction, apology, and retraction were added to the proper location in the electronic medium in a position and type as prominent as the alleged libelous or slanderous material, then:
(1) If the action is a civil action, the plaintiff shall recover only actual damages.
(2) If the action is a criminal proceeding on which a verdict of guilty is rendered, then notwithstanding G.S. 15A‑1340.23, the defendant shall be fined a penny and costs, and no more.
(e) Negligence in Permitting Defamatory Communications by Others Essential to Liability of Person Administering Electronic Medium. – The person who administers or provides facilities for the electronic medium involved in the alleged libel or slander shall not be held liable for the alleged libel or slander unless the person is guilty of negligence either in allowing the material to be placed in the electronic medium or in allowing the material to remain in the electronic medium after the person became aware that the material was false and defamatory.
(f) This section shall not apply to anonymous communications.

I don't support criminal libel laws, but I should note that the Supreme Court has never held that they are unconstitutional, and the Court's precedents suggest that criminal punishment of libel — like criminal punishment of obscenity, incitement, and other unprotected categories of speech — is constitutional, so long as the government proves, beyond a reasonable doubt, that (1) the statement was a false factual assertion, and (2) that the defendant knew it was false, or was reckless about whether it was false, with recklessness being defined as subjectively knowing that there was a grave chance it was false. (This at least would be the rule for statements on matters of public concern.)

The Court's most recent decision about this, Garrison v. Louisiana (1964), basically required this sort of proof, but did not go further and suggest that all criminal libel laws are per se impermissible. Criminal libel prosecutions these days are very rare, but not unheard of.

Is the proposed law consistent with the First Amendment rule I set out above, and in particular with the knowledge/recklessness of falsehood prong? On the one hand, "libel" could well be read to incorporate the constitutional definition of the term. On the other, § 99‑10(d) expressly contemplates punishment even for good-faith mistakes — facially nominal punishment, but one that presumably would go on one's criminal record as a misdemeanor. I suspect that courts would try to save as much of the statute as possible by throwing out the provisions that authorize punishment for good faith mistakes but reading the rest as limited to the knowingly/recklessly false statements.

The negligence-based intermediary liability in § 99‑10(e) would not be permissible, however, because it would likely be preempted by 47 U.S.C. § 230. (Also, in criminal cases involving speech on matters of public concern, such liability would be unconstitutional when based only on negligence.)

This News & Observer blog asserts that the sponsor said "that he intended the bill to focus on civil cases and not criminal law. He said the inclusion of criminal penalties was 'an oversight.'" That's an odd oversight, given the text quoted above.

Thanks to Eric David for the pointer.

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Patterico on the Hot News Doctrine

and The Associated Press.

I agree that the hot news misappropriation tort (described here, with a link to the opinion) should be interred, among other things on First Amendment grounds. To the extent the "hot news"-infringing publication also constitutes copyright infringement, copyright law is quite adequate. To the extent that the publication is not copyright infringement, then it must be either copying ideas and facts (rather than copyright-protected expression) or must be fair use -- and both of those should be seen as constitutionally protected, because they're outside the copyright exception to First Amendment protection.

Nor is this just a matter of First Amendment formalism (much as I like First Amendment formalism): No-one should have a monopoly, even a brief one, in the facts that they have uncovered, precisely because such a monopoly limits others' ability to discuss them, evaluate them, recheck them, controvert them, and broadcast their importance. All Headline News (the entity involved in the case to which Patterico refers) might not be a particularly appealing defendant, and might in fact be guilty of copyright infringement. But the logic of the hot news misappropriation tort is hardly limited to them.

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District Court Overturns Magistrate Judge in Fifth Amendment Encryption Case: Back in late 2007, I blogged a lot about a magistrate judge ruling in In re Boucher, a case involving a how the Fifth Amendment right against self-incrimination applies to access to encryption keys. I argued back then that the magistrate's decision was wrong on narrow grounds: Although the Fifth Amendment normally blocked the subpoena of encryption keys, in this particular case the facts divulged by compliance with the subpoena were already known to the government and therefore not privileged under the "foregone conclusion" doctrine.

  Although the 2007 ruling garnered a great deal of press attention (including articles in the Washington Post and the New York Times), it was only the ruling of a magistrate judge rather than an Article III District Judge. The government sought review of the case with an Article III District Judge (more or less an "appeal" from the ruling of the magistrate judge), and we have been waiting for a ruling from the District Court for about a year.

  A few days ago, District Judge William K. Sessions III finally handed down a ruling. I have posted the opinion here: In Re Grand Jury Subpoena to Sebastien Boucher. Judge Sessions's take was basically the same as mine in my 2007 post: He ruled that under the specific facts of this case, Boucher must decrypt the hard drive and produce to the government an unencrypted version of the drive. (Notably, the subpoena orders Boucher to produce to the government an unencrypted version of his hard drive, not to actually give the government his key.) There was no Fifth Amendment privilege because the government already knew the testimonial things that compliance with the subpoena would help show, making that a "foregone conclusion." From the opinion:
  Where the existence and location of the documents are known to the government, “no constitutional rights are touched,” because these matters are a “foregone conclusion.” Fisher, 425 U.S. at 411. The Magistrate Judge determined that the foregone conclusion rationale did not apply, because the government has not viewed most of the files on the Z drive, and therefore does not know whether most of the files on the Z drive contain incriminating material. Second Circuit precedent, however, does not require that the government be aware of the incriminatory contents of the files; it requires the government to demonstrate “with reasonable particularity that it knows of the existence and location of subpoenaed documents.”
  Boucher accessed the Z drive of his laptop at the ICE agent's request. The ICE agent viewed the contents of some of the Z drive's files, and ascertained that they may consist of images or videos of child pornography. The Government thus knows of the existence and location of the Z drive and its files. Again providing access to the unencrypted Z drive “adds little or nothing to the sum total of the Government's information” about the existence and location of files that may contain incriminating information. Fisher, 425 U.S. at 411.
  Boucher's act of producing an unencrypted version of the Z drive likewise is not necessary to authenticate it. He has already admitted to possession of the computer, and provided the Government with access to the Z drive. The Government has submitted that it can link Boucher with the files on his computer without making use of his production of an unencrypted version of the Z drive, and that it will not use his act of production as evidence of authentication.
  Because Boucher has no act of production privilege to refuse to provide the grand jury with an unencrypted version of the Z drive of his computer, his motion to quash the subpoena . . . is denied.
That seems correct to me, as explained in my original post and expanded on at length in this post. I suppose the next question will be whether Boucher will comply with the subpoena, or whether he will "forget" the key or just refuse to comply and face contempt charges instead. Stay tuned.
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Commentary on the NYU Protests: The comment thread on yesterday's post about the NYU protests raised some interesting points. I think my favorite was NaG's:
Before anyone gets smug about the fact that these dolts are leftists, I found it quite common in college that students who were searching for a self-image were quick to go whole-hog nutso for whatever ideology had an initial surface attraction. Some kids that liked the individual rights aspect of libertarianism quickly became raving anarchists. Those that liked Tucker Carlson's bow-tie quickly became conservative clones. The leftists tend to stick out more because protests are part of their history, but there are weak-minded wackadoos in all parts of the spectrum. And again, it's what happens when immature kids are looking for an identity and there are no real consequences to acting like a fool.
  I also enjoyed this complaint about the protests from a pro-protest poster over at NYULocal on what the protesters did wrong:
The University made a calculating and highly intelligent decision on the first night that completely undermined the entire effort. By publicly announcing that they were allowing Take Back NYU to occupy that space and giving bathroom access, they created a public image that they were helping their students express themselves, therefore creating more sympathy for the very authorities Take Back NYU was protesting. There is no real effective way I can think of at the moment to counteract such a calculated PR move as this other than to try and protest again at a place in which the University is not as likely to accommodate you.
Yeah, when you're trying to create the impression that you're fighting oppression, there's nothing worse than people being nice to you.
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My Review of Steven Teles's The Rise of the Conservative Legal Movement:

My review of Steven Teles's important book, The Rise of the Conservative Legal Movement, is now available on SSRN. Here's the abstract:

Steven Teles's The Rise of the Conservative Legal Movement is the best and most thorough attempt to document the spectacular growth of conservative efforts to influence the law since the 1970s. Both scholars and legal activists have much to learn from his careful account of this important episode in legal history.

