It’s considered very likely that gay-marriage opponents will force a popular vote on this issue this November.  Same-sex couples won’t be able to marry until and unless that initiative is voted down.  Washington voters rejected an attempt to ban legal rights for gay families a couple of years ago, but “marriage” will be a tougher slog.

UPDATE: In case you missed it, you can watch the signing speech here.  It is powerful.

Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question “Why do you say things you don’t really believe?” he offered several replies.

First, he does no such thing. As he has said elsewhere, “I never say anything I don’t believe…. [I]f you hear me say something you can be absolutely sure that I believe it.”

Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.

Third, sometimes his views have changed. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now.” The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.

He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1985 when he was 31) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of “hostilities” in the War Powers Resolution.

You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.

Like Alford, I am sympathetic to all three and have no reason to doubt the first; his blog post goes on to other important observations.  But I want to add a comment on the question of where this notion that one speaks differently when one is in government than when one is purely an academic arises.  In Dean’ Koh’s speech, and in Professor Alford’s comment, the locus is the lawyer-client relationship.  Harold Koh is an advocate and, as he said in his UVA remarks (I was also in attendance), that distinct role sometimes means that he must accept that his clients will go for the “lawful but awful” alternative.  Moreover, there is a complicated question as to the hierarchy of legal advice – again, as he stressed, he is the Legal Adviser to DOS, but that makes him a very important lawyer amidst a group of also very important lawyers, including the DOD general counsel, the CIA general counsel, and many others – just in the national security field.

I am, as I indicated, very sympathetic to the position of the government lawyer or, really, policy-maker who must work to a position that is not entirely one’s own and must reflect other people’s views – and yet in the end be supported as the “position” of the administration.  That is hard for academics to swallow, as reactions to Harold Koh’s positions have sometimes shown; but, at the end of day, we academics live in David Lodge novels and have all the authority of the kibitzer. I of course include myself in that assessment.

One reason that the sense of betrayal and hypocrisy over positions that Harold Koh has taken as Legal Adviser has been so acute in some quarters, I believe, is that the academics indeed think of it as being a function of the lawyer-client relationship.  It’s a relationship that academics embrace, in one sense, but in another do not respect it – precisely because at bottom it seems somehow dishonest, insincere, and hypocritical even if a crucial aspect of an adversarial system.  In the context of “legal policy-making” in some loose sense rather than strictly part of the litigation system, it seems to be a bit of a dodge to reach conclusions at odds with one’s professorial declarations by reaching to advocacy for the client.

I don’t think this is the whole story, however.  The obligations at issue are more than just those of the attorney-client.  It is much more profoundly the obligations of a fiduciary – and those fiduciary obligations encompass policy makers in government who have no duties as attorneys.  One enters government at the senior policy-making role (including legal-policy of the kind that inevitably attaches to the general counsel positions, the senior DOJ and OLC positions, and others) as fiduciaries with a public trust.  It is democratically and constitutionally established by the election of the administration to which one belongs – and one is no longer a free agent, intellectually or politically.

One has to operate within the overall policies of this administration – and very often within the traditions, customary interpretations, formal and informal procedures, precedents, and prior decisions and understandings of the department and office.  This is not because it is legally binding strictly, because it might have nothing to do with “law” as such or “legal advice,” but because one is stepping into the shoes of, as Harold Koh once put it in remarking on his own office, a long line of predecessors upon whom others have relied.  The importance of fitting one’s own work within the long-run of the agency or department’s practices and judgments increases the legitimacy and trust that the public has in government; there are exceptions that require sharp breaks from the past, but the default position is that one operates as a fiduciary that looks to the past, sometimes long past, to the present administration and its decision-making, and to the preservation of the legitimacy of the office to the future and future administrations.

That is the obligation of a fiduciary – and it is far beyond the often merely instrumental obligations of the attorney-client relationship to advocate on a client’s behalf.  I have been impressed with Harold Koh’s concern to express that understanding of the role of senior government policy makers and lawyers.  I think he’s right about that, and right to emphasize it as a matter of good faith.  I hope that this understanding will carry over to future administrations, as well, of either party: it is part of the essential long-term coherence and legitimacy that makes democratic governance possible.  But it is far beyond the attorney-client relationship alone. It is a special form of agency, the agency of a fiduciary in a position of political authority.

[T]t is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was “effectively unavailable for pornography” until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854–55, 858 (5th Cir.1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of “obscene materials,” such as the films at issue there, and rejecting the defendant’s affirmative defense of “unclean hands”). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir.1982) (stating, in the context of copyright infringement of a pornographic film, that “[p]ragmatism further compels a rejection of an obscenity defense” because “obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether”). Compare Devils Films, Inc. v. Nectar Video, 29 F.Supp.2d 174, 175–77 (S.D.N.Y.1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and “commit the resources of the United States Marshal’s Service to support the operation of plaintiff’s pornography business,” holding that the films were “obscene” and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are “obscene” is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008).

Liberty Media Holdings, LLC v. Swarm Sharing Hash File AE340D0560129AFEE8D78CE07F2394C7 B5BC9C05, — F.Supp.2d —-, 2011 WL 5161453 (D.Mass. 2011) (Young, J.).

