To recap, the issue in Quon is whether city employees violated the Fourth Amendment rights of Jeffrey Quon, a SWAT sergeant who had been provided a pager by the city, when employees went to the pager service provider and obtained stored copies of text messages that Quon had sent using his pager. I think there are three basic issues at play in Quon: 1) Does an individual generally have a reasonable expectation of privacy in copies of his text messages stored by a third party service provider?, 2) If so, is that expectation of privacy eliminated in the specific facts of Quon given that he was a government employee who had been specifically notified that he had no privacy rights, and 3) If Quon did retain a reasonable expectation of privacy, is the search of his messages reasonable under the speical needs exception to the Fourth Amendment? (To be clear, these are my questions, not the formal questions presented.)

I was particularly interested in the first question, as it has tremendously far-reaching implications for how the Fourth Amendment applies to e-mail and other contents of communications sent over computer networks. To put it simply, Question 1 is the question of interest to those of us who follow how the Fourth Amendment applies to new technology; Questions 2 and 3 are of interest to those interested in the general privacy rights of government employees.

I raise this context because the petitioner’s merits brief in Quon simply ignores the threshold first question. Its argument mostly assumes that there are Fourth Amendment rights in text messages generally, but then says that even if this is true, Jeffrey Quon sure didn’t have any of those rights given the specific facts of his case. The only mention of the first question comes on page 29 of the brief, when it notes the first question in passing:

Whatever expectation of privacy a sender or recipient of text messages on a government employer’s equipment can ever legitimately have—if any [fn3] —certainly none existed within the operational realities of the Ontario Police Department.

[fn3] In its amicus brief supporting rehearing en banc, the United States pointed out the serious analytical errors in the Ninth Circuit’s conclusions, arguing, among other things, that there generally is no reasonable expectation of privacy in text messages sent and received. App. 163–180.

The rest of the brief hammers questions 2 and 3, and to my mind quite persuasively.

On the whole, I think it was a wise strategic choice not to argue the first question. The Court granted the case because of Judge Ikuta’s dissent, and her dissent didn’t get into these issues. The facts are very strongly in the petitioner’s favor on the later questions; the Ninth Circuit’s ruling that the operational realities of the workplace didn’t eliminate Quon’s Fourth Amendment rights was an outlier. This framing of the issues lets the Court correct the outlier without going into the other issues.

Further, the Justices probably don’t have any particular interest in speaking on Question 1, as the Ninth Circuit panel decision in Quon was the first circuit to address the issue. Given the rapidly changing technology and the difficult Fourth Amendment terrain, the wise course is to stay out of the issue for now (even though I think there is a correct answer, that a user does normally have Fourth Amendment rights in his text messages). Finally, the City is on much easier ground arguing this case as an uncontroversial no-privacy-for-SWAT-team-officers case rather than a controversial no-privacy-for-text-messages case. So on the whole, it’s a wise choice, even if it does mean that the Court is much less likely to get into the technology issues that I personally find so interesting.

Day 1.15. As the snowdrifts begin to build, making it impossible to go about to Superfresh or Starbuck’s or Pain Quotidien or any other of the city W’s cherished Spring Valley locations, as it mounts just beyond the door, making it impossible even to go out, a slow sense of helplessness and frustration begins to build.  Good, dark Michel Cluizel chocolate helps calm the gnawing anxieties that we will never get out, we will never see the sun again, never get beyond the snowbanks — but the supply, which seemed adequate only yesterday, is now dwindling at an alarming rate.

Day 1.17. Whence this terrible stifled feeling?  The feeling that if I cannot get out, I shall go ... go mad!  I have read of this grim phenomenon, cabin fever.  I believe I have it.  Of course, we should not be surprised; after two or three hours cooped up in the house, who would not be in my condition?  Beloved wife and adorable daughter look on with concern.  I pace and pace.  Shall there be no respite from the weather?

Day 2.6.  I pick up my cello and endlessly play the Ricercars of Domenico Gabrielli.  Only a Renaissance Italian can soothe me.  Beloved wife and adorable daughter are mute with horror, particularly upon the many bad notes on Ricercars 3, 5, and 7, which I don’t know very well and play horribly out of tune.  I feel deeply for them.

Day 3.0.  I awaken to a brief weather report from a station that is signing off in the storm, wishing its listeners good luck and God bless.  More snow on the way.

Day 5.0.  I have finished the collected works of Richard Posner.  I itch with the strange inactivity of it all.  Is that all he has written?  That’s it?  My head thrums with his conversion to Keynes.  Apparently nothing is certain in this world, not even Chicago Law & Economics; we are like dust in the wind.  Nothing can be seen beyond in our windows save for white drifts and gently falling snow.  We are reduced to tins of octopus in olive oil on crackers.  I chew gently on the cephalopod and wonder if this was one of the octopuses that dragged around coconut shells in a sign of non-mammal intelligence and tool-use.  Funny, when I think of tools these days, I somehow think of axes and hatchets, not coconut shells.

Day 6.4.  My Kindle!  My very, very strange Kindle!  It has mysteriously and unbidden delivered me a book by Stephen King.  Listed at 9.99 in the Kindle edition, and yet no charge showed up on my Amazon account — and shortly thereafter, the price shot up to 89.99, with an odd note saying if I wanted to know why this might be so, ask Virginia Postrel.

Day 7.67.  I cannot help myself, I am drawn into The Shining on my Kindle.  Everything about it seems ... so true!  So real!  Snowbound until the end of the semester!  I have never seen myself so clearly before or the world around me.

Day 8.9.  My beloved wife pleads with me to give up the Kindle.  Never!  Never!  It is filled with strange and peculiar graphics that are not the usual portraits of artists and writers.  I know not from whence.  Only that they bid me, they bid me ...

Day 9.5. I have prayed to St. Jobs for relief, but the words ominously drew themselves in the grayscale monochrome of the e-ink ... “It’s a Kindle, chump, not the IPad.”  Then I know all is lost, I cannot save myself — or them!  The messages on the Kindle, so compelling, so seductive, they insinuate themselves into my brain, and they cannot be resisted.

Day ... Jack’s back!

Members of the General Assembly may use athletic clubs or gymnasiums owned by a state or local agency, entity, commission, or institution without charge.

The sponsors are Reps. Williams, Jefferson, Brantley, and Hodges.

There are some methodological problems with the survey (see here and here). In my view, the most important is that it probably oversamples the most committed Republicans. Strong partisans are more likely to hold extreme views, such as the “birther” belief that Obama wasn’t really born in the US (endorsed by 36% of Kos’ respondents). Some 83% of the Kos respondents say they are likely to vote in the 2010 elections, which is a much higher proportion than in the general population; Committed partisans are far more likely to turn out (especially in midterm elections) than lukewarm ones.

Despite such flaws, I think that many of the Kos findings are roughly accurate. The mistake is not the conclusion that partisan Republicans hold many irrational views, but the implicit assumption that this problem is confined to one side of the political spectrum.

I. Ignorance and Irrationality are Common Among Democratic Voters Too.

One can easily find parallel examples for Democrats. Thus, Kos makes much of the finding that 23% of Republicans in the survey say they want their state to secede. But a 2008 Zogby/Middlebury College poll found that support for secession was vastly more common among liberals than conservatives. In that poll 32% of liberals claimed that their state has a right to secede (compared to only 17% of conservatives), and a whopping 33% of African-American respondents (an overwhelmingly Democratic group), said that they would support a secession movement in their state. I suspect that supporters of the opposition party are always disproportionately likely to express support for secession when they are angry at an incumbent administration of the opposite party (as Republicans are today, and Democrats were in 2008). I don’t think that support for secession is necessarily ignorant or stupid. To the extent that it is problematic, it’s not a problem limited to Republicans.

Kos also points out the 36% of Republicans in his study who seem to endorse birtherism and the 22% who say they aren’t sure. Birtherism is indeed ridiculous. Yet a 2007 poll found that 35% of self-identified Democrats believe that Bush knew about the 9/11 attacks in advance, and 26% say they don’t know if he did.

Other examples of ignorance and irrationality by Democratic voters are not hard to come by. For example, some 32% of Democrats believe that “the Jews” deserve a substantial amount of blame for the financial crisis (compared to 18% of Republicans). In November 2008, some 59% of Obama voters did not know that the Democrats then had control of Congress.