Teles's most important finding is that effective institutionalization of legal change requires not only a demand for reform by voters or interest groups, but also a supply of trained advocates, public interest law firms, and judges willing and able to influence the law in the direction desired by an insurgent political movement. As Teles effectively demonstrates, public demand for legal change does not in itself generate the needed supply of institutional resources. Through his analysis of the growth of conservative and libertarian organizations such as the Federalist Society, the Institute for Justice, the Center for Individual Rights, and others, Teles chronicles the difficulties faced by the legal right in their attempts to create the cadre of lawyers and institutions they needed to challenge liberal dominance over the law. The successes and failures of this effort are instructive.

Teles's work has a few limitations. Perhaps the most important shortcoming is his neglect of social conservatives' efforts at law reform. Most of Teles's account focuses on libertarian organizations that sought to use judicial review to limit the power of government. Social conservatives, by contrast, sought to undo judicial constraints on government power for the purpose of using the state to advance social conservative ends, most notably, banning abortion and pornography. Fuller consideration of the social conservative experience is needed to test the generalizability of Teles's conclusions.

Finally, Teles's account contains important lessons for libertarians and conservatives who wish to strengthen judicial limits on government intervention in the economy. To succeed, pro-market public interest organizations must keep their distance from business interests. In addition, Teles shows that pro-market legal activists have not done enough to promote follow-up litigation to exploit and enforce major precedential victories. On this point, as on others, legal activists of the right can learn from their left-of-center counterparts.

We previously discussed Teles's book in this series of posts here at the VC.

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Who Are "Victims" of Environmental Crimes? Ninth Circuit Fight Brewing in the W.R. Grace Prosecution:

Yesterday the criminal trial of the W.R. Grace & Co. and various responsible corporate officers began in U.S. District Court in Missoula, Montana. The trial is one of the most-watched environmental prosecutions by the Justice Department in recent memory, as it involves allegations of release of asbestos into Libby, Montana over the last several decades. Law professors and law students at the University of Montana School of Law are running this very interesting blog tracking the trial.

An extremely important crime victims' rights issue has come up during the case, which will be resolved this week by the U.S. Court of Appeals for the Ninth Circuit: Are persons who have been endangered by an environmental crime sufficiently "harmed" to obtain rights under the Crime Victims' Rights Act?

According to the indictment, over more than three decades, defendant W.R. Grace & Company mined vermiculite ore containing asbestos and released asbestos into the air around Libby. The indictment alleges a conspiracy to knowingly endanger persons in Libby as well as several substantive endangerment counts under the Clean Air Act, 42 U.S.C. § 7413(c)(5)(A).

The Crime Victims' Rights Act extends its rights to all "victims" of federal offenses, which it defines as persons "directly and proximately harmed as the result of the commission of a federal offense." 18 U.S.C. § 3771(e). In a pre-trial ruling, however, the U.S.District Judge presiding over the trial concluded that the charges involved mere “risk of harm” rather than “harm” itself. The district court stated in a short written order that the charges involved exposing the witnesses

to an imminent risk of harm. The [Crime] Victims’ Rights Act, on the other hand, defines a crime victim as “a person directly and proximately harmed.” . . . One plausible resolution of the issue here is to say that the federal offenses alleged in the Superseding Indictment have “victims” who have been exposed to an imminent risk of harm, but who have not necessarily been harmed. This interpretation leads to the conclusion that because victims of the federal offenses alleged are not necessarily harmed, they are not necessarily victims under the Act, which are by definition person directly and proximately harmed.

I am representing two residents of Libby, Montana, pro bono on this matter — Mel and Lerah Parker. This morning I am filing in the Ninth Circuit a petition for a writ of mandamus for them arguing that the district court's ruling was erroneous. Here is a summary of my argument:

The district court’s conclusion threatens to strip crime victims of their rights in a whole host of federal criminal proceedings and should be reversed for three separate reasons.

First, the Superseding Indictment alleges that the Parkers have been placed in “imminent danger of death or serious bodily injury.” Being placed in grave danger is, ipso facto, a harm sufficient to trigger the protections of the CVRA. Any other conclusion would mean that there would be no “victims” of a whole host of federal offenses that involve threat of injury rather than actual physical injury, including not only the most serious environmental crimes but other federal offenses such as attempted murder, drive-by shooting, assault, child endangerment, and mailing of threatening communications. These offenses are not “victimless” crimes because they create fear and other emotional injuries. The Parkers have been harmed by the defendants’ crimes because of the obvious psychic harm stemming from being placed in the shadow of imminent death and serious bodily injury. Moreover, in this case the Parkers have suffered very tangible harm from being forced to undertake medical monitoring to detect any asbestosis that might develop. For reasons such as these, this Court has already held that a person who is knowingly exposed to a hazardous substance has been harmed. United States v. Elias, 269 F.3d 1003, 1021-22 (9th Cir. 2001).
Second, even if physical injury were a necessary precondition for the Parkers to claim their rights, they have suffered physical injury. Tragically, they both have asbestosis – a clear physical harm that the district court simply ignored in denying them “crime victim” status.

Finally, for several years it has been the “law of the case” that the Parkers (and other victim-witnesses like them) were protected by the CVRA. Shortly before the trial, the district court abruptly changed their status by concluding that they were not protected victims under the CVRA. The district court violated the “law of the case” doctrine in reversing course without any good reason for doing so.

The Justice Department has also filed its own petition for a writ of mandamus.

The CVRA requires a decision by the Court of Appeals within 72 hours. Presumably, then, the Ninth Circuit will hand down a decision on this issue by Friday. Its ruling will presumably be quite important in establishing who can claim the protections of the Crime Victims Rights Act. More information can be found here.

Related Posts (on one page):

  1. Crime Victims Win in the Ninth Circuit:
  2. Briefs All Filed on "Crime Victim" Issue in W.R. Grace Environmental Case:
  3. Who Are "Victims" of Environmental Crimes? Ninth Circuit Fight Brewing in the W.R. Grace Prosecution:
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Slaughterhouse Revisited:

Tony Mauro reports that liberal groups and law professors, led by the Constitutional Accountability Center, are supporting gun groups in their effort to have the Second Amendment incorporated against the states.

But these academics and the liberal Constitutional Accountability Center, which filed a brief in the case, have not suddenly taken up the Second Amendment cause, Charlton Heston-style. Rather, they joined the case to urge the court to adopt a new way of making the rights protected by the federal Constitution apply to the states (a process known as "incorporation").

That new pathway runs through the long-dormant "privileges or immunities" clause of the 14th Amendment. In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language — "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States" — is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale. It would replace the narrower and more piecemeal way in which the Bill of Rights was usually made binding on the states, right by right, during the 20th century — namely, the 14th Amendment's due process clause.

Reinvigorating the Privileges or Immunities Clause of the 14th Amendment would require overturning, or severely limiting, the Supreme Court's 1873 Slaughterhouse decision. Until recently, the only folks who expressed much interest in challenging Slaughterhouse were folks on the right, such as the libertarian Institute for Justice (see Randy's recent post about one of their recent cases), even though the weight of academic opinion supports the notion that Slaughterhouse was wrongly decided. Liberals see the effort as a way to reinforce the protection of free speech and sexual liberty. Libertarians and some conservatives, on the other hand, believe recognizing the original meaning of the Privileges or Immunities Clause would strengthen constitutional protection of property rights and economic liberties. Perhaps they're both right — and perhaps we'll find out.

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Are an Attorney's Clients Relevant?

Some conservatives have attacked President Obama's pick for Deputy Attorney General, David Ogden, because he has represented some "controversial" clients, including Playboy and the ACLU. Former Reagan and Bush (41) Administration attorneys David Rivkin and Lee Casey think this is unfair. In the Legal Times they argue:

The premise of this opposition is a familiar one—that lawyers must be presumed to agree with, or be sympathetic to, the clients they represent or, at a minimum, that they should be held accountable for the arguments they advance on a client’s behalf. In fact, of course, lawyers represent clients for many and varied reasons—for money or fame, out of a sense of duty, an interest in a particular subject matter, or for professional growth and development. Sometimes lawyers are motivated by all of the above, and more.

It is simply inaccurate to attribute to a lawyer his or her client’s beliefs. That is just not the way our legal system works—at least not all the time.

Sometimes, of course, lawyers do personally agree with the client’s substantive views and the legal positions they advance. There is no doubt that lawyers are often drawn to a particular area of practice, or undertake to represent particular clients—especially on a pro bono basis—because they do believe in the client’s cause. It is possible, however, to believe in a client’s cause—a broad application of free speech rights, for example—and not to approve of the client’s personal behavior or business model.

And, just as a lawyer’s character cannot be judged based on a client list, neither can a lawyer’s policy preferences easily be divined by reading his or her briefs. Lawyers must represent their clients zealously, and this means they often must deploy legal arguments with which they personally disagree.

