The Volokh Conspiracy

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

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

A sad question, which is the subject of today’s Doe v. Sex Offender Registry Board (Mass. App. Ct. Apr. 27, 2012) [UPDATE: link fixed]:

The plaintiff, who was at the moment of interest a ten-year-old boy, appeals from a Superior Court judgment affirming his classification as a level two sex offender. That publicly available classification required the youngster to register annually with the Sex Offender Registry Board (SORB) and with the police department in the city or town where he lived. The classification also required him to appear each year at a police station so that police could update his photograph and fingerprints….

On this record, there is no question that the plaintiff is a troubled youngster deeply in need of the services he is receiving and from which one hopes that he will benefit. But the classification decision rested on unreliable hearsay and the application without explanation of predictive criteria that do not on their face take account of sexual activity between prepubescent children….

A few weeks ago, the Harvard Federalists invited me to be interviewed by Dean Martha Minow in the Ames Moot Court Room.  She was wonderful, though the interview turned out to be far more substantive than I anticipated.  She really put me through my paces.  Now the HLS website has posted a video of the interview here.  Unfortunately, they don’t have an embedding option, so you have to (shudders) actually click through to watch it.  You can decide for yourself, but here is what they chose as the highlights:

Barnett characterized his ongoing constitutional challenge to the individual mandate as a rather lonely one when he took it up 2 ½ years ago after lawyer David Rivkin raised the issue in a Wall Street Journal op-ed piece and launched an online legal-blog debate.

“There was another law professor on that blog who posted a very snarky ‘Nobody can be serious about a constitutional challenge here,’” Barnett said. “And I just sort of decided, ‘Well, maybe I should say something.”

Since then, Barnett said, his argument has gained constant momentum, culminating in a historic examination of the issue by the Supreme Court last month. The Justices gave attorneys more than six hours for oral arguments over three days—the most time they’ve allowed for oral arguments since their consideration of Miranda v. Arizona in 1966.

This time, the justices are reviewing Department of Health and Human Services v. Florida, and NFIB v. Sebelius  in which the 11th U.S. Circuit Court ruled in January, 2011 that the mandate falls outside the federal authority contemplated by the commerce clause in the Constitution.

One of the central issues examined during the Supreme Court hearings was whether the Anti-Injunction Act, which prohibits taxpayers from challenging a tax until it goes into effect, applies to the health-mandate requirement in the Affordable Care Act.

The argument that the Anti-Injunction does apply—and therefore renders the constitutional challenge moot—is widely held in legal academia, Barnett contended.

“It’s an argument that’s so beloved by professors, but there was not a single justice who was even interested in the tax-power argument in six hours of oral presentation,” he said. “If any justice liked the tax-power theory, you would have expected to hear from her or him during the discussion of the Anti-Injunction Act.”

“The justices were debating among themselves about why it didn’t apply. There was nobody saying it did apply.”

Barnett said he is cautiously optimistic about how the justices will rule. He said he had the sense from the justices at oral arguments that they may believe the Affordable Care Act goes too far.

“If it were actually accepted by the Court, they would basically be saying that Congress has unlimited power to do whatever they want as long as they limit these sanctions to a monetary fine collected by the IRS,” he said. “That would be a startling claim of power.”

“This is a claim of power by Congress that is literally unprecedented. Never before in history has Congress required individual citizens to do business with private companies as a means of exercising its commerce powers.”

He pointed out that just because something is unprecedented, that doesn’t mean it’s necessarily unconstitutional.

What it does do is render it a case of first impression, “which means that it’s highly unlikely that prior precedents have directly addressed the issue of whether this is OK or not. That’s exactly the reason why this has always been a close case on the merits, and not an easy case.”

They denied that the Moon was Stilton; they denied she was even Dutch;
They denied that Wishes were Horses; they denied that a Pig had Wings;
So we worshipped the Gods of the Market Who promised these beautiful things.

InstaPundit has often cited Rudyard Kipling’s Gods of the Copybook Headings, which led me to reread it and appreciate it yet again. As with many poems, different people can bring different interpretations to it; just who the Gods of the Copybook Headings are and who the Gods of the Market Place are is up to you to decide. As with many poems that are more than a stanza or two long, it also has stronger parts and weaker parts. But in any event I thought it would be worth posting:

As I pass through my incarnations in every age and race,
I make my proper prostrations to the Gods of the Market Place.
Peering through reverent fingers I watch them flourish and fall,
And the Gods of the Copybook Headings, I notice, outlast them all.

