The Volokh Conspiracy

Today the U.S. Court of Appeals for the D.C. Circuit decided Electronic Information Privacy Center v. National Security Agency. Here’s the summary from the beginning of Judge Brown’s opinion for the court.

Plaintiff-appellant Electronic Privacy Information Center (“EPIC”) filed a Freedom of
Information Act (“FOIA”) request with the National Security Agency (“NSA”) seeking disclosure of any communications between NSA and Google, Inc regarding encryption and cyber security. NSA issued a Glomar response pursuant to FOIA Exemption 3, indicating that it could neither confirm nor deny the existence of any responsive records. EPIC challenged NSA’s Glomar response in the district court, and the parties cross-moved for summary judgment. The district court entered judgment for NSA, and EPIC appealed. We affirm.

UPDATE: BLT reports on the case here.

Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, as this is my position as well. I believe in recognition of same-sex marriage, but also believe that this is the sort of question entrusted to state governments under our constitutional system, and that, as with many questions of social policy about which I have strong preferences, different states are and should be free to come to different conclusions on the matter. I also believe that as more states elect to recognize gay marriage (particularly insofar as this is done by legislatures and ballot initiatives, rather than by courts) many of those who are currently uneasy with the idea of gay marriage will learn they have nothing to fear and opposition to gay marriage will slowly melt away.

The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.

[NOTE: Edited the post to make clear that equal protectioon is guaranteed as against the federal government through the Fifth Amendment and as against the states through the 14th Amendment, but the standard is the same.]

UPDATE: Here’s the full ABC transcript, in which the President suggests he was also influenced by a concern that DOMA federalizes a traditional state concern. Lyle Denniston comments here, suggesting the President’s legal position does not threaten state laws. Calvin Massey disagrees here. Massey is right.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

NASA’s James Hansen can be a bit unhinged when he talks about climate change. Although one of the world’s more prominent climate scientists, he has a penchant for selectively presenting only the most apocalyptic global warming scenarios and adopting unduly inflammatory rhetoric, as when he compared coal-laden trains, aka “death trains,” to the railcars carrying Jews to Nazi concentration camps or suggested that energy company CEOs are guilty of “crimes against humanity.”

Yet whatever his faults, James Hansen’s central climate policy recommendation is a sound one. For years he has called for a simple and straightforward approach: A revenue-neutral carbon tax and an end to fossil energy subsidies. As he writes in today’s NT:

We need to start reducing emissions significantly, not create new ways to increase them. We should impose a gradually rising carbon fee, collected from fossil fuel companies, then distribute 100 percent of the collections to all Americans on a per-capita basis every month. The government would not get a penny. This market-based approach would stimulate innovation, jobs and economic growth, avoid enlarging government or having it pick winners or losers. Most Americans, except the heaviest energy users, would get more back than they paid in increased prices. Not only that, the reduction in oil use resulting from the carbon price would be nearly six times as great as the oil supply from the proposed pipeline from Canada, rendering the pipeline superfluous, according to economic models driven by a slowly rising carbon price.

But instead of placing a rising fee on carbon emissions to make fossil fuels pay their true costs, leveling the energy playing field, the world’s governments are forcing the public to subsidize fossil fuels with hundreds of billions of dollars per year. This encourages a frantic stampede to extract every fossil fuel through mountaintop removal, longwall mining, hydraulic fracturing, tar sands and tar shale extraction, and deep ocean and Arctic drilling.

This is the sort of policy that could reduce greenhouse gas emissions and provide incentives for innovation (particularly if combined with things like prizes) without requiring the erection of a vast new bureaucracy or imposing substantial new burdens on the economy.

Conservatives have called for shifting the tax burden from labor and wealth creation to consumption, and that is precisely what Hansen’s proposal would do. Further, as shown by the experience of other jurisdictions, implementing a carbon tax of this sort is far less complicated than trying to erect a Waxman-Markey-type cap-and-trade scheme. A basic carbon tax would also be less susceptible (on the margin) to special interest rent-seeking than a cap-and-trade scheme, particularly if emissions allowances are to be doled out to reduce the economic impact of the regime. For a variety of reasons, excise taxes tend not to be carved up by interest groups the way income tax schemes are.

I’ve also argued that a revenue-neutral carbon tax would be easier — or at least no less difficult — to enact than a cap-and-trade scheme. Both involve increasing the cost of energy, but the revenue-neutral carbon tax would do so in a simpler, less-regressive, more transparent, and less economically burdensome way, and could not be characterized (a la Waxman-Markey) as implementing expansive government control over the energy sector for the benefit of special interests. Of course, we won’t know whether this is true until political leaders have the guts to push for this sort of policy.

I wish that environmental activists would follow Hansen’s lead (rather than, say, Krugman’s) and embrace this approach as a superior alternative to increased regulation or Waxman-Markey-style cap-and-trade. Alas, many Greens seem more interested in expanding government power than reducing greenhouse gas emissions. I also wish more forward-looking Republican leaders would embrace this sort of policy and recognize how it’s consistent with limited government principles. Alas, few on the right take environmental policy seriously enough to do more than bash bureaucrats. So I guess I’ll be wishing for awhile.

