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Sunday, July 6, 2008
Post Calls for Kennedy Rehearing:
On Saturday, the Washington Post called for the Supreme Court to rehear its decision in Kennedy v.Louisiana holding unconstitutional the death penalty for child rape. There was quite a goof in the court's 5 to 4 decision on June 25 banning the death penalty for those who rape children. The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that "37 jurisdictions -- 36 States plus the Federal Government -- have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child." Actually, only two years ago, Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of an act of Congress based on the erroneous claim that the statute did not exist. The Post notes that the various parties failed to identify the recently enacted UCMJ provision, so it does not place all the blame on the Court. The SG's office and the various parties were asleep at the switch -- as was the mainstream media, which only picked up the story after a blogger noted the mistake.
The Post supported the Court's Kennedy decision, but argues rehearing is necessary for the Court's crediblity. As the Post's editors explain, "The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations." Even if the Court reaches the same result, it should not mischaracterize federal law.
Lands Council v. McNair:
I've finally had the chance to read through the U.S. Court of Appeals for the Ninth Circuit's en banc opinion in Lands Council v. McNair. I think it could be quite a significant environmental case, even beyond the federal land management issues it directly addresses.
Of initial note is the court’s simple disposition: an 11-0 en banc reversal of a divided three judge panel. While the composition of en banc panels on the Ninth Circuit is randomly determined, it is still striking that not one of the eleven judges sided with the original panel. In the original panel opinion, Judge Ferguson wrote the majority, joined by Judge Reinhardt. Judge Milan Smith dissented, prompting a responsive concurrence from Judge Ferguson. Now it appears Judge Smith has had the lat word as the author of the en banc opinion. In this opinion he was joined by Chief Judge Kozinski and Judges Rymer, Kleinfeld, Hawkins, Silverman, McKeown, Fisher, Berzon, Clifton and N. Randy Smith.
The case grew out of a challenge to the selective logging of some 3,800 forest acres in Idaho as part of a larger project to help improve forest health, reduce fire risks, and recreate the forest’s historic composition. According to the plaintiffs, the USFS had failed to comply with the National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA) in developing its plans. A district court had denied the plaintiff’s request for a preliminary injunction, but a three-judge panel of the Ninth Circuit reversed. The en banc court vacated the injunction, finding that the original panel had overstepped its bounds.
From the outset, the opinion makes clear that its purpose is to reorient aspects of the Ninth Circuit’s environmental jurisprudence, at least with regard to federal land management. As Judge Smith summarized: In essence, Lands Council asks this court to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty. As we will explain, this is not a proper role for a federal appellate court. But Lands Council’s arguments illustrate how, in recent years, our environmental jurisprudence has, at times, shifted away from the appropriate standard of review and could be read to suggest that this court should play such a role. As I noted in my prior post, the en banc court explicitly overruled its prior decision in Ecology Center v. Austin which had effectively required the USFS “to always ‘demonstrate the reliability of its scientific methodology’ or the hypotheses underlying the Service’s methodology with ‘on the ground analysis,’” when making projections about the likely impact of forest management projects. [Judge McKeown, who dissented in Ecology Center was on the en banc panel.] According to Judge Smith’s opinion, Ecology Center adopted overly expansive interpretations of circuit precedent, invented a legal requirement “not found in any statute or regulation,” and “defied well-established law concerning the deference we owe to agencies and their methodological choices.”
The en banc court also reins in the Ninth Circuit’s NEPA jurisprudence quite significantly. Specifically, the court found that prior panels had adopted unduly rigorous standards for the Environmental Impact Statements (EIS) NEPA can require. We have previously faulted the Forest Service for not addressing uncertainties relating to a project “in any meaningful way” in an EIS. [citations omitted] But none of NEPA’s statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS. Thus, we hold that to the extent our case law suggests that a NEPA violation occurs every time the Forest Service does not affirmatively address an uncertainty in the EIS, we have erred. [citations omitted] After all, to require the Forest Service to affirmatively present every uncertainty in its EIS would be an onerous requirement, given that experts in every scientific field routinely disagree; such a requirement might inadvertently prevent the Forest Service from acting due to the burden it would impose. While the opinion focuses on implementation of the NFMA and NEPA, it is likely to have a broader impact in environmental cases. The Ninth Circuit has been an outlier in environmental law. Among other things, the Ninth Circuit has applied NEPA’s requirements in a more rigorous fashion, giving federal agency actions significantly more scrutiny do than other circuits (not to mention the Supreme Court). Last week’s opinion is a significant rebuke to this approach and should herald somewhat more deferential review of agency actions in environmental cases.
Judge Brown's Non-Delegation Doctrinal Revival:
It is not very often that the non-delegation doctrine is raised in federal appellate litigation, and perhaps for good reason. The Supreme Court has not looked favorably upon a non-delegation challenge to federal agency action in decades. Yet in a recent case before the U.S. Court of Appeals for the D.C. Circuit, Michigan Gambling Opposition v. Kempthorne, the appellants pressed a non-delegation challenge to aspects of the Indian Reorganization Act (IRA), and actually managed to secure one judge’s vote.
Michigan Gambling Opposition (MichGO) challenged the Bureau of Indian Affairs (BIA) decision to take approximately 150 acres of land in Michigan and place it in trust for use by an Indian tribe for the construction and operation of a casino. According to MichGo, the provisions of the IRA upon which the BIA relied constituted an unconstitutional delegation of legislative authority to the agency. Specifically, MichGO argued, Section 5 of the Act’s authorization for the BIA to acquire land “for the purpose of providing land for Indians” lacks an “intelligible principle” to guide the agency’s implementation of the Act’s delegation of authority.
Two judges on the panel, Douglas Ginsburg and Judith Rogers, found this argument wholly unconvincing. Their per curiam opinion noted that an “intelligible principle” may be derived not only from the statutory text, but also its purpose, “factual background” and “statutory context.” Further, they noted, the Supreme Court has been quite permissive in its enforcement of the nondelegation doctrine, and has upheld far broader delegations than that contained in the IRA. (Indeed, some commentators suggest that the doctrine is all but a dead letter.) The opinion also noted that the First, Eighth, and Tenth Circuits had also rejected nondelegation challenges to the IRA within the past ten years.
Judge Janice Rogers Brown was convinced by MichGo’s arguments, however. As she explained in her dissent: Like other courts that have rejected nondelegation challenges to § 5 [citations omitted], the majority nominally performs a nondelegation analysis but actually strips the doctrine of any meaning. It conjures standards and limits from thin air to construct a supposed intelligible principle for the § 5 delegation. Although I agree the nondelegation principle is extremely accommodating, the majority’s willingness to imagine bounds on delegated authority goes so far as to render the principle nugatory. Analyzing the statute using ordinary tools of statutory construction, as the Supreme Court has always done in nondelegation cases, I am forced to conclude § 5 is unconstitutional. And she concludes: Section 5 gives the Secretary unguided authority to transfer areas of land from the jurisdiction of state and local government to that of various bands of Indians. None of the foregoing implies BIA has exercised its authority wantonly. But the question is not what it has done, but what it has authority to do. The authority was Congress’s to give, and the
boundaries were for Congress to provide as well. Since it has failed to do so, I am forced to conclude § 5 of the IRA is an unconstitutional delegation. One might expect such an argument from an academic – indeed there are several academics who have written quite powerfully on the need to reinvigorate the nondelegation doctrine in administrative and constitutional law. Yet given the Supreme Court’s reluctance to endorse even the most tepid nondelegation principles, it is somewhat surprising to see these arguments aired by a federal appellate judge. Will Judge Brown's opinion be a lonely and singular dissent? Or could it be a herald of a doctrinal revival?
