The Volokh Conspiracy

Eugene McCarthy Passes Away at 89: The NYT's obituary is here.

Easterbrook Rejects Peer-to-Peer Fair Use Defense: In an opinion released yesterday authored by Judge Frank Easterbrook, the Seventh Circuit rejected the fair use defense asserted by a defendant who had used KaZaA to download copyrighted music files. The entire opinion in BMG Music v. Gonzalez is worth reading, but here is an excerpt:

Copyright law lets authors make their own decisions about how best to promote their works; copiers such as [the defendant] cannot ask courts (and juries) to second-guess the market and call wholesale copying "fair use" if they think that authors err in understanding their own economic interests or that Congress erred in granting authors the rights in the copyright statute. Nor can she defend by observing that other persons were greater offenders; [the defendant]'s theme that she obtained "only 30" (or "only 1,300") copyrighted songs is no more relevant than a thief’s contention that he shoplifted "only 30" compact discs, planning to listen to them at home and pay later for any he liked.

Thanks to Eric Goldman for the link.

Well, That's One Way of Trying to Influence a Court in Your Favor:

The plaintiff in a Third Circuit case decided yesterday filed the case as Awala, and the People of the Philadelphia Religious Community Center, et al. v. People Who Want to Restrict Our First Amendment Rights, Primarily to Intimidate Rather Than Religious Purposes Maintenance on Courthouse Grounds of Illuminated Granite Monolith On Which "Ten Commandments" Were Inscribed Together With Other Symbols, et al.

Despite this creative styling, "Gbeke Michael Awala, who is currently incarcerated at the Federal Detention Center in Philadelphia," nonetheless lost. Among other things, the court pointed out, "Awala's pleading in the District Court, which he titled, 'Motion in opposition towards the defendants habitual offenses involving individual rights restriction against establishment of religion despite fact that religious symbol were admissible,' is difficult to comprehend, much less classify." If you want a sense of what Mr. Awala was after, here's the court's summary:

A recurring theme in Awala's pleading is his request that the District Court overturn the United States Supreme Court's decision in McCreary County, Ky. v. ACLU, which held that two courthouse displays of the Ten Commandments violated the Establishment Clause of the First Amendment. Awala seeks, among other things, to have all of the religious monuments which have been removed from courthouses "nationwide" replaced. The District Court clearly does not have the authority to overturn any decision by the United States Supreme Court. . . .

UPDATE: Thanks to commenter Ubertrout for a link to the opinion, which I've incorporated above.

DOJ OK With Taking Padilla Decision Off the Books: Reuters has the scoop.

Legal History Question: Evey first-year law student is confused by the use of the phrase "civil law" to mean two completely different things. There's civil law as opposed to common law, and then there is civil law as opposed to criminal law. I wonder: How did it happen that the same phrase came to be used to mean two different things?

I understand that the use of "civil law" as opposed to common law comes from the Romans. The Roman empire set forth its law in compliations collectively handed down as the Corpus Juris Civilis, which I gather translates to something like "the body of law of the citizens," and so legal systems based on Roman law are "civil law" systems. Or so a little googling tells me. But how did we start to use "civil" to mean "non-criminal"? If there are any legal historians out there, latin geeks, or anyone else who might know the answer, please fill us in.

Torture and the Al-Qaeda/Iraq Connection: The New York Times reports:

  The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials.
  The officials said the captive, Ibn al-Shaykh al-Libi, provided his most specific and elaborate accounts about ties between Iraq and Al Qaeda only after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition.
  The new disclosure provides the first public evidence that bad intelligence on Iraq may have resulted partly from the administration's heavy reliance on third countries to carry out interrogations of Qaeda members and others detained as part of American counterterrorism efforts. The Bush administration used Mr. Libi's accounts as the basis for its prewar claims, now discredited, that ties between Iraq and Al Qaeda included training in explosives and chemical weapons.

Privacy and Guns:

I always like to look for nonobvious interactions between legal fields that interest me, such as copyright and guns (yes, there are some, related to legal liability for distribution of dual-use products). In this post, I want to ask about the intersection of privacy law and firearms regulation policy:

Say that state or federal law requires people to register their gun ownership (as some states do) or register their sales or purchases of guns (as federal law does for transactions involving a licensed gun dealer, though the records are kept by the dealer rather than in a central government database). Should these records be available to the public?
Say that state law requires people to get a license to carry a concealed gun (or for that matter to carry a gun at all). Should these records be available to the public, as they are in some states?
Some bans on concealed carry of guns are defended on the grounds that people remain free to carry guns to protect themselves -- they just have to do so openly, in a holster. (This was a common argument in the 1800s, when concealed carry bans were first instituted, and remains both (1) a sometimes-heard policy argument and (2) a constitutional argument under those state constitutions that secure a right to keep and bear guns in self-defense.) And indeed you can defend yourself pretty much as well with an openly carried gun as with a concealed carry gun (there are pluses and minuses to open carry, but on balance the purely functional difference isn't that vast) -- but only if you're willing to let everyone around you know that you're armed, something that many people are reluctant to do. Is the requirement of open carry an impermissible burden on people's privacy?

I'm particularly interested in the views of those people who are sympathetic to gun controls -- and especially in limits on concealed carry -- but also see themselves as supporters of privacy.

Related Posts (on one page):

Privacy and Guns:
Privacy and Guns:

Which Government Records Should Be Open to the Public?

Lawprof Daniel Solove argues that records related to divorce proceedings (presumably not the fact of the divorce itself, but the facts discovered or alleged during the proceedings) should generally be kept private, even when the divorce involves a politician, such as former Illinois senatorial candidate Jack Ryan.

I strongly support people's right to speak about others, even when such speech is said to infringe others' privacy; but it doesn't follow that the government should always make such speech easier by publicizing information that's in its hands -- often information gotten using the government's coercive power. The question, to which I don't have a ready answer, is: Which information should the government release? A few items to get the discussion going:

Records of criminal trials, including information that was gotten from witnesses (such as the witness's medical history, sexual history, wealth, religious or political beliefs, and the like), as well as information about defendants' s past criminal convictions.
Records of criminal or quasi-criminal trials involving offenders who were under 18 at the time of the crime.
Records of civil proceedings, including normal civil litigation, divorce, bankruptcy, and the like.
Income tax records, which have historically been kept highly confidential.
Property tax records, which have historically been public records.
Gun registration records and concealed carry license records; the latter, I'm told, are public records in at least some states.
Grades and disciplinary records of students at government-run schools and universities; I believe federal law generally requires that these be kept confidential.
Salary records and disciplinary records of government employees; the federal government and many state governments makes the salary information publicly available, though generally not easy to get.

Should the government keep these confidential? Should it make them publicly available? Should it make them publicly available but hard to get, for instance by keeping them in storage and not putting them on the Internet?

Judge Kozinski at Cato Unbound Responds to James Buchanan's Three Proposed Constitutional Amendments:

Dr. Buchanan's original proposals are here; Judge Kozinski's response is here; lawprof Akhil Amar's response to Dr. Buchanan is here. Here's Judge Kozinski's introduction

Dr. Buchanan advances a vision of government -- especially the federal government -- that I find attractive. There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone’s economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I’m far from convinced that it would achieve the goals set for it -- that we’d be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don’t have it so bad at all. We have the world’s strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right.

One thing I’m pretty sure of, though, is that Dr. Buchanan’s vision is not shared by most of the American public. While nearly everyone has some beef with government at its many levels, there are very few who would, had they the power, fundamentally change the relationship between the government and the governed in the ways Dr. Buchanan envisions. Thus, unless we assume that his three proposed constitutional amendments are to be imposed by some power outside the American democratic process -- by a Philosopher King, as it were -- we have to imagine a very different world, and a very different popular attitude toward what the government is expected to accomplish. In other words, an America where it were possible to gain the super-majorities needed to pass Dr. Buchanan’s proposed constitutional amendments would, in effect, be an America populated by 200+ million committed libertarians. In that world, the kind of constitutional amendments Dr. Buchanan proposes would be politically feasible, but probably unnecessary; people who would adopt those amendments would also be people who wouldn’t really need them, because their view of what government is supposed to do would be so much narrower than is the norm today. Or, to put it differently, a body politic that needs Dr. Buchanan’s amendments is a body politic that won’t adopt them in the first place.

But it’s not my purpose to quibble with the premises of Dr. Buchanan’s proposals. I will assume, therefore, that we are politically of a mind with Dr. Buchanan in wishing to achieve the minimalist state, or something close to it, and we have been commissioned to select the three best constitutional amendments to constrain future generations that may not be as clear-sighted as we are. The question then is: Are the amendments, as proposed, workable? Or are there better ways of achieving the same ends? I will discuss each proposal briefly, and then offer my own counter-proposal. . . .

I think I'm largely with Judge Kozinski on this one.

Peter Schuck on Solomon:

At the risk of making this the all-Solomon all-the-time blog, in case you didn't see it, Yale's Peter Schuck has an interesting column today in the NY Times on the Solomon Amendment question, "Fighting on the Wrong Front":

But in their opposition to the Solomon Amendment, the universities are not only on shaky legal ground, as confirmed by the skeptical questioning they faced from the justices at oral argument, but intellectually inconsistent.

In the affirmative action cases involving university admissions that the Supreme Court decided in 2003, the universities invoked their educational expertise to defend a definition of applicant merit that disadvantaged whites and Asians; now they argue that the military may not invoke its warfighting expertise to define merit in a way that disadvantages gays.

The universities' position on government threats to cut off financing to enforce public policies is also inconsistent. A quarter century ago, many universities argued that Bob Jones University's tax exempt status and access to federal loans should be revoked because its racial policies violated civil rights law. Now the universities argue that their own funding should not be revoked for violating another federal policy.

***

Universities exhibit little intellectual or moral subtlety when they treat all who hold that view as a single species of invidious homophobes - regardless of whether their view proceeds from the kind of blind hatred that murdered Matthew Shepard or from ethical traditions or prudential concerns shared by many thoughtful, morally scrupulous people.

Universities should allow equal, unfettered access to their students by any employer whose policy with regard to sexual orientation is legal, so long as that policy is disclosed. The issue is not what the universities think about "don't ask, don't tell" - they have made that clear - but how their students view it.

A university's moral and pedagogical duty to its students is to cultivate their capacity for independent thinking, explain its own view (if it has one) and then get out of the way. The students' duty is to listen carefully - and then make their own decisions.

Related Posts (on one page):

Analyzing the al-Arian Verdict:
The Al-Arian Verdict and the Patriot Act:
Acquittals, Hung Jury in Al-Arian Case:

When Is Anti-War Speech Harmful to the War Effort:

I'd like to focus a bit on the broader question of when speech during wartime is harmful to the war effort -- not necessarily when it's immoral, but only when it harms the war effort. To do this, let's first shift the discussion from the war on Iraq to World War II.

What speech (if any) by Americans during World War II do you think would have been harmful to the war effort, even if it weren't deliberately aimed at helping the Nazis win? If you think some such speech would have been harmful to the war effort then, but are skeptical about similar claims related to speech related to the war in Iraq now (as many commenters on this thread seem to be), why do you think there's a difference? (I should stress that I don't think that all antiwar speech is harmful to the war effort, and -- as I noted below -- that I don't think that even antiwar speech that harms the war effort is necessarily immoral. I do think, though, that a considerable amount of such antiwar speech is indeed harmful, and that people sometimes underestimate these harms.)

Related Posts (on one page):

When Is Anti-War Speech Harmful to the War Effort:
More on Speech That Causes Harm:
When Is Anti-War Speech Immoral?
When Is Anti-War Speech Immoral?

Related Posts (on one page):

When Is Anti-War Speech Harmful to the War Effort:
More on Speech That Causes Harm:
When Is Anti-War Speech Immoral?
When Is Anti-War Speech Immoral?