Lyle Denniston has an interesting post on SCOTUSBlog discussing whether the Court will reconsider its judgment in Nken v. Holder because the decision was based, in part, on erroneous factual premises.

The Justice Department last month told the Court that it had provided faulty information in that case about U.S. immigration policy, but it suggested that the Court need not do anything about it. Now, however, a group of immigrants’ rights lawyers have asked the Court to actually modify the opinion after the fact, so that lower courts do not rely upon the error, with a negative impact on immigrants’ rights.

The Court has formally accepted the Justice Department’s letter expressing regret over the development, as well as the lawyers’ letter filed last Friday asking for a change in the ruling. That letter, though, was not filed for a party in the case — the immigrant Jean Marc Nken or the federal government — but rather on behalf of several immigrants’ rights groups who took part in the Nken case three years ago as amici — not a direct role. The Department has already made clear it sees no need for a modification, and Nken may have no reason to seek it, since in the meantime he has been granted asylum to stay in the U.S.

When a factual error upon which the Court had relied in Kennedy v. Louisiana was disclosed, and both the SG’s office and Louisiana sought rehearing, the Court altered the wording of its opinion, but not the result. with Nken, on the other hand, the time for rehearing has passed, but the consequences of the Court’s error may be significant.

for the immigrants’ rights lawyers, they have told the Court that this is not just a matter of procedural inconvenience or nicety. Various lower courts have relied upon the incorrect statement in the Court’s Nken opinion to deny an immigrant’s plea to remain in the U.S. until that individual has a chance to challenge deportation in court, they said. Moreover, the attorneys’ letter said, there is reason to doubt even the Justice Department’s assurances to the Court that the government now has a policy that it will allow a deported non-citizen to return to the U.S. if he or she wins a challenge to being sent away. “There is still substantial agency discretion” about that outcome, the letter argued.

What’s more, the letter said, the government can give no assurance that, in the future, some other administration may rely on what the Court had said in Nken about the right of return, and thus feel justified in refusing a non-citizen’s re-entry. The government, it added, has made no commitment “to a permanent, legally binding policy.”

It will be interesting to see how the Court responds.

Today the U.S. Court of Appeals for the Sixth Circuit issued its opinion in Maker’s Mark Distillery v. Diageo North America. The opinion begins:

Justice Hugo Black once wrote, “I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon.” Dep’t of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 348-49 (1964) (Black, J., dissenting). While there may be some truth to Justice Black’s statement that paints Kentucky bourbon as such an economic force that its competitors need government protection or preference to compete with it, it does not mean a Kentucky bourbon distiller may not also avail itself of our laws to protect its assets. This brings us to the question before us today: whether the bourbon producer Maker’s Mark Distillery, Inc.’s registered trademark consisting of its signature trade dress element—a red dripping wax seal—is due protection, in the form of an injunction, from a similar trade dress element on Casa Cuervo, S.A. de C.V.’s Reserva de la Familia tequila bottles. We hold that it is. The judgments of the district court in this trademark infringement case are AFFIRMED.

The folks at the Heartland Institute are mad, and that seems to have driven them a little mad. For years environmental activists have compared climate skeptics and those who raise questions about the likelihood of a warming-induced apocalypse to Holocaust deniers and worse. In 1989, then-Senator Al Gore famously compared those who downplayed the climate threat to those who ignored Hitler’s rise and NASA’s James Hansen compared coal-bearing trains to the rail cars headed to Nazi crematoria, drawing a moral equivalence between the use of coal and the Holocaust. Think Progress also trumpeted the “climate denial” views of Norwegian terrorist Andrew Breivik and claimed he was “inspired” by mainstream climate skeptics.

Then, earlier this year, Heartland was the target of directed smear campaign after the Pacific Institute’s Peter Gleick surreptitiously obtained internal Heartland documents by impersonating a board member. Gleick anonymously distributed the purloined documents together with a forged memorandum purporting to provide further evidence of Heartland’s internal dealings. Progressive bloggers trumpeted the materials, and the forged memo in particular, as evidence of Heartland’s sinister machinations. While it seems likely that Gleick himself forged the memo (or knows who did) Heartland may have difficulty seeking legal redress for his actions. I posted on what some call “Fakegate” here and here.

Instead of trying to retain the moral high ground by defending the substance of its views, Heartland took adopted the tactics of its most unhinged critics, purchasing a billboard comparing those who believe in global warming to the Unabomber. According to Heartland, this was to be the first in a series featuring famous “global warming alarmists,” including Osama Bin Laden, Fidel Castro and other “rogues and villians.” Heartland explained the campaign this way:

what these murderers and madmen have said differs very little from what spokespersons for the United Nations, journalists for the “mainstream” media, and liberal politicians say about global warming. They are so similar, in fact, that a Web site has a quiz that asks if you can tell the difference between what Ted Kaczynski, the Unabomber, wrote in his “Manifesto” and what Al Gore wrote in his book, Earth in the Balance.

The point is that believing in global warming is not “mainstream,” smart, or sophisticated. In fact, it is just the opposite of those things. Still believing in man-made global warming – after all the scientific discoveries and revelations that point against this theory – is more than a little nutty. In fact, some really crazy people use it to justify immoral and frightening behavior.