They also remind Ogden's conservative critics that the Right rightfully objected when the Left went after some of George W. Bush's nominees for having represented politically unpopular industries or conservative groups. As they note, if highly qualified lawyers are punished for representing unpopular or controversial clients, we all lose. A longer exposition of their views can be found in this 2002 article from Policy Review.

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Yet One More Bush EPA Air Rule Goes Down:

This morning, in a lengthy per curiam opinion, the U.S. Court of Appeals for the D.C. Circuit granted petitions of review filed by states and environmental groups against primary and secondary National Ambient Air Quality Standards (NAAQS) for fine particulate matter and remanded the standards to the Environmental Protection Agency (EPA). At the same time, the court denied both industry and environmental petitions challenging the NAAQS for coarse particulates. The decision in American Farm Bureau Federation v. EPA is here.

As I have noted before, it is remarkable how poorly the Bush Administration's air pollution regulations have fared in federal court, even before the relatively conservative D.C. Circuit. In related news, yesterday the Supreme Court denied the petition for certiorari seeking review of the D.C. Circuit's decision invalidating the Bush administration's regulations governing mercury emissions.

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Kirsten Gillibrand and the gun issue:

In today's National Review Online, I suggest that it would be politically self-defeating for Sen. Gillibrand to reverse her position on Second Amendment issues.

As my article explains, in 1996 incumbent Republican Representative Daniel Frisa faced a challenge from Carolyn McCarthy, and so he did an about-face on gun issues, while claiming that he had been consistent all along. Thus, "Voters could see that McCarthy had a sincere and consistent position on gun control, while Frisa changed his position based on transparent political calculation. Frisa’s flip-flop undoubtedly made voters wonder which of his other supposed convictions he would abandon when it became politically useful. McCarthy crushed him in the general election by 58 to 41 percent."

Gillibrand's strong support for the Second Amendment is likely an advantage in the general election, and a flip-flop would doom her in the primary.

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Dred Scott and "Substantive Due Process":

In The Tempting of America, Robert Bork claims that Justice Taney's opinion in Dred Scott marked the "first appearance of in American constitutional law of the concept of 'substantive due process.'" In fact, as Mark Graber, Jim Ely, and others have pointed out, by the time Dred Scott came around, there was a substantial body of state court decisions using a substnative intepretation of due process of law, or the analogous "law of the land," to protect property rights. In fact, the Supreme Court itself had invalidated several federal laws that redistributed property rights as violations of the 5th Amendment's Due Process Clause.

But beyond the general accuracy of Bork's claim, he makes a very explicit attempt to link Roe v. Wade to Lochner, and Lochner and Roe in turn to Dred Scott, the better to discredit Roe and other modern due process decisions by associating them with Taney's infamous decision.

However, it turns out that not only did Justice Taney NOT invent "substantive due process" in Dred Scott, but that the idea that the concept of "due process of law" provided Americans with substantive protections was a quite common in abolitionist circles, and often arose in their public pronouncements.

For example, the 1843 National Liberty Convention of the abolitionist Liberty party passed a resolution stating that the fundamental truths of the Declaration of Independence, that all men are created equal and are endowed by their Creator with certain inalienable rights, was made part of the fundamental law of the national government by the Due Process Claus of the 5th Amendment. [UPDATE: I think I'm the first one to note the '43 Convention, which I found in a digitized newspaper database.]

The 1848 platform of the Free Soil Party, a precursor to the Republican Party which absorbed many Liberty part members, suggested that any federal recognition of the slavery violated the Due Process Clause:

4. Resolved, That our fathers ordained the Constitution of the United States in order, among other great national objects, to establish justice, promote the general welfare, secure the blessings of liberty; but expressly denied to the federal government, which they created, a constitutional power to deprive any person of life, liberty, or property, without due legal process. 5. Resolved, That in the judgment of this convention Congress has no more power to make a slave than to make a king; no more power to institute or establish slavery than to institute or establish a monarchy. No such power can be found among those specifically conferred by the Constitution, or derived by just implication from them.

The 1856 and 1860 Republican platforms explicitly argued that permitting slavery in the territories violated the Due Process Clause, because it took the liberty of the slaves without due process of law.

Both Justice McLean's dissenting opinion in Dred Scott and Abraham Lincoln in his public speeches argued that the problem with Taney's opinion was not its protection of property rights through the Due Process Clause, but that slaves could not be considered mere property, like hogs or horses.

So, say what you will about "substantive due process" (an anachronistic term not used until the 1940s), the Borkean notion, unfortunately repeated by many conservative opponents of SDP, that the concept has some special link to defending slavery is counterhistorical. Indeed, the reliance of abolitionists on "due process of law" helps explain why free labor advocates of the late 19th century were not the least bit embarassed to rely on a doctrine that Taney had used in Dred Scott.

UPDATE: In response to a query, I've posted the Google Books link to Bork's argument. If Bork was aware that "substantive due process" wasn't simply made up by Roger Taney, its not apparent in the book.

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Monday, February 23, 2009

Congratulations, Cuz:

I'm been playing around with GENI, creating an extensive family tree, and today discovered that the new FCC chairman (and friend of Obama from Harvard Law), Julius Genachowski, is my fourth cousin. We have common ancestry in the Tetenbaum family of Szczuczyn, Poland. I believe that all Tetenbaum descendants in the U.S. descend from the same relatively small family from Szczuczyn.

For a vivid description of early 20th century Jewish life in Szczuczyn, my grandmother's memoir can be found here.

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"The Painfully Ridiculous End to the NYU Revolution": Gawker has the scoop. My favorite part about the video is that when someone does something the protesters don't like, the protesters insist that the scene must pause for the "democratic process" and for "consensus." It turns out that this just means that the protesters want to meet in private to debate amongst themselves how to respond. Ah, good times. More from Michael Dorf here.
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Hazlett & Bittlingmayer Respond to Silver:

I earlier posted Tom Hazlett and George Bittlingmayer's short article on the market response to President Obama's stimulus plan. Several commenters pointed to a critique by Nate Silver of Hazlett & Bittlingmayer. Tom has asked me to post a response to Silver's post, which I am happy to do for those who are interested It is below as hidden text:

(show)

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Secretary of State Clinton and the Second Amendment:

That's the topic of my new article for America's 1st Freedom, a NRA member magazine. Of course the Second Amendment is not the most important issue by which Secretary of State Clinton will be judged, but as Secretary of State, Mrs. Clinton will, like her predecessors, have the ability to affect the domestic exercise of constitutional rights by American citizens. A 12 minute iVoices.org podcast on the topic is also available.

Part of a series which includes Attorney General Holder (article, podcast), and Chief of Staff Emmanuel (article), with more installments in the works.

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Justice Scalia Takes on Honest Services Fraud: Critics of the overcriminalization of federal law will cheer on Justice Scalia's terrific dissent from denial of certiorari in Sorich v. United States today. Scalia explains why the "honest services fraud" caselaw is such a mess, and urges the Court to take the issue and construe the statute more narrowly. A taste:
  [T]his Court has long recognized the“basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City of Columbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But "the notion of a common-law crime is utterly anathema today," Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting).
  . . .
  It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.” Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the ex-pansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.
  Go, Nino, go. I hope this signals renewed interest in this statute -- and more generally, in the need to construe criminal statutes narrowly.
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Defining "Creationism" Down: I have received 3 polite emails to the effect that there is a reasonable "creationism" that a Republican candidate like Bobby Jindal could hold. Here are some excerpts:
Correct me if I'm wrong, but are Jindal's thoughts on creationism really so dangerous and scary? As a devout Catholic, who presumably adheres to Church teachings on creation, he probably believes in Darwinian evolution (as the Church often is at pains to point out) but regards the process as one planned and put into motion by the divine author. 'Creationism' might be the worst label ever, as it lumps together the earth-is-2000-years-old crowd with those, like Jindal, who acknowledge the scientific evidence of evolution but feel that it's merely a component of something larger (eg God). Jindal would be wise to point out, early and vigorously, where his differences lie.
And this:
Sadly your point implies that no religious republican will be acceptable as the definition of creationist seems to be expanding to include viewpoints that accept the idea that evolution was guided by God’s hand. And that means no republican as I don’t see a secularist surviving the primary. Years ago, the Catholic Church made its peace with evolution as the process by which God created the world. Now that is considered part of creationist as part of the intelligent design movement. Similarly with Orthodoxy which has said the how isn’t a method of faith just the why and who. The belief that creation of the world was purposeful and God directed is a part of most Christian faiths, even the liberal ones, as well as most non-Christian ones.

