Archive | 2010

Congratulations to Orin, for Having One of His Posts Cited in a Fifth Circuit Opinion

From U.S. v. Ibarra-Luna (5th Cir. Dec. 22), n.14:

The charging document for the 2003 offense nominally alleges that Ibarra “knowingly delivered by actual transfer,” “by constructive transfer,” and “by offering to sell.” Notwithstanding this language, a conviction would require the government to prove only one of these allegations, not all three, and therefore we cannot say whether Ibarra’s guilty plea was an admission to all three allegations or only to the allegation of offering to sell. See Morales-Martinez, 496 F.3d at 358–61; accord United States v. Fuentes, 245 F. App’x 358 (5th Cir. 2007); cf. Orin Kerr, The Strange Practice of Indicting in the Conjunctive, THE VOLOKH CONSPIRACY (Sept. 25, 2009, 1:23 PM),

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Mighty Barca!

Sports Fans!: Brian Phillips, over on Slate, has a nice piece on “the special feeling of euphoria, a kind of Olympian giddiness, that soccer fans experience while watching F.C. Barcelona.” Even for those of you who care little for the game, you should make at least a small mental note about what is happening over in Barcelona at the moment – it’s a global phenomenon of some importance, I think, certainly inside, but probably also outside, the closed world of sport. Many people believe that this is, simply, the best soccer team of all time — and who knows, possibly the best that any of us will see in our lifetimes, what with the uncertainty that always surrounds the structure of the sport, changes that may be imminent in the way players are allocated among teams, etc. etc. Phillips has a nice way with words — he describes the recent dismantling of their rivals Real Madrid, a 5-0 drubbing (of a team that could possibly lay claim to the title of 2d best in the world) that left the soccer fans of the world in a deep state of awe and wonder, as “a mesmerizing display of off-handedly beautiful ruthlessness,” which is a phrase I wish I’d written. And he captures something — not everything, surely, but something — of what makes this team, at this moment, so special:

Soccer takes great athletes and makes them artificially clumsy—forces them to show what they can do, in effect, with both arms tied behind their backs. It’s a game of tricks, one that turns the simplest action, just keeping possession of the ball, into a perilous high-wire act. But Barcelona pass the ball, and pass the ball, and pass the ball—938 times in their recent 5-0 win over Real Sociedad—and invert defenses

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Payday Lending Booms as Credit Cards Become Less Available

A nominee for least-surprising business story of the year–payday lending booms as new credit card regulations and the credit crunch reduce access to credit cards, especially for higher-risk borrowers.

“We believe that we’re starting to see a benefit of a general reduction in consumer credit, particularly … subprime credit cards,” Patrick O’Shaughnessy, Advance America’s chief financial officer, told investors in November. The Spartanburg, S.C., company has 2,360 payday-loan offices, including 13 opened this year. Company officials plan to open an unspecified number of additional offices, partly to take advantage of the upheaval.

Unintended consequences really suck sometimes.  Hmmm, I’m starting to question whether mindless moral outrage that wishes away unintended consequences is the best way to think about consumer credit regulations.  Maybe instead we ought to acknowledge that there will be unintended consequences, such as by making credit cards less available regulation will drive many consumers to substitute to more expensive types of credit, such as payday loans? And just wait until the well-intentioned bureaucrats at the CFPB really start protecting those poor folks, then they are really going to get it.

Herewith my prospective nominee for least-surprising business story of 2011: “Bank fees and number of unbanked consumers rise as Durbin amendment price caps on debit cards go into effect: Merchants lobby for additional price controls on credit card interchange fees.” [...]

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New York Times Article on Law and the Multiverse

The New York Times recently published an article on the Law and the Multiverse blog, which focuses on legal issues raised by superheroes and supervillains.

The article includes some commentary by yours truly. In conjunction with my analysis of the law of Dungeons and Dragons (see here and here), constitutional federalism in Star Trek and property law issues in the Lord of the Rings, I think I have carved out a niche as a pundit on legal issues in science fiction and fantasy worlds.

If any film producers are reading this, it’s not too late to hire me as a legal consultant on your next SF or fantasy film. Rest assured that I will keep my promise to work cheaper than the overpriced Hollywood lawyers who mucked up the important legal issues in Superman Returns. [...]