The response to this ad was quite negative from friend and foe alike, prompting Heartland to pull the ad within 24 hours. Heartland now claims the billboard was an “experiment.”

“This provocative billboard was always intended to be an experiment. And after just 24 hours the results are in: It got people’s attention.

“This billboard was deliberately provocative, an attempt to turn the tables on the climate alarmists by using their own tactics but with the opposite message. We found it interesting that the ad seemed to evoke reactions more passionate than when leading alarmists compare climate realists to Nazis or declare they are imposing on our children a mass death sentence. We leave it to others to determine why that is so.

Well lots of folks didn’t get the joke, including many of Heartlands friends and funders. Several speakers have withdrawn from Heartland’s annual climate conference, including Rep. James Sensenbrenner and IPCC critic Donna Laframboise. (More reactions here and here.) E&E News also reports the publicity stunt is costing Heartland financial support, and could prompt staff departures too.

Even if the billboard was initially designed as an “experiment,” it was a stupid idea. The implicit argument of the billboards is completely unjustifiable. So what if some tyrants and whackjobs believe in global warming. This is like arguing someone should eat meat because Hitler was a vegetarian. Lots of evil, crazy, and stupid people believe plenty of sensible things (and lots of brilliant people have embraced nutty ideas). Heartland’s justifiable anger at the vitriol spewed by its most extreme or unhinged opponents does not justify sinking to their level. If the folks at Heartland believe there is a double-standard — and I believe there is, even though I also believe anthropogenic global warming is a real problem — then they should explain why. There’s no need to provoke and offend countless commuters and others by suggesting that a believing in global warming makes one like the Unabomber. It was a know-nothing message, and not just because most so-called “skeptics” actually believe in global warming too, and only reject apocalyptic climate projections. I expect this sort of stunt from extreme animal rights groups, not those who purport to want an open and honest scientific debate. However angry the Heartland folks may be with some of those on the other side, this stunt was unjustified and unwise — and by all accounts it looks like it will cost Heartland dearly.

The New Orleans Times Picayune reports the White House denied the Department of Interior’s Office of Inspector General access to e-mails and communications about White House revisions to a report Interior Secretary Ken Salazar relied upon to justify a moratorium in oil drilling in the Gulf of Mexico. The story begins:

A senior federal investigator says he was denied access to a White House official and full email records as he tried to determine whether a BP oil spill report was intentionally edited to erroneously suggest outside experts supported the Obama administration’s deepwater drilling moratorium. The experts, in fact, did not endorse the moratorium the administration ordered after the 2010 spill. The White House and Department of Interior later said the mistake was inadvertent, a result of an early-morning edit that moved some material from the body of the report to the executive summary.

Although some e-mails were provided eventually, the IG’s office was never able to validate their authenticity or completeness, the investigator claims. He also alleges the White House did not allow the IG to interview a White House official involved in editing the report. An official in the IG’s office told the Times Picayune that his office “does not have authority to compel” White House cooperation with its investigation.

Conor Friedersdorf compares former New Mexico Governor Gary Johnson with prior Libertarian Party candidates for President. His post concludes:

A former governor of New Mexico, he was re-elected by that state’s voters, left office popular after two terms, and therefore has the most executive experience of any Libertarian Party presidential nominee. He can also cite the state he ran as evidence that nothing radical happens when he’s put in charge. An economic conservative and social liberal, he represents a new direction for a party that has long wrestled with its paleo-libertarian wing. And yet he too is certain to lose on Election Day, as third-party candidates in American presidential elections do. The question is whether he can match his party’s 1980 high-water mark and win 1 percent or more of the vote, and whether he might win even more in the key swing state of New Mexico, where voters already know and have cast ballots for him.

The National Law Journal reports on the under-reporting of estimated cost-of-living expenses at many law schools. The story begins:

The news just keeps getting worse — at least as far as financing a legal education goes.

Law School Transparency has recalculated its estimates of the debt that law students stand to incur after discovering that a number of schools had low-balled the cost-of-living figures that they provided to U.S. News & World Report. On average, schools underreported those expenses — upon which the organization pegged its initial estimates — by $5,000, according to the Law School Transparency’s executive director, Kyle McEntee.

Additionally, the organization made several mistakes in its handling of the U.S. News data, which contributed to the problems, he said.

Here is the post that led to this story.

Last month, Virginia enacted a law forbidding state officers, including police, from helping the federal government investigate, surveil, or detain terrorist suspects who are U.S. citizens. This may or may not be good policy. David Rivkin and Charles Stimson argue it’s also unconstitutional. They write:

It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores. . . .

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

This is an odd argument. It’s black letter law that the federal government may not “commandeer” state officers to enforce or implement federal law. This is true without regard to the purpose of the requirement. If a particular federal policy is that important, the federal government can expend its own resources and direct its own officers to implement and enforce the law. This is true even if, as Rivkin and Stimson maintain, that Virginia’s legislation is premised upon mistaken assumptions about what federal law authorizes or requires.

Rivkin and Stimson imply that Virginia’s new law violates conditions imposed on funds Virginia willingly accepted from the federal government. Maybe so, but this does not make Virginia’s law unconstitutional. It just means Virginia may have to give up some federal funds, provided that the conditions were clear when Congress authorized and Virginia accepted the relevant funds. There is no general requirement that states enforce all federal policies just because they accept some federal funds. And just because a policy is enacted pursuant to the “war on terror” does not mean that states have to go along.