Of course, a religious Christian would probably oppose a lot of the left’s agenda so it all works out.
Now let me be VERY clear about this:

  1. If this is all that is meant by "creationism" there would be no electoral issue; but
  2. There is absolutely no reason why THIS position would be taught in schools at all, much less in science classs; so
  3. To the extent these 3 Republican governors ARE ON THE PUBLIC RECORD favoring teaching creationism or "intelligent design" in public schools as a "perspective," they are endorsing a position that goes way beyond what these writers are describing; nevertheless
  4. I believe in giving these politicians the benefit of the doubt on these issues--I am certainly not gunning for them, I am sincerely disappointed to hear that this may be their views, and I hope this is a mischaracterization of their views; however
  5. Obfuscation will not get this done--they will not receive the benefit of the doubt as presidential candidates; and
  6. Wishing will not make make the coalition that is the Republican Party hold together, much less get the party past 50% of the electorate; but
  7. I am not expressing my own preferences--if such a candidate happens to be nominated who is good on enough of the issues I care about and has executive experience and skills *I* may well be hoping he or she wins; but I am nevertheless confident that
  8. A Republican candidate who is an avowed adherent to creationism will not be elected President of the United States; of course
  9. I could be wrong about this; but
  10. PLEASE do NOT put this to the test by running this electoral experiment; so
  11. If your favorite candidate is on record favoring creationism as science to be taught in government schools, he or she has sunk already himself on the national political scene whether you like it or not. Better find another candidate.

Related Posts (on one page):

  1. Defining "Creationism" Down:
  2. This is Not Good:

The Bankruptcy Mortgage Modification Spillover Effect:

In my Wall Street Journal column criticizing the bankruptcy mortgage modification proposal I argued that one of the major unintended consequences of the proposal would be a predictable spillover effect of dragging other consumer credit into the vortex of the mortgage mess, exacerbating losses in the credit card industry.

Sure enough, just a few days later, the Wall Street Journal reported (may be subscriber-only, if so this link has some excerpts from the article) that the credit card industry is expecting massive unexpected losses if the proposal goes through:

Issuers of plastic will be looking at even larger losses on credit-card loans if a proposed change in bankruptcy legislation, backed by the Obama administration, goes through.

Bigger losses would raise borrowing costs for these companies, translating into higher rates for consumers, making it tougher for Americans to tap what has been one of the easiest places to get credit.

"Anytime there's a change in bankruptcy law that accelerates bankruptcy filings, it severely affects credit-card losses," said Scott Valentin, an analyst at FBR Capital Markets. "And right now card companies aren't in a healthy financial condition to absorb these losses."

The White House is calling for a controversial provision to allow bankruptcy judges to rework the terms of mortgages in court. The change in legislation would allow Chapter 13 bankruptcy judges to lower interest rates, extend the loan maturity and change the principal amount owed on the mortgage to reflect the home's market value.

As a result, "more homeowners struggling with mortgages will file for bankruptcy," said Neil Crane, an attorney at the Law Offices of Neil Crane, a consumer bankruptcy specialist with offices in Connecticut.

A rise in bankruptcies will increase charge-offs, or, credit-card loans deemed uncollectible for plastic issuers such as Citigroup Inc. (C), JP Morgan Chase & Co. (JPM), American Express Co. (AXP), Bank of America (BAC), Capital One Financial (COF) and Discover Financial Services (DFS). This is because accounting rules dictate that these companies write-off credit-card payments owed to them within 60 days of being notified of a borrower's bankruptcy filing.

Bankruptcies historically have accounted for roughly 30%-50% of credit-card charge-offs, according to a JP Morgan report last month. Under the proposed legislation, particularly vulnerable to bankruptcy filings are homeowners with underwater loans, that is, where borrowers' mortgage debt exceeds the value of their homes. This is because the new rule would allow a judge to decrease the loan balance to reflect a home's current market value.

39 Comments

Careful With Those Corrections:

A commenter faults my quoting Blackstone's "The falsehood of it may aggravate it’s guilt, and enhance it’s punishment":

"it’s" = "its" in standard English, and also in the original, according to Google Books.

Many people do take the view that modern standard English is Good Old English, and that usages that are seen as erroneous today are some modern inventions. (I don't know if that's the commenter's general view, but I have heard many people express such arguments.) But while "it's" as a possessive of "it" is indeed not standard in edited English prose today -- perhaps it will be one day, but to my knowledge it's not so right now -- it appears to have been standard in the past. The Blackstone quote is one example, but the OED offers several others, including from Shakespeare; the latest such source the OED gives is 1802, which suggests that the usage was pretty standard at least until then.

But what about the commenter's assertion that the original actually says "its"? The trouble is that the source the commenter cites is actually not the original. I looked up the original 1769 Oxford edition in Eighteenth Century Collections Online (the Commentaries were published starting with 1765, but volume 4 has a publication date of 1769), and it says "it's." So don't assume that what would be generally seen as an error today would also have been seen as an error in the 1760s, and don't let this assumption fool you into treating early 1900s editions as authoritative about the "original" spelling.

34 Comments

Institute for Justice Videos:

The Institute for Justice -- one of the nation's top libertarian law firms -- has some short videos out on their favorite constitutional law cases. IJ has long been first-rate not just at litigating their cases, but at using them to promote libertarian legal ideas to the public, so these should be much worth watching (and forwarding). Here are IJ's quick summaries, with links:

  1. The Little Pink House & Property Rights: ... Susette Kelo in her historic fight against eminent domain for private gain.

  2. Economic Liberty & the 14th Amendment: Should it take seven years and a team of lawyers to open as small business? That is the reality, so long as courts ignore the Privileges or Immunities Clause of the 14th Amendment.

  3. Footloose in Arizona -- A Funny Look at Petty Government Actions: Can you imagine a government threatening fines of $500,000 on a small business for allowing patrons to dance outdoors? Enjoy this fun animated take on the Saga of San Tan Flat.

  4. School Choice: Should Only the Government Get to Pick Your Kids’ School? Andrea Weck from Arizona is like millions of parents nationwide; she wants to get her children the best education possible, but finds some people think that only the government —- and not parents -— should select the schools children attend.

  5. Free Speech & Campaign Finance Restrictions: Does the First Amendment protect the right to free speech? Not always. Today, campaign finance laws are being used to stifle political speech and participation.

  6. Eminent Domain for Private Gain in New Jersey: Does the 5th Amendment protect private property rights? Lori Vendetti [talks] ... about eminent domain in her ocean-front town of Long Branch, N.J.

For more information on any of the cases related to these videos, visit http://www.ij.org/cases.

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Florida City Authorizes Use of City Funds to Sue for Libel of Government Officials:

From the Deltona (Florida) City Commission After Action Agenda (Feb. 16, 2009):

After discussion, the Commission voted 4 to 3 (Commissioner Denizac, Commissioner McFall-Conte, and Commissioner Zischkau voted against the motion) for the City to provide reimbursement and expenditures of legal fees to protect both proactively and reactively the City as a government including its employees and its Mayor and those members who wish to be represented in the this motion, Commissioner Treusch, Commissioner Deyette, Vice Mayor Carmolingo and Mayor Mulder where needed from material damages, slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels is needed and that a report of fees expended be made available to the public so they may see the extent of damage that has been caused.

Here's audio of the Mayor's presentation in favor of the resolution. The proposal was apparently triggered by online criticism of various city officials.

Libel lawsuits by government officials are of course constitutionally permitted, and may prevail if the statements are found to be false and defamatory factual assertions, and the speaker is found to have known the statements were false or to have known that the statements were likely false. There's no First Amendment rule that would bar government agencies from funding such lawsuits. And there's a plausible argument that the lawsuits serve city interests (and thus justify reimbursement) and not just private interests, since libels of city officials may indeed interfere with the effectiveness of city government, and since city officials may have been victimized by the libels -- if they are libels -- because of their government service.

At the same time, this strike me as a bad idea, especially since the city doesn't offer to fund the defense of such libel lawsuits, even though defense of the lawsuits -- especially a successful defense -- may also serve government interests: Speech that accurately criticizes city officials serves city interests, too, by alerting the public to possible malfeasance by government officials. And defending such speech against unfounded libel lawsuits would likewise city interests, by minimizing the deterrence of such speech. (I do not read Florida's limited anti-SLAPP statute as already providing such reimbursement to successful defendants.)