We were living in trees when they met us. They showed us each in turn
That Water would certainly wet us, as Fire would certainly burn:
But we found them lacking in Uplift, Vision and Breadth of Mind,
So we left them to teach the Gorillas while we followed the March of Mankind.

We moved as the Spirit listed. They never altered their pace,
Being neither cloud nor wind-borne like the Gods of the Market Place,
But they always caught up with our progress, and presently word would come
That a tribe had been wiped off its icefield, or the lights had gone out in Rome.

With the Hopes that our World is built on they were utterly out of touch,
They denied that the Moon was Stilton; they enied she was even Dutch;
They denied that Wishes were Horses; they denied that a Pig had Wings;
So we worshipped the Gods of the Market Who promised these beautiful things.

When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes would cease.
But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said: “Stick to the Devil you know.”

On the first Feminian Sandstones we were promised the Fuller Life
(Which started by loving our neighbour and ended by loving his wife)
Till our women had no more children and the men lost reason and faith,
And the Gods of the Copybook Headings said: “The Wages of Sin is Death.”

In the Carboniferous Epoch we were promised abundance for all,
By robbing selected Peter to pay for collective Paul;
But, though we had plenty of money, there was nothing our money could buy,
And the Gods of the Copybook Headings said: “If you don’t work you die.”

Then the Gods of the Market tumbled, and their smooth-tongued wizards withdrew
And the hearts of the meanest were humbled and began to believe it was true
That All is not Gold that Glitters, and Two and Two make Four
And the Gods of the Copybook Headings limped up to explain it once more.

As it will be in the future, it was at the birth of Man
There are only four things certain since Social Progress began.
That the Dog returns to his Vomit and the Sow returns to her Mire,
And the burnt Fool’s bandaged finger goes wabbling back to the Fire;

And that after this is accomplished, and the brave new world begins
When all men are paid for existing and no man must pay for his sins,
As surely as Water will wet us, as surely as Fire will burn,
The Gods of the Copybook Headings with terror and slaughter return!

The Georgetown Supreme Court Institute celebrated the end of its season of moot courts this afternoon with a reception honoring Justice Ruth Bader Ginsburg.  Justice Scalia delivered testimonial remarks for his colleague.  He also credited the Institute for helping to raise the quality of Supreme Court advocacy during the time he has been on the Court.   In attendance were Justices Alito and Kagan, as well as Judge Brett Kavanaugh, Solicitor General Verrilli, former Solicitor General Paul Clement, who did 5 moot SCI courts this year, and a bevy of Supreme Court reporters including Adam Liptak, David Savage, Tony Mauro.  There were also Supreme Court advocates aplenty.  And I know I missed a lot of notables.  The event also featured a duet from the Washington National Opera for Justice Ginsburg, who (along with Justice Scalia) is apparently a big opera fan.

The personal highlight for me was Justice Kagan coming up as I was conversing with someone to ask me to take a photo of her with a bunch of students, and then teasing me because I did not know where the shutter button on an IPhone was.  (I am an Android guy, but she made it out to be a generational thing.)

Congratulations to my colleagues, Executive Director Irv Gornstein, Deputy Director (and former Ginsburg clerk) Dori Bernstein, and Faculty Directors Steven Goldblatt & Cornelia Pillard for a marvelous event and a wonderful year.

Here’s something for those who liked my earlier article for Foreign Policy about the foolishness of letting lawyers determine our cyberwar strategy, though it’s probably even more of a treat for those who hated my article and wished they had equal time. The ABA Journal has posted an extensive, no-holds-barred debate over the views expressed in that article.  Gen. Charles Dunlap, a former deputy judge advocate general of the U.S. Air Force, contradicts my article with passion, after which I offer a rebuttal, and he a surrebuttal. 

Here’s a sample of Gen. Dunlap’s full-throated assault on my position:

Military commanders have seen the no-legal-limits movie before and they do not like it. In the aftermath of 9/11, civilian lawyers moved in exactly that direction. Former Attorney General Alberto Gonzales, for example, rejected parts of the Geneva Conventions as “quaint.” He then aligned himself with other civilian government lawyers who seemed to believe that the president’s war-making power knew virtually no limits. The most egregious example of this mindset was their endorsement of interrogation techniques now widely labeled as torture.