The conference – organized by the student-run Virginia Journal of International Law and the John Bassett Moore Society of International Law – will explore how to resolve conflicting legal norms found in the United States and abroad, particularly as domestic laws extend their reach beyond countries’ borders. ”Although domestic and foreign legal norms have always interacted, the particular issues that will be addressed during our 2012 symposium have yet to be given significant attention in legal scholarship,” said third-year law student Zach Torres-Fowler, managing editor of the Virginia Journal of International Law.

The keynote speaker for the conference will be the Honorable Harold Koh, Legal Adviser to the State Department, speaking at 9 am Friday; and the day’s panels feature many leading professors.  If the sponsors post up podcasts or video, I’ll come back and link to it later, but I believe papers from the conference will be published by the Virginia Journal of International Law.  The topic has always been around, but is an increasingly important one – conflicts of norms and how courts around the world should resolve them.  Leaving aside the much discussed question of constitutional norms and foreign courts, the whole body of “ordinary” law presents many conflicts questions in novel areas.

For example, the Second Circuit ruled against Chevron in its on-going dispute with Ecuadorian plaintiffs, and the US court talked about “comity” and respect for other legal systems in its opinion.  In other cases, on the other hand, many involving the Alien Tort Statute (which, as my earlier post noted, will be revisited by the Supreme Court), US courts essentially ignore local courts or courts that plainly have a closer nexus of jurisdiction in favor of jurisdiction of US courts found under the ATS.  As the amicus filings of Germany, the UK, and the Netherlands indicate in the Kiobel case – revisiting the ATS in the Supreme Court this term – this creates considerable friction with other states.  But there are many other situations that weren’t really seen in earlier periods – libel tourism, for example, and the clash of free expression and libel norms between the US and the UK.  So although the topic of conflict of legal norms appears quite abstract, it actually takes up some of the most pressing issues among court systems of the world.

I’ll be moderating one of the panels – and I had better get on the road down to C’ville.  Hope to see you there!

The withdrawal of U.S. forces from Iraq in December has moved the CIA’s emphasis there toward more traditional espionage — monitoring developments in the increasingly antagonistic government, seeking to suppress al-Qaeda’s affiliate in the country and countering the influence of Iran.  In Afghanistan, the CIA is expected to have a more aggressively operational role. U.S. officials said the agency’s paramilitary capabilities are seen as tools for keeping the Taliban off balance, protecting the government in Kabul and preserving access to Afghan airstrips that enable armed CIA drones to hunt al-Qaeda remnants in Pakistan.

As President Obama seeks to end a decade of large-scale conflict, the emerging assignments for the CIA suggest it will play a significant part in the administration’s search for ways to exert U.S. power in more streamlined and surgical ways.  As a result, the CIA station in Kabul — which at one point had responsibility for as many as 1,000 agency employees in Afghanistan — is expected to expand its collaboration with Special Operations forces when the drawdown of conventional troops begins.

This seems to me the right strategy, particularly for addressing transnational terrorism, and in any case is almost certainly where the center of American public opinion stands with regards to both conflicts.  But we should probably add two things.  First, in Afghanistan – the strategically more important theatre – the CIA’s role is likely to be much more than simply gathering intelligence and engaging in paramilitary strikes, either using drones or its agents and Special Forces teams.  It is likely to be deeply involved in the coordination and funding of various local Afghanistan forces – in something that I suspect will look, in terms of the Agency’s historical role, much more like reversion to the mean.  Proxy forces integrated with gathering intelligence that enable drone and special ops strikes, but also utilized a forces able to help prevent consolidation of a regime that might provide safe haven for transnational terrorist groups, resurgent Al Qaeda or offshoots.

Second, it cannot be repeating sufficiently that the highly successful strategy of drone strikes and special ops owes its conversion from merely a tactic – and one that risked the “whack a mole” weakness of a tactic repeated serially – into a genuine strategy to the role of dense, often ground-level and human intelligence.  Leaving the CIA behind is a way of preserving that vital intelligence network, in addition to its paramilitary capabilities.  As someone once described it, the CIA in Afghanistan will be like the French Foreign Legion – last one to leave, if ever; the force that covers the rear of a strategic retreat under fire.  Or, going back to Miller’s article, as Navy Adm. William McRaven, remarked Tuesday, “I have no doubt that Special Operations will be the last to leave Afghanistan.” I have no doubt, either.

(By the way, I am looking forward to reading Michael A. Innes’ new book on proxy warfare when it appears in May, Making Sense of Proxy Wars: States, Surrogates and the Use of Force, with a forward by the eminent national security law scholar William C. Banks.)

After Judge Walker’s opinion, for example, a lot of commenters thought Walker was particularly clever for announcing rather aggressive findings of fact that seemed to bleed over into the legal issues; the thought was that Walker could force the higher courts to see things his way because facts ordinarily are reviewed under the “clearly erroneous” standard instead of a de novo standard. After Reinhardt’s opinion, a lot of commenters have suggested that Reinhardt was particularly clever because he framed the issue narrowly under Romer, avoiding the broader questions of gay marriage.