The government's entering the debate, using city funds, in favor of city officials and against citizens who criticize those officials, thus seems to me to be misguided. And one site that is critical of officials argues that it violates the city charter:

(a) Compensation. The Mayor and members of the City Commission shall receive annual compensation, payable bi-weekly, equivalent to average annual salary of the Mayor and Commissioners in the cities within Volusia County. Said compensation shall not include benefits, except medical benefits under the City's group health insurance plan, the premium costs of which shall be fully paid by the members of Commission who elect coverage. Said compensation shall be identified as a line item within the annual budget and shall be automatically adjusted every two years coincident with adoption of the annual budget.

(b) Expenses. The Commission may provide for reimbursement of actual expenses incurred by its members while performing their official duties.

26 Comments

Blackstone's Commentaries (1765-69) on Seditious Libel:

A commenter asks, apropos the Sedition Act post, what the common law of seditious libel was. Here's what Sir William Blackstone's immensely influential Commentaries on the Laws of England (published 1765-69) said, though note that there was controversy in early republican America as to (1) whether this was an accurate statement of historical English law, (2) whether in any event this law survived the shift to a republican form of government, and (3) whether the federal government (as opposed to state governments) could prosecute common law crimes without express statutory authorization:

[Libels], taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule.

The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law: and therefore the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace.

For the same reason it is immaterial with respect to the essence of a libel, whether the matter of it be true or false; since the provocation, and not the falsity, is the thing to be punished criminally: though, doubtless, the falsehood of it may aggravate it’s guilt, and enhance it’s punishment. In a civil action, we may remember, a libel must appear to be false, as well as scandalous; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the public peace: and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the sole consideration of the law. And therefore, in such prosecutions, the only facts to be considered are, first, the making or publishing of the book or writing; and secondly, whether the matter be criminal: and, if both these points are against the defendant, the offence against the public is complete.

The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in their discretion shall inflict; regarding the quantity of the offence, and the quality of the offender....

In this, and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.

To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.

Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for restraining the just freedom of the press, “that it was necessary to prevent the daily abuse of it,” will entirely lose it’s force, when it is shewn (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose, without incurring a suitable punishment: whereas it never can be used to any good one, when under the control of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press.

Related Posts (on one page):

  1. Blackstone's Commentaries (1765-69) on Seditious Libel:
  2. The Federalists and the Sedition Act:
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Is The Endorsement Test Up for Grabs in New Supreme Court Case?

Salazar v. Buono, which the Court agreed to hear today, involves a relatively unusual fact pattern (quoting the federal government's statement of the Question Presented in its petition for review):

More than 70 years ago, the Veterans of Foreign Wars (VFW) erected a cross as a memorial to fallen service members in a remote area within what is now a federal preserve. After the district court held that the presence of the cross on federal land violated the Establishment Clause and the court permanently enjoined the government from permitting the display of the cross, Congress enacted legislation directing the Department of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The district court then permanently enjoined the government from implementing that Act of Congress, and the court of appeals affirmed. The questions presented are:

1. Whether respondent has standing to maintain this action where he has no objection to the public display of a cross, but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols.

2. Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands.

But resolving this question may well lead the Court to reconsider the deeper constitutional question -- should the Establishment Clause be read as presumptively barring government speech that endorses religion? My guess is that there are now 5 votes on the Court rejecting the endorsement test: Justices Scalia, Kennedy, and Thomas, who have criticized the test in the past, and Chief Justice Roberts and Justice Alito, who I suspect (based on the jurisprudential camp from which they come) would agree with the other conservatives.

To be sure, there are other ways the Court could avoid the problem; it can conclude that:

  1. Respondent (Buono, who successfully challenged the cross) doesn't have standing, for the reasons the government gives.

  2. Respondent doesn't have standing, because simply being exposed to religious speech -- even if it violates the Establishment Clause -- isn't enough of an injury to allow standing. (This would have the effect of rejecting most challenges to government religious speech, but would leave government officials presumably still honor-bound by the existing substantive precedents, and would leave those precedents enforceable as a matter of federal constitutional law in those states that have more relaxed standing requirements.)

  3. Even if there was an Establishment Clause problem when the government maintained the cross, privatizing the cross -- even in a way that's pretty clearly structured to preserve the cross on a little island of private property on government land -- avoids any such problem.

  4. Even if the Establishment Clause prohibits speech that a well-informed observer would see as endorsing religion (that's the standard articulation of the endorsement test), a well-informed observer would see the cross here as a war memorial, not an endorsement of religion.

There is also another possible problem for the Court: Given that the memorial is a cross, then if it is seen as a religious symbol (i.e., if theory 4 noted above isn't accepted), it would presumably be seen as a symbol for Christianity as such. And some language in Justice Scalia's opinion in McCreary County v. ACLU suggests that Christian-only symbolism might be unconstitutional even though a more ecumenical (Christianity/Judaism/Islam-friendly) "acknowledgment of a single Creator" should be permissible. (See here for more on Justice Scalia's argument in McCreary.)

Nonetheless, it's also possible that five of the Justices might conclude that the underlying problem is the endorsement test, that the test is not only mistaken on the merits but is also too indeterminate to be reliably administered, and that the Court should provide lower courts and government officials clearer guidance for a wide range of cases by concluding that government speech isn't made unconstitutional by its endorsement of religion. Such provision of guidance for future cases is an important part of the Court's function, and the endorsement test's critics have long argued that the Court's adoption of that test has been a failure on that score. In any case, should be quite a case to watch (unless the Court decides the major issue in Pleasant Grove City v. Summum, which I doubt, given the posture of that case).

57 Comments

The Federalists and the Sedition Act:

The Sedition Act of 1798 famously expired on March 3, 1801, and purported to punish false and malicious statements about the Federalist President John Adams and the majority-Federalist Congress, not about the Democratic-Republican Vice-President Thomas Jefferson. This is often mentioned as evidence of the Federalists' partisanship in enacting the Act.

But what I hadn't known until a few days ago is that the Federalists tried to reenact the Act in early 1801, when it would have outlawed criticism of the newly-elected Democratic-Republican President and Congress. The bill was defeated in the House by a 53-49 vote; nearly all Federalists voted for it, and all Republicans voted against it. The four Federalists who voted against consisted of one (George Dent) who voted against the 1798 Act, two who weren't in the House for the 1798 Act vote, and one who was in the House in 1798 but didn't vote.

The Federalists' stated arguments seemed to chiefly be (1) malicious falsehoods about the government are dangerous and valueless and deserve to be suppressed, (2) the Sedition Act had actually been enforced properly, and thus merited renewal, and (3) the Act protects speech by limiting common-law seditious libel to falsehoods, and by fixing a modest penalty for seditious libel. There might have been some political posturing there, and perhaps the Federalists thought they had to do this to prevent charges of hypocrisy. They might also have thought they had little to lose from the renewal, given the expectation that the new Administration would not enforce the law, given its militant hostility to the law in the past. Still, it struck me as worth noting; perhaps it's well-known to others, but it wasn't known to me.

Related Posts (on one page):

  1. Blackstone's Commentaries (1765-69) on Seditious Libel:
  2. The Federalists and the Sedition Act:
9 Comments

Public Policy and the Role of Principles: Libertarians hear a lot about pragmatism and the pitfalls of being an ideologue. While conservatives love to poke fun at libertarians' preoccupation with the War in Drugs by suggesting we just want to get high, some of us have never even smoked marijuana. (Yes, it is true.) The argument from pragmatists is just to do "what works." But to know "what works" we need to "experiment." But what happens when your experiment fails miserably? Will it ever be undone? If not, is pragmatic social experimentation a truly practical approach towards social policy?

I have been repeatedly forthright in my cautions to libertarians about the limits of first principles. But first principles that have evolved over time in response to experience--and theorizing about that experience--have an important role to play in avoiding costly "social experimentation" before it is implemented. I fear we are about to be given a new crash course on the perils of pragmatism and "what works" in a variety of policy areas. But the failure of the War on Drugs highlights the importance of first principles in avoiding disastrous social experimentation than cannot easily, if ever, be declared a failure by the political establishment.

In 1987, my article "Curing the Drug Law Addiction: The Hidden Side-Effects of Legal Prohibition" was published in the book Dealing With Drugs. (It is slated to be republished in the Utah Law Review this year.) There I explained why first principles make it perfectly predictable THAT drug prohibition will fail and WHY drug prohibition will fail, along with the steep price that will be paid for this failure in terms of (a) harms to drug users themselves about whose welfare prohibitionists profess to be concerned, (b) harms to nondrug users who pay a steep price for prohibition along with drug users, and (c) harms to law enforcement and the legal system that stem from corruption and the weakening of civil liberties that inevitably accompany the enforcement of consensual possessory "crimes."

