The Volokh Conspiracy

I just got my ballots for Directors of the Harvard Alumni Association and Overseers of Harvard College. I know absolutely nothing about what issues are involved in these positions, nor do I want to spend much time finding out. The candidate statements provide no useful information on the subject. If I don’t get any information suggesting that certain people particularly deserve to be elected, or particular deserve to lose, I plan to abstain.

Does anyone have views on the subject? Extra useful if your reasons are relevant to my own views on the subject. Since I have no idea what issues are relevant to Harvard overseers or HAA directors, I don’t know what my views are. But as a rough approximation to what my views might be if I knew anything, you can guess based on the general tenor of this blog.

My law school friend David Markus wrote on Facebook that, as part of his Passover preparation, he had “charoset marinating.” A Facebook friend of his remarked: “Okay, so I haven’t been awake all that long, and I just spent a minute glancing dullishly at the screen wondering what a ‘marmoset charinating’ entailed.”

As a service to my Jewish friends, here’s what charination is and how it relates to the Passover holiday.

“Charinar” is a Ladino verb, a mixing of “chametz” (חָמֵץ‎) and “harina” (Sp. “flour”). It basically means “to make something into chametz by rolling it in flour.”

I know what you’re thinking, why would you want to charinate anything, let alone a marmoset? The roots of this are in the early 13th century, when the Judaeo-Catalan sage Nahmanides opined, in a widely circulated responsum, that just as it was mandatory to get rid of chametz in preparation for Passover, it was also forbidden to get rid of anything that was not chametz, as this would be improperly adding to the commandments (Deut. 12:32).

This view was ultimately rejected (of course today you can throw out doubtful items just in case), but for a brief time it put a premium on very precise categorization of what was and wasn’t chametz.

The trouble was that marmosets, which were a popular pet at the time, were definitely not chametz, and yet they had to be put outside because of the popular local superstition that marmosets were pleasing to Elijah (מרמוסט אליהו) and therefore had to be tied up outside to attract the prophet into the house.

So how do you get rid of a non-chametz marmoset? Make it chametz, of course, by charinating it. This led to the somewhat absurd spectacle of the small animals, all powdered in white, tied up outside houses in Jewish quarters. This provided fodder for numerous anti-Jewish polemics (of which Contra iudaeorum harinationem callithricum is the best known), until Nahmanides was forced to recant.

Nonetheless, some traditionalist families with Sephardic roots still engage in the practice, provided of course they have a marmoset.

I’m going to be presenting my paper “Why Do Judges Read Statutes?” at the American Law and Economics Association meeting at Princeton this May 7-8. A preliminary version is here.

Anyone have any information on cheap lodgings near campus?

The Emory Law Journal is having its 2010 Randolph W. Thrower Symposium on Thursday, February 11, from 8:30 a.m. to 4:30 p.m., in Tull Auditorium at Emory Law School in Atlanta.

The folks at the ELJ say:

The annual Randolph W. Thrower Symposium at Emory University School of Law gathers scholars from around the country to discuss pertinent legal topics. This year, the Symposium’s topic is The New New Deal: From De-Regulation to Re-Regulation. Speakers will be discussing the end of an era of de-regulation and the beginning of the first major period of government expansion and re-regulation in decades.

Participants include various Emory Law professors — Dean David Partlett, Victoria Nourse, Polly Price, Fred Tung, Robert Ahdieh, Martha Fineman, and Ani Satz — as well as other prominent legal scholars.

These others include my former colleagues Dan Ernst and Don Langevoort of Georgetown University Law Center, and (in no particular order) William Novak from Michigan, Barry Cushman from UVa, Jonathan Macey from Yale, Paul Verkuil from Cardozo, Samuel Estreicher from NYU, Michele Landis Dauber from Stanford, William Darity, Jr. from Duke, Frank Partnoy from University of San Diego, and William Forbath from Texas.

The topics are Re-Regulation and Government Expansion: A Historical Perspective, A More Visible Hand? The New Role of the State in the Financial Sector, and Building a More Responsive State.

You can register via the Emory site or at the door. The symposium is free. Georgia Bar members can get five hours of general CLE credit.

UPDATE: Corrected the name of the second panel.

I thought I’d share with you an op-ed I published on this occasion 13 years ago: History Shows Freedom Drives a Car. (The title was the newspaper editors’, not mine.)

UPDATE: Tim Sandefur has further comments here and here.

I’m teaching a class on Legislation & Statutory Interpretation next semester. I’m looking for a 20-30 page reading that I could assign to give students a basic overview of theories of representation. Ideally, it should cover both sides of the debate over things like: whether a legislator should represent his constituents’ interests or the public interest, one person one vote and counterarguments, majority-minority districts, and the parliamentary model vs. the American system. This will necessarily have to be a very superficial overview. The idea is not to get into all the details or the merits of the debate, but just to alert the students to the fact that these debates exist and have a basic sense of why they are important.