The Marijuana Policy Project’s Rob Kampia writes:

During the 2008 campaign, Barack Obama raised hopes among those who support medical marijuana by pledging to respect state laws on the issue. But his administration has reversed course and massively escalated the federal government’s attacks on medical marijuana businesses, most of which are legal under their states’ laws.

Further, Kampia argues, President Obama’s Administration is more hostile to medical marijuana than any previous occupant of the White House.

The five presidents from Richard Nixon through George H.W. Bush allowed medical marijuana research to proceed unhindered.

The three presidents from Jimmy Carter to George H.W. Bush allowed patients to apply to the federal government for waivers to use medical marijuana legally under federal law.

Obama appears to be to the right of Ron Paul, Gary Johnson, Ronald Reagan and even George W. Bush on this issue. It’s hard to imagine how this helps Obama politically, and it’s easy to imagine how forcing patients to purchase their medicine from an illicit provider instead of a regulated business hurts people who are suffering from cancer, AIDS and multiple sclerosis.

Yesterday, the U.S. Court of Appeals for the Fifth Circuit lifted the emergency stay of the court injunction barring Texas from excluding Planned Parenthood from participation in the state’s Women’s Health Program. In its per curiam order, the Fifth Circuit explained that Texas was unable to substantiate its claim that it needed the extraordinary relief provided by an emergency stay and failed to adequately address relevant Fifth Circuit precedent, Planned Parenthood of Houston & Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir. 2005) in particular. A regular appeal of the preliminary injunction remains pending.

I previously blogged on this case here.

In 2010, the Supreme Court unanimously held that Carol Anne Bond had standing to challenge her conviction under the Chemical Weapons Convention Implementation Act of 1998 for trying to poison her husband’s lover. On remand, the U.S. Court of Appeals for the Third Circuit rejected her constitutional challenge to the Act for exceeding the scope of the treaty power. According to the court’s opinion, this was a result largely dictated by Missouri v. Holland. Here is the summary provided in the introduction to the court’s opinion.

This case is before us on remand from the Supreme Court, which vacated our earlier judgment that Appellant
Carol Anne Bond lacked standing to challenge, on Tenth Amendment grounds, her conviction under the penal
provision of the Chemical Weapons Convention Implementation Act of 1998, 18 U.S.C. § 229 (the “Act”), which implements the 1993 Chemical Weapons Convention, 32 I.L.M. 800 (1993) (the “Convention”). The Supreme Court determined that Bond does have standing to advance that challenge, and returned the case to us to consider her constitutional argument.

In her merits argument, Bond urges us to set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress’s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Cognizant of the widening scope of issues taken up in international agreements, as well as the renewed vigor with which principles of federalism have been employed by the Supreme Court in scrutinizing assertions of federal authority, we agree with Bond that treaty-implementing legislation ought not, by virtue of that status alone, stand immune from scrutiny under principles of federalism. However, because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that “there can be no dispute about the validity of [a] statute” that implements a valid treaty, 252 U.S. at 432, we will affirm Bond‟s conviction.

Although the panel was unanimous, the case produced three opinions — an opinion for the court by Judge Jordan and concurrences by Judges Rendell and Ambro, the latter of which expressly urges the Supreme Court to take up the case to provide further guidance on the proper interpretation of Missouri v. Holland. As Judge Ambro concludes his opinion:

Since Holland, Congress has largely resisted testing the outer bounds of its treaty-implementing authority. . . . But if ever there were a statute that did test those limits, it would be Section 229. With its shockingly broad definitions, Section 229 federalizes purely local, runof-the-mill criminal conduct. The statute is a troublesome example of the Federal Government‟s appetite for criminal lawmaking. Sweeping statutes like Section 229 are in deep tension with an important structural feature of our Government: “The States possess primary authority for
defining and enforcing the criminal law.”

I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.

In an effort to educate potential law students about the real costs of attending law school, Law School Transparency has launched a “Data Clearinghouse”, a database of “consumer information” on law schools, including much information law schools have been reluctant to disclose.

The latest addition to the database are projections of the full cost of attending each law school in the nation. Based on Law School Transparency’s calculations, these costs can vary widely. As the NLJ reported:

As part of the comprehensive database of law school employment statistics it launched this week, the organization has projected the total cost of law school loans for students who will graduate in 2015 and 2016 — that is, the ones who will start law school this year or next. The former will owe an average of $195,265 and the latter will owe an average $200,595.

“My jaw dropped when I ran the numbers,” McEntee said.

He added a few caveats. The calculations are based on the assumption that students will borrow the full tuition amount in the form of federal loans, even though many students receive some scholarship money. They also assume that students at public law schools pay out-of state-tuition levels, which generally are higher than in-state rates. . . .

The City University of New York School of Law features the lowest projected debt for the class of 2015, at $96,242. The University of California, Berkeley School of Law had the highest, at $273,667, although that figure assumes graduates paid out-of-state tuition rates; most students from outside California qualify for in-state tuition after one year.

New York University School of Law had the next-highest projected debt at $266,462.