The results of the no-legal-limits approach were disastrous. The ill-conceived civilian-sourced interrogation, detention and military tribunal policies, implemented over the persistent objections of America’s military lawyers, caused an international uproar that profoundly injured critical relations with indispensable allies. Even more damaging, they put the armed forces on the road to Abu Ghraib, a catastrophic explosion of criminality that produced what military leaders like then-U.S. Commander in Iraq Lt. Gen. Ricardo Sanchez labeled as a “clear defeat.”

Infused with illegalities, Abu Ghraib became the greatest reversal America has suffered since 9/11. In fact, in purely military terms, it continues to hobble counterterrorism efforts. Gen. David Petraeus observed that “Abu Ghraib and other situations like that are nonbiodegradable. They don’t go away.” Petraeus told the New York Times, “The enemy continues to beat you with them like a stick.” In short, military commanders want to adhere to the law because they have hard experience with the consequences of failing to do so.

…

In truth, as important as the moral perspective may be, the practical advantages of adherence to the rule of law have a power all their own—as history plainly shows.

Nazi Germany’s and Imperial Japan’s gruesome violations of the law of war, for example, hardly proved advantageous to them. More recently, Saddam Hussein, who embraced war without “limits,” was pulled from a subterranean spider hole—dirty, defeated and soon to be dead. Moammar Gadhafi’s illicit threats to wage war upon his own civilian population in the spring of 2011 brought the military power of the international community down upon him to the point where he ended his days groveling in a sewer pipe.

Military leaders know that adherence to the law is a pragmatic essential to prevailing in 21st century conflicts. It might be attractive to some to capitalize on the unpopularity of lawyers, to demonize them and even the law itself, but military commanders understand that war today has changed. They know that law has permeated war much as it has every other human activity, and they realize the perils of ignoring its power and influence. Whether anyone likes it or not, war has become, as Gen. James Jones, then the commander of NATO forces, observed in 2003, “very legalist and very complex.”

 And here’s a taste of my rebuttal:

Gen. Dunlap’s second theme is plainly heartfelt but equally mistaken. To him, taking lawyers out of cyberwar strategy will lead to “lawless war,” and he pulls out all the stops to condemn it, invoking Abu Ghraib, Adolf Hitler, Imperial Japan and, um, Alberto Gonzales.

If you’re wondering how the former attorney general got on that list, I suspect it’s because Gen. Dunlap is still fighting the last war. The last turf war, to be precise. The years after 9/11 saw bitter conflict between military judge advocates general and civilian leaders like Gonzales. They fought over military tribunals, Guantanamo and interrogation.

The military lawyers mostly won. But the cost of that victory was high. It did surprising damage to civilian control of the military (it’s hard, for example, to read Gen. Dunlap’s essay without getting the impression that “civilian lawyer” is some new kind of epithet). And it led military and national security lawyers to draw the wrong lessons from the post-9/11 wars. In the future, they concluded, no war should be planned or fought without a lawyer at every commander’s elbow.

Really? Let’s assume, despite substantial contrary evidence, that when we fight in places like Libya or Iraq or Afghanistan we can deprive our adversaries of propaganda victories so long as our military does nothing without a lawyer’s approval. Even if that’s true, why would we expect the same approach to work for a war in cyberspace?

At its worst, cyberwar could reduce large parts of the United States to the condition of post-Katrina New Orleans, maybe for weeks or months. Responding to propaganda attacks isn’t likely to be high on our to-do list.

The exchange is part of a new book, soon to be published by the ABA, entitled “Patriots Debate.” It is a sequel to the earlier volume, Patriot Debates, in which most provisions of the Patriot Act requiring renewal were debated in the same long-form, mostly civil format. The sequel deals with a broader range of legal issues arising from the last ten years of fighting terrorists.

Jonathan posts yet another poll confirming both the unpopularity of the individual insurance mandate and the popular desire and expectation that the Supreme Court will it unconstitutional.  What is interesting to me about this particular poll is that this result obtains despite the fact that it has elements of a push poll.  As supporters of the ACA love to point out (see below), individual elements of the Act — such as those concerning pre-existing conditions, or allowing offspring to stay on their parents’ health insurance policies until age 26 — consistently score favorably.    The Kaiser Family Foundation, which specializes in health care policy and supports the ACA, first informs the respondents of these known-to-be favorable features of the Act before soliciting their approval or disapproval.  This is probably not technically a “push poll” because they ostensibly ask whether respondents are aware that the bill contains these features rather then tell them that it does.  But the information-imparting function of these questions still remains and was undoubtedly intended.  Now this practice can be defended as measuring the public’s “true” opinion of the ACA, but it is not a very good way of assessing the opinions of the public “in the wild” so to speak.  All this is very well known among polling companies, and the previous polls about the ACA and the individual mandate, such as those by the AP and USAToday, to which I have referred here have not done this.