So who are the practical ones? The "ideologues" whose views are guided by first principles, or the "pragmatists" whose views are guided by "practicalities"? Here is how my article begins (only partially tongue in cheek):
Some drugs make people feel good. That is why some people use them. Some of these drugs are alleged to have side effects so destructive that many advise against their use. The same may be said about statutes that attempt to prohibit the manufacture, sale, and use of drugs. Using statutes in this way makes some people feel good because they think they are "doing something" about what they believe to be a serious social problem. Others who support these laws are not so altruistically motivated. Employees of law enforcement bureaus and academics who receive government grants to study drug use, for example, may gain financially from drug prohibition. But as with using drugs, using drug laws can have moral and practical side-effects so destructive that they argue against ever using legal institutions in this manner.

One might even say--and not altogether metaphorically--that some people become psychologically or economically addicted to drug laws.

[Footnote: For those who would object to my use of the word addiction here because drug laws cause no physiological dependence, it should be pointed out that, for example, the Illinois statute specifying the criteria to be used to pass upon the legality of a drug nowhere requires that a drug be physiologically addictive. The tendency to induce physiological dependence is just one factor to be used to assess the legality of a drug. Drugs with an accepted medical use may be controlled if they have a potential for abuse, and abuse will lead to "psychological or physiological dependence" Illinois Revised Statutes, ch. 56/2, § 1205 (emphasis added). Thus, applying the same standard to drug-law users as they apply to drug users permits us to characterize them as addicts if they are psychologically "dependent" on such laws.]

That is, some people continue to support these statutes despite the massive and unavoidable ill-effects that result. The psychologically addicted ignore these harms so that they can attain the "good"--their "high"--they perceive that drug laws produce. Other drug-law users ignore the costs of prohibition because of their "economic dependence" on drug laws; these people profit financially from drug laws and are unwilling to undergo the economic "withdrawal" that would be caused by their repeal.

Both kinds of drug-law addicts may "deny" their addiction by asserting that the side effects are not really so terrible or that they can be kept "under control." The economically dependent drug-law users may also deny their addiction by asserting that (1) noble motivations, rather than economic gain, lead them to support these statutes; (2) they are not unwilling to withstand the painful financial readjustment that ending prohibition would force them to undergo; and (3) they can "quit" their support any time they want to (provided, of course, that they are rationally convinced of its wrongness).

Their denials notwithstanding, both kinds of addicts are detectable by their adamant resistance to rational persuasion. While they eagerly await and devour any new evidence of the destructiveness of drug use, they are almost completely uninterested in any practical or theoretical knowledge of the ill effects of illegalizing such conduct.

Yet in a free society governed by democratic principles, these addicts cannot be compelled to give up their desire to control the consumption patterns of others. Nor can they be forced to support legalization in spite of their desires. In a democratic system, they may voice and vote their opinions about such matters no matter how destructive the consequences of their desires are to themselves, or more importantly--to others. Only rational persuasion may be employed to wean them from this habit. As part of this process of persuasion, drug-law addicts must be exposed to the destruction their addiction wreaks on drug users, law enforcement, and on the general public. They must be made to understand the inherent limits of using law to accomplish social objectives.
If you are interested in the principled reasons for these adverse social consequences, you can read the whole the article here. I expanded on this analysis in the Yale Law Review in my 1994 review essay Bad Trip: Drug Prohibition and the Weakness of Public Policy & in my 1984 review essay in Criminal Justice Ethics: Public Decisions and Private Rights. In each of these pieces, I examine the role that properly-defined individual rights should play in crafting social policy.

So can we finally get practical about drugs? And can we finally admit that principles have a role to play in avoiding the costs of bad social policy before it is adopted? And can we maybe admit that libertarians are trying in good faith to be practical when they offer their analysis of proposals for social experimentation, even when they are talking about drugs--or "bail outs"?

Can Pragmatists Be Practical About the Drug War? It should be HUGE news when the former presidents of Mexico, Colombia, and Brazil jointly announce that The War on Drugs Is a Failure. In their Wall Street Journal column today, Fernando Henrique Cardoso, César Gaviria and Ernesto Zedillo summarize the conclusions in their report for The Latin-American Commission on Drugs and Democracy. Here is the executive summary of their report:
Violence and the organized crime associated with the narcotics trade are critical problems in Latin America today. Confronted with a situation that is growing worse by the day, it is imperative to rectify the “war on drugs” strategy pursued in the region over the past 30 years.

Prohibitionist policies based on the eradication of production and on the disruption of drug flows as well as on the criminalization of consumption have not yielded the expected results. We are farther than ever from the announced goal of eradicating drugs.

A realistic evaluation indicates that:

  • Latin America remains the major global exporter of cocaine and cannabis, has become a growing producer of opium and heroin, and is developing the capacity to produce synthetic drugs;
  • The levels of drug consumption continue to grow in Latin America while there is a tendency toward stabilization in North America and Europe.
The in-depth revision of current drug policies is even more urgent in Latin America in light of their enormous human and social costs and threats to democratic institutions. Over the past decades we have witnessed:

  • A rise in organized crime caused both by the international narcotics trade and by the growing control exercised by criminal groups over domestic markets and territories;
  • A growth in unacceptable levels of drug-related violence affecting the whole of society and, in particular, the poor and the young;
  • The criminalization of politics and the politicization of crime, as well as the proliferation of the linkages between them, as reflected in the infiltration of democratic institutions by organized crime;
  • The corruption of public servants, the judicial system, governments, the political system and, especially the police forces in charge of enforcing law and order.
In their Wall Street Journal column they offer the following alternative strategy:
The first step in the search for alternative solutions is to acknowledge the disastrous consequences of current policies. Next, we must shatter the taboos that inhibit public debate about drugs in our societies. Antinarcotic policies are firmly rooted in prejudices and fears that sometimes bear little relation to reality. The association of drugs with crime segregates addicts in closed circles where they become even more exposed to organized crime.

In order to drastically reduce the harm caused by narcotics, the long-term solution is to reduce demand for drugs in the main consumer countries. To move in this direction, it is essential to differentiate among illicit substances according to the harm they inflict on people's health, and the harm drugs cause to the social fabric.

In this spirit, we propose a paradigm shift in drug policies based on three guiding principles: Reduce the harm caused by drugs, decrease drug consumption through education, and aggressively combat organized crime. To translate this new paradigm into action we must start by changing the status of addicts from drug buyers in the illegal market to patients cared for by the public-health system.

We also propose the careful evaluation, from a public-health standpoint, of the possibility of decriminalizing the possession of cannabis for personal use. Cannabis is by far the most widely used drug in Latin America, and we acknowledge that its consumption has an adverse impact on health. But the available empirical evidence shows that the hazards caused by cannabis are similar to the harm caused by alcohol or tobacco.

If we want to effectively curb drug use, we should look to the campaign against tobacco consumption. The success of this campaign illustrates the effectiveness of prevention campaigns based on clear language and arguments consistent with individual experience. Likewise, statements by former addicts about the dangers of drugs will be far more compelling to current users than threats of repression or virtuous exhortations against drug use.
Why can't pragmatists be practical for a change?

This is Not Good: From Little Green Footballs:
Everything the media tried to pin on Sarah Palin, [Bobby] Jindal actually did: he promoted and signed a creationism bill (with help from the Discovery Institute), he took part in an amateur exorcism and claimed it cured a woman of cancer, and possibly worst of all, he pals around with people on the extreme edges of fundamentalist Christianity, and at least one person who has associated with outright neo-Nazis.
You can read the dirty details here. The LGF prediction:
My take: the MSM and the left would love it if Jindal is the GOP nominee in 2012, because he will lose. So they’re going to ignore all the damaging issues until then, preemptively sabotaging any effort to find a more viable GOP candidate.
While at it, you can read about GOP Governors Mark Sanford and Tim Pawlenty's creationist sympathies here. Republicans be warned: No demonstrably creationist politician will be elected President of the United States.

Update: Silicon Valley Redneck has a thoughtful reply:

I wouldn't exactly call that a safe bet, especially now.

Those of us in the edumacated classes, with eclectic reading habits and a collection of Stephen Jay Gould books on the shelf, may regard overt creationism (as distinct from mushy unclarity on the subject of evolution) as an unacceptable quality in a candidate.

But what of the masses? The ones whose exposure to biology was one ill-taught required class in high school, and who simply have no interest in the matter?

What if the other candidate subscribes to an even worse philosophy, which has a direct bearing on government?

What if both candidates are creationists?

