The Volokh Conspiracy

Fred Thompson with Sean Hannity:

I, like some others around here, was a member of Fred Thompson's legal policy team before he dropped out of the Presidential race. Here's an interview between Sen. Thompson and Sean Hannity.

To me, perhaps the most interesting comment is Fred's rejection of the idea that he would like to be VP. His rationale is intriguing--running for such an office is such an awful experience that the only position worth going through that sort of unpleasantness is to be President. Being VP--"flying off to attend state funerals" is how he says it--just isn't worth it to go through the process. The effort is worth it only if you actually get to do something. He suggests that such a position may be worthwhile for someone with more ambition than he has.

I also like his frank observation that most of the things that Presidential elections are about are things that the President can't do anything about anyway.

As an admitted Fred fan, the interview reminds me of why I liked him in the first place. And why he simply may have been too normal of a person to be President--or VP either, apparently.

Commencement Speaker Controversies:

We are now into the annual rite of spring of commencement speaker controversies: Jerry Springer at Northwestern Law School and Justice Clarence Thomas at the University of Georgia.

If you ask me, they oughta try to switch 'em around because it seems to me that based on their low-class behavior, the protesting UGA faculty deserves to have Jerry Springer as their Commencement speaker.

The Hierarchy of Legal Authority: In response to Eugene's earlier post about an anonymous VC blog comment being cited in a legal brief with the parenthetical that the comment was written "with some apparent authority," commenter "alias" chimes in that the hierarchy of authorities to rely on in briefs must go something like this:

1. On-point Supreme Court cases
2. On-point binding court of appeals opinions
3. Analogous Supreme Court cases
....
6. Dicta in Supreme Court cases
....
12. Law review articles
...
22. Blog posts by well-known law professors, opining persuasively in their area of expertise and citing authority.
...
45. Op-eds in national newspapers.
...
75. Blog comments written by well-known law professors, opinion persuasively in their area of expertise and citing authority.
...
3,015,036. Particularly clever LolCats pictures.
3,015,037. Blog comments by people who speak "with some apparent authority"

Very funny.

Ex-Terrorist and Law Professor Bernardine Dohrn:

Given an opportunity to disavow her violent criminal past as a member of the Weather Underground via a challenge in The Daily Northwestern, she instead appears to justify her actions based on the fact that she believes that she was engaged in a fight against "the illegal, immoral war against Vietnam and the organized terrorism of my government." She also appears to claim that any attempt to question her current views about her past activities constitutes "McCarthyism," as if questioning an ex-terrorist regarding whether she still believes in terrorism is somehow beyond the pale. (H/T: Overlawyered.)

UPDATE: The exchange at issue took place in April 2005, not this year as I initially thought. Still, it's somewhat newsworthy given the recent controversy over Dohrn's husband, partner in crime, and fellow academic, Bill Ayers.

"The End, The Beginning": Over at Discourse.Net, lawprof Michael Froomkin offers a very gracious tribute to a retiring colleague.

Three Cheers for Commenter BruceM,

whose comment was cited in a Fourth Circuit appellate brief a few months ago. It's in the Reply Brief of Plaintiff-Appellant Christopher Scott Emmett, filed by the Virginia Capital Representation Resource Center in Emmett v. Johnson, 2008 WL 345230, *5 n.5 (4th Cir. Jan. 11):

Since the grant of certiorari in Baze, some commentators have suggested that other controlled substances could be used in lieu of a barbiturate to cause painless death. See, e.g., The Interesting Case of Baze v. Rees, http://volokh.com, archived entry posted 12/31/2007 at 1:09 a.m., comment #8 by BruceM (speaking, with some apparent authority, in favor of using potent opioid to accomplish lethal injection).

A quick search also noted that I quoted a comment by James Fulford in my Washington U. L. Rev. piece on Scholarship, Blogging, and Tradeoffs: On Discovering, Disseminating, and Doing, and Larry E. Ribstein quoted a comment by Marty Lederman (a prominent lawyer, and now a prominent blogger, in his own right) in his piece in the same symposium, on The Public Face of Scholarship. But this is the first comment cite I've seen in the briefs, and I've seen none in court cases. If you can find other such cites — again, not to blog posts as such but to comments, preferably by people who aren't themselves noted scholars, lawyers, or bloggers — please note them in the comments below.

Romeo-and-Juliet Laws as Reflecting Lesser Moral Responsibility of 16-Year-Olds?

Some responses to my post about age of consent and Romeo-and-Juliet laws have said something like this:

The question is not whether the behavior is harmful and wrong (in both cases, the answer is equally yes). Instead, it is whether someone is responsible. 16 year olds are not mature enough to decide to have sex; 30 year olds are. Thus a 30 year old can be punished for having sex with a minor, but a 16 year old can't. I don't really see the problem here.

This is an interesting theory, but I'm skeptical about it.

First, we generally think that 16-year-olds are supposed to comply with the law, are capable of doing so, and should be held responsible for failing to do so, especially as to offenses that are otherwise seen as serious crimes. We may sometimes punish them less severely, for instance by trying them as juvenile offenders. But we don't categorically let them off the hook for a wide range of crimes -- robbery, assault, drug use, and the like -- just because they're 16. (At some age, we might indeed let a child off the hook, or at least handle him through a system that is truly therapeutic and nonpunitive, but that age tends to be far below 16.)

Second, the "16-year-olds shouldn't be punished for what would otherwise be statutory rape because they're too immature" argument doesn't fit well the way many of these laws actually operate. Consider, for instance, the Florida law, which sets a general age of consent of 18, but allows under-24-year-olds to have sex with 16- and 17-year-olds. It's hard to say that the law is trying to cut slack to 21-year-olds because they're too immature, but treats 30-year-olds as criminals because they are mature enough to know better. Sure, 21-year-olds (and even 23-year-olds, who get the same immunity) sometimes are immature in lots of ways, but not generally in the law's eyes when it comes to criminal responsibility.

The same would be true if you had a law like Pennsylvania's "sex with 13-to-15-year-olds OK if the actor is no more than 4 years older than the 13-to-15-year-old" law, which is a pretty common sort of model. This means that even 19-year-olds are excused if they have sex with 15-year-olds (assuming a slightly under 4-year gap), but 18-year-olds aren't excused if they have sex with 13-year-olds.

There might be a good explanation for this rule -- I do think that sex with 13-year-olds is likely to be much more morally troubling than sex with 15-year-olds -- but concern that the 19-year-old isn't mature enough to be punished for having sex with the 15-year-old, though the 18-year-old is mature enough to be punished if the other person is 13, doesn't seem like a good explanation. The focus is on the age gap's causing the relationship to be somehow improper, not on whether the defendant is old enough to be held criminally responsible.

Related Posts (on one page):

"Statutory Rape" in The Reader:
Romeo-and-Juliet Laws as Reflecting Lesser Moral Responsibility of 16-Year-Olds?
The Academic Credo
Ages of Consent for Various Purposes:
Age of Consent:

The Paranoid Style of Political Ignorance:

Jesse Walker has an interesting column tracing the longstanding prevalence of paranoid conspiracy-mongering in American politics, which dates all the way back to the Revolution and before. What Richard Hofstader famously called "The Paranoid Style in American Politics" has always been common on both the right and the left. Widely believed claims that the US government itself planned the 9/11 attacks Obama is a secret terrorist-sympathizer, that the US government developed the AIDS virus for the purpose of killing blacks, or that the Iraq War was cooked up for the secret purpose of enriching Halliburton and Dick Cheney are among the latest examples (for links to polls on some of these, see here).

An interesting question is why paranoid conspiracy-mongering has persisted despite massive increases in education levels and a great reduction in cost of acquiring accurate political information in the age of the internet and 24 hour cable news. A related question is why so few people are similarly paranoid in their personal lives. Many more people believe that a government conspiracy caused the 9/11 attacks than believe that their coworkers or acquiantances are out to get them.

In my view, the answer to these questions is widespread political ignorance and irrationality. As I explained more fully in my February post on belief in political conspiracy theory:

[I]t is perfectly rational for most people to know very little about politics and public policy - and indeed most people are quite ignorant about even basic aspects of these subjects. Because the chance of your vote influencing the outcome of an election is infinitesmally small, there is little payoff to becoming informed about politics if your only reason for doing so is to be a better voter. By contrast, there are very strong incentives to be well-informed about issues in our personal and professional lives, where our choices are likely to be individually decisive. The person who (falsely) believes that a dark conspiracy is out to get him will impose tremendous costs on himself if he bases his decisions on that assumption; he's likely to end up a paranoid recluse....

...[T]he rationality of political ignorance implies that even people who do have considerable knowledge are likely to be more susceptible to conspiracy theories about political events than in their personal lives. As I explain in this paper . . ., the rationality of political ignorance not only reduces people's incentives to acquire political information, it also undercuts incentives to rationally evaluate the information they do learn. As a result, we are more likely to be highly biased in the way we evaluate political information than information about most other subjects . . . Unlike in our nonpolitical lives, most people have little incentive to critically evaluate their political beliefs in order to weed out biases and and ensure their truth.

Rational political ignorance also helps explain why conspiracy-mongering hasn't declined in an age of increasing education levels and easily available information. Quite simply, even a well-educated rationally ignorant voter has little or no incentive to acquire accurate information or to rationally evaluate the information he does learn. As a result, much of his information-gathering activity will be directed to learning "facts" that are interesting rather than informative and that tend to confirm his preexisting views rather than challenge them. A great deal of social science research shows that people mostly read political media that reflects the views they already hold and show little interest in considering opposing perspectives. Once they accept a conspiracy theory, they are unlikely to seek out information that might refute it.

Is there a solution to the problem? Perhaps not; certainly not an easy one. But if we really want to reduce the impact of paranoid conspiracy-mongering on our society, we should consider reducing the size and scope of government. That way, fewer of our decisions will be made by electoral processes in which ignorance-driven paranoia plays a major role.

Related Posts (on one page):

The Good Old Days of the Fourth Amendment: In the comment thread on yesterday's post about Virginia v. Moore, commenter "30yearprof" writes:

This seem[s] to pretty well summarize the Supreme Court's evisceration of the 4th Amendment since the 1970's. We seem to have a bench of police "groupies."

  I hear this pretty often in debates on the Fourth Amendment. The Fourth Amendment has been eviscerated, the complaint goes. The Supreme Court has gutted it; there's hardly anything left. Back in the old days — that's when the Fourth Amendment really meant something.

  I wonder, though, when exactly were the "good old days" of the Fourth Amendment? Clearly the "good old days" of the Fourth Amendment could not be from 1791 to 1961, before the full application of the Fourth Amendment to the states. Before 1961, the Fourth Amendment didn't do much, as most police work was state local and the Fourth Amendment either didn't apply at all (until 1949) or didn't make any difference in practice (from 1949 to 1961). In 1961, with Mapp v. Ohio, the Fourth Amendment suddenly became a hugely important control on routine police investigations: Maybe if you want to pick a time of the "good old days" of the Fourth Amendment, you say 1961.

  But no, that can't work. 1961 was before Berger and Katz, before the "reasonable expectation of privacy" test and before the Fourth Amendment applied at all to bugging or wiretapping. So the good old days probably don't include from 1961 to 1967. Maybe we want to start the good old days on December 18, 1967, when the Supreme Court handed down Katz.

  Maybe. On the other hand, the record in that period is sort of mixed. A few months before Katz, on May 29, the Supreme Court had dramatically expanded the warrant power and overruled the mere evidence rule in Warden v. Hayden. And just a few months after Katz, in Terry v. Ohio, handed down June 10, 1968, the Supreme Court took a significantly watered down approach to the Fourth Amendment to regulate police/citizen interactions on the street. It's kind of hard to know how you balance these cases: for example, was Terry a gutting of the full Fourth Amendment protection, or an expansion of the Fourth Amendment to street enounters? I think it's pretty mixed record to find the real high point of Fourth Amendment protection.

  The Supreme Court's record since 1968 is also somewhat mixed. It is clearly correct that there are some cases that clearly narrowed Fourth Amendment protection, like United States v. Leon. But a number of the cases that critics say "eviscerated" the Fourth Amendment simply refused to expand Fourth Amendment protections or addressed issues that had never been resolved, like the many cases on aerial surveillance. And then there were also some cases that expanded protection, like Payton v. New York or Kyllo v. United States.

  If you had to identify a "high point" of Fourth Amendment protection, I suppose you might pick the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973. But if that's right, it seems to me that the "good old days" of the Fourth Amendment were actually a pretty narrow window of time: anywhere from a few months to five or six years, around forty years ago, out of a 217-year history of the Fourth Amendment.