When Is Anti-War Speech Immoral?

Fernando Teson (PrawfsBlawg) has a very interesting post, which Juan links to below. Let me reproduce it here, so I can say a few things about it:

Let’s assume, without deciding, that the following propositions are true:

1) Americans have a robust First Amendment right to criticize the government. This includes both the decision to go to war and the conduct of war.

2) The United States is facing a ferocious and determined enemy in Iraq.

3) The United States has a just cause, which means that victory by the United States is the morally preferable outcome.

4) Certain forms of speech (for example, strong demands that U.S. troops withdraw) objectively aid the enemy (say this speech emboldens the enemy, so more U.S. troops die and chances for victory are reduced), even if the speaker does not intend to do so.

If all this is true, isn’t the speech in question morally objectionable, even if constitutionally permitted? Certainly, the fact that I have a legal right to say something doesn’t morally justify my saying it. If telling you (frankly and truthfully) that your new haircut makes you look ridiculous will hurt your feelings, maybe I should refrain from saying it. This is why the only way I see morally to justify someone who aids the enemy with his speech is to deny assumption 3), that the United States has a just cause. In that case, the correct moral position is indeed to demand that the troops return. But if one accepts 3), then I cannot see how one can avoid the conclusion that the speaker is acting immorally.

It seems to me that all four of the assumptions are sound; in particular, I do think that certain kinds of antiwar speech do objectively aid the enemy. In Winston Churchill's words, statements that "weaken confidence in the Government" and "make the Army distrust the backing it is getting from the civil power" may prove to be "to the distress of all our friends and to the delight of all our foes." (Winston Churchill, Speech in the House of Commons (July 2, 1942).) Such assumptions of objective harm to the war effort are sometimes made too hastily, but it seems to me that they are often correct (though of course we can speak more confidently of their tendencies than of any precisely provable effects, since the effects of such statements on morale both of our forces and our enemies' are hard to accurately measure). This is often good reason for people to refrain from certain kinds of criticism of the war effort.

Nonetheless, it seems to me important to recognize two matters.

1. Speech often has multiple effects (and therefore so does silence). Much wartime speech may both embolden the enemy -- which the speaker may genuinely regret -- and help accomplish other morally worthy goals. For instance, exposing improper conduct by American soldiers or intelligence agents may both hurt the war effort (for instance, by hurting our military morale, weakening civilian support, moving some neutrals towards our enemies), which is bad, and stop, diminish, and deter such improper conduct, which is good. Likewise, one might think that victory is the morally preferable outcome, but not if the cost in U.S. soldiers' lives is too great; calling for a withdrawal of American troops may therefore have bad effects (reducing the likelihood of victory) as well as good ones (reducing the loss of U.S. soldiers' lives).

Conversely, a social norm that people ought not criticize the government during wartime, since this will hurt the war effort, may both help the war effort and at the same time help shelter improper behavior by the military, or increase needless waste of our soldiers' lives. We need to consider the aggregate of these effects; we should neither solely focus on those effects that decrease our chances of victory nor ignore those effects.

2. Much of the debate may have to do with people's disagreement about #4. Some people, for instance, believe that withdrawing U.S. troops will actually increase the likelihood of victory, because it will reduce one source of Iraqis' anger, and make them more willing to make peace. Those people may well be mistaken; but say they're sincere in their beliefs, and especially if the beliefs are reasonable, even if not persuasive to us. The speakers then basically share our goals (victory and saving U.S. troops lives'); they simply disagree with us on the empirically sound means to accomplish those goals. It's hard to see their speech as "morally objectionable" when it rests on such predictive disagreement, especially when the disagreement is reasonable.

So before we decide whether someone's wartime speech is morally objectionable -- even if we think the speech would aid the enemy -- it seems to me that we need to know a lot more about (1) what other effects the speech may have, and (2) what the speaker believes the likely effects of the speech will be.

Related Posts (on one page):

When Is Anti-War Speech Harmful to the War Effort:
More on Speech That Causes Harm:
When Is Anti-War Speech Immoral?
When Is Anti-War Speech Immoral?

When Is Anti-War Speech Immoral?

Fernando Teson has an interesting post on this question at Prawfsblawg here.

Related Posts (on one page):

When Is Anti-War Speech Harmful to the War Effort:
More on Speech That Causes Harm:
When Is Anti-War Speech Immoral?
When Is Anti-War Speech Immoral?

More on the "Waning Anti-Kelo Backlash":

Steven Anderson of the Institute for Justice and the Castle Coalition also cautions against prematurely tolling the bells for the Anti-Kelo backlash in the states. He, like Tim Sandefur, remains optimistic that the states will come through with strong reforms that address the issue.

Steven writes:

There's little doubt that government's ability to dole out favors through eminent domain creates the classic rent-seeking problem, but to say the legislative response to the Kelo decision is running out of steam is a bit premature. The fact that eminent domain remains a topic of debate both on these pages and in legislatures around the country after almost six months is just one indicator of the issue's importance -- and the activity behind it. And that's not the only reason for optimism.

As Tim Sandefur suggested, yesterday the Pennsylvania Senate unanimously passed comprehensive and historic reforms of its eminent domain laws (though it did carve out exceptions for Philadelphia and Pittsburgh). Legislators in more than 30 other states and even more local governments are also preparing reform bills for the legislative sessions that begin early next year. It’s important to note that there are very few full-time legislatures; reform cannot occur when they’re not in session. In addition to changes by the legislature, there are movements by citizens in several states for ballot initiatives to restrict eminent domain to its more historic bounds.

Sure, the Alabama and Texas laws Tim writes about could have been better if they also tackled blight condemnations, but they are certainly good first steps. That these bills passed despite intense pressure from the well-funded beneficiaries of eminent domain abuse is surely a good sign for future efforts -- at least as much as it's a call for proponents of eminent domain reform to work as hard as possible to make good reform a reality. While Ohio's moratorium puts the issue off, Delaware essentially did nothing and California whiffed, many battlegrounds remain.

Eminent domain reform won't happen overnight. There are powerful groups interested in protecting their territory. But it is happening and any attempt to characterize the fight as over disserves not only the issue, but also those home and small business owners around the country actually working toward a constructive solution. This is a long-term effort and many positive results are on the way.

Certainly I hope that Steven is right that strong responses to Kelo will be possible. Moreover, as I just suggested, it may be that such reforms may be more plausible in states where citizens can propose a referendum on the issue (such as in California), as citizens in those states may have greater ability to circumvent the natural agenda control power of politicians. (Note, I am not saying referenda are always good, just that they may be more effective where policians have conflicts of interest and agenda control). It will be interesting to see how public opinion plays out against public choice theory in the coming months as states continue to address this issue.

Related Posts (on one page):

More on the "Waning Anti-Kelo Backlash":
Anti-Kelo Reform in California and "Proposition 13 Takings":
Public Choice and the Waning Anti-Kelo Backlash:
The Anti-Kelo Backlash?

Anti-Kelo Reform in California and "Proposition 13 Takings":

Tim Sandefur has a report on California's efforts on the efforts to respond to Kelo in California, which he says addresses many of the weaknesses in the reform efforts in other states:

There are now at least two eminent domain ballot propositions that have been filed with the Secretary of State’s office for placement on the November, 2006 ballot. There may be a third, I haven’t heard yet. The text of one of these, written by State Senator Tom McClintock, I reproduce below. When I have the others, I’ll post those, too.

As you can see, the McClintock proposal avoids the pitfalls I’ve pointed out in my article about the backlash so far. It does not contain exceptions that allow for redevelopment, in the way that Texas and Alabama’s laws do. And it does not limit itself to a meaningless report like Ohio’s. The important language is: “Private property shall not be taken or damaged without the consent of the owner for purposes of economic development, increasing tax revenue, or for any other private use, nor for maintaining the present use by a different owner.” The bold language is especially important, because Kelo presents a special problem for Californians due to Proposition 13.

After Kelo, there is no reason the state cannot condemn homes and resell them to the owners or other users solely to increase the property tax assessment on the transfer of title as allowed under Prop. 13.

I personally hope that Tim is right that California will act with stronger reforms than elsewhere. One advantage in California is that the reforms will be proposed as ballot propositions, rather than being generated by the state legislatures. This thus avoids the agenda-setting and related public choice problems otherwise associated with enacting reforms designed to tie the government's hands when it comes to taking property.

Nonetheless, the public choice problems remain daunting, but perhaps not overwhelming. As Tim writes, "Now that this proposition has been submitted to the Secretary of State, it must get enough signatures to qualify for the ballot. That costs money, and that’s one of the big problems this initiative faces. If it gets on the ballot, polls suggest it would pass overwhelmingly. But getting it on the ballot requires money, and who’s going to pay it? There’s little money to be gained in eminent domain reform…."

Tim also raises a question that others have asked me--Could the state condemn homes and resell them solely to increase the property tax assessment under Prop. 13? My reading of Kelo is that Sandefur's concern appears to be largely justified (although not inevitably so). (I am not aware of precedents other than Kelo that might govern this question). Parts of the Kelo opinion suggest that the Court seems to indicate that the possibility of an increase in tax revenues can qualify as an adequate public use, and so the state could simply take a home and sell it to someone else, thereby getting a property tax boost.

On the other hand, there is some language in the opinion that refers to the Taking as being part of an integrated developmental plan, so it is not clear whether a taking of particular homes simply to increase the tax revenues would qualify. Reading the opinion, however, it does not seem to require an integrated development plan for a Kelo-style taking, or whether that is a factor to be considered. Rather, it simply suggests that the fact that there was an integrated development plan in the case makes the Taking less questionable than would be the taking of a discrete parcel of property. Certainly Justice O'Connor's Dissent assumes that such a plan is not required but that individual parcels could be taken, as her famous Motel 6 example makes clear. Stevens does not appear to offer any response to O'Connor's expression of concern. Moreover, whereas there was merely the prospect of increased tax revenues in Kelo, in a "Prop. 13 taking" the government would be guaranteed an increase in property tax revenues.

As to this point, Justice Stevens writes in Kelo (some citations omitted):

It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use [fn].

He adds in a footnote [fn]:

A parade of horribles is especially unpersuasive in this context, since the Takings Clause largely "operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge." Eastern Enterprises v. Apfel, 524 U.S. 498, 545, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (KENNEDY, J., concurring in judgment and dissenting in part). Speaking of the takings power, Justice Iredell observed that "[i]t is not sufficient to urge, that the power may be abused, for, such is the nature of all power--such is the tendency of every human institution: and, it might as fairly be said, that the power of taxation, which is only circumscribed by the discretion of the Body, in which it is vested, ought not to be granted, because the Legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax to the amount of nineteen shillings in the pound. We must be content to limit power where we can, and where we cannot, consistently with its use, we must be content to repose a salutory confidence." Calder, 3 Dall., at 400, 1 L.Ed. 648 (opinion concurring in result).

This does not appear to rule out the possibility of a Prop. 13 Taking to me. Nor does his response to the "parade of horribles" stand up to scrutiny here, because the government can simply resell the property, so it is a financial wash on that front. But it can then capture an increased tax revenue if it chose to do so. Finally, as the form of the transfer would be a taking from A to give to B, assuming the property were resold the primary beneficiary of the transfer would be the government, this does not seem to be a purely private taking (at least as Stevens sees it). Thus, as I read the case, Sandefur's concern and the California law that is being proposed in response, seems appropriate.

