Archive | 2010

Second Amendment Rights for Non-Violent Felons?

From Judge Ikuta’s concurrence in U.S. v. Duckett (9th Cir. Dec. 17):

Although I join the majority in full [in, among other things, rejecting the defendant’s Second Amendment argument on the strength of Vongxay -EV], were I not bound by United States v. Vongxay, 594 F.3d 1111 (9th Cir.2010), I would examine whether, notwithstanding the Supreme Court’s dicta in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 2816-17 (2008), the government has a substantial interest in limiting a non-violent felon’s constitutional right to bear arms. See United States v. Williams, 616 F.3d 685, 693 (7th Cir.2010) (“[W]e recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent.”); United States v. Skoien, 614 F.3d 638, 645 (7th Cir.2010) (en banc) (Sykes, J., dissenting); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.2009) (Tymkovich, J., concurring). Indeed, other than felon disenfranchisement laws, which are grounded in § 2 of the Fourteenth Amendment, see Richardson v. Ramirez, 418 U.S. 24, 54 (1974), I can think of no other constitutional disability that applies only to a “certain category of persons … [who] may be excluded from ever exercising the right.” Skoien, 614 F.3d at 650 (Sykes, J., dissenting).

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Illegal in New Hampshire to Repeatedly Use “Offensively Coarse Language” With the Purpose to Annoy

N.H. Stat. § 644-4 makes it a misdemeanor to, among other things, “[m]ake[] repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another.” In re Alex C. (N.H. Sup. Ct. Nov. 30) upheld the conviction of a minor for sending 20 instant messages in the span of an hour to a friend’s mother, apparently using the terms “fucking idiots,” “bitch,” “fatshit,” “cunt,” and “faggot.” (The mother was using the daughter’s account at the time, because the daughter had run away from home and the mother was hoping “one of her daughter’s friends might respond with information that would help locate her daughter.”) The defendant’s legal claim was that conversations within one IM conversation didn’t count as “repeated,” but the New Hampshire Supreme Court rejected that.

The statute, though, would reach considerably beyond situations such as this one. First, it bans “repeated communications,” which might cover not only barrages such as the twenty messages here but even just a couple of communications. The opinion defines repeated as “renewed, frequent, or constant imparting of a message by any method of transmission,” and “constant” would seem to suggest a stream of communications; but “renewed” is given as an option, and the literal meaning of “repeated” does seem to cover even a small number of communications.

Second, it isn’t limited to personal insults. “Offensively coarse language” about someone other than the recipient would also qualify.

Third, it includes statements meant to do many things, including to annoy — for instance, to inform people of some alleged misbehavior on someone’s part, and at the same time annoy the misbehaving person. The statute requires only “a purpose to annoy,” not a sole purpose to annoy (and of course nearly all communication has at least some purpose other [...]

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Man Prosecuted for Reading Wife’s E-Mail Without Her Authorization

From the Detroit Free Press:

Oakland County prosecutors, relying on a Michigan statute typically used to prosecute crimes such as identity theft or stealing trade secrets, have charged Leon Walker, 33, with a felony after he logged onto a laptop in the home he shared with his wife, Clara Walker.

Using her password, he accessed her Gmail account and learned she was having an affair. He now is facing a Feb. 7 trial. She filed for divorce, which was finalized earlier this month.

Legal experts say it’s the first time the statute has been used in a domestic case, and it might be hard to prove….

Frederick Lane, a Vermont attorney and nationally recognized expert who has published five books on electronic privacy[, said that t]he fact that the two still were living together, and that Leon Walker had routine access to the computer, may help him …..

“I would guess there is enough gray area to suggest that she could not have an absolute expectation of privacy,” he said.

The Michigan statute provides, in relevant part,

A person shall not intentionally and without authorization or by exceeding valid authorization … [a]ccess or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.

In principle, it’s just as illegal for a husband to access his wife’s e-mail without permission as it is for him to access someone else’s e-mail without permission. The question is whether the wife had expressly or implicitly authorized the husband to access her e-mail. If she hadn’t, then I suspect the husband’s behavior would violate the statute, because it involves access to Google’s computers in a way [...]