The Academic Credo

(or at least An Academic Credo): A commenter on my age of consent post writes,

This is a perfect example of why people claim professors are out of touch with reality. When someone can accurately but facilely summarize your suggestion with "he wants to change the law so that adults should be allowed to have sex with high school sophomores," you lose. No further inquiry, no appeal, no nothing: you're automatically some lunatic that thinks something approaching pedophilia is OK.

Some curious thoughts are best kept to one's self....

I've heard this reaction before, not just as to discussions of the age of consent but also as to other matters. Other commenters seem to say something similar, some even calling — with no substantive reasons — for me to take down the post, with no real explanation). And it strikes me as worth discussing this attitude in more detail, because it does reflect something important about the academic approach, an approach that, contrary to the commenter's view, strikes me as exactly right.

Here's what I see as the academic credo, or at least the right sort of academic credo: It is better to know than to believe. It is better to understand why rather than just accept the what. Much of the time (though certainly not all the time), the things that we think are obviously and clearly "reality" are actually not. Even when our intuitions are right, we gain much from understanding why they are right. So curious thoughts about why our assumptions are right — and whether they are right — are indeed precisely what people (especially professors) should be thinking and expressing.

Let's use this very post as an illustration.

1. To begin with, let's talk briefly about the "reality" with which I'm supposedly out of touch. Recall that my post chiefly discussed 16-year-olds having sex with 30-year-olds, which many states prohibit. But the reality is that over half the states do not prohibit this behavior, but have a general age of consent of 16 (that is to say, the age of consent for sex with adults, rather than just with fellow children, setting aside the special case of sex with adults who are in a special position of authority, such as family members or teachers). In most of Western Europe, the general age of consent is likewise 16 or less. There'd be no need to "change the law" to allow this in most places; one would need to change the law to forbid it.

Now maybe this judgment of most of the U.S. and of Europe is wrong, and that they are themselves "out of touch with reality," whatever exactly that means. I certainly don't want to argue that the majority view is always right. But it does suggest that we can't lightly assume that accepting a general age of consent of 16, under which sex between 16-year-olds and 30-year-olds (or 60-year-olds) is legal, is "luna[cy]."

But wait, there's more: In France, the general age of consent is 15. In Austria, Germany, and Italy it's, generally speaking, 14. In Spain it's 13. In several U.S. states, it was 14 until a decade or two ago; in Canada it is 14, though a recent law changes it to 16 as of May 1, 2008. Again, these decisions may well be wrong or even "creepy" (a term three other commenters used to discuss my post, which chiefly focused on 16-year-olds). Yet when nearly 200 million members of our Western culture live in countries where the age of consent is 14 or less, this should lead us to think that there's an important discussion to be had here, and that the answer is at least not open and shut.

More broadly, by the way, this is indeed a familiar practice of professors: To point out that our intuitive assumptions — however firmly held — are actually not shared by many other people, including in places that aren't very different from our own, and to suggest that this might shake our faith in those assumptions (though again of course it's not proof that the assumptions are false). And I think it's a sound practice, one that should be taken seriously as an advantage to thinking through our beliefs rather than just casually accepting them.

2. More broadly, professors — and many non-professors — know well how many deeply held assumptions about "reality," assumptions that didn't seem to require "further inquiry," proved to be quite wrong. That's most obvious with regard to the physical and life sciences, but it's also true about economics and morality.

Focusing on morality, consider how deeply attitudes have changed over the centuries about such fundamental moral questions as slavery, the role of women, premarital sex, homosexuality, and even the very issue involved here, which is to say the age of consent. Recall that in England the age of consent until the late 1800s was set at 12.

Again, it may well be that modern law is right about the age of consent (which I stress again, is mostly set at 16 both in the U.S. and in Western countries more broadly, not at 18) and the views of the past were wrong. I'm pretty sure that they were wrong as to age 12, and 16 might well be a sensible dividing line. Yet what do you think are the chances that, however wrong we now recognize many past moral views were, our deeply held intuitive moral assumptions today are all completely right? Shouldn't that plant at least a seed of self-doubt? The "professors" who "are out of touch with reality" believe (at least when they're at their best) that public questioning in such matters is better than undefended confidence, or silence.

3. Finally, let's say that the commenter's substantive intuition — that sex between adults and high school sophomores (the 16-year-olds that I discussed in my post) — is right, and the dominant view of American and Western law is mistaken. Surely it's still better to publicly discuss what the reasons for this might be, and why they are right.

(a) Most obviously, it's necessary to persuade the "lunatic[s]" who support the legality of "something approaching pedophilia" yet somehow managed to make their views made into law in most American states and most European countries. I take it that just calling them lunatics and urging them to keep their views to themselves won't persuade them, right? It would help to have a detailed explanation.

(b) It should also be helpful to reassure thoughtful and responsible backers of higher ages of consent. If someone is being sent to prison based on a law you advocate, I'd think you'd want to have some confidence that you're right. And it's hard to have that confidence in any thoughtful way, it seems to me, if you've just shushed those who take a contrary view, as opposed to engaging it (even welcoming its airing) and explaining why it's mistaken.

(c) It's also necessary to deal with all the important details related to implementing the law. Say that allowing adults to have sex with 16-year-olds is indeed wrong. Should the age of consent then be 18? Or 17? Or 17 1/2? If there is to be an exception for sex between people who are close in age, how much should the allowed difference be? If an act is criminal, how much resources should we devote to prosecuting it? How willing should prosecutors be to accept pleas to reduced charges? What should the prison sentences and other punishments be for committing the act? It's impossible to sensibly answer these questions without thinking hard about exactly why we're setting the age of consent at a particular point.

So, my bottom line: Asking these questions, and questioning our intuitions, is more in touch with reality — including the reality that our intuitions are often (though of course not always) wrong — than just taking our assumptions for granted. And when we professors ask for logical arguments even in support of that which many people see as obvious, it seems to me that we are doing exactly what our jobs call for.

UPDATE: I originally said that the age of consent in Canada was 14 until recently; as the revised text, makes it clear, it's actually 14 for a few more days. Thanks to Canadian prosecutor Andrew Barg for setting me straight on this -- always good to get even a little closer to "reality."

Related Posts (on one page):

Ages of Consent for Various Purposes:

A commenter writes, "Abortion rights advocates declare any [pregnant] female is mature enough to obtain an abortion without parental consent. That means girls are mature enough to make [decisions] in picking sex partners."

I don't think this works. Judgments about age cutoffs for various behavior (driving, sex, smoking, alcohol consumption, abortion, other medical procedures, contracting) rightly turn on a variety of factors, including the cost of prohibiting the behavior as well as the cost of immature behavior. We let people drive before we let them drink because not being able to drive imposes a much greater burden on older teenagers (and on their parents and prospective employers and educators) than does not being able to drink. Likewise, stopping a girl from having an abortion could harm her future life much more than stopping a girl from having sex would.

Now of course one could argue that letting girls have abortions without parental consent harms their future lives, too, or that it violates their parents' rights or whatever else. My point is simply that one can't just assume that the age cutoffs for the decision to have an abortion must be the same as the age cutoffs for sex, drinking, smoking, driving, or contracting. It's true that the age cutoffs for all of these do have to do with our judgment about maturity — but they also have to do with other matters that may justify different age cutoffs for different behaviors.

(Note that the current federal constitutional rule is that state law may require underage girls to get parental consent for abortion, though it must provide the option of a judicial bypass on the grounds that "the young woman is mature and capable of giving informed consent and has, in fact, given her informed consent" or "that an abortion would be in her best interests." But some state constitutional rules give broader abortion rights to underage girls, and, as the commenter suggests, some abortion rights advocates do support such broad rights for girls.)

Related Posts (on one page):

"Statutory Rape" in The Reader:
Romeo-and-Juliet Laws as Reflecting Lesser Moral Responsibility of 16-Year-Olds?
The Academic Credo
Ages of Consent for Various Purposes:
Age of Consent:

Age of Consent:

Many states have lower ages of consent for sex among minors than for sex between adults and minors. Thus, two 16-year-olds having sex may be legal, but not a 30-year-old having sex with a 16-year-old.

I share the intuition behind this distinction, but I wonder whether my intuition is right. For instance, I would think that quite a few 16-year-old girls who are interested in sex would rather be involved with 30-year-old men than with other 16-year-olds; the 30-year-olds are more likely to know what they're doing both sexually and romantically, plus are more likely to be much more emotionally mature as well as interesting to talk to. What's more, to the extent that women are said to be attracted in some measure to success (not just financial but professional and social), the 30-year-old may be much more attractive to them. Plus if a serious relationship ensues, the 30-year-old might be a better influence on the 16-year-old than another 16-year-old would be.

Ah, one might say, but perhaps the 30-year-olds are more likely to be sexually exploitive of the 16-year-olds, whatever "sexually exploitive" might mean. But why should we be so confident of that? Sixteen-year-old boys can be as interested as 30-year-olds in sexual conquests for the sake of sexual conquest, and can be as willing and able to lie and manipulate to get what they want. I suppose they might be less good at the lying and manipulating, for the same reason that they can be less good at some of the things the 16-year-old girl may want (being courted in a romantically appealing way). But I doubt that they're entirely unable to lie and manipulate -- and they may feel even more pressure to do so, because they may be more hormonally charged, sexually desperate, and desperate to prove their adulthood and manliness by getting sex or by racking up partners.

Of course, 16-year-olds are more likely to be thrown together with other 16-year-olds in social contexts, and are thus more likely to "naturally" become interested in each other. Perhaps then the rationale is simply that you can't stop such sex without prosecuting millions of people, while you can stop adult-adolescent sex, which might be more likely to be more common. But the effect of the law is still to channel some 16-year-old girls away from sex with adults and into sex with other teenagers. That would make sense, I think, only if we think that sex with teenagers is better for them than sex with adults would be. But why is that so?

Query, also, whether the analysis should be different when we get to 14-year-olds or 15-year-olds, but please set aside for purposes of the analysis flat rules that categorically forbid sex between anyone and someone under a certain age. Those rules are easy enough to explain, as being based on concern about (say) a 15-year-old not being mature enough to make a decision that can be so emotionally and physically dangerous. The tougher question is why the 15-year-old should be allowed to make such a decision when the partner is another 15-year-old as opposed to a 25-year-old. (Note that I'm talking about sex between adult men and adolescent girls; one can ask similar questions with the sexes reversed, and as to gay and lesbian sex as well. But my sense is that the bulk of the sexual conduct that is actually punished or deterred by these laws is between adult men and adolescent girls, so I thought I'd focus on that.)

Now perhaps my skepticism here is unjustified. I wouldn't mind being persuaded that it is unjustified, since as I said I find the distinction between "Romeo and Juliet" sex (the laws allowing sex between minors who are close together in age are often called "Romeo and Juliet" laws) and adult/teenager sex appealing -- though look what happened to Romeo and Juliet. I just wonder whether we can be confident enough in this distinction.

And, just to stave off the speculation, I've never dated a minor while I've been an adult, and have never wanted to date one. Among other things, I've generally found adult women considerably more attractive and interesting than underage ones (much as I suspect that some many adolescent girls would find adult men considerably more attractive and interesting than underage ones).

Related Posts (on one page):

"Put Down the Thesaurus and Step Away from the Opinion":

South Carolina Appellate Law Blog's reaction to this line:

The cognoscenti of health care nomology trust and rely upon Peer Review Statutes as the quiddity and hypostasis of the hospital/physician relationship. The quintessence and elixir of the peer review process is confidentiality.

A Low Grade for the Man in the High Castle:

Amber Taylor gives a thumbs down to Philip K. Dick's classic science fiction/alternate history novel, The Man in the High Castle, which is set in a world where the Axis won World War II and the US has been conquered and divided between Germany and Japan. I tend to agree. Dick's book is high on my list of most overrated genre classics of all time.

The idea of an Axis victory alternate history was somewhat more original back in 1962 (when the book was written) then it would be today. But Dick's execution was flawed in many, many ways. The characters are implausible, the alternate history scenario even more so. It is just barely possible to imagine the Axis winning World War II despite the many advantages of the Allies. It is utterly implausible to imagine them being able to conquer and occupy the entire US by 1947. Dick's benign portrayal of the Japanese occupation is belied by the horrendous record of the actual Japanese empire of the 1940s. And all the references to the I Ching quickly become annoying without (as far as I can tell) making any genuinely interesting points or advancing the plot.

For a much better Germany-wins-WWII alternate history novel, see Robert Harris' Fatherland.

