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Tim Sandefur Guest-Blogging

I’m delighted to report that Tim Sandefur will be guest-blogging this coming week about his new book, The Conscience of The Constitution, which has just been published by the Cato Institute. Tim is a principal attorney at the Pacific Legal Foundation, a national libertarian public interest legal group that defends economic liberty and private property rights, and is also the author of Cornerstone of Liberty: Property Rights in 21st Century America (2006) and The Right to Earn A Living: Economic Freedom And The Law (2010).

In Conscience, Sandefur argues that the classical liberal principles of the Declaration of Independence should guide interpretations of the Constitution: that the central value the Constitution was meant to foster and protect is individual liberty and not — as many of today’s lawyers, judges, and law professors believe — democracy. As a result, Sandefur defends the controversial theory of “substantive due process” and argues against both conservatives and liberals who believe in “judicial restraint” or “judicial modesty.” This isn’t quite my own view of the matter, but I expect the posts to be very interesting and thought-provoking. [...]

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Insider Trading Trial Reveals Case of Harvard Law Student Who Altered His Transcript for Clerkship Applications

The insider trading trial of Mathew Martoma has revealed an interesting episode of his earlier life thanks to a motion under Rule 404(b), and specifically the time he was kicked out of Harvard Law School for falsifying his transcript when he applied for appellate clerkships. Martoma (then named Mathew Thomas) altered his law school transcript to have an almost straight A average before sending out clerkship applications. The altered grades would have made him among the top handful of students in the class.

On the basis of the transcript, Martoma interviewed with Judges Sentelle, Ginsburg, and Randolph on the DC Circuit. However, a law clerk in one judge’s chambers spotted the altered transcript and contacted Harvard Law’s registrar. (My recollection is that HLS transcripts in those days were completed on typewriters, so an HLS grad-turned-law-clerk familiar with HLS transcripts — and tipped off by grades so very high — could probably spot the forgery.) Caught with the altered transcript, Martoma then tried to pass the alteration off as a joke. Shortly thereafter, when one of the DC Circuit judges called to offer him a clerkship, he didn’t answer the call and sent out letters withdrawing his application. Appropriately, the Administrative Board recommended that Martoma be kicked out of school — and he was.

One more interesting detail. While a law student, Martoma had co-founded a student group, the Harvard Law School Society of Law and Ethics. Figures. [...]

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The Hall of Fame

As it happens, I have a more-than-the-usual-passing interest in the goings-on at the Baseball Hall of Fame this year.  My oldest friend (I say we met in kindergarten, though he seems to think it was 1st grade), Eric Nadel, who has spent the last 30 years or so down in Texas as the voice of the Texas Rangers, is being given the Ford Frick award — in essence, selection to the broadcaster’s “wing” of the HOF.  A really terrific honor, putting him in some very illustrious company, including Mel Allen, Red Barber, Vin Scully, Lindsey Nelson, and other icons of our youth, and I’ll be heading up to Cooperstown this July (along with about 100 or so of Eric’s friends and family) for the festivities.

So I paid some attention to the recent news about this year’s inductees on the ballplayer side: Tom Glavine, Greg Maddux, and Frank Thomas, and I stumbled across Tom Boswell’s magnificent piece on Maddux in the Wash. Post.   Maddux is surely one of the most interesting ballplayers ever.  He seems to be one of those people who has the kind of internal constitution that would have enabled him to be really, really great at anything to which he devoted himself.  He figured pitching out:  hitters can pick up the spin of the ball, and the location of the ball, but they cannot pick up the ball’s relative velocity (without cues from spin or location).  So then he worked and worked and worked and worked to implement that simple principle — making all of his pitches, in Maddux’s own words, look “like a column of milk” – surely one of the best sports similes ever coined by a ballplayer.

And Boswell tells this story at the end.  Maddux’s father, who worked as a dealer in the [...]

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Insane Clown Posse v. FBI, Vol. 2

In September 2012, noted “horror core” hip hop duo Insane Clown Posse sued the FBI seeking to obtain documents explaining why the federal government labeled ICP fans (aka “Juggalos”) as a “loosely organized hybrid gang” under the National Gang Threat Assessment.  Now, with the help of the ACLU, the ICP is suing the FBI again to challenge the designation.  According to the ICP, this designation has resulted in the unwarranted harassment of ICP fans.  The NYT reports:

In its lawsuit, Insane Clown Posse said that, even more than other hip-hop artists whose music “uses very harsh language to tell nightmarelike stories with an underlying message that horrible things happen to people who choose evil over good,” the band’s own songs offered “hopeful, life-affirming themes about the wonders of life and the support that Juggalos give to one another.”