In March 1994, I was in the Georgetown Gilbert & Sullivan Society‘s production of Gilbert & Sullivan‘s operetta Patience.

You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.

In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.

Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.

Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.

Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.

Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse‘s illegitimacy has long been all-but-universally understood.”

All but!

Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of McDonald’s lawyers and the other lawyer’s law partner: “The pain that is all but a pleasure will change / For the pleasure that’s all but pain, / And never, oh never, this heart will range / From that old, old love again!” And MAIDENS embrace OFFICERS. Awww!

Or (see p. 28 of the libretto / p. 31 of the PDF), says Angela, commenting on the Major and the Duke: “Not supremely, perhaps, but oh, so all-but! (To SAPHIR.) Oh, Saphir, are they not quite too all-but?”

Perhaps Gilbert and Sullivan’s influence on the law now extends further than Iolanthe and Trial by Jury!

Cornell medieval historian Paul Hyams and I are organizing a panel called Law as Culture: Lordship, Profit, and Rationality at the 45th International Congress on Medieval Studies at Western Michigan University in Kalamazoo, which will take place May 13-16, 2010. The deadline for submissions is September 15, 2009. Instructions for submission are here. Here’s the call for papers:

Both economic and legal argument draws deeply on notions of reason and logic. These are found among ordinary men and women far from the schools. As economic historians document, medieval people (prudent peasants, as McCloskey puts it) were perfectly capable of responding to economic incentives. Moreover, law played a crucial role in shaping those incentives. We welcome proposals for papers that explicitly link legal history with economic history in explaining the dynamics of medieval life and culture.

Here are some examples of possible topics:

• The canon law generated regulations concerning Usury, the Just price etc. during the “long” Twelfth Century. Meanwhile, secular laws sought to regulate markets (through laws on forestalling, regrating, engrossing, Assize of Bread and Ale etc.) and boosted those on coining offenses. This sustained attempt to restrain economic activity through law must be largely explicable from the context of economic change against which it was made. How might the Legal Revolution (the whole or any part) and the rising “Profit Economy” (Lester Little) be causally linked?
• Why did England
  

I haven’t had time to post lately, but now let me return to my series of posts discussing the background of the Supreme Court’s “fleeting expletives” case from last month, FCC v. Fox Television Stations. Click here to see the whole string of posts, including this one, on a single page, in chronological order. (As usual, click here to watch George Carlin’s monologue if you haven’t done so already!)

In past posts, we’ve seen the evolution of the FCC’s policy on regulating expletives. Recall that the FCC’s statute, the Communications Act of 1934, has two sections that are somewhat in tension. First, we have the no-censorship provision, now codified at 47 U.S.C.

This is part of a series of posts discussing the background of the Supreme Court’s “fleeting expletives” case from last week, FCC v. Fox Television Stations. Click here to see the whole string of posts, including this one, on a single page, in chronological order. (As usual, click here to watch George Carlin’s monologue if you haven’t done so already!)

In the last post, I discussed the FCC’s 2004 rule on indecency, which altered its previous policy, mainly on the word “fuck.” For something to be indecent, it has to, first, refer to sexual or excretory activities. And, second, it has to be patently offensive, in context, according to contemporary community standards. This second prong (heh-heh) involves analyzing (1) the explicitness or graphic nature of the description of sexual or excretory activities, (2) whether the material dwells on or repeats the description of these activities at length, and (3) whether it appears to pander or titillate or was presented for its shock value.

On the first prong, the FCC found that “fuck,” in any form, always referred to sexual activities. And on the second prong, the FCC applied its three criteria and determined that its use on a nationally televised awards show was indeed patently offensive. (As an alternative ground, the FCC held that “fuck” was profane, another prohibited category.) Therefore, the material was “indecent,” and thus banned by the statute, even if it was only mentioned once and accidentally. (The previous policy had announced that isolated occurrences were of no regulatory concern.) Nonetheless, the FCC declined to assess a fine, because it was announcing a change of policy and thought the regulated community ought to have more notice before being fined — among other reasons, lest there be a chilling effect on speech.

That was the 2004 policy. About two years later, in March 2006, to give greater guidance to the regulated community, the FCC released a lengthy document analyzing dozens of particular cases, representing thousands of complaints. The document was divided into three parts: (1) cases where it found indecency or profanity and proposed monetary fines against the licensees, (2) cases where it found indecency or profanity but didn’t propose fines, and (3) cases where it didn’t find indecency or profanity. Here are some examples — I’ll focus on the ones involving speech rather than visual depictions of sex.