If the politicians of the world manage to turn the current recession into another great depression, expect a resurgence of old-fashioned hellfire-and-brimstone religion, and people flocking much more to churches than to, say, community-college courses on subjects completely unrelated to landing a job.

Bible-thumping churches offer comfort in hard times; biology doesn't. When predicting which way the electorate will jump, something to believe in is a safer bet than something that's aligned with the facts.
And his concluding shot is well taken too:
And keep in mind: many of those who most vociferously mock religious Republicans harbor creationist beliefs of their own. Listen to some of these people talk about Nature, and how everything in Nature must have some beneficial use to us if only we had the wisdom to find it, or how the answer to every problem lies in turning away from Technology and looking in Nature. Dress up creationism in pseudo-pagan language, and they just eat it up.
Fair enough. But even with this admonition in mind, I will modify my claim only slightly: No avowedly creationist Republican candidate will be elected President of the United States. Not. Gonna. Happen. And if that creationist Republican candidate is far superior with respect to governing philosophy and executive experience and skills, as he or she may well be, it will be so much the worse for the country. Sorry Bobby, Tim & Mark. Republicans: Do NOT try this electoral experiment. Please!

Related Posts (on one page):

  1. Defining "Creationism" Down:
  2. This is Not Good:

OLC in the Clinton Era and Today -- A Response to Eric Posner: Eric, I'm puzzled by your post below on OLC in the Clinton era. If I follow your argument correctly, you start with several cases in which the Clinton OLC concluded that the President had a particular power; you then note that alumni of the Clinton OLC were critical of the Bush OLC for concluding in different cases that the President had a set of powers; and then you suggest that the Clinton OLC alumni are probably hypocrites because they were pro-Presidential power under Clinton but not under Bush.

  The problem with this argument is that the legal opinions under OLC in the two eras were on quite different issues. Given that, I don't think it works to just compare the number of times OLC publicly said "yes" or "no" in the general category of Article II powers. (I'm reminded of the pro se defendant who thought the judge biased because his motions were denied every single time.) More broadly, positions on Presidential power are not binary: It's not like folks are either "100% for" or "100% against." Jack Goldsmith's experience is helpful here, I think. Goldsmith is no slouch when it comes to Presidential power, but it seems that he shared many of the criticisms that the Clinton OLC veterans had for the OLC under many periods of the Bush Administration.

  As I wrote before, I suspect the Obama OLC will see itself as trying to shift back to more of a middle ground position. That will end up leading to results that mirror those of the Bush OLC in some cases. But I don't see that as grounds for concluding that it's just 'meet the new boss, same as the old boss,' or for suggesting that Dawn Johnsen or other OLC alumni are hypocrites.

Related Posts (on one page):

  1. OLC in the Clinton Era and Today -- A Response to Eric Posner:
  2. OLC in the Clinton era—and today.
65 Comments

Sunday, February 22, 2009

OLC in the Clinton era—and today.

Dawn Johnsen, who has been nominated to head the Office of Legal Counsel in the Department of Justice and appears before the Senate Judiciary Committee for confirmation hearings Wednesday, hopes to clean the Augean stables. Johnsen—who worked in the OLC under President Clinton from 1993 to 1998 and headed the office, as acting assistant attorney general, from 1997 to 1998—has vigorously criticized the Bush OLC and, along with a number of other OLC veterans, cosigned a set of “principles” that repudiate some of the Bush OLC’s war-on-terror legal memos. For this reason, many people may believe that the Clinton and Bush OLCs gave substantially different kinds of legal advice and disagree about the contours of presidential power. As other veterans of the Clinton OLC have recently joined the Obama OLC, it is important to tell the full story.

It’s 1994 and a coup overthrows the government of Haiti. President Clinton prepares to launch a military invasion but the new government of Haiti backs down, and American troops enter Haitian territory to conduct peacekeeping operations. President Clinton does not have congressional authorization for the transfer of American troops onto potentially hostile soil. However, OLC argues that the deployment of troops “accord[s] with” an appropriations bill that barred the use of appropriated funds for military operations in Haiti unless justified by U.S. national security interests. The appropriations bill did not by its terms authorize anything. OLC further explains that the president does not need congressional authorization under the Constitution’s Declaration of War clause when “the deployment [takes place] with the full consent of the legitimate government of the country involved.” Such an event is not a “war” even if it could quickly turn into war. In addition, the War Powers Resolution, which limits the circumstances under which the president may use troops, does not apply “where the risk of sustained military conflict [is] negligible.”

In 1995, President Clinton decides that U.S. forces should enter Bosnia and Herzegovina to enforce a fragile peace agreement. OLC finds itself unable to rely on an appropriations bill. Instead of citing a statute, OLC notes that the president has the “power to deploy troops abroad without the initiation of hostilities,” citing historical practice and, yes, the president’s Commander in Chief power, the much criticized constitutional basis for many Bush-era OLC opinions. In this case the risk of sustained military conflict is not “negligible.” But that no longer matters. Because the parties have consented to the deployment of troops, there is still no “war,” and neither the Declaration of War clause nor the War Powers Resolution applies.

In 1999, President Clinton orders a massive air bombardment of Serbia. Congress again refuses authorization; indeed, the bill to authorize military operations is voted on but fails to pass. It is impossible to argue that the risk of sustained military conflict is “negligible” and that the Serbs have consented to the bombardment of their own country. OLC rests its case on an appropriations statute enacted after the commencement of hostilities. President Clinton sent American troops into action and then dared Congress to deny them funding. Trapped, Congress reluctantly authorized funds. For the OLC, the War Powers Resolution does not stand in the way of the war because of the appropriations statute even though the War Powers Resolution says that appropriations statutes don’t count as congressional authorization. That Resolution is gutted; the Haiti and Bosnia opinions are forgotten. The OLC also does not bother to address whether the Kosovo intervention violated international law, which it most certainly did, as the UN charter prohibits wars unless they are in self-defense or have Security Council authorization. The Kosovo intervention satisfied neither of these conditions.

These were not even the most dramatic cases. In 1996, President Clinton sought to put American troops under UN control in Bosnia. OLC declared that a bill that specifically prohibited the use of congressionally appropriated funds for that purpose “unconstitutionally constrains the President’s exercise of his constitutional authority as Commander-in-Chief.” In a 1994 memo, OLC observed that the president should ignore statutes that “encroach upon the constitutional powers of the Presidency,” especially “provisions limiting the President’s authority as Commander in Chief.” The memo barely mentioned the Supreme Court’s Youngstown case, which provides the standard framework for evaluating presidential power. Other Clinton-era OLC opinions, such as the 1996 Bosnia opinion, didn’t mentioned it at all. A similar omission in one of the Bush OLC’s memos was cited by law professors around the country, who told journalists that it revealed the fatal incompetence of the memo’s authors.

And then there are the gaps in the record. In a 2005 op-ed in the New York Times, Michael Scheuer noted that the program of rendering al Qaida suspects to places like Egypt, where they were likely to be tortured, originated in the Clinton administration, where it was “approved by a vast cohort of lawyers at the security council, the Justice Department and the C.I.A. itself.” The 9/11 Commission report strongly implies that in 1998 top Justice Department lawyers approved an order to capture or kill Osama bin Laden in Afghanistan, reasoning that the United States and al Qaida were (already!) at war, and that detention or assassination of an enemy combatant does not violate the laws of war. If such an opinion exists, it has never been disclosed to the public.

The Clinton OLC put into place all the elements of the Bush OLC’s legal justification for war-on-terror activities. The president can go to war on his own authority; he can conduct the war as he sees fit; a war can exist between the United States and a non-state entity such as al Qaida; Congress’s ability to interfere is limited by the president’s constitutional powers, including his Commander in Chief power. International law may be ignored. Legal opinions may be kept secret. And, no, you don’t have to address the Youngstown case. Is there any reason to think that the return of Clinton’s appointees will change all this?

Perhaps, they have learned their lesson and will stand up to President Obama in a way that they never did with President Clinton. One can be forgiven for being skeptical. Consider the “principles” for OLC conduct that Johnsen and her coauthors advocate. OLC opinions should provide “an accurate and honest appraisal of the law” (principle #1) and should “reflect all legal constraints” (principle #2) but should also reflect “the institutional traditions and competences of the executive branch as well as the views of the President who currently holds office” (principle #4)—traditions that encompass broad war-making powers, as the Clinton OLC repeatedly noted. Indeed, “on very rare occasion[s],” the executive branch may “decline[] to follow a federal statutory requirement” (principle #5). Here, the executive branch “typically should publicly disclose its justification” (principle #5)—“absent strong reasons for delay or nondisclosure” (principle #6), for example, as the accompanying text indicates, involving “national security matters.”