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Why the Medicaid Mandates on States Violate the General Welfare Clause

My new op-ed in Monday’s Wall Street Journal with Mercer law professor David Oedel, ObamaCare and the General Welfare Clause, explains why the new Medicaid mandates imposed on the states suffer from the same General Welfare Clause problem as did the Cornhusker Kickback:

Remember the Cornhusker Kickback? In a frantic effort to move ObamaCare through the Senate last December, Majority Leader Harry Reid procured Sen. Ben Nelson’s vote by offering Nebraska a unique opportunity: His state alone would not have to pay for the dramatic expansion of Medicaid under the bill. The deal was dropped at the last minute, but not only because of the public outrage it generated. Many realized it was unconstitutional for a reason that now applies equally to the health-reform law: Both violate the general-welfare clause. . . .

Normal federal spending occurs irregularly throughout the U.S. If Nebraska gets a military base, for example, making the case that it serves the “common defense and general welfare of the United States” is easy, since citizens of other states benefit from the base. The same general-welfare story can be told about virtually all federal spending programs, which is why Chief Justice William Rehnquist said in Dole, “[i]n considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.”

ObamaCare is different. Texas might be allowed to withdraw from Medicaid, but Congress will simply send the Medicaid portion of its citizens’ federal tax payments to the 49 other states. Texas citizens would receive nothing in return.

Given the enormous sums involved, sending their tax payments to other states would make it nearly impossible for Texans to fund their own system of medical assistance to the poor: Texas’s poor citizens would suffer while the state’s tax payments would

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Law and Regulation of Central Banking?

I am curious as to whether any law school offers a (seminar?) course on the law and regulation of central banking, either specifically on the Fed in US domestic law or else something like “comparative central banking” in the transnational law curriculum.  I’d be interested in responses as to courses, syllabi, reading, and course topics.  Serious responses please; no rants or off topic responses.  (Let me add that I don’t mean exactly what typically features in the banking course, which is, in my experience, less about the law governing central banking than the legal mechanisms by which the central bank interacts with the rest of the banking and financial services sector.  They are not quite the same thing.)

The legal powers of the Fed – and their limits, regulatory, statutory, and Constitutional – are obviously a question of importance today.  The financial crisis, the response, and the continuing unemployment rate make the question of the Fed’s mandate, independence, and limits germane in a way that has only rarely been true in the economic history of the US since creation of the Federal Reserve.  Consider one of the latest arguments – will the Fed move to monetize the fisc, meaning the fiscal deficits of states and municipalities, as a source of – not liquidity of last resort – but instead as a provider of solvency?  A George Will column expressed the concern, set against public pension issues, this way:

People seeking backdoor bailouts hope that the fourth branch of government, a.k.a. Ben Bernanke, will declare an emergency power for the Federal Reserve to buy municipal bonds to lower localities’ borrowing costs. This political act might mitigate one crisis by creating a larger one – the Fed’s forfeiture of its independence.

Will obviously has a side in this debate, but that [...]

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10 Best Legal Shows in TV History

The Criminal Justice Degrees Program has posted its 10 Best Legal Shows in TV History, along with YouTube clips from each show. In tenth place it lists what I believe to be the best lawyer show of all time: The Defenders, starring E.G. Marshall and Robert Reed:

The Defenders was a successful courtroom drama series that told the story of father-and-son defense attorneys who handles high-profile and very controversial cases involving racism, civil rights, religion, abortion and other major issues of the time. The series ran from 1961 to 1965 on CBS and received a great deal of praise for its social context and outstanding performances.

It was watching this show in first run that first made me want to be a lawyer. Here is the clip from the show:


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Cato and My Amicus Brief in Sixth Circuit

On Wednesday, the Cato Institute and I filed an amicus brief in the lawsuit brought by the Thomas More Law Center. (This is the complaint dismissed by District Court Judge Steeh prior to District Court Judge Hudson finding the individual mandate to be unconstitutional.) In our brief, we describe the existing doctrine governing the Necessary & Proper Clause — the substantial effects doctrine — and how it is limited to the regulation of economic activity. Under current Necessary and Proper Clause doctrine which binds lower courts, therefore, there is no existing authority for Congress to go beyond economic activity to reach inactivity. We also discuss Justice Scalia’s proposed new Necessary & Proper Clause doctrine (that was also dictum in Lopez & Raich): Congress may reach intrastate noneconomic activity when doing so is essential to a broader regulatory scheme. We contend that this yet-to-be-adopted doctrine should be limited by a distinction that is implicit in all previous Necessary & Proper executions of the commerce power: the activity-inactivity distinction. Finally, we discuss how, even if the individual insurance mandate is deemed to be “necessary,” it constitutes an “improper” commandeering of the people. You can download a pdf of the brief here. [...]