The Court's repeated reliance on Ruckelshaus v. Monsanto in the Kelo decision also suggests that the existence of an integrated development plan is not a necessary condition for a Kelo-style taking (although the Court suggests that it may be a sufficient condition), but that it is sufficient to take the property of discrete property-owners if the government believes that some abstract public benefit might result. In characterizing that case, the Court wrote in Kelo:

In Ruckelshaus v. Monsanto, Co., 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984), the Court dealt with provisions of the Federal Insecticide, Fungicide, and Rodenticide Act under which the Environmental Protection Agency could consider the data (including trade secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long as the second applicant paid just compensation for the data. We acknowledged that the "most direct beneficiaries" of these provisions were the subsequent applicants, id., at 1014, 104 S.Ct. 2862, but we nevertheless upheld the statute under Berman and Midkiff. We found sufficient Congress' belief that sparing applicants the cost of time-consuming research eliminated a significant barrier to entry in the pesticide market and thereby enhanced competition.

As I read Kelo then, with respect to a "Prop. 13 Taking," the Court seems to leave this in the hands of the political process with no constitutional protection. I don't see constitutional restrictions in Kelo that would prohibit this sort of taking, especially with the unquestioned increase in tax revenues that would result.

Update:

My initial post inadvertently omitted an important "not" before "overwhelming." I have corrected the typo.

Related Posts (on one page):

More on the "Waning Anti-Kelo Backlash":
Anti-Kelo Reform in California and "Proposition 13 Takings":
Public Choice and the Waning Anti-Kelo Backlash:
The Anti-Kelo Backlash?

More on Gun Control in Canada, Yesterday and Today:

All emphases added:

Hamilton Spectator (Ontario, Canada), Jan. 12, 1999:

[T]he main criticisms [of the new gun registration law] are: One, [critics] fear the slippery slope, that once their guns are registered, they can too easily be taken away. Easily concealed handguns have previously been confiscated without compensation.

Two, they sense being pegged as criminals. There is no U.S. constitutional argument to lean on — no "right to bear and keep arms" — just a feeling it's unfair and arbitrary. . . .

To a non-gun owner, a registry sounds entirely harmless. If you don't plan to engage in criminal acts, why oppose it? Count most federal officials among this group.

"Welcome to the weapons world," chuckles Jean Valin, a justice department spokesman, addressing gun owner concerns. "We are trying to tell (owners) go to sleep at night, because you have nothing to fear from this government. They like to invent bogeymen, and this is one of them."
Hamilton Spectator (Ontario, Canada), Jan. 4, 2001, item written by Howard Elliott, who is now the newspaper's Executive Editor:

A concern regularly cited by those who oppose [the registration] law, and gun licensing and registration in general, is that this is the first step on a slippery slope with the final destination being the government's intention to make guns illegal, or to make them so difficult to own, people will find owning a gun isn't worth the bother.

No doubt, there are people on the gun control side of the debate who favour this sort of outcome, just as there are people on the other side who believe Canadians should have unfettered rights to own firearms with minimal or no government involvement.

But we suspect that neither of these extreme viewpoints reflects the position of the average Canadian, who tends to be moderate and fair-minded. There is no evidence that gun registration will ever equal arbitrary seizure, or a law against ownership. In the end, this is about having firearms registered, so police will have more knowledge of who has guns and be in a better position to protect the public where danger does exist. That's an eminently reasonable goal.
Maclean's, May 22, 2000:

Canada . . . [is] portrayed in a pretty darn scary video by the U.S. National Rifle Association. The NRA (like many Canadian gun owners, to be sure) is particularly outraged by Bill C-68, the federal law requiring all firearms to be registered by the end of 2002. It's the old slippery slope argument: once the feds know where the guns are, it's just a matter of time before they take them away.

Or so, at least, argues the NRA . . . . It should, by all rights, be a tough sell these days. Americans have been shocked by a string of shootings at schools, churches, offices — even day-care centres. . . . [The piece goes on to discuss the Million Mom March movement.] But the early evidence is not all encouraging. It may take more than dying teens, or marching moms, to shift American attitudes.
Vancouver Sun, today (thanks to InstaPundit for the pointer):

Prime Minister Paul Martin will propose a ban on most handguns in Canada, CanWest News Service has learned.

Sources say Martin, who will make the election campaign announcement this morning, wants to choke off the supply of handguns in this country, particularly guns brought into the country illegally and those sold on the black market.

There will be some exemptions, including maintaining the right for police to carry handguns. The prime minister is also expected to announce a significant increase in resources for police to deal with the ban.

The Liberals say the thinking behind this crime strategy is that if no one is allowed to have a handgun in Canada, policing authorities will be in a better position to act on anyone who has a handgun or attempts to transport or sell a handgun.

The announcement will include the banning of all registered handguns in Canada. However, sources say special arrangements will be made for gun collectors.

UPDATE: Dave Kopel's post below has much more.

FURTHER UPDATE: Just to make it clear, I'm suggesting that gun owners are right to doubt assurances that they can "sleep at night" with no fear of gun bans. In Canada, handgun registration was eventually followed by the late 1990s long gun registration, which in turn is now followed by a proposal for a handgun ban (which would likely be made cheaper and thus more politically feasible by the presence of handgun registration). Gun owners who slept at night now wake up to find one sort of gun ban on the doorstep; gun registration is indeed now being followed by a law against ownership; the NRA's "old slippery slope argument" seems to have proven sensible. And it seems quite plausible that a handgun ban would eventually be followed by a rifle or shotgun ban -- for instance, as people point out (quite accurately) that many criminals, if denied access to handguns, would use much more lethal sawed-off shotguns, and banning all long guns is necessary to "choke off the supply of [sawed-off shotguns and rifles] in this country, particularly guns [cut down in] the country illegally and those sold on the black market."

Long gun registration surely isn't ineluctably causing handgun bans; even handgun registration needn't necessarily be followed by handgun bans. These are tendencies, not guarantees. But when past assurances of the "don't worry, no gun bans looming, we're just talking modest regulations here" variety prove to be unsound, perhaps gun owners should be skeptical when they hear similar assurances in the future.

Related Posts (on one page):

More on Gun Control in Canada, Yesterday and Today:
Canadian Government to Ban Handguns:

Patriot Act Compromise: The Associated Press is reporting a revised compromise on the expiring provisions of the Patriot Act. It's hard to tell from the story how this compromise differs from the last one that didn't hold, except that the sunset provision for roving wiretaps and Section 215 orders will be 4 years instead of 7 years (which sounds like small potatoes to me).

Same-Day Release of Supreme Court Arguments: I enjoyed listening to the oral arguments in the Solomon Amendment case this week, and the thought occurred to me: Why don't the Justices permit the same-day release of audio recordings for all of their arguments?

I can understand why the Justices don't want oral arguments televised (not to say I'm convinced, but I do understand the concern). But sound-only recordings generally don't raise the same problems. And for Supreme Court buffs, the audio is just as good; video adds little if any substance, at least as soon as you are familiar enough with the Justices to recognize their voices. Oral arguments have been taped for decades and get released eventually, so why not release the audio on the day of the argument when the public is most interested?

Harvard Crimson on FAIR v. Rumsfeld:

Scott Johnson posts on an interesting email exchange between GMU Dean Dan Polsby (author of a pro-government amicus brief in FAIR v. Rumsfeld) and a reporter from the Harvard Crimson reporting on the oral argument in FAIR v. Rumsfeld. In the exchange Dean Polsby addresses the argument that arose in oral argument drawing on an amicus brief submitted by several Harvard Law School professors.

The underlying article in the Harvard Crimson suggests that the amicus position may have more "legs" with the Justices than the First Amendment challenge raised by FAIR's lawyer and on which the Circuit Court opinion was grounded.

The Al-Arian Verdict and the Patriot Act: Reading over some of the press coverage of the Al-Arian terrorism case, I find myself somewhat puzzled by descriptions of the verdicts as a setback for the Patriot Act (as opposed to the prosecution and DOJ more generally). Consider the first two paragraphs of Wednesday's front-page Washington Post story by Spencer Hsu and Dan Eggen:

A federal jury acquitted former Florida professor Sami al-Arian yesterday of conspiring to aid a Palestinian group in killing Israelis through suicide bombings, dealing the U.S. government a setback in its efforts to use secretly gathered intelligence in criminal cases against terrorism suspects.
The trial was a crucial test of government power under the USA Patriot Act, which lowered barriers that had prevented intelligence agencies from sharing secretly monitored communications with prosecutors. The case was the first criminal terrorism prosecution to rely mainly on vast amounts of materials gathered under the Foreign Intelligence Surveillance Act (FISA), whose standards for searches and surveillance are less restrictive than those set by criminal courts.

Am I missing something, or is this desciption of the case rather odd? To be sure, the al-Arian prosecution was a major test case for the Patriot Act; much of the evidence the jury saw was admitted thanks to the Patriot Act. But as I understand it, the jury's verdict didn't have any thing to do with the admissibility of evidence. According to one juror interviewed in the article, the jury acquitted because they didn't think that the evidence proved the case, not because they disagreed with or questioned something in the Patriot Act. They had reasonable doubt about the facts, not the law.

There was at least one count (and perhaps more) in the indictment that involved substantive crimes amended by the Patriot Act — I'm thinking about the charge of conspiracy to provide material support — and there were legal rulings on the meaning of those crimes. But the al-Arian case was considered a major Patriot Act test case because of the heavy use of foreign intelligence information at trial, and whether such evidence could be used doesn't have an obvious connection to the acquittals. There's a vague connection, but it strikes me as a reach to describe the verdict as a setback for the Patriot Act.

Related Posts (on one page):

Analyzing the al-Arian Verdict:
The Al-Arian Verdict and the Patriot Act:
Acquittals, Hung Jury in Al-Arian Case:

Canadian Government to Ban Handguns:

Facing elections in late January, due to a no-confidence vote in Parliament that resulted from a corruption scandal, Canada's ruling Liberal party will announce a handgun ban on Thursday. All legally-owned handguns have been registered in Canada since the 1930s.

On September 22, 1998, Anne McLellan (the Liberal Minister of Justice) said "we're not interested in confiscating their guns, as long as they are legitimate gun owners, as long as they store them appropriately, transport them appropriately and so on ..."

That same day, in a debate in Canada's Parliament, Liberal MP John McKay (Scarborough East) stated,

Turning now to the motion, the first issue is the confiscation of private property. If the mover thought about that for more than five seconds, he would realize that a proper registration system gives security of ownership and enhances value. Far from confiscating, it does the exact opposite and legitimizes the owning of firearms. Certainly property registration does wonders for land titles and land values as it does for motor vehicles and other forms of property. Why would it not be true with firearms?

On August 26, 2004, Canada's Commissioner of Firearms spoke at the annual meeting of the Canadian Professional Police Association. He declared: "For years, firearm owners have expressed fears regarding the confiscation of firearms. This is a concern I heard loud and clear when we held consultations with firearms organizations last fall. But, in fact, those fears have not materialized."

In a 1976, interview in the New Yorker, the late Nelson Shields, who was then the head of the group which is now known as the Brady Campaign, explained registration's purpose:

The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is to get handguns registered. The final problem is to make possession of all handguns and all handgun ammunition — except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors — totally illegal.

(Richard Harris, "A Reporter at Large: Handguns," New Yorker, July 26, 1976, p. 58.)

Related Posts (on one page):

More on Gun Control in Canada, Yesterday and Today:
Canadian Government to Ban Handguns:

Universities, Businesses, Loyalty, and Criticism:

Marquette lawprof Christine Hurt (Conglomerate) writes this, under the title of "Defending Marquette":

I have [a] distinction that could be made between this student and a typical university student. . . .

The Dental School is an operating oral health clinic. The Dental School sees patients from the community on a daily basis. The students see patients in the clinic. The Milwaukee Journal-Sentinel describes the student as being 22 years old, so let's assume that he was in his first semester. According to the course bulletin, the student would have had patient rounds in his first semester as well as an "Introduction to Clinical Practice" in which real patients are treated. (If the students were a second or third year, his patient time would have been even greater.) From an agency standpoint, the student is not only a student, but an agent of the university. The clinic charges fees for its services (it does not accept third-party insurance). The university has an interest in maintaining good public relations with its client base and to continue to have paying clients. Having someone who provides services in its clinic blogging negatively about dental school professors and other students, all of whom provide services in the clinic, is against the interest of the university. I could definitely make the argument that the student is an agent who has breached his duty of loyalty.