Since the Supreme Court has granted cert in Free Enterprise Fund v. PCAOB (see here), I thought I would share a summary of the facts of the case, which I prepared as a study guide for my Administrative Law class at University of Houston:

In 2002, following a series of accounting scandals that exposed weaknesses in the reporting requirements for publicly held companies, Congress passed the Sarbanes-Oxley Act of 2002 (“the Act” or “SOX”). Title I of the Act established the Public Company Accounting Oversight Board (“the Board” or “PCAOB”) as a new entity to oversee the audits of public companies. The Board’s purpose is “to protect the interests of investors and further the public interest in the preparation of informative, accurate, and independent audit reports for companies the securities of which are sold to, and held by and for, public investors.” In particular, the Act provides that:

The Board shall, by rule, establish, including, to the extent it determines appropriate, through adoption of standards proposed by 1 or more professional groups of accountants [which it shall designate] or advisory groups [which it shall convene], and amend or otherwise modify or alter, such auditing and related attestation standards, such quality control standards, and such ethics standards to be used by registered public accounting firms in the preparation and issuance of audit reports, as required by this Act or the rules of the Commission, or as may be necessary or appropriate in the public interest or for the protection of investors.

The five members of the PCAOB are appointed by the Securities and Exchange Commission (“the Commission” or “SEC”) after consultation with the Chairman of the Board of Governors of the Federal Reserve and the Secretary of the Treasury. Appointment is by majority vote of the five SEC Commissioners. Two PCAOB members must be or have been certified public accountants. After its members are appointed by the SEC, the Board assumes its responsibilities only upon the Commission’s determination that the Board has the capacity to carry out the Act’s requirements (i.e., that it is properly organized and has appropriate rules and procedures in place). The Commission alone determines whether the Board may “sue and be sued” in any court.

(As for the Commissioners themselves, all five Commissioners are appointed by the President with Senate confirmation. SEC Commissioners can be removed by the President for cause (i.e., for inefficiency, neglect of duty, or malfeasance). The SEC Chairman is selected from among the Commissioners by the President, and serves as Chairman at the President’s pleasure. The Chairman often dominates commission policymaking, controls the administrative side of commission business, selects most staff, and sets budgetary policy.)

A member of the Board may be censured or removed from office “for good cause shown” upon a finding by the Commission, after notice and opportunity for a hearing, that the member willfully violated the Act or abused authority, or failed to enforce compliance with a rule or standard without reasonable justification. The Commission is further empowered, by rule, to relieve the Board, consistent with the public interest, of any enforcement authority whatsoever, as well as, by order, to censure the Board and, after notice and opportunity for a hearing, to “impose limitations upon the activities, functions, and operations of the Board” upon finding that the Board has failed to abide by its statutory duties.

“No rule of the Board shall become effective without prior approval of the Commission.” To approve a rule, the Commission generally must conduct its own notice-and-comment proceedings. The Commission “shall approve a proposed rule, if it finds that the rule is consistent with the requirements of [the] Act and the securities laws, or is necessary or appropriate in the public interest or for the protection of investors.” The Commission is empowered to “abrogate, add to, and delete from” the Board’s rules “to assure the fair administration of the [Board], conform the rules promulgated by that Board to the requirements of [the Act], or otherwise further purposes of [the] Act, the securities laws, and the rules and regulations thereunder applicable to [the] Board.” The Commission itself is also empowered to promulgate rules in furtherance of the Act.

The Act requires auditors of public companies to register with the PCAOB by submitting applications to the PCAOB, filing periodic reports with the PCAOB, and paying fees to the PCAOB. The SEC may review the PCAOB’s accounting support fee rules and denials of regulation applications. The PCAOB may inspect accounting firms and release interim reports detailing any deficiencies in advance of its final conclusions.

When the PCAOB investigates a potential securities law violation, the Board must both inform the Commission and coordinate its activities with the Commission. If a company violates PCAOB rules governing the auditing of public companies, it will be subject to disciplinary actions and sanctions by the PCAOB. Any violation of PCAOB rules “shall be treated . . . as a violation of the Securities Exchange Act of 1934.” If the PCAOB determines, after investigation, that an accounting firm has committed a violation, it has the power to impose an appropriate sanction.

All Board adjudications are subject to the Commission’s de novo review, upon an immediate stay when an application for review is filed or sua sponte by the Commission. Sanctions imposed by the PCAOB are generally stayed pending Commission review of the inspection report. The Commission is empowered to “enhance, modify, cancel, reduce, or require the remission of a sanction imposed by the Board.” The Commission may alter or cancel a sanction imposed by the PCAOB if, “having due regard for the public interest and the protection of investors,” the SEC finds that the sanction is “not necessary or appropriate in furtherance of this Act or the securities laws” or is “excessive, oppressive, inadequate, or otherwise not appropriate.” Final Commission decisions are reviewable by the Court of Appeals.