II. Voter Ignorance and Irrationality are General Flaws of Modern Government.

The truth is that voter ignorance and irrationality are general shortcomings of modern democracy, not pathologies that afflict only the dim-witted rubes on one side of the political spectrum. As I have argued elsewhere (e.g. here, here, and here), voters have incentives to be “rationally ignorant” about politics because the extremely low chance that any one vote will be decisive means that there is little payoff to acquiring additional knowledge. For similar reasons, they also have incentives to do a poor job of evaluating the political information they do have. Thus, voters tend to discount any information that goes against their preconceptions while overvaluing anything that seems to confirm them. This explains both Republican susceptibility to birtherism and Democratic receptivity to 9/11 conspiracy theories. The problems of voter ignorance and irrationality are exacerbated by the size, scope, and complexity of the modern state, which is so enormous that even the best-informed voters can’t keep track of more than a small fraction of its activities, or rationally evaluate the available data about them.

If you are genuinely concerned about voter ignorance and irrationality, the best solution is to work to reduce the range of decisions made by the political process. When people act in the market and civil society, they have much better incentives to make well-informed decisions, though of course it’s impossible to eliminate ignorance completely. Reducing the size and complexity of government would also diminish the number of issues rationally ignorant voters have to keep track off, thereby enabling them to monitor government more effectively.

For committed partisans, it’s always fun to denounce the other side’s voters. And there’s no shortage of data proving that many of them are ignorant and irrational. Unfortunately, partisan activists tend to ignore the inconvenient truth that their own party’s voters are just as bad.

This turns out to be important in the case involving the jail strip search / visual body cavity search policy, Bull v. City & County of San Francisco. Judge Breyer was the trial judge in that case, so presumably Justice Breyer will recuse himself. So if plaintiffs petition for certiorari, they need five votes without Justice Breyer’s vote (since a 4–4 vote affirms the decision below).

To get to those five votes, plaintiffs would have to get at least two votes from the Court’s conservative wing. I doubt they will get those two votes. They might not even get some of the liberal votes — even Justice Breyer wouldn’t be a sure vote for the plaintiffs. Still, without Justice Breyer, the plaintiffs would have to persuade not just the moderate conservative Justice Kennedy, but also one of the more solid conservatives (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). Pretty unlikely, it seems to me.

So plaintiffs’ lawyers face an especially tough choice when deciding whether to petition for certiorari. The lawyers, given the nature of this case, are interested in jail inmates’ Fourth Amendment rights more broadly, and not just in getting a victory for their clients in this particular litigation. (I suspect the clients have a similar view.) They must thus be worried that if five votes come out against them, the Ninth Circuit precedent would become nationwide, and diminish the Fourth Amendment rights of jail inmates throughout the country. That’s the cost of a cert petition. And the possible benefit of a cert petition seems especially improbable, given Justice Breyer’s likely recusal. So Judge Breyer’s role in this case might lead the plaintiffs’ lawyers to avoid petitioning for Supreme Court review in this case.

UPDATE: On the other hand, here’s a different analysis from commenter tvk:

[If plaintiffs] lose 4–4, with Kennedy joining the liberals and where Breyer’s vote might have made it a win ... from a long-term strategic standpoint, [that’s] not a bad result. The equally divided court creates no precedent; the Ninth Circuit opinion stays on the books but is heavily undermined. Everyone will predict that in the next case, Breyer will jump onboard with Kennedy and the liberals, so you can predict that other courts of appeals will jump in front of the bandwagon. The individual petitioner loses, but that was never quite the point anyway, as you point out.

Maybe so.

I think the majority is correct on the merits, and I also agree with Chief Judge Alex Kozinski’s very interesting and thoughtful concurrence (joined by Judge Ronald Gould, the one Democratic appointee in the majority); the concurrence begins on PDF p. 32. I particularly think that the majority’s result is all but dictated by Supreme Court’s 1979 Bell v. Wolfish decision, which in relevant part reads:

Inmates at all Bureau of Prisons facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution. Corrections officials testified that visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution. The District Court upheld the strip-search procedure but prohibited the body-cavity searches, absent probable cause to believe that the inmate is concealing contraband. Because petitioners proved only one instance in the MCC’s short history where contraband was found during a body-cavity search, the Court of Appeals affirmed. In its view, the “gross violation of personal privacy inherent in such a search cannot be outweighed by the government’s security interest in maintaining a practice of so little actual utility.”.

Admittedly, this practice instinctively gives us the most pause. However, assuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, we nonetheless conclude that these searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, and under the circumstances, we do not believe that these searches are unreasonable.

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record, and in other cases. That there has been only one instance where an MCC inmate was discovered attempting to smuggle contraband into the institution on his person may be more a testament to the effectiveness of this search technique as a deterrent than to any lack of interest on the part of the inmates to secrete and import such items when the opportunity arises.

We do not underestimate the degree to which these searches may invade the personal privacy of inmates. Nor do we doubt, as the District Court noted, that on occasion a security guard may conduct the search in an abusive fashion. Such abuse cannot be condoned. The searches must be conducted in a reasonable manner. But we deal here with the question whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.

(I realize that the dissent argues, focusing on the last two sentences of this excerpt, that Bell “set the justification for strip searches at something less than probable cause, but declined to explicitly specify the level of suspicion.” But I don’t think that’s right, given the entire passage, which expressly upheld a blanket policy with no requirement of individualized suspicion and no categorical exemption of certain supposedly safer classes of inmates.)

Thanks to the invaluable How Appealing for the pointer.

UPDATE: Thread winner from commenter Roscoe:

Typical liberal Ninth Circuit opinion. When Judge K reached for the heavy weapons he could have gone with the Javelin or TOW. But no, it had to be something made in Sweden.

*

(Update 2:)  Let me add, based on the comments from Dutch scholar Martinned and others, it is starting to look as though Greece is not bribable because the rest of the EU doesn’t really have a legal option to force them out — meaning, quite apart from Greece’s internal coordination problems, its rational move is to threaten default and force the rest of the EU, ie Germany, to bail it out, under whatever suitable language and political cover can be found.  That does not seem like an irrelevant conclusion to investors.

How you frame that as an investment bet is not completely clear, however.  Betting against the euro is consistent with this hypothesis  - if it is true that Greece can’t be forced out, and it either defaults or gets bailed out, hard to see that this is not bad for the euro.  But now, betting against Greek bonds?  If you think Greece will get bailed out, then why bet against them?  But maybe you would prefer to see pressure put on Greek bonds in order to drive up the value of your euro-short?  The interaction of Greek bond strategies and short-euro strategies makes it hard to see a clear result simply from the surface of Greek bond spreads, looking back to the chart I posted yesterday.  Or am I missing something?  (End update.)

*

However, hunting around for Coase Theorem hypotheticals that didn’t involve the standard nuisance and pollution type cases for my 1L law and economics course — pure hypos without transaction costs, then gradually adding transactions costs back in — it occurred to me that I could structure a hypo around this kind of issue.

So ... as the WSJ and FT pointed out in my earlier posts on Greece and the problems of the southern Eurozone as against the northern Eurozone of Germany, the two main options for Greece are

• (i) withdraw from the Euro and devalue; or
• (ii) get a bailout from the Eurozone, which is particularly unpalatable to German voters (but which anyway would come with fiscal requirements that it seems hard to believe that Greece would ever persuade itself to meet).

Is there a way in which Germany and the still solvent part of the Eurozone of the north could bribe Greece to “temporarily” withdraw from the Euro?  Reaching an “efficient” solution in which Germany pays less than it otherwise would from a full euro-bailout, but pays something, essentially as a premium for getting Greece out of the euro with all the long term risks that presents.

(Note, from a Coasean perspective, that one of the problems here is not just transaction costs, but apparently the problem that the legal rights are not fully specified.  I mean by that in part that it’s not clear (so far as I can tell, I might be wrong) how and whether there are any options for forcing Greece out of the euro, or whether it has an absolute right to stay in or stay in with consequences legally specified or not specified.  Maybe all that is somehow spelled out in various Eurozone agreements and directives, and I’ll leave the international banking lawyers to tell me, but I’ve been unable to see something that clearly specifies the legal rights involved.)