Sunday Song Lyric:
We're in the Scottish highlands for a wedding. (Kilt picture may follow.) We saw the Eilean Donan Castle yesterday. The castle was featured in Highlander, one of those films that has an oddly enduring popularity, but that also seems like an appropriate source for this week's song lyric. Here's the opening of Queen's "Princes of the Universe" that was featured in the movie. Here we are, born to be kings
We're the princes of the universe
Here we belong, fighting to survive
In a world with the darkest powers
And here we are
We're the princes of the universe
Here we belong, fighting for survival
We've got to be the rulers of your world
I am immortal
I have inside me blood of kings
I have no rival
No man can be my equal
Take me to the future of new earth Here are the full lyrics, and here is a movie video of the song.
Fascism in the U.S. Courts!
Just noticed this today:
See here for more details. Proof positive, it seems to me. Of everything.
UPDATE: After I linked to the Wikipedia entry, someone deleted the section I was linking to; fortunately, commenter Anderson posted a link to the old version of the entry, and I've revised this post to link to that. That sort of thing is one of the problems with linking to Wikipedia, though it's not that serious a problem when it comes to topics such as this.
Saturday, July 5, 2008
The Conspiracy Goes Even Deeper Than He Thought:
From Rhett R. Smith v. Iowa Republican Party, an unpublished Fifth Circuit opinion from last week:
Smith ... filed an Amended Complaint containing only three paragraphs of allegations. In those paragraphs, he complained that his right to be a candidate was violated by the defendants and that the defendants acted “under color of law.” He asserted vague constitutional rights. Further, he alleged his “First Amendment right to protection from Zionism and/or Christian-Zionists” under the establishment clause of the First Amendment. “Plaintiff further asserts an implied principle of ‘fairness in communication’ in that the Defendants ... have acquiesced to the American Israeli Public Affairs
Committee (AIPAC) and have allowed only Zionistic campaigns within the (two
major political party) campaign coverage.”
Smith has wholly failed to allege claims stating a case for relief against any party. Despite clear and specific directives from the Magistrate Judge, he has filed a conclusory pleading without any of the information necessary to state a claim. Accordingly, the district court did not err in dismissing the Amended Complaint....
Well, yeah, that would be what they'd say, right?
"The ’60s Begin to Fade as Liberal Professors Retire":
On Thursday, the New York Times had this interesting story on generational change within academia. Some of the data didn't quite seem to back up the story, but it was still pretty interesting.
Jesse Helms did not lead "the rise of the modern conservative movement."--
In the obit for former Senator Jesse Helms on NBC Nightly News, they mentioned (or at least hinted at) his racist background, as they should have, but I was stunned by the conclusion.
Martin Savidge reporting (at about 2:58 of the NBC video segment):
But there is one point on which both critics and supporters do agree: Helms led the rise of the modern conservative movement.
This was followed by the disreputable Pat Buchanan saying, “He was the most principled conservative in the United States Senate.”
I don’t see what’s “modern” or “principled” about Jesse Helms, who came to fame in North Carolina through his overt racism.
And – most of all — I don’t see how NBC has the nerve to say that both critics and supporters agree that “Helms led the rise of the modern conservative movement.” Until Martin Savidge said so, I had never heard anyone say anything even remotely like that. I’ve heard many people or groups credited with leading the modern conservative movement: Ronald Reagan, Barry Goldwater, William Buckley, and Rush Limbaugh, and in a more indirect manner, the Weekly Standard, the Olin Foundation, the Federalist Society, and the Heritage Foundation. I have never heard anyone, until I heard Martin Savidge tonight, say anything like this: “Helms led the rise of the modern conservative movement.”
More on Helms here and here.
UPDATE: JPS in the comments helpfully points out that many conservative organizations are making claims similar to NBC's:
The folks at the American Conservative Union disagree. David Keene's quotes in the NYT obit don't use those words exactly, but are pretty close. Former ED David Josi referred to him as, among other platitudes "quite possibly the most important U.S. senator ever to have served."
Then there's ConservativeHQ today saying in a press release today "It was the New Right that energized and led the conservative movement in the 1970s and 1980s and our beloved leader was Senator Helms." ConservativeHQ.com
All I can say is that, while I am not myself in the conservative movement, I know some people who were -- and are -- major players, and they never said anything about Helms that was even approximately similar to these sentiments. But then the people I talk to are academic in their profession or their approach to the world.
Friday, July 4, 2008
Happy Independence Day!
Enjoy, and stay safe.
You Don't Mess with the Gura:
Odd factoid that I didn't know until today -- Alan Gura, the winning lawyer in the Heller v. D.C. Second Amendment case, was born in Israel.
More on Reducing the Pain of Taking the Bar Exam:
My post on reducing the pain of taking the bar exam has attracted eminent critics such as Jim Chen and Nancy Rapoport.
In the original post, I argued that many students spend too much time preparing for the bar exam and attending prep courses. Since the exam is primarily a test of memorization, many people can pass simply by studying the books at home, and taking practice tests (which is what I did myself, and I know quite a few other people who successfully did the same thing).
Chen and Rapoport emphasize two points: that the bar exam is hard (as witness the fact that many students fail), and that there are negative career consequences if you don't pass.
Much of our disagreement probably stems from their failure to notice and my own failure to properly emphasize, a key part of my argument that I briefly noted in the original post: that my approach is only likely to work if "you're reasonably good at managing your time and memorizing legal rules." I strongly suspect that many of those who fail the bar exam did so because they didn't measure up on one of these two dimensions. Either they are bad at memorization or they did a poor job of managing their time, or both.
Moreover, I would also emphasize that most of those who failed probably weren't using methods similar to those I used, but instead attended the full Bar/Bri course or the equivalent. I can't know for sure without detailed test data. Yet I suspect that some of them would actually have had a higher chance of passing using the methods I suggest, because bar prep courses tend to use a "lowest common denominator" approach that devotes a lot of time to repetitious explanation of even very simple points. This is useful for the weakest or most inattentive students, but probably isn't necessary for the rest. If you instead spend this same time (or, potentially, much less time) studying the more complex points that are difficult for you personally, you might well do better.
As for the critics' second point (the career damage caused by failing), I think that it is valid but overstated. The fact that failure is a serious setback doesn't prove that students aren't studying too much. After all, no one argues that you should spend every waking moment from graduation to bar exam time studying. That suggests that there is an optimal amount of studying beyond which additional effort isn't worth the cost. If, for example, something like what I did gives you a 95% chance of passing, while spending twice as much time increases it to 97%, the tradeoff probably isn't worth it. Moreover, Chen and Rapoport implicitly assume that your career is kaput if you don't pass the first time around. In reality, plenty of people pass on the second or third attempt and still go on to have perfectly good careers as lawyers. So - assuming that you are reasonably good at memorization and time management - what you get with my approach is a vast savings of time on your first attempt combined (with possibly) a slightly increased chance of having to retake the exam in six months. If you allocate your time properly, you might actually increase your chances of passing relative to taking the full prep course, because you won't spend so much time on endless repetition of material you already know.
Lastly, Jim writes that "[a]n academic appointment is an immense privilege in a world of finite resources and constrained opportunities, and those of us lucky enough to hold a winning ticket should refrain from treating our life circumstances as realistic benchmarks for the legal profession as a whole." In answer, I would note that I didn't know whether or not I would get an academic job at the time I took the exam, and I had to assume that I might end up working in a firm. I may be "immensely privileged" now; but I wasn't back then. Even more to the point, the validity of any argument is independent of the background of the person making it.
Bottom line: I spent about two weeks preparing for the Massachusetts Bar, working perhaps 4-5 hours per day. I know several other people who used similar tactics and spent less time. All of them passed, including a few on the very difficult New York and California exams. I was not an innovator, and was actually on the more cautious side relative to most of the people I know who decided to follow this approach.
