Saturday, January 20, 2007

Sunstein on Libertarian Paternalism:

University of Chicago law profesor Cass Sunstein blogs in defense of libertarian paternalism:

Becker and Posner make some nice points against those who like government bans and mandates (though Posner, interestingly, defends the ban on trans fats in New York City restaurants; libertarian paternalists would disapprove of any such ban). But libertarian paternalists do not mean to allow government to forbid the triumph of the supposed "weaker" self over the supposedly stronger one. If people want to eat a lot of candy and ice cream, or refuse to save for their retirement, that is their right. Far from neglecting the bounded rationality of government officials, libertarian paternalists emphasize government error as a strong reason for respecting freedom of choice.

What libertarian paternalists add is that the opposition between "individual choice" and "government" is confusing and unhelpful when government is inevitably establishing default rules that govern outcomes if choices haven't been specifically made -- and that influence people's choices in any case. A key point, then, is that private and public institutions can't possibly avoid a form of paternalism, so long as they establish default rules and starting points. (For some reason, economists in particular seem not to understand this point.) The question is how to make those starting points as good as possible, while also preserving free choice.

For more on this subject, see Sunstein's paper with Richard Thaler, "Libertarian Paternalism Is Not an Oxymoron," and Gregory Mithcell's response, "Libertarian Paternalism Is an Oxymoron."


The dialogue of the Exchequer

is the name of a late 12th-century treatise on English treasury procedures by Richard FitzNigel. The first book begins as follows:

In the twenty-third year of the reign of King Henry II, while I was sitting at the window of a tower next to the River Thames, a man spoke to me impetuously, saying: "Master, hast thou not read that there is no use in science or in a treasure that is hidden?"

When I replied to him, "I have read so."

Straightway he said: "Why, therefore, dost thou not teach others the knowledge concerning the exchequer which is said to be thine to such an extent, and commit it to writing lest it die with thee?"

I answered: "Lo, brother, thou hast now for a long time sat at the exchequer, and nothing is hidden from thee, for thou art painstaking. And the same is probably the case with the others who have seats there."

But he, "Just as those who walk in darkness and grope with their hands frequently stumble, so many sit there who seeing do not perceive, and hearing do not understand."

Then I, "Thou speakest irreverently, for neither is the knowledge so great nor does it concern such great things; but perchance those who are occupied with important matters have hearts like the claws of an eagle, which do not retain small things, but which great ones do not escape."

And he, "So be it: but although eagles fly very high, nevertheless they rest and refresh themselves in humble places; and therefore we beg thee to explain humble things which will be of profit to the eagles themselves."

Then I, "I have feared to put together a work concerning these things because they lie open to the bodily senses and grow common by daily [use]; nor is there, nor can there be in them a description of subtile things, or a pleasing invention of the imagination."

And he, "Those who rejoice in imaginings, who seek the flight of subtile things, have Aristotle and the books of Plato; to them let them listen. Do thou write not subtile but useful things."

Then I, "Of those things which thou demandest it is impossible to speak except in common discourse and in ordinary words."

"But," said he, as if aroused to ire, -- for to a mind filled with desire nothing goes quickly enough, -- "writers on arts, lest they might seem to know too little about many things, and in order that art might less easily become known, have sought to appropriate many things, and have concealed them under unknown words: but thou dost not undertake to write about an art, but about certain customs and laws of the exchequer; and since these ought to be common, common words must necessarily be employed, so that style may have relation to the things of which we are speaking. Moreover, although it is very often allowable to invent new words, I beg, nevertheless, if it please thee that thou may'st not be ashamed to use the customary names of the things themselves which readily occur to the mind, so that no new difficulty from using unfamiliar words may arise to disturb us."

Then I, "I see that thou art angry; but be calmer; I will do what thou dost urge. Rise, therefore, and sit opposite to me; and ask me concerning those things that occur to thee. But if thou shalt propound something unheard of, I shall not blush to say 'I do not know.' But let us both, like discreet beings come to an agreement."

And he, "Thou respondest to my wish. Moreover, although an elementary old man is a disgraceful and ridiculous thing, I will nevertheless begin with the very elements."

(Paragraph breaks and a few slight alterations, including some capitalization, added.)


Friday, January 19, 2007

Kopel website in Chinese:

It's now operational. Eleven articles in both Traditional and Simplified Chinese. Mostly on technology/antitrust topics. Plus self-defense, and, of course, Harry Potter.


No Charges in Citizen's Arrest Incident:

The Cincinnati Enquirer reports that no charges will be filed against former Congressional candidate Paul Hackett in this incident.


The Right to Marry, and the Right to Sexual Autonomy, in Washington State:

Say you live in Washington State, and you find yourself getting to know and becoming attracted to your dental hygienist — or for that matter your optician (that's the person who fits your eyeglasses, based on the prescription provided by your optometrist). You're interested in a romantic relationship, a sexual relationship, perhaps even marriage. You're both consenting adults, you think, right? You have a right to marry, and even a right to have sex (given Lawrence v. Texas).

The Washington authorities don't seem to think so. Let's see how some new Washington regulations treat this.

1. Under Washington Administrative Code 246-16-020, your dental hygienist and your optician are "health care providers." This means that, under Washington Administrative Code 246-16-100, they "shall not engage, or attempt to engage, in sexual misconduct with a current patient." Sexual misconduct "includes but is not limited to" sex, kissing, "[h]ugging ... of a romantic ... nature," "[s]uggesting or discussing the possibility of a dating, sexual or romantic relationship after the professional relationship ends," "[t]erminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship," or "[m]aking statements regarding the patient['s] ... body, appearance, sexual history, or sexual orientation other than for legitimate health care purposesamong many other things."

OK, you say, no problem; you should just switch to a different dental hygienist or optician, and then start dating. Perhaps banning optician-client relationships is going a bit far, but it's hardly a big burden on people's romantic, sexual, or marital choices.

2. No dice! Subsection (3) of the provision states that "A health care provider shall not engage, or attempt to engage" in any of these activities "with a former patient, client or key party within two years after the provider-patient/client relationship ends." Two years, not a short time. If you do want to date your former dental hygienist or optician, you can't even kiss them until two years after you leave their practice. Or, to be precise, you can kiss them, and they can kiss you back — if they are willing to risk professional discipline and possibly loss of their livelihood, a pretty serious burden.

3. But wait; maybe before you leave them and wait the two years, you ought to get a sense of whether they're even interested, no? Except that even if you ask whether they're potentially interested, their answer has to be:

I'm sorry, but I can't discuss the possibility of a relationship after the professional relationship ends.

Of course, this restriction does end two years after the professional relationship ends. So two years after switching dental hygienists or opticians, you can call up the person and say, "Hey, remember me, from two years ago? I only stopped coming to your office so that I could wait two years and then ask you out. So, are you interested?" At that point, they can start a relationship with you — or say, "oh, sorry you had to stay away for two years, but I don't think it would work out between us."

4. Actually, can they start a relationship with you, even two years later? Well, not if "(a) There is a significant likelihood that the patient ... will seek or require additional services from the health care provider; or (b) There is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship." How should the hygienist or optician think this through? Let's skip item (a), though even that's troublesome enough (since if a relationship does develop, you might well ask your lover or spouse for some professional help, as lovers and spouses often do).

Instead, consider (b): Is there an imbalance of "power, influence, opportunity and/or special knowledge of the professional relationship"? It's hard to grasp what "special knowledge of the professional relationship" means, but if the question is whether there's an imbalance of "special knowledge," the answer would likely be "yes": All professionals, including dental hygienists and opticians, have special knowledge others don't have.

And what about "influence" or "opportunity"? Say the optician is a relatively well-paid small businessman, and you're poorer or less well-educated. The optician may well have more influence and opportunity than you do. He may not have nearly enough to threaten you or coerce you, but that's not the test; the question is just whether there's "an imbalance of ... influence [or] opportunity." Does an optician making a comfortable living have influence and opportunity that's "balance[d]" with that of, say, someone who's working as a waitress for minimum wage? Probably not. And if that's so, then that means the optician and waitress can'd date even after the two years have passed.

Of course, maybe the rule is meant to capture something less than all "imbalance of power, influence, opportunity and/or special knowledge." Perhaps eventually it will be interpreted more narrowly than it seems to be written. But in the meantime, the optician or hygienist who is contemplating whether to have the relationship with you risks losing his or her livelihood should he or she guess wrong about what the law means.

5. More: The rule applies not just to relationships with clients, but also with any "key party", which includes "immediate family members and others who would be reasonably expected to play a significant role in the health care decisions of the patient or client and includes, but is not limited to, the spouse, domestic partner, sibling, parent, child, guardian and person authorized to make health care decisions of the patient or client."

Say you're a single doctor; you get to know your patient; and through the patient, you get to know the patient's sister, whom you find yourself romantically interested in. Can you ask her out (either while you're seeing the patient, or for two years afterwards)?

Well, if "who would be reasonably expected" applies only to "others," and not to "immediate family members," then immediate family members are off-limits to you, period, no matter whether they play a role in the patient's health care decisions.

But say even that "key party" includes only those immediate family members who would be reasonably expected to play a significant role in the patient's health care decisions. And say that the patient's sister is herself a doctor or a nurse. The patient's sister would surely be "reasonably expected to play a significant role in the health care decisions of the patient" — people routinely rely on medically trained family members' advice in making health care decisions.

So no dice with the patient's sister. You can't marry her. You can't have sex with her. You can't ask her on a date. You can't even say she looks nice (that's "[m]aking statements regarding the ... key party's ... appearance"). You can't do this while you treat the patient. You can't do it for two years afterwards. You can't do it even two years afterwards, if "[t]here is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship" (between you and the patient, or you and the sister? who knows?). And of course you can't transfer the patient to another caregiver so that the two-year clock starts ticking, since that would be "[t]erminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship."

6. While we're at it, if you run into one of your patient's at a party or some other function, make sure you never say that the patient looks nice, since that's "[m]aking [a] statement[] regarding the ... key party's ... appearance."