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OLC’s “Best Practices” In Giving Legal Advice

In May 2005, Steven G. Bradbury, Principal Deputy Assistant Attorney General for the Office of Legal Counsel, issued a memorandum entitled “Best Practices for OLC Opinions.”  At the time, the Office was the subject of controversy because of leaked national security opinions that were prepared during the months following 9/11.  Bradbury was (and for the remainder of the Bush Administration, would remain) the most senior official in the Office, but he had served as an Attorney-Adviser there under AAGs Mike Luttig and Tim Flanagan.  The memo codified and reaffirmed the Office’s traditional methods for preparing, reviewing, and issuing opinions. 

In July 2010, then-Acting Assistant Attorney General David J. Barron issued a memo entitled “Best Practices for OLC Legal Advice and Written Opinions.” In a gesture of continuity, the memo states that it “updates” (rather than “supersedes” or “replaces”) the May 2005 memo. See 2010 Memo at 1 n.*.  It expands the scope of the 2005 Memo explicitly to include informal advice as well as formal opinions; alters somewhat the process of review and comment for draft opinions (although it’s unclear how much practical effect that has); and codifies the presumption favoring publication that I observed in practice.

I’ve prepared a redline comparing the two documents here.  Because there is nothing people crave on the eve of a major holiday so much as a lengthy missive on the minutiae of the operations of a small government office, I have more detailed thoughts on the differences between the memos after the jump.  [...]

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Davis v. United States Oral Argument Scheduled for March 21

I know many VC readers have been anxiously waiting to find out what day the oral argument might be in Davis v. United States, the Fourth Amendment case on the scope of the exclusionary rule that I’ll be arguing. (I mean, what else are you doing — getting ready for the holidays? Bah.) The Court announced its February and March oral argument calendars today, and Davis is scheduled for March 21. Thanks to Roy Englert for the tip. [...]

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Nineteen Judicial Nominees Confirmed in the Last Week

Nineteen judicial nominees have been confirmed in the last week. By my count, those nineteen confirmations include five circuit court confirmations:

1) Mary Murguia for the Ninth Circuit;
2) Scott Matheson Jr. for the Tenth Circuit;
3) Kathleen O’Malley for the Federal Circuit;
4) Raymond Lohier Jr. for the Second Circuit; and
5) Albert Diaz for the Fourth Circuit;

In the first two years of President Bush’s first term, there were 17 circuit court confirmations. The five confirmations this week brings Obama’s total so far to 16 circuit court confirmations.

Those numbers misrepresent the comparative picture in two key ways. First, Obama also had two nominees confirmed to the U.S. Supreme Court during that period. In contrast, there were no Supreme Court vacancies during Bush’s first term. Supreme Court nominations greatly slow the pace of other nominations: During the three or four months while the Supreme Court nomination is pending, little else happens on the confirmation front.

Second, in the last two years the Senate was controlled by the President’s party. In the first two years of President Bush’s first term, in contrast, his party had effective control of the Senate for a few months while the Senate was split 50/50 until Senator Jeffords left the GOP and began caucusing with the Democrats. [...]

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Where Pat Robertson and I Agree

I rarely have anything good to say about Pat Robertson. But the devil-monger deserves his due: I have to commend his call for the legalization of marijuana. Moreover, he cites several good reasons for this stance, including the high cost of prohibition, and the fact that imprisonment of small-time drug dealers and users is “ruining young people.” I suspect that Robertson has begun to realize that the War on Drugs is bad for family values. It will take a lot of good works to make up for all the ridiculous and offensive things that Robertson has said over the years. But helping to end the War on Drugs would be a good start.

As the recent defeat of California’s Proposition 19 shows, the opposition of social conservatives is one of the biggest political obstacles to curtailing drug prohibition. Hopefully, more conservatives will come to the same realization as Robertson and, before him, the far more intellectually respectable William F. Buckley. [...]

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Finally . . . Another Nominee For OLC Chief?

The Wall Street Journal reports that in January, President Obama will nominate DC’s Virginia Seitz to be Assistant Attorney General for the Office of Legal Counsel.  OLC hasn’t had a confirmed head since July 2004. 

NPR reported back on August 4 that Seitz, who is a respected appellate litigator at Sidley Austin, was the front-runner for that post. And her name had been making the rounds locally for a couple months before that, making this a very long-running trial balloon indeed.