Yes, these people were all good students from good schools. However, you don't have to be unusually smart compared to other law students in order to do this. All you have to do is be reasonably good at memorizing, and disciplined enough to take the time to do the necessary memorization. Passing the bar exam is mostly a matter of memorizing legal rules. You don't have to understand the legal rules covered by the exam in any deep way. All you have to do is be able to regurgitate the material you learned.
And, even if my argument is only valid for good students from good schools, it still has some value. Many people who fit this description also spend unnecessarily large amounts of time preparing for the bar. And their time is valuable too. Related Posts (on one page): - More on Reducing the Pain of Taking the Bar Exam:
- Reducing the Pain of Taking the Bar Exam:
The VC's First Emmy Nomination:
Colorado Inside Out is weekly public affairs roundtable program, on KBDI channel 12, one of the two PBS stations in Denver. Twice a year, the program tapes a Time Machine episode; our 1927 episode, which was broadcast last December, is one of the three finalists for the "Interview/Discussion Program" category for the National Television Academy's Heartland Chapter (which covers Colorado, Oklahoma, Nebraska, Kansas, and Wyoming).
The half-hour episode is available for Internet viewing here. I play Chumley Drizelwhit, Professor of Ancient Studies at Colorado Women's College, an Al Smith Democrat who celebrates the execution of Sacco and Vanzetti, and bemoans the influence of the KKK. But the Professor does make an error once in a while, as when he describes the film Birth of a Nation as a talking pciture.
Thursday, July 3, 2008
Viacom to Get Copy of Every Record of Every Access to Every YouTube Video?:
The Electronic Frontier Foundation has a page up here, referring to this district court decision. At first blush, I think that the Video Privacy Protection Act prohibits this; the Google/EFF analysis provided in the link strikes me as correct, and the decision as incorrect.
Interpretation vs. Construction in Heller:
Jack Balkin and Larry Solum are having a very important exchange on the originalist methodology employed by Justice Scalia in Heller. (For Jack's post click here for Larry's click here, here, & here) This involves the crucial, and widely unappreciated, distinction between constitutional interpretation and constitutional construction, a distinction first brought to the fore in modern constitutional theory by Princeton professor Keith Whittington. As Larry explains in his third post, constitutional interpretation is the method by which the semantic meaning of words is ascertained; constitutional construction is the method by which the meaning yielded by constitutional interpretation is applied to particular factual situations. So what is the distinction between "interpretation" and "construction"? Unless, you have a thorough familiarity with the history of the law of contracts, trusts, or will or a deep knowledge of contemporary constitutional theory, you may think that these two terms are simply synonyms. It turns out that the distinction between interpretation of the linguistic meaning of legal texts and the construction of legal rules from that linguistic meaning has a long history in Anglo-American law. Here is a first (rough) cut at definition: * Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.
* Construction: The activity of translating the semantic content of a legal text into legal rules, paradigmatically in cases where the meaning of the text is vague. Those definitions sound pretty technical to me, but I hope you are starting to get the idea. We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.
Courts and legal theorists use the distinction between interpretation and construction in a variety of legal contexts, including contract law and constitutional law. In a contracts case, for example, the Iowa Supreme Court stated, "Interpretation involves ascertaining the meaning of contractual words; construction refers to deciding their legal effect." Fashion Fabrics of Iowa v. Retail Investment Corporation, 266 N.W. 2d 25 (Iowa 1978). In short, where the text is vague, and the factual situation falls outside its core meaning, this typically requires the "construction" of doctrine that is not literally in the text itself.
Although this is all very commonplace in law, sometimes these constitutional doctrines resulting from construction are inaccurately considered to be the meaning of the Constitution itself, which they clearly are not. By the same token, they are also often criticized as being "made up" by the Court and not in the Constitution, which is true, but beside the point.
Once one grasps the distinction between interpretation and construction, many constitutional confusions can be cleared up and constitutional debate can shift to more productive issues. For example, original public meaning originalism is a method of constitutional interpretation; it is not a method of constitutional construction. Once it has done all it can do to ascertain the meaning of the text, and that meaning remains vague when applied to a particular situation, then constitutional construction is required. Although such constructions or doctrines must not contradict or subvert the original meaning of the text, by assumption they are not dictated by that meaning. That is an implication of the meaning of the text being "vague." More than one construction is consistent with its (original) meaning, and therefore no single construction can be logically deduced from it.
How one engages in constitutional construction is a bigger topic than I can even summarize here. In my view, where the (original) meaning of the Constitution is vague, we should select constructions that are consistent with that meaning and that enhance whatever it is that makes a constitution legitimate. Because people operate with different implicit conceptions of legitimacy (e.g. consent, justice, democracy, etc.) there is marked disagreement about how to do construction. Of utmost importance is that, depending on their theory of legitimacy, originalists who are committed to respecting the original public meaning of the Constitution can still differ on how they think construction should be done and, even if they agree about this, they may differ in the wisdom of different constructions. But when these disagreements arise, it is very useful to know what it is we are disagreeing about: not the meaning of the Constitution, but how to put that meaning into effect.
If all this sounds too open-ended or fuzzy for your taste, I sympathize, but don't blame me. Blame the inherent limitations of language. But also blame the need to adopt written constitutions at a level of generality that allows them to be applied to future changing circumstances. For example, the Second Amendment speaks of "arms" not "muskets" allowing it to be applied to modern arms. That's not a bug, it's a feature. Deal with it.
Which returns us to Heller. In my Wall Street Journal piece, I praised Justice Scalia’s opinion as “the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court.” Even with the benefit of a cooling off period, I stand by that assessment and note that Jack Balkin too praises the original public meaning aspect of Justice Scalia’s opinion. (I do have one concern with Justice Scalia's originalist analysis, however, which I identify at the end of this post.)
Where Justice Scalia’s opinion is raising questions (such as this post by Brian Leiter) have to do with his inevitable need to engage in constitutional construction where the original meaning of the text is too vague to be directly applied to a variety of issues. There his method is opaque, in large part (I suspect) because he may not himself clearly see the distinction between interpretation (original public meaning) and construction (the need to apply that meaning to specific regulations). I suspect this because very few constitutional scholars appreciate this difference, and Justice Scalia would be in impressive company if he failed to fully grasp when he has left interpretation behind and entered what Larry Solum calls “the construction zone.”
But does this mean that, when confined to the realm of “interpretation,” originalism is so indeterminate as to be uninteresting? That “all the action” is in the construction zone? If that were true, we would not have spent the past 30 years debating the original meaning of the Second Amendment so ardently. That the Second Amendment protects the rights of individuals to possess and carry weapons for lawful purposes is of enormous significance. It sets what Fred Schauer has called the “frame” within which construction is being done. While there is more than one construction that can put this individual right into effect within the frame, the DC gun ban was outside the frame and properly struck down here.
This is what the debate between Justice Scalia and Justice Breyer was largely about. When Justice Breyer proposed a balancing test, Justice Scalia responded that this was not how express constitutional rights are protected. That the Second Amendment protects a right makes a simple rationality test of the sort favored by Justice Breyer outside the frame. Some meaningful level of scrutiny is required to vindicate and protect a right from governmental abuse. But what the precise level of scrutiny ought to be–and how it applies to particular gun regulations–is a matter of construction. More than one doctrine is within the frame, even if Justice Breyer’s approach is outside because, in effect, it sanctions the violation of an individual right by the government that the Bill of Rights is there to constrain.