7. And if you're the professional involved, don't just worry that these rules will apply to you only if the patient (or the other "key party" involved) complains. No matter how good your relationship with the person you're seeing, no matter how nonacrimonious any possible breakup, no matter how carefully you make sure that you only date people who won't want to jeopardize your career, someone else may file the complaint — say, a jealous ex of one of the people involved, which is what happened in this Minnesota case — and you may get disciplined even if the allegedly wronged party is entirely on your side (in fact, is now your loving spouse).

8. Of course I know that medical relationships offer room for various kinds of abuses. In some situations, it may be proper to interfere with people's right to marry, and their sexual and romantic autonomy, in order to prevent those abuses. We can talk about psychotherapist-client (or -ex-client) relationships, or relationships between doctors and current patients, or other circumstances where the risk of subtle coercion or unprofessional behavior is especially high (which is to say materially higher than the risk of subtle coercion and other harms in any sexual relationship).

But the trouble here is that the rules go vastly further than these special situations, and vastly undervalue the countervailing reasons to limit regulation — people's right to choose whom to date, have sex with, and marry, even including their dental hygienists, opticians, and the like. So much for the right to marry; so much for sexual autonomy; so much for consenting adults deciding whom to love, without the fear of losing their livelihood.

Related Posts (on one page):

  1. The Right to Marry, and the Right to Sexual Autonomy, in Washington State:
  2. More on Sex Between Professionals and Their Former Clients:
  3. Sex and the Massage Therapist:


ABC News' Jan Crawford Greenburg haws launched her new blog, "Legalities," just in time to promote her new book on the Supreme Court. (LvHB) Maybe she'll blog about the precise date Justice Stevens plans to retire.


Supreme Court Grants Cert in Brendlin v. California: Wow, that was fast. Today the Supreme Court granted cert in Brendlin v. California, the Fourth Amendment traffic stop case that I blogged about two weeks ago.

  The timing of the grant is particularly interesting to me. The Court requested a response on Monday January 8th, and California filed its brief in opposition (BIO) on that Friday, just four days later. The Court distributed the case for today's conference and announced the grant this afternoon, just 11 days after requesting a response. If anyone has the BIO, can you send it to me? I'm curious if California conceded that it was a good grant.

  My prediction for the ultimate outcome: Brendlin will win unanimously, for the reasons mentioned in my earlier post and in the comment thread.

  In terms of the briefing, I'll be very interested to see what the SG's Office will do. Will they file an amicus brief on behalf of the state? They do that in most Fourth Amendment cases coming out of state courts, but this one is very odd; California's position is pretty hard to support, and DOJ probably has no problem with the contrary rule. Every federal circuit to have addressed the issue (6 or 7 circuits, I think) has ruled that stopping the car seizes the passenger. And this rule is fine for the government because under Whren, any traffic violation fully justifies the stop and resulting seizure. This means that the Brendlin issue only helps the government in the very rare case when an officer can't even come up with a traffic violation or other reasonable suspicion to justify the stop. I wonder, will the SG's office decide to stay out of this one? Stay tuned.

  UPDATE: In the comment thread, NYT Supreme Court reporter Linda Greenhouse fills us in on the state's argument:
  I have a non-electronic copy of California's BIO in Brendlin. The state did not acquiesce. Its summary of "reasons for denying the petition" is as follows: "The petition should be denied because, even if this court were to conclude that petitioner was seized within the meaning of the 4th Amendment by virtue of the traffic stop, the evidence obtained was not subject to suppression; thus resolution of the question presented in the petition would not lead to a change in the judgment." The state's point is that "there was no sufficient connection between that detention and the evidence obtained from his person and the vehicle." . . . "Although police would not have discovered the warrant for petitioner's arrest but for the contact following the traffic stop, the challenged evidence was the product of petitioner's arrest and not of that detention. As there is no claim the arrest was unlawful, the evidence is not connected to any illegality. The evidence was not subject to suppression."
  I can see why this argument didn't keep the Court away. The intermediate appellate court had in fact suppressed the evidence as an unlawful fruit, explicitly rejecting the state's argument now made in the BIO. See People v. Brendlin, 8 Cal.Rptr.3d 882 (Cal. App. 2004). Perhaps it's possible for California to relitigate this issue below if the U.S. Supreme Court reverses on the "seizure" question — I don't know the answer to that as a matter of state procedure — but such speculation seems a weak basis for arguing that this case presents a bad vehicle to resolve the issue.

O'Reilly on Colbert, Colbert on O'Reilly: See the segments via YouTube here (O'Reilly on Colbert) and here (Colbert on O'Reilly). Best line: Colbert's "If you're an act, what am I?"

  Hat tip: Raw story.

Correction Regarding Anisa Abd el Fattah and CAIR:

Yesterday, I erroneously reported that Anisa Abd el Fattah — the woman who filed a complaint with the Justice Department about supposed malfeasance by (among others) "the 'Jewish lobby'" — was a board member of CAIR, the Council on American Islamic Relations. It turns out that she is a former board member, not a current board member. My apologies to readers, and to CAIR and Anisa Abd el Fattah, for the error. I had posted an update at the start of the original post last night, but I thought I'd also post a full correction for those who won't have occasion to reread the post (see item 2 here.

My assertion in the original post relied on this page, which describes her as "a member of the Board of Directors for (CAIR), Council on American Islamic Relations." But I of course should have recognized that, even if the description was accurate, it could only be relied on to describe matters at the description was posted, which was (I now realize) in 2003. Both Anisa Abd el Fattah herself and Ibrahim Hooper of CAIR report that she is no longer a CAIR board of directors member.

The precise time that she was a board member is not clear. Both Anisa Abd el Fattah and Ibrahim Hooper report that she hasn't been one since 1995 or so, which would mean she was there at or near the founding (this speaker bio of Anisa Abd el Fattah reports that she was "a member of the founding Board of Directors for CAIR"). On the other hand, the Oct. 3, 2001 issue of The Hill reported that she "serves on the board of CAIR"; this page, from mid-2001 or later likewise reports her as a then-current CAIR board member.

Still, I suspect that it's often pretty easy to lose track of the precise status of a nonprofit organization's passive board member, and to recycle people's old bios that were never properly updated. Suffice it to say that she was a CAIR board member, but is not one any longer; my apologies for the mistake, and let that be a lesson to me to check closely the dates as of which certain things are claimed to be true.


PEER Overstates "Faith-based Park" Problem:

Public Employees for Environmental Responsibility (PEER) is "a national non-profit alliance of local, state and federal scientists, law enforcement officers, land managers and other professionals dedicated to upholding environmental laws and values." Among other things, PEER serves as the voice of government employees who object to "anti-environmental" policies and practices within government agencies.

One of PEER's campaigns is challenging "Faith-based Parks." Specifically, PEER is concerned that the Bush Administration has pushed the National Park Service to reject scientific analysis and explanations in an effort to cater to religious fundamentalists. Among other things, PEER claimed that the Bush Administration was pressuring NPS employees to accomodate creationist explanations of the Grand Canyon's history, and tell the public that the canyon in thousands, rather than millions, of years old. PEER claimed in a press release that:

Grand Canyon National Park is not permitted to give an official estimate of the geologic age of its principal feature, due to pressure from Bush administration appointees.
The charge is plausible -- after all, one administration employee sought to edit NASA's website so as to protect religious sensibilities -- and, if true, quite objectionable. The problem, as the Skeptic Society's Michael Shermer documents, PEER's central claim does not pan out. It is true that one of the books the NPS offers for sale at the Grand Canyon National Park's bookstore is a creationist account of the Canyon's history. Yet this book is sold in the "inspiration" section of the bookstore, along with Native American creation myths and other spiritual materials. It is not sold or represented as a scientific account, nor have NPS employees ever been instructed to give anything other than a scientific explanation for the Grand Canyon's age and history.

After extensively researching PEER's claims -- and forcing a partial retraction -- Shermer is understandably distraught (in part because he initially cited PEER's charge uncritically). Perhaps the NPS shouldn't sell the offending book in its book stores, but this is hardly proves PEER's initial claims. As Shermer explains, the controversy over selling creationist books "is an old one now, and completely irrelevant to the claim that NPS employees are withholding information about the age of the canyon, and/or are being pressured to do so by Bush administration appointees." PEER's claims to the contrary -- and protracted efforts to defend the charge and deflect Shermer's inquiries -- were an "egregious display of poor judgment and unethical behavior," Shermer concludes. In the end, it seems that PEER's hostility to the Bush Administration caused it to overstate the facts. There are enough examples of political manipulation of scientific claims without the need for PEER or others to invent new ones.


Asbestos Fraud by California Firm:

An Ohio court found that Brayton Purcell, a California plaintiffs' firm, submitted fraudulent asbestos claims and that partner Christopher Andreas, among other things, made statements to the court that "were patently false and could only have been designed to deceive this court and [defendant] Lorillard." As a consequence, Judge Harry Hanna has revoked their pro hac vice privileges in Cuyahoga County.


Government Tax Scofflaws:

Federal employees apparently owe some $2.8 billion in federal income taxes. Paul Caron at TaxProf reports that, measured in terms of the percentage of employees who are tax scofflaws, the worst agencies are the U.S. Commission on Civil Rights (9.43%), the Government Printing Office (7.41%), and the Smithsonian (5.56%). Also worth noting, apparently 4.85 percent of Tax Court employees are tax scofflaws as well.


Taiwan, Israel, and Hungary:

Today I appeared on the Amy Oliver Show, on KFKA in Greeley, Colorado. We discussed Taiwan's stuggle for self-determination; the half-hour MP3 is here.

Perhaps you've been wondering when you will be able to read a Hungarian translation of my Volokh Conspiracy post from the summer of 2006, UN an Accomplice in Hezbollah Kidnappings. I'm happy to announce that your waiting is over. The Hungarian translation is here; if you read Hungarian, then make sure to check out the rest of Vilmos Soti's interesting website.


More Support for the Anticipatory Warrant Theory: The latest news on the FISA Court's "innovative" approach to issuing FISA warrants seems to me to reinforce my guess that the FISA Court has begun issuing anticipatory warrants. The New York Times reports: " A Congressional official who has been briefed on the new procedures called it a hybrid of individual warrants and broader approval." And the Washington Post says that "Four other people who have been briefed on the program, who spoke on the condition of anonymity because the program is classified, described it as a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people." (Hat tip: JaO)

  This is exactly what you would expect with anticipatory warrants. In these circumstances, the FISC judges would have issued warrants authorizing DOJ to monitor in specific classes of cases in which the FISC judges believe probable cause will exist. In some cases, the trigger of the anticipatory warrant will be general, involving eavesdropping on a broadly defined group. In other cases, it will be very specific, making the warrant quite individualized. Thus the warrants will act as "hybrids" between traditional warrants and orders allowing more blanket monitoring.