Virginia v. Moore and the Changing Role of the Fourth Amendment: In this post, I want to argue that yesterday's decision in Virginia v. Moore hides a fascinating clash: a clash between the mindset and assumptions of the pre-incorporation Fourth Amendment and the mindset and assumptions of the post-incorporation Fourth Amendment we have today. My claim is that the basic assumptions of the post-incorporation Fourth Amendment are now so deeply engrained in the Justices' consciousness that they didn't appreciate how their decision was inconsistent with pre-incorporation Fourth Amendment history. This doesn't mean that Moore was wrongly decided: The majority's rule is a sensible one for the modern incorporated Fourth Amendment. But there's a fascinating historical tale to be told about the nature of constitutional change that I think the opinions in Moore have missed. Or so I will argue; I'm not completely sure I'm right, but if not I would be very interested in knowing where my analysis goes off course.

  First, some background. As originally enacted, the Fourth Amendment only applied to the federal government and not the states. Most states had their own rough equivalents to the Fourth Amendment in their state constitutions, but the federal Fourth Amendment only applied to federal agents. At the same time, federal law enforcement was almost completely unknown until the Prohibition era in the 1920s, meaning that for the first 130 years or so of American history the Fourth Amendment was on the books but was rarely invoked and its meaning was largely unknown.

  That picture changed dramatically in two cases, Wolf v. Colorado, 338 U.S. 25 (1949) and Mapp v. Ohio, 367 U.S. 643 (1961). Wolf held that the Fourth Amendment applied to the states but that the suppression remedy did not; Mapp overruled that latter part of Wolf and held that the Fourth Amendment and its exclusionary rule applied fully to the conduct of state actors. The doctrine Wolf and Mapp invoked to get there is generally known as the incorporation doctrine; the idea was that the Court interpreted the Due Process Clause of the 14th Amendment (which did apply to the states) as implicitly incorporating the Bill of Rights protections that had applied before only to the federal government. There's a long historical debate as to how persuasive this was as a reading of the Fourteenth Amendment, but the effect of the incorporation doctrine is clear: After incorporation, the rules that before had only applied to the federal government now also applied to state officers.

  For the Fourth Amendment, this was truly revolutionary: Suddenly the U.S. Supreme Court in Washington, DC, placed itself in charge of creating uniform rules to regulate every police officer in the United States. Plus, state and local police officers did lots of things that federal agents rarely did, like "walk the beat" and the like, so suddenly the Supreme Court had to decide a lot of issues involving day-to-day police powers that had never been addressed as a matter of constitutional law.

  This takes us to the powers to make arrest and search incident to the arrest that was at issue in Moore. Today, the rules for such things are well-settled: Under the Fourth Amendment, arrests require probable cause and the power to arrest permits a search incident to a lawful arrest. Obviously so, it seems to us: It's Crim Pro 101. But if you look back at the history of the Fourth Amendment, those rules end up being of surprisingly recent vintage.

  Indeed, at the time of incorporation, the constitutional threshholds for arrest and searches incident to arrest were largely unknown. If I'm not mistaken, the Supreme Court didn't settle that probable cause provided the Fourth Amendment standard for a warrantless arrest until 1959, in Henry v. United States, 361 U.S. 98 (1959) (although it had arguably hinted at this in 1949 in the Brinegar case). Until then, various formulations of the common law standard existed that states had mostly adopted, but state standards didn't matter because the Fourth Amendment didn't apply to the states. Further, Congress didn't enact a comprehensive statute on what the legal standard for a federal warrantless arrest might be until 1956. See Public Law 728, § 104, 70 Stat. 570, July 18, 1956. For most of American history there were few federal warrantless arrests, so legislating a federal warrantless arrest standard just wasn't a major issue. As the Supreme Court summarized the federal law of arrest in 1948, "it appears that the federal legislative materials are meager, inconsistent and inconclusive."
  Until United States v. Di Re, 332 U.S. 581 (1948), that is. I've already offered a very detailed explanation of Di Re, so let me just touch on the key point unexplored in the earlier post: What makes Di Re a difficult case to understand today is that the Court was applying the "search incident to a lawful arrest" doctrine at a time when there was no Fourth Amendment law at all on what made an arrest "lawful." Indeed, there wasn't yet a federal statute, either; that came eight years later. So the Supreme Court was trying to figure out what made an arrest "lawful" in the absence of preexisting constitutional or federal statutory law on arrests!

To read the rest of this post, click here.

Related Posts (on one page):

Virginia v. Moore and the Changing Role of the Fourth Amendment:
Supreme Court Hands Down Virginia v. Moore:
"Catch and Release" Tactics and Virginia v. Moore:
Oral Argument in Virginia v. Moore:
Why United States v. Di Re Clearly Was Not A Case on the Federal Supervisory Power:
Why the Defendant Should Win in Virginia v. Moore:

High School Student Speech and "Be Happy, Not Gay" T-Shirt:

The Seventh Circuit, in Nuxoll v. Indian Prairie School Dist. #204, just held that a student did have the right to wear such a T-shirt. (The student was wearing it in opposition to a pro-gay-rights National Day of Silence.)

The panel majority (Judge Posner joined by Judge Kanne) also opined, though, that under Tinker and Morse v. Frederick, the school would have broad rights to restrict shirts that were sufficiently derogatory of various groups, "if there is reason to think that a particular type of student speech will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school — symptoms therefore of substantial disruption." And the panel especially singled out speech that's derogatory to "highly sensitive personal-identity characteristics" as speech that seems especially likely to cause such disruption. The examples the majority gave as (apparently) restrictable were "blacks have lower IQs than whites," "a woman's place is in the home," "homosexuals are going to Hell," and "homophobes are closeted homosexuals"; it's not completely clear where the panel was committing itself to a conclusion that these particular statements would be restrictable, but that seems the likeliest interpretation.

As to "Be Happy, Not Gay," though, the majority concluded:

“Be Happy, Not Gay” is only tepidly negative; “derogatory” or “demeaning” seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says “Be Happy, Not Gay” would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech.... The school has failed to justify the ban of that [slogan], though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light.

Judge Rovner concurred in the judgment, but argued for a much more speech-protective reading of Tinker and Morse than the majority adopted.

My tentative thoughts on the subject:

1. Though the decision is something of a victory for the student speaker, the panel majority opinion would authorize a great deal of speech restrictions. It's a narrow reading of Tinker rights, and a broad reading of Morse's limit on those rights.

2. I'm not troubled by this decision the way I was about the Ninth Circuit's decision on a similar question in Harper v. Poway Unified School Dist.. The Ninth Circuit panel created an expressly viewpoint-based exception to student free speech rights, based on a supposed "right" of "minority" students to be free from "derogatory and injurious remarks directed at [their] minority status such as race, religion, and sexual orientation." The Seventh Circuit expressly rejected this, holding that "people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life." Instead, the Seventh Circuit focused on more traditionally recognized, and facially viewpoint-neutral, concerns about the disruption of the educational process.

3. I also think the concern about disruption of the educational process is quite serious. The public school authorities' job is to educate students, and it's harder to educate students who are distracted, upset, unhappy to be at school, even when they're not actually fighting or dropping out.

4. At the same time, the distinctions the majority opinion draws, and the disagreement between it and the concurrence about how to interpret Tinker and Morse, suggest that the existing doctrine — focused though it is on protecting free speech so long as it doesn't tend to be disruptive — doesn't do a great job of either protecting free speech or preventing disruption. Though the majority's rhetoric seems to nod in the direction of viewpoint neutrality, and though the majority's test is itself facially viewpoint-neutral (in a way the Harper majority's wasn't), the majority would tolerate a wide range of broad, vague, and viewpoint-based restrictions on student speech. At the same time, its approach calls for a case-by-case and hard to predict evaluation of just when speech is likely to be disruptive, an approach that is likely to constrain schools from barring some speech that genuinely is disruptive.

Maybe I'm asking for too much clarity or predictability in what is necessarily going to be a mushy endeavor. But I do think this area of free speech law is especially unclear and unpredictable.

5. Finally, I can just see Justice Thomas, his spiritual sometimes-brother Justice Hugo Black, and, of all people, Stanley Fish, saying "I told you so." Here the Seventh and the Ninth Circuits take very different views of very similar questions; the judges on the Seventh Circuit panel, both purporting to apply the Tinker and Morse tests — or perhaps non-tests? — taking very different view of the same question; and the judges in the majority tentatively allowing some anti-gay speech but not other anti-gay speech without much of a clear explanation of just where the line between the "tepidly negative" and, I suppose, "hotly negative" is drawn. Maybe, they'd say, the best bet is to leave speech in government-run K-12 schools almost entirely to school authorities, rather than muddling through this way. I'm not sure Thomas, Black, and Fish are right on this, but I'm not sure they're wrong, either.

Dartmouth Alumni Association Leadership Elections:

Elections for the Executive Committee of the Dartmouth Association of Alumni begins next Monday April 28. General information is here. Under the 1891 Agreement the AoA has had authority to select nominees for Alumni Trustee positions on the Dartmouth Board of Trustees.

This year the stakes in the election are clear and straightforward. The election is essentially a referendum on the Dartmouth Board of Trustee's board-packing plan that was announced last fall. Subsequent litigation initiated by the leadership of the Association of Alumni has led to an agreed standstill on the board-packing plan and the new election rules that were imposed on the election of Alumni Trustees under the board's plan.

There are two slates of nominees for AoA Ex Comm positions, one that opposes the board-packing plan and one that supports it.

The group that opposes the board-packing plan is called "Dartmouth Parity." Dartmouth Parity's website is here and a sample ballot is here. This group pledges to continue efforts to overturn the board-packing plan.

The group that supports the board-packing plan and pledges to cease efforts to oppose it is called "Dartmouth Undying." Its website is here.

Interested readers should note that this election is not merely a referendum on whether the Board of Trustees has the power to repudiate the promise of parity in the 1891 Agreement. That is significant, of course, not only because it would ratify this expansion of the Board, but also would open the spigot to the Trustees to expand the Board at will and to further dilute the ratio of Alumni Trustees on the Board.

But in the board-packing plan the Board also claims the power to dictate to the Association of Alumni the rules for election of Alumni Trustees. Thus, although the current plan preserves the principle of contested elections for Alumni Trustees and the availability of nominations by petition, acquiescing on this point would provide the Board with plenary power to snuff out both contested elections and petition nominations in the future.

Thus, for instance, two years ago there was a proposed new alumni constitution that would have dramatically changed the way in which Alumni Trustees were elected (and, incidentally, also would have snuffed out the independence of the Association of Alumni Executive Committee). That proposal was soundly defeated in an alumni referendum. One lesser-recognized element of the board-packing plan is a mandate from the board that the AoA adopt election procedures very similar to those rejected by the alumni in that election. Under this principle the Board implicitly claims the right to dictate election procedures. Had this been in place two years ago then the alumni would have had no right to decide this issue.

Note that the Court in the Alumni Association lawsuit specifically pointed to the responsbility of the AoA to conduct elections as one element of the consideration provided by the AoA under the 1891 Agreement (among other elements of consideration).

Thus, the election is not just a referendum on the particulars of the board-packing plan but also on the underlying principle of whether the Board has absolute authority over the election and representation of alumni on the Board, notwithstanding the 1891 Agreement.

In short, if you are a Dartmouth alum who opposes the board-packing plan or the principles that underlie it, vote for the Dartmouth Parity slate. If you support the board-packing plan and the principles that underlie it, you should vote for the Dartmouth Undying slate. Whatever you do, vote. This is truly an election where the future of Dartmouth depends on it.

One final note--in this context I've been reading a great deal in recent months about the famous Dartmouth College v. Woodward case (the Dartmouth College I case). Interestingly, those such as Daniel Webster who opposed that earlier board-packing plan were roundly criticized at the time as reactionary opponents of progress. Moreover, many thought it frivolous for Webster to contend that the board-packing plan breached a contract in violation of the Contracts Clause. Webster won, of course, as the Supreme Court found that the College charter was a contract that could not be abrogated. Despite contemporary opposition to Webster's litigation, few today would doubt that bringing the case to enforce the contract was appropriate and a pivotal moment for Dartmouth. America is a country animated by the rule of law and when a party legitimately believes its rights to be violated, it is appropriate to ask a neutral judge to decide the matter.

FLDS Update:

The judge has decided to allow infants to remain with their mothers, but otherwise has not modified the order removing all of the children from their homes, despite no individualized showings of child abuse or neglect.

In the previous thread, some commenters seem to assert that the CPS may take all of the FLDS's children away because (a) there has been documented abuse of children at other FLDS communities; and/or (b) the "culture" of the FLDS is inherently abusive, as it encourages early marriage and leaves its children inherently isolated by homeschooling them and not exposing them to social events, television, and the like. The latter criterion, at least, would place Amish and some of the more insular ultra-Orthodox Jewish communities in jeopardy.