I have no idea what the Supreme Court might do in the Perry case. But my own sense is that Judges Walker and Reinhardt are not quite as clever as some people seem to think. Or, at the very least, the reasoning of their opinions don’t really matter very much. First, I think it’s unlikely that the particular reasoning of either opinion will have a substantial influence on the Justices. The issues in Perry are extremely important, and they’re the kind of issues that force the Justices to fall back on first principles. The details of how the lower courts reached the results they reached matter a lot less in that kind of case than in an ordinary case. Consider how Judge Reinhardt dealt with Judge Walker’s extensive factual findings: He basically ignored them.

Second, to the extent the reasoning of the lower court decisions matter — which, as I said, I tend to doubt — the fact that both opinions are widely understood as advocacy briefs to Justice Kennedy from judges who are same-sex marriage supporters probably hurts the same-sex marriage cause more than helps it. The Justices aren’t dumb: They get it. And when they get the sense that the lower courts were crafting their opinions to try to maneuver a single Justice into a desired result in such a high profile case, that kind of heavy handedness runs a risk of backfiring. It creates a sort of patina of unreliability. I think a more clever strategy would have been to be more subtle: Create more of a sense of the opinions as routine legal opinions and less as advocacy briefs. And if you’re Reinhardt, make the opinion “per curiam” so it doesn’t come to the Court with your name on it.

The book is also the subject of a more critical book review in Texas Law Review’s “Dicta” on-line journal.  Author Jamie Fletcher concedes that the book is “beautifully written,” but concludes that I ultimately failed in what he asserts are my normative goals.  Given that I actually disagree with many of the positions that Fletcher  attributes to me (such as believing that “libertarianism is the only legitimate theory of constitutionalism”–I doubt it’s even a legitimate interpretive theory for the American Constitution) and certainly didn’t advocate these positions in the book, I happily plead guilty to failing to persuade readers on those points.

Karla Ford and Jonathan Chan expected to be spending this year studying legal briefs and litigation as second-year law students at Texas Southern University’s Thurgood Marshall School of Law. Instead, last spring, both students were dismissed after getting a D grade in their Contracts II course.

Now, the two are suing the school and their former professor, saying their final grade was “arbitrary and capricious.”

Today I received the following e-mail from Connell’s lawyer, Thomas Neuberger:

“All claims amongst all parties have been resolved amicably and Professor Connell’s employment with the University and Law School has been concluded. Specific terms of the resolution are confidential. So, we have no further comment.”

So the civil case is over, and Connell has left Widener. I sure would like to hear more as to what actually happened at Widener that led to the charges in the first place.

Putting aside the lack of a federal question, it seems a tad unfair to ignore the trespass before pressuring the parties to settle in way so favorable to the trespasser. But I suppose it’s nicer to hear the case than just deny cert as factbound and splitless. Hat tip: How Appealing.

According to Reinhardt’s opinion, this dooms Prop 8. The rational basis test requires some theoretical reason to think that the Amendment might improve society in some way. The gist of Reinhardt’s opinion is that a symbolic law like Prop 8 can’t improve society because it doesn’t make any actual difference. As a result, even if there are lots of rational reasons to ban same-sex marriage generally, it is irrational to forbid only the symbolism of the word “marriage.” Finding no rational utilitarian reason to forbid the word “marriage,” Reinhardt concludes that the law fails the rational basis test and must have been passed to express animus towards or disapproval of homosexuality.

I don’t find this argument persuasive. Prop 8 was a direct response to a judicial decision by the California Supreme Court. One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court’s decisions in the future. Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.

To see this, imagine you’re a California voter and you’re not sure if you think the state should recognize same-sex marriage. Then the California Supreme Court hands down the Marriage Cases, announcing by judicial fiat that the state constitution protects same-sex marriage. “There goes that activist California Supreme Court again,” you think to yourself, “interfering with the rights of the people to pass laws the democratic way.” You decide you want to teach the Justices a lesson. How can you do it? One way is the Rose Bird strategy: You can wait until a future retention election and vote the Justices out of office. But a second way is to support a voter initiative overturning the decision, even if only as a symbol that the California Supreme Court overstepped its bounds.

This is not only a hypothetical. Although I’m no expert on Prop 8, a quick google search confirms that this argument was made by at least some influential supporters of Prop 8. Here’s Newt Gingrich making the case that Californians should support Prop 8 to stop the imperial tyranny of activist judges and to restore democracy in California:

Different people will disagree on whether Gingrich’s argument is persuasive. But I would think the argument is at least rational under the standards of the rational basis test. And it doesn’t seem to have anything to do with animus towards or disapproval of homosexuality.

UPDATE: Based on a quick skim, Reinhardt decided that the Supreme Court wasn’t ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer AMK a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt’s reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court’s Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case. I assume Reinhardt is figuring that this either will work or at the worst might buy some time: If the Supreme Court grants cert and reverses on the merits, on remand the case presumably goes back to the same panel. On remand, Reinhardt can then strike down Prop 8 again, but this time under a broader theory along the lines of Judge Walker’s opinion below. That would take a few years, though, keeping the issue alive in the meantime — giving the social attitudes more time to develop, more states time to change their laws, and possibly more time for a change in personnel at the Court.