That being said, a warning may have sufficed as discipline; I am not sure that having to restart dental school is the proportionate sanction. In addition, I hope that any future professional students know at the outset what the expectations are concerning blogging.

I appreciate Prof. Hurt's argument, which would certainly make sense in a typical business. But would we really want to see it in an academic institution? After all, it would apply to a wide range of criticisms of the university — not just immature sniping but also substantive criticism. In fact, it would apply more to substantive criticism than to immature sniping; if I were a prospective dental patient at the clinic, I'd likely shrug off any childish grousing I hear about, but I might well be much more worried by real criticisms about professors' knowledge, teaching ability, ethics, or what have you.

Moreover, universities provide lots of for-pay services, including continuing education (Continuing Legal Education classes, what at UCLA are called Extension classes, executive education classes, and the like). And of course we have to remember universities' primary service — educating paying undergraduate and graduate students. If a university student publicly criticizes the professors' skills, or even the qualities of his classmates, some prospective students might choose a rival university. And if a university professor does the same, for instance by publicly claiming that affirmative action hiring has damaged the university's quality, that might cause even greater harm to "[t]he university['s] interest in maintaining good public relations with its client base and [in] continu[ing] to have paying clients." Certainly it would cause much greater harm than that caused by the fulminations of some unknown student.

Yet do we really think that it's therefore proper for universities to silence criticism by students, clinical students, or professors, the way other businesses silence criticism by employees or trainees? I don't think so, and I think this relates to the "duty of loyalty." I do feel that I have some moral duty of loyalty to my university, but I don't think that this is the standard duty of loyalty that an employee has to a business.

Rather, universities, university professors, and university students are supposed to have a greater duty of loyalty to the truth; and if we think our university is doing something wrong, we think it's proper — perhaps even morally mandatory — for us to condemn it, even if that means some short-term harm to the university. Such a willingness to tolerate criticism, the theory goes, is ultimately of greater benefit to the institution, and to the academy and society generally. And because universities are supposed to care about the truth and about debate more than about the bottom line, they ought to refrain from silencing their employees the same way that more profit-focused businesses do.

This having been said, I agree that the blogging student's speech was at most a very slight contribution to the search for truth — it's just too vague and nonsubstantive to be of much help. At the same time, though, its obvious lack of substance also makes it not terribly harmful.

And, more importantly, (1) both the dental school's rationale (unprofessional speech may be punished) and Prof. Hurt's rationale (speech that is "disloyal" because it may hurt the university's image may be punished) would authorize the punishment of much more speech than this, and (2) students (and professors) will surely realize this. If Prof. Hurt's theory is adopted, would even a much more thoughtful and substantive critic of the school be willing to come forth? Or would he fear that any criticism might be condemned as "disloyal" and "unprofessional," and lead to expulsion, firing, or what have you? Such a fear, I think, is bad for academic institutions, and will ultimately harm them more than the occasional intemperate criticisms would.

UPDATE: Note that Marquette political science professor John McAdams has written a good deal about this on his blog, and has criticized the Marquette administration for its actions. Should he be subject to discipline on the grounds that his actions are disloyal, and may harm Marquette by lowering its reputation with students, donors, and others (though they may harm a different department of the university than the one for which Prof. John McAdams works)?

Coffee-Infused Coke:

So will Coca-Cola Blak -- a version of Coca Cola infused with coffee -- be good for you, or worthy of a lawsuit?

Yes, Prime Minister: David Cameron, the newly-elected leader of the Conservative Party (after defeating David Davis last week) questioned Prime Minister Tony Blair in Parliament for the first time earlier today. You can view their two exchanges using RealPlayer here and Windows Media Player here. His questioning concerned education (at 2:05) and environmental policy (at 13:15). Blair is a past-master of parliamentary debate from the minority position, and it will be interesting to see how Cameron fares against him. Cameron's opening exchange on schools seemed much more effective than his later foray about a successor to the Kyoto treaty to govern carbon emissions in which he presses Blair on whether Blair "absolutely" agrees with his own environment secretary. Blair takes a strong run at him around 25:00 to which Cameron does not respond. (The entire question time runs 30 minutes.)

The First Roberts Opinion: As Juan notes below, the first signed opinion by Chief Justice Roberts was handed down today in Martin v. Franklin Capital Corporation. The subject matter is arcane — when to award attorney's fees under 28 U.S.C. 1447 if a state case removed to federal court is remanded back to state court — but I thought I would take a look at the opinion anyway.

  It's a nice piece of work, I think. It takes the reader through the issues pretty carefully, explaining the choices clearly at each step and justifying the Court's decisions using the text and context of the statute and the context of other related statutes. The opinion also announces a clear rule to guide district courts: "We hold that, absent unusual circumstances, attorney's fees should not be awarded when the removing party has an objectively reasonable basis for removal."

  Of particular interest, the opinion pays tribute to the two judges for whom Roberts clerked. The late Chief Justice Rehnquist gets a mention as the author of a relevant opinion: "As Chief Justice Rehnquist explained for the Court in Fogerty v. Fantasy, Inc., 510 U. S. 517, 533 (1994), . . . " (p.4). Judge Friendly is cited for a jurisprudential point: "Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982)."

  Finally, Roberts tries to keep the tone relatively light, such as in this line:

We have it on good authority that "a motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.).

Okay, so it's not exactly a knee-slapper, but I thought the "good authority" line added a nice touch given the dry nature of the topic (even if the sentence itself didn't add much). All in all, a solid first opinion.

Public University's Punishment of Employee for Anti-Homosexuality E-Mail Set Aside:

The Foundation for Individual Rights in Education:

[Jihad Daniel, an employee of William Patterson University, a public school in New Jersey] privately replied to an unsolicited March 7 mass e-mail from Professor Arlene Holpp Scala promoting a viewing and discussion of a film described as “a lesbian relationship story.” Daniel’s March 8 e-mail to Professor Scala requested that he not be sent “any mail about ‘Connie and Sally’ and ‘Adam and Steve.’” Daniel went on, “These are perversions. The absence of God in higher education brings on confusion. That is why in these classes the Creator of the heavens and the earth is never mentioned.”

By June 15, Daniel had received a letter of reprimand in his permanent file saying that since the word “perversion” was “derogatory or demeaning,” he was guilty of violating state discrimination and harassment regulations. Daniel appealed to WPU President Arnold Speert, arguing that the First Amendment protected his speech, only to be told that such an argument was “beyond the scope” of the finding. . . .

Daniel contacted FIRE, which on July 5 wrote Speert in protest and reminded him that state college administrators “cannot simply choose to ignore the First Amendment when it becomes inconvenient.” New Jersey Attorney General Peter C. Harvey’s office responded to FIRE, absurdly asserting that “speech which violates a non-discrimination policy is not protected.” FIRE then took the case public, resulting in national condemnation of the university, while Daniel appealed the finding through a union grievance process.

On November 16, Daniel’s hearing took place with able representation from the Communication Workers of America Local 1031. Yesterday, Daniel received notification that the hearing officer had determined that the sexual harassment charge was “not supported” and that the letter would be removed from his personnel file. Moreover, the hearing officer clearly stated that Daniel’s one-time expression of a personal religious belief was not “harassment.” Daniel did receive a purely verbal reprimand for sending the e-mail while at work. . . .

Marquette Suspends Dental Student for Things He Wrote on His Blog,

The Milwaukee Journal-Sentinel reports:

A dental student at Marquette University has been suspended for the rest of the academic year and ordered to repeat a semester after a committee of professors, administrators and students determined that he violated professional conduct codes when he posted negative comments about unnamed students and professors on a blog. . . .

The focus of the hearing, [the student's lawyer] said, were half a dozen postings including one describing a professor as "a (expletive) of a teacher" and another that described 20 classmates as having the "intellectual/maturity of a 3-year-old." [EV Note: According to this account by Marquette professor John McAdams, the professor and the classmates weren't named in the blog, though the professor's identity might be inferrable by those in the know.] . . .

In a letter to the student dated Dec. 2, Denis Lynch, the dental school's associate dean for academic affairs, said the committee had found the student "guilty of professional misconduct in violation of the dental school's Code of Ethics and Professional Conduct."

The student also violated a universitywide code that subjects students to disciplinary action if they participate in stalking, hazing or harassments, the letter states.

In addition to informing the student of his suspension and his need to repeat his fall semester, which costs $14,000 in tuition, Lynch threatened the student with expulsion if he continued to post material on "any blog sites that contain crude, demeaning and unprofessional remarks." . . .

Prof. McAdams of the Marquette Political Science Department has much more on this, and harshly criticizes Marquette; Inside Higher Ed has more, too.

Marquette is a private university, and is thus not bound by the First Amendment. Moreover, this case doesn't seem to involve punishment of students for their ideological viewpoints, and thus doesn't pose the most serious academic freedom problems. Nonetheless, it seems to me that Marquette should be condemned for this: Students, it seems to me, must be entitled to criticize the quality of their professors and the student body, even when they do it in childish terms; moreover, restricting speech under standards as vague as "unprofessional" risks deterring a good deal of speech, including more serious criticisms.

Thanks to Sean Hackbarth (The American Mind) and David Carlson for the pointer.

Related Posts (on one page):

Marquette's Punishment of Dental Student for Things He Wrote on His Blog:
Marquette Suspends Dental Student for Things He Wrote on His Blog,

Roberts' First Opinion

John Roberts first signed opinion as Chief Justice of the United States ~~Supreme Court~~ was issued today, a unanimous opinion in Martin v. Franklin Capital Corp. Here it is.

[Note: Post edited as indicated to correct an error. As a commenter noted below, John Roberts is Chief Justice of the United States, not of the United States Supreme Court.]

UPDATE: Tony Mauro's article on the Roberts opinion closes with this interesting nugget:

For anyone who attended the oral argument in the case, Wednesday’s decision also shows that Roberts is unafraid of standing up to Justice Antonin Scalia. One of the relevant precedents in the case was a 1968 case called Newman v. Piggie Park Enterprises. When one of the lawyers at argument referred to the case by the shorthand Piggie Park, Scalia interrupted and said, only half-jokingly, “You know, it really would improve the dignity of this Court if we referred to Piggie Park as Newman.”
Without apology, Roberts referred to the case throughout his opinion Wednesday as Piggie Park.

Public Choice and the Waning Anti-Kelo Backlash:

Tom Blumer at BizzyBlog is not surprised that the Anti-Kelo backlash is already running out of steam as a result of public choice pressures.

Update:

More from the Affordable Housing Institute--in addition to the analysis, I recommend clicking through just to see the artistic renderings of the issue.

Update:

Timothy Sandefur notes in the Comments that Tom and I have misunderstood his position as one of a "waning" anti-Kelo backlash:

It's wrong to refer to the "waning" backlash. The point of my post and my article is that the backlash is not waning, but that it has not really begun at all. Most of the state legislatures are in recess, and have been since shortly after Kelo was decided. The four states that have acted are unusual in that regard (Texas and Alabama were in special session). My point was that the Kelo backlash has yet to begin and that if it is to do so, it must avoid the errors made by Ohio, Alabama, Texas, and Delaware.

I (and apparently Tom too) had understood Tim to say that it would be difficult to sustain the backlash and that weak legislation that had been enacted was an inevitable outcome of the legislative process. He appears to be optimistic that stronger legislation can be enacted elsewhere. I apologize if I misread his initial post.