Some of the numbers are quite revealing — and some of the numbers are quite wrong. In a quick review of the numbers for a handful of schools, I’ve found substantial under-reporting of cost-of-living estimates. Lets start with the alleged cheapest school on the list, CUNY. According to the database, the estimated annual cost of living is only $7,425. Really? In New York City? (Yes, it’s Queens. But still.) But it turns out that $7,425 is not the estimated cost of living for CUNY. According to the law school’s website, the actual figure is more than double the reported amount, $17,943. That’s quite a difference.

CUNY is not the only school for which the numbers in the Law School Transparency database are inaccurate. The University of Louisville is another low-cost school according to the database, with a reported cost of living of only $10,490. Again, however, a quick check of the law school website reveals a much higher figure. Louisville estimates the cost of living for its prospective students at over $18,000 per year. Florida State’s reported number is $13,000, but their cost-of-living calculator estimates costs of over $17,000. Albany Law School’s reported number is $12,300, but their website reveals costs of $18,000. And so on.

I contacted the folks at Law School Transparency to ask about the problems with their data. They said they relied upon data provided to U.S. News, and pledged to do more research so that they could provide more accurate numbers (numbers which should be up shortly, perhaps later tonight). The faulty data, they argue, is further evidence of how law schools misreport to U.S. News and highlights the need for more standardized and complete reporting. Fair enough. Yet the whole point of their site, as I understand it, is to give law school “consumers” access to more complete and accurate information than they are getting from U.S. News and law schools themselves. Further, some of these numbers — such as the CUNY cost-of-living figure — should have been dead giveaways that something was wrong.

My own curiosity was piqued not just by the CUNY number, but also by the variation in living cost estimates for schools in particular cities. In Chicago, for instance, the estimated cost of living varies dramatically, from Loyola ($15K) to UChicago ($17K) to DePaul ($28K). This seems like a massive difference across a single city, and is the sort of thing that jumps out after even the most casual review of the numbers. It’s hard to see such figures and not suspect that something is wrong.

Closer to home, I noticed that the estimated cost of living for Cleveland-Marshall was approximately $4,000 less than that for my own institution, Case Western Reserve University, even though the two schools are only a few miles apart. This didn’t seem right — if anything, it’s cheaper to live near Case than it is to live downtown. And here again the reported data was wrong. The cost reported in the database was $16,000, and yet Cleveland-Marshall’s own website lists expenses of over $19,000. Case’s data, I’m proud to report, was accurately reported.

As noted above, the folks at Law School Transparency were quite responsive when I pointed out these errors. They pledged to double-check the numbers and post corrections as soon as possible. This is all to the good, but this is also work that should have been done before trumpeting the data to prospective law students and the press. Some numbers, such as CUNY’s $7,425 cost of living estimate or the $10K spread in living costs across schools in Chicago, should have been red flags that something was amiss. At the very least, it should have been obvious that the cost-of-living numbers they decided to post were not apples-to-apples comparisons. Law schools deserve criticism for their relative lack of transparency, as does U.S. News insofar as it publishes inaccurate information or presents a misleading picture of specific schools. But the self-appointed watchmen of law school transparency should be held to a high standard as well, and need to be more careful about presenting false or misleading information themselves, whatever the source.

UPDATE: The cost of living data has been updated on Law School Transparency’s website. Quite a few schools have moved around in these rankings quite a bit. LST’s Kyle McEntee also comments below.

SECOND UPDATE: NLJ reports on this story.

Activist groups of various political stripes are increasingly urging boycotts of companies not because of the companies’ own behavior, but because of the behavior or speech of those the companies patronize or support. The aim of such boycotts is not to affect corporate behavior as much as it is to create economic pressure on third parties or dry up support for political opponents. Former FEC Chairman Brad Smith has an op-ed in today’s WSJ on the danger of such “secondary boycotts” to civil society.

It’s becoming hard to know with whom one can do business.

We’ve been told that if you don’t like what Rush Limbaugh or Glenn Beck says on the radio, you should not only not listen to their shows, you should boycott businesses that advertise on their shows. We are told that if you don’t like the activities of the American Legislative Exchange Council—a nonpartisan nonprofit that provides a meeting ground for conservative state legislators to share ideas—you should boycott companies that support the council. . . .

All these examples are what are called “secondary boycotts”—attempts to influence the actions of the target by exerting pressure on a third party. Secondary boycotts should not be confused with primary boycotts. A decision not to patronize a business that discriminates on the basis of race is an example of a primary boycott. Primary boycotts—used to great effect during the Civil Rights Movement—have a long and often laudatory history.

But secondary boycotts have long been recognized as harmful to civil society. They rend the social fabric by making it difficult for people to simply live their lives.

The problem, in part, is that one boycott can lead to another. Progressive groups have gone after corporate supporters of the American Legislative Exchange Council because it supports voter identification requirements. Yet, as Smith notes, most Americans support such laws, so what would happen if conservative groups targeted corporations that support anti-voter-ID groups. The threat of such counter-boycotts is not merely hypothetical. Just as pro-gay marriage groups have targeted companies for donating to anti-gay marriage groups (even if the donations were for wholly unrelated reasons), anti-gay marriage groups have begun organizing boycott campaigns of their own. Progressive groups were able to get some advertisers to drop Rush Limbaugh, but some conservatives responded by encouraging boycotts of companies, such as Carbonite or Arby’s, that succumbed to such pressure.