The lawsuit asks the court to set aside the findings of the 2011 F.B.I. gang assessment, order the elimination of “criminal intelligence information” on Juggalos from government and law-enforcement databases and prohibit the gathering of further information without “sufficient facts” of a “definable criminal activity or enterprise.”

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“A Little Bit of Laches Goes a Long Way”

My colleague Sam Bray is a remedies scholar, which makes him a rarity these days — and he is a remedies scholar who thinks the distinctions between legal remedies and equitable remedies are important and should in large measure be maintained, which makes him doubly rare. He now has a very interesting new paper on the forthcoming Petrella v. MGM case, and I thought I’d pass it along. Here’s the Introduction (paragraph break added):

The famous Martin Scorsese movie Raging Bull, and ancient doctrines of equity, will make a joint appearance later this month at the U.S. Supreme Court. On January 21st, 2014, the Court will be hearing arguments in Petrella v. Metro-Goldwyn-Mayer, Inc. The case involves copyright infringement claims about the movie, and about the extent to which those claims are barred by the doctrine of laches.

Laches is a defense that was developed by courts of equity, and it is typically raised in cases where a plaintiff has delayed her suit without good reason. Petrella raises two big questions about how laches fits into contemporary American law. One is whether it applies to all remedies or only to equitable remedies. The other is how it is affected by a federal statute of limitations. Is laches displaced, on the theory that Congress has spoken by enacting the statute of limitations, and that it would violate separation of powers for a court to substitute its own equitable doctrines? Or does laches remain and coexist with the statute of limitations, on the theory that Congress legislates against the background of traditional equitable principles?

The parties in Petrella offer diametrically opposite answers to these questions. The petitioner, who lost below because the lower courts invoked laches, has argued that laches is entirely precluded because Congress enacted a statute of limitations.

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Tikvah Fund Call for Applicants

Below. I did one of the advanced institute seminars in September, it was excellent. My impression is that “serious (not necessarily Orthodox) Jews” are preferred over other applicants.

Interested in the intersection between Jewish and Western thought? Engaged with questions of domestic or foreign policy? The Tikvah Fund is pleased to announced several exciting, stipend-bearing seminars for 2014.

Tikvah programs bring exceptional individuals from America, Israel, and around the world to New York City to study economics, war and grand strategy, and Jewish thought. Our extraordinary faculty includes Peter Berkowitz, Frederick W. Kagan, William Kristol, Meir Soloveichik, Ruth Wisse, and Dara Horn, among many more.

Programs run 1 to 3 weeks starting next spring. All participants receive generous stipends to cover their travel, lodging, and investment of time.

Can’t make it to New York City next year? Learn along with the Institutes on Tikvah’s new blog, The Tikvah Forum, which features interviews with faculty, video lectures, posts by participants, and much more.
Program: Tikvah Advanced Institutes
Eligibility: For advanced undergraduates, graduate students, and individuals in professional life – public policy, journalism, academia, education, law, business, or culture
Dates: 1 to 3 week seminars, running from April to July 2014.
Application Due Date: February 15, 2014

The Tikvah Advanced Institutes will give accomplished individuals of any nationality, from a broad range of academic and professional backgrounds, the chance to participate with leading thinkers and practitioners in their choice of advanced courses on policy and Jewish thought, on a schedule designed for people who do not have much time to spare. The seminars will take place in New York City over periods extending from one to three weeks; and participants will be given stipends of $1,000 to $5,000, depending on the seminar’s length, to cover their travel, lodging, and investment

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“We All Declare for Liberty; but in Using the Same Word We Do Not All Mean the Same Thing”

Apropos the “imposing beliefs on others” post — and in particular debates related to abortion — I thought I’d post this excerpt from a Lincoln speech (his Address at a Sanitary Fair, Baltimore, Apr. 18, 1864). I’ve long found this to be a thoughtprovoking piece, and a useful reminder that “liberty” in the abstract is not self-defining; most rhetoric that simply refers to “liberty” — whether in the context of slavery, where Lincoln said this, abortion rights, national sovereignty, and so on — rests on assertion about the proper definition of people’s or institutions’ rights, and it’s that definition that should often be at the heart of the debate.

The world has never had a good definition of liberty, and the American people, just now, are much in need of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name — liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names — liberty and tyranny.

The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the

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Your Side Tries to Impose Its Beliefs — My Side Seeks Justice

In many ways, the U.S. News & World Report op-ed condemning Catholics verges on self-parody. The beginning is pretty telling:

Supreme Court Justice Sonia Sotomayor just dropped the ball on American women and girls.