Still, having done all it could to favorably affect the outcome, the individual mandate still scores highly unpopular, and is perceived as unconstitutional.

But then, according to Barry Friedman and Dahlia Lithwick, the Supreme Court should ignore the unpopularity of the ACA when making its decision.  In their Slate column, Justice by the Numbers: When it comes to deciding the future of Obamacare, the Supreme Court should ignore public opinion, the identify two academic theories on the relevance of the ACA’s unpopularity to the Supreme Court’s deliberations, both of which I find plausible and have offered some variant of myself:

Security guru Dan Kaminsky and I joined earlier this year to fight SOPA because it was bad for cybersecurity.  Today, for the same reason, we joined in a Politico op-ed to rebut attacks on CISPA, the Cyber Intelligence Sharing and Protection Act:

They say victory has a hundred fathers. It also has a hundred would-be sons — and “son of SOPA” campaigns have proliferated. In Europe, for example, SOPA’s defeat inspired a surprisingly successful effort to block the Anti-Counterfeiting Trade Agreement.

Here in the United States, though, the debate has taken an odd turn. After stopping a bill that would have undermined cybersecurity, some Internet activists are now targeting bills that could actually make the Internet safer. They’re charging that bills like the Cyber Intelligence Sharing and Protection Act represent stealth attempts to resurrect SOPA under the guise of promoting cybersecurity….

There are ways to address this concern, but we must remember the bigger privacy and civil liberties threat: the Internet’s insecurity….

Without security, no network offers privacy. A hacked database offers no protection.

Part of the solution is to get better at sharing information. That means sharing attack signatures at light speed so as soon as a new attack vector is identified by one company, it can be blocked by others. Government needs to be part of that system — it has a lot to defend and it’s pretty good at identifying signatures.

But under current law, once the government shows up to receive information, private-sector participation slows from the speed of light to the speed of lawyers. Current law lets companies share information with the government without a court order only to protect their own networks against malware, but not to protect others….

In short, we need to fix CISPA, not fight it. We can all agree that if Facebook reports that a link has been used to propagate malware, the government should expend its resources to warn users and foil the attack, not issue notices of potential copyright violations about the link.

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

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

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

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

From President Obama’s remarks today at the University of North Carolina:

One Republican congresswoman said just recently — I’m going to quote this because I know you guys will think I’m making it up — (laughter).

AUDIENCE MEMBER: We trust you. (Laughter.)

THE PRESIDENT: No, no, no. She said she had “very little tolerance for people who tell me they graduate with debt because there’s no reason for that.”

AUDIENCE: Booo –

THE PRESIDENT: I’m just quoting here. I’m just quoting. She said, students who rack up student loan debt are just sitting on their butts, having opportunity “dumped in your lap.”

AUDIENCE: Booo –

THE PRESIDENT: I mean, I’m reading it here, so I didn’t make this up. Now, can you imagine saying something like that?

The “we trust you” turns out to have been a mistake. Here’s what Congresswoman Virginia Fox actually said:

I have very little tolerance for people who tell me that they graduate with $200,000 of debt or even $80,000 of debt because there’s no reason for that.

That strikes me as quite different from “very little tolerance for people who tell me that they graduate with debt because there’s no reason for that,” without the “$200,000 or even $80,000″ qualifier. Indeed, as of 2007-08, the 90th percentile for total undergraduate student loans was $44,500, so $80,000 would be a very high student loan amount indeed, at least for undergraduates (likely the people whom both the President and Congresswoman Fox was targeting). Today, the amounts would likely be a bit higher — the 2007-08 data gives the median 4-year student debt at $20,000, and President Obama said in his speech it was $25,000 — but not by enough to make $80,000 a normal student debt.

So Congresswoman Fox was expressing a lack of sympathy for students who take on unusually large — perhaps 95th or higher percentile — levels of debt. President Obama, though, quoted her as if she was expressing a lack of sympathy for students who take on any debt at all.