Related Posts (on one page):

  1. More Support for the Anticipatory Warrant Theory:
  2. Is the FISA Court Issuing Anticipatory Warrants?:

Thursday, January 18, 2007

Review of "Black Americans and Organized Labor: A New History" by Paul Moreno

My review of this book has been published in the Independent Review. Here's an excerpt:

The intellectual and ideological follies of contemporary historical scholarship are especially prevalent in the field of labor history. Absurd Marxist paradigms flourish there. The vast majority of labor historians are completely innocent of any knowledge of modern economics, including labor economics, despite its obvious relevance to a coherent understanding of labor-management relations. Reading a typical labor history book requires the reader to ignore or “translate” a great deal of ideological claptrap, incoherent analysis, and tendentious interpretation to absorb whatever useful information the author has uncovered. Given the state of the field, Paul Moreno’s excellent Black Americans and Organized Labor: A New History comes as an especially welcome breath of fresh air.

Moreno tackles a very important and also very “hot” topic in U.S labor history— the often tumultuous relationship between African Americans and labor unions. Black Americans and Organized Labor is by far the most comprehensive, most coherent, and best-documented work on the subject. Moreno’s command of the relevant literature is outstanding, and his detective work in locating many obscure but important sources is impressive.

Even better, Moreno approaches the subject without the leftist ideological baggage that burdens most other writers in the field and with a good grasp of relevant economic concepts. In particular, he understands that contrary to illusory notions of innate worker solidarity, individual workers and groups of workers have widely varying economic interests. He holds no romantic or ideological illusions about labor unions; he understands that their basic economic goal is to create a labor cartel for their members’ benefit.

Another impressive feature of this book is that Moreno, unlike many historians, does not treat black workers and the black people more generally as passive bit players in a larger class conflict between “capital” and “lab or.” Nor, unlike many historians, does he pay disproportionate attention to the relatively few examples of racially egalitarian unions in the pre–New Deal period, which some historians use as purported exemplars of the true spirit of labor solidarity. Rather, he properly treats African Americans as striving as best they can to promote their individual and collective well-being in a hostile economic and social environment....

[Q]quibbles aside, Black Americans and Organized Labor is truly a major accomplishment, and I recommend it highly for readers with an interest in U.S. history. Though it is difficult to predict what will occur in the quirky and highly ideological left-wing world of labor history scholarship, Moreno’s book should quickly become the standard work on the relationship between blacks and labor unions.

Those interested in this general topic should also look at my Only One Place of Redress: African Americans Labor Regulations and the Courts from Reconstruction to the New Deal, and Ken Kersch's Constructing Civil Liberties.


The Consequentialist Case for Originalism:

Most arguments for originalism either claim that judges follow the original meaning of the Constitution because that's what the people "consented" to, or because doing so promotes democracy. Some originalists also claim that their methodology does a better job of constraining judges than do other approaches to constitutional interpretation. Although I am very sympathetic to originalism, I have never found any of these three claims persuasive. Even setting aside the fact that a high proportion of the people at the time did not and/or could not consent to the Constitution back in 1787-88 (women, most blacks, anti-Federalists, etc.), it is hard to see why the consent of long-dead ratifiers 200 years ago should bind us today. Democracy is also a problematic rationale for originalism, since adherence to the original meaning will sometimes require judges to strike down laws that have the support of political majorities. Finally,it may well be true that originalism constrains judges more than many other methodologies do. But if constraint is the main goal (which I don't believe to be true), it would be easy to come up with other decision rules that constrain even more. For example, judges would be most constrained if we, like Britain, simply did away with judicial review altogether.

In recent years, however, originalist scholars have sought to improve on these traditional arguments by trying to show that originalist methods of interpretation lead to better consequences than other methodologies. This short, but important new paper by John McGinnis and Michael Rappaport is a good summary of the emerging consequentialist case for originalism (also available here). Their key argument is that sticking to the original meaning of the Constitution is likely to have beneficial consequences because only that meaning was approved by a broad supermajority process (either the amemdment process or the ratification process of the original Constitution). The fact that the original meaning had to be agreed on by a broad consensus of both political elites and the general public makes it highly likely that it will benefit more people to a greater extent than any interpretive rule that judges are likely to come up with on their own. A rule that has the support of five or more of the nine Supreme Court justices is far less likely to have net beneficial consequences than one that has the support of the vast majority of the population.

McGinnis and Rappaport's case is compelling, but not without some potential weak points. To my mind, the biggest problem may be the fact that the US Constitution is so hard to amend through the formal amendment process that there is a real danger that we could be stuck with an original meaning that, although highly beneficial in its time, is dysfunctional today. A weaker objection is the fact that much of the Constitution was not ratified by as broad a supermajority as the McGinnis-Rappaport theory assumes. For example, as Bruce Ackerman has shown in a series of books, the crucial Reconstruction amendments were only ratified by the necessary three quarters of the states because several southern states were essentially coerced into ratifying by the federal government. For these and other reasons, I am not convinced that originalism should be the sole and exclusive method of constitutional interpretation. However, McGinnis and Rappaport's argument - along with similar ones by other scholars - does persuade me that there should at least be a strong presumption in favor of textualism and originalism that should be overridden only in very exceptional cases.

For those interested in further reading on this subject, I myself have made some arguments that overlap with McGinnis and Rappaport's in this recent critique of Justice Breyer's rejection of originalism. Yale Law Professor Akhil Amar - a prominent liberal originalist - has defended originalism on consequentialist grounds from a left of center perspective, most notably in his article "The Document and the Doctrine," 114 Harvard Law Review 26 (2000) (unfortunately, I don't think that Amar's important article is available on line, but if anyone sends me a link I'll be happy to post it).

UPDATE: Akhil Amar's article is available here.


Former Member of CAIR (Council on American Islamic Relations) Board Files Complaint with Justice Department About (Among Others) "the 'Jewish Lobby'":

[UPDATE: I originally called Anisa Abd el Fattah a member of the CAIR board, both in the title of the post and in the last paragraph; she was a member of the CAIR board, as the site I link to below noted, but is no longer a member. I've posted a separate correction above, but I've also updated the post below to label her as a former board member.]

Here's the complaint, which asks the Justice Department to "take the steps necessary to end" various "practices," apparently including "statements made that may reach the level of hate speech," "various organizations['] and individuals['] ... provid[ing] misleading and highly politicized information," and more. The complaint "especially alleges":

1. Jewish organizations and activists have created an “enemies” list that includes Muslims, Arabs and white nationalists’ organizations here in the US. This list is compromised of individuals and groups that are deemed threats or enemies of the State of Israel.

2. These organizations have used their financial resources and also their formidable political influence to purposefully poison public opinion against Muslims, Arabs, and Islam in an attempt to demonize and vilify the same for political purposes, and to create an environment conducive to the deprivation of and denial of Muslim and Arab constitutional rights and repression of religious freedoms in respect to Islam.

Presumably these are "practices" that the Justice Department is likewise asked to "take the steps necessary to end." The complaint also alleges some actual crimes — supposed perjury — but the material that is "especially allege[d]," even if it were factually entirely true, would of course remain entirely constitutionally protected, and beyond the Justice Department's reach.

The author, Anisa Abd el Fattah, is writing on behalf of the "National Association of Muslim American Women"; I have no reason to think that this group has any magnitude or influence, but Anisa Abd el Fattah does appear to have in the past been "a member of the Board of Directors for (CAIR), Council on American Islamic Relations, and to be involved as leader and speaker with various other organizations. (If she were just a lone voice, I probably wouldn't have noted her solo letter, but given that she has at least some prominence in certain circles, the letter struck me as newsworthy.)

Related Posts (on one page):

  1. A Heartwarming Tale of People Coming Together:
  2. Anisa Abd el Fattah on the First Amendment:
  3. Anisa Abd el Fattah Responds:
  4. Correction Regarding Anisa Abd el Fattah and CAIR:
  5. Former Member of CAIR (Council on American Islamic Relations) Board Files Complaint with Justice Department About (Among Others) "the 'Jewish Lobby'":

Azerbaijani Journalists Being Prosecuted (and Being Targeted With an Iranian Ayatollah's Fatwa)

for Publishing Article Critical of Islam and (Possibly) Mohammed: An article by the Committee to Protect Journalists, on the Today.Az site reports,

Editor-in-Chief Samir Sadagatoglu and reporter Rafiq Tagi of the independent newspaper Senet were arrested on November 15, after publishing an article that alleged Islam's influence was hindering Azerbaijan's economic and political development. The Nasimi District Court initially ordered that Sadagatoglu and Tagi be kept in pretrial detention for two months with a trial expected to begin in mid-January, according to international press reports.

But on Thursday, Nasimi District Court Judge Gulnar Tagizade extended the pretrial detention for another two months, according to CPJ sources and local press reports....

The journalists are charged with inciting national, ethnic, or religious hatred under Article 283 of the penal code, which could bring up to five years in prison upon conviction, according to international press reports.

Tagi's article provoked outrage among hard-line Islamists in Azerbaijan and Iran, who called for the journalists to be executed, according to local press reports. Grand Ayatollah Mohammed Fazel Lankarani, one of Iran's most senior clerics, issued a fatwa calling for the deaths of the two journalists. After the article was published, Tagi and his family were placed under police protection, according to local press reports....

An International Herald Tribune last month reported similarly on earlier phases of the story (so did the New York Times, but that story is now behind a pay wall). According to the Tribune story, "The article blamed Islam for Azerbaijan's meager development and likened the Prophet Muhammad to a used handkerchief," but other news sources also cast doubt on whether the article in fact insulted Mohammed, or just blamed Islam for Azerbaijan's backwardness.