[L]ast week real estate agents in Los Angeles, California, were ordered to stop using helicopter drones to shoot aerial movies of properties they are selling. “Although the FAA allows hobbyists to fly model airplanes for recreational purposes, that authority does not extend to operators flying unmanned aircraft for business purposes,” the Air Division of the Los Angeles police department reminded the California Association of Realtors.

I would be interested if readers knowledgeable in the regulatory law in these areas would let us know in the comments whether the LAPD is correct or not in this view.  I’m not expert in these areas and have no reason to believe it is not a perfect valid order, but would be interested in what expert readers have to say about it.  But the whole of the New Scientist article is well worth reading, to understand just how far drones are already entering civilian, and not only military, uses and how far they will go in the near future. (And I see now that Instapundit has linked the same article – that’s because great minds think alike.)

UPDATE: And speaking of commercials, some have already sparked controversy. Ford is unhappy about GM’s 2012 Mayan Doomsday ad. Also, an ad GOP Senate candidate Pete Hoekstra is running during the Super Bowl on Michigan stations has also sparked controversy.

I’m not an expert on this area of the law, but the Georgia judge’s reasoning, which echoes the reasoning of a 2009 Indiana Court of Appeals decision strikes me as quite persuasive, as does the much more detailed reasoning in a Nov. 2011 Congressional Research Service report, which reaches the same result.

UPDATE: I originally accidentally omitted the link to the Georgia administrative judge’s ruling — I’ve now added it above.

The task of defending the humanities is difficult not merely because its academic guardians have by and large failed or given up on the intellectual underpinnings, however.  A big part of the problem is that the collapse of the disciplines in their traditional sense has convinced many that the basic problem of the humanities is not that they are badly taught, but that they do not, or no longer, speak to the ‘truths’ of the world.  One economist friend who shares my love of Stendhal remarked to me that it is not that Stendhal is not revelatory of the “world”; it is, rather that literature, as revelatory of human nature and the human world is anecdotal and personal, whereas today we have social science and data. The taste for story, narrative, and literature remain, but merely as taste, not truth. Indeed, he might have continued, we could probably come up with good evidence that our undeniable taste for story and narrative is the product of a biological wiring that seeks to impose order on the world in the form of a narrative; how, then, are we to see Julien and Mathilde as “revelatory,” given that they, too, are narrative par excellence? The same for criticism and the genres of thinking associated with the academic disciplines of the humanities that seek to explicate and interpret; one might as well return to Freud.

This is not, note, the customary criticism of the “useless” humanities that these are disciplines that don’t produce an obvious rate of return. This new dismissal of the humanities is distinct from the problem of trying to see their value in commercial life. After all, as Tyler Cowen pointed out in one of his finest early books, the most vibrant pursuits of the humanities – pace the prejudices of many humanities professors – are often the product of the most vibrant commercial societies.  Why?  Apart from having a society rich enough to support so complex a division of labor in a strictly material sense, I suppose it’s the relation of sense and sensibility. So much of a vibrant commercial life seems on the surface to consist of “sense” – doing the accounting and figuring the rate of return. Yet the stuff for sale, from ephemeral fashion to the design of the great public infrastructure, is actually “sensibility.”

The role of the humanities in this kind of vibrantly commercial society, one which celebrates the high arts and the low arts, high culture and pop culture, is to bring to bear sense upon sensibility, to provide the tools by which to analyze sensibility.  Part of which is culture for its own sake, but part of which serves, intentionally or collaterally, to more effectively sell sensibility.  Making sense of sensibility seems to me the fundamental task of the humanities; for one to care about that task, really care, one has to think that sensibility is something more than merely ephemeral and contingent taste.  Something more than exogenous preference, if you like.  One of the biggest problems today, in other words, is that we simply don’t much believe that the analysis of sensibility says very much, not merely because the humanities disciplines aren’t very good at their own traditional tools, but instead because there isn’t much at bottom to say about preference and taste.  Curation and categorization?  Sure. Analysis? Not really.

There are two different currents here. One is the humanities as disciplines giving up on delivering answers and, in their academic emanations, coming very close to giving up on reason as such. Apart from anything else, it is a position that leaves academic departments ill-equipped to accomplish the proposition on which universities sell these departments, the ability to teach broad analytic and thinking skills to undergraduates, both as a practical life skill and as a public good.

The other is partly an independent phenomenon and partly a move to fill a disciplinary vacuum created by the humanities’ academic collapse. It is, unsurprisingly, the rise and rise of social science as a claim to empirical explanation of human nature, on the one hand. And rationalist economics, on the other, providing a deductive structure that applies an elegant (in one sense) and brutalist (in another) reductivism that strips human motivation down to a simple machine that takes the raw materials of desires and runs it through, first, a narrow rational choice modeling, finally to be polished up and modified a bit by a little behavioral economics to adjust for “real” human beings. It’s as though the way to explain human beings is to put together a model that mimics the behavior of a human being and tweak until it can’t be distinguished from the human being: a Turing Test for social science modeling. Or maybe a Turing Test for being human. It’s only the humanities that gave up on the search for truths about human beings in the world. The economists and the geeks of social science never gave up the search, and they (and we) seem to have concluded that the answers are located in purely technical subjects through purely technical thinking. Or at least we behave that way.