Related Posts (on one page):

More on the "Waning Anti-Kelo Backlash":
Anti-Kelo Reform in California and "Proposition 13 Takings":
Public Choice and the Waning Anti-Kelo Backlash:
The Anti-Kelo Backlash?

Solomon Amendment Argument:

Sounds like it didn't go so well for the law schools in oral argument yesterday:

In the argument on Tuesday, the law school coalition's lawyer, E. Joshua Rosenkranz, had difficulty gaining traction as he urged the justices to uphold the appeals court's judgment that the Solomon Amendment amounted to "compelled speech" by forcing the law schools to convey the military's message. Chief Justice Roberts made his disagreement unmistakable.

"I'm sorry, but on 'compelled speech,' nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," the chief justice said. "Nobody thinks the law school believes everything that the employers are doing or saying."

The lawyer adjusted his focus. The law schools have their own message, "that they believe it is immoral to abet discrimination," he said.

This time, Justice Sandra Day O'Connor took issue. "But they can say that to every student who enters the room," she said.

"And when they do it, your honor, the answer of the students is, we don't believe you," Mr. Rosenkranz said.

"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."

Ouch. If you are keeping score at home, I think we can safely log the Chief's vote onto the government's side of the ledger. The Times story indicates that most of the other Justices were also fairly skeptical.

As you probably know, the Court has released the tapes of the oral argument in the case and they are available on C-Span. I, however, have been unable to get the C-Span link to work. I'm sure one of our more adept readers can explain what I'm doing wrong.

Update:

A Commenter reports on what to do if you are also having problems listening to the argument.

Yale Law Students on Intellectual Diversity:

Hartford Courant:

Notably lacking among Yale's professors has been any vigorous defense of Judge Alito or of the conservative judicial philosophy he's believed to hold. No one has stepped forward to defend or even suggest that the country would be better off with another Roe vs. Wade skeptic on the court who is also an "originalist" (believes the Constitution should be interpreted as it was originally written) and a federalist (believing in strict separation of federal and state powers). Such ideas supposedly belong to conservative extremists, who are considered beyond the pale at Yale Law School....

We don't say this to whine about being underrepresented as conservatives at Yale Law School. But the school's lack of diversity increasingly represents a scholarly and pedagogical problem for Yale. For example, the Rehnquist court was a revolution in the country's jurisprudence. Except as fuel for denunciations of the court's conservative majority, these developments have gone largely unnoticed in the scholarship of Yale Law's professors....

Yale Law School is clustered in one corner of the debate about public law. Having even a small number of conservative scholars on campus could fix this - and save us Federalist Society members the indignity of having to import the conservative side of every debate we host.

Compare and contrast: Harvard. When I was in law school, Yale was considered a friendly place for Federalist Society types compared to Harvard.

Soda Lawsuits to Be Filed:

The New York Times reports on pending consumer activist litigation against soda bottlers seeking the removal of soda machines from public schools.

In a lawsuit they plan to file in the next few months, Mr. [Stephen] Gardner [of the Center for Science in the Public Interest] and half a dozen other lawyers, several of them veterans of successful tobacco litigation, will seek to ban sales of sugary beverages in schools.

The lawsuit is to be filed in Massachusetts, which has strong consumer protection laws and happens to be where some of the lawyers are based, and will name Coca-Cola, PepsiCo and their local bottlers, the lawyers say. It will be the first of many such state lawsuits, they say. . . . .

The Massachusetts lawsuit will focus specifically on sales of what it terms unhealthy beverages (likely to mean full-calorie sodas, sports drinks, iced tea drinks and juice drinks without much juice) in high schools and will argue that such sales constitute unfair and deceptive marketing. The suit will also cite the ways in which the large illuminated Coke and Pepsi machines lining school halls and cafeterias are an "attractive nuisance."

"They're selling to a captive audience that isn't really in a position to fully evaluate all the health risks," said Andrew A. Ranier, a partner at McRoberts, Roberts & Ranier in Boston and one lawyer involved in the suit. "And they're not telling people about the risks."

Three tobacco litigation experts are also involved in the suit: Tim Howard, a Florida lawyer who helped the state win a $17 billion settlement against tobacco companies in 1997; Stephen A. Sheller, a partner at Sheller Ludwig & Badey in Philadelphia, who was involved in a successful $10 billion tobacco class action in Illinois state court that is currently under appeal; and Richard A. Daynard, an associate dean at the Northeastern University School of Law who has served as an adviser to many of the state tobacco lawsuits that led to a $246 billion settlement in 1998. . . .

One detail yet to be decided is whether the group will seek financial damages. Under Massachusetts's consumer protection law, successful plaintiffs are entitled to $25 per violation, which could mean $25 for every time a student has purchased a soda in a public high school in Massachusetts over the past four years.

Mr. Gardner said he and the other lawyers realize that damages could run into the billions. "We haven't decided about this yet," he said. "We don't want this to come off looking like a greedy-lawyer lawsuit."

UPDATE: I neglected to note Todd's post on this subject from last week.

Acquittals, Hung Jury in Al-Arian Case: I noted a long time ago that the Justice Department was developing a decidedly mixed record in its anti-terrorism prosecutions. As of today, there's another important case to add to the list:

  In a major defeat for law enforcement officials, a jury in Florida failed to return guilty verdicts Tuesday on any of 51 criminal counts against a former Florida professor and three co-defendants accused of operating a North American front for Palestinian terrorists.
  The former professor, Sami al-Arian, a fiery advocate for Palestinian causes who became a lightning rod for criticism nationwide over his vocal anti-Israeli stances, was found not guilty on eight criminal counts related to terrorist support, perjury and immigration violations.
  The jury deadlocked on the remaining nine counts against him after deliberating for 13 days, and it did not return any guilty verdicts against the three other defendants in the case.

DOJ has had some recent successes in anti-terrorism cases, but the al-Arian case was considered a very important prosecution. No word yet on whether al-Arian will be recharged on the 9 counts that didn't result in a verdict.

Related Posts (on one page):

Analyzing the al-Arian Verdict:
The Al-Arian Verdict and the Patriot Act:
Acquittals, Hung Jury in Al-Arian Case:

Context:

A while back, Slate's Bushism of the Day started providing links so that readers could see the context surround the quote. Unfortunately, they didn't do it with today's item:

"Those who enter the country illegally violate the law." -- Tucson, Ariz., Nov. 28, 2005

I'm pleased, though, to step in and fill the gap:

America has always been a compassionate nation that values the newcomer and takes great pride in our immigrant heritage; yet we're also a nation built on the rule of law, and those who enter the country illegally violate the law. The American people should not have to choose between a welcoming society and a lawful society. We can have both at the same time. And to keep the promise of America, we will enforce the laws of our country.

Does Bush's statement seem quite so silly / funny / whatever in context as it did out of context? Sure, there's a good deal of redundancy here, but such redundancy is often rhetorically valuable. And that sometimes includes stating the obvious, especially when it's an obvious point that one's adversaries often try to deemphasize. Might it have been helpful to provide the quote in context? Or at least to have linked to the context, for the benefit of readers who want to look further?

All Related Posts (on one page) | Some Related Posts:

Whom Are You Going To Believe -- The Transcript or Your Lying Ears?
Bushism of the Day:
My Three Suggestions for Improving Slate:...
Another Puzzling Bushism:
Context:
Another Puzzling Bushism on Slate:...
Bushism of the Day:
Spinsanity criticizes Slate's Bushisms and Kerryisms.
Latest Bushism:

A Remarkable Turn of Events in the Prof. Bradford (Indiana University Law School) Matter:

I blogged in June about Prof. Bradford and the Indiana University (Indianapolis) Law School, who claimed that he was being discriminated against by the faculty for his political views: Several people pointed me to this Indianapolis Star story:

In 2001, [William C.] Bradford was hired as an associate professor at Indiana University School of Law-Indianapolis. . . . [H]e's under fire, he said, because his ideas about the war on terror do not conform to views held by [two tenured professors]. . . . Bradford said the two [professors] voted consistently to deny him tenure, despite good academic ratings.

In March 2004, he said, he was told during a review that someone described him as "uncollegial."

That's the new kiss-of-death buzzword. "Faculty seeking to get rid of others claim they are not collegial," Bradford said. . . .

Bradford wrote a defense of the flag after 9/11 — one that hung in the school lobby until some faculty objected.

He refused to sign a letter sent by [one of the professors] defending Ward Churchill. He's the Colorado professor who called victims of 9/11 "little Eichmanns." . . .

Inside Higher Ed, however, reports:

[A]s Bradford’s complaints grew louder, his story unraveled. It has now become clear that Bradford lied about, among other things, his military service. University officials confirmed Monday that Bradford — who did not respond to e-mail and voice messages and who hasn’t commented on the latest events — has resigned, effective January 1. . . .

In September, Lucas Sayre, a second year law student and the head of Indy Law Net, noticed that Bradford’s comments were coming from the same IP address as posts from other user names. Sayre, who had taken a course with Bradford and said he was a great professor, questioned Bradford about it, and Bradford admitted to using fake names to post “cheap shots, schoolyard bickering,” Sayre said.

In October, Bradford promised the blog audience that the person who endowed Roisman’s chair was upset at her behavior and would strip her of the chair, and that Judge David J. Dreyer of Marion Superior Court had issued a temporary restraining order barring professors from speaking ill of or taking any actions against Bradford. Roisman did not lose her chair, and there never was a restraining order. . . . Court records and sources both indicate that Bradford never filed for any sort of injunction. . . .

There's also this Indianapolis Star story, which Inside Higher Ed refers to as well:

One of Bradford's allies, Professor Henry C. Karlson, pointed out that Bradford was the real deal — awarded the Silver Star and a major in the Special Forces. Bradford said he was in the infantry and military intelligence. He fought in Desert Storm and Bosnia, he said.

On the law school's Web site and its Viewbook, Bradford was profiled as being in the Army infantry from 1990 to 2001. He wore a Silver Star lapel pin around campus. He had a major's gold-leaf insignia plate on his vehicle. . . .

Independently, [a source of mine] and I requested Bradford's service record from the Army. It showed he was in the Army Reserve from Sept. 30, 1995, to Oct 23, 2001. He was discharged as a second lieutenant. He had no active duty. He was in military intelligence, not infantry. He received no awards. . . .

If these factual accounts are accurate, then this is obviously very bad: Prof. Bradford was right to quit; I doubt that he'll get a job at another university any time soon; and, while I'm surely no expert on legal ethics, I do think that lying about one's military experience would justify bar discipline, though I don't know whether in practice state bars impose such discipline (and how much they impose).

Yes, I know that historian Joseph Ellis got only a one-year suspension from his teaching job for having lied about his military record. But: (1) It doesn't follow that all other professors at all other universities should be treated according to the most lenient past example available; (2) the lies here, if they are indeed lies, are more varied and also partly derogatory towards particular other people (which is rightly seen as worse than a mere lie about one's past behavior), which thus bespeaks even a more general untrustworthiness than does Prof. Ellis's behavior. (3) A professor's stellar academic achievements — which Prof. Ellis is generally seen as having had — certainly don't excuse his misconduct, but they may in close cases be relevant to the magnitude of the punishment. The good we do doesn't justify the bad, but it is rightly weighed in the balance when our overall characters are judged.

I e-mailed Prof. Bradford to ask him for his side of the story (I originally called, but his former assistant told me that an e-mail would be likelier to reach him quickly), and received this response, which I post in a redacted form at Prof. Bradford's request:

There is indeed another side of this story — what has been written is not so much false as simply a series of partial truths and minor errors, but the result is that the story is very misleading and casts me in a negative light, quite unfairly. Because I do not want to reveal confidences [related to certain events that Prof. Bradford asked me to keep confidential -EV] . . . I'm unable to mount a substantive defense. Just please know that if the full story could be told the result would be that I would be perceived as . . . an imperfect but honorable person. I wish I could say more, but unfortunately I can't.