The Chairman of the Islamic Party of Azerbaijan has demanded that the law "punish these provocateurs severely" (full interview available here; it seems to be the same text as what I found in the BBC Monitoring Trans Caucucus file on NEXIS). The Iranian ayatollah's death sentence is available in English on the cleric's own site. The ayatollah is the same one who responded to the Pope's recent quotes of criticisms of Islam by saying that "We can easily prove for [the Pope] that Islam is the religion of peace and mercy." Okay then.

Can anyone, by the way, point me to a copy of the article, apparently titled Europe and We and published in the Sanat newspaper? I'd naturally prefer it in English or Russian, but if I get an Azeri copy I should be able to get it translated.


Never Mind the Volokhs:

Here's a long-belated link to Blawg Review. Why haven't any of us linked to it before? I dunno. (Another relevant question, why hasn't the VC ever hosted the Blawgreview?)

Al Gore Won't Debate:

The Wall $treet Journal has an interesting subscribers-only op-ed by Jyllands-Posten culture editor Fleming Rose and Bjorn Lomborg on Al Gore's unwillingness to debate or take tough interview questions on his movie and book, An Inconvenient Truth. As Rose and Lomborg tell it, Jyllands-Posten, the Denmark's largest newspaper, had an interview scheduled with Gore to conicide with his visit to the country. The paper also planned to include Lomborg as a counterpoint in the interview, but it was not to be.

The interview had been scheduled for months. Mr. Gore's agent yesterday thought Gore-meets-Lomborg would be great. Yet an hour later, he came back to tell us that Bjorn Lomborg should be excluded from the interview because he's been very critical of Mr. Gore's message about global warming and has questioned Mr. Gore's evenhandedness. According to the agent, Mr. Gore only wanted to have questions about his book and documentary, and only asked by a reporter. These conditions were immediately accepted by Jyllands-Posten. Yet an hour later we received an email from the agent saying that the interview was now cancelled. What happened?

One can only speculate. But if we are to follow Mr. Gore's suggestions of radically changing our way of life, the costs are not trivial. If we slowly change our greenhouse gas emissions over the coming century, the U.N. actually estimates that we will live in a warmer but immensely richer world. However, the U.N. Climate Panel suggests that if we follow Al Gore's path down toward an environmentally obsessed society, it will have big consequences for the world, not least its poor. In the year 2100, Mr. Gore will have left the average person 30% poorer, and thus less able to handle many of the problems we will face, climate change or no climate change.

The article goes on to note that many of Gore specific claims are either based on extremely unlikely scenarios, or misrepresentations of the available evidence. For example, Gore shows sea-level rise scenarios far in excess of UN projections, makes claims about malaria that are contradicted by the historical record, and only discusses the health harms of higher temperatures without considering the benefits.
Al Gore is on a mission. If he has his way, we could end up choosing a future, based on dubious claims, that could cost us, according to a U.N. estimate, $553 trillion over this century. Getting answers to hard questions is not an unreasonable expectation before we take his project seriously. It is crucial that we make the right decisions posed by the challenge of global warming. These are best achieved through open debate, and we invite him to take the time to answer our questions: We are ready to interview you any time, Mr. Gore — and anywhere.
Unfortunately, Gore is not the only one running around promoting climate scenarios based upon questionable assumptions or otherwise at odds with the avaiable evidence. Another example is the infamous Stern report. For a good summary of why the Stern report does not provide an accuarate or even-handed assessment of the costs and benefits of greenhouse gas emission reductions, see this article by Robert Mendelsohn of the Yale School of Forestry and Environmental Studies. Mendelsohn points out that the problem is not just Stern's questionable approach to discounting, but also other assumptions embedded in his analysis that skew his results.

I should also add that those who claim that there is no "proof" of global warming are also engaged in a bit of sleight of hand. Of course there are uncertainties — but that hardly makes climate change different than other environmental concerns (or other subjects of scientific inquiry).

As regular VC readers already know, I believe the preponderance of scientific evidence supports the theory that human activities are producing an enhanced greenhouse effect that is altering the earth's climate, and is likely to produce significant (albeit not catastrophic) warming over the next century. In other words, I accept the basic scientific findings of the U.N. Intergovernental Panel on Climate, but remain dubious of some of the model projections, particularly those based on highly questionable assumptions about future trends in population, economic growth, and energy use.

The fact is that the vast majority of the available evidence conforms with our general understanding of the how the climate system works and how it is likely to respnd to increases in greenhouse gas concentrations. There are debates and disputes about specific questions, ranging from the extent and nature of various feedback mechanisms, the relative contribution of certain exogenous factors, and how climate changes will affect other global trends such as sea-level rise, but this does not mean climate change is a made up concern. Uncertainty is a fact of life. It is one thing to note uncertainties when the stakes are high — as they certainly are on all sides of the climate policy debate — quite another to exaggerate uncertainties when politically convenient. I genuinely fear many of the governmental policies climate fears may be used to justify, but it would be disingenuous for me to respond by denying the real threats posed by climate change. I wish more of my political or ideological "allies" felt the same way.

The issue to me is not whether human activities are affecting the climate system (it is almost certain they are). Nor is it whether there should be a policy response — I think there should be, even if it means measures that are otherwise in tension with my fairly libertarian views of government. Rather, the issues are how we assess a risk of this magnitude and how we develop policy responses when the costs of climate policy rival those of climate change itself. Neither apocalyptic environental claims, such as those put forward by Gore, nor ideologically convenient denial of the evidence, does much to advance this debate.

Related Posts (on one page):

  1. Al Gore Won't Debate:
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Cancer Deaths Drop Again:

The American Cancer Society reports that total cancer deaths in the United States have declined for the second straight year. This is singificant because, while cancer death rates have been declining for some time, the number of cancer deaths had continued to climb. No more. As the New York Times reports:

The number of cancer deaths in the United States has dropped for the second year in a row, the American Cancer Society reported yesterday. The finding suggests that the small drop reported last year — the first in more than 70 years — was real, possibly the start of a continuing decrease and not merely a statistical fluke, researchers said.

Much of the decrease is due to smoking cessation and improved detection and treatment of colorectal, breast and prostate cancers. . . .

The death rate from cancer has been falling by slightly less than 1 percent a year since 1991, but until 2003 the actual number of deaths kept rising because the population was growing and aging. Then, in 2003, the cumulative drop in death rates finally became large enough to outpace aging and population growth.

“The decline in the cancer death rates, which has ultimately resulted in a decline in the total number of deaths, really reflects the years of effort and investment in tobacco control, programs for early detection and screening, and programs in clinical and basic research,” Dr. Ward said. “We’ve made a great deal of progress, but we still have a long way to go.”

One great concern, Dr. Ward said, is that African-Americans have markedly higher death rates than whites from nearly every type of cancer. Researchers do not fully understand why. Having less income, education and access to health care account for much of the difference, but not all of it, researchers say.

The Washington Post also covers the story here.

In potentially unrelated news, a new study concludes that the average nicotine level in cigarettes increased from 1997 to 2005.

UPDATE: A commenter wonders why the average cigarette level is potentially relevant to this story given the lag between smoking. Simple. Insofar as cancer incidence and mortality trends are influenced by trends in tobacco use -- and they clearly are -- a change in cigarette nicotine levels could influence smoking rates, and this could affect future trends in cancer incidence and mortality, and have an effect on whether the current positive trends continue.


Antitrust and Competition Policy Blog:

The newly renamed Antitrust and Competition Policy Blog has lots of interesting posts by my college classmate and University of Wisconsin visiting fellow Danny Sokol, an expert on international trade and antitrust law. Much of his work deals with competition policy in Europe, Latin America, and developing countries.

I'm all in favor of competition, including competition between blogs. Whether antitrust law is a good way to promote competition is a question I'll leave to experts like Danny.

Is the FISA Court Issuing Anticipatory Warrants?: Justice Department officials gave a background briefing on the new FISA Court/NSA arrangement that provides lots of clues about what is happening. Here are the key excerpts from the transcript of the briefing:
  I really can't get into the particulars of the orders, but just like any orders from the FISA court, they're for a period of time. These are orders for 90 days. There's more than one order. . . .
  I will say that these are not -- these orders are not some sort of advisory opinion ruling on the program as a whole. These are orders that comply with the terms and requirements of the FISA statute, just like other orders issued by the FISA court.
  I will say, however, that the orders we're talking about here are not some cookie cutter order where you can just take a book down off the shelf with a model application and slap it together and file it with the court.
  These orders are complex. It took a long time to work on them. People have been working very hard on this for almost two years actually, and it has just now been approved a week ago by the judge of the FISA court. . . .
  I will say that these are complex orders, that the approach taken in the orders is innovative, as indicated in the Attorney General's letter. And I think beyond that, I'm not going to get into specifics.
  These orders, however, are orders that have taken a long time to put together, to work on. They're orders that take advantage of use of the use of the FISA statute and developments in the law. I can't really get into developments in the law before the FISA court.
  [The speed of the new process] certainly was a critical and necessary in determining whether this was an alternative that was available that continued to protect national security and achieve the objectives that we're achieving. So, regardless of what happened, that was a critical requirement, and the President and the DNI needed to be satisfied that there wouldn't be any significant operational impact, continue to do everything we needed to do.
  [L]et me just say that when a FISA judge approves a FISA application, at the time he approves the FISA application, he needs to make the determination of probable cause as provided for in the statute. That determination is made, and that's, like any FISA application, those requirements need to be made.
  I'm not going to discuss precise modifications. Obviously the details of the program were never publicly discussed. The general contours of the program were, and as the letter from the Attorney General explains, the general contours under these orders allow us to do the same thing and to target the same types of communications. And critically the determination was made that operating under the orders that we've obtained here provides the speed and agility necessary to effectively conduct that surveillance in a way that will protect -- there's no compromise in national security.
  [The recent change in the law that helped facilitate this change is not] a [FISA] Court of review decision. . . . [W]e take full advantage of all the relevant case law. That includes our own approach to the statute. That includes rulings from the FISA Court. That includes significant precedents from the FISA Court, other related things. But I'm obviously not in a position to discuss every significant ruling that deals with FISA.
  What's going on? As with everything about this program, we can't be sure; we don't know the facts, so we're stuck with making barely-educated guesses. But it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants. The traditional warrant process requires the government to write up the facts in an application and let the judge decide whether those facts amount to probable cause. If you were looking for a way to speed up that process — and both sides were in a mood to be "innovative" — one fairly straightfoward alternative would be to use anticipatory warrants.