It is possible, of course, that this turns out to be true.  Human psychology explained by increasingly ramified forms of behaviorism.  I doubt it – I think, rather, that one of these days we will conclude that our current reductionist forms of explaining human beings are too reductionist, and that today’s austere and “on the surface” behaviorism turns out to be as mistaken as the baroque multiplication of psychological entities that characterized Freud and psychoanalysis.  But leave that aside; the consequences for the humanities of turning to purely technical subjects for human understanding are grave.  To start with, the new social scientists and economists, working within the deliberately flat and barren propositions internal to their disciplines, strongly bounded rationality, have no larger frame of intellectual history in which to situate themselves, as part of the history of ideas, as something which is not entire of itself.  There’s a name for the temptation to which it gives rise, one we learned in classes in literature and classics: hubris.

It means, for another thing, that the humanities as disciplines, while they might still (barely) be a way of teaching certain forms of reasoning, don’t provide “content” in the intellectual reproduction of commercial culture – at least, not at the fundamental level, at the level of science and applied science.   They are not part of the production of new knowledge.  Success and advance for society lie in the innovations of technical and applied sciences alone – and the humanities lose a place in the production of these innovations, and become relegated to the status of mere items of consumption.  Literature, the arts, criticism, the essay – their social significance lies solely in their role as entertainment.  Entertainment is what one does in one’s free time, for fun. It is dispensable, and the humanities, too, their raw materials and their analytic products, likewise are dispensable. We didn’t use to think this about the humanities, its products, disciplines, and academic efforts. But that’s where we are now: fantastically produced and expensive, but their deliverances no longer can claim to reveal anything very important about the world.  That role has been ceded to STEM; and, well, The Rest is Noise.

The Revista closed because its patron, the Caja de Madrid, is one of the regional Spanish thrifts that has run into trouble – Spain having a particular economic trouble in that its national banks weathered the crisis well, but its regional thrifts financed Spain’s construction boom and bust. The economic trouble is linked to a particular political trouble in that the national banks were well supervised by national authorities, while the regional thrifts benefited from the perennial conflicts between national authority in Spain and the regions.  I suppose that if I were, say, British, and given my general views on the necessity of a demos for democratic governance, I would probably be a Euroskeptic.  But in fact the European project has pulled off several near-miracles, one of which is the integration of post-Franco Spain back into, well, civilization.  Elite cultural institutions like the Revista are part of that consolidation and its closure is an enormous loss.

The Revista’s closure prompts me to one general comment about book reviews.  The collapse of so many stand-alone book reviews as well as newspaper book sections has left a gap in the intellectual genre of criticism.  The kinds of book discussions that we often have in blogs is great – inviting authors to present their new books in blog posts, or online roundtable discussions with an author of a new book.  These are terrific new ways of presenting the ideas in books made much more accessible by blogs and online resources.  But they also have limitations, and one of the most important of these is, to put it baldly, the presence of the author directly on the stage of discussion.  Offering a comment on a book in which the book’s author will immediately respond changes considerably the sensibility that one brings to making the comment.

The book review as a genre of “criticism,” by contrast, depends upon a critical distance from the author in order to focus upon the book.  It is hard if not impossible to do if the author as a living presence is hovering nearby.  All these genres, the new and the old, have their places, but it is harder than it used to be in part for lack of outlets, especially when the new online resources see their advantage in the ability to bring the author into the discussion directly.  I’m unusual in the academic world in liking to write book reviews; I like to read books and like to write about them.  And I like reading and writing the sophisticated, polished reasonably short book review essay as its own genre.  Most academics see book reviews as a waste of time – not taken seriously in the academy, and are not worth the effort.  I agree that is all how it is – but alas, if I were honest about the writing I’ve done that I most like, it’s the highly polished, sentence by sentence edited and revised, review essays I’ve written for the Times Literary Supplement in particular.  I don’t think it has ever done anything for my academic career, even in the handful of cases when the essay was widely noted in the academy, but I think it’s much of my own best work and the stuff I most like.

So I was excited when the Lawfare national security law blog invited me to become the book review editor; short of becoming editor of the TLS or the Boston Review, this is something I’ve always wanted to do.  But Lawfare is not really a blog; it’s a highly edited online journal, run by a long-time journalist with serious editorial skills, and the editors agreed that we should aim in this particular subject area to reinvigorate the traditional book review essay, at whatever length.  I’m really pleased with this; reviewers have enthusiastically welcomed the instruction to write as though for a traditional book review, and to expect serious substantive and copy editing.  My larger point, however, is that the traditional book reviews cultivated a particular genre with a particular sensibility.  The best of the genre had a certain analytic toughness, and it has been harder to come by with changes in media platforms.

In a recent interview with Egyptian television, Supreme Court Justice Ruth Bader Ginsburg insulted the U.S. Constitution and advised Egypt to look somewhere else when drafting its own constitution. Justice Ginsburg was asked to give insight on this crucial topic for the post-Mubarak government but focused more on liberal human rights, rather than traditional American freedom.