Thanks to Prof. Paul Secunda (Workplace Prof Blog) for the pointer.

FAIR v. Rumsfeld Oral Argument: Lyle Denniston has a summary of the argument in the Solomon Amendment case. An excerpt:

Congress' demand that law schools give military recruiters equal access to their students, despite the military's policy of barring homosexuals from service, appeared to have survived quite easily its constitutional test in the Supreme Court on Tuesday, at least if oral argument reflects the Justices' actual leanings. Aside from Justice Ruth Bader Ginsburg and, possibly, Justice David H. Souter, the so-called "Solomon Amendment" appeared to draw no serious opposition from the bench.

I had predicted a 9-0 reversal of the Third Circuit a long time ago, so I suppose I'm not surprised that the argument went well for the government. Of special note, the Court has released the audio from the argument, and it is available here.

ACLU Files Suit over "Extraordinary Renditions": The ACLU's press release is here, and the complaint is here in .pdf format. The ACLU's client is Khaled El-Masri, who you can read about here.

Zionism:

Eugene's post below about being called a "Zionist pig," and the rather Talmudic debate it prompted in the comments, prompts me to reprint one of my favorite posts, trying to clarifying the use and misues of the term "Zionist":

One thing I've noticed is that the Muslim/Palestinian/Campus Left (an odd alliance, to say the least) has managed to make the words "Zionism" and "Zionist" into epithets, so much so that people don't even know what the word means, they just know it's something bad. More than once I've seen Jewish students quoted as saying things like "I support Israel's right to exist with secure borders as a Jewish state, but I'm not a Zionist."

So let's get things straight: Zionism is the term that describes the movement for a Jewish state in the "Land of Israel"--the area that was once a sovereign Jewish state, but over almost two millenia had been controlled by various other nationalities, including Europeans (Great Britain and also briefly and in part during the Crusades), Mamluks, Romans, Arabs, and Turks. Zionists are those who believe in Zionism.

Nowadays, to say one is a Zionist means nothing more than that one supports the right of Israel to exist as a Jewish state. One could be a liberal Zionist, who wants Israel to withdraw from the territories and achieve full equality for its Arab citizens, or one can be an illiberal Zionist, and support a vision of "Greater Israel" with a suppressed Arab minority. One can be a secular Zionist, or a religious Zionist. There are Christian Zionists, and even a few Muslim Zionists.

One can be anti-Zionist without being anti-Semitic, or even prejudiced. Some left-wing Israelis are "post-Zionists" in that they wish Israel to become a "state of all its citizens" rather than a Jewish state. Many libertarians of my acquaintance object to the notion of a "Jewish state," and oppose Zionism for that reason.

On the other hand, many leading anti-Zionists have no objection to other states that are explicitly based on religion or nationality. Indeed, the draft Palestinian Constitution seeks to establish an explicitly Islamic, Arab state, with Islamic law the "primary" basis for its laws. By contrast, outside of family law Israel is a largely secular state (update: and there is nothing in Zionism, as such, that prevents having a wholely secular state), with a legal system easily recognizable to lawyers from common law jurisdictions. And there are some obvious historical reasons why Jews feel the need to have their own defined sovereign entity, reasons that simply don't apply to the local Arab population. So the "anti-Zionist" who claims to oppose Israel on liberal/libertarian principle, but is a fullthroated supporter of Palestinian Islamic nationalism, is a major hypocrite--or worse.

In short, to be a Zionist should be no more controversial than to be a "Pakistanist" (believing that Pakistan should be allowed to exist), or a "Polandist" (believing that Poland should be allowed to exist)--imagine if the founders of Israel had simply called it Zion, as some wished. The word has instead been hijacked by those who, as the saying goes, would like to drive Israel into the sea. By using the word as an epithet, and obscuring its innocuous meaning, they are able to engage in shenanigans such as asking a visiting speaker "Are you a Zionist?", assuming that a yes answer will discredit even a liberal, secular individual.

So, let's take back the words Zionism and Zionist from the Islamofacists, their leftist enablers, and other miscreants. I'll start: I am a proud Zionist. You should be, too.

Related Posts (on one page):

Zionism:
A Phone Call I Just Got:

Henry Manne In the Blogosphere:

The great Henry Manne, one of the founding fathers of law & economics, makes his entry today into the blogosphere. Having read Henry's many op-eds and speeches over the years, I suspect that he is a natural blogger. He is part of the team guest-blogging at Ideoblog and has an entry today "Could we get (and do we even want) intellectual diversity within law schools?" commenting on Peter Schuck's recent column on the topic.

I understand that Henry will be staying with that team when they set up shop on their own after their guest stint at Ribstein's place.

The Anti-Kelo Backlash?

Timothy Sandefur has an extensive post on "The Kelo Backlash So Far." His conclusion--it hasn't accomplished much so far. Few states have had an opportunity to consider the issue and those that have acted have done so with limited effectiveness. He has a detailed discussion of the provisions of several laws and is unimpressed.

He writes (in part):

In the months after the Kelo decision was announced there was much talk of a “backlash” in the states. Since state law can provide greater protections to people than federal law does, people hoped to change state law to protect themselves from eminent domain abuse. But, as I argue in a forthcoming paper (which will be posted on SSRN shortly), the backlash so far has accomplished little.

Most state legislatures have been out of session since shortly after Kelo was announced, which means that so far only four states have enacted laws in response to Kelo: Alabama, Texas, Ohio, and Delaware. Unfortunately, these four provide little protection for property owners, despite their big promises. In other states, the situation has been even more disappointing. California’s legislature considered three measures to limit eminent domain abuse, and turned all three down, even though two of these would have been band-aid solutions that would have done very little. When the other state legislatures come back into session in January, can citizens of other states hope for greater protection? Only time will tell, but I’m pessimistic. There are two major obstacles to serious eminent domain reform: the public choice effect, and the sad state of American political philosophy. Still, there may be reason for optimism: the Pennsylvania state house has passed a bill which, if enacted, would create excellent protections for the state’s property owners, and the U.S. House of Representatives has also passed an excellent bill limiting the availability of federal funding for projects in which eminent domain is used for economic development.

Related Posts (on one page):

Speaking of Rhetorical Excess:

Professor Thomas Ross, reviewing Constitutional Law Stories in the Journal of Legal Education, has this to say about my chapter on Lochner v. New York:

"At one point Bernstein actually manages to suggest a connection between the ascendance of the Nazis, the collapse of Lochner, and the rise of the New Deal. (Discerning and unpackaging that rhetorical excess would be a really nice student exercise.)"

Fortunately, Ross provides in a footnote the relevant quotation from my chapter, which I've reprinted below, except with the ellipses he uses replaced with the actual text in bold:

"The classical foundations of Lochnerian jurisprudence, however, could not survive the strains of the Great Depression With almost no support among the intellectual class, with the unemployed and underemployed clamoring for government intervention and with statism ascendant across the globe in the forms of fascism, communism, and social democracy--each of which had its share of admirers in the United States--the Court's commitment to limited government classical liberalism* seemed outlandishly reactionary to much of the public. The Court’s Lochnerian view that libertarian presumptions were fundamental to Anglo-American liberty became unsustainable as the Depression wore on, with many Americans blaming the purported laissez-faire policies of previous administrations for the continuing economic crisis.

Given the lack of intellectual and public support for Lochnerism, its demise was inevitable, but still required a change of personnel on the Court. President Hoover, a Progressive Republican, put the first nails into Lochner’s coffin by appointing to the Court Justices Charles Evan Hughes, Owen Roberts, and Benjamin Cardozo, each of whom had views well to the left of the conservatives who dominated the Court in the 1920s. By 1934 a majority had formed willing to broadly expand the “affected with a public interest doctrine” to the point where just about any regulation of prices was constitutional. After a short period of resistance to the more extreme aspects of the New Deal, the end of the “Lochner era” was signaled when in 1937 the Court reversed Adkins and upheld a minimum wage law for women. ~~[By the late 1930s]~~ President Franklin Roosevelt sealed Lochner's fate by appointing a series of New Dealers and other political allies to the Court.

So somehow, with a tendentious use of ellipses, not to mention the confusion of Naziism [never mentioned in my chapter] with Mussolini's fascism (which did indeed have many American admirers), the unremarkable point that a combination of declining intellectual support for classical liberalism, the economic crisis of the Great Depression, and the general ascendance of statist ideologies undermined the classical liberal foundations of American constitutional law as reflected in Lochner is summarized as "a connection between the ascendance of the Nazis the collapse of Lochner, and the rise of the New Deal." I leave to the reader to discern who is engaging in rhetorical excess.

*There should have been an ellipsis here, but there wasn't.

Thugs Beat Professor:

KU professor Paul Mirecki was hospitalized Monday morning after two men beat him on the side of the road in rural Douglas County, he said.

Mirecki said the two men beat him for about one minute with a metal object, striking him repeatedly on the head, shoulders and back.

Mirecki, chairman of the department of religious studies, drew criticism from University officials and state legislators last week after e-mails he had sent to a list server became public.

In the messages, he made remarks about Christian fundamentalists that some considered offensive, including the message that the intelligent design class he planned to teach in the spring would serve as “a nice slap in their big fat face.” He apologized and canceled the class last week.

He said the assailants made reference to the intelligent design controversy during the attack. . . .

Sen. Kay O’Connor (R-Olathe), who has strongly criticized Mirecki for his e-mails, said whoever beat him should be “prosecuted to the fullest.”

“If they try to cover themselves under the mantle of being Christian or being Christian people, sorry Charlie,” she said. “They’re just thugs.”

All my best wishes for a speedy recovery to Prof. Mirecki, and my praise to Sen. O'Connor, both for defending someone whose views she disagrees with, and for calling a thug a thug.

A Phone Call I Just Got:

I'm transcribing it from memory, so I might have missed a word or two, but this was just half a minute ago, so I'm pretty sure I've gotten all the key words:

I feel sorry for students who have to study with a Zionist pig like you. Comparing Castro to Hitler -- maybe all you've got on your brain is Hitler. You are nothing but a maggot. [Click.]

Everything old is new again . . . .

(By the way, for whatever it's worth, before people assume that this is Arab anti-Semitism, I should note the caller's accent sounded European rather than Middle Eastern.)

Related Posts (on one page):

Zionism:
A Phone Call I Just Got:

No Cajoling or Proselytizing -- We're a University!

Hampton University decided to enforce a quite remarkable provision in its Code of Conduct, which says that

to accost, cajole, or proselytize students, faculty or staff, parents or others, to engage in gender and sexual harassment, use vile, obscene or abusive language or exhibit lewd behavior, to possess weapons such as knives or firearms, or to be involved in the possession, use, distribution of and sale of illegal drugs is strictly prohibited and is in direct violation of the Hampton University Code, on or off campus.

According to the Foundation for Individual Rights in Education,

Seven students at the private institution faced trouble with Hampton administrators after November 2, when they and others spent about half an hour in Hampton’s student center passing out [anti-Bush] flyers on issues including Hurricane Katrina, the Sudan, and the Iraq war. Police officers confronted the students, who did not believe they needed permission to hand out the flyers and who were eventually charged with offenses such as “posting unauthorized materials” and “actions to cajole or proselytize students.” A November 28 letter from Dean of Men Woodson H. Hopewell informed the students that they could face penalties up to expulsion for these activities, which at a public university would be protected under the First Amendment. . . .

Last weekend, at least five of the seven students involved in the flyer distribution discovered that rather than being expelled, they had been sentenced to 20 hours each of community service. A similar punishment is expected for the two remaining students. The university also released a statement saying in part that “Hampton University has always and continues to be a champion of free speech and free expression.”