There is much more to be said about all this than I have said. I do not claim to have addressed all the fascinating issues raised by Heller, or by the posts by Brian, Jack and Larry. Jack and Larry are engaged in a good faith examination of how an originalist ought to do constitutional construction. If you are sincerely interested in these crucial issues, don’t just dash off a comment responding to these brief remarks. Read Brian Leiter’s challenge. Read Jack Balkin’s take. Read Larry Solum’s excellent posts. (The links are all above.) Then stop for a moment and think about how this distinction might illuminate how you approach these issues. Of course, like any conceptual distinction, the line between interpretation and construction is itself vague. But once one realizes that courts and other interpreters are engaged in two closely related but distinct endeavors, much confusion is avoided. And consensus on a great many issues can be attained, while reserving our debates for those important issues–typically involving matters of constitutional legitimacy and construction--about which we truly disagree.
[My concern with Justice Scalia's analysis of original public meaning is his thesis that: At the time of the founding, as now, to “bear” meant to “carry.” See Johnson; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. I do not think that this "particular purpose" is part of the semantic meaning of the right. In my view the right is unqualified by any purpose including that stated in the preface (which is where I disagree with Justice Stevens). It would therefore protect weapons being used for any "lawful" purpose, including the lawful purpose of self defense. I suspect that Justice Scalia makes this move because he does not completely appreciate the distinction between interpretation and construction, so he (like so many others) feels the need to build into the "meaning" of the text limitations on its reach, rather than assessing these limitations as the inevitable need to resolve the vagueness in meaning that gives rise to the need for construction. Of course the original meaning of a particular term or phrase in context could be limited in its scope (as I believe is true about "the rights . . . retained by the people" in the Ninth Amendment) But the paucity of evidence presented by Justice Scalia in behalf of this specific conception of bear arms is an indication that he has strayed here from the realm of constitutional meaning into the construction zone.]
Litigation or Corporate? Advice for Law Students:
Jeff Lipshaw has a terrific post for law students considering big firm practice on how to choose between litigation work and transactional work. Via ATL.
Wednesday, July 2, 2008
How Fast Is Google?:
I am posting this at 12:54 am Eastern Time, 11:54pm under the VC clock. I will then check Google to see how long it takes them to record the post and make it available through their search engine. Stay tuned, gropriwn. UPDATE: It posted at 1:09, for a time of 15 minutes. Interesting. And now back to our regularly scheduled programming.
More on the Overlooked Military Law in Kennedy v. Louisiana:
My co-blogger Jonathan blogs below about the fact that the briefs and opinions in Kennedy v. Louisiana overlooked the military law permitting capital punishment for child rape in courts martial. It's an interesting situation, and I wanted to blog about it. The first question is, who is responsible for overlooking the law? I would think that the first error here (and probably most important) was at the Solicitor General's Office. The SG's Office did not file a brief in Kennedy, and I assume they did not file anything because they didn't realize that there was a federal law to defend. Had they realized there was a federal law to defend, they presumably would have filed a brief pointing it out and defending it. That's their job. [UPDATE: See this article in the Times today for more.] With no filing from the SG in the case, it's not very surprising that no one spotted the military law that the SG's Office apparently overlooked. No one — not the parties, not the Justices, not the clerks, not the press, not the blogosphere in the run-up to the decision — looked carefully to see if the SG had overlooked something. So both Justice Kennedy's majority opinion and Justice Alito's dissent are based on the assumption that the six state laws were the only game in town. The second question is, how much of a big deal is this? I tend to think it's not such a big deal. The reason is twofold. First, I don't recall military law that applies to court martials by Article I courts being relied upon in past Eighth Amendment cases to determine the scope of evolving standards of decency. My impression is that when the courts look at the law of various jurisdictions to determine "evolving standards of decency," they look to the criminal law that applies in general courts for cases involving civilians, not the Uniform Code of Military Justice that applies in Article I courts involving those in the military. The Eighth Amendment applies in court martial proceedings, to be clear, but it's not clear that the law of courts martial is part of the evolving standards "head count." So while it is technically correct that Congress did authorize the death penalty for child rape, it did not do so in the area that has mattered in past Eighth Amendment cases: criminal law applied in civilian courts. Second, the evolving standards inquiry is only part of the doctrinal picture. The Court supplements that with its own independent "judgment." Obviously the latter would not be changed by the knowledge of the military law. Given these two points, I think it is extremely unlikely that the outcome of the case would have been different if the military law had been recognized. The final question is, what will happen now? I doubt anything will happen. For the reasons discussed above, I doubt the Justices will see this discovery as such a big deal. It's possible that there could be a slightly amended opinion, but I think it's probably more likely that they'll just let the opinion stay "as is" given that the law was a military law rather than a law that applied to civilians of the sort normally included in the "evolving standards" analysis. Anyway, that's my best sense of things. It won't persuade commenter "Dangermouse," who seems to think Justice Kennedy is personally responsible for everything bad in America, but that's my best sense.
Which Has Met More US Congressional Goals: Iraq or the US Congress?--
In the most recent report on political goals for Iraq, it appears that 15 of 18 benchmarks set by the US Congress have been met:
On page 8 of the Washington Post’s news section today, we learn that, according to the U.S. embassy in Baghdad, Iraq has met all but three of the 18 original benchmarks set by Congress. The only three that have not met are (a) enacting and implementing laws governing the oil industry (though it’s not clear why formal laws are necessary), (2) disarmament of militia and insurgent groups, and (3) making the Iraqi police more professional.
The Post hastens to add, however, that other recent assessments find that Iraq has failed to achieve “many of the goals that the Baghdad government and President Bush said would be reached by the end of 2007.”
This would seem to compare with progress on the political goals that the Democratic Congress set for itself in 2006. Remember its “Six for ‘06” proposal made in the summer of 2006:
Six for '06
Congressional Democrats believe America should work for everyone — not just those at the top - by building opportunity and prosperity for all, and guaranteeing real security at home and around the world. We know that Americans can work together to meet the serious challenges facing our country, create a stronger nation, and build a safer world.
With a firm commitment to honest leadership and tough budget discipline to end record deficit spending, we propose a legislative agenda — A New Direction — that unites rather than divides our country. Beginning with our goal of an America that strives for the common good, these are our legislative priorities in the 109th Congress for a New Direction.
1. Real Security at Home and Overseas
Reclaim American leadership with a tough, smart plan to transform failed Bush Administration policies in Iraq, the Middle East and around the world. Require the Iraqis to take responsibility for their country and begin the phased redeployment of US forces from Iraq in 2006. Double the size of Special Forces to destroy Osama Bin Laden and terrorist networks like al Qaeda. Rebuild a state-of-the-art military capable of projecting power wherever necessary. Implement the bipartisan 9/11 Commission proposal to secure America's borders and ports and screen 100% of containers. Fully man, train, and equip our National Guard and our police, firefighters and other first responders. Honor our commitments to our veterans.
2. Better American Jobs — Better Pay
Prohibit the Congressional pay raise until the nation's minimum wage is raised. End tax giveaways that reward companies for moving American jobs overseas.
3. College Access for All
Make college tuition deductible from taxes, permanently. Cut student loan interest rates. Expand Pell Grants.
4. Energy Independence — Lower Gas Prices
Free America from dependence on foreign oil and create a cleaner environment with initiatives for energy-efficient technologies and domestic alternatives such as biofuels. End tax giveaways to Big Oil companies and enact tough laws to stop price gouging.
5. Affordable Health Care — Life-Saving Science . . .
6. Retirement Security and Dignity . . .
THE WRONG DIRECTION
The policies of the Bush Administration and the Congressional majority have taken the country in the wrong direction, making us less secure and putting the privileged few ahead of the common good. . . .
4. Rising Energy Prices
Gas over $3 per gallon; growing dependence on foreign oil; billions in new subsidies for oil and gas companies despite record profits; blocked efforts against price gouging; opposed energy efficient technology and alternative fuels.