One can certainly disagree with the Congresswoman’s views. But if one wants to disagree with those views, one should at least quote them correctly.

See also this post from yesterday, which is the first misquote to which my title “another misquote” refers.

Some of our readers may be interested in this conference, to be held in Jerusalem May 20-24, sponsored by the free market-oriented Jerusalem Institute for Market Studies. Among the distinguished group of speakers is the VC’s own Randy Barnett, Cato’s Tom Palmer, and University of Chicago economist Sam Peltzman. I’m planning to attend at least part of the conference, as I’ll be in Israel on other business.

I just noticed this word for the first time today; it means “the act of obtaining.” A sign of its rarity is that “obtainment” is a much more common synonym — and “obtainment” isn’t exactly super popular. Google Ngrams tells us that “the obtaining of” is much more common than either “the obtainment of” or “the obtention of” (especially British English, but also in American English). Westlaw likewise reports that “obtention” has only been used 7 times since 1/1/2010.

Commenter gekgek points out the literal meaning of the bill I blogged about below:

This Act may be cited as the ‘Violence Against Women Reauthorization Act of 2011.’

Shades of Domestic Violence Month, as well as Sexual Harassment Training.

ESPN has the story of the accusation:

The U.S. Attorney’s Office in the Eastern District of Louisiana was told Friday that New Orleans Saints general manager Mickey Loomis had an electronic device in his Superdome suite that had been secretly re-wired to enable him to eavesdrop on visiting coaching staffs for nearly three NFL seasons, “Outside the Lines” has learned.

Sources familiar with Saints game-day operations told “Outside the Lines” that Loomis, who faces an eight-game suspension from the NFL for his role in the recent bounty scandal, had the ability to secretly listen for most of the 2002 season, his first as general manager of the Saints, and all of the 2003 and 2004 seasons. The sources spoke with “Outside the Lines” under the condition of anonymity because of fear of reprisals from members of the Saints organization. . . .

Sources told “Outside the Lines” the listening device was first installed in the general manager’s suite in 2000, when Loomis’ predecessor, Randy Mueller, served as Saints GM. At that time, according to sources, Mueller had the ability to use the device to monitor only the game-day communications of the Saints’ coaching staff, not the opposing coaches. Mueller, now a senior executive with the San Diego Chargers (he also was an ESPN.com NFL analyst from 2002 to ’05), declined to comment when contacted by “Outside the Lines.”

After the transition from Mueller to Loomis, the electronic device was re-wired to listen only to opposing coaches and could no longer be used to listen to any game-day communications between members of the Saints’ coaching staff, one source said.

“There was a switch, and the switch accessed offense and defense,” said the source. “When Randy was there, it was the Saints offense or defense, and when Mickey was there it changed over so it was the visiting offense or defense,” the source said.

The sources said when Loomis took his seat during home games, then in the front row of box No. 4 in the 300 level of the Superdome’s north side, he was able to plug an earpiece into a jack that was under the desk in front of him. The earpiece was not unlike those used to listen to inexpensive transistor radios, the sources said. With the earpiece in place, Loomis could then toggle back and forth with a switch that he controlled, enabling him to listen to the game-day communications of either the opposing offensive or defensive coaches.

Also underneath the desk in front of Loomis, said the sources, was a metal box that contained two belt packs similar to those worn around the waists of NFL head coaches during games. The packs powered the listening device available to Loomis, which was, according to sources, hard-wired to the audio feed of the opposing coaches.

If the report is true, it’s a pretty clear violation of the federal Wiretap Act, also known as the Electronic Communications Privacy Act (ECPA). The ESPN story has a pretty good run-down of the legal issues. To expand on that coverage a bit, use of the bugging device would constitute an interception of an oral communication under 18 U.S.C. 2510(2), which violates 18 U.S.C. 2511 and would allow both civil and criminal remedies. One difficulty with criminal remedies is the 5-year statute of limitations under federal law. Civil remedies would be easier because the statute of limitations expressly runs from two years “after the date upon which the claimant first has a reasonable opportunity to discover the violation.” See, e.g., Andes v. Knox, 905 F.2d 188, 189 (8th Cir. 1990) (holding that the two-year statute of limitations period under 18 U.S.C. § 2520 begins to run when a party first discovers wiretapping). State law provides its own remedies, too, in addition to those of federal law.