This strikes me as a pretty shocking action for a university, even a private university, to take. Private universities are not bound by the First Amendment; but in my view even a private university, to fulfill its function, must provide a broad degree of academic freedom to students, and deserves criticism if it does not, especially if it asserts that it "has always and continues to be a champion of free speech and free expression." And this is especially so when the restrictions are so broad as to prohibit any speech that "cajole[s] or proselytiz[es]" — apt descriptions for a wide range of persuasive communication of ideas — and in particular to prohibit the distribution of flyers. (The university's position might be more defensible if it were limited solely to speech that urges a walkout from classes, which some of the flyers did; but this was not the only or even the main grounds that the university cited.)

In any case, it's good that FIRE is fighting these cases, though it's too bad that it has to.

UPDATE: My original quote from the Code of Conduct was incorrect — I tried to focus only on the relevant portions of the text by saying that the Code "prohibits 'accost[ing], cajol[ing], or proselytiz[ing] students, faculty or staff, parents or others, to engage in gender and sexual harassment, use vile, obscene or abusive language or exhibit lewd behavior,'" but this suggested that the Code only barred cajoling in order toengage in harassment. That's not what the Code does; it bars cajoling/proselytizing, it bars harassment, it bars weapons possession, and it bars drug possession (the last two of which are clearly not relevant here) — that's why FIRE's and my substantive criticisms are correct, since the prohibition on cajoling/proselytizing is quite independent of the other prohibitions. To quote the material accurately, I should have revised "to engage in" to say instead "[or] engag[ing] in." But instead I decided just to quote the item with a minimum of revision; the changed text above reflects this. My apologies to readers Steve and Brad, who were confused by this.

Is Tom DeLay's Glass Half-Full or Half-Empty?: Daniel Solove takes a look at headlines around the MSM, and finds that it depends on the organization doing the reporting.

CIA Secret Prisons Shut Down Following Media Attention: ABC News has a fascinating report on how recent media attention pushed the CIA to shut down two secret prisons in Europe that held 11 top Al Qaeda suspects and to move the suspects to a new CIA facility in the North African desert. According to the report, the 11 suspects are: Abu Zubaydah, Ibn Al-Shaykh al-Libi, Abdul Rahim al-Sharqawi, Abd al-Rahim al-Nashiri, Ramzi Binalshibh, Mohammed Omar Abdel-Rahman, Khalid Shaikh Mohammed, Waleed Mohammed bin Attash, Hassan Ghul, Ahmed Khalfan Ghailani, and Abu Faraj al-Libbi.

Related Posts (on one page):

CIA Secret Prisons Shut Down Following Media Attention:
CIA Interrogation Techniques:
Terrorist Plots Thwarted, Secret CIA Prisons:

Treating Machines Like People: I've been pondering writing a short essay on an interesting legal issue that I run into from time to time: When applying traditional legal doctrines to computers, when should courts model computers as people?

Here are two examples to demonstrate the problem. In an Australian case, Kennison v. Daire, 160 C.L.R. 129 (1986), a man withdrew $200 (AU) from an offline Automatic Teller Machine (ATM) using an expired card from a closed account. Bank employees had programmed their computers to dispense money whenever a person used an ATM card from that bank using a proper password. When the ATMs were offline, however, the machines were programmed to dispense money without checking whether there was money in the relevant account, or even if the account was still open. The defendant in Daire intentionally exploited this defect, took the $200, and was charged and convicted of larceny. On appeal, he argued that he had not committed larceny because the bank, through the ATM, had consented to his taking the money. The High Court of Australia rejected the argument:

The fact that the bank programmed the machine in a way that facilitated the commission of a fraud by a person holding a card did not mean that the bank consented to the withdrawal of money by a person who had no account with the bank. It is not suggested that any person, having the authority of the bank to consent to the particular transaction, did so. The machine could not give the bank's consent in fact and there is no principle of law that requires it to be treated as though it were a person with authority to decide and consent. The proper inference to be drawn from the facts is that the bank consented to the withdrawal of up to $200 by a card holder who presented his card and supplied his personal identification number, only if the card holder had an account which was current. It would be quite unreal to infer that the bank consented to the withdrawal by a card holder whose account had been closed.

Compare this case with the U.S. Supreme Court's opinion in Smith v. Maryland, 442 U.S. 735 (1979). In Smith, the government asked the phone company to install a "pen register" machine on the suspect's phone to find out what numbers he was dialing. When the defendant placed a call to harass his victim, the pen register installed at the phone company recorded the outgoing numbers dialed on the call, confirming the call to the victim. The defendant argued that the surveillance violated his Fourth Amendment rights, but the Supreme Court rejected the claim relying in part on the equivalence between the pen register equipment and a person:

The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.

Daire and Smith are interesting cases, I think, because the outcome apparently hinges on how to apply legal doctrines designed for people in the case of automated machines. The question is, do you treat the machine as a stand-in for a person, or do you treat it as something else? On one hand, the instinct to anthropomorphize computers seems natural; computers are designed to perform tasks on their user's behalf, and it's easy to model them as mechanical servants. On the other hand, computers are just machines, and pretending that they are people seems inappropriate in a wide range of cases.

In any event, I'm intrigued by the question, as it seems to me that the issue probably comes up in lots of different contexts. It seems to me that a coherent perspective on the problem — such as a normative theory for how courts should resolve such claims in different contexts — might be quite useful. At the same time, I have no idea whether this ground has been well-covered elsewhere, especially outside U.S. law reviews, or whether it is at all worth pursuing. My hope is that the VC's crack commenters can offer some thoughts and insights. What do you think, dear readers — Cool idea, or trivial issue lacking any novelty?

Unpublished Opinion in Insanity Defense Case: Thanks to reader Keith Hilzendeger, we now have a copy of the unpublished Arizona Court of Appeals opinion that the Supreme Court agreed to review today to determine the constitutional status of the insanity defense. (Keith works near the courthouse, and took some time during his lunch hour to get the opinion and send it on.) I have posted the 21-page opinion in State v. Clark here (.pdf). The relevant part of the opinion is found on pages 15-18.

Related Posts (on one page):

Unpublished Opinion in Insanity Defense Case:
The Constitution and the Insanity Defense:

Thanks Georgetown: Today is my last day as a visitor at the Georgetown Law Center. Although the semester was very draining—in part due to my commuting by air to Boston most weekends—it was also highly rewarding. I really enjoyed my time participating in what is an amazingly warm and intellectually engaging community. Before my visit, I was simply unaware of how truly impressive a law school Georgetown is, but that is what visits are for.

So on my final day, I wish to express my appreciation to the faculty, staff, and especially the students for making my time here so stimulating and enjoyable, and for making me feel so welcome.

Still, I am looking forward to being at home, to teaching constitutional law at BU in the spring, to spending time with my BU colleagues, and even to blogging more actively than I was able to this fall.

Public Trust in the Judicial System:

A story in Saturday's Boston Globe reports:

The chief justice of the state Supreme Judicial Court yesterday apologized for a joke she made at the beginning of her commencement speech at Brandeis University in May, when she quipped to spectators gathered beneath blue and white balloons, "No red states here."

The remark by Chief Justice Margaret H. Marshall, who wrote the court's landmark 2003 decision allowing same-sex marriage, triggered a confidential complaint to the Commission on Judicial Conduct. The commission released an extraordinary statement yesterday from the state's top jurist, who said she regretted making what might have been construed as a political statement.

"The comment was an unconsidered, spontaneous attempt to connect with the exuberant, celebratory feeling in the audience, reflecting the balloons I had seen," Marshall said. "The reference to 'red states' was not part of my written, prepared speech. I regret the comment, and I apologize for it. I did not intend to say anything of a political nature."

The commission said Marshall's statement resolved the complaint filed after the graduation. . . .

I had blogged about this item when her speech was first covered in May, and drew a connection to the substance of her speech, which criticized certain public criticism of the judiciary:

[A] Boston Globe article . . . starts with:
The chief justice of the [Massachusetts] Supreme Judicial Court said yesterday that rhetoric about judges destroying the country and the suggestion that court decisions should conform to public opinion are threatening public trust in the judicial system, a cornerstone of democracy.

Justice Margaret H. Marshall, who has been widely criticized as a judicial activist since writing the court's 2003 decision allowing same-sex marriage, spoke before a crowd of 7,000 at Brandeis University's 54th commencement. . . .

[Marshall] said she is not concerned about criticism of individual judges or decisions, but about "attacks leveled at the very foundation of our legal system — the principle that judges should decide each case on its merits . . . independent of outside influence."

"I worry when people of influence use vague, loaded terms like 'judicial activism' to skew public debate or to intimidate judges," Marshall said. "I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."
Well, I'm not wild about "vague, loaded terms" like "judicial activism," either; I think complains about "activism" are often quite imprecise, and conceal more than they reveal. Yet "judicial independence" is often a "vague, loaded term," too. Judges should surely be independent of some things -- for instance, the risk that they'll be fired by political figures -- but not from other things, such as public criticism, and decisions being overturned by constitutional amendment. Other questions, such as whether judges should be independent of voter reaction, through recalls or other means of removal through the ballotbox, are more complex, but they can hardly be resolved either through slogans such as "judicial activism" or "judicial independence."

Nor am I particularly moved simply by claims that criticism is "threatening public trust in the judicial system." It seems to me that many judicial decisions -- such as the Massachusetts Supreme Judicial Court's same-sex marriage decision -- are threatening public trust in the judicial system, too. That itself doesn't make the decisions wrong: Maintaining public trust in the judicial system isn't the most important goal, and sometimes serving other goals (such as, for instance, following the law when the law really does require an unpopular result) means having to do things that undermine public trust in the judicial system.

But the same applies to public criticism; that criticism undermines public trust in the judicial system doesn't make it wrong. And while "gratuitious attacks on judges" (which the chief justice particularly criticized) are by definition unsound (in this context, I take it that "gratuitious" means "unfounded"), an argument based on this claim is assuming the conclusion: Surely critics of the courts would say their criticisms are quite well-founded, and not gratuitous. Now I suspect that the chief justice's full argument was more sophisticated and thorough than that, but the Boston Globe's seemingly quite friendly rendition of the argument struck me as unpersuasive.

Finally, one item that particularly stood out . . .:
Marshall began with a joke about the blue and white balloons suspended from the Gosman Sports Center ceiling. She said she liked the colors, which included "no red states" -- winning a big laugh.

Yes, I realize that it's a joke; but as with many jokes, I take it has an element of truth to it. Do you suppose that when a chief justice of a nominally nonpartisan state court jokes at a commencement that she's pleased that Massachusetts votes Democratic, that too might help undermine "Americans' trust in the integrity of our judicial system"?

The Case for More Coffee:

Reuters is reporting:

Coffee and tea may reduce the risk of serious liver damage in people who drink too much alcohol, are overweight or have too much iron in the blood, researchers reported yesterday.

Which Country Is -- Supposedly -- the First To Offer Country-Wide Wireless?

They say the answer is . . .

(Show.)

The Descent of Intelligent Design:

Yesterday's New York Times had an interesting article on the failure of intelligent design to gain adherents. Even those initially open to ID theory are luke warm to it, as are science professors at religiously oriented universities.

The Templeton Foundation, a major supporter of projects seeking to reconcile science and religion, says that after providing a few grants for conferences and courses to debate intelligent design, they asked proponents to submit proposals for actual research.

"They never came in," said Charles L. Harper Jr., senior vice president at the Templeton Foundation, who said that while he was skeptical from the beginning, other foundation officials were initially intrigued and later grew disillusioned.

"From the point of view of rigor and intellectual seriousness, the intelligent design people don't come out very well in our world of scientific review," he said.

While intelligent design has hit obstacles among scientists, it has also failed to find a warm embrace at many evangelical Christian colleges. Even at conservative schools, scholars and theologians who were initially excited about intelligent design say they have come to find its arguments unconvincing. They, too, have been greatly swayed by the scientists at their own institutions and elsewhere who have examined intelligent design and found it insufficiently substantiated in comparison to evolution.