As one commenter, otherwise sympathetic to CPS, put it, "the judge should focus on current or past crimes and not the culture - this puts religious belief on trial rather than actual behavior." Relatedly, the focus of CPS, and the judge overseeing the case, should be on individualized evidence of child neglect or abuse. And it remains rather troubling that the CPS apparently had the authority to take 437 kids from their parents after launching an investigation based on an apparently fraudulent complaint of abuse involving a specific, apparently nonexistent, girl.

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

"Thoughts From A Berkeley Professor on the Yoo Case": Read it over at Brian Leiter's Law School Reports.

The Fourth Law of Robotics:

The robot's owner shall not weasel out of a binding contractual relationship. OK, wrong science fiction author, but that's what is held by Hanson v. America West Airlines (per illustrious UCLA Law grad Judge Andrew Guilford):

Plaintiff David Hanson ... has lost his head. More specifically, Plaintiff has lost an artistically and scientifically valuable robotic head modeled after famous science fiction author Philip K. Dick (“Head”).... His stories have questioned whether robots can be human (see, e.g., Do Androids Dream of Electric Sheep? (1968)), so it seems appropriate that Plaintiff reincarnated Dick as a robot which included the Head, valued at around $750,000.

Plaintiff lost his Head on one of Defendant’s planes when flying from Texas to San Francisco with a connection in Las Vegas.... Plaintiff brought the Head onto the plane in a carry-on duffel bag and stored it in the overhead bin. Plaintiff fell asleep during the flight from Texas to Las Vegas, and woke up when the plane arrived in Las Vegas. On waking, Plaintiff immediately left the plane to catch his connecting flight to San Francisco. Perhaps because he had just woken up, Plaintiff lacked the total recall to remember to retrieve the Head from the overhead bin....

Federal common law allows a carrier to limit its liability for lost or damaged goods if the contract limiting liability offers the shipper (1) reasonable notice of the limited liability, and (2) a fair opportunity to buy higher liability. Defendant has satisfied the elements of an enforceable limited liability provision under federal common law....

Philip K. Dick and other science fiction luminaries have often explored whether robots might eventually evolve to exercise freedom of choice. See, e.g., 2001: A Space Odyssey (a HAL 9000 exercises his freedom of choice to make some bad decisions). But there is no doubt that humans have the freedom of choice to bind themselves in mutually advantageous contractual relationships. When Plaintiff chose to enter the Contract of Carriage with Defendant he agreed, among other things, to limit Defendant’s liability for lost baggage. Failing to show that he is entitled to relief from that agreement, Plaintiff is bound by the terms of that contract, which bars his state law claims.

Plus another cute line: "Defendant may have done everything as promised, only to fall victim to a head hunting thief or other skullduggery."

Citizen Gives Cop A Parking Ticket: Here's one from the "man bites dog" department, arising out of Portland, Oregon:

  An attorney who watched a police officer park illegally in front of a restaurant, then wait around while his meal was prepared, issued the officer a series of citizen-initiated violations.
  Eric Bryant said he was sitting at the restaurant March 7 when Officer Chad Stensgaard parked his patrol car next to a no-parking sign and walked inside to wait for his food, the Portland Mercury reported Thursday.
  Bryant told the weekly paper that when he asked Stensgaard about his car, the officer asked Bryant, "If someone broke into your house, would you rather have the police be able to park in front of your house or have to park three blocks away and walk there?
  Bryant filed a complaint as a private citizen alleging several violations, including illegal parking and illegal operation of an emergency vehicle.
  Stensgaard was issued a summons to appear in traffic court in May. The fines could total $540. . . .
  Cathe Kent, a spokeswoman for the Portland Police Bureau, said Stensgaard would fight the complaint in court, "as he rightfully should."

Lawyers at their best or lawyers at their worst? You decide.

UPDATE: Commenter "ShoudBeStudying" brings up an excellent point:

I wonder if the cop actually said (or meant to say) something a bit different: "If I had to respond to a robbery call at your house, wouldn't you rather my squad car be right here (in front of the restaurant), where I can hop into it in a matter of seconds, rather than three blocks away?"

I'll bet that's right. Keep in mind that all we have is the statement of Bryant, the complainant, who is reporting what he heard.

Journalists' Privilege:

If you're interested in the subject and are in the D.C. area, you might want to check out this panel next Tuesday, April 29, at 12 noon at the Mayflower ($20, lunch included). Click here to register.

The panelists will be Prof. Lillian BeVier (Virginia), Prof. Lee Levine (Levine Sullivan Koch & Schulz and Georgetown), our own coconspirator Erik Jaffe, and Andrew Hruska (King & Spalding); Rachel Brand, former Assistant Attorney General, Office of Legal Policy will moderate. The event is put together by the Free Speech & Election Law practice group of the Federalist Society -- I'm one of the board members of the practice group, and I'm sure the program will be both interesting and balanced. Here's the brief summary from the e-flyer:

A number of high profile court orders in the recent past have demanded reporters divulge confidential sources or face contempt charges. In response, both the House and the Senate have considered versions of a federal "reporters' shield" law to supplement the common law privilege often extended to reporters to keep sources confidential. This topic provokes a number of questions about the role of the press and whether it should be treated more leniently, the issue of who is "press," the proper balance of governmental confidentiality and the "public right to know," and the ability of law enforcement and national security experts to pursue leakers of confidential or classified information.

Is a federal reporters' shield law a good idea? How broadly should it reach? Should it protect professional journalists only or extend to ad hoc writers and bloggers, and if so, where and how is a line to be drawn? Are there other ways to balance reporters' and sources' interests with law enforcement? Is there a better mechanism than contempt to employ?

Supreme Court Hands Down Virginia v. Moore: Today the Supreme Court handed down Virginia v. Moore, ruling unanimously in favor of Virginia. Justice Scalia wrote the majority opinion; Justice Ginsburg concurred.

The gist of Justice Scalia's opinion is that he can't find any authority at all suggesting that the lawfulness of an arrest under state law has ever been relevant to whether an arrest violates the Fourth Amendment. Or perhaps more accurately, he finds himself insufficiently impressed with those cases and authorities that do point in that direction. For example, he gets past United States v. Di Re by saying it was just a case on the federal supervisory power:

Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U. S. 581, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. Id., at 589. We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. Id., at 589–590. This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute—saying that state law governs the validity of a warrantless arrest “in [the] absence of an applicable federal statute,” id., at 589, and that the Di Re rule applies “except in those cases where Congress has enacted a federal rule,” id., at 589–590.

If you recall my blog post, Why United States v. Di Re Clearly Was Not A Case On The Federal Supervisory Power, you'll realize how bogus this is, but hey, that's govenment work for you. (Scalia adds a nice touch at the end of the case when he characterizes the Court's decision as "reaffirm[ing] against a novel challenge what we have signaled for more than half a century," something that I suspect Justice Jackson might have found a rather puzzling characterization.)

Only Justice Ginsburg takes on Justice Scalia's mischaracterization of Di Re in her narrow concurrence;

[O]ur decision in United States v. Di Re, 332 U. S. 581, 587–590 (1948), requiring suppression of evidence gained in a search incident to an unlawful arrest, seems to me pinned on the Fourth Amendment and not to our “supervisory power,” ante, at 72[fn2]

[fn2] The Court attributes Di Re’s suppression ruling to our “supervisory power,” not to “a rule we derived from the Constitution.” Ante, at 7. Justice Jackson, author of Di Re, however, did not mention “supervisory power,” placed the decision in a Fourth Amendment context, see 332 U. S., at 585, and ended with a reminder that “our Constitution [places] obstacles in the way of a too permeating police surveillance,” id., at 595. The Di Re opinion, I recognize, is somewhat difficult to parse. Allied to Di Re’s Fourth Amendment instruction, the Court announced a choice-of-law rule not derived from the Constitution: When a state officer makes a warrantless arrest for a federal crime, federal arrest law governs the legality of the arrest; but absent a federal statute in point, “the law of the state where an arrest without warrant takes place determines its validity.” Id., at 588–589.

I don't think Justice Jackson saw that as a choice-of-law rule not derived from the Constitution; In 1948, back before the incorporation of the Fourth Amendment, the only agents regulated by the Fourth Amendment were federal agents. At the time, such a rule would have seemed a plausible way to determine the lawfulness of the arrest, which he, Learned Hand, and the rest had understood as resting on statutory arrest law. But maybe you have to be more of a Fourth Amendment geek than any Supreme Court Justice would be to see that. And in any event, kudos to Justice Ginsburg for at least raising the Di Re issue.

I plan to blog more on Moore in the future, time-permitting. Stay tuned.

Related Posts (on one page):

Child Abuse in the Name of Protecting Children:

Two snippets from the FLDS "child protection" case in Texas, in which 437 children have been forcibly removed from parental care while the state investigations allegations that adolescent girls were sexually abused by being coerced or "brainwashed" into "marriages" (religiously but not legally recognized) with much older men. (The raid was apparently prompted by a bogus call to CPS): (1) "Children under 12 months will be placed in foster homes with siblings who are under 5, she said, and every attempt will be made to place [other] siblings together. Boys 8 and older are going to Cal Farley's Boys Ranch northwest of Amarillo, where 27 adolescent boys already have been staying." (2)

The Texas judge overseeing the polygamous FLDS sect's case refused Monday to make any ruling that would allow breast-feeding mothers to remain with their children in state custody....Attorneys for the women asked the judge to consider letting nursing mothers remain with their children after negotiations with CPS on the issue stalled. They asked the judge to let the mothers stay until DNA results are in, likely to take up to 40 days. Walther acknowledged the nutritional and bonding benefits of breast-feeding. "But every day in this country, we have mothers who go back to work after six weeks of maternity leave," she said. "The court has made a determination that the environment those children were in was not safe," said Walther, adding that there is a shortage of suitable placements for infants in Texas.

Yep, having your mom go to work 8 hours a day is just like having no maternal contact at all and being placed in a foster home.

It's time for a nationally prominent civil liberties attorney to get involved.

UPDATE: And, courtesy of a VC commenter, a stinging op-ed from the Dallas Morning News:

Judge Barbara Walther, who is overseeing the YFZ Ranch case, yesterday declared: "The court has ruled the conditions those children were in were not safe for the children. I did not make the facts that got this case into the courts."

Excuse me, Judge? You issued a sweeping, house-to-house search warrant based on a highly questionable anonymous call that turned out to be phony. You refused to allow individual hearings for children, grouping them together like cattle. You accepted the testimony of an expert on "cults" who only learned about FLDS from media accounts, rather than an academic who'd studied them professionally for 18 years.

You've ruled the existence of five girls between 16 and 19 who were pregnant or had children was evidence of systematic abuse, even though in Texas 16-year-olds can marry with parental consent. You've ruled young toddlers are in "immediate" danger because of their parents' beliefs or what might happen 15 years from now, not because anyone abuses them.

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

The Heart of the Disagreement Among the Judges in the Texas FLDS Litigation?
Removal of Children from FLDS Ranch "Was Not Warranted":
Future Legal Action Against the Texas Polygamists?...
FLDS Pregnancy Statistics:
FLDS Update:
Child Abuse in the Name of Protecting Children:

Big Day in Philadelphia:

Forget Obama-Clinton. The Philadelphia Flyers beat the Washington Capitals in overtime in Game 7 of their first-round playoff series. This is the first time the Flyers have won a playoff series since 2004 (a long time for Philly fans), and an amazing rebound for a team that had the worst record last season.

Jobs I Would Leave Academia For:

The ever-recurring debate over whether academics are unhappy (discussed in my last post) leads me to ask whether there are jobs I would leave academia for if I could get them. There are a few such jobs. But the nature of this list actually underscores the difficulty of finding a job that would be more fun for me than academia:

I. Supreme Court Justice.

In addition to the power and prestige, Supreme Court justices get to deal with interesting and important cases that they choose themselves. Moreover, they have lots of time to write academic books and articles on the side if they want to (as Justices Breyer and Scalia do, among others). Due to a larger staff and smaller case load than other judges have, the justices have plenty of opportunity to pursue outside interests and commitments. I could even continue to blog about legal and political issues if I wanted to (as several lower court judges, such as Richard Posner do). The big caveat here is that even if I weren't already unconfirmable, I couldn't just leave GMU and become a Supreme Court justice right away. I would have to spend the next 20-30 years wooing the politicians who might appoint me and doing all I can to avoid saying anything that might hurt my confirmation chances. And even then, the chances of getting appointed would be a crapshoot at best. On balance, then, it's not really a preferable job to being an academic once I factor in all the sacrifices involved in getting it.