I assume there is also a problem of past debts already being denominated in euros.  And probably lots of other problems as well.  However, explain why, or why not, it would not be in principle a good idea to combine the two options above and have the Eurozone pay to have Greece withdraw.  With some kind of politically face-saving explanation about “temporary” or what have you — but still getting out?  What and how much (or at least the factors affecting such) would the solvent Eurozone have to pay, and what would be the pressures on that price — I assume the implied costs of the legal rules involved, related to default, forcing Greece out, other things.

Am I right in thinking that someone must already be far, far along the curve in thinking through such possibilities?  Can someone point me to published sources?  Or is there a reason why this idea is a non-starter?  Finally, how would you frame this as a Coasean hypothetical, limited to one paragraph and highly simplified?  Or is it somehow not suited to work as a Coase Theorem hypo?

(Update:)  Thanks to Dutch international law scholar Martinned in the comments to an earlier post, here is a summary of the relevant rules regarding ‘in’ and ‘out’ of the euro.  Two further questions:

• First, does this support the proposition that Greece won’t be bribable because staying in the euro is its best deal?
• Second, does this sufficiently specify the legal rights such that you could create a Coase Theorem hypo based around bargaining by, let’s say for simplicity, Greece and Germany?  Even if the result were, Greek default?

Martinned@prof. Anderson: Everything you need to know about countries being kicked out of the Eurozone, leaving unilaterally, etc. is in this ECB working paper from December. In a nutshell, the answer is that it can’t be done. The Treaties are written based on the assumption that all EU member states are members of the Eurozone, and that to the extent that some are not, this is temporary. The idea of going from inside the Eurozone to outside was simply never contemplated. Under the Lisbon Treaty, Greece now has the explicit right to leave the EU as a whole, but there is no way to make a country leave the EU. A country’s voting rights in the Council can be suspended for human rights infractions, and a country can be fined for sins against the stability and growth pact. Those are about the most drastic measures that can be taken.

So nobody can force anybody to do anything. Greece can’t be forced out of the Euro or the EU, and the others can’t be forced to bail Greece out. (At least not legally.) If Greece defaults, that is unfortunate, but the only consequences that would have for the other MS are economic. (i.e. Market panic and other contagion.)

I say that this is bizarre because I think friends of Israel would love to see media outlets adopt the standard proposed by Bronner’s critics, so long as it applies to both sides.  If the fact that Bronner’s son is serving in the Israeli military means that Bronner can’t be permitted to report on Israel and the territories, then Western media outlets should henceforth be banned from hiring Palestinian stringers who are responsible for doing much of the “on-the-ground” reporting in the West Bank and Gaza.   After all, if an American whose son joins the Israeli military as a non-citizen is too tied to one side to report the news, surely actual Palestinian citizens–many of whom no doubt have close friends and relatives affiliated with Hamas or the Palestinian Authority–are even more suspect.  It’s no secret that much of the hostile reporting against Israel in the Western media originates from work done by these stringers, both “journalists” and photographers.

For that matter, I assume we can expect Bronner’s critics (and Western media outlets) to no longer rely on reports from Human Rights Watch and other anti-Israel NGOs.  If Bronner’s objectivity is in question because he might be biased in favor of Israel, what of “factual” NGO reports commissioned by individuals who are blatantly hostile to Israel?  What about, for example, the likes of HRW Middle East director Sarah Leah Whitson, who lobbied in the U.N. against Israel and for the Palestinians during the Second Intifada, just before she joined HRW?

I could go on, but the point is that if the Western media is going to start seriously ferreting out biases and potential biases in how it reports on Israel, I don’t think Bronner’s critics would like the result.

UPDATE: Of course, Bronner’s critics likely expected the Times to keep Bronner on his Middle East beat, but hope that by stirring this controversy, Bronner will feel the need to bend over backwards to report the Palestinian side of the conflict, to show that he is “objective”.  They may be right.

Writing on December 31, University of Richmond law professor Carl Tobias placed much of the blame on Republican obstruction, while excusing the Administration’s slow trickle of nominations and Senate majority’s focus on other priorities.

Recent criticisms of President Obama’s judicial nomination practices lack merit. The Judiciary panel majority expedited processing, but the minority’s routine dependence on holds has contributed to delay. The real obstacle has been the almost total dearth of floor action. Republicans must quit stalling floor consideration. If the GOP persists, Democrats should invoke cloture and similar measures that will foster prompt confirmations.

Tobias criticized Senate Republicans for holding over votes on committee or seeking more time for debate, yet ignored Senate Democrats’ use of the same tactics during Bush’s presidency. Indeed, Senate Democrats held over votes at a higher rate at the start of Bush’s first time than Republicans have thus far for Obama.  This doesn’t excuse the practice, but it undermines the claim Republicans are engaged in unprecedented obstruction.

Writing on Feb. 2 in Roll Call, Tobias was more even-handed, noting there are other explanations for the slow pace.

That the Senate has approved 14 judges and Obama has nominated 38 individuals are not criticisms of the president or the Senate. Appointing a new Supreme Court justice before the October 2009 Supreme Court term began was critical. Justice Sonia Sotomayor’s confirmation process consumed three months during which little additional judicial selection activity transpired. The previous administration also left numerous complex problems, such as the deep, ongoing recession; the Guantánamo Bay, Cuba, prison; and the Iraq and Afghanistan conflicts, which required much executive and Senate energy and time.

This is a point I’ve emphasized: The Administration’s focus on other matters, including Supreme Court nominations, combined with the concentration of judicial vetting in the White House Counsel’s office has led to fewer nominations and less pressure to confirm those in the queue.

In his Roll Call piece Tobias also noted that there is a long history of escalating tit-for-tat in judicial nominations.

Since the 1987 fight over Judge Robert Bork’s Supreme Court nomination, Democratic and Republican charges and countercharges as well as nonstop paybacks have plagued judicial appointments, mainly because of divided government. Although Democrats currently control the White House and the Senate, they should work closely with Republicans to halt or ameliorate this counterproductive cycle.

While he’s correct to note the “nonstop paybacks” that have “plagued” the judicial confirmation process, but I think the emphasis on the Bork nomination as a turning point is a mistake.  The Bork fight angered many Republicans, to be sure, but Bork was nominated to the Supreme Court, where the rules may be different.  Modern fights over appellate nominations actually began a few years earlier, when Democrats decided to target some of President Reagan’s lower court nominees, as the Washington Post reported on November 12, 1985.   As the Post reported:

Since they are loath to oppose a nominee solely on ideological grounds, the Democrats have trained their fire on other issues — credibility, temperament, discrepancies in testimony — to wound the most conservative nominees for judgeships and Justice Department vacancies.

When Democrats retook the Senate in 1986, they were able to begin defeating nominees.  Jeff Sessions, who now sits on the Senate Judiciary Committee, was the first they brought to defeat.  The late Bernard Siegan was another.  Other nominations were substantially delayed, as Senate Democrats sought to run out the clock on the Reagan Administration in case voters elected a Democratic successor.  Senate Democrats eased up a bit at the beginning of the Bush Administration, only to up the obstruction in the latter half of his term.  Senate Republicans, of course, returned the favor to President Clinton, and then some. And so on.

The simple fact is that since Senate Democrats began challenging lower court nominees in the 1980s, both parties have engaged in escalating obstruction of lower court judicial nominations, and both parties will need to make concessions if this destructive practice is going to end.  While Tobias repeats the White House talking point that President Obama has named 12 “consensus” and ideologically “diverse” appellate nominees (?!), the reality is President Obama has little to reduce nomination tensions.  President Bush, by contrast, nominated two individuals favored by his predecessor at the start of his term — Roger Gregory and Barrington Parker.  Perhaps if President Obama would follow Bush’s lead, it could lead to a deal to end political fights over appellate nominations.

UPDATE: It’s also worth noting Senator Jeff Sessions’ Nov. 27 op-ed explaining his decision to vote against cloture on the nomination of Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit, in which he expressed his willingness to eliminate filibusters of judicial nominees altogether if Senate Democrats would go along.

This year, a number of my colleagues and I have voted against just three judicial nominees, including Justice Sonia Sotomayor. Only in the case of Judge Hamilton have we raised a procedural objection to Majority Leader Harry Reid’s desire to proceed to a vote.