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Merry Christmas

To all VCers everywhere who celebrate it, Merry Christmas, and to everyone a joyous holiday season. It is snowing large wet flakes here in DC on Christmas morning. In my case, my wife and I drove down on Thursday to Chapel Hill, North Carolina and drove my wife’s elderly parents up to DC to join us. Other family have arrived as well, and I am Most Pleased to say that so far I have not been moved to issue an appeal that next some year some nice Jewish family temporarily adopt me during the holidays and take me someplace warm and … far away.

Like many of us here at VC, I have friends celebrating this Christmas, away from friends and family and loved ones, in places ranging from Iraq, Afghanistan, Sudan, Congo, and other places, and best wishes and hopes that you will be sooner rather than later back with your loved ones.  As I mentioned last night, at the Christmas children’s Mass last night at the parish, Santa (with an able assist from Tod Lindberg) made an appearance and pronounced me on the “nice” side of the “naughty-nice” list. I have a candy-cane to prove it. It is true, as he handed it to me, he muttered something about “defining deviance down,” but still. I have not yet been downstairs to see what this means, but that’s next.

Merry Christmas and to all our readers and friends, best wishes to you and your families and loved ones. [...]

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How Does He Know When You’ve Been Bad or Good?

This was supposedly written for and sung at a US Department of Justice, Office of Legal Counsel Christmas party during the Carter administration; please let me know if you have a more precise attribution:

You’d better watch out,
You’d better not cry,
You’d better not pout;
I’m telling you why.
Santa Claus is tapping
Your phone.

He’s bugging your room,
He’s reading your mail,
He’s keeping a file
And running a tail.
Santa Claus is tapping
Your phone.

He hears you in the bedroom,
Surveills you out of doors,
And if that doesn’t get the goods,
Then he’ll use provocateurs.

So–you mustn’t assume
That you are secure.
On Christmas Eve
He’ll kick in your door.
Santa Claus is tapping
Your phone.

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Santa Showed Up at Mass Tonight

Santa Claus showed up at the end of the Children’s Mass at our parish church tonight (ably aided by Tod Lindberg).  Santa (let it be noted for the official record) pronounced Your Correspondent “Nice” and presented him with a candy-cane.  I’m not Catholic, and so am not schooled in the deep matters of Catholic theology.  However, I was curious as to the arrival of what I presumed to be a pagan demi-god at Mass, and indeed coming up to the altar – and, as I recall a couple of years ago, processing out with the priest.

Your Faithful Correspondent made inquiries as to the theology of all this.  At some (many?) Protestant services – I imagine this would be true of the Mormons, for example – the arrival of Santa in the liturgy of the service might be considered a nod toward paganism, at least (responding to Matt’s comment below) insofar as it happened in the course of the religious service itself.  It was pointed out to me that, for Catholics, however, Saint Nicholas is a saint.  True, the connection between the historical St. Nicholas and Santa Claus is a bit hazy; but My Religious Informant thought it close enough for a children’s Christmas Mass in which part of the purpose is religious instruction as to the importance of saints.  For St. Nicholas to process out with the priest, red suit and all – I do not, of course, speak for the Church – is apparently within bounds of the liturgically and even theologically acceptable.

(Added:  To be clear, My Religious Informant did not think this was an example of syncretism – of a kind that has always been true of Catholicism and thought to be an important mechanism for bringing people to the faith – but [...]

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Obama Administration Defends Bush Polar Bear Position

Politico reports that the Obama Administration is defending the Bush Administration’s decision to list the polar bear as a “threatened” species, rather than “endangered” species, under the Endangered Species Act (ESA).  As I discussed in this series of posts, environmentalist groups petitioned to have the polar bear listed as an endangered species due to the warming of its arctic habitat.  Such a listing could open the door to using the ESA as yet another regulatory weapon against activities that contribute to greenhouse gas emissions.   Although the Obama Administration has moved aggressively to utilize the Clean Air Act to impose regulations controlling greenhouse gas emissions, it does not appear as eager to deploy the ESA as well. [...]

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The EPA’s Christmas Present

Yesterday the Environmental Protection Agency (EPA) announced it was entering into two proposed settlement agreements to regulate greenhouse gas emissions from fossil fuel-fired power plants and oil refineries under the Clean Air Act.  The two agreements resolve lawsuits filed against the EPA by several states and environmental groups seeking the imposition of new source performance standards covering greenhouse gas emissions from the two types of facilities.  Under the agreement, the EPA will issue proposed regulations governing the two classes of facilities in 2011 and finalize the rules in 2012. [...]

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