II. Science Fiction or Fantasy Writer.

If I had the talent for it, I'd love to write sci fi or fantasy novels for a living. However, it would only be worth it if I were good enough to be one of the top writers in the field. The hand to mouth existence and tiny reading audience of the average professional fiction writer is not - for me - preferable to life as even a mediocre academic. Moreover, nothing prevents an academic with tenure from writing sci fi or fantasy novels on the side if he wants to. It sure worked out well for J.R.R. Tolkien and C.S. Lewis, among others.

Note to members of my tenure review committee if you are reading this: No I don't plan to actually do this myself I get tenure, if only because of my dismal lack of literary talent. Trust me!

III. Owner of the Boston Red Sox.

I would love to have the opportunity to implement Moneyball principles even more thoroughly than the current, relatively enlightened, Red Sox owners have done. I do have some doubt about whether I have the political and interpersonal skills to manage a large enterprise such as a major league team. But I'm pretty sure I couldn't offend nearly as many people as George Steinbrenner and his sons have done in their time as New York Yankees owners.

Although it's tempting, I probably wouldn't leave academia to be a professional athlete myself - even if I had the physical talent for it. I don't think I could deal with the constant physical pain, and I also don't want to be washed up by the time I'm forty.

Bottom line: Unless some of you generous VC readers want to give me the $816 million or so that it would take to buy the Red Sox, I think I'm going to stay in academia.

UPDATE: I should note that this is a list of jobs that I think would actually be more fun for me than academia. I'm not considering jobs which would be less fun, but that I might take because I could perhaps make more a contribution to the public interest there.

UPDATE #2: To avoid assorted comments on this point, I'm not claiming above that I'm actually qualified right now to be a Supreme Court justice. I think I might have the technical legal knowledge for the job. But I probably don't have the necessary political skills.

Related Posts (on one page):

Jobs I Would Leave Academia For:
Are Academics Unhappy about their Jobs?
Law Professor Misery Roundup:
Some Evidence on Law Professors' Relative Job Satisfaction:
Are Law Professors Miserable, and if so Why?

Are Academics Unhappy about their Jobs?

Megan McArdle lists several possible reasons why academics are unhappy relative to members of other professions. Some of her reasons capture real downsides of academic life. But is the premise true? Are academics indeed unusually dissatisfied with their jobs? I think not.

Back in December, I wrote a series of posts challenging this premise in the specific case of law professors. The available evidence suggests that law professors are much happier with their jobs, on average, than other elite law school graduates - including those who went into "public service" and other jobs commonly associated with lifestyle benefits.

A particularly telling point is that, in most academic fields, there are far more applicants for jobs than available job openings. Indeed, the ratio of highly qualified applicants to available jobs is more lopsided in academia than any other industry I know of other than entertainment, art, and professional sports. That suggests that being a professor isn't a less satisfying life than most of the available alternatives. Perhaps the applicants are deluded, and don't realize that they would be happier working in industry or government. Maybe. But people who are already academics rarely leave academia for other careers - even those in fields like business, medicine, law, and economics who could easily obtain far more lucrative employment in the commercial sector.

As I noted above, some of the issues Megan notes are real causes of dissatisfaction among academics. For example, it is true that professors are highly status-conscious, that they make less money than they could in other fields, and that they often don't get to live in the cities they prefer. But offsetting these problems are major advantages such as 1) the opportunity to work on issues that interest you, as opposed to those that interest customers or the boss, 2) the ability to set your own schedule to a far greater extent than is possible in nearly any other professional job, and 3) the chance to influence public debate. Academics tend to be the kinds of people who care greatly about 1 and 2, and many care a lot about 3 as well. Indeed, the very fact that so many people compete for academic jobs despite the fact that they know they could make much more money elsewhere suggests that there are important benefits associated with those jobs. Those who don't find the tradeoff worth it are unlikely to enter academia in the first place or to stay very long if they do.

Not everyone would be happy as an academic. Indeed, the vast majority of people would probably hate it. But most academics and seekers of academic jobs would probably be a lot more unhappy in any other line of work.

UPDATE: I initially failed to link to Megan's post. This has now been corrected.

Related Posts (on one page):

Jobs I Would Leave Academia For:
Are Academics Unhappy about their Jobs?
Law Professor Misery Roundup:
Some Evidence on Law Professors' Relative Job Satisfaction:
Are Law Professors Miserable, and if so Why?

Al Qaeda Objects to 9/11 Conspiracy Theorists: So do you think it might give pause to 9/11 conspiracy theorists that Al Qaeda has now criticized Iran for spreading 9/11 conspiracy theories in an alleged effort to deny Al Qaeda the credit it believes it is due for the 9/11 attacks? Hmm, no, I guess not.

Interesting Pa. Exit Poll Datum:

9% of the voters in the Pennsylvania primary were African Americans who said race was not a factor in their vote. Of those 9%, 91% voted for Barack Obama, exactly the same as the overall African American percentage for Obama, including the 4+% who said race was a factor in their vote (the poll doesn't give a breakdown of the exact percentages for the latter group, but it can't be very different than 91-9).

By contrast, both men and women (especially women) who said that "gender" was a factor in their vote were significantly more likely to vote for Clinton. And whites who said race was a factor in their vote were significantly more likely to vote for Clinton.

Bar Passage Rates and Top Law Schools: John Donahue's blog post on the Yale Effect paper has a lot of interesting claims, some of which seem sound and some of which I'm less sure of, but I was struck in particular by this claim:

My colleague Roberta Romano notes that Barondes speculates that Yale law clerks may know less legal doctrine because of the school’s famous emphasis on theory. But Romano points out that bar review passage rates would at least give a sense of whether Yale Law students are deficient in acquiring knowledge of legal doctrine. To test this I thought one might look at July 2007 bar passage rates by school for the single largest state. As it turns out, across all non-California law schools with at least 15 applicants, Yale had the highest bar passage rate (94.1 percent). California bar exam takers from the University of Chicago and Harvard did quite well, but their passage rates of 86 and 87 percent were clearly lower than that of Yale students. Yale law graduates are looking better all the time!

Interesting point, although I doubt bar passage rates for Yale, Harvard, and Stanford have much to do with what law students actually learn at Yale, Harvard, and Stanford. In my experience, passing the bar is mostly a matter of how seriously students take their BarBri lectures [UPDATE: Or whatever lectures or books students use] to learn the fantasy world of law that exists only on the bar exam. For better or worse, the overlap between what students learn in school and what is on the bar exam is relatively narrow. As a result, bar exam passage rates don't shed much light on how much law students learn in school.

UPDATE: I should take this opportunity to link to the world's greatest BarBri parody video. Hilarious.

Yale Lawprof John Donohue Responds About the Supposed "Yale Clerk Effect":

A long and interesting post at Balkinization.

Related Posts (on one page):

More on "Want Your Opinions Questioned or Reversed? Hire a Yale Clerk":
Yale Lawprof John Donohue Responds About the Supposed "Yale Clerk Effect":
The Yale Cause or the Yale Effect?:
The Yale Clerk Effect:
"Want Your Opinions Questioned or Reversed? Hire a Yale Clerk":

Underwear Patents:

When I teach Intellectual Property, I always have a lot of fun with the important early patent case of Egbert v. Lippmann (104 US 333(1881)). In Egbert, the inventor of a new kind of corset-spring gave one of them to his then-girlfriend (who later became his wife) for use in her corset -- and the Supreme Court held that his patent was barred because this constituted a "public use" of the new spring design.
It's a very neat case -- aside from allowing a good discussion of the contours of the "public use" doctrine in patent law (as the dissent puts it, "if this is a 'public' use, then I cannot imagine what would not be"), there are all sorts of opportunities for good jokes; the Court opinion itself has the best double entendre in Supreme Court history (where the Court notes that the inventor "slept on his rights for eleven years"). I've even written a pretty decent song about the case (from the point of view of some guy trying to, um, convince Ms. Barnes to take off her corset and show him her springs . . .).
In any event, that's my excuse for noting this recently-filed patent infringement lawsuit against Victoria's Secret and their "Very Sexy 100-Way Strapless Convertible Bra." [A copy of the complaint, and the allegedly infringed bra patent, can be found here).

Google This!:

A survey from the market research firm of Millward Brown puts Google™ at the top of all global brands in terms of consumer recognition. I have no idea whether the survey is or isn't accurate, though it strikes me as a plausible result.
The interesting thing, though, is this. As those of you who know trademark law know well, a term cannot be a trademark if it has become a "generic" descriptor for goods or services. Lots of previously-trademarked names -- aspirin, cellophane, escalator -- began life as brand names, but over time became "genericized" and lost their trademark protection.
"Google," of course, is used generically all the time -- as in "google this, will you?" or "I googled her this morning and found out that . . ." The most well-recognized brand name in the world is conservatively worth billions of dollars; yet I am not aware of Google, Inc. doing anything to try to stem the genericization of their name. (Xerox, by contrast, with a much less valuable brand name than Google's, spends scads of money taking out advertisements pleading with consumers not to use their name as a generic description of photocopiers or photocopying services). That strikes me as odd, I must say -- perhaps they've decided that there's nothing they can do about that usage? Or that they get plenty of pay-back from having a name that consumers use generically?

Are "Gun-Free Zones" Dangerous?

John Lott has this interesting op-ed arguing that "gun-free zones" are actually more dangerous because they spawn attacks. He mentions that in my home town of Salt Lake City, the Trolley Square massacre (6 killed last year) took place at an area where the property owner had excluded firearms -- even those carried by concealed permit holders. He relies on anecdotal evidence for the argument, but seems to make a reasonable case for the proposition that "gun-free zones" are at greater risk of attack.

A Judge's Right to Speak ... Versus Getting Things Right

Over at Concurring Opinions, my thoughtful colleague Alice Ristroph wonders why I was willing to criticize Justice Stevens' opinion in Baze v. Rees without mentioning that he ultimately voted to uphold the death sentence in that case. She wonders: "Is the argument that a judge musn’t even say that he thinks a practice violates the constitution, even if he is then going to recognize and follow precedents to the contrary?"

Perhaps I could have been clearer in my earlier post, but I have no problem with any judge expressing their point of view of constitutional or other issues. I did that a few times myself as a judge, as Ristroph points out. My problem with Justice Stevens' views that the death penalty is (now) unconstitutional (and I think Orin's as well) is that Stevens is simply wrong on the merits. Judges certainly have a right to speak on legal issues ... but they should be be right on those issues.

Related Posts (on one page):

A Judge's Right to Speak ... Versus Getting Things Right
Why Baze v. Rees Should Not Lead to Endless Litigation:
Thoughts on Baze v. Rees:
Must-Read Scalia Opinion
Supreme Court Upholds Execution Protocol:

Reynolds on Geoengineering.--

Glenn Reynolds examines technological solutions to global warming:

[W]hat if we could reduce greenhouse gases without impoverishing the world? That would be worth doing anyway, because along with those greenhouse gases come all sorts of other nasty substances we're better off without.

That point is catching on, too. Even some environmentalists are already looking to nuclear power as, ironically enough, more environmentally friendly than coal, oil, or natural gas, and we'll likely see more such sentiment in the future.

But nuclear power is just a stopgap - as more advanced technologies like nanotechnology offer much greater prospects via solar energy and reduced energy consumption.

MIT's Vladimir Bulovic calls nanotech a potentially "disruptive technology" in the solar-energy field, offering a complete shift from today's fossil-fuel environment. And famed inventor and futurist Ray Kurzweil projects the current rate of progress in solar power forward and argues, "The power we are generating from solar is doubling every two years; at that rate, it will be able to meet all our energy needs within 20 years."

Solar research is progressing rapidly, and recent research suggests that "quantum nanodots" may offer dramatic improvements, perhaps on the order that Kurzweil predicts. . . .

Ultimately, we're probably better off putting our energies into promoting cleaner, more advanced technologies like these than in trying to get people to reduce the scope of their lives through "hair-shirt environmentalism."

Hair-shirts have always had their fans, but have seldom been widely adopted. On the other hand, most people would like to lead cleaner, better, more efficient lives. Why not give 'em what they want, and help the planet at the same time?

A focus on cutting energy consumption with today's technology isn't going to make much of a difference. Let's work on replacing current tech with something better, instead.

Once the cost of solar power becomes cheaper than electricity generated by burning coal and oil (which might well happen within a decade), the carbon footprint of developed countries will begin to change dramatically. Even if solar power becomes cheaper than the alternatives, given that the cost of solar panels must be borne up front, ultimately the spread of solar power to the developing world will depend on how rich developing countries are in 10-50 years.

If technology is the best route to environmental progress, any environmental reforms that impoverish people are likely to be unhealthy to the planet in the long run.