For Republicans to ignore the changed rules would be to acquiesce in a system where 60 votes are needed to confirm judges nominated by Republicans, but only 51 are required to confirm judges nominated by Democrats. To allow such a double standard would be akin to unilateral disarmament.

A return to the tradition of up-or-down votes on all judicial nominees would, I believe, strengthen the Senate. I have offered to discuss with my colleagues ways this could be permanently codified in the Senate’s official rules. So far, no takers.

Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.

One thing found interesting about the story was its characterization of various prospective nominees.  Specifically, Bravin reports that the President’s lagging approval ratings could prompt a “less-controversial” nominee, such as D.C. Ciruict Judge Merrick Garland or Solicitor General Elena Kagan.  I certainly agree that Judge Garland would be a relatively uncontroversial choice, as Garland has a well-deserved reputation as an exceptionally intelligent, moderate judge.

SG Kagan also commands wide respect, and is highly qualified even if she lacks judicial experience, but I wonder whether she would be a “less-controversial” choice than some prospective alternatives.  As Ed Whelan notes, 31 Republicans voted against her confirmation to SG, suggesting she her nomination would start with a significant base of GOP opposition.  Given the prevailing political winds, I also wonder whether some Republicans will be more willing to fight against a nominee picked from within the administration.

I was also struck by the article’s suggestion that Judge Diane Wood would spark greater opposition than Kagan, largely due to her opinions in abortion cases.  As I’ve noted before, I’ve long thought Judge Wood was an obvious Democratic choice, and is so well-qualified that she would be safely confirmed.  I would also think that, right now, it would be easier to confirm a highly regarded appellate judge from the midwest than an administration insider.  But what do I know, I’m just a midwestern academic who’s old-fashioned enough to believe the Senate should be relatively deferential to a President’s judicial picks.

UPDATE: Justice Clinton? Color me skeptical.

UPDATE: More speculation here.

Senate Majority Leader Harry Reid used to consider recess appointments “an end run around the Senate and the Constitution” — so much so that he kept the chamber open during breaks to prevent President George W. Bush from making any more of them.

But with a Democrat in the White House, and Republicans blocking executive branch nominees, Reid and his allies are starting to sing a different tune.

Reid said last week that he’s “tried hard” to avoid the need for President Barack Obama to make recess appointments, but he added: “What alternative do we have? . . .

While Obama has so far shied away from using recess appointments, the Constitution gives presidents the power to install appointees to vacant positions when the Senate is on a recess.

Such appointments last only until the beginning of a new session of the Senate, meaning any Obama recess appointment would hold their posts until next year — when Republicans are likely to have more seats in the chamber.

Bush made 179 recess appointments, and President Bill Clinton made 139, according to the nonpartisan Congressional Research ServiceSen.

Reid’s change of heart appears motivated, in part, by Senator Richard Shelby’s blanket hold on some 70 pending nominees.  Yet as Politico also reports, Sen. Reid imposed a blanket hold of his own in 2004 to get a federal appointment one of his advisors.

The Constitution authorizes recess appointments, even if modern use of the power is more expansive than the Constitution may have contemplated.  As I see it, recess appointments are an appropriate response to the Senate’s persistent refusal to confirm nominees with strong majority support, particularly if that support is bipartisan.  As a practical matter, recess appointments risk political backlash, particularly if they are overused.  In this regard it is notable that President Bush made only four recess appointments after Democrats retook the Senate in 2006, after having made 175 during his first six years.

UPDATE: The NYT reports Senator Shelby has lifted his holds on all but three nominees whose positions are related to the Defense projects he’s seeking to advance.

At the very least, however, the fiasco of the Bush National Guard story shows that Ms. Starr did not provide her Internet readers, or CBS, with a story which could withstand factual scrutiny. Accordingly, if Avalon’s reporting is correct, he has provided yet another reason for people to disbelieve the (already-implausible) assertion that President Obama was not born in the United States. In contrast to the way the mainstream media initially handled the 2004 Bush National Guard story, the mainstream media did a better job in 2008 by not embracing a story about a presidential candidate which could not be supported by solid, verifiable facts.

On the one hand, the Erasmians — the true believers, the ones who thought you just marched toward political union because it was, well, what civilized people did.  These folks included many of the non-economist professors, the law professors particularly.  I have long been struck by the astonishing levels of intellectual and ideological production — prodigious, really — by EU professors well-funded by the EU itself to come up with theories about why the EU was going to be such a dandy thing.  I long thought of it as a perfect instance of creating your own demand.

The result of all this prodigious activity was the marvelous elaboration of a vast edifice of constitutional structure, most of it aimed at saying that the EU could not go wrong as a project of union, if it just kept at it.  Go onto SSRN and see how much stuff continues to be cranked out in the category of constitutional theory about the EU itself.  What an observer on the outside might have thought was a pretty historically contingent project is made to look like the Unfolding of History as It Must Unfold.

I mean, of course it might work out that way.  But if so, it hardly seems like it on the basis of the theories offered by academics at institutions sponsored by the edifice presumably under study.  (This phenomenon of funders creating their own demand for ideological product is, of course, just as ordinary in the United States.)  Anyway, these are the Erasmian true believers.  They seem to be mostly law professors.

On the other side are the realists and skeptics who might, slightly paradoxically, still favor ever closer union — but for the opposite reason.  Many of them are economists.  They see the whole thing as a bicycle about to fall over.  It has to get up to speed to keep going.  Far from “naturally” unfolding according to a special Natural Law that God has especially enacted for the benefit of the EU, on the contrary, the bike is wobbly, unnatural, lacking in balance, and only forward momentum can save it.  The present moment is the worst, because it represents precisely the gap between currency union and fiscal/political union.

These two are not mutually exclusive positions, of course.  One can have some of both.  It’s simply my perception of the divide, as someone who reads the literature from each.  The easy money years underwrote the feeling that maybe it was possible to have monetary union without fiscal/political union, but the artificial supports have dropped away and everything is wobbling again.  The one thing I can predict with utter certainty as a law professor is that the EU will put up funding to produce yet a new iteration of constitutional theory to show how all this, too, will lead to ever closer union.  Look for the wave of papers over the next four years on SSRN.

My skepticism is about ideology, by the way — I am mostly an admirer of the EU and what it has done in many things, starting with the long term transformations in Spain, Portugal, and Greece, to start with, let alone the expansion eastwards.  But that does not lead me to any belief that it has worked out the deep internal contradictions in the political governance project, and less still any view that the EU points the way to some genuinely new kind of governance structure in human affairs.  It might, I suppose — I’m not ruling it out.  But let’s give it, say, a hundred years to see if it has staying power before we draft up too many theories of its historical inevitability.

In any case, how much does it matter? I’m not referring to myself — I mean simply that the Obama administration’s pooh-bahs seem to have written off Europe as the past, Asia is the future.  The irony is that it is precisely on account of striving so desperately, so mightily, to become a Western European democratic socialist state that the Obama administration feels no need any longer to look to Europe.  It has already priced-in internally anything of ideological value Europe might have to offer, on account of the transformations under way in the US.  We’ve now got — thanks to the decension of Bush and the inclension of Obama –anything of value Europe might offer in the way of values, so why pay attention to those losers?  What could Europe possibly teach President Obama about community, fraternite, welfare, socialism, social safety nets, unions, public sector employment, all the rest of the stuff in which Europe ideologically specializes?  This is President Obama, after all — on all of these things, O Europe, you should learn from him.  And from Rahm Emanuel.

Of course, the one missing piece of that puzzle is how it is that Europe went into decline, and whether that lesson for the US has been priced-in ....

We Atlanticists should all have paid greater attention to Raymond Aron.

(You might also want to see my more general discussion in a post above on the directions of the EU regarding the unstable position of currency union without political/fiscal union.  Some people have raised some objections particularly to that post’s closing paragraphs regarding how the Obama administration views Western Europe — essentially losers in the globalized world, and no one worth paying attention to because anything of value that might have been learned from the internal European social democratic model has already been absorbed and priced into Obamism.  But I think it’s right — and I think that is the conclusion that European leaders have been drawing about what, not just Obama, but his senior cadre of intellectuals and elites think about Europe.