Here is the Speaker Pelosi's page that claims success for some of the New Direction proposals promised in "Six for '06":
First minimum wage increase in 10 years
9/11 Commission recommendations to screen all air cargo and overseas port cargo, improving communications between first responders
Tough rules to establish highest ethical standards in Congressional history
Most sweeping lobby and ethics reform in a generation, hailed by reform groups as “landmark reform” and “a sea of change”
Pay-as-you-go budget discipline restored to end six years of deficit spending
Fiscal discipline that produces a balanced budget by 2012
A comprehensive Innovation and Competitiveness agenda to double basic research & development and reinvest in math and science education
Emergency funding to support and equip troops, including tripling Mine-Resistant Ambush Protected (MRAP) vehicles in Iraq
Tighter rules against foreign investment that weaken national security, after the Dubai Ports scandal
Reduction of backlog on passports after 9/11 requirement through hiring boost
Benchmarks and progress report required on Iraq
Emergency assistance to protect children’s health coverage . . .
The reduction in gas prices and increase in energy independence promised by Congress are some of the noteworthy exceptions to its somewhat spotty record of accomplishment.
Althouse on Limbaugh and Writing as a Way of Thinking.--
Ann Althouse has an interesting account of the largely favorable New York Times Magazine story on Rush Limbaugh. I was surprised that Althouse listens regularly to Limbaugh. As far as I know (and I am probably wrong on this), none of my friends watches or listens regularly to Limbaugh, Hannity, or O'Reilly. I haven't watched even 5 minutes of O'Reilly in many years, I see a few minutes of Hannity every month or so when switching channels (about as much as I see of Keith Olbermann), and Limbaugh I hear perhaps twice a year when I'm in a rental car and can't find anything else worth listening to.
What struck me about Ann's post was her discussion of how Limbaugh thinks through his ideas. She first quotes Limbaugh's response to a question about how he was going to handle Barack Obama:
“I haven’t yet figured that out exactly,” he said. “You know, I’ve had a problem with substance abuse. I don’t deal with the future anymore. I take things one day at a time.” . . .
[Ira] Glass compares Limbaugh to another exceptional free-form radio monologist, Howard Stern. “A lot of people dismiss them both as pandering and proselytizing and playing to the lowest common denominator, but I think that misses everything important about their shows,” he says. “They both think through their ideas in real time on the air, they both have a lot more warmth than they’re generally given credit for, they both created an entire radio aesthetic.”
Ann offers these comments:
Glass — who is one of the public figures in America who should be counted on those 2 hands — is absolutely right about Limbaugh and Stern. That explains very well why I listen to all 3 men.
And these:
I think [Limbaugh] knows that doing things day-by-day keeps the show alive and makes it work. It's what works in blogging too. If you have a whole planned agenda and you just crank out the propaganda, people will get sick of you. It's when you are talking/writing to figure out what you think, to find out what you want to say, that you are interesting.
I share Ann's affection for bloggers who are trying to observe and understand what they are writing about, rather than always writing op-eds with a thesis they are trying to prove (which is one reason that I enjoy reading her blog). Unfortunately, I find that many blog readers prefer strongly thesis-driven posts, which they can either echo or attack point by point.
Ninth Circuit Rejects "Heckler's Veto" Justification for Restricting Display of Aborted Fetus Photos Near School:
An interesting and generally quite correct decision from the Ninth Circuit. The facts:
On March 24, 2003, Plaintiffs Paul Kulas, a Bio-Ethical
Reform employee, and Thomas Padberg, a Bio-Ethical
Reform volunteer, drove to Dodson Middle School in Rancho
Palos Verdes, California. Kulas drove a truck that displayed
the [large, graphic] photographic images of aborted fetuses and Padberg drove
an escort “security vehicle.” The security vehicle was a white
Ford Crown Victoria sedan equipped with a security cage,
red-and-amber flashing lights, push bars, and antennae
mounted on the roof. The two men arrived at the school at
about 7:30 a.m. — about thirty minutes before classes began.
They then drove on public streets around the perimeter of the
school.
Plaintiffs’ graphic display quickly caused concern among
school officials. Defendant Art Roberts, an assistant principal
at Dodson Middle School, identified traffic as one of his primary
concerns. According to him, 85 to 95 percent of Dodson’s
2000 students arrive by bus or car between 7:15 a.m.
and 8:00 a.m. The students’ arrival causes “heavy traffic”
around the school. This traffic can become a safety hazard
when drivers or pedestrians become upset, angry, or distracted.
At a preliminary hearing, Roberts testified that during
the time he had worked at Dodson Middle School, vehicles on
streets around the school had struck five children and killed
two.
On the day Plaintiffs were at Dodson Middle School, Assistant
Principal Roberts observed some children stopping on the
sidewalks and staring at the photographs of aborted fetuses,
while others momentarily stood in the middle of the street.
Faculty members also reported “abnormal” difficulty getting
children onto the campus.
Assistant Principal Roberts identified additional concerns.
He saw a number of children express anger over Plaintiffs’
graphic display. He also overheard a group of boys planning
to throw rocks at the truck. The group disbanded only after
Roberts confronted them. Assistant Principal Roberts
observed two or three girls crying. He also said that at least
one class spent time discussing the truck’s displayed images
of aborted fetuses. Nevertheless, Assistant Principal Roberts
said the school had a “fairly normal opening” and that all students
he could see were on the campus by the start of classes
at 8:01 a.m.
The plaintiffs were then barred from the area under a law generally banning people from being on a street or sidewalk near a school "without lawful business" when their "presence or acts interfere with the peaceful conduct of the activities of the school or disrupt the school its pupils or school activities."
The court held that, because of First Amendment concerns, the statute should be read to cover only disruption caused by the noncommunicative aspects of the speech (e.g., its loudness). The statute should not be interpreted, the panel concluded, as covering disruption caused by listener hostility to the content of the speech (which is how the disruption was caused here).
The three-judge panel was solidly liberal; the opinion was written by arch-liberal Judge Harry Pregerson.
UPDATE: I initially erred in the description of the procedural posture, characterizing this as overturning the conviction — I've now corrected this to reflect the fact that the plaintiffs were only barred under the government's interpretation of the law from the area, not actually convicted of violating the law. The First Amendment discussion remains correct. My apologies for blogging too hastily and thus incorrectly, and my thanks to commenter Jacob Berlove for the correction.
Judge Spanks Lawyer, Blogging Librarian Wins:
In April, Jonathan Adler blogged briefly about a lawyer's subpoena against blogger Kathleen Seidel. Last week, and two months after the subpoena was quashed, the Magistrate Judge issued an opinion harshly condemning the lawyer:
Clifford Shoemaker, Esq. was counsel to the plaintiff in the underlying case. In the underlying case the claim was that the plaintiff-child developed neuro-developmental disorders from high mercury exposure as a result of exposure to defendant’s medicine in utero. Shoemaker is a 1973 law school graduate who indicates on his website that he has focused his attention on an alleged mercury-created autism epidemic. He claims to have “tried cases in federal district courts all over the country.”
Ms. Seidel was a non-party to the Sykes’ suit. Ms. Seidel maintains a website, www.neurodiversity.com, on which she posts articles she and others have written about the controversy about whether mercury has or has not created an autism epidemic. Shortly after posting an article on several fees Mr. Shoemaker obtained in various Vaccine Injury Compensation Program claims, Shoemaker served Ms. Seidel with the subpoena at issue.
The subpoena, as Ms. Seidel correctly summarizes:
commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website
http://www.neurodiversity.com” — including but not limited to material mentioning the
plaintiffs - and the names of all persons “helping, paying or facilitating in any
fashion” my endeavors. The subpoena demands copies of all of my communications concerning
any issue which is included on my website, including communications with representatives
of the federal government, the pharmaceutical industry, advocacy groups, non-governmental
organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any “religious groups (Muslim or otherwise), or individuals with religious affiliations,” and any other “concerned individuals.”