Related Posts (on one page):

Candidates favor reducing carbon emissions to levels not seen since the American Revolution.--
Reynolds on Geoengineering.--

Reynolds-Sunstein Podcast on "Libertarian Paternalism":

This is what Cass Sunstein was guest-blogging about here last week, but in a podcast, available here from Glenn Reynolds (InstaPundit) and his wife Helen Smith. Very interesting stuff.

Careful With That Simile:

From Mika Brzezinski, co-host of Morning Joe on MSNBC (irrelevant factoid: daughter of Zbigniew Brzezinski):

MIKA BRZEZINSKI: Well, but you can't argue that the Clinton campaign didn't do some serious damage in light of the Wright stuff and the bitter comments--

[Joe] SCARBOROUGH: That wasn't the Clinton campaign.

BRZEZINSKI: They pounced on it like lemmings.

Whoops. These sorts of slips are inevitable in unedited conversation, but still, whoops. Thanks to Mark Finkelstein (Newsbusters) and Matthew Sheffield for the pointer.

Plagiarism at MyDD.--

[UPDATE Monday, 12:40pm: On two computers that I tried this morning, the Powerblogs page that we use for posting and updating the Volokh Conspiracy was unreachable. Also, I noticed that there were no posts from other VC bloggers on Monday morning, typically one of our heavier posting times. At some hours this morning, I also had trouble reaching the main VC site, but at other hours I had no problems. After I contacted Powerblogs directly, our site was running normally within minutes (thanks to Chris Lansdown).

Some commenters below thought I should have been even more emphatic in emphasizing what I wrote below: "I do not know what Mr. Jefferson's precise position is at MyDD, but I should point out that many sites with diarists know little about them, so one should not judge the website MyDD by Mr. Jefferson."

The plagiarized story by Mr. Jefferson has now been removed from MyDD, though Mr. Jefferson's other posts remain. Here is a picture of the original MyDD story as it appeared on MyDD early this morning.]

I came across this post at the popular political website MyDD:

Did Obama Violate the Illinois Governmental Ethics Act?

by Thomas J Jefferson, Wed Mar 26, 2008 at 12:18:48 PM EST

Paul Caron has Barack and Michelle Obama's tax returns on his website, TaxProf Blog.

http://taxprof.typepad.com/taxprof_blog/ 2008/03/obama-releases.html

The first thing that jumped out is that in some years Barack received no speaking fees or honoraria. Apparently, as an Illinois state legislator through 2004, Barack was prohibited from taking honoraria for speaking under the Illinois Governmental Ethics Act.

But what about Barack Obama's 2000 and 2002 tax returns?

2000: On his 2000 Schedule C-EZ, Barack reported that he received $16,500 as a "Foundation director/Educational speaker."

2001: On his 2001 Schedule C-EZ, Barack reported $98,158 from a Chicago law firm, Miner, Barnhill, for "Legal services/attorney" (and nothing for speaking).

2002: On his 2002 Schedule C, Barack reported $34,491 for "LEGAL SERVCES / SPEAKING FEES."

These "speaking fees" are in addition to the amounts that Barack was paid as an employee, a lecturer at the University of Chicago, reported on the first page of his 1040s.

(show the rest of Jefferson's post)

The Illinois Governmental Ethics Act (apparently last changed in 1995) provides:

(5 ILCS 420/2-110)

Sec. 2-110. Honoraria.

(a) No member of the General Assembly shall accept any honorarium.

(b) As used in this Section:

"Honorarium" means a payment of money to a member of the General Assembly for an appearance or speech, excluding any actual and necessary travel expenses incurred by the member of the General Assembly (and one relative) to the extent that those expenses are paid by any other person. "Honorarium" does not include (i) cash payments made on behalf of a member of the General Assembly to an organization described under Section 501(c)(3) of the Internal Revenue Code of 1986, (ii) an agent's fee or commission, or (iii) funds reported under Article 9 of the Election Code [i.e., campaign contributions].

"Travel expense" means the reasonable cost of transportation and the reasonable cost of lodging and meals incurred while a person is away from his or her residence or principal place of employment.

(c) Any honorarium or honoraria accepted in violation of this Section shall be surrendered to the State Treasurer and deposited into the General Revenue Fund. (Source: P.A. 89 405, eff. 11-8-1995.)

Did Barack Obama violate this over-restrictive Illinois ethics act? Without knowing the precise situations and sources of these "SPEAKING FEES" in 2002 and payments as an "Educational speaker" in 2000, it is impossible to be certain whether any of this compensation meets the statutory definition of "a payment of money to a member of the General Assembly for an appearance or speech."

Also, I wonder whether Obama has rectified this problem in some way that I have not heard about. If not, I wonder whether Barack or his campaign has some explanation for accepting "SPEAKING FEES" or whether at this late date he should "surrender" several thousand dollars to the Illinois State Treasurer.

(Of course, my quick analysis assumes that Obama received no speaking fees besides those reported on his 2000 and 2002 tax returns — and thus has paid all the federal taxes he owed.)

(hide)

Dignity Interests in Constitutional Law: In his latest Findlaw column, Michael Dorf criticizes the plurality opinion in Baze v. Rees for relying in part on the interest in "dignity" of an execution:

Were it not for the paralyzing effect of pancuronium bromide, then the body of an unconscious prisoner killed by potassium chloride-induced cardiac arrest might convulse in a manner that would be disturbing to witnesses. As Chief Justice Roberts wrote in his plurality opinion, the state "has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress."

What could the Chief Justice mean by the "dignity of the procedure"? He might mean the dignity of the condemned prisoner. But, as Justice Stevens explains in his opinion, "whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect."

It is hard to imagine that a prisoner would choose to accept the latter risk in order to further the dignitary interest identified by the Chief Justice. . . . [T]he inclusion of the pancuronium bromide in the three-drug protocol is not for the benefit of the prisoner, but for the aesthetic sensibilities of the public.

Mike draws an analogy to Gonzales v. Carhart:

In this regard, the decision in Baze bears an uncomfortable resemblance to the Court's ruling last year in Gonzales v. Carhart. In that case, the Court upheld the federal Partial Birth Abortion Ban Act--which forbids a particular method of abortion in which a fetus is partially delivered into the birth canal before being killed. The basis for the ban was not that this abortion method was especially unsafe for the woman; on the contrary, there was evidence that in certain circumstances it is the safest abortion method.

I think you could also draw analogies to lots other opinions that rely heavily on dignity interests in constitutional interpretation. Important examples would include Lawrence v. Texas, 539 U.S. 558 (2003) ("It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.); Roper v. Simmons, 543 U.S. 551 (2005)("By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons."); and Alden v. Maine, 527 U.S. 706 (1999) ("Federalism requires that Congress accord States the respect and dignity due them as residuary sovereigns and joint participants in the Nation's governance. Immunity from suit in federal courts is not enough to preserve that dignity[.]").

The common theme among these opinions? Here's a hint: A person who MiKe knows well.

McCain's Ties to an Arizona Developer.--

The New York Times has a long story critical of John McCain's links to a rich Arizona developer, Donald Diamond (registration required):

Mr. McCain has campaigned as a critic of the corrupting influence of money and politics, saying he had learned a lesson from a late 1980s scandal over his part in an intervention with banking regulators examining a savings and loan controlled by a patron, Charles Keating. Since then, Mr. McCain vowed to embrace ethics standards that set him apart from many colleagues.

“I have carefully avoided situations that might even tangentially be construed as a less than proper use of my office,” he wrote in his memoir, “Worth the Fighting For” (Random House, 2002).

Mr. McCain once publicly criticized Mr. Diamond as lobbying too hard for his own financial interests. In 1995, Mr. McCain called it “unheard of” that Mr. Diamond had hired a Washington lobbyist to try to block construction of a federal building in Tucson that threatened to take away some of his rental income. “I didn’t talk to him for one year,” Mr. Diamond said of Mr. McCain. “I was annoyed.”

Legislating Land Deals

Mr. McCain has been willing, though, to help sponsor bills authorizing federal land exchanges that Mr. Diamond sought. Former Representative Jim Kolbe, another Arizona Republican close to Mr. Diamond, said Mr. Diamond often proposed such deals and impressed lawmakers with his frankness about the potential sensitivities, Mr. Kolbe said.

“He would tell you, ‘I don’t think you should get on this one, this one is too close to where you live, let another member of the delegation work on this one,’ ” Mr. Kolbe said. “He never tried to flim-flam you.”

Such exchanges can serve a public interest by expanding parks or wilderness areas. But many environmentalists and other analysts have also concluded that such trades almost invariably give private developers a profitable bargain at public expense. Although federal rules stipulate that public land can be traded for private land only of “equal value,” appraisals of unusual property or in fast-growing areas are highly variable and developers often apply political pressure to get favorable terms.

Should States Pass Capital Child Rape Statutes While Kennedy v. Louisiana is Pending?: Yesterday the Governor of Missouri, Matt Blunt, urged the Missouri legislature to pass legislation making child rape a capital crime. Over at the Sex Crimes blog, Corey Rayburn Yung comments:

It doesn't make sense . . . for Missouri to actually work on a statute now since the decision in Kennedy could well strike it down in the next couple of months. But in the interim, talking about executing child rapists always makes for good politics.

  I look at this differently. I think now is the ideal time for a legislature to pass such legislation, as the Justices would surely take note of it. If the Justices really mean it when they say they look to evolving views and what states have done, then a state enactment of such a law when Kennedy is still pending would be a pretty strong expression of popular will.

  Indeed, there may be a sort of constitutional laches principle at work here. A legislature that declines to pass such legislation now may find that its failure to act now means that it can never act. So a legislature that may someday want to make child rape a capital offense should probably do so now.

  To be clear, I'm not endorsing such statutes as a matter of policy. But if states want to retain the discretion to have such statutes in the future, it's sensible as a matter of constitutional law to pass those statutes while the Kennedy case is still pending.

How Low Can They Go?: Pollster.com publishes a very interesting trend line for Presidential approval ratings that combines the results of all of the different major polls. Based on the latest chart, President Bush is in serious danger of spending the rest of his Presidency in the dreaded Nixon-Just-Before-He-Resigned range.

Gov. Rendell on the Nation of Islam:

Andrew Sullivan links to this appalling speech by leading Clinton supporter and Pennsylvania governor Ed Rendell, from 1997 when he was mayor of Philadelphia. Rendell is, to say the least, fulsome in his praise of the racist and anti-Semitic cult and its leaders. And he sure seems oblivious to the irony of a white, Jewish mayor going using the Nation of Islam as his forum for denouncing racism.

Ninth Circuit Allows Suspicionless Computer Searches at the Border: The Ninth Circuit has (finally) handed down United States v. Arnold; the court ruled that there is no Fourth Amendment requirement of "reasonable suspicion" to search a laptop computer at the border. The decision overturns the opinion of District Judge Dean Pregerson that I blogged about here back in 2006. The unanimous appellate opinion by Judge O'Scannlain reasons that the greater storage capacity of computers does not make computer searches at the international border sufficiently different from other searches involving physical items:

Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed.

With respect to these searches, the Supreme Court has refused to draw distinctions between containers of information and contraband with respect to their quality or nature for purposes of determining the appropriate level of Fourth Amendment protection. Arnold’s analogy to a search of a home based on a laptop’s storage capacity is without merit. The Supreme Court has expressly rejected applying the Fourth Amendment protections afforded to homes to property which is “capable of functioning as a home” simply due to its size, or, distinguishing between “ ‘worthy and ‘unworthy’ containers.” California v. Carney, 471 U.S. 386, 393-94 (1985).

In Carney, the Supreme Court rejected the argument that evidence obtained from a warrantless search of a mobile home should be suppressed because it was “capable of functioning as a home.” Id. at 387-88, 393-94. The Supreme Court refused to treat a mobile home differently from other vehicles just because it could be used as a home. Id. at 394-95. The two main reasons that the Court gave in support of its holding, were: (1) that a mobile home is “readily movable,” and (2) that “the expectation [of privacy] with respect to one’s automobile is significantly less than that relating to one’s home or office.” Id. at 391 (quotation marks omitted).

Here, beyond the simple fact that one cannot live in a laptop, Carney militates against the proposition that a laptop is a home. First, as Arnold himself admits, a laptop goes with the person, and, therefore is “readily mobile.” Carney, 471 U.S. at 391. Second, one’s “expectation of privacy [at the border] . . . is significantly less than that relating to one’s home or office.” Id.

Moreover, case law does not support a finding that a search which occurs in an otherwise ordinary manner, is “particularly offensive” simply due to the storage capacity of the object being searched. See California v. Acevedo, 500 U.S. 565, 576 (1991) (refusing to find that “looking inside a closed container” when already properly searching a car was unreasonable when the Court had previously found “destroying the interior of an automobile” to be reasonable in Carroll v. United States, 267 U.S. 132 (1925)).