When describing the nature of a constitution, Justice Ginsburg did appropriately recognize the importance of a constitution and the duty of the citizens to defend it. Justice Ginsburg did not, unfortunately, take her own advice. She undermined insight of its crafters and stated, “I would not look to the US Constitution if I were drafting a Constitution in the year 2012.” Instead, Justice Ginsburg referred to the constitutions of more supposedly progressive countries, like South Africa, Canada, and the European Convention on Human Rights. She stated, “I can’t speak about what the Egyptian experience should be, because I’m operating under a rather old constitution.” This directly refutes the U.S. Constitution’s relevance today.

For a United States Supreme Court Justice, entrusted with the duty to interpret the Constitution, this type of statement is unacceptable. Justice Ginsburg failed to respect the authority of the document that it is her duty to protect. When given the opportunity to promote American liberty abroad, Justice Ginsburg did just the opposite and pointed Egypt in the direction of progressivism and the liberal agenda.

Mathew Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law, said, “For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg’s comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”

This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today?

To be sure, our Constitution has the merit of having endured with only one really huge constitutional crisis — the Civil War — for a long time, and of having produced a very rich and free country; that’s good. But much of that, I suspect, comes not from the constitutional text, but from the constitutional traditions that have emerged since then, both in the courts and elsewhere; adopting the U.S. Constitution would not adopt those traditions.

And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions — for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own states’ constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesn’t tell us that it would work well for Egypt for the coming years.

Nor do I think that there’s something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it’s just sensible and sensibly (not excessively or falsely) modest.

And, returning to my first point, none of this tells us whether Justice Ginsburg is committed to following the U.S. Constitution in the U.S. Maybe you think she is so committed and maybe you think she isn’t, but you’d have to figure that out from other sources than from the advice she gives to a different country about whether to adopt the constitutional text in a completely different political and legal requirement.

every common citizens KNOWS what the SCOTUS ruled. leave it to the know nothing know it all lawyers to think they’re better than you.

And I would have gotten away with it, too, if not for commenter Christopher K.

The requirement in ORS 475.323(2) to return marijuana likely is preempted by provisions of the federal Controlled Substances Act that prohibit the distribution and possession of marijuana….

Based on the reasoning in Emerald Steel [a recent Oregon Supreme Court decision], the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution…

Question …: Assume an individual is arrested and has a lawful amount of medical marijuana under Oregon law in his or her possession; the individual is lodged at the county jail; and the jail staff inventories and stores the individual’s marijuana along with the individual’s other personal possessions for safekeeping. If a jail staff member returns the marijuana to the individual upon the individual’s release from custody, does the jail staff member or the individual, or both, violate federal law?

Short Answer: Based on the reasoning in Emerald Steel, the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution. The recipient of the marijuana would violate federal law by possessing marijuana and also may be subject to federal criminal prosecution.

Sounds right to me, given the continuing federal ban on marijuana possession and distribution, with no medical marijuana exception. A state may, by excluding possession for medical purposes from state marijuana laws, choose to ignore medical marijuana possession (and distribution, to the extent that is legal under state law). But it can’t affirmatively give medical marijuana to someone, even in the process of returning the property to its owner.

Note: If you want to condemn — or praise — the AG’s analysis, please read the opinion first. The AG’s job, after all, is to describe what the law is, given the existing precedents, not to revert to first principles about what the law ought to be.

What went wrong for SOPA, the entertainment industry’s proposal for stopping international piracy? And what does it mean for Hollywood’s future clout in Washington?

I had a ringside seat for the battle over SOPA, though not as a supporter.  I thought it would make Internet users more vulnerable to cybercrime. That was a problem that could have been fixed.  Instead, after a brief halt and some modest changes, the entertainment industry decided to press for a showdown.

And a showdown, of course, is what it got.

Why did it turn out so badly? The entertainment industry’s first mistake, then and now, is believing that its adversary is a group of other companies — Google, Internet service providers, and others — who are somehow hoping to profit from the Internet travails of the entertainment industry.

In fact, the industry is fighting what amounts to a new popular culture.

Unlike the old pop culture, this one is largely independent of the music, movie, and broadcast industries. In fact, people who spend hours on line instead of watching TV or going to movies will probably encounter the entertainment industry only when Youtube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood’s bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone.

To the entertainment industry these episodes may seem like collateral damage in the fight to stop piracy.  To the new pop culture, though, collateral damage and misuse of enforcement tools is everywhere, and it threatens everyone.  The content industry has made itself into the villain. Increasingly it looks like an occupying power; obeyed at gunpoint, despised for its hamhanded excesses, and resisted from every dark corner.  Unfortunately for the entertainment industry, as its customers migrate to the Internet, it loses not just their money but their hearts and minds as well.

The industry’s miscalculation about the source of the resistance to SOPA may have led to an even bigger mistake.  As long as the campaign for better IP enforcement was an inside-the-beltway, company-versus-company struggle, it could be fought within the Congressional judiciary committees, where both Republican and Democratic politicians were wooed and won as individuals. As a result, strengthening intellectual property enforcement has been a bipartisan issue for the last 25 years.  But when the fight went from the committees to the floor, and Wikipedia went dark, every member of Congress was expected to take a stand.