That’s quite apart from thinking that the Obama administration has so thoroughly absorbed the European lesson that a massive internal democratic socialist welfare state means geopolitical decline, that Obama is not just a weak leader in foreign policy — personally weak, as Sarkozy clearly thinks — but structurally weak as well, meaning that the foreign policy weakness is built into the structure of domestic policy shifts to a massive social democratic state.  These European leaders know better than anyone on the planet how the shift to their domestic social model implies geopolitical decline.  So they have no doubt as to where Obama is taking the US in foreign affairs.  As I said in the later post, we Atlanticists should have read Aron more recently.)

From the FT:

Traders and hedge funds have bet nearly $8bn (€5.9bn) against the euro, amassing the biggest ever short position in the single currency on fears of a eurozone debt crisis ...  The build-up in net short positions represents more than 40,000 contracts traded against the euro, equivalent to $7.6bn. It suggests investors are losing confidence in the single currency’s ability to withstand any contagion from Greece’s budget problems to other European countries.

The WSJ’s ‘Heard on the Street’ has an interesting item today comparing California and Greece from the standpoint of the bond markets.  Bottom line is that California fares far better than Greece in investors’ minds.  It’s a question, of course, how much of that is attributable to how investors see the underlying economies of each place and, instead, how investors are pricing the sugar daddi, er, the US government and EU-Eurozone institutions that might be called upon to offer a bailout.  But in terms of spreads, take a look at this chart from the story:

It is important to bear in mind that these kind of spreads can turn very quickly — indicators of short term sentiment concerning something that is basically a political and so, these days at least, a volatile issue.  These spreads for California could turn tomorrow, depending upon how investors read signals from Washington DC, or several other places.  Thus the WSJ article notes with respect to Greece’s dire situation:

Adoption of the euro, by removing the threat of currency fluctuations, encouraged yield-hungry investors to bid up Greek bonds. Leverage allowed Greece to run big current account deficits, despite low productivity growth. The result, once the credit bubble burst, is today’s crisis. There is no easy European fix.

Greece has two main options to restore competitiveness and narrow its current-account deficit: Withdraw from the euro and devalue, or win large and ongoing transfers from European states with surpluses like Germany.

Leaving the euro looks unpalatable. Bilateral transfers to Greece, even dressed up as loans, would be hard to sell to German voters. And such aid wouldn’t address Greece’s lack of competitiveness. Only grinding domestic deflation, with the risk of social unrest, or withdrawal from the euro could do that.

The imposition of EU “discipline” on Greece in return for transfers would represent creeping political union of an undesirable kind – one forced by Germany for fiscal reasons rather than one negotiated by member states. But Greece’s saving grace may be a default there would likely drag down Spain and Portugal. Such a risk will concentrate minds in Europe to find a solution, even if a bailout would not answer the question of the euro’s suitability for uncompetitive Mediterranean economies.

I’ll take up separately the question of California.  Likewise the question of political economy in the Eurozone — currency union without political or fiscal union?  But the article essentially thinks that California is saved not by a better internal structural economy, but instead because of its place deep in the heart of its guarantor.  California has better political hold-up.  It’s got better positioning to be able to force the US as a whole to internalize its difficulties, in ways (according to the article) that Greece will likely not be able to do with German voters.

One last quote from the FT quoted in the update:

Thomas Stolper, economist at Goldman Sachs, said: “ Behind this intense focus on Greece obviously is the long-standing unresolved issue of how to enforce fiscal discipline in a currency union of sovereign states.”

(My class will have lots and lots of time to read, as class has been canceled and school closed — here in DC, the university hasn’t been open since last Thursday!  So I assume that my students are virtuously all snuggled up with texts on private equity, reading aloud with furrowed brows and cups of hot cocoa in one hand and yellow highlighter in the other.)

Plaintiff contends that Defendants are a public nuisance because the “activity” that Defendants engage in interferes with a “parent’s right to guide his child in a moral fashion” and interferes with “the moral standards of the community.” Under Texas law, a public nuisance “is maintained by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare.” Neither in his complaint nor during the initial pretrial conference was Plaintiff’s counsel able to allege the factual basis on which Defendants’ activities could be said to constitute a public nuisance. In fact, Plaintiff’s counsel, when asked during the initial pretrial conference to explain his public nuisance claim, was unable to name the elements of a public nuisance....

Plaintiff bases his third cause of action, his parental rights claim, on the grounds that Defendants failed to obtain parental consent before allegedly providing the morning-after pill to Plaintiff’s daughter. Plaintiff offers no other factual basis for this claim. Further, Plaintiff provides no legal basis for this claim. Indeed, when Plaintiff’s counsel was asked at the initial pretrial conference to provide authority for this cause of action, he stated, “I thought it was so basic I didn’t bother to do research.” Plaintiff has thus failed to state a claim for which relief can be granted for each of the three causes of action asserted, pursuant to Federal Rule of Civil Procedure 12(b)(6).

Not good.

An abstract is a short summary — one to three paragraphs — of an article. Some journals include an abstract at the start of the article, or put all the abstracts from an issue on the issue’s table of contents, or put the abstracts on the journal’s Web site. These journals will either require you to write the abstract, or will offer to write it for you. Reject their offer, and write the abstract yourself: It’s your article, and you’ll know better how to summarize it effectively.

But even if the journal doesn’t publish an abstract, you should write one anyway. Services such as the Social Science Research Network (see p. 265) maintain e-mail distribution lists through which hundreds or thousands subscribers get abstracts of forthcoming articles. These distribution lists are invaluable tools for you to get readers for your work.

Whether in a law review or on a distribution list, the abstract is an advertisement for your article. True, you don’t want money from your “customers” (the audience) — you want their time and attention. But their attention is scarce, and lots of authors are competing for it. You want readers to “buy” your article in one of two ways:

1. by reading the article (or at least the Introduction) right away, or
2. by remembering it (even if just vaguely) for the future, so that when the underlying issue becomes important to them, they can find and read the article then.

And the audience for your advertisement is quite demanding. They’ve generally found the abstract just through a quick skim of an SSRN e-mail or a law review table of contents. (People who find the article through a citation or a Westlaw or Lexis search are probably more likely to skim the Introduction, which is immediately available to them, rather than starting with the abstract.) Readers of your abstract therefore aren’t at all sure the article will be of any value to them.

You need to quickly show them this value. You need to clearly and tersely tell the reader (1) what problem the article is trying to solve, and (2) what valuable original observations the article offers. Naturally, the abstract can’t go into much detail. But it has to at least give the reader a general idea of what the article contributes.

Here, for instance, is an adequate abstract, adequate because it quickly captures the essence of the value added by the article:

People often argue that symbolic expression — especially flag burning — isn’t really “speech” or “press,” and that the Court’s decisions protecting symbolic expression are thus illegitimate.

But it turns out that the original meaning of the First Amendment likely includes symbolic expression. Speech restrictions of the Framing era routinely treated symbolic expression the same as literal “speech” and “press.” Constitutional speech protections of that era did so as well, though the evidence on this is slimmer. And the drafting history of the phrase “the freedom of speech, or of the press,” coupled with the views of leading commentators from the early 1800s, suggests that the First Amendment’s text was understood as protecting “publishing,” a term that at the time covered communication of symbolic expression and not just printing. Though the Court has never relied on this evidence, even originalists ought to accept the Court’s bottom line conclusion that the First Amendment covers symbolic expression.

The first sentence does three things. First, it notes the general topic of the article — the First Amendment and symbolic expression generally. Second, the sentence identifies the specific focus of the article, which is whether the text of the First Amendment must be read as protecting only “speech” and “press” and not symbolic expression. Third, the sentence very quickly provides a concrete illustration (flag burning) for the abstraction (symbolic expression).

The second sentence explains the article’s claim: The original meaning of the First Amendment likely covers symbolic expression. Readers who stop reading there will at least remember something like “There’s an article that says that even originalists should approve of the Court’s flagburning decisions.”

That would be an oversimplification of the article’s claim, but that’s fine — any one-sentence summary that lingers in people’s minds will inevitably be an oversimplification. The important thing is that if the issue comes up for readers in the future, they might well search for the article, find it, read it, and use it. And, if the author is lucky, maybe some readers will be interested enough to actually read the article right away, or at least move from reading the abstract to reading the Introduction.