Because there is no basis in the record to support the contention that the manner in which the search occurred was “particularly offensive” in light of other searches allowed by the Supreme Court and our precedents, the district court’s judgment cannot be sustained.

I think this result is correct based on existing precedents and the record in this case, although Judge O'Scannlain's suggestion that storage capacity is irrelevant strikes me as too broad. Storage capacity is relevant to the Fourth Amendment's particularity requirement, for example: The particularity requirement is closely attuned to the scope of the place being searched. And as I argued in this article, I think storage capacity is relevant to how the courts approach the plain view exception (not an issue raised in this case).

In addition, California v. Carney strikes me as a puzzling case to rely on here. The issue in Arnold is not whether a computer actually is a home, but rather whether the storage capacity of computers and the type of information they contain makes searching a computer particularly invasive for purposes of the border search exception. I think it's likely to correct that the answer is no, at least based on the record of this case, but I don't see how the Carney case is particularly relevant. (Hat tip: How Appealing)

Bleg for Advice Re Cord Blood Banking:

After some hesitation, we banked our daughter's cord blood at her birth 2.5 years ago. We are now expected daughter number two, and are wondering whether we should bank her cord blood as well. It's pretty hard to get objective information about this, and thoughts from others who have contemplated the same decision are welcome. We can afford to do it, but don't want to waste our money.

California Bill Aimed at Protecting Animal Researchers:

I blogged about some problems with the bill two weeks ago; there's now a revised version, but I'm afraid that it will probably make matters worse.

The new version narrows the proposal, from protecting the employees of a wide range of animal enterprises (including food sellers, agricultural enterprises, zoos, and agricultural fairs) to instead cover only employees of "an entity that lawfully uses animals or animal products for education or research in any exercise of a constitutional right to academic freedom." But the trouble is that there's no well-established meaning of "any exercise of a constitutional right to academic freedom," at least where use of animals and animal products is involved.

The courts have talked in the past about a constitutional right to academic freedom, but they generally haven't precisely defined it. It is pretty clear that professors' speech is protected against criminal punishment, civil liability, and in some instance even firing by public university administrators -- though even there it's not clear whether this is because of some "constitutional right to academic freedom" or because of the general First Amendment freedom of speech. But the courts have not generally focused on a right to use products in the course of research, whether animal products or otherwise.

It's not at all clear that there is any "constitutional right to academic freedom" covering the use in research of animals, or pharmaceutical substances, or weapons, or other products (as opposed to the use in research of speech that is itself protected by the First Amendment, such as survey questions, articles, books, and the like). If, for instance, California banned any experiments on primates, I'm pretty sure this would be quite constitutionally permissible; likewise if the University of California imposed such a limit on its faculty. The government would be restricting conduct because of its noncommunicative impact, and a court would likely conclude that the government has an adequate interest for this restriction (protecting primates); so even if there is a presumptive right to do research using nonspeech conduct -- itself not clear -- that right would be easily trumped by the government interest. So while the UC is an entity that lawfully uses animals or animal products for education or research, I'm inclined to doubt that its use of animals for education and research is in any exercise of a constitutional right to academic freedom.

Now perhaps because of this, courts would interpret the provision nonliterally -- but it's not obvious to me just what interpretation they would use, and in any case it seems to me a mistake to enact a bill that doesn't literally cover what you want it to cover, hoping that courts will eventually fix the problem.

Related Posts (on one page):

California Bill Aimed at Protecting Animal Researchers:
Prohibiting Publication of Others' Photos?

Anti-Vaccine Cyber-SLAPP Update:

Orac provides an update on one plaintiff's attorney's shameful efforts to harass and intimidate those who've (correctly) disputed evidence of a vaccine-autism link.

UPDATE: Quashed.

Related Posts (on one page):

Anti-Vaccine Cyber-SLAPP Update:
Cyber-Slapp Against Neurodiversity.com:

Abortion Art, Possible Hoaxes, and Academic Freedom:

The Yale Daily News reports:

The University will not allow Aliza Shvarts ’08 to display her controversial senior art project at its scheduled opening Tuesday unless she confesses in writing that the exhibition is a work of fiction, Yale officials said Sunday.

The University, meanwhile, acknowledged that it has disciplined two faculty members for their role in allowing Shvarts to proceed with a project that she claimed included nine months of repeated artificial inseminations followed by self-induced miscarriages.

As news of Shvarts’ project swept across the Web last week and attracted the ire of students and private citizens alike, Shvarts and the University engaged in a match of he-said/she-said: Shvarts stood by her project as she described it earlier last week in a news release, while the University -- claiming Shvarts had privately denied actually committing the acts in question -- dismissed it as a hoax that amounted to nothing more than “performance art.” ...

“I am appalled,” Yale College Dean Peter Salovey said in a statement Friday. “This piece of performance art as reported in the press bears no relation to what I consider appropriate for an undergraduate senior project.”

School of Art Dean Robert Storr also condemned the project in a written statement Friday.

“If I had known about this, I would not have permitted it to go forward,” Storr said in the statement. “This is not an acceptable project in a community where the consequences go beyond the individual who initiates the project and may even endanger that individual.” ...

[Sunday], Salovey and Storr announced that an investigation had found “serious errors in judgement” on the part of two unnamed individuals -— ostensibly her thesis adviser, School of Art lecturer Pia Lindman, and School of Art Director of Undergraduate Studies Henk van Assen -- who had been involved in her project before it incited mass condemnation across campus and across the country and that “appropriate action” had been taken against them.

“In one case, the instructor responsible for the senior project should not have allowed it to go forward,” Salovey said. “In the other, an adviser should have interceded and consulted others when first given information about the project.” ...

In his statement Sunday night, Salovey called on Shvarts to produce a written confession admitting that her project did not actually include the graphic acts that she had first described. He added that Shvarts will not be allowed to install her project unless she admits she did not try to inseminate herself and induce miscarriages and promises that no human blood will be displayed in her exhibit....

In his statement, Storr emphasized that the University “has a profound commitment to freedom of expression” and that he, personally, supports the legality of abortion.

“That said, Yale does not encourage or condone projects that would involve unknown health risks to the student,” Storr said. “Nor does it believe that open discourse and inquiry can exist in an educational and creative community when an individual exercises these rights but evades full intellectual accountability for the strong response he or she may provoke.” ...

A few thoughts (keeping in mind that Yale is a private university, and the issue here is properly one of professional principles of academic freedom rather than of the First Amendment as such, though most of what I say would equally apply to public universities):

1. A university is surely entitled to impose content-neutral conditions on the projects that it will exhibit -- even if it has a practice of exhibiting all student projects -- as well as on the projects that are entitled to school credit. It may also impose many content-based conditions, since quality evaluations are generally based on content, but surely content-neutral conditions are generally quite apt. Obvious examples are conditions related to medium (this exhibition is paintings only, or to graduate you have to produce at least one painting and one sculpture), or materials used (you must produce this using oils and not watercolors).

With much modern art, the line between content-neutral and content-based restrictions is less obviously sound than it is with most speech, because the medium is quite literally an inherent part of the message. Nonetheless, it seems to me that tolerance of a wide range of content-neutral restrictions is required for pedagogical reasons (e.g., to teach people how to work in different media). Nor does the university have to defend such lines as a matter of academic freedom (as opposed to as a matter of sound judgment). Insisting, for instance, that everyone do at least one realist watercolor is a legitimate pedagogical decision on the university's part, though artists may or may not agree that this is a sensible requirement.

In particular, it seems to me that requirements that people not use human blood, or do things that jeopardize their health -- even slightly -- in the preparation of school projects are indeed permissible, whether as a means of protecting students' health, protecting others' health (even if the risk is very slight), or simply focusing the project on what is being depicted rather than on the medium being used. Such rules can be enforced both against students and advisors.

2. More broadly, one quite basic rule of universities is "tell the truth." Even without specific guidelines so saying, generally speaking students and faculty members need to be candid about the nature of their projects, whether it's the data they're reporting on or their own accounts of how the projects were put together.

Naturally, if a reasonable reader is aware that the statement is not meant literally, the author's duty of candor isn't violated: A short story submitted in writing class can't be faulted for being dishonest because it's fictional, so long as the reasonable reader knows that this is supposed to be a short story. The same is true of obvious parodies and the like.

Yet if the reasonable reader would interpret an assertion as being literally made, then the student (or a faculty member or anyone else in the university) has an obligation to make sure that the assertion is indeed true. Perhaps in some other contexts hoaxes might be forgivable -- but not in class work, unless there's some strong contextual cue that the hoax is indeed a hoax. So if Shvarts did indeed misdescribe what she did (the accounts I've seen are somewhat contradictory), she should be faulted for that, and at least required to correct the misdescription.

3. Yet it seems to me that, when it comes to the requirements described in #1, it's important that the university set out pretty clear rules, and not punish students or faculty members in the absence of such rules. This is especially true, I think, for art. As I understand it, avant-garde art and academic art, for better or worse, has in recent decades heavily prized the transgressive and shocking.

Shvarts and her advisors, it seems, gave the university pretty much what academic artists are asked to give. So if the university had a preexisting no-human-blood rule, then it could reasonably enforce it. But if it didn't, then I'm not sure what sort of "appropriate action" (setting aside a good talking-to) could reasonably be taken against faculty members who saw the transgressiveness of Shvarts' project as a plus rather than a minus. In other fields, it might be possible to fault faculty and students for violating unwritten but broadly accepted rules of scholarship. But my sense is that this is hard to assert (again, for better or worse) about modern academic art.

One question is whether this applies to #2 concerns as well, or whether the norm against false statements is scholarship is so well-understood that it need not be expressly stated (and perhaps it is expressly stated in some relevant policies). I'd be inclined to say that this is the sort of basic norm, alongside "don't commit crimes in making your project" or "don't do things that make your audience feel in danger of being shot," that goes without saying. A norm of "don't use your blood" or even "don't try to deliberately abort early-term fetuses for your art project" doesn't strike me as comparably well-entrenched in the academic art community.

* * *

There are a lot of "if"'s here -- I don't know exactly what the "appropriate action" was, I don't know exactly what the rules were, and I don't know to what extent Yale's action focused on the #1 concerns (rules about what's permitted generally for art projects) rather than #2 concerns (rules of academic candor). This is why I don't feel comfortable expressing a bottom-line judgment here, especially as to the matters is item #3. Still, I hope some of this general discussion strikes a chord.

Thanks to Dana Nguyen for the pointer.

New Jersey Constitution Requires Subpoena for Subscriber Information from ISP: The New Jersey Supreme Court has long interpreted the state constitution as going beyond the federal Constitution, and today the Court held that the New Jersey Constitution's version of the Fourth Amendment protects basic subscriber information (name, address, etc.) from an Internet Service Provider. The case is State v. Reid, and it involves an effort to compel Comcast to disclose what subscriber was assigned a particular IP address that was the source of an alleged computer intrusion.

I have two reactions. First, this decision doesn't matter much. After concluding that basic subscriber information is protected by the state constitution, the Court then concludes that a mere relevance subpoena is sufficient to respect the privacy interest. So no warrant is required, and no probable cause is required. That's where the real action is in this area, so the stakes of the Reid case end up being very low. Second, in a forthcoming article in the Michigan Law Review, I explain why I think reasoning such as the New Jersey Court's is conceptually flawed: In a nutshell, it misses the fact that addressing information in the online context is the virtual equivalent of public information such as physical location in the traditional physical setting. But the New Jersey Court's conclusion that a mere subpoena is enough makes this objection quite minor.

UPDATE: I rewrote the post after realizing I had initially misread the Court's decision.

L.A. Times Writer Apologizes for George Washington Error:

Her quite gracious comments:

If you want to know if anyone is reading your stories, make sure you insert a mistake about George Washington.

Oh, if only I could claim it was all a ploy by Calendar editors to gauge readership. But when I wrote in Saturday's story about HBO that George Washington stepped down from the presidency after serving only one term, it was just a stupid, blind error, the sort that leaves you smiting your forehead, literally and repeatedly, the moment it is pointed out to you.

For the six or seven people living in the Los Angeles Basin who did not e-mail to correct me, he served two terms, not one. And my daddy was a history teacher! Ever since the first e-mail hit my box (on Friday afternoon, about two seconds after the story went up on the website), I have been bathed in hot shame. But I want to thank you, well, most of you, for the gentle tone you took -- most clever subject line award goes to: Is a TV Critic Smarter Than a 5th Grader? -- though I certainly deserved all those incredulous exclamation marks as well. And yes, I did go to college. Graduated even.

Also, for the record, we entertainment writers are held just as accountable for flubbed historical references as any other journalist. The correction runs today online and in tomorrow's print edition, and I will try to comfort myself with the knowledge that a good, strong dose of humility is always good for the soul. Especially the soul of a critic.