... I quashed the subpoena and ordered Mr. Shoemaker to show cause why he should not be sanctioned under Fed. R. Civ. P. 11....
The subpoena which I have attached to this order is breathtakingly broad. Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the
government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating ... these endeavors.” The documentation sought is exhaustive.
Shoemaker seeks to justify the subpoena by allegations that Seidel is not “a mere mother of an autistic child and housewife,” but a co-conspirator under 42 U.S.C. §1985 with her husband or “the defendant (Bayer) or by some organization dedicated to harassing this plaintiff (Ms. Sykes) and her witness ...” Shoemaker’s claim that Ms. Seidel was the “leader of a conspiracy to obstruct justice ...” is unsupported by any facts. It is
clear that she has openly and extensively exercised her First Amendment right to speak out on the issue. Shoemaker certainly has the right to disagree with her, but he has no right to misuse the process to abuse her.
Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited
the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly....
I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1).... The 11(b)(1) violation may also violate Virginia’s Rules of Professional Conduct .... Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.
The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker’s conduct and so that those authorities may take whatever action they deem appropriate.
As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.
The order doesn't explain why no attorney fees were awarded against the sanctioned lawyer; I'm not expert enough on Rule 11 to be sure of the reason, but I take it that this is because Ms. Seidel may have been represented pro bono by Public Citizen Litigation Group in part of the litigation and represent herself in another part.
Just goes to show: Don't mess with librarians.
Are Administrative Patent Judges Unconstitutional? A Possible Dissenting View:
My friend and colleague John Duffy has drawn a lot of attention in the blogosphere and in the media for his essay concluding that the way of appointing administrative patent judges is unconstitutional. According to Duffy, the problem is that administrative patent judges of the Board of Patent Appeals and Interferences (BPAI) are appointed by the Director of the Patent and Trademark Office (PTO), whereas under the Appointments Clause they must be appointed by a cabinet officer because they exercise "significant authority pursuant to the laws of the United States . . and must, therefore, be appointed in the manner prescribed by [the Appointments Clause]." Buckley v. Valeo, 424 U.S. 1, 126 (1976). Duffy's argument has drawn a lot of attention, including possible legislative fixes and a pending cert petition. But I'm not sure Duffy's view is right, and in this post I want to explain why. My source of doubt is that I'm not so sure that BPAI judges exercize "significant authority" for Appointments Clause purposes. I am no expert in the Appointments Clause, but Duffy's article relies heavily on the analogy between BPAI judges and administrative decisionmakers. Because executive branch judges that rule on administrative claims have been ruled to be covered by the Appointments Clause, so should BPAI judges. This assumption seems to rely on a specific notion of how patent law fits into administrative law: Specifically, executive branch adjudications of patent claims are basically like executive branch adjudications of licenses, welfare benefits, and the like. But does that analogy hold? I don't think it does. The reason is that patent law takes its operating principles from contract law rather than administrative law. As I argued a few years ago in Rethinking Patent Law in the Administrative State, 42 William & Mary Law Review 127 (2000), which I have just posted to SSRN, modern patent law predates the regulatory state and is based on the model of a unilateral contract offer rather than the exercise of administrative discretion. I go into detail on this in the article, but here's the basic idea. The patent laws announce a contract offer: Anyone who can create an invention that satisfies the standards of patentability and agrees to disclose the invention to the public in a patent application becomes entitled to the quid pro quo of the patent grant. The filing of a patent application is an attempt to accept the offer. The government's ruling on the patent application reflects the judgment of the offeror as to whether the offer has in fact been been accepted and a contract exists. If the contract exists, the offeror (that is, the government) then bestows the quid pro quo of the property right of a patent. If the offeror concludes that no acceptance occurred and thus no contract exists, then the offeror will award no quid pro quo and the offeree (the applicant) must go to court to sue the offeror for breach of contract (failure to confer the patent). With this understanding, a BPAI judge's job is conceptually very different from the job of other decisionmakers in the administrative state. The BPAI judge is a representative of the offeror, and the job is to determine if the applicant's conduct satisfied the contract. Although the position is a type of judgeship, the ultimate "decision" is essentially that of a contracting party as to whether a contract was accepted. This is different from an administrative judge because administrative judges are working within a zone of delegated power. The basic notion of modern administrative law is that executive agencies are given substantive rulemaking power to "do the right thing" within a zone of delegated discretion; the administrative law judge has "significant authority" because he or she exercises that delegated power. But there is no similar delegated power in patent law. The modern patent law system predates the administrative state by several decades, and it is based on a contractual model instead of the later delegated power model. Given that, I'm not entirely sure that BPAI judges exercize "significant authority," and I'm not sure their method of appointment is unconstitutional. My case is complicated by the fact that in the last few decades, the ossification of administrative law models of agency action has made it common to conceive of all decisions by agencies as the same. The fact that patent law followed different principles has been clouded. As I explain in detail in my William & Mary article, this has led to decisions both by the Supreme Court and the Federal Circuit that have tended to try to push patent law into more of a traditional administrative law model. Professor Duffy relies on these cases in support of his suggestion that the appointment of BPAI judges is unconstitutional by analogy to administrative judge cases. Given these recent cases, one response would be that whatever historical distinction separated patent law from regulatory executive action, the new cases have narrowed that difference enough that it no longer matters. Perhaps that's right. But at the same time, I think that a great deal of the historical distinction remains. It includes the standards of review for legal issues, which require Chevron deference for regulatory decisions but de novo review for constructions of the requirements of patentability. And given the very high stakes involved in this issue, I think a court should at least want to look more closely at this issue before concluding that the BPAI judges are covered by the Appointments Clause.
Don't Believe Everything You Read:
I was just looking over the Heller opinion, and came across the debate between Justices Scalia and Stevens about U.S. v. Cruikshank, 92 U.S. 542 (1876). Here's what Justice Stevens's dissent argues, accurately quoting both Cruikshank and the majority (citations omitted):
In United States v. Cruikshank, the Court sustained a challenge to respondents' convictions under the Enforcement Act of 1870 for conspiring to deprive any individual of “‘any right or privilege granted or secured to him by the constitution or laws of the United States.’” The Court wrote, as to counts 2 and 10 of respondents' indictment:
“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”
The majority's assertion that the Court in Cruikshank “described the right protected by the Second Amendment as ‘“bearing arms for a lawful purpose,”’” is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment's description of the right.
This is mighty odd (as the Heller majority stressed, in note 22). Cruikshank says, "The second amendment declares that it shall not be infringed ... by Congress." What is "it"? The only possible referent is "The right there specified," namely "of 'bearing arms for a lawful purpose.'"
Thus, substituting the referent, we see Cruikshank saying that "The second amendment declares that [the right of bearing arms for a lawful purpose] shall not be infringed ... by Congress." So Cruikshank definitely does describe the right protected by the Second Amendment.
Maybe I'm missing something here, but I don't think I am: It seems to me that the dissent just flatly misread Cruikshank, and in an important way -- and didn't correct this despite Justice Scalia's express and accurate response in footnote 22 of the majority.
So this is one reason I tell my students: Never rely on an intermediate source's characterization (or even quotation) of an original source; always read, quote, and cite the original source. (True, sometimes when the intermediate source is authoritative -- for instance, is a majority opinion -- its mischaracterization of an original source may itself create binding law. But the original source still says what the original source always said.)