"It can function as one of those ambiguous signs in the world that point to an intelligent creator and help support the faith of the faithful, but it just doesn't have the compelling or explanatory power to have much of an impact on the academy," said Frank D. Macchia, a professor of Christian theology at Vanguard University, in Costa Mesa, Calif., which is affiliated with the Assemblies of God, the nation's largest Pentecostal denomination.

Swedish Court Decision on Anti-Homosexuality Speech:

Stefan Geens has some thoughts on the subject; he knows Swedish and has actually read the decision.

Nobel Prizes:

A litigator friend of mine asks me to nominate him for the Nobel Peace Prize. Come now -- shouldn't litigators prefer the Nobel Dynamite Prize? Leave the Peace Prize stuff for that fuzzy mediation crowd . . . .

Related Posts (on one page):

Good To Occasionally See That One's Articles Really Are Relevant:

The L.A. Times ran my op-ed about how little a Nobel Peace Prize nomination means -- the piece was based on a blog post of mine that the Times people read and asked me to adapt -- and what should I see in the piece immediately above it on the page?

[Tookie Williams] has been nominated for the Nobel Peace Prize multiple times.

Related Posts (on one page):

Nobel Prizes:
Good To Occasionally See That One's Articles Really Are Relevant:
Nobel Peace Prize Nominees:
Ethics of Nobel Prize Nominations:
Imagine That -- We're Trying To Execute a Nobel Peace/Literature Prize Nominee!

Judge Boggs and Probable Cause: A number of law bloggers have pointed out the paragraph in a recent concurrence by Judge Danny Boggs that attempts to quantify probable cause. It's only a paragraph, but it's a pretty interesting paragraph and by a prominent judge. Boggs suggests that the threshold of probable cause is in the neighborhood of a 5 to 10 percent likelihood of evidence being found:

While courts have resisted mightily putting a number on probable cause, see Maryland v. Pringle, 540 U.S. 366, 371 (2003), at bottom a review of cases indicates that there must be some, albeit inchoate, feeling as to what kind of probability constitutes probable cause. My reading is that it does not require a belief that there is more than a 50% probability of evidence being found in a particular location. See, e.g., United States v. Gourde, 382 F.3d 1003, 1015 (9th Cir. 2004) (Gould, J., concurring) (collecting cases). If that were the case, one could never get a search warrant to search all three cars of a person for whom there was overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of the others. However, to be more than a hunch or a supposition, in my own mind, requires a legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or that evidence is in a particular location.

  I think Judge Boggs is wrong, and that his hypothetical is based on a simple analytical error. Judge Boggs assumes that the "place to be searched" for the purposes of a warrant to search for evidence in a car must be an individual vehicle. In his hypothetical, the drug dealer has three cars in a garage, and there is evidence in only one of the three cars. Boggs concludes that probable cause must be a low probability because the chances that the evidence is in any one car are only 1 in 3, and yet the warrant in that case obviously would be issued.

  The problem with Boggs' hypothetical is that the "place to be searched" in this hypothetical wouldn't be an individual car, or even the garage itself; the "place to be searched" normally would be the entire property that contained the garage and all of the cars inside it. The chances that evidence would be found in the place to be searched are 100%, not 1 in 3, as we know that the evidence will be found in one of the cars.

  Boggs' hypothetical provides a good reminder of how probable cause to search property is always contingent on the size and scope of the space searched. The larger the space to be searched, the higher the probability that evidence of crime exists there. If you make the place to be searched big enough, probable cause will always exist; for example, there is a 100% certainty that crack cocaine will be found somewhere in New York City. Conversely, the more you narrow the place to be searched, the less likely it is that probable cause exists; if you make the place to be searched infinitesmally small, you'll never have probable cause.

  With exceptions that need not be covered here, the key determinant of the scope of the place to be searched is the particularity requirement. Warrants must "particularly describe the place to be searched," meaning that cops can't ask for permisssion to search New York City, or the Upper West Side, or even a city block. Instead, they normally need to limit the place to be searched to a particular house and premises, or an office or group of offices. The only question is whether probable cause exists that somewhere on the property some evidence of the crime, contraband, instrumentality, or a fruit of the crime will be discovered.

  Finally, I think Boggs' estimate that probable cause means a 5% to 10% chance is pretty far off. In my experience, probable cause exists when the police have some pretty strong signals that there is really something unusual going on in the place to be searched. It's impossible to translate that into a numerical likelihood, as the police never know whether the selection of signals they have observed is representative of the whole. It's like the old poem about The Blind Men and the Elephant; the police never know what part of the elephant they're touching, so it's really hard to quantify the certainty of the evidence they have.

  At the same time, the studies I have seen indicate that about 90% of search warrants end up leading to the discovery of the evidence of crime sought in the search. This doesn't mean that probable cause requires 90% certainty, obviously, but I think it does indicate that probable cause in practice is more certain that Judge Boggs suggests.

The Constitution and the Insanity Defense: Via SCOTUSblog, I learn that the Supreme Court has granted certiorari in a very interesting criminal law case, Clark v. Arizona, Case No. 05-5966, which considers the constitutionality of a 1993 Arizona state law that limits the scope of the insanity defense. Lyle Denniston summarizes:

The first issue in the case . . . is whether the Constitution requires states to allow an individual to claim that, because of mental defect, he could not know the nature and quality of the crime he is accused of committing. Arizona eliminated that aspect of the insanity defense, permitting individuals only to claim that a mental defect kept them from knowing right from wrong.
The appeal involves an Arizona youth who, at age 17, shot and killed a police officer who had stopped him for loudly playing the radio on his car. Eric Michael Clark contends he was mentally ill at the time of the incident. "This Court," his appeal argues, "has never addressed this issue, and never held that a state may, consistent with due process, abolish the insanity defense as it existed at common law."

The opinion below was decided by the Arizona Court of Appeals, at least according to the Court's docket sheet, but I don't think it was published.

Related Posts (on one page):

Unpublished Opinion in Insanity Defense Case:
The Constitution and the Insanity Defense:

Cato Unbound and Buchanan's Three Constitutional Amendments:

Here is the new Cato Unbound, a cross between a monthly magazine and a blog. Here is how Cato Unbound works. Here is James Buchanan, choosing three new amendments for the American Constitution; Alex Kozinski writes one of the three replies.

The "Endowment Effect":

Larry Ribstein is away from Ideoblog for a few weeks and he has a bunch of guest bloggers. Lots of great stuff over there (so far, no movie reviews).

Josh Wright has a post up on the "The Endowment Effect's Disappearing Act" which discusses in some detail the superb paper by Charlie Plott and Kathy Zeiler on the so-called endowment effect. (I noted the working paper here about a year ago, but Josh's discussion is more extensive). In short, they conclude that findings of a supposed "endowment effect" results from experimental design rather than actually demonstrating what is being tested for. The effect seems to disappear once controls are imposed on the experiments, suggesting that there is something else at work here.

Josh also notes a few concerns about advocating policy recommendations on the basis of the endowment effect.

Production of papers grounded in the "endowment effect" has become quite a cottage industry in recent years. A quick Westlaw search this morning in the JLR database comes up with 541 references to the "endowment effect." Many of these papers even discuss the "endowment effect" as supposedly modeling behavior by firms, as opposed to individuals. (As Alchian would observe, even if the endowment effect existed, firms would likely emerge as a response to it rather than an application of it and there would likely be minimal consequences for allocational efficiency). And accepting the endowment effect can generate a host of interesting policy recommendations and normative conclusions. Like Josh, I am curious to see what effect, if any, the Plott and Zeiler paper has on the production and publication of law review articles based on the endowment effect.

Global Word Perfect to Word Advice:

Google Desktop is a wonderful tool. Unfortunately, it will search Microsoft Word, but not Word Pefect, documents. As a long-standing and still-loyal WP user, I'm very annoyed that I can't use Desktop to efficiently search the vast repository of documents on my hard drive. An obvious solution would be to create an additional copy of all my WP documents in Word. Is there a simply way to do this globally? I certainly don't want to have to resave each document individually in Word.

Hooray for the New Hockey:

As a few VC readers might have noticed, the National Hockey League is back. After a one year hiatus due to a labor dispute — the owners locked out the players — the NHL has resumed play with a salary cap and new rules to increase scoring. The end result has been quite a success. Games are very exciting under the new rules. Scoring has increased and it is more difficult for teams to sit on leads and run out the clock. Fans must like what they see as well because attendance is up at most arenas. I've already been to two games this year, and hope to attend many more.

On the down side, fewer games are on national television because ESPN has replaced hockey in its line up. Instead, games are broadcast nationally on the Outdoor Life Network. OLN is on fewer cable systems, is airing fewer games overall than used to be seen on ESPN and ESPN2, and (perhaps worst of all) does not do as good a job showing the games. In particular, the cameras zoom in too closely on live play making it difficult to see plays develop. Given that hockey is now a much more wide-open game, this is particularly unfortunate. At least the CBC still knows how to show a game.

UPDATE: At a reader's request, here is a summary of the rule changes that took effect this year. And here is Elisha Cuthbert's hockey blog, just because.

Ramsey Clark for the Defense:

Ramsey Clark has decided to join Saddam Hussein's defense team. The likely reason, as Case Western law professor Michael Scharf notes in this post on Grotian Moment: The Saddam Hussein Trial Blog, is to advance Clark's own anti-war political agenda. What will it mean for the trial? Scharf has some thoughts:

Clark is known for turning international trials into political stages from which to launch attacks against U.S. foreign policy. He has represented Liberian political figure Charles Taylor during his 1985 fight against extradition from the United States to Liberia; Elizaphan Ntakirutimana, a Hutu leader implicated in the Rwandan genocide; PLO leaders in a lawsuit brought by the family of Leon Klinghoffer, the wheelchair bound elderly American who was shot and tossed overboard from the hijacked Achille Lauro cruise ship by Palestinian terrorists in 1986; and most recently Slobodan Milosevic, the former leader of Serbia who is on trial for genocide before the International Criminal Tribunal for the Former Yugoslavia in The Hague.

Much as Clark objected to the 2003 U.S. invasion of Iraq, Clark joined the defense for the former Serb leader in 2001 because he objected to the 1999 NATO bombing of Serbia, which also had not been authorized by the U.N. Security Council. For a preview of Clark’s Saddam Hussein trial strategy, one can examine Clark’s tactics in the Milosevic trial. . . .

Building on the theme of Clark’s brief, the Milosevic defense began with Hollywood-quality video and slide show presentations showing the destruction wrought by the 1999 NATO bombing campaign. Though the acts of NATO were not relevant to any of the charges or defenses, and therefore not likely to help Milosevic obtain an acquittal, the presentation had an immediate impact on Milosevic’s popularity back home in Serbia. The tactic transformed Milosevic from the most reviled individual in Serbia to number four on the list of most admired Serbs . . .

Like Clark, I published articles in opposition to the 2003 invasion of Iraq. But I don’t think Clark’s strategy of putting the United States on trial will be constructive. Since the “Tu Quoque” (you also) defense is not legitimate [see here], it won’t help his client’s case. . . . But as the Milosevic case has demonstrated, Clark’s strategy of putting the United States on trial is likely to incite greater opposition to and violence against the new Iraqi government and the U.S. troops stationed in Iraq. Ironically, Clark’s trial strategy will result in lengthening the amount of time U.S. troops must remain in Iraq, rather than hastening their withdrawal as Clark has advocated.

There's much more about recent trial developments on the Grotian Moment blog.

Saturday, December 10, 2005

Friday, December 9, 2005

Thursday, December 8, 2005

Wednesday, December 7, 2005

Tuesday, December 6, 2005

Monday, December 5, 2005

Sunday, December 4, 2005