Steve Jakubowski has a summary of the Supreme Court oral argument in the RadLAX case.  Not the usual band of sign-wielding protesters on the SCOTUS steps….

My classes uses A. Mitchell Polinsky’s short classic, An Introduction to Law and Economics, as one of the texts – this is the class’s introduction to the Coase Theorem applied to various basic areas of law.  Being a first year elective introductory class, we limit ourselves to chapters dealing with fundamental common law topics – contract, tort, property, criminal law.  In one of the chapters on criminal law, Polinsky (quoted below) explores the application of the Coase Theorem as viewed through the work of Gary Becker (“Crime and Punishment: An Economics Approach,” 76 J. Pol. Econ. 169 (1968)):

If individuals are risk neutral, then the efficient system of law enforcement is one in which the fine punishment is as large severe as possible – equal to the wealth life of the individuals whose behavior is being controlled.  This allows the probability of detection to be very low in order to save enforcement costs.  Note that the logic of this result does not depend on the magnitude of the costs imposed on others by the harmful activity.  Thus, for example, if some activity imposed only a $1 cost on others, it still would be efficient to use as large a fine as possible – $10,000 in the example – in order to achieve optimal deterrence with the smallest possible expenditure on enforcement …. Although there is nothing logically wrong with the preceding argument, it is premised on an assumption – risk neutrality – that is not likely to be correct when the fine punishment is as high as the wealth lives of the individuals whose behavior is being controlled.

Although I won’t do it, it is tempting to give students the (photoshopped, I’m sure) photo, the quote, and then “Discuss.” (H/T to my student Brianna.)

Max Stearns has an interesting take on the much-publicized failure to award a winner of the Pulitzer Prize in Fiction this year, arguing that it was likely the result of a flawed set of voting rules that led to none of the finalists receiving a majority, rather than statement of unworthiness of all the candidates (apparently the judges would have been fine with any of the three winning, it is just that among the finalists no one of the three stood out above the rest).  Max argues that the problem was a mismatch of the voting rules that failed to accurately capture the voters’ preferences.

Over at Bench Memos, Matthew Franck has an interesting post on “the strange turn George F. Will has taken toward endorsing judicial activism — and the way in which his constitutional views today constitute an unacknowledged contradiction of arguments he has made many times before.” I’ve noticed something similar in Will’s recent columns. I suppose the most cynical explanation is that arguments in favor of judicial restraint seem sound when your side is in the minority, while arguments in favor judicial activism come to seem rather enlightened when your side happens to have five votes. Or is there a less cynical explanation?

UPDATE: In the comment thread, my co-blogger Ilya Somin suggests that Will’s “commitment to originalism” may explain the difference: Perhaps “he has been influenced by the last 25 years of scholarship showing that many restraints on government power have strong roots in the original meaning of the Constitution.” This explanation strikes me as problematic because Will’s arguments in his recent columns do not appear to be originalist.

A few days ago, David Bernstein mentioned David Schraub’s post explaining his disagreement with my view questioning the propriety of Judge Brown’s concurring opinion calling for a return to Lochner in Hettinga v. United States. At the time, I wrote:

I’m not convinced of the propriety of placing these views in the Federal Reporter instead of a law review or published speech. Questions of judicial propriety are matters of taste, of course. But given that these views have no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements, a decision by judges to publish such comments in a judicial opinion (even in a non-binding concurrence) runs a risk of being perceived as blending political and judicial roles. In my view, it’s better to keep the roles more separate by reserving criticisms of settled Supreme Court doctrine to contexts like speeches and articles that are clearly outside the judicial capacity. But then I realize I am more squeamish about such matters than others.

That post led to several interesting responses, including this one from Lyle Denniston. But I wanted to reply to the response by David Schraub , in which he wrote:

I strongly disagree — while obviously I disagree with the content of Judge Brown’s opinion, I see nothing at all improper with Judges Brown and Sentelle registering their opinion about what the law should be in their opinion about what the law is (Kerr does say he recognizes the differing views on this topic). I actually swing sharply the other way — I’d like a stronger norm of judges doing things like this, so long as they divorce it from their legal judgment of the case.

Opinions of the form “the law is constitutional, but moronic” (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?

But more importantly, these opinions help sap judicial decisions of unwarranted and unintended “moral endorsements” by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how “this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair.” Of course, courts often mean to imply none of these things — the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.