The next three sentences quickly summarize the main arguments that the article uses to support its claim. These arguments — here, historical assertions, though for another article they might be normative arguments or empirical findings — are part of the contribution that the article offers. Again, the summary is an oversimplification, and as a result may not be entirely clear to all readers. But it should at least give the reader a glimpse of the observations that the article makes.

Finally, the last sentence ties the argument to the caselaw: The sentence explains that this is an article that offers historical support for the Court’s precedents, rather than arguing against the Court’s precedents.

Many authors try to fit an abstract into one paragraph, and some journals seem to prefer that. I advise against this, unless the abstract is very short. Shorter paragraphs tend to be more readable, and longer paragraphs tend to be alienating to many readers. And the reader of the abstract will likely be the sort of reader who is especially unmotivated to read further. The more you can do to make the abstract appealing, within the space constraints you’re given, the better.

Likewise, I like including numbering, for instance in this abstract:

How should state and federal constitutional rights to keep and bear arms be turned into workable constitutional doctrine? I argue that unitary tests such as “strict scrutiny,” “intermediate scrutiny,” “undue burden,” and the like don’t make sense here, just as they don’t fully describe the rules applied to most other constitutional rights.

Rather, courts should separately consider four different categories of justifications for restricting rights: (1) Scope justifications, which derive from constitutional text, original meaning, tradition, or background principles; (2) burden justifications, which rest on the claim that a particular law doesn’t impose a substantial burden on the right, and thus doesn’t unconstitutionally infringe it; (3) danger reduction justifications, which rest on the claim that some particular exercise of the right is so unusually dangerous that it might justify restricting the right; and (4) government as proprietor justifications, which rest on the government’s special role as property owner, employer, or subsidizer.

I suggest where the constitutional thresholds for determining the adequacy of these justifications might be set, and I use this framework to analyze a wide range of restrictions: “what” restrictions (such as bans on machine guns, so-called “assault weapons,” or unpersonalized handguns), “who” restrictions (such as bans on possession by felons, misdemeanants, noncitizens, or 18-to-20-year-olds), “where” restrictions (such as bans on carrying in public, in places that serve alcohol, or in parks, or bans on possessing in public housing projects), “how” restrictions (such as storage regulations), “when” restrictions (such as waiting periods), “who knows” regulations (such as licensing or registration requirements), and taxes and other expenses.

Though it’s unusual to number individual clauses in normal prose, here the numbering quickly shows the hurried reader how the sentence is structured, and what the four elements of the proposed framework are. It might have even been helpful to do something similar in the last paragraph. But on the other hand too much numbering might have annoyed readers — a bit of departure from standard prose style is fine, but too much would make the abstract look odd. And the quotation marks surrounding the key items in the last paragraph probably provide some internal delimiters that can serve as alternatives to numbering.

The truth is that given the state of American politics, the way the Senate works is no longer consistent with a functioning government. Senators themselves should recognize this fact and push through changes in those rules, including eliminating or at least limiting the filibuster. This is something they could and should do, by majority vote, on the first day of the next Senate session.

Don’t hold your breath. As it is, Democrats don’t even seem able to score political points by highlighting their opponents’ obstructionism.

It should be a simple message (and it should have been the central message in Massachusetts): a vote for a Republican, no matter what you think of him as a person, is a vote for paralysis.

Actually, I think that this was the central Republican message in Massachusetts.

Here’s the district judge’s explanation:

Plaintiffs will argue that so holding conflicts with the Ninth Circuit’s decision in Friedman. However, Friedman did not engage in a thorough totality of the circumstances test: it did not consider government interests beyond supervision, nor did it examine the extent of Friedman’s privacy interest. See 580 F.3d at 862–65 (Callahan, J., dissenting) (dissent, instead, conducted balancing analysis between individual’s privacy interests and government’s legitimate interest in identification). Though Friedman warns that “[n]either the Supreme Court nor our court has permitted general suspicionless, warrantless searches of pre-trial detainees for grounds other than institutional security or other legitimate penological interests,” the Court finds that doing so here — certainly at this stage of the litigation — is proper under the totality of the circumstances test required by Rise, Kincade and Kriesel [earlier cases upholding forced DNA swabs of people convicted of a crime].

But I don’t see how this can be right: Part III-C of Friedman expressly considered whether the search was justifiable under a general Fourth Amendment “reasonableness” analysis — the same analysis that is often described as a “totality of the circumstances” test — and held that it wasn’t justifiable. It also did consider “the extent of [the claimant’s] privacy interest,” holding that “We have long recognized that pre-trial detainees retain greater privacy interests, for the purposes of Fourth Amendment analysis, than do persons who are incarcerated pursuant to a valid conviction” (thus distinguishing Friedman’s claim — and by extension the plaintiffs’ claim in Haskell — from the Rise, Kincade, and Kriesel precedents). And it also considered, in the “special needs” discussion, the asserted “government interest asserted by Nevada in taking Friedman’s DNA was to help solve ‘cold cases,’” certainly a “government interest[] beyond supervision.”

Now perhaps the district judge thinks that Friedman’s analysis of this was too sketchy; and maybe he’s right. (I’m not sure what the right Fourth Amendment analysis should be here, either as a matter of Fourth Amendment first principles, or under the emerging Fourth Amendment “reasonableness” test.) But it seems pretty clear that Friedman is the most on-point precedent, and that under it the testing of arrestees’ DNA — especially for purposes that include solving crimes, and not just identifying this particular arrestee — is unconstitutional. Or am I missing something here?

The non-violent Civil Rights protesters allowed themselves to be beaten in public while the media watched; the images helped win sympathy for the Civil Rights Movement in the North, and proved to be crucial in developing the political will for the passage of the Civil Rights Act of 1964.

In a limited sense, the media’s presence provided some protection for the protesters; there was never a case in which a civil rights protester was murdered in front of media cameras. At night, when everyone had gone home, things were very different. As Salter later explained:

I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.

When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus — faculty and students together — on that and subsequent occasions. We let this be known. The racist attacks slackened considerably. Night-riders are cowardly people — in any time and place — and they take advantage of fear and weakness.

Later, I worked for years in the Deep South as a full-time civil rights organizer. Like a martyred friend of mine, NAACP staffer Medgar W. Evers, I, too, was on many Klan death lists and I, too, traveled armed: a .38 special Smith and Wesson revolver and a 44/40 Winchester carbine.

The knowledge that I had these weapons and was willing to use them kept enemies at bay. Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.

In the 1970s, I was Southside director of the large, privately-funded Chicago Commons Association. Our primary focus involved assisting minority people in developing sensible community organizations — vis-a-vis schools, city services, anti-crime.

We were opposed by white racist organizations (e.g., Nazi Party) and various youth gangs of many sorts. My staff and I received countless death threats, there were arson attacks on our offices, and, on one occasion, men with weapons came to my home and told my wife and children that they intended to kill me. (I happened to be at work.)

Again, I was glad I had many firearms and, again, we guarded our home and let this be known. We responded to hate calls on the telephone by telling the callers we were quite prepared for them.

For Salter, the right to own a handgun was apparently a crucial part of his ability to exercise his right to defend himself and his family, which was a sine qua non of his ability to stay alive in order to exercise his First Amendment rights to advocate for enforcement of the Fourteenth Amendment.

Yet in modern Chicago, decent law-abiding citizens are forbidden to own handguns. As I detailed in my amicus brief  in McDonald v. Chicago (pages 39–45), many people find that a handgun is best choice for family defense, especially in urban areas such as Chicago. As the history of the Civil Rights Movement demonstrates, the denial of the constitutional right to own a handgun could endanger other constitutional rights, particularly the rights of community organizers.

I’ve argued that the ban is constitutionally permissible, because it fits within the knowingly-false-statements-of-fact exception to First Amendment protection. But it is definitely not content-neutral.

There are more clips on YouTube of other Green Police spots, so this looks like the start of an ongoing campaign. I suspect the visceral reaction of many Americans will not be what Audi intended or desired, but maybe these folks are not the Audi market. Is Audi the new Volvo? How is Volvo doing these days anyway?