The two parties reacted very differently. Despite widespread opposition to SOPA from bloggers on the left, Democrats in Congress (and the Administration) were reluctant to oppose the bill outright. The MPAA was not shy about reminding them that Hollywood had been a reliable source of funding for Democratic candidates, and that it would not tolerate defections.

But that very public message also reached another audience: Tea Party conservatives. Most of them had never given a second’s thought to intellectual property enforcement before coming to town. But many had drawn support from conservative bloggers.  They began to ask why they should vote against their Internet supporters to rescue an industry that was happily advertising how much it hated them. Pretty soon, far more Republicans than Democrats had bailed on SOPA, and the Republican presidential candidates had all come out for what they called “Internet freedom.”

That’s what really ought to worry the entertainment industry. For Republicans, opposition to new intellectual property enforcement is starting to look like a political winner. It pleases conservative bloggers, appeals to young swing voters, stokes the culture wars, and drives a wedge between two Democratic constituencies, Hollywood and Silicon Valley.

We’ve seen this movie before.  Immigration reform and the DREAM Act, free trade agreements, and the USA PATRIOT Act all commanded impressive bipartisan support. For a while. Now, not so much. Bills on these topics still come to the floor, and they sometimes even pass, but only after endless partisan point-scoring and amendments driven by talk radio and mass email. The same could soon be true of intellectual property enforcement.

With SOPA, the entertainment industry pushed a generation of Republicans into choosing sides between Hollywood and the Internet.

They may never look back.

While I’m on the subject, talk about culture clash: I’ve written two SOPA op-eds, for Politico and Hollywood Reporter, and both have been put without notice behind paywalls. That’s never happened to me before, and it seems a little odd. Sure, it must sound good to the publishers, at least for a while.  But they aren’t paying op-ed contributors in gobs of cash, or in massive circulation.  They’re giving circulation to the contributors’ ideas.  Or not, in the case of the paywalled publications.

Contributors who actually care about communicating to the public have to wonder why they should offer content to an outlet with such a policy.  That only makes sense to contributors who have a strong reason to communicate just to the elite audience that pays to get these highly specialized publications — lobbyists or studio execs in the case of Politico and Hollywood Reporter. It makes sense, in other words, only to contributors who see their op-eds as an alternative form of targeted advertising.

Nothing wrong with that, either, except that it means the subscribers who pay for the publications have to read even the op-eds with their hands on their wallets, wondering, “Now why did he want me, and only me, to read that?” Ironically, then, in the long run the paywalled op-eds are less valuable than op-eds that appear for free.

UPDATE: The Hollywood Reporter assures me that the paywall is temporary — likely to last only a day or two while they’re promoting the new issue.  So, uh, never mind.  When the public link is available, I’ll add it.

UPDATE 2: Done.

To read the review, go to this link, click on the February 2012 issue, and go to page 20.  Links to other reviews available online can be found here.

I should note that I’m skeptical of the claim that either a man or woman is likely to be “doing [one's] morning exercises” when wearing shoes with a 2.5 inch heel, though that surely doesn’t mean that the plaintiff was indeed guilty of disorderly conduct.

Virtual amulet and mask in the online game Runescape can be regarded as ‘good’ in the sense of Art. Sr and 310 are susceptible to theft. Suspect and co-defendant forced the victim to violence and threats of violence to login to his account in the online game Runescape and virtual objects to leave (dropping) in the virtual game environment. The suspect was then the virtual amulet and mask to transfer to his own Runescape account, making the victim the power to dispose of these objects is lost. These virtual objects, which the actual victim and exclusive sovereignty had had for him, suspect and his accomplice a real value. In light of the intent of the legislature to the disposal of the holder of a ‘good’ protection, and the earlier case as including non-physical objects can fall, the Supreme Court held that the virtual nature of the objects itself does not preclude the state to be regarded as good in the sense of art. Sr. 310. The mere fact that an object also has properties of ‘data’ in the sense of Art. 80quinquies Sr. does not mean that this object has therefore not as good in the sense of art. 310 Sr can be considered. In borderline cases where non-physical characteristics of both a business ‘good’ as ‘data’ show, the legal interpretation depending on the circumstances of the case and their valuation by the court. The complaint that the removal of the virtual property of another is precisely one of the goals of the game Runescape is bounce up to it that the rules do not provide the suspect and his accomplice followed method of removal.

For the full decision as translated by Google, go here and scroll down a bit.

Why is opinion so divided? My pet hypothesis is that most people recognize two competing narratives when it comes to police-citizen interaction. The first narrative is what you might call the equality narrative. The equality narrative posits that the police are just citizens who happen to wear uniforms, and they have no more right to get their way than anyone else. If an officer asks a person questions, for example, he doesn’t have to respond. Unless the officer orders him to stay put, he can walk away.

The second narrative is what I’ll call the inequality narrative. The inequality narrative posits that the police have special authority by virtue of being police officers, and that people interacting with the police have to recognize that special authority and should expect trouble if they don’t. If an officer decides to make an arrest, for example, the subject of the arrest can’t just decide he would rather not be arrested and try to resist the officer’s efforts.