Et tu, Justice Sonia Sotomayor? Really, we can’t trust you on women’s health and human rights? The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year’s Eve in Times Square. Or maybe she’s just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let’s be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing.

In a stay order applying to an appeal by a Colorado nunnery, the Little Sisters of the Poor, Justice Sotomayor undermined the new Affordable Care Act’s sensible policy on contraception. She blocked the most simple of rules – lenient rules – that required the Little Sisters to affirm their religious beliefs against making contraception available to its members. They objected to filling out a one-page form. What could be easier than nuns claiming they don’t believe in contraception? …

But right now, the climate is so cold when it comes to defending our settled legal ground that Sotomayor’s stay is tantamount to selling out the sisterhood. And sisterhood is not as powerful as it used to be, ladies.

You’ve got it all here — “selling out the sisterhood” as being the key question. The claim that Sotomayor “put her religion ahead of her jurisprudence,” without any serious discussion of the actual “jurisprudence,” [...]

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Our Ridiculous Copyright Regime, Cont’d: Part 239

A federal court in Illinois has recently decided that Sherlock Holmes — or, more precisely, the characters and incidents in the Sherlock Holmes stories published prior to 1923 — have, indeed, finally fallen into the public domain.  Not, mind you, anything post-1923 – but, via the complex workings of the Copyright Act, the pre-1923 stuff is free for all.

Sir Arthur Conan Doyle was born in 1859.  He is as distant a figure from my students, say, as Charles Dickens is to me – from, literally, another age.  I can understand and even celebrate a copyright system that enriches Mr. Doyle a-plenty for the wonderful contributions that he made to our shared culture.  But I cannot understand – and no rational person could possibly explain or justify, in my view – a copyright system that continues to transfer money from other creators and readers and viewers of movies to Mr Doyle’s great-great-great-great-grandchildren, on account of those long-ago contributions.  It is ridiculous and an embarrassment to us all.

[Correction: I initially wrote that Doyle was born in 1879, whereas it was actually 1859 – making it even more ridiculous . . . ] [...]

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The front page of today’s (print edition) New York Times has the following lead headline in the upper right:

Christie Faces Scandal on Traffic Jam Aides Ordered”

That strikes me as a very odd headline.  “Facing” a “scandal” is not a reportable fact – is it?  Where, exactly, is this scandal?  The answer, of course, is: it’s in the rest of the article.  The article is in fact helping to create the scandal, detailing all of the recent charges and counter-charges involving Christie, while the headline says it’s already out there, somewhere.  Very, very peculiar.


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CFIUS Fatalities Set Record

The Committee on Foreign Investment in the United States, or CFIUS, reviews foreign investments for national security risks.  It is now beyond doubt that Chinese investment is getting much closer scrutiny from CFIUS.  A total of ten transactions failed to survive review in 2012, according to a just-released Treasury report.

That may not sound like a lot, but in 2011, only two deals failed to make it through the process.  At the time, two was a lot of deals to kill in a year, since CFIUS has sometimes gone a decade or more without deep-sixing any.  When in government, I had a reputation as a CFIUS security hawk, but I doubt I ever recommended killing more than two deals in a year.

This crowd is tough. [...]

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The Shorter Matt Blaze: NSA Hacking Is OK, As Long As We Take Away Its Best Hacking Tools

Matt Blaze, a well-known public cryptographer and NSA critic (but I repeat myself), offered what seemed like a modest concession in the relentless campaign against NSA intelligence gathering:

The NSA’s tools are very sharp indeed, even in the presence of communications networks that are well hardened against eavesdropping. How can this be good news? It isn’t if you’re a target, to be sure. But it means that there is no good reason to give in to demands that we weaken cryptography, put backdoors in communications networks, or otherwise make the infrastructure we depend on be more “wiretap friendly”. The NSA will still be able to do its job, and the sun need not set on targeted intelligence gathering.

Don’t get me wrong, as a security specialist, the NSA’s Tailored Access Operations (TAO) scare the daylights of me. I would never want these capabilities used against me or any other innocent person. But these tools, as frightening and abusable as they are, represent far less of a threat to our privacy and security than almost anything else we’ve learned recently about what the NSA has been doing.

TAO is retail rather than wholesale.

A day later he revealed just how modest this olive branch was, making clear that he wants to take away the NSA’s best hacking tools.  He told the Washington Post today that NSA should be required to surrender any undiscovered vulnerability it finds:

Among the weapons in the NSA’s arsenal are “zero day” exploits, tools that take advantage of previously unknown vulnerabilities in software and hardware to break into a computer system. The panel recommended that U.S. policy aim to block zero-day attacks by having the NSA and other government agencies alert companies to vulnerabilities in their hardware and software. That recommendation has drawn praise from security

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