Question 2 asked the Left if Democrats would benefit politically from another televised Q&A session by President Obama with House Republicans. Seventy-eight percent of the Left expected Democrats to benefit. Right-leaning bloggers were asked if Republicans would benefit, and 57 percent said yes. I was in the majority: “All Americans would benefit. All Republicans are Americans. Ergo, Republicans would benefit. The metric of success should not be partisan benefit, but rather national benefit.”

Legal Challenges in an Age of Robotics, November 12, 2009.  One of the things I really liked about this panel was the way that Ryan Calo served as a very active moderator — he’s an expert in these issues himself, and so was able to lead the discussion, including the audience discussion.  The best parts are actually Dan Siciliano and Paul Saffo; I was a little unsure of how much the audience knew about the battlefield issues, and had too much wind-up.

(Ryan has also written very interesting stuff on privacy and technology.)

Click here to view the embedded video.

[Update — yeah, or a guitar . . .
But seriously, my son Sam, over at his blog, pointed me to a truly spectacular dixie Chicks version of the national anthem from the 2003 Superbowl. if you haven’t heard it, check it out . . .]

As soon as it’s put that way, it is obvious that what we actually mean is, we will borrow today from people who do have money — and who are willing to forego consumption today, presumably in China and the rest of Asia — and our children will repay the principal and interest.  We have internalized the consumption (er, investment? –ed.) currently and externalized the repayment.  It might be more accurate to say that we have exercised an option with regards to the future — we are the holders and they the involuntary writers of an option.  But the fundamental public policy point is that in order to engage in this borrowing exercise today, even if we are going to “put” the repayment to our children, someone today has to be willing to give up consumption now and lend us those resources today.

To that end, David Sanger has a nice piece in the New York Times Week in Review, “The Debtor the World Still Bets On.” While we’re at it, Irwin Steltzer’s Weekly Standard essay, “Government Intervention Will Leave a Nasty Hangover.”

And  finally Joshua Kurlantzick, in the Boston Globe, “Dazzled by Asia,” arguing that if you’re assuming an emerging Chinese hegemony, you might be disappointed.   (To which I’d add my own oft-repeated observation that if the corollary is longing for American decline and the rise of a new, post-American-hegemony, world of cooperative great powers in peace and harmony, think again — the human right universalism of the last fifteen years has been an epiphenomenon of American hegemony, and if it fades, the human rights universalists fade with it.  A multipolar world is competitive and more aggressively Westphalian, not less.)

Kurlantzick on President Obama’s Asia trip:  “Major media outlets covered the president as if he was some kind of Dickensian vagrant, appealing to his increasingly powerful creditors in China for leniency.”  And, to judge by spiraling Chinese hubris in its demands concerning the Dalai Lama, Taiwan weapons, and other things — well, the appetite grows with the eating, and the President has fed the beast.  (Responding to someone in the comments asking on what basis I thought China had raised the stakes, see among many articles in the last few weeks, this Jan 31, 2010 Washington Post front page new analysis, “China’s Strident Tone Raises Concerns Among Western Governments, Analysts.”)

(Update:) An Instalanche (thanks, Glenn) — and Megan McArdle’s quote of the day!  Wow!

One last thought about thinking about various things as options.  Some of the comments have expressed surprise, and a certain amount of derision, at the idea that the option running in favor of the present at the expense of the future is non-trivial.  Speaking as a teacher, I consistently find that when students who are not in econ, business, or finance discover for the first time that what looks to be a “loan” actually (because of the limits of downside created by many legal rules, such as bankruptcy, or non-recourse rules, etc.) turns out to be an option is an “ah-ha” moment.

And even more so when, as in this case, one realizes that it is a loan from Party C(hina) to Party A(merica), but also a put of the loan from Party A(present) to Party A(future).  That’s not a trivial observation, whether speaking pedagogically or intellectually.  Commonly-made these days — of course — but not trivial, which is why unpacking “borrowing from our children” has to be unpacked if you’ve never unpacked it before.

And note that one of the comments notes with some condescension that this is merely pretentious — but then gives as an analogy something that doesn’t actually fit.  Kids “write” their parents “involuntary” options all the time and, yes, that’s pretentious and trivial. However, they less frequently (at least in the past) write them in the form of loans in the present from third parties located in China, with consumption by the present borrower and repayment by a future obligor.  That’s neither trivial nor pretentious.

And touching the intersection of debt and security, I cannot recommend highly enough the monumental history of the intertwining of public debt and democracy, A Free Nation Deep in Debt: The Financial Roots of Democracy, by James Macdonald.

This is not exactly a surprise, but it shows just how far the U.S. is from the Rome Statute. If President Obama and his sort-of supermajority in Congress do not wish to join the ICC, then it is hard to imagine the U.S. joining during a future Sarah Palin or Mitt Romney administration.  This doesn’t exactly bother me. But this raw political fact suggests that the U.S. failure to join the ICC is rooted in deeper political and structural concerns than partisan politics and ideology.

Indeed, if the Obama Administration is not even willing to sign the ICC treaty, the prospects of U.S. participation in the foreseeable future would appear to be quite small.

This past week, Ross Douthat considered whether Ryan’s proposals represent  a serious alternative agenda. Liberal blogger Ezra Klein also has a very interesting interview with Ryan about his proposals for health care.

UPDATE: According to the Telegraph, former IPCC head Robert Watson believes the IPCC will lose credibility if it does not address its mistakes.

Out here in the fields
I plowed for my meals
I get my back into my living
I don’t need to fight
To prove I’m right
I don’t need to be forgiven

Don’t cry
Don’t raise your eye
It’s only teenage wasteland

Here are the song, the full lyrics, and an older and more recent live version.

    To dramatize its claim that Campbell is a big-spending wolf in fiscal-conservative sheep’s clothing, the video contains, well, a demon sheep — a sheep with glowing red devilish eyes. 

  The ad apparently has more than 375,000 views is something of an eye-opener, leading Mary Ham to write at the Weekly Standard:  “Someday, when your children are grown and the election of 2010 has long past, people will ask where you were when the demon sheep first came to American politics.”  (Read the whole thing here.)

  The ad is being widely lampooned across the internet (example here).  To mock the ad, another opponent of Fiorina in the Republic primary (Chck DeVore) has website that is the “home” of SFTEODSFOPD, or Society for the Eradication of Demon Sheep from our Political Discourse.

  The ad seems a bit over the top to me.   While the ad’s defenders say it is attracting lots of attention to the Fiorina campaign, the kind of buzz it is attracting will test the old saw that there’s no such thing as bad publicity.  I close with [insert your favorite sheep pun here ...]

Update:  A reader suggests I should have closed with any of the following:

1. The ad’s creator should take it on the lamb.
2. Ewe can fool all the voters some of the time, and some of the voters all of the time, but ewe. . . .
3. Fame is fleecing.
4. Baaaa humbug.
5. Where there’s a wool there’s a way.
6. I must be a mutton for punishment.
7. Cogito ergo ram. (I think; therefore, I ram.)

The Judicial Complaints Office is to look into a complaint by the National Secular Society that [Cherie] Blair, [the wife of former Prime Minister Tony Blair, who is a part-time judge] suspended a six-month jail sentence passed on Shamso Miah on the ground that he was devout.

Miah was convicted at the Inner London Crown Court last month of assault after he broke a stranger’s jaw [over an argument about who was first in line at a bank]....

Mrs Blair said that violence on the streets had to be taken seriously but added: “I am going to suspend this sentence for the period of two years based on the fact you are a religious person and have not been in trouble before. You are a religious man and you know this is not acceptable behaviour.”

He was ordered to complete 200 hours of community service and pay £200 in costs.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

I would like to briefly comment on a point Dean Levmore made that I didn’t get a chance to address at the debate. He claimed that “90 percent” of people whose property is condemned are happy about it (perhaps because they get high compensation). I would very much like to know the source for this statistic. Most studies of eminent domain compensation suggest that undercompensation is very common. For an excellent recent example, see this article by Yun-chien Chang, which finds that a majority of New York City takings involved less than fair market value compensation.

Many property owners actually value their land above the market price, which is one reason why they continued to own it in the first place instead of selling. So even fair market value compensation often won’t fully offset their losses. Studies of victims of blight and economic development takings (some of which I noted in the last part of this article) show that many of them end up far worse off than before. In that same piece, I also explained some reasons why even fully adequate compensation would not eliminate all the dangers of Kelo-style economic development takings.