Secondary boycotts are particularly destructive when they target groups for supporting political speech. As Smith notes, the point of such boycotts is not to alter primary behavior, such as ending discriminatory practices, but to dry up economic support of unpopular speech. “The power of ideas is abandoned for the power of economic coercion.”

If it’s acceptable to place economic pressure on those who support political ideas with which one disagrees, where should this principle end? Should employers be allowed to discriminate based upon political beliefs or contributions? If unions are encouraging boycotts of business that do not declare their opposition of Wisconsin Governor Scott Walker, should employers refuse to hire those who embrace the anti-Walker campaign? Notes Smith, “Any decision not to hire would be, in effect, a secondary boycott of the applicant. This type of thinking will almost certainly lead to the stifling of many valuable political ideas and innovations.” This doesn’t mean secondary boycotts should be illegal, but not everything permissible is also wise.

Secondary boycotts may seem like an effective tool for progressive causes, but they also entail substantial risks. The culture of secondary boycotts threatens to balkanize all of civil society along political lines, making it ever more difficult to espouse unpopular or minority views.

People have a right not to do business with companies or individuals. But blacklists—never a healthy part of political debate—endanger the very commerce that enriches us all.

Yesterday the White House released a new Executive Order on “Promoting International Regulatory Cooperation.” The stated purpose of the E.O. is to encourage the harmonization of regulatory requirements to simplify regulatory compliance, reduce costs for transational companies and facilitate international trade. As OIRA Administrator Cass Sunstein explains in a White House release:

The new Executive Order will promote American exports, economic growth, and job creation by helping to eliminate unnecessary regulatory differences between the United States and other countries and by making sure that we do not create new ones.

As I discuss in an op-ed in today’s Wall Street Journal, the order makes clear that in eliminating such differences, we will respect domestic law and will not compromise U.S. priorities and prerogatives. Even while insisting on those priorities and prerogatives, we can eliminate pointless red tape. Today’s global economy relies on supply chains that cross national borders (sometimes more than once), and different regulatory requirements in different countries can significantly increase costs for companies doing business abroad. As the President’s Jobs Council recently noted, international regulatory cooperation canreduce these costs and help American businesses access foreign markets. Such cooperation can also help U.S. regulators more effectively protect the environment and the health and safety of the American people.

Sunstein also made the case for the E.O. in the WSJ, providing an example of the sort of harmonization the Administration has in mind:

Today’s action builds on many other administration efforts to eliminate unjustified regulatory costs and to reduce burdens by promoting international regulatory cooperation.

One example: The U.S. has long required employers to use warning symbols to inform employees of potential safety hazards. Other nations require warnings, too, but in many cases they mandate the use of different symbols. The result of the disparate requirements is to impose pointless costs on those who do business in more than one nation. Why should chemical manufacturers have to create multiple labels for the same product in different countries?

To address this problem, the Department of Labor recently harmonized its labeling requirements with those of many nations around the world, a reform that is projected to save American businesses more than $475 million each year.

This E.O. seems to be a fairly standard good-government reform that could reduce regulatory burdens and facilitate compliance without altering substantive protections. SO it should be non-controversial, right? Apparently not. As RegBlog reports, Public Citizen argues the E.O. is a “smokescreen for deregulation.” It’s almost as if any measure to reduce regulatory costs is necessarily suspect, in and of itself.

The Center for Progressive Reform, a pro-regulatory group, is likewise suspicious. It attacked the Administrative Conference of the United States for co-sponsoring an event yesterday with the U.S. Chamber of Commerce on “Next Steps & Implementation of ACUS Recommendations on: Incorporation by Reference & International Regulatory Cooperation.” Even though the ACUS has urged greater attention to international coordination, teaming with the Chamber to support a discussion of the issue is apparently “over the line” because of the Chamber’s “enormously destructive crusade against regulation.” And yet this “crusade” was nowhere in evidence on the conference program. Most of the speakers at the event were federal government officials, including Sunstein who spoke about the new E.O. (The agenda is here.) Indeed, other than C. Boyden Gray, former U.S. ambassador to the E.U., and one Chamber official who moderated one panel, there was no one on the program who could be plausibly characterized as “anti-regulation,” and neither the Chamber nor Ambassador Gray is much of an anti-regulatory zealot. So the ACUS’ offense seemed to be no more than encouraging discussion of its own recommendations with those who are affected by regulatory harmonization. Sometimes it seems groups that self-identify as “pro-consumer” or “pro-environment” could be more accurately described as “pro-regulation.”

The Washington Post editorializes that the case for approving the Keystone XL pipeline was “always strong” and “has grown stronger.”

A key environmentalist argument against Keystone XL has been that the project would encourage the extraction of bitumen, a particularly dirty oil-like substance, from the “oil sands” in Alberta. If activists could “shut in” Canadian bitumen, limiting the ability of oil companies to sell the product, they argued, perhaps petroleum firms wouldn’t be able to fully develop the oil sands.