  An anticipatory warrant lets the government conduct surveillance when a specific set of triggering facts occurs. The judge agrees ahead of time that if those facts occur, probable cause will exist and the monitoring can occur under the warrant. The idea is that there isn't enough time to get a warrant right at that second, so the warrant can be "pre-approved" by the Judge and used by the government when the triggering event happens.

  I don't know if this theory is right, of course. But it seems to be consistent with the clues in the DOJ briefing. Why are these orders taking a lot of time to obtain? If my theory is right, it's because the triggering facts that amount to probable cause in a terrorism investigation presumably are complicated. There are cookie-cutter drug cases, but I gather there aren't any cookie-cutter terrorism cases. It probably takes a lot of negotiation with the FISA court judges to figure out what different sets of facts they'll accept as triggering events that satisfy probable cause. Plus, the Court might have required review every 90 days instead of the one-year max allowed under FISA because the FISA court judges would want to know if their trigger is working out in its application.

  What's the mystery legal development that helped make this possible? If my guesses are on the right track, it's probably the Supreme Court's decision in United States v. Grubbs, which was handed down on March 21, 2006. The Grubbs case is the first Supreme Court decision approving the use of anticipatory warrants.

  Anyway, that's my best guess right now. It's not a perfect fit with all of the clues, but seems pretty close. Your thoughts?

Related Posts (on one page):

  1. More Support for the Anticipatory Warrant Theory:
  2. Is the FISA Court Issuing Anticipatory Warrants?:

Wednesday, January 17, 2007

Be Careful Believing Your Own Metaphors:

I've cautioned students against using metaphors; though they make writing more vivid, and sometimes more persuasive, they often obscure more than they reveal. Part of the problem is that they are literally false -- if they were true, they wouldn't be metaphors. Sometimes the literal falsehood reveals a deeper truth, but sometimes it's just plain false.

A case in point, from the debate over organ markets: I've often run into the argument that "We don't let prostitutes sell their bodies, so we shouldn't let people sell body parts." (For a print example, see Margaret Engel, Va. Doctor Plans Company to Arrange Sale of Human Kidneys, Wash. Post, Sept. 19, 1983, A9, quoting then-Representative Al Gore.) Sounds logical, no?

Except that "selling your body" is a metaphor. Prostitution doesn't actually involve sale of the body as a good. Rather, it involves the sale of services that use the body.

No problem, some might say; that's obviously implied by the phrase. But if we replace the literally false phrase with the literally accurate one -- "We don't let prostitutes sell services that use their bodies, so we shouldn't let people sell body parts" -- we notice something wrong with the argument: Prostitution is actually the exception rather than the rule when it comes to selling services using one's body. We often let people sell services that use their bodies; consider, among many others, people who work as furniture movers, nonsexual masseurs, non-sexual models, or professional athletes.

Of course, now that we're replacing false descriptions with accurate ones, we can clarify things further in a way that properly describes what's going on with bans on prostitution: "We don't let prostitutes sell sexual services, so we shouldn't let people sell body parts."

But once we've clarified things, we see that the analogy is entirely inapt: The problem with prostitution has little to do with commercialization of the body as such, and everything to do with commercialization of a specific kind of bodily services (sexual services). This is why being paid to use one’s hands to massage someone’s back is legal even though being paid to use the same hands to massage someone’s genitals is a crime. And commercialization of sexual services has nothing at all to do with organ transplants.

Now of course this doesn't rebut the various other arguments against compensation for organs (though I've tried to rebut them in other posts, linked to below). But it does, I think, rebut this argument. And it illustrates the importance of (1) looking beyond the metaphors to the reality that they supposedly portray, and (2) using metaphors only when one has assured oneself that the metaphor (despite its literal falsehood) sufficiently matches the reality.


Did A FISA Judge Approve the Entire TSP? [IMPORTANT UPDATE: In light of the latest news, I no longer think this is happening. See my latest post above.] I'm not entirely sure I know what to make of Attorney General Gonzales's letter today about the NSA surveillance program, but I wonder if I'm quirky in reading it possibly to mean that DOJ found a judge who was willing to approve the entire TSP program under FISA. Here's what the letter says:
a judge of the Foreign Intelligence Surveillance court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the [FISC].
The letter also says that as a result of this development, the President no longer needs to and will not reauthorize the Terrorist Surveillance Program.

  The Washington Post adds:
  In a background briefing with reporters, Justice officials declined to provide details about how the new program will work — including whether the surveillance court has issued a blanket order covering all similar cases or whether it will issue individual orders on a case-by-case basis. Authorities also refused to say how many court orders are involved.
  The officials said the new approach will offer the same benefits of the NSA program, along with the advantage of judicial oversight.
  "There is no compromise to national security," one of the Justice officials said. "The objectives of the program haven't changed, and the capabilities of the intelligence agency to operate such a program haven't changed as a result of these orders."
  If this does involve a blanket order approving the entire program, it would seem to be a very clever move by DOJ. It would achieve four things, as I see it. First, it would make the TSP program very difficult to challenge. I gather no one would have standing to appeal the FISC order to the FISA Court of Review; even if the FISC order is unlawful, it's unclear as a procedural matter how it could be challenged. Second, it might moot the pending NSA litigation, or at least render any opinion in that case of very limited consequence. Third, it puts the Administration in the position of having obtained a court order, so that even if the order is unlawful it's "the judge's decision" rather than the Executive's. And fourth, it might help persuade the press to focus elsewhere; the press would be sure to present this as a concession to the Administration's critics (as the N.Y. Times did today), and the press is likely to be much less interested after they think the Administration has backed down.

  Of course, whether this is true depends on whether the Administration obtained some kind of blanket order or plans to get orders on a case-by-case basis. And it's unclear when or if we'll know which occurred.

  UPDATE: Some readers suggest that the language that "the Terrorist Surveillance Program will now be conducted subject to the approval of the [FISC]" suggests that there will be case-by-case approval. I don't think that's right. FISA orders do not run indefinitely: FISA orders can be good for up to one year, and must be reapproved after a year. As a a result, the statement that the program will now be "subject to approval" by the FISA Court might just mean that in one year DOJ will go back to the same judge and get him to issue the order again.

JLEP Symposium on Insider Trading:

The George Mason Journal of Law, Economics, and Policy has a splendid symposium coming up on January 27, "Perspectives on Insider Trading." The symposium commemorates the 40th Anniversary of the publication of Henry Manne's book, "Insider Trading and the Stock Market." In addition to Henry, participants include Jonathan Macey, Fred McChesney, David Haddock, and others. The program will be at George Mason Law School and the papers will be published in the journal.

The full program and registration information is available here.

Also, for those who can't attend, the talks will be available downloading later as a podcast. Earlier JLEP programs are also available as podcasts. I'm the faculty advisor to the journal and I've been quite impressed at the number of podcasts downloads of prior programs there have been.


More on Ninth Circuit Decision Upholding $100,000+ Fourth Amendment Damages Award Against Police Officers:

I blogged about this case (written by my former boss Judge Kozinski) in November, when the Ninth Circuit ordered the defendants to "show cause ... why they should not be assessed double costs and attorney's fees for filing a frivolous appeal."

The defendants (represented by the City Attorney's office) responded; yesterday the Ninth Circuit issued a follow-up opinion rejecting their explanation, and faulting them for misrepresenting portions of the record. Memo to lawyers: Be sure your descriptions of the facts in the case are completely accurate; as an ethical matter, you should always do this, but as a practical matter, you should be especially sure to do it if the court has already expressed some skepticism about your professional judgment.

The Tacoma News-Tribune, by the way, reports that "City Manager Eric Anderson ... Anderson said he’ll hire an independent counsel to study whether the city attorney’s staff acted properly within the scope of their duties in the case."

UPDATE: A reader kindly passed along the link to the original November opinion, which I couldn't find before.

Related Posts (on one page):

  1. More on Ninth Circuit Decision Upholding $100,000+ Fourth Amendment Damages Award Against Police Officers:
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Constitution Party Urges Repeal of 17th Amendment:

I just learned that the Constitution Party has endorsed the repeal of the 17th Amendment as part of its party platform.

Ok, its not much, and I don't know much else about the Constitution Party, but at least there are few other people on my very small bandwagon.


Since I had blogged on this before, I didn't mention my longstanding interest in this this issue, but I noted from the Comments that we have some new readers (which I should have anticipated, of course). I've laid out my views on this in two law review articles here and here.

For those looking for a shorter journalistic read on the issue, two very accessible and useful op-ed surveys of the issue (and my discussion of it) have been provided over the years by Bruce Bartlett and John Dean.

Also, just to make clear--I know very little about the Constitution Party so I can't say much other than that based on a glance at their overall platform they don't seem like my particular cup of tea (other than their position on the 17th Amendment).


FISA Court to Become Involved in NSA Surveillance Program?: Just a weeks away from some important developments in the NSA surveillance litigation — oral argument in the Sixth Circuit is at the end of the month, and Judge Lynch's opinion in the SDNY should be coming down soon — the Administration has just announced some changes. It's not clear to me exactly what the changes are, but here is what the AP is saying:
  The Justice Department, easing a Bush administration policy, said Wednesday it has decided to give an independent body authority to monitor the government's controversial domestic spying program.
  In a letter to the leaders of the Senate Judiciary Committee, Attorney General Alberto Gonzales said this authority has been given to the Foreign Intelligence Surveillance Court and that it already has approved one request for monitoring the communications of a person believed to be linked to al-Qaida or an associated terror group.
  The court orders approving collection of international communications — whether it originates in the United States or abroad — was issued Jan. 10, according to the two-page letter to Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa.
  "As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," Gonzales wrote in the letter, a copy of which was obtained by The Associated Press.
  "Accordingly, under these circumstances, the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," the attorney general wrote.
  It's not entirely clear to me what this means, but then I haven't seen the letter. If anyone has a copy of the letter, please send it on or add a link in the comment thread.

Dems Missing Opportunity on Energy:

The Cato Institute's Jerry Taylor and Peter Van Doren are all in favor of eliminating energy subsidies. By that measure, they find the House Democrats' 100-hour energy legislation -- H.R. 6, the Creating Long-Term Energy Alternatives for the Nation Act (aka the "CLEAN Energy Act") -- to be quite a disappointment.