Levmore is right that overcompensation is also problematic, since it might lead to people lobbying for their property to be condemned. That, however, rarely happens in the status quo, which is yet another indication that undercompensation is far more common than the reverse.

It’s possible that I misunderstood Levmore, and he simply meant to say that 90% of people whose land is condemned don’t contest the taking in court. That may well be correct. But if so, it is largely the result of the high cost of litigation and the low likelihood of winning, rather than actual satisfaction with the condemnation.

As y’all know, I exercise a pretty light hand on the comments section. That’s a tough choice. I could probably have a more civil comments section if I were more willing to delete nasty comments and ban trolls.

On the other hand, I don’t trust myself in the position of censor.... One will always find most outrageous those people who disagree with one’s own pet notions. If I started deleting comments, the net effect would be to pull the comments section towards agreeing with my particular brand of libertarianish, market-loving philosophy. This is not, to my mind, the point of the comments section. So I delete comments only when they are obscene or intolerably nasty; I ban people only when they have a history of repeatedly derailing threads, defaming my family, or similarly doing things that would get them kicked out of any decent private home.

So I have to ask you guys to do it for me. Play nice. Don’t call people names–any names, not just profane ones. Don’t characterize people as having bad motives. Don’t make absurd statements about how liberals, Republicans, or some other group are less virtuous, clever, empathetic, rational, pragmatic, civic-spirited, patriotic and so forth, than the fine, upstanding Americans on your side.

In the first place, it’s incredibly rude. In the second place, it’s basically never true..... And in the third place, while you lightheartedly believe that you are opening your opponents to justified ridicule, in reality all you achieve is to start everyone else snickering at you, because you sound like such a bigoted, arrogant fool.

I disagree slightly with Megan’s analogy between comment moderation and government censorship. The latter is far more dangerous than the former. Nonetheless, aggressive moderation is problematic for the reasons she describes. I also agree with Megan’s point about comments that attack motives, and would add that even if your opponents really do have bad intentions, that doesn’t prove their arguments are wrong, so it doesn’t really help make your case.

I could perhaps overcome the tendency to favor commenters who support my own views by adopting consistent bright line rules (e.g. — ban anyone who call anyone else an “idiot” or “unpatriotic”). But such rules have serious shortcomings of their own: they are insensitive to nuance and context, and can be cleverly circumvented once they become known (e.g. — using various euphemisms to substitute for “idiot”). A related problem is that I don’t want to devote my limited blogging time to careful analysis of comments to determine which ones deserve to be deleted, issued warnings, and so on. I think both my goals and those of the readers will be better served if I devote as much of my blogging time as possible to actually writing posts.

For these reasons, I rely mostly on the good sense of commenters and social norms (weak as they often are on the internet) to police the comments. I only ban people in very extreme cases, and have resorted to it only about three or four times since I’ve been on the VC. I’ve probably deleted individual comments only a handful more times than that.

That said, if the proportion of obnoxious and stupid comments gets high enough, I could rethink my tolerant policies. If at all possible, I prefer to use the velvet glove to deal with commenters. But if really necessary, I reserve the right to bring out the iron fist.

UPDATE: Steve Bainbridge responds to this post here:

My policy on comment moderation is based on the moment in the 1980 Presidential campaign when Ronald Reagan declared “I paid for this microphone.”

This is not a public forum. I pay for it. So there are no rules. There is simply an arbitrary despotism in which freedom of speech depends mainly on how cranky I’m feeling at the moment. Granted, long time readers get more slack than newbies, but nobody has a “right” to be heard in this space any more than you would in my house. If you think that’s censorship, you’re wrong. It’s just private property.

Bainbridge misunderstands my argument. I don’t claim that anyone has a legal right to comment at the VC. To the contrary, the other bloggers and I have the right to delete whatever comments we want, for any reason we want. That’s why I said in the original post that I reserve the right to use the “iron fist” against obnoxious commenters if necessary.

My point, rather, is that aggressive comment moderation is likely to defeat the purpose of allowing comments in the first place, for the reasons Megan McArdle points out. The blogger will tend to treat comments antithetical to his views more negatively than those supporting them, which in turn will undermine the objective of having a free discussion with various sides represented. Aggressive moderation also strikes me as a poor use of my blogging time relative to writing more and better posts. Thus, I will only resort to it if things get so bad that there is no alternative. Even then, I might simply prefer to shut down comments entirely rather than spend a lot of time policing them. Ultimately, I blog primarily to express my views, not to supervise the way others express theirs.

What is the best way to defend freedom intellectually? Is it, as Rand believed, to connect the philosophy of individual rights to a version of ethical egoism, which in turn derives from the metaethical theory presented by Rand in “The Objectivist Ethics”? I don’t think so. Objectivists seem to find that essay completely convincing. But hardly anyone else finds it at all convincing. This is not a trivial observation—one often finds that people who do not accept a whole philosophical system nevertheless find certain parts of it plausible. And one often finds that people who are not ultimately persuaded by an argument nevertheless see some plausibility in it. But neither of these things is true of the argument of “The Objectivist Ethics”—hardly anyone finds that argument even slightly plausible, unless they also buy into virtually all of Ayn Rand’s views.....

There are two major reasons why the best hope for political freedom is not to connect it ideologically with Rand’s ethical and metaethical theories. The first is that those theories are utterly unconvincing to almost everyone.... Connecting the two together serves only to discredit the cause of freedom and individual rights. It plays into the hands of those who say that the only opposition to socialism derives from greed and selfishness.

The second major reason is that ethical egoism does not support the philosophy of individual rights in the first place. Quite the opposite. Take Rasmussen’s statement of the basic individualist premise: “Each individual human being is an end in him‑ or herself … not merely a means to the ends of others.” This is a very common idea in classical liberal writings. Nearly identical statements appear in Rand, in Nozick, and of course in Kant. It is also, pace Rand, directly and obviously contrary to ethical egoism. For ethical egoism posits that the only thing that ought to matter intrinsically to me is my own welfare—for me, my own welfare or happiness is the only end in itself. It follows from this that I ought not to regard other individuals as ends in themselves; rather, I should see them only as means to my happiness—just as I see everything else in the world. This is a very simple and straightforward implication of the theory. I cannot hold my own well-being as the only end in itself, and simultaneously say that I recognize other persons as ends in themselves too....

At this point, most Objectivists fall back on the contention that, luckily, it is impossible for rational people’s interests to conflict. More particularly, that although it would be praiseworthy to use others for one’s own advantage if one should get the chance, opportunities are peculiarly scarce, so much so that there has never (or almost never) been a case in which anyone would have benefited by violating another person’s rights (for instance, by initiating the use of force against another). It would be truly wonderful if this could be proven. But actual arguments for this claim are unsurprisingly hard to come by, and it remains unclear why anyone would accept the claim, apart from a drive to reconcile Rand’s ethics with her politics.

Ironically, Ayn Rand’s egoistic defense of libertarianism runs into particularly serious problems in a society filled with statist injustices.
In such a regime, many people have obvious egoistic interests in maintaining the status quo, or at least not taking the risk of becoming open dissidents. Eliminating the horrible oppression of North Korean communism is surely desirable. But it just as clearly runs counter to the egoistic interests of North Korean dictator Kim Jong Il. Similarly, when people like Vaclav Havel and Andrei Sakharov risked their lives and careers to become dissidents in communist societies, they struck a blow for freedom. But they also undermined their own egoistic interests. Sakharov especially would have been better off had he remained a loyal member of the privileged Soviet elite.

In her novels, Rand praises characters like John Galt who risk their livelihood to oppose statist oppression. But it’s hard to reconcile this praise with her egoistic philosophy, except perhaps by positing that Galt’s victory will happen so soon and with such certainty that resisting the regime actually maximizes his narrow self-interest. Whether or not this was true of the fictional Galt, it certainly is not true of many dissidents in the real world.

Despite the shortcomings of her philosophy, I think Rand deserves enormous credit for being perhaps the greatest-ever popularizer of libertarian ideas. Huemer also argues that her positive legacy outweighs the negative. One can acknowledged that while simultaneously recognizing that her philosophy has major weaknesses and is ultimately a flawed justification for a free society.