The key to these two narratives is that they’re both true — at times. The equality narrative is often true. In some circumstances, the police have no more power than anyone else. The inequality narrative is also often true. In other circumstances, the police do have the power to use force to overcome the resistance of individuals who may not want to do what the police want.

The OccupyDC taser video is particularly interesting because it starts midway through the scene. The offense that triggered the officers’ approaching the suspect (tearing down the notices) is minor. The video therefore presents a circumstance in which viewers can reasonably differ as to whether we should be in the equality-narrative zone or the inequality-narrative zone. As a result, different viewers fill in the uncertainty by just picking a narrative. In general, those who are more distrustful of the police pick the equality narrative. They interpret the officers’ conduct as bullying. In their view, grabbing the protester was an act of thuggery. Those who are less distrustful of the police generally pick the inequality narrative. They see the protester as practically asking for an elevated use of force by resisting the officers’ efforts to arrest him, and they see the officers as acting appropriately in response.

And if by any chance any Facebook employees read this blog, I would greatly appreciate your assistance too. It’s not wise for you to alienate your customer base by refusing to reverse accidental switches to a format that the vast majority of customers seem to be opposed to as much as I am.

According to a lot of reputable media outlets, the sky is falling for both legal education and legal services.  I understand the basis for this conclusion.  A lot of lawyers, young and old, are unemployed or underemployed.  The debt loads of graduating students are staggering.  The established “brand” law firms are doing something they have never done before — shrink, or at least not grow.  This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior.  The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine.  So things may get worse before they get better.

Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp.  Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work.  What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper.  Many legal services will become more standardized, productized and commoditized.  I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model.  But clients – including corporations, government and ordinary citizens—will love it.  Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal.  The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.

Many people assume that the new paradigm means lawyers working longer hours for lower wages.  That is one future business model.  But I think it utterly lacks imagination.  Lawyers are problem solvers.  To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem.  And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard.  (I am told it is quite a spectacle to behold.)  I am also someone who loves to collaborate.  With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.

He then went on, however, to express what could properly be called much anxiety about drones and targeted killing – anxiety rooted in a presumed relaxation in the disincentive to use force.  Given an unwillingness to finally come down as between support for drone strikes and anxiety about them, Singer finally rested his position on a process issue – the way in which they presumably undermine democracy and democratic decision-making.  However, the way in which drones undermine democracy, on this account, still finally rests upon this root anxiety about not having one’s own forces at risk as a burden upon political leaders.

Anxiety is not a policy.  It might be and, I think, in this case is an admirable sentiment, and a useful way of focusing on the basic question of the use of force.  But ultimately, having anxieties about the implications of one’s weaponry and one’s political leaders who make decisions about how to use it is not the same as actually making a decision about what to do.  When anxiety has to give way to actually deciding whether to use a weapon, or whether to develop a weapon system, someone has to decide: is the possibility that political or military leaders might decide to unjustly to overuse a weapon a reason to not use the most precise weapon available to commanders?  Or not to develop greater precision in the first place?

Because that is the issue in the vague and morally-responsible sounding invocation of anxiety over drones and targeted killing.  Most knowledgeable observers are in broad agreement that these technologies are more sparing both of civilians and one’s own forces, and indeed forces on the other side that one did not deem necessary to attack.  It is always possible that the availability of ever more precise weapons that have these humanitarian characteristics will persuade political or military leaders that they can thereby undertake more uses of force than they might otherwise (although, importantly, the intensity, duration, and damage from more frequent recourses to force might also be far less than conventional means).  But the refusal to use, or the refusal to develop, weapons of greater precision as a way of inoculating, as it were, political leadership from the temptation to use force more immediately comes at the price of holding the civilians and fighters who are on the losing end of this calculation as, in moral terms, hostages.  They are held hostage to the believe that political leaders cannot be trusted.

This is immoral.  It uses the civilian and soldiers whose lives might have been spared by more precise technologies as mere means – hostages – to other ends.  The immorality of this argument is masked by the sincerity of the anxiety – a vague anxiety that covers the true implications of the argument.  The anxiety is admirable – up to a point.  It is admirable to the extent that it forces a serious re-examination of this moral anxiety where it actually lives – which is to say, in the acts of political and military leaders.  It does not live, except illegitimately, in the refusal to use or develop more precision means as a way of pressuring those leaders.  The anxiety ultimately is about the unjust or immoral or wrong resort to force by political leadership, and that is the point that anxiety ought to push.

Ultimately rubber meets road; and anxiety, however morally sincere or admirable, has to give way to policy.  In the actual attack contemplated, do you use the most precise means possible or not?  Are you really prepared to urge the use of less precise means, or to urge that technologically available, more humanitarian means should not be developed?  And if you think the answer is that one should use, or only have available, less precise means, isn’t the real reason that you don’t think the attack is actually just or justified?  But if that is the reason, then have the moral courage to get beyond vaguely expressed anxieties and say so.

(I have given a fuller academic discussion for why I think the argument from the relaxed disincentive to use force a bad one, in a paper that will be appearing as a book chapter, downloadable here at SSRN.  And thanks to Glenn for the link.)