Ninth Circuit Overrules Ecology Center:
A unanimous en banc panel of the U.S. Court of Appeals for the Ninth Circuit overturned the Circuit's 2005 ruling in Ecology Center v. Austin today, and appears to have narrowed the court's review of federal agency NEPA compliance. After briefly skimming the court's opinion in Lands Council v. McNair, I think it could be quite significant. In recent years, the Ninth Circuit has been something of an outlier in environmental law, and the most desirable jurisdiction for environmentalist plaintiffs. Insofar as this decision indicates a desire by Ninth Circuit judges to tame the court's environmental jurisprudence, it could be a biggie. I hope to say more, but I'm in an airport on my way to Glasgow for a wedding, so I don't know when I'll get a chance. Related Posts (on one page): - Lands Council v. McNair:
- Ninth Circuit Overrules Ecology Center:
More on GM’s market cap.—
Stuart Benjamin notes that the market capitalization of all of General Motors' stock has dropped below $5.7 billion. When last week it dropped below $7 billion, CNBC noted:
To put that in even more perspective, GM's market value is now roughly equivalent to that of tax-preparation provider H&R Block or toy maker Mattel.
Even more humbling for the auto maker, GM's value is now:
• Half that of cosmetics company Avon
• A third of cruise operator Carnival Cruiselines
• A quarter of Internet media company Yahoo!
• A fifth of online auction house Ebay
• A sixth of retailer Home Depot
• A seventh of biotech firm Amgen's league
• An eighth of drugstore chain CVS
• A ninth of fast-food giant McDonald's
GM's Market Capitalization:
Maybe GM's woes shouldn't surprise anyone, but I find it remarkable that not only is GM's stock trading at a 34-year low, but also that its market capitalization is $5.65 billion. That is less than 4% of Toyota's market capitalization of of $144 billion.
This is particularly striking given GM's enormous size and still-significant market share in a major industry. Another way of looking at it: Google's market capitalization per employee, admittedly higher than most companies', is $8,641,679. GM's is $21,241 per employee.
Of course, GM is saddled with enormous legacy costs, a shift away from its most profitable products, etc. But still, it is remarkable that the entirety of its market value equals about half a year's wages for each of its employees.
"Ex-Honors Program Applicant Sues DOJ Over Politicized Hiring":
The Legal Times has the story of a rejected DOJ Honors program applicant who apparently believes that he would have received an offer from the DOJ Honors program if not for the politicalization of the hiring process. I don't know much about employment law -- nor about whether several claims in the complaint actually provide for private rights of action -- but I thought the last paragraph of the story was pretty funny.
Don't tase Heller, Bro:
In an interesting op-ed in today's New York Times, Professor Paul Robinson reports on what he sees as the coming collision between the Second Amendment right recognized in Heller and state-law limitations on the use of deadly force for self-defense:
A narrowly divided Supreme Court ruled last week that the Second Amendment gives Americans the right to keep a loaded gun at home for their personal use. Presumably, citizens can use these weapons to defend themselves from intruders. But given the growing effectiveness and availability of less lethal weapons, it is likely that state laws will increasingly keep people from actually using their guns for self-defense.
The states impose carefully defined limitations on the use of deadly force in self-defense. (These rules are fairly uniform, state to state; most are based on the American Law Institute’s Model Penal Code of 1962.) A person may use only as much force as is “immediately necessary.” If a less lethal means of defense is available, the use of deadly force is illegal. Firearms are by law deadly force. . . .
Guns have been considered a primary weapon for self-defense. But now there are nonlethal alternatives — some not yet on the market — that can quickly disable an attacker even more reliably than a firearm can.
The best known of these are Tasers, handgun-shaped devices that fire a dart that delivers a painful electrical shock. . . .
Newer kinds of hand-held weapons that are less lethal than guns — many already in prototype — may be even more effective than Tasers. These include light lasers, designed to blind temporarily, and microwave beams that instantly cause the skin to feel as if it is on fire, but cause no lasting harm. . . .
If, on your way to confront an intruder, you choose your gun rather than your more effective but less lethal weapon, you can hardly complain later about your limited options.
Similarly, when a person shops for a weapon of self-defense, anticipating some day a confrontation with an attacker, his choice of a gun over something less lethal but more effective is a choice to limit his options in a confrontation. . . .
As effective less-than-lethal weapons proliferate, the laws of self-defense may ultimately relegate last week’s court decision to the status of an odd little opinion, one that works mainly to ensure some special constitutional status for gunpowder technology. Gun collectors will be fond of it, but for most of society, it will have little practical effect.
So, is Heller obsolescent? Two quick reactions to this intriguing argument. First, I think the implication of Heller is broader than simply giving citizens "the right to keep a loaded gun at home for their personal use." The core of the Second Amendment, as identified by the Court, is the right to keep and bear "arms" for the purpose of self-defense. I think this right extends beyond "gunpowder technology," which makes the Second Amendment sound as if it is limited to weapons derived from the Eighteenth Century rather than to reasonably comparable modern weapons ("arms") used for personal self-defense (like tasers). An analogy would be to the First Amendment, which protects speech as communicated through the printing press, as in 1791, but also speech as communicated through modern means like movies, television, radio, and the Internet. I'm not sure Professor Robinson disputes this extension of the Second Amendment to other weapons, but the opening sentence of the op-ed makes Heller sound more limited than it really is.
Second, and more importantly, it's true that there are state-law limitations on self-defense. But I would expect these limitations themselves to be subject to constitutional constraints derived from the Second Amendment (assuming, as I do, that the Second Amendment will eventually be applied to restrain state power). Again, an analogy would be to state libel laws that are subject to First Amendment limitation even though they don't directly prohibit speech; they penalize or burden it.
It can't be the case, for example, that the Second Amendment gives citizens the right to keep weapons in their homes for self defense and at the same time gives the government plenary power to prohibit them from using weapons for that very purpose. "You have the right to keep and bear arms but may never use them," would be a hollow right. At the same time, surely a state can limit the circumstances in which a citizen uses deadly force, even in the home. The question will be how far the state can go in limiting the use of weapons — like handguns — whose possession is constitutionally protected.
Professor Robinson's op-ed suggests that because a state can insist that a citizen use non-lethal means of self defense, if available, handguns can effectively be eliminated as less-lethal weapons proliferate. On this view, if both a gun and a taser are available in the home, the state can require the citizen to use the taser. More ambitiously, he also suggests that a state could go so far as to require a citizen wishing to have a weapon for self-defense in the home to purchase a non-lethal weapon for this purpose rather than a gun. The implication is that the use of a gun for self-defense in the home could be criminalized because the citizen could always have chosen to buy something non-lethal.
This conclusion is provocative. The problem, as I see it, is that Professor Robinson does not wrestle at all with the issue of possible constitutional constraints on state self-defense laws. But, as I suggested above, there surely are at least some constraints. And these constraints point to some possible problems with Robinson's argument.
His conclusion about state power to require the use of non-lethal weapons would gut even the immediate and narrow holding of Heller — that guns may be kept in the home for self-defense — since these guns could not actually be used. Additionally, while Robinson posits that tasers may be more effective as a means of self-defense than guns are, the Court in Heller rejected similar arguments about the efficacy of gun control laws and the dangerousness of guns in relation to their self-defense benefits. The balancing of interests, Justuice Scalia wrote, has already been done in the Second Amendment and it favors gun possession in the home.
If possession is protected, and if a law requiring the disabling of guns is prohibited, there must be some constitutional protection for use. If I'm right about that, a hypothetical law that categorically banned gun use for self-defense because tasers and other non-lethal weapons may be purchased would likely be unconstitutional under the Second Amendment. While I'm not sure where the constitutional line will be drawn on state self-defense statutes, and there's plenty of room for debate about the subject, it won't likely be drawn in a way that makes this self-consciously landmark ruling "an odd little opinion."