That hope always was unrealistic, and a recent announcement from Kinder Morgan, another pipeline company, illustrates why. The firm wants to nearly triple the capacity of its existing Trans Mountain pipeline between Alberta and Vancouver — a route from the oil sands to the world market — enabling it to carry even more product than the Keystone XL would. From there, much of it would probably head to Asia. Because the pipeline exists, expanding it may not face the same regulatory hurdles — particularly opposition from native groups — that other proposals to run new pipelines to Canada’s west coast have encountered.

There is already enough spare pipeline capacity running out of the oil sands to accommodate increasing production for much of this decade, a government report concluded in 2010. While Kinder Morgan’s expansion certainly wouldn’t sate all the future demand for pipeline capacity, it would add more time before the environmentalists’ strategy could seriously impact production. And it demonstrates a critical point: Even if environmentalists manage to stop one pipeline or another, given high world oil prices, the enthusiastic support of the Canadian government, the many transport options and the years available to develop infrastructure, it’s beyond quixotic to believe that enough of the affordable paths out will be blocked. Environmentalists might succeed, however, in relocating some construction jobs outside the United States.

The editorial also criticizes Republicans for trying to force the President’s hand. I think a better question is why this pipeline is subject to executive approval in the first place. The White House only has a say about Keystone XL because it crosses the U.S.-Canada border. Yet the stated reasons for not approving the pipeline — such as concerns about the potential environmental effect of a spill in Nebraska — have absolutely nothing to do with the pipeline’s transnational character and can be addressed through traditional regulatory controls and siting processes. Further, the legislation forcing an executive decision on the pipeline project expressly ensured state officials could alter the route to protect local environmental concerns. If there are no particular problems arising from the cross-border nature of this project, there’s no reason for the State Department to have any concerns — and it’s only the State Department’s review that is at issue. So before attacking the GOP for trying to force the President’s hand, the Post should ask how the President is able to hold up this project in the first place.

Earlier this year, the state of Texas adopted a rule barring organizations that promote abortions or affiliate with groups that promote abortions from participating in the state’s Medicaid-funded Woman’s Health Program. This rule effectively barred Planned Parenthood clinics from the program. In response, cut off funding for the state’s program, and Texas sued.

At the same time, the state’s Planned Parenthood affiliates also filed suit, alleging the restriction is unconstitutional. Yesterday, a federal district court judge issued a preliminary injunction prohibiting Texas from excluding Planned Parenthood clinics from the state program. Then, late last night, the U.S. Court of Appeals granted an emergency stay, temporarily setting aside the injunction. (The order is here.)

UPDATE: Here’s a link to the original order granting the preliminary injunction.

Following Louisiana victims of post-Katrina flooding, the Grand Ole Opry is suing the federal government over damage resulting from a 2010 flood of Nashville, claiming negligence by the U.S. Army Corps of Engineers was at least possible responsible for over $250 million in damage to the Opry and other buildings. The LAT reports:

Monday’s lawsuit is notable not only because one of its main plaintiffs, Gaylord Entertainment Co., is the owner of the landmark Opry and the nearby Opryland Hotel, but also because the plaintiffs will try to hold the government accountable using a strategy similar to one employed by a group of New Orleanians who successfully sued the Army Corps over the floods that followed Hurricane Katrina in 2005. . . .

In the Nashville case, plaintiffs argue that the flooding was caused by a botched handling of the Old Hickory Dam upriver. The suit alleges that the federal dam was congressionally authorized not as a flood-control project, but as a hydroelectric power and navigation project. As a result, it argues, the government should not be immune to a lawsuit.

The suit also alleges that the government failed to issue a proper warning of the danger.

The University of Texas at Austin has retained Latham & Watkins to defend its affirmative action policy before the U.S. Supreme Court in Fisher v. University of Texas.   The team of attorneys on the case includes former Solicitor General Greg Garre and former Deputy Solicitor General Maureen Mahoney.  It’s hard to think of a legal team more able to defend the university’s program.  Both Garre and Mahoney served in Republican administrations and, perhaps more significantly, Mahoney successfully defended the University of Michigan law school’s affirmative action program in Grutter v. Bollinger.   (Mahoney was also the subject of Supreme Court nomination buzz and has been characterized as the “female John Roberts.”  Some speculate her success in Grutter may have been a strike against her nomination.)

The decision to hire Garre and Mahoney is understandable, the size of the retainer has raised some eyebrows.  The choice to eschew representation by the state’s Attorney General and retain outside counsel will cost the University approximately $1 million — money the university insists will not come out of state appropriations or tuition revenues, but “discretionary funds” (as if the money isn’t fungible).  John Rosenberg comments:

Funny, I thought the taxpayers of Texas had already paid not inconsiderable sums to support a large and highly regarded law school at the University of Texas, a law school whose constitutional lawyers are no doubt well schooled in all the loopholes of anti-discrimination law — they do, after all, have both institutional and personal memory of their school’s effort to deny admission to Cheryl Hopwood (an effort, by the way, that was represented pro bono by Vinson and Elkins). In addition, Texans also already pay to support the office and large staff of the state’s Attorney General.