The Republican abandonment of economic principle and subsequent love affair with K Street lobbyists gave the Democrats a wonderful opportunity to launch a politically winning total war on corporate welfare. Pity that they don’t seem interested in taking advantage of it.


Call the FCC? - Update:

It appears that some viewers were upset with a Fox cameraman's focus on a particular t-shirt during the Philadelphia Eagles-New Orleans Saints game last week -- and not because they were Eagles fans. The American Family Association is asking its members to file complaints with the FCC. Stay tuned.

Related Posts (on one page):

  1. Call the FCC? - Update:
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Two More Habeas Cases Split Sixth:

I don't follow other circuit courts of appeal closely enough to know for sure whether the U. S. Court of Appeals for the Sixth Circuit is particularly divided over the handling of habeas corpus petitions, but it sure seems that way. The latest evidence is two opinions issued by two different divided panels yesterday.

In Van v. Jones, a panel addressed the question of first impression whether a Michigan defendant's consolidation hearing is a "critical stage" of the criminal proceedings against him, such that the absence of counsel requires the issuance of a writ of habeas corpus. Chief Judge Danny Boggs, writing for the majority, answered the question in the negative, after an extensive review of the "critical stage doctrine" and how it could apply to a consolidation hearing.

It is settled that a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice for harmless error. . . . But what is a critical stage?

If the consolidation hearing was a critical stage because Van's counsel was entirely absent, there is no need to make a showing of prejudice. Whether it was a critical stage depends on whether there was a reasonable probability that Van's case could suffer significant consequences from his total denial of counsel at this stage Perhaps the best way of reaching an answer to that query is to ask whether Van had any opportunity, subsequent to the consolidation hearing, to recover or exercise whatever privilege he lost at the hearing.

Here, it seems that the balance tips on the side of this being a procedural step where counsel's absence would, as a structural matter, be unlikely to be necessary to prevent incurable prejudice. This is not to say, however that counsel's action in not appearing for a noticed hearing on the motion to consolidate was professional or excusable, nor that, in an appropriate case, a claim for ineffective assistance of counsel might succeed. However, Van's claim here is not couched in terms of ineffective assistance of counsel, nor, on this record, is it likely that he could demonstrate prejudice.

Judge Cook wrote a concurring opinion noting that "in the abstract, consolidation surely could expose a defendant to a risk of prejudice," but that such prejudice was not possible in this case because, "under Michigan law, Van could not have avoided consolidation."

Judge Moore dissented, arguing that "a defendant who is unrepresented by counsel at a consolidation hearing is exposed to a serious risk of prejudice." Judge Moore noted that, because "joint trials are often favored at law," counsel is necessary to counterbalance a trial judge's potential tendency to favor consolidation. Thus, Moore would have held that a consolidation hearing is always a critical stage of the pretrial process, and the absence of counsel at such a hearing is per se reversible error.

In Benge v. Johnson, the court considered Michael Benge's habeas petition challenging his conviction and death sentence for aggravated murder and aggravated robbery. The panel easily disposed of six of Benge's claims, but divided on the seventh, "whether a jury instruction incorrectly precluded the jury from considering the affirmative defense of voluntary manslaughter."

Judge Gilman, joined by Judge Rogers, rejected Benge's claim.

In attempting to excuse his procedural default, Benge must demonstrate “that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner’s case.” [citation omitted]. Because we conclude that Benge has failed to show the actual prejudice necessary to excuse his procedural default, we will assume without deciding that the district court correctly determined that the first prong of Strickland was satisfied. . . .

The dissent correctly notes that the erroneous jury instruction effectively foreclosed the possibility that the jury could have found Benge guilty of the robbery but not guilty of the murder. We also recognize, as the dissent emphasizes and as the district court itself acknowledged, that “[a] conviction for aggravated robbery does not as a matter of law preclude an affirmative defense of provocation with regard to a related murder charge.” . . But the dissent fails to persuade us that there is a reasonable probability that a properly instructed jury would have concluded that Benge met this affirmative burden. . . .

What Benge could have done, however, is irrelevant at this stage in the proceedings. We must be able to say that a reasonable probability exists that a properly instructed jury would have concluded that Benge had shown provocation by a preponderance of the evidence. Given that Benge’s provocation defense rested almost exclusively on his own extremely dubious and at times inconsistent testimony, we are unable to so conclude.

Judge Martin dissented.
Although I agree with the bulk of the majority’s analysis, I believe that Benge has presented one meritorious claim that should entitle him to a writ of habeas corpus. When Benge’s attorney failed to object to the jury instructions regarding the lesser included offense of voluntary manslaughter, resulting in a jury charge that the Ohio Supreme Court later acknowledged was erroneous, he failed to provide Benge effective assistance of counsel. Because I believe a habeas writ should issue regarding that claim under Strickland v. Washington, 466 U.S. 668 (1984), I respectfully dissent.

UPDATE: Decision of the Day also profiles these two cases here. (Also note that DotD has a new address.)


Wright on "Libertarian Paternalism":

GMU law professor Joshua Wright takes sides in the Posner-Becker dialogue over libertarian paternalism.

It is not enough to justify paternalistic intervention (soft, hard, libertarian, or otherwise) simply to show that consumers make mistakes. The burden of proof is to demonstrate that the government can make better choices for the individual than can the individual. In accounting for the long run costs of paternalism, we must also be mindful of dynamic effects that are likely to follow from paternalistic decision-making before intervening.


Texas Takes on Louis' Lunch:

According to this story, some Texas lawmaker is trying to rewrite the history of the hamburger. Texas State Represenative Betty Brown is offering a resolution claiming the hamburger was invented in Athens, Texas. In reality, however, the hamburger was invented around 1900 in New Haven, Connecticut, at Louis' Lunch. How do I know? Because the guy at Louis' Lunch told me.


Stimson Apologizes:

In a letter to the editor, published in today's Washington Post, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimon aplogizes for his remarks last week:

During a radio interview last week, I brought up the topic of pro bono work and habeas corpus representation of detainees in Guantanamo Bay, Cuba. Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not.

I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel. I support pro bono work, as I said in the interview. I was a criminal defense attorney in two of my three tours in the Navy Judge Advocate General's Corps. I zealously represented unpopular clients -- people charged with crimes that did not make them, or their attorneys, popular in the military. I believe that our justice system requires vigorous representation.

I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs.

For news coverage of the apology, see these stories from Reuters and the Post.


Ten Best:

Here, according to an email I received from the NY Times, are the 10 "most read" articles in 2006:
1) What Shamu Taught Me About a Happy Marriage
2) The 10 Best Books of 2006
3) Questions Couples Should Ask (Or Wish They Had) Before Marrying
4) Climate Expert Says NASA Tried to Silence Him
5) Colliding With Death at 37,000 Feet, and Living
6) What Is the Best Work of American Fiction of the Last 25 Years?
7) Lure of Great Wealth Affects Career Choices
8) Yankee Dies in Plane Crash, Official Says
9) A Face Is Exposed for AOL Searcher No. 4417749
10) A Ring Tone Meant to Fall on Deaf Ears

Damned if I can make sense of it . . . Of course, maybe there's just no sense to be made. It does strike me as interesting that two of the articles were about books -- and "Lure of Great Wealth Affects Career Choices" surely is one of the funniest "Man Bites Dog" headlines of the year, if not of all time. It should be chiseled in stone at the entrance to, say, the Goldman Sachs HR office, or the Harvard Business School.


Defending Detainees in WWII:

Eric Muller has an interesting post on Is that Legal? on the representation of Japanese detainees in World War II. It provides some interesting historical perspective on the Stimson flap. Notes Muller, "In World War II, the federal government and the American Bar Association explicitly called on American attorneys to undertake the legal representation of internees of Japanese ancestry -- citizens and aliens alike."


Taiwan Democracy and China Trade:

I spent last week in Taiwan, as part of an academic group visit arranged by the Ministry of Foreign Affairs. We met with a variety of government and non-government officials, and heard a diverse range of perspectives on the national security and international relations issues facing Taiwan. In a new podcast from the Independence Institute's, I discuss some of my thoughts on the relationship between Taiwanese and American national security.


Tuesday, January 16, 2007

Model Penal Code, Take 2: Eeeks, let me try that again. It turns out that I accidentally turned off comments on my post seeking feedback from students about the need for a guide to the MPC. Not very helpful, eh? Anyway, feel free to leave a comment here or in the post below; I have just opened up the comments there.

Incidentally, here is an edited version of the comments I received by e-mail after my initial post (with names removed):
1. As a recent law school grad, I could totally benefit from it. Why a book? Why not start a wiki and let a lot of people collaborate?

2. I took Criminal Law last spring and we did a fair amount with the Model Penal code. The book we used was not particularly good in any respect, but I didn't see any particular challenge to learning to work with the MPC. What worked for me was just digging in and closely parsing the statutory language, word by word.

3. I used a book in crim law that was about the equivalent ( and it was fantastic. I don't know of another book, and I imagine there are ways it could be improved.

4. That would be a great book to have, and one I'd add to my shelf.

5. Like the Restatements, they’re rather self-explanatory, in my opinion.

6. I think an MPC supplement would be a great idea. Reading the MPC is fine- having it explained (with examples and notes of the oddities) would be superior.

The Right of Publicity, the First Amendment, and Copyright Law:

I'll be talking about all these subjects next Thursday, January 25, from 5 pm to 6:15 pm at the University of San Francisco School of Law. The public is welcome to the lecture, and to the reception which will follow. The lecture will be in room 101 of Kendrick Hall Rotunda; I'm told that Kendrick is on the corner of Shrader and Fulton, directly across the street from St. Ignatius Church. The right of publicity / First Amendment parts of the talk will cover some of the ground touched on in my article on the freedom of speech and the right of publicity and my brief in the Tony Twist right of publicity case.

Come by the lecture if you can, and say hello if you'd like.


Anne Applebaum on the The War on Drugs vs. the War on Terror:

Washington Post columnist Anne Applebaum has an excellent column on the contradiction between the War on Drugs and the War on Terror in Afghanistan. As I have explained time and again (see here, here, and here), our efforts to eradicate poppy production in Afghanistan are driving many Afghan peasants into the arms of the Taliban, and also enable the Taliban to finance itself through the black market drug trade.