UPDATE: Professor Robinson responds in the comments. He acknowledges that Heller may well have the effect of invalidating laws against the possession of some modern weapons for self-defense, like tasers. And while I agree with him that Heller does not "invalidate" every application of the general rule that you can't use more force than necessary for self-defense, it has at least clarified that handguns have a specially protected constitutional role in self-defense within the home that can't be eliminated by a state. This bodes ill for, say, a future statute banning handguns for self-defense in the home. And I think the opinion suggests that it does not matter whether the state thinks other methods of self-defense would be "better" for the individual or for society. Professor Robinson does not engage the reasons I offered for this view, and I won't repeat them here. All of this might be "astonishing" for a criminal law expert, but it's no less astonishing than it was for media lawyers to learn that the First Amendment placed limits on long-standing state statutory and common-law libel rules. I do appreciate Professor Robinson's contribution to the discussion.
On another note, contrary to what one commenter believes, I am not suggesting that the Second Amendment after Heller recognizes an independent, free-floating right to self-defense (though such a right may be secured elsewhere in the Constitution). Instead, the Second Amendment recognizes a personal right to keep arms in the home, and to do so at the very least for the purpose of self-defense.
Blogger Finds Factual Error in Kennedy's Kennedy Opinion:
In turns out that Justice Kennedy's opinion in Kennedy v. Louisiana declaring the death penalty unconstitutional as a punishment for child rape mischaracterized federal law on the matter. As the NYT reports this morning, Kennedy's opinion claimed that the death penalty was only available in six jurisdictions within the United States, but that's not true. Kennedy correctly observed that the death penalty is not available for child rape in thirty of the thirty-six state jurisdictions that allow capital punishment. But Kennedy wrongly asserted that federal law does not provide for capital punishment either. This latter claim is simply untrue. Indeed, Congress has provided for the death penalty for child rape quite recently.
The mistake was uncovered by military blogger Dwight Sullivan, in this post for CAAFlog. As Sullivan noted, the FY2006 National Defense Authorization Act provided for capital punishment for child rape. Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "[u]ntil the President otherwise provides pursuant to" UCMJ article 56, "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."
That is a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it? There is still time for the parties to the case to file a petition for reconsideration, but such petitions are rarely granted. I doubt Justice Kennedy would have decided the case any differently had he been more informed about current federal law. Nonetheless, it should be quite embarrassing that none of the advocates noted this error until now.
The NYT story closes with a kicker: No one in the military has been charged with a capital crime yet under the revised provision. And despite the flurry of activity surrounding the death penalty, the military has not in fact executed anyone for decades. Its last execution took place on April 13, 1961, when Pvt. John A. Bennett was put to death by hanging. His crime: the rape of an 11-year-old girl.
UPDATE: How bad was Justice Kennedy's mistake? Consider this passage from his opinion discussing the allegedly evolving consensus: As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse…. [A]n offender is death eligible only when the sexual abuse or exploitation results in the victim's death. "Well, not exactly," notes Andrew McCarthy. He adds: "In point of fact, if there actually was a national consensus, it trended toward discouraging child rape by making execution an available sanction."
Related Posts (on one page): - Post Calls for Kennedy Rehearing:
- Blogger Finds Factual Error in Kennedy's Kennedy Opinion:
Does Obama understand evil?--
I read Barack Obama’s second autobiography, The Audacity of Hope, in part to try to understand Obama better, but more particularly to see whether he understood evil in the world.
I found myself highly impressed with Obama’s fluency and open-mindedness. Some Republicans seem to be trying to depict Obama as some sort of angry, America-hating, hard left-wing ideologue. My sense is that Obama is both quite progressive/left wing (at least for a popular politician) and also very open-mined and non-doctrinaire. Indeed, in his second book I found him highly understanding of those who disagreed with him, especially those in the general public. His only sharp comments were reserved for a few Republican officials (eg, Bush) and media types (eg, Rush Limbaugh). In my opinion, Obama sees himself as highly moral, always pushing for the best progressive reforms, but understanding that others may not be as enlightened as he is.
Yet I got no sense from Obama’s Audacity of Hope (covering the post-2001 period) that Obama has any real understanding of the evil we face in the world. I did get a sense that he was somewhat above the fray – something that comes through in some of the flaps arising during his campaign. Much as his “bittergate” comments suggested, he is quick to try to understand – and slow to blame – those with whom he disagrees.
I almost get the feeling that Obama would be comfortable as an honest broker in a dispute between the government of Iran and the government of the United States (with, of course, a natural bias for the position of the United States, the country that he loves above all others).
Accordingly, I found this discussion by Uncle Jimbo at Blackfive (tip to Instapundit) half wrong:
None who have served, well none with more than 4 months in the motor pool, wonder what John McCain proved to us. We know that a man who would refuse to be released ahead of others and allow the enemy a propaganda victory definitely understands and stays true to those three pillars [Duty, Honor, and Country]. The clowns on the left toss out the straw man that he learned nothing about foreign policy there. Well I disagree, he learned at least one thing. Our enemies are evil, ruthless bastards and they do not play by the same rules. Barack Obama believes America is evil and ruthless and needs the cleansing only he can lightwork.
Let's compare the two:
John McCain was so loyal to the men he was imprisoned with he endured torture on their behalf.
Barack Obama associates with those who can help his career, and throws them right under the bus when they become inconvenient to his aspirations.
That single issue of character matters more than all the others combined. You can trust John McCain. You can trust Barack Obama to use you as a stepping stone. . . .
Obama is a feather blowing in the political breeze. McCain is a rock.
I think it’s fair to say that John McCain understands evil in a way that Barack Obama has not yet shown that he does.
But I think it a grave error to say that Obama “believes America is evil and ruthless and needs the cleansing only he can lightwork.” I think that Barack Obama believes that, on balance, the United States is the best country in the world. (It is interesting, nonetheless, how often over the years his expressions of pride in America have been tied to personal gratitude for the country that allowed his career to blossom.) I think that Obama sees “America’s cup” as two-thirds full, but wants to focus on its being one-third empty – as I would expect any critic to do.
UPDATE (11pm ET): In the over 160 comments so far, people have rightly debated whether we need a president who understands evil. It would seem that there would be situations where having such an understanding would be a help and others where it would be a hindrance. I remember when president Reagan called the Soviet Union "the evil empire." It struck me as somewhat unsophisticated at the time, but Reagan was right. And dissidents behind the iron curtain later credited such statements from Reagan with shoring up their resolve to fight that empire.
If George W. Bush had not understood evil, would he have had the resolve to institute the surge in Iraq? Perhaps, perhaps not.
I see in the comments one or two readers who also read The Audacity of Hope and see, as I do, Obama's real affection for this country (contrary to Uncle Jimbo's claim quoted above). One thing I haven't seen in the comments so far is anyone who read The Audacity of Hope and points me to passages in that book that contradict my claim that I don't see any evidence there that Obama has a deep understanding of evil.
World's Happiest Countries
This interesting list ranks the world's happiest countries. Number 1? Denmark. Last? Zimbabwe. The U.S.? 16th overall.
For me the biggest surprise was the clustering of many former Soviet republics at the bottom of the list. For example, Ukraine (5th from the bottom) is apparently far less happy than many other less wealthy countries such as Columbia (3rd from the top) and El Salvador (11th from the top).
Tuesday, July 1, 2008
Breakaway Episcopal Churches Win:
Via Mirror of Justice I learn that the breakaway Episcopal churches in Virginia have won in the trial court. Summary here and here and here.
There are some obvious implications of the judge's ruling for many mainline Protestant churches. I've followed the case in passing simply because I reside in Falls Church, Virginia, which is named after the Falls Church that is one of the lead breakaway churches so it has been a major local issue for some time. (In light of the contentiousness of the issues that underlie the division in the case, let's please keep comments civil and focused on the legal merits and ramifications of the ruling and not get into the social issues that underlie it.)
Puzzling Obama on SSM:
Today we learned that |