The Journal reports that “[s]everal conservatives contacted Tuesday . . . warned her nomination could run into trouble if Republicans object to her shortage of national-security experience.” National security law has certainly been an increasingly important part of OLC’s docket since 9/11. But while Jack Goldsmith had experience in national security law before coming to OLC, Jay Bybee (who was confirmed in October 2001) did not. (Of course, some critics would say that Bybee’s lack of preexisting experience in the area played a role in the Office’s issuance of national security opinions that have been controversial.)  Before 9/11, OLC heads frequently had no significant pre-existing experience in that area. 

The Journal reports that the Obama Administration will name Caroline Krass as the Principal Deputy in the Office. That may help to blunt the criticism that Ms. Seitz lacks national security experience: Caroline (who was a classmate of mine in law school) has extensive experience in national security law, and during my tenure at OLC, she was one of the foremost OLC experts in the area.  And she’s worked in national security while in her current position in the White House. [...]

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Akaka Bill Won’t Be Enacted in Lame-Duck Session

Ilya Shapiro of the Cato Institute (no relation, though sometimes confused with me) reports that the Akaka Bill is not going to be pushed through Congress during the present lame-duck session. I criticized an earlier version of the bill on federalism grounds here. As my fellow Ilya points out, this probably won’t be the last time we see the Akaka Bill, since it seems to come up again in every Congress. But it is less likely to get through the the new, more Republican, Congress. [...]

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Use of Night-Vision Goggles Not A Fourth Amendment Search

So holds a state court in People v. Lieng, 2010 Cal. App. LEXIS 2106 (1st Dist. December 14, 2010), distinguishing the infrared thermal imaging device used in Kyllo v. United States:

Kyllo is inapplicable to this case. First, night goggles are commonly used by the military, police and border patrol, and they are available to the general public via Internet sales. (U.S. v. Vela (W.D.Tex. 2005) 486 F.Supp.2d 587, 590.) More economical night vision goggles are available at sporting goods stores. (Ibid.) Therefore, unlike thermal imaging devices, night vision goggles are available for general public use.

Second, state and federal courts addressing the use of night vision goggles since Kyllo have discussed the significant technological differences between the thermal imaging device used in Kyllo, and night vision goggles. (See, e.g., People v. Deutsch (1996) 44 Cal.App.4th 1224, 1228, fn. 1; U.S. v. Dellas, supra, 355 F.Supp.2d at p. 1107; U.S. v. Vela, supra, 486 F.Supp.2d at p. 590.) Night vision goggles do not penetrate walls, detect something that would otherwise be invisible, or provide information that would otherwise require physical intrusion. (U.S. v. Vela, supra, at p. 590.) The goggles merely amplify ambient light to see something that is already exposed to public view. (Ibid.) This type of technology is no more “intrusive” than binoculars or flashlights, and courts have routinely approved the use of flashlights and binoculars by law enforcement officials. (Ibid., citing United States v. Dunn, supra, 480 U.S. at p. 294 [officers standing in open field used flashlight to look inside barn]). (See also People v. Capps (1989) 215 Cal.App.3d 1112, 1123, citing Texas v. Brown (1983) 460 U.S. 730, 740, overruled on another point in Horton v. California (1990) 496 U.S. 128 [“[t]he deputy’s use of his flashlight to illuminate the interior of the

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A Possible Endorsement Test Case for the U.S. Supreme Court?

Yesterday, the Tenth Circuit voted 5-4 not to rehear the Utah roadside cross memorial case, American Atheists, Inc. v. Duncan. The result, and the forceful dissents from denial of rehearing en banc, make it likely that the Supreme Court will agree to hear the case, and perhaps overturn the Establishment Clause endorsement test. I blogged about this in August, when the panel opinion was handed down, but I thought I’d repeat that post, with a few elaborations.

The case involves Utah Highway Patrol’s practice of allowing twelve-foot-high crosses as roadside memorials for fallen troopers (see the picture above). The practice, the panel held, violated the Establishment Clause because it had the effect of endorsing Christianity.

But five of the U.S. Supreme Court’s nine members seem likely to disapprove of the endorsement test — Justices Scalia, Kennedy, and Thomas are on the record as opposing the test, and Chief Justice Roberts and Justice Alito seem likely to take the same view. What’s more, Justice Kennedy, who has long been on the record as opposing the endorsement test, wrote in Salazar (in an opinion joined by Chief Justice Roberts and Justice Alito) that

The goal of avoiding governmental endorsementdoes not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.

Both dissenting opinions (including one by Judge Neil Gorsuch, who worked part-time in Justice Kennedy’s chambers when he was a law clerk for retired Justice White) mentioned this passage. [...]

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