Applebaum makes several related points, and also points out that the strategy of legalizing poppy production in order to help curb terrorism was successfully pursued in Turkey, ironically with US support. An excerpt:

Just like Afghanistan, Turkey had a long tradition of poppy cultivation. Just like Afghanistan, Turkey worried that poppy eradication could "bring down the government." Just like Afghanistan, Turkey — this was the era of "Midnight Express"-- was identified as the main source of the heroin sold in the West. Just like in Afghanistan, a ban was tried, and it failed.

As a result, in 1974 the Turks, with American and U.N. support, tried a different tactic. They began licensing poppy cultivation for the purpose of producing morphine, codeine and other legal opiates. Legal factories were built to replace the illegal ones. Farmers registered to grow poppies, and they paid taxes. You wouldn't necessarily know this from the latest White House drug strategy report-- which devotes several pages to Afghanistan but doesn't mention Turkey — but the U.S. government still supports the Turkish program, even requiring U.S. drug companies to purchase 80 percent of what the legal documents euphemistically refer to as "narcotic raw materials" from the two traditional producers, Turkey and India.

Why not add Afghanistan to this list? ..... [E]ven if the program succeeds in stopping only half of the [illegal] drug trade, a huge chunk of Afghanistan's economy will still emerge from the gray market; the power of the drug barons will be reduced; and, most important, Western money will have been visibly spent helping Afghan farmers survive, instead of destroying their livelihoods. The director of the Senlis Council, a group that studies the drug problem in Afghanistan, told me he reckons that the best way to "ensure more Western soldiers get killed" is to expand poppy eradication.

As they say, read the whole thing.

I'm not sure I agree with all the specifics of the Applebaum's proposed program, and I don't know enough to evaluate some of the details. My own preference would be for a less heavily regulated legalization than what she describes. Be that as it may, the Turkish model, as described by Applebaum, is far preferable to the Bush Administration's dangerously misguided poppy eradication campaign.


Do Law Students Need a Guide to the Model Penal Code?: Here's a post for the recent and current law students in the VC audience. I usually teach criminal law in the fall, and my course focuses on the Model Penal Code (aka the "MPC"). Learning the MPC is a pretty important part of learning criminal law in a lot of courses, and yet in my experience there aren't good books or guides that explain how to apply the MPC. A few books exist, but my students haven't found them particularly helpful.

  Given that, I was thinking I might write a law student's guide to the Model Penal Code — think "The Model Penal Code in a Nutshell." Here's the question: Would students find such a guide helpful? Or is this market alread covered? Several student-focused books cover the common law pretty well, but I haven't been as satisfied with the offerings on the MPC. What's your take?

Charles Fried on Stimson:

Harvard Law Professor and former U.S. solicitor general Charles Fried has an op-ed in today's Wall Street Journal (available here) on Cully Stimson's comments. Here's a taste:

Defense Department official Charles Stimson showed ignorance and malice in deploring the pro bono representation of Guantanamo detainees by lawyers in some of the nation's leading law firms, and in calling on their corporate clients to punish them for this work. . . .

It is the pride of a nation built on the rule of law that it affords to every man a zealous advocate to defend his rights in court, and of a liberal profession in such a nation that not only is the representation of the dishonorable honorable (and any lawyer is free to represent any person he chooses), but that it is the duty of the profession to make sure that every man has that representation. . . .

All that can be said in explanation, if not mitigation, of Mr. Stimson's egregious statements is that he may have been led on by the extravagant rhetoric of ideologues at the other end of the spectrum, who regularly inveigh against law firms which make their living by defending corporate interests accused of abusing employees, consumers and the environment.

Read the whole thing.


Posner, Hayek and the Economic Analysis of Law:

My new working paper (with Anthony Sanders) on "Posner, Hayek and the Economic Analysis of Law" has just been posted on SSRN here.

Here's the Abstract:

This Essay examines Richard Posner's critique of F.A. Hayek's legal theory and contrasts the two thinkers' very different views of the nature of law, knowledge, and the rule of law. Posner conceives of law as a series of disparate rules and as purposive. He believes that a judge should examine an individual rule and come to a conclusion about whether the rule is the most efficient available. Hayek, on the other hand, conceives of law as a purpose-independent set of legal rules bound within a larger social order. Further, Posner, as a legal positivist, views law as an order consciously made through the efforts of judges and legislators. Hayek, however, views law as a spontaneous order that arises out of human action but not from human design. For Hayek, law as a spontaneous order - of which the best example is the common law - contains and transmits knowledge that no one person or committee could ever know, and thus regulates society better than a person or committee could. This limits the success of judges in consciously creating legal rules because a judge will be limited in the forethought necessary to connect a rule to other legal and non-legal rules and what Hayek termed “the knowledge of particular circumstances of time and place.”

This Essay also explores Posner's argument that Hayek misunderstood the “rule of law” as the “rule of good law.” Contrary to Posner, in the view Hayek came to espouse in his later work, the common law embodies the rule of law in a way that positivist creations of law do not. When judges consciously make law it is those human actors, not the “law” as such, that “rule.” When law arises out of a spontaneous order, however, it is the law that rules. Judges merely articulate it. Posner does not distinguish between these two processes, and therefore sees a difference between the “rule of law” and the “rule of good law” which Hayek does not. This is because for Hayek the “rule of law” is only meaningful in a liberal society where law arises out of a spontaneous order.

Comments are appreciated.


Monday, January 15, 2007

Wayne Allard will not run for re-election:

That's the big Colorado political news today. But that's no surprise to readers of Jerry Kopel's political column for the Colorado Statesman. My father, a Democrat who served 22 years in the Colorado House of Representatives, knew Wayne Allard as a Colorado State Senator. Although he often disagreed on policy matters with Allard, he found that Allard was always a man of his word. So in 2005, he predicted that Allard would keep his two-term U.S. Senate pledge.


Words to Live By:

The late Milton Friedman popularized the expression "There's no such thing as a free lunch." My GMU colleague Lloyd Cohen agrees, but noted after a stretch of lunches with faculty candidates: "It's true that there's no such thing as a free lunch, but there are lunches that you don't pay for."


Carter and the Jews:

Ha'aretz columnist Brad Burston:

What Carter reveals, in the end, is that he knows the organized Jewish community of the United States in ways he will never know the Jewish community - or for that matter, the Palestinian community - in the Holy Land. He knows America's Jewish leadership as do few American Jews. He was, after all, twice the nominee of the Democratic Party.

These people elected him president. They applauded him at Camp David. They sang his praises for forging the first peace treaty between Israel and an Arab nation.

Carter knows these people, all right. He knows their vulnerabilities, their gut fears, their feelings for Israel. He knows what makes them tick. He knows what makes them squirm. He knows what makes them livid with rage. And Carter plays them, all of them, all at once, with the brio of a virtuoso on his farewell concert tour.

The thesis that Carter is "out to get" the American Jewish leadership is an interesting one. It's not exactly true that the Jewish leadership was enthusiastic for Carter, except for a brief time following the Camp David Accord (which in many ways came about despite, rather than because of Carter, who preferred an international peace conference including the Soviet Union!) Jewish leaders mostly supported Scoop Jackson in the '76 primaries. Many implicitly or explicitly supported Ted Kennedy in the 1980 primaries. And Carter got less than half the Jewish vote in 1980, a remarkably bad performance considering that Ronald Reagan's political predecessor, Barry Goldwater, received about 10% of the Jewish vote in 1964, compared to Reagan's 40% (Anderson's 15% rounded out the total). Of course, even 100% of the relatively small Jewish vote wouldn't have put Carter over the top in 1980, but the hostility of a large part of the Jewish community, which is a core constituency of the Democratic Party, made his life a lot more difficult.

Of course, I can't read Carter's mind, but something has to explain obviously misleading statements like this: "My most troubling experience has been the rejection of my offers to speak, for free, about the book on university campuses with high Jewish enrollment and to answer questions from students and professor." This sounds a lot like Carter claiming that the Jewish establishment has the will and power to stop universities from hosting an ex-president who volunteers to speak "for free." So here's a challenge to Mr. Carter: name even ONE university where you were unable to speak "for free"--and I mean really "for free", not a situation in which the university has to pay for a private plane to take you roundtrip from Georgia, and pay additional thousands for your security.

Oh, he didn't really mean "for free," he just meant "without an honorarium!?" Perhaps he was just trying to "stimulate discussion" about the Jewish establishment's influence, his equally lame excuse for using the term "apartheid" to discuss the Israeli occupation of the territories, even though he acknowledges that this occupation [which Israel basically offered to end in Camp David in 2000] is not a manifestation of "racism."


Becker & Posner on Libertarian Paternalism:

At the Becker-Posner blog,, Becker and Posner discuss "libertarian paternalism" (albeit in reverse order. Here is Judge Posner's take, and here is Becker's critique.


Blogger of State:

Not many government officials are known to blog — at least not under their own names. That is what makes John Bellinger's guest-blogging stint at Opinio Juris so interesting. Bellinger is is the State Department Legal Adviser, i.e. the top lawyer at the Department of State. His posts to date are chained here.

Related Posts (on one page):

  1. Bellinger's Last Words:
  2. Blogger of State:

Defending Detainees -- One Last Time

In reviewing the comment threads, I think many have lost sight of what caused me and many others (including, at last count, over fifty law deans) to react so strongly -- and so negatively -- to Cully Stimson's comments about law firms representing detainees. The issue is not what legal process Guantanamo detainees should or shold not receive; nor is it whether major law firms should devote their resources to these cases or some other cause. Rather, it is whether it is appropriate and ethical for a government official with legal training to discourage private attorneys from representing unsavory clients in legal proceedings.

The best defense of Stimson's remarks probably comes from Michael Abramowicz at Concurring Opinions. Michael is inclined to give Stimson the benefit of the doubt, and interpret his remarks very charitably. I understand Michael's point, but I don't buy it. Listening to the interview, I did not -- and still do not -- judge Stimson's intent so innocently, particularly in light of the quotes in the WSJ indicating that Stimson, or someone else, was seeking to discourage firms from defending detainees. While I would agree that Stimson's comments are not sancitonable, they are still objectionable, particularly coming from someone with legal training in his position.