UPDATE: Some in the comments have asked how this fee arrangement compares with other recent instances in which government entities have hired elite Supreme Court counsel.  I don’t know what’s typical, but there have been several reports about the fees states and other government actors have paid Paul Clement for his recent work.  For representing over two-dozen states in the 11th Circuit and Supreme Court Clement received a discounted fee of $250,000.  I have not found a direct report on the fees for defending Arizona’s immigration law, but according to these reports, these fees are being paid from an outside fund set up to raise money to defend the law.  And Clement’s work for the House of Representatives defending the Defense of Marriage Act in multiple cases pending in lower courts was initially capped at $500,000, but has since been raised to $750,000 and could go as high as $1.5 million.

The Manhattan Institute’s Steven Malanga has an eye-opening WSJ op-ed on the depth of the looming fiscal dsiasters some states face due to public pensions.  As he describes it, the gulf between those states that have been (relatively) responsible and those that have not is huge.  For instance, Malanga reports, “Indiana’s debt for unfunded retiree health-care benefits, for example, amounts to just $81 per person. Neighboring Illinois’s accumulated obligations for the same benefit average $3,399 per person.”  As much as I love Chicago, I’m not sure I’d want to live there right now:

Dana Levenson, Chicago’s former chief financial officer, has projected that the average city homeowner paying $3,000 in annual property taxes could see his tax bill rise within five years as much as $1,400. The reason: A 2010 Illinois law requires municipalities to raise the funding levels in their pension systems using property tax revenues but no additional contributions from government employees. The legislation prompted former Chicago Mayor Richard Daley in December to warn residents that the increases might be so high, “you won’t be able to sell your house.”

Last week, Brian Tamanaha critiqued the LSAC’s decision to increase LSAT fees in response to a declining number of test takes and law school applicants.  The LSAC responded, and Tamanaha has fisked the response.

Via Brian Doherty comes this report of how a blogger got in trouble North Carolina Board of Dietetics and Nutrition for a website that explains how he came to love the paleo diet.  Because he answered readers’ questions and recommended the paleo diet the Board determined he was “practicing nutrition” without a state license, despite the existence of disclaimers on every page.

this past January the state diatetics and nutrition board decided Cooksey’s blog — Diabetes-Warrior.net — violated state law. The nutritional advice Cooksey provides on the site amounts to “practicing nutrition,” the board’s director says, and in North Carolina that’s something you need a license to do.

Unless Cooksey completely rewrites his 3-year-old blog, he could be sued by the licensing board. If he loses the lawsuit and refuses to take down the blog, he could face up to 120 days in jail.

The board’s director says Cooksey has a First Amendment right to blog about his diet, but he can’t encourage others to adopt it unless the state has certified him as a dietitian or nutritionist.

The Kaiser Family Foundation just released its most recent polling on health care reform — its first tracking poll since last month’s oral argument in the Supreme Court.  The poll finds little change in public opinion about the mandate.  A majority of respondents both want and expect the Supreme Court to strike down the individual mandate.  A majority also wants the balance of the law to be left intact.  One significant change the poll did find, however, is an increase in reported awareness of the health care reform law’s provisions.  The poll also found an increase in public confidence in the Supreme Court, largely driven by mandate opponents who appear to have been buoyed by the tenor of the oral arguments.

Here are the KFF release, summary, and the toplines.

In today’s NYT, Charlie Savage reports on how President Obama evolved from a fierce critic of unilateral exercise of executive power to a proponent.

As a senator and presidential candidate, he had criticized George W. Bush for flouting the role of Congress. And during his first two years in the White House, when Democrats controlled Congress, Mr. Obama largely worked through the legislative process to achieve his domestic policy goals.

But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts “We Can’t Wait,” a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies — on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more.

Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: “If Congress refuses to act, I’ve said that I’ll continue to do everything in my power to act without them.”

This is not a new phenomenon. Both Presidents Clinton and George W. Bush relied upon executive authority to advance policy initiatives Congress failed to enact, though sometimes these efforts were rebuffed in court. What’s interesting, notes political science professor William G. Howell in the story, is President Obama’s transformation on the issue.

Some of the President’s initiatives involve aggressive assertions of executive authority, many of which are likely to be challenged in court. The D.C. Circuit is currently mulling the legality of the Environmental Protection Agency’s effort to rewrite the Clean Air Act with its “tailoring rule” and a lawsuit is pending against the President’s recess appointments to the National Labor Relations Board. Other initiatives, such as the imposition of conditions on waivers from No Child Left Behind’s requirements, may be more difficult to challenge.

The story also talks about the politics of the President’s actions.

The unilateralist strategy carries political risks. Mr. Obama cannot blame the Republicans when he adopts policies that liberals oppose, like when he overruled the Environmental Protection Agency’s proposal to strengthen antismog rules or decided not to sign an order banning discrimination by federal contractors based on sexual orientation.

The approach also exposes Mr. Obama to accusations that he is concentrating too much power in the White House. Earlier this year, Senator Charles E. Grassley, Republican of Iowa, delivered a series of floor speeches accusing Mr. Obama of acting “more and more like a king that the Constitution was designed to replace” and imploring colleagues of both parties to push back against his “power grabs.”

But Democratic lawmakers have been largely quiet; many of them accuse Republicans of engaging in an unprecedented level of obstructionism and say that Mr. Obama has to do what he can to make the government work. The pattern adds to a bipartisan history in which lawmakers from presidents’ own parties have tended not to object to invocations of executive power.