One cannot say for certain whether the Clinton-era OLC would always have gone as far as Bush’s OLC when confronted with specific presidential demands for authority during an emergency. But in light of the record of repeated acquiescence in a less dangerous time—and no public evidence that the Clinton OLC ever said “no” to Clinton on a national security matter—the critique of presidential power offered in public from 2001 to 2009 rings hollow. The Clinton officials cheerfully loaded the revolver of presidential power and handed it over to the Bush administration.

A month ago one might have advised the Senate Judiciary Committee to ask Johnsen, in light of her critique of the Bush administration, which of the Clinton-era OLC opinions she planned to withdraw. However, it already appears that the Obama administration’s position on war-on-terror related legal issues—from the state secrecy privilege to rendition, detention, habeas corpus, and targeted killing—has more in common with the Bush administration’s than with the Bush administration’s critics’. Accordingly, perhaps senators should instead ask Johnsen which of her criticisms of the Bush administration’s legal position she no longer believes.

Related Posts (on one page):

  1. OLC in the Clinton Era and Today -- A Response to Eric Posner:
  2. OLC in the Clinton era—and today.

And Then Maybe He Can Save Mexico: I have heard the expression, "I will believe there is a global warming crisis when the people who tell me there is a crisis start acting like there is a crisis." The same could be said about the global War on Terror. I once asked former Homeland Security Chief Michael Chertoff if he would be willing to reconsider the War on Drugs since it was obviously providing the financial resources for terrorist organizations. Naturally, he rejected this option as a false choice, and voiced his support for the War on Drugs as the way to reduce drug abuse. But can one be truly serious about the dangers of terrorism if they continue to support the prohibitionist policies that fund the terrorists? If drug prohibition were funding the German or Japanese regimes in WWII, do we really think that it would not have been suspended "for the duration"? Case in point is Mexico where the government there may be on the verge of collapse and needs to deny it is a failed state. I don't think I will be returning to Cancun or Cabo anytime soon. If the President will consider ending the War on Poppies in Afghanistan in the interest of fighting the war against the Taliban, then perhaps he would also consider preventing the establishment of a narco-terrorist regime directly adjacent to the United States by ending the War on Drugs that makes the Mexican narco-gangsters possible. Whenever someone complains that libertarians are just pie-in-the-sky utopian (or distopian) intellectuals, just ask them again about the real world consequences of the War on Drugs, and see who gets all pie-in-the-sky right quick.

/rant

Will Obama End the War on Drugs' Undermining of the War on Terror?

Over the last two years, I have repeatedly blogged about how the War on Drugs is undermining the War on Terror in Afghanistan (see, e.g., here, here, here, and here). Recently, the Boston Globe had a good editorial summarizing the issue, and holding out a small ray of hope that the Obama Administration might change things:

The Obama administration is committing 30,000 additional troops to Afghanistan. Yet as the United States works to stabilize that country, the most important decisions don't just involve troop and funding levels. Also vital is ending the prohibition on growing opium poppies - for the policy is a key factor in Afghanistan's economic and security crisis.

Since the US invasion in 2001, the American and Afghan governments have made the poppy-growing areas of Afghanistan, which produce 90 percent of the world's opium, a major front in the war on drugs. Yet despite eight years of efforts to eliminate the crop, farmers keep growing poppies, and the crop still reaches the black market....

Eradication is not just an ineffective strategy, but also hurts the security interests of Afghanistan and Western governments. While the United States invests $1 billion in eradication efforts each year, the Taliban profits by purchasing poppy from farmers who have no one else to sell to, and selling it to the black market. Also, the eradication policy fuels anti-Western hatred when farmers become sympathetic to insurgent groups after the US and Afghan governments burn or spray their only source of income.

The eradication policy remains in place even though it is widely recognized as a failure. Richard Holbrooke, Obama's new envoy to Afghanistan and Pakistan, last year called the eradication program "the single most ineffective program in the history of American foreign policy."

Holbrooke is the Admnistration's point man on Afghanistan and Pakistan. I'm not holding my breath on this. But maybe, just maybe, he can persuade the President to finally end "the single most ineffective program in the history of American foreign policy" and get on with winning the war against the Taliban and Al Qaeda. The administration has often emphasized that winning the War on Terror in Afghanistan will be its highest foreign policy priority. If it really is, Obama should be willing to prioritize it ahead of poppy eradication. As the Globe points out, a strategy of partial legalization has successfully deprived terrorists of income from illegal drugs in Turkey, a policy enacted with US and NATO support.

Perhaps Obama can get the War on Drugs out of the way of the War on Terror in Afghanistan as well. That would be a good example of real change we can believe in.

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Repeal the Seventeenth Amendment?

George Will thinks it would be better to repeal the 17th Amendment than to require special elections for Senate vacancies. Has he been reading Todd Zywicki?

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Obama Administration Defends Bagram Detention:

The NYT reports:

In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release.

“Having considered the matter, the government adheres to its previously articulated position,” wrote Michael F. Hertz, acting assistant attorney general. . . .

Jack Balkin, a Yale Law School professor, said it was too early to tell what the Obama administration would end up doing with the detainees at Bagram. He said some observers believed that the Obama team would end up making a major change in policy but simply needed more time to come up with it, while others believed that the administration had decided “to err on the side of doing things more like the Bush administration did, as opposed to really rethinking and reorienting everything” about the detention policies it inherited because it had too many other problems to deal with.

“It may take some time before we see exactly what is going on — whether this is just a transitory policy or whether this is really their policy: ‘No to Guantánamo, but we can just create Guantánamo in some other place,’ ” Mr. Balkin said.

UPDATE: The more things change . . .

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EPA to Regulate GHGs:

The WSJ reports on recent comments by White House climate czar (or, as I prefer, Energy Empress) Carol Browner:

"EPA's going to look at Mass. Vs. EPA and will make an endangerment finding," Browner told Dow Jones Newswires in an interview. The Supreme Court ordered the EPA in the case to determine if carbon dioxide endangered public health or welfare.

"The next step is a notice of proposed rulemaking," for new regulations on CO2 emissions, Ms. Browner said one the sidelines of the National Governors Association meeting, one of her first public appearances since inauguration.

The story also reports that several Congressional leaders hope to pass climate legislation this year.

Related Posts (on one page):

  1. EPA to Regulate GHGs:
  2. Climate Change Policy: The Path Ahead
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Sunday Song Lyric: The The's Soul Mining has been one of my favorite albums for years. I still remember listening to it for the first time, on a beat up Panasonic cassette player in my freshman dorm room on the sixth floor of Bingham Tower. I love several songs on the album, "Uncertain Smile," above all. (I also prefer the album version of the song, with the extended piano solo, to the alternative versions available on other discs.) Here's the second verse, from which the title of the song is taken:
A howling wind that blows the litter
As the rain flows
As street lamps pour orange coloured shapes
Through your windows
A broken soul stares from a pair of watering eyes
Uncertain emotions force an uncertain smile
The full lyrics are available on the band's website here, and there's an interesting write-up about making the song here. [Note: If you go to The The's home page, you'll be treated to Matt Johnson's take on Israeli-Palestinian conflict.] Live versions of the song can be found online here and here.
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A compromise on federal civil unions?

From Sunday's New York Times, a joint op-ed by David Blankenhorn and Jonathan Rauch advocating federal recognition of state-conferred same-sex marriages and civil unions, with an asterisk:

It would work like this: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill. . . .

Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together.

Rauch and Blankenhorn are among the ablest defenders of their respective positions, pro and con gay marriage, in the country. Both have written excellent books on the subject. What they say will be noticed by all sides, especially because they say it together. There will be strong objections on both sides: from SSM opponents who oppose recognition in principle and not just for instrumental reasons, and from SSM supporters who will worry about the practical consequences and who will wonder why such marriages alone will be qualified by morals exemptions.

There is much to think about here. A conditional offer of federal recognition would be a powerful inducement to the states since they won't want their recognized gay relationships excluded from federal advantages. For SSM supporters, that's good if it speeds state-based recognition of gay families but not so good if it hollows out that recognition.

My initial and very tentative reaction, as a same-sex marriage supporter, is that the Blankenhorn-Rauch compromise probably gives little away since SSM was never really a threat to religious liberty anyway. As a practical matter, gay families gain a lot in very important federal benefits in exchange for what appears to be barring lawsuits that either weren't -- or shouldn't -- be available. The devil is in the details -- what exactly do "robust religious-conscience exceptions" cover? -- but the op-ed starts a conversation about federal legislation that might be politically achievable in the near future.

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