It is well established that prosecutors have greater ethical obligation than private attorneys and, in particular, have an obligation to ensure the fairness of judicial proceedings – even where this may undermine the government’s ability to secure a conviction. Stimson is not a prosecutor in his current position, but he is a former JAG and U.S. attorney, so he knows the rules. More important in this instance, he is an official involved with the detention and prosecution of detainees. He is, after all, Deputy Assistant Secretary of Defense of Detainee Affairs. Insofar as detainees are entitled to judicial process, whether habeas proceedings to challenge their detention or trials for alleged violations of the law of war, they are entitled to the defense counsel of their choice, not the government’s. Deliberate action by a government attorney to interfere with that choice is unethical, and contrary to the spirit, if not the letter, of the relevant rules of legal ethics.


Nanoregulation in Berkeley:

Last month, the city of Berkeley became the first local jurisdiction to regulate nanotechnology as such. The New York Times reports that businesses within Berkeley that use nanoparticles measuring 100 nanometers or less in any dimension are required to file reports with local regulators. Interestingly enough, the regulation exempts the University of California and Lawrence Berkeley National Laboratory.

UPDATE: As initially drafted, I misakenly referred to the Lawrence Livermore Laboratory instead of the Lawrence Berkeley National Laboratory.


What Did He Take and Why Did He Take It?

Ronald Cass, Dean Emeritus of the Boston University School of Law, is still looking for answers about Sandy Berger's burgaling. As he points out, the only assurance that Berger did not destroy unique documents is Berger's word — and given what transpired in this episode, that is hardly reassuring.


The Jazz World Lost Two Important Figures This Weekend, as the influential saxophonist Michael Brecker succumbed to leukemia at the age of 57 and pianist Alice Coltrane (John Coltrane's wife) died of respiratory failure at the age of 69. Coltrane's last recording was issued in 2004; Brecker wrapped up his final album just two weeks ago, and it will be released posthumously.

I Have A Dream: In honor of MLK Day, here is Dr. King's famous speech delivered at the March on Washington for Jobs and Freedom on the steps of the Lincoln Memorial on August 28, 1963:

24 Open Forum: 24 premiered on Sunday night. You can post your thoughts on the new season here.

Sunday, January 14, 2007

Knife Rights:

That's the name of America's new citizen organization dedicated to protecting the responsible ownership of knives and edged tools. When you consider how extreme the anti-knife laws have gotten in the United Kingdom, and in some other nations (and in some U.S. jurisdictions), the need for this group is clear. Although knife manufacturers and businesses already have their own trade groups, Knife Rights is the first consumer group. The group began formation last summer, spurred by the publication of a Wall Street Journal news article bemoaning the allegedly lax state of knife control.


Two ways to support the troops:

1. Silly string.

The indispensable Strategy Page reports:

...Militarily, Silly String is useful for troops doing room-to-room searches, who have to contend with booby traps (IEDs, or Improvised Explosive Devices). Before entering a room, they can squirt the stuff inside. If it lands on the floor, the room is likely to be clear of trip wires. But if the stuff hangs in the air, it may have snagged on a nearly invisible wire (sure, the troops might be able to spot the wire if they peer carefully into the room, but this might not be possible in the presence of armed folks with hostile intent).

There's a major problem getting enough Silly String to the troops. It isn't in the Department of Defense (DoD) standard supply basket (which is perhaps just as well, or a can might run several hundred bucks, because of all the special rules applying to military acquisition, and the tendency to customize things for "military use.") Some unit commanders have reportedly been using their discretionary funds to secure supplies. But for the most part, the troops have been relying on Mom to supply them, writing home to send some. This isn't easy, as Silly String comes in aerosol cans, which cannot legally be shipped by the Postal Service or commercial mailing services.

The "queenpin" of Silly String Supply To The Troops is Marcelle Shriver, who has a son in Iraq. She arranges shipments of Silly String to her son's unit and other units. Donations can be sent to her, c/o St. Luke Church, 55 N. Warwick Rd., Stratford, NJ 08084.
2. American Snipers

This fine organization donates sniper accessories (scopes, rangefinders, special slings compatible with body armor, etc.) to American snipers serving in Iraq and Afghanistan.

It would be better, of course, if soldiers did not need to supplement their military-issue equipment, but I suspect that there hasn't been a major war in American history in which some soldiers have not supplemented their standard equipment.


Endorsement for Stephen Smith:

I got to know Stephen when he clerked the same year I did, and I found him to be smart, thoughtful, and easy to get along with; I think he'd make an excellent Trustee.


Stephen Smith '88 Is Collecting Petitions for Dartmouth Trustee:

Stephen Smith, Dartmouth '88, known to many readers here as a law professor at the University of Virginia, is running as a petition candidate for Dartmouth trustee. After Dartmouth he graduated from Virginia Law School then went on to clerk for Judge Sentelle on the DC Circuit and Justice Thomas on the Supreme Court.

Stephen and I have been friends for 20 years--we were classmates at Dartmouth and we attended UVA together for law school.

At this point Stephen is just trying to collect the 500 signatures necessary to get on the ballot. The Alumni Council's candidates were announced right after Thanksgiving, which started the 60 day clock ticking for securing petition signatures, so Steve needs his 500 signed petitions in hand by February 1.

Stephen has a website where he lays out what he would like to accomplish as a trustee and to download a copy of the petition form here at You can download a copy of the petition form directly here. Remember to sign your petition in NON-BLACK ink. All alumni of Dartmouth and its graduate schools are eligible to sign a petition and to vote in the election.

Keep in mind that signing a petition for a candidate at this point simply helps to enable him to meet the minimum number of signatures to gain access to the ballot. The actual voting won't begin until April. So even if you are unsure whether you will actually vote for Stephen or someone else, you can send in a petition that will keep the door open to potentially voting for him later.

Profiles of the Alumni Council's nominees are here. Other than Stephen, I am aware of one other person who has announced that he is trying to collect petitions(described here).

Related Posts (on one page):

  1. Endorsement for Stephen Smith:
  2. Stephen Smith '88 Is Collecting Petitions for Dartmouth Trustee:

We Get Queries:

Here's a snapshot of the queries that brought people to some part of this blog (likely some of the archive pages) last night:

  1. "Women are stuck up." Depends on the woman, I suppose, but I'm pretty sure you'll find nothing about it here.
  2. "Does generation y need to be motivated differently." Good question, no answer here.
  3. "Discrimination atheists," Aha! Google works.
  4. "Stimson transcript firms." Score one more for Google.
  5. "" Nope.
  6. "Ten years old sex." Probably not, even in the sense of the law of sex with ten-year-olds (our discussion of statutory rape laws generally come in considerably above that), though maybe at some point we'd blogged something about Model Penal Code § 213.4(4).
  7. "Composition of emminent domain." Have no idea.
  8. "Would sex drawing." Would sex drawing what?
  9. "Supercede sentence." ?
  10. "Holocost conspiracy." Nope, not here.
  11. "Underage sex." Depends on the nature of your interest.
  12. "Attractive women online dating." Sorry, wrong site.
  13. "Why does God allow witchcraft?" I'm completely out of my league on this one, but I'll happily pose this to commenters who would like to take a whack at it.
  14. "'Lawyer with kids.'" That describes some of us, but I'm not sure this is going to be very helpful.
  15. "911 conspiracy update." No.
  16. "Debate about justice and women." Not at that high a level of abstraction, I think.
Oh, well, I guess a few people got what they wanted. Hope you stuck around!


Can the Pentagon and the CIA Issue National Security Letters?: Over at Concurring Opinions, Daniel Solove is asking a very good question about New York Times' disclosure that the Defense Department and the CIA have been issuing National Security Letters: What provision of federal law empowers those agencies to issue National Security Letters? Several parts of the U.S. Code permit the FBI to issue National Security Letters, which are something like subpoenas; they are basically letters on FBI stationary authorized by FBI bigwigs ordering third-party record holders like banks to hand over information to the government.

  The new story breaks the news that the Defense Department and CIA apparently believe they have a similar authority, and that they have been issuing their own NSLs in their own domestic investigations. Vice President Cheney has confirmed the practice. The statutory provision that the DoD/CIA are replying on seems to be an exception to the Right to Finanical Privacy Act, a law that otherewise requires legal process to obtain bank records. 12 U.S.C. 3414(a)(1) carves out an exception to this rule:
  Nothing in this chapter (except sections 3415, 3417, 3418, and 3421 of this title) shall apply to the production and disclosure of financial records pursuant to requests from—
(A) a Government authority authorized to conduct foreign counter- or foreign positive-intelligence activities for purposes of conducting such activities;
(B) the Secret Service for the purpose of conducting its protective functions (18 U.S.C. 3056; 3 U.S.C. 202, Public Law 90–331, as amended); or
(C) a Government authority authorized to conduct investigations of, or intelligence or counterintelligence analyses related to, international terrorism for the purpose of conducting such investigations or analyses.
  (C) above was added by Section 358 the Patriot Act; the rest of the language seems to go back to the original statute passed in the 70s.

  My best guess as to what is happening is something like Bruce Boyden's. First, I think the DoD and CIA reasonably read that language as letting them make voluntary requests for financial information otherwise requiring a NSL. The Times story suggests a twist, though; instead of just informally requesting information in a context that would make clear the request is voluntary, the DoD and CIA seem to be issuing their requests using letters that look a lot like "real" National Security Letters. If that's right, the government would know that the letters have no legal effect, but they would be written so as to try to trick the recipients into thinking that they do.

  In particular, note that the Times story refers to the DoD/CIA letters as "noncompulsory versions" of NSLs, and reports that "Congress has rejected several attempts by the two agencies since 2001 for authority to issue mandatory letters" like those that the FBI issues. It also states that "[l]awyers at financial institutions, which routinely provide records to the F.B.I. in law enforcement investigations, have contacted bureau officials to say they were confused by the scope of the military’s requests and whether they were obligated to turn the records over." If I'm not mistaken, the answer to the lawyers' question is that they are not obligated to turn over the records. The statute seems to permit it, but I don't know of any provision that compels it.

  UPDATE: I have rewritten the post since initially posting it.