As with most questions of propriety, context matters. In the abstract, I think Schraub’s arguments can have merit in some cases. But focusing on the Hettinga case speficially, the arguments don’t seem to apply. For the handful of readers who care, I wanted to say a bit about why.

Let’s start with Schraub’s first argument, that concurring opinions can provide valuable feedback about how the law is working in the trenches. That can be true, when lower court judges really do attempt to provide feedback about how law is working in the field. (Judge Sutton’s concurring opinion in Lyons v. Xenia, 417 F. 3d 565 (6th 2005) comes to mind as a good example.) But I’m not sure how that general role justifies Judge Brown’s opinion. Judge Brown’s opinion did not purport to express how the demise of Lochner in the 1930s is now “playing out on the ground.” She does not claim to base her opinion on her experience as a judge, or what she is seeing in the lower courts. She does not purport to have any special insight on the problem — just a strongly-held opinion that the Court of the 1930s got it wrong. I guess I don’t see how that provides helpful feedback to the Justices.

The same is true with Schraub’s second point that concurring opinions “help sap judicial decisions of unwarranted and unintended moral endorsements by the judiciary.” While that may have merit in some cases, it does not seem to apply to the opinion in Hettinga. Judge Brown’s opinion does not say that the Milk Regulatory Equity Act of 2005 is moronic but constitutional. Rather, it says that that the law is moronic, and the Supreme Court is moronic for its opinions that require lower courts to uphold it. That is not the kind of opinion that will “sap judicial decisions of unwarranted and unintended moral endorsements by the judiciary.” To the contrary, it is a call to change the law so that constitutionality more closely reflects sound policy — a world in which judicial decisions actually wouldconstitute a kind of endorsement. If the commendable goal of a concurring opinion is to stop people from wrongly thinking that constitutional decisions reflect policy judgments about the merits of statutes, then the concurring opinion in Hettinga strikes me as a step backward rather than forward.

Anyway, I realize that I have a different take on these issues than many others. I tend to be more process-oriented than most, and I think it’s important to keep politics and law as separate as possible. Others don’t have these priorities, and will look at this diffferently.

I recently discovered a blog devoted entirely to privatization, called, appropriately enough, Privatization Blog. The blog was started several months ago by Dru Stevenson at South Texas College of Law, who now has a handful of co-bloggers. The top article is about my Prison Vouchers article from University of Pennsylvania Law Review, which I blogged about here some time ago. A bit further down, you can find a write-up of a paper by my student Sarah Sternlieb, When the Eyes and Ears Become an Arm of the State: The Dangers of Privatization Through Government Funding of Insular Religious Groups (forthcoming in the Emory Law Journal). It’s the blog to watch if you’re interested in privatization!

Also, speaking of prison vouchers, Giovanna Shay of Western New England School of Law has a response to my prison vouchers article up on PENNumbra, One Market We Do Not Need. Here’s Giovanna’s abstract:

Above The Law has the finalists; check out the Columbia and GW ones in particular.

A New York Post editorial says (in a passage that has since been corrected on the site):

Romney has every right to be proud of his family’s accomplishments — as well as his own.

Even as Obama tries to portray it as repugnant — as he did this week with a remark that prompted the former Massachusetts governor’s response. “Unlike some people, I wasn’t born with a silver spoon in my mouth,” Obama said. That’s not just snotty — it’s woefully ignorant of the American spirit.

The trouble is that President Obama didn’t say “unlike some people” (see the portion starting about 9:20 in this video, and this official transcript). He just said (emphasis added):

Investing in a community college, just like investing in a new road or a new highway or broadband lines that go into rural communities, these investments are not part of some grand scheme to redistribute wealth. They’ve been made by Democrats and Republicans for generations because they benefit all of us. That’s what leads to strong, durable economic growth. That’s how America became an economic superpower. That’s how we built the Transcontinental Railroad. That’s why we’ve got the best universities and colleges in the world. That’s why we have cutting-edge research that takes place here, and that then gets translated into new jobs and new businesses, because somebody did the groundwork. We created a foundation for those of us to prosper.

Somebody gave me an education. I wasn’t born with a silver spoon in my mouth. Michelle wasn’t. But somebody gave us a chance — just like these folks up here are looking for a chance.