Acme Accountants, an accounting firm registered with the Board and subject to an ongoing formal investigation, seeks declaratory and injunctive relief prohibiting the Board from proceeding, arguing that the structure of the Board violates various separation of powers doctrines. What arguments could Acme make, and how would those issues be resolved?

For two possible answers, read the case.

UPDATE: See Michael Greve’s article here.

This is part of a series of posts discussing the background of the Supreme Court’s “fleeting expletives” case from last week, FCC v. Fox Television Stations.

In the last two posts (click here to see the whole string of posts, including this one, on a single page, in chronological order), I talked about the FCC’s original policy against indecency on the airwaves, which the FCC explained and defended in its 1975 opinion against the George Carlin monologue (watch a version of it here if you haven’t seen it already), and which the Supreme Court upheld in its 1978 case, FCC v. Pacifica Foundation.

Now let’s flip ahead 26 years, to the FCC’s opinion, “In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the ‘Golden Globe Awards’ Program” (click here for a plain-text version).

On January 19, 2003, during NBC’s airing of the Golden Globe Awards, Bono said: “This is really, really, fucking brilliant. Really, really great.” The Parents Television Council complained, asking the FCC to levy monetary fines against the offending stations. The Chief of the Enforcement Bureau said the material was neither obscene nor indecent — and as to indecency, he found that Bono’s language “did not describe, in context, sexual or excretory organs or activities and that the utterance was fleeting and isolated.” PTC appealed to the Commission.

Tomorrow early morning, I’m off to the International Congress on Medieval Studies at Western Michigan University in Kalamazoo. I’m sticking around there through Saturday early afternoon.

Let me know, by e-mail or in the comments, if you’ll be there or if you think there are particular sessions or events that would be interesting.

Meanwhile, speaking of medieval things, enjoy the following St. Patrick’s Day comic (from two months ago), from Dinosaur Comics (h/t Language Log):

Oh, and, if you want to listen to the song “I’ve Got a Gal in Kalamazoo”, since sticking visuals and videos on the blog seems to be what I’m doing this morning, check out the following, though it’s not the best:

While I’m embedding videos, here are two songs that are making the rounds on Facebook.

First, “The Humans Are Dead” (also known as “Robots”) from the New Zealand group Flight of the Conchords.

Second, here’s a version of “Stand By Me” (not embedded, but go to the link) recorded on streets worldwide.

Here’s a nice video about the Smoot-Hawley tariff, the Great Depression, and protectionism generally. I should note that the idea that protectionism was a substantial cause of the Great Depression is not universally shared. But watch the video anyway, which has good history and good analysis of the ill effects of protectionism. From the folks at Freedom To Trade. (h/t: Tom Palmer)

This is part of a series of posts discussing the background of the Supreme Court’s “fleeting expletives” case from last week, FCC v. Fox Television Stations.

Last time, I discussed George Carlin‘s Seven Dirty Words routine and the FCC’s 1975 opinion that the routine was “indecent,” though not obscene, and thus prohibited under the Communications Act of 1934, which bars “obscene, indecent, or profane language” on the radio. For those of you who haven’t done so yet, you may want to take this opportunity to watch versions of the monologue here or here on YouTube.

The FCC later clarified that such language was not absolutely prohibited. Instead, the FCC was only trying, under a nuisance-type theory, to “channel it to times of day when children most likely would not be exposed to it,” and its declaratory order about the Carlin monologue was “issued in a specific factual context.”
The D.C. Circuit reversed in 1977. According to Judge Tamm, who wrote the main opinion for the court, the FCC’s prohibition was censorship, which is itself prohibited by the Act; and, “even assuming, arguendo, that the Commission may regulate non-obscene speech, nevertheless its Order is overbroad and vague.”

Chief Judge Bazelon concurred, but decided that the statutory ban on FCC censorship was limited by the prohibition, also in the statute, on “obscene, indecent, or profane language.” Thus, he found it necessary to actually reach the First Amendment argument; and, he decided, the Commission’s definition of “indecent” speech was unconstitutional.

Judge Leventhal dissented: First, it was important to protect children from exposure to indecent language, but “even assuming that children’s exposure to pornography is as inevitable as pornography itself, there is protection in disapproval, in the child’s knowledge that the pornography that is seen and heard is not approved by parents or society.”

And from the D.C. Circuit, the case went to the Supreme Court, which decided FCC v. Pacifica Foundation in 1978. (See here for the full text of the decision.)