When you take classes at a community college like this one and you learn the skills that you need to get a job right away, that does not just benefit you; it benefits the company that ends up hiring and profiting from your skills. It makes the entire region stronger economically. It makes this country stronger economically.

Now here’s what seems to have happened. Allahpundit (Hot Air) posted a criticism of President Obama’s speech, with the title

Obama: Unlike some people, I wasn’t born with a silver spoon in my mouth

There were no quotation marks in the title; the poster was characterizing what he thought President Obama was trying to communicate, and not purporting to quote the President’s exact words. [UPDATE: AllahPundit's inference about Obama's intended message echoed what the Washington Post story, to which AllahPundit linked, inferred: "To underscore that argument, Obama took a not-too-subtle swipe at his Republican opponent, Mitt Romney, declaring: 'I wasn’t born with a silver spoon in my mouth.'"] But then Fox News’ Steve Doocy, in an interview of Governor Romney, said,

Speaking of rhetoric, he had some fiery rhetoric pointed at you yesterday. He said, unlike some people, I wasn’t born with a silver spoon in my mouth.

Now that sounds much more like a claimed direct quote. In audio, as opposed to text, one can’t just look to the presence or absence of quotation marks, but the context strikes me as an assertion about the literal words the President actually said. Unsurprisingly, the interview transcript at MittRomney.com interprets Doocy’s question precisely that way. And I infer that the New York Post likely picked up the quote from the Doocy interview.

This might well have all been an honest mistake on Doocy’s part, and an honest mistake on others’ part in believing him. But one reason Fox News and the New York Post get the big bucks, and have researchers on staff, is precisely so they can check what they say before they say it (especially nowadays, when video and transcripts of original events are so easily available) — even when, and perhaps especially when, the supposed “facts” are useful to the speaker’s argument. (Whether or not the initial “I wasn’t born with a silver spoon in my mouth” statement was an implicit dig against Romney, the spurious version with the “Unlike some people” made the statement seem like a pretty clear dig, and, in the Post‘s words, much more “snotty.”)

My friend and former colleague Jessica Herrera-Flanigan was on C-SPAN’s Washington Journal program this morning discussing pending cybersecurity legislation:

If you click here, you can order your own Giclee print of the cartoon from the April 9th issue of the New Yorker, which the website describes as follows:

“I say it’s government mandated broccoli and the hell with it!” A stubborn child sits with his arms crossed at the dinner table and refuses to eat his broccoli.

You can order it in a variety of sizes, matted and framed, or mounted on wood. Makes a terrific Mother’s Day gift.

(Even though the Conde Nast website allows linking its image to Facebook and linking to Twitter, I decided against uploading a copy of the cartoon for this post.  I was not certain that this would be a permitted use under the site license even though I am promoting its sale from Conde Nast.  Others may have a different view.)

Ever so slowly, TSA is closing loopholes in the security system that it jury-rigged on top of the old, airline-run system inherited in 2001.  The biggest loophole in recent years was the way risky travelers were identified. In essence, the airline was told to print a special code on a risky traveler’s boarding pass.  Then, the traveler would carry his pass to the checkpoint, where he’d get special scrutiny. 

That was hardly the best system. It depended on risky travelers themselves hand-carrying security messages from airline to checkpoint.  And it was easy to forge boarding passes that didn’t carry the mark of Cain.

Under a new system now being piloted, TSA will still depend on travelers carrying messages, but at least the messages will be hard to forge. Airlines will use private encryption keys to authenticate and protect the information stored on each boarding pass. Once the information is decrypted at the checkpoint, it will be compared to the information on the traveler’s ID. If the two match, TSA can apply its identity-based security measures with some confidence.

In addition to securing the information on boarding passes, the new TSA system will automate ID-checking.  ID readers will scan for security features and compare the written and the encoded information on IDs to make sure they match each other and the data on the boarding pass. This obviously raises the bar for forgery of both boarding passes and IDs.  It likely also spells the end of black-light flashlights and jeweler’s loupes in the security line. The new system will roll out first at Dulles airport near Washington.

In an effort to address the privacy objections that dog every new measure it proposes, TSA has announced that, after its machines have carefully checked those IDs and correlated them to boarding pass and flight information, TSA will destroy all the data. That strikes me as a choice that’s open to debate.  Enforced amnesia means that all travelers will always look alike to TSA.  I suppose that sounds good if you fear government discrimination, but not if you want a security system that applies different security measures to travelers based on differences in their conduct.