The Readers' Representative also e-mailed me (and, I assume, all the other readers who wrote in) first thing this morning to respond to my Saturday e-mail noting the error.

Related Posts (on one page):

L.A. Times Writer Apologizes for George Washington Error:
Learn Something New Every Day:

"I Knew Nobody Who Owned a Gun":

I've often heard this line in various forms, most recently in a WallStreet Journal article that's generally sympathetic to gun owners: "Growing up in Seattle, I knew nobody who owned a gun."

The striking thing is that this statement is almost certainly false: I strongly suspect that anyone growing up even in a very insular corner of Seattle did know people who owned guns. He just didn't know that he knew them, because they weren't telling, and one of the reasons they weren't telling was precisely the casual assumption that of course no-one in their circle would ever do such a thing.

This is a common phenomenon (labeled "preference falsification" by Timur Kuran when it has to do with attitudes rather than behavior). If a particular practice is socially frowned on by some, then the substantial minority -- or sometimes even a majority -- that engages in it may hide its behavior, leading everyone to dramatically underestimate the prevalence of the practice. So you can have 20% of the population owning guns (much less than the national average, but perhaps it was the average in the author's Seattle circle), but this 20% actual prevalence would look like a 2% prevalence or even a zero prevalence.

The quote reminds me of Justice Powell's famous line "I don't believe I've ever met a homosexual," said at the time Justice Powell was considering his vote in the Bowers v. Hardwick (1986) gay sex case. (See John C. Jeffries, Jr.'s biography.) Powell had by then had several gay clerks, and apparently said the statement to a clerk who was himself in fact gay. Powell's belief that he'd never met a homosexual was much like some people's belief that they didn't know anyone who owned a gun.

This also helps show the wisdom of many gay rights activists' view that coming out to friends and family is itself a potent political action. It's much harder to demonize that which your friends happily do than that which no-one you know would ever dream of doing. (Still possible to criticize it, of course, but harder to demonize it.) Gun owners in relatively non-gun-owning circles -- especially the well-liked and good-looking gun owners -- should do the same.

The article's bottom line, by the way, is that surveys report that gun owners aren't particularly likely to be "bitter," but are actually a little more likely to be happy than non-gun-owners; as I said, this is not an anti-gun article. Moreover, the author might even, on reflection, realize the error of his statement, especially given his consciousness of "how little some Americans know about their neighbors"; he might have actually meant to say "I knew nobody whom I knew to have owned a gun." But the way he put it still strikes me as telling.

University Police Let 10,000 Smoke Pot In University Quad: The Daily Camera reports, via Drudge:

  Although it’s become an annual and renowned event at [the University of Colorado at Boulder], this year’s 4/20 celebration was different in some ways than in many previous years: The crowd was so large it migrated from the long-traditional site of Farrand Field to the larger Norlin quad; festivities kicked off earlier than normal with daytime concerts; and CU police handed out zero citations.
  “At this point, none are anticipated,” said CU police Cmdr. Brad Wiesley.
  Officers in the past have gone to great lengths to catch people in the illegal act of smoking pot on 4/20.
  In 2006, CU police dispatched undercover photographers to snap pictures of smokers. Photos of 150 alleged offenders then were posted on the department’s Web site, and witnesses were offered $50 to positively identify the suspects — who then were ticketed. Another year, smokers on Farrand were doused with sprinklers.
  “We can’t do the same thing year after year,” Wiesley said hours before today's smoking began. “So I doubt we’ll do anything like the pictures. ... There’s no way our 12 to 15 officers are going to be able to deal with a crowd of 10,000. We just can’t do strong enforcement when we’re outnumbered 700 or 800 to one.”

Pictures available here.

Can Congress Regulate Interstate Moves by Sex Offenders Because they count as "Economic Activity" under Gonzales v. Raich?

In my earlier post on the federal district court decision striking down a part of the Adam Walsh Act as beyond Congress' powers under the Commerce Clause, I omitted a crucial additional reason why this legislation is valid under the Supreme Court's misguided 2005 decision in Gonzales v. Raich: According to Raich, virtually any interstate movement qualifies as "economic activity" that Congress can regulate at will.

Recall that the Adam Walsh Act requires sex offenders to register with the authorities anytime they make an interstate move. This seems pretty far removed from interstate commerce, which under Article I, Sect. 8, Clause 3 of the Constitution is defined as "commerce . . . among the several States." However, in Raich the Court followed earlier decisions in ruling that the Commerce Clause is broad enough to allow federal regulation of any "economic activity," regardless of whether that activity is interstate or not. Much more controversially, Raich - unlike those earlier decisions - adopted a virtually limitless definition of what counts as "economic activity." It defined it to include anything that involves the "production, distribution, and consumption of commodities." For a more detailed discussion of this aspect of Raich, see pp. 513-16 of my article on the case.

Virtually any interstate movement by a sex offender (or anyone else) falls within this definition. If the mover in question travel by car, bus, train, or plane, fuel was certainly "consumed" in the process. And fuel is definitely a commodity. Even if he went the whole way on foot carrying his possessions with him in his arms, he still probably had to consume food and water along the way in order to maintain the strength to keep going. Food and water are commodities too. Among the many flaws in the district court opinion striking down the registration requirement Adam Walsh Act is its failure to consider Raich's ultraexpansive definition of "economic activity."

Perhaps you think this is an indefensibly broad interpretation of Congress' Comerce Clause authority. If so, I agree with you completely. Unfortunately, the Supreme Court majority doesn't. I can only hope that they will rethink their position; or - more likely - that new appointees will take a more sensible view than the current justices. Until they do, however, the Adam Walsh Act is almost certainly valid under current precedent.

Related Posts (on one page):

Can Congress Regulate Interstate Moves by Sex Offenders Because they count as "Economic Activity" under Gonzales v. Raich?
U.S. v. Powers, Sex Offender Registration, and the Commerce Clause:
Congress Has No Power to Regulate Traveling in Interstate Commerce By Unregistered Sex Offenders, District Court Judge Holds:

U.S. v. Powers, Sex Offender Registration, and the Commerce Clause:

The Middle District of Florida's decision striking down a part of the Adam Walsh Act that requires sex offenders to register if they make an interstate move is flawed in several respects. Let me state at the outset that I think that this statute is unconstitutional on the basis of anything remotely approaching a correct interpretation of the Commerce Clause. Travel by sex offenders (or other citizens not traveling for commercial purposes) is not commerce. Nor is requiring them to register with federal officials a regulation of commercial activity (even if interstate travel counts as such). Rather, it is an attempt to protect children against sex crimes.

That said, I think Orin is right that the decision is inconsistent with current Supreme Court precedent. In particular, it virtually ignores the Court's 2005 decision in Gonzales v. Raich, which, as I argued in this article, almost completely eviscerates any judicially enforceable limits on Congress' Commerce Clause authority.

The most glaring of the district court's omissions is its failure to recognize that Raich reinstated the so-called "rational basis" test for determining whether a federal law regulates interstate commerce or not. That is, the Court held that the feds need only show that Congress might have had a "rational basis" for believing that the activity regulated by the law has, in the aggregate, a "substantial effect" on interstate commerce. As first year constitutional students know, almost any non-moronic conjecture is enough to satisfy the rational basis test. At the very least, the District Court should have applied the rational basis test and explained exactly why the Walsh Act's registration requirements fail it despite its extremely deferential nature. This it conspicuously fails to do.

Second, the district court claims that the Walsh Act must have a clear and relatively stringent "jurisdictional element" limiting its scope to cases connected to interstate commerce. The lack of a jurisdictional element was indeed one factor cited by the Supreme Court in striking down federal statutes on Commerce Clause grounds in United States v. Lopez and United States v. Morrison. However, the Court has never required the presence of a jurisdictional element, and indeed the law upheld in Raich did not have any more stringent a jurisdictional element than the Walsh Act.

Third, the court too easily dismisses in one conclusory line the possibility that the Walsh Act might be a regulation of the "channels and instrumentalities of interstate commerce" (which the Supremes have consistently said Congress can regulate). By preventing sex offenders from traveling interstate without meeting the the registration requirement, the Act does indeed restrict who can use the interstate transportation systems that surely count as "channels and instrumentalities of interstate commerce."

It is possible that the district judge could have shown that the Walsh Act registration requirement is unconstitutional even under Raich, though I highly doubt it. His failure to even consider Raich makes it extremely likely that this decision will be overturned by the Eleventh Circuit Court of Appeals.

Related Posts (on one page):

Can Congress Regulate Interstate Moves by Sex Offenders Because they count as "Economic Activity" under Gonzales v. Raich?
U.S. v. Powers, Sex Offender Registration, and the Commerce Clause:
Congress Has No Power to Regulate Traveling in Interstate Commerce By Unregistered Sex Offenders, District Court Judge Holds:

Congress Has No Power to Regulate Traveling in Interstate Commerce By Unregistered Sex Offenders, District Court Judge Holds: On Friday, District Judge Gregory Presnell in Orlando handed down United States v. Powers, a decision striking down part of the Adam Walsh Child Protection and Safety Act of 2006 on Commerce Clause grounds. In relevant part, the Act requires state sex offenders to register if they travel out of state. Specifically, a state sex offender who "travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and [who] knowingly fails to register" with the sex offender registry can be charged with a crime. 18 U.S.C. § 2250(a).

In his opinion, Judge Presnell concludes that Congress has no power to regulate traveling in interstate commerce like this:

Here, we are clearly not dealing with the regulation of channels or instrumentalities of commerce. Nor are we dealing with the regulation of persons or things in interstate commerce. This is not a case where the interstate travel is intended to further the crime itself, such that a case by case determination can be made as to whether there is a sufficient nexus between the crime and interstate commerce.

According to Judge Presnell, the law fails the third prong of Lopez, too:

Unlike the statutes at issue in Lopez and Morrison, § 2250(a) does contain a "jurisdictional element" which purports to establish a link between the failure to register as a sex offender and interstate commerce. The government contends that this language lends support to the argument that § 2250(a) is sufficiently tied to interstate commerce. Upon close examination, however, it becomes apparent that this supposed link is superficial and insufficient to support a finding of substantial affect on interstate commerce.

The Commerce Clause, and the case law interpreting its limits, require more than statutory “lip service” to interstate commerce. . . . [T]he statute does not become applicable to an individual until after that person has completed his or her interstate travel. And it applies to persons who have engaged in interstate travel regardless of how legitimate their reasons for such travel may have been. The mere fact that the individual has, at some point, traveled in interstate commerce does not establish that his or her subsequent failure to register “substantially affects interstate commerce.” Simply put, there is no nexus between the crime (failure to register) and the interstate travel.

  I am not a Commerce Clause expert, but isn't this pretty clearly wrong under prevailing precedents? I have no views about the merits of this law, but it seems to me that the law pretty directly regulates traveling in interstate commerce: Specifically, it directly prohibits such traveling by state sex offenders who have not registered.

  Judge Presnell works around this by quarantining the "travel in interstate commerce" requirement and then asking whether the leftover condition on traveling in interstate commerce itself affects interstate commerce. But I don't think you can do that. The issue is whether Congress is regulating interstate commerce, not whether its chosen criteria for regulating interstate commerce themselves have an independent nexus to interstate commerce.

  Based on past experience, I should state at the outset for the VC commenting community that: (a) No, this is not some veiled commentary in support of the law, (b) No, this is not an endorsement of modern Commerce Clause doctrine, (c) No, I don't really have views on the merits of sex offender registries more generally, (d) No, I don't know if Judge Presnell hires lots of clerks from Yale. My interest here is just on whether Judge Presnell's decision striking down the law is correct given the current state of binding precedent. Incidentally, if you're interested in some of Judge Presnell's past appearances here at the VC, check out here and here. And thanks to Sentencing Law & Policy for the link.

Related Posts (on one page):

Can Congress Regulate Interstate Moves by Sex Offenders Because they count as "Economic Activity" under Gonzales v. Raich?
U.S. v. Powers, Sex Offender Registration, and the Commerce Clause:
Congress Has No Power to Regulate Traveling in Interstate Commerce By Unregistered Sex Offenders, District Court Judge Holds:

Sunday Song Lyric:

In June, the Songwriters Hall of Fame will bestow the Hal David Starlight Award on John Rzeznik of the Goo Goo Dolls. The relatively new award is given to "gifted songwriters who are at an apex in their careers and are making a significant impact in the music industry via their original songs." Among the songs for which Rzeznik is receiving notice is "Iris," a song composed for the "City of Angels" soundtrack he reportedly wrote in about four minutes. Here's a taste of the lyrics:

And I'd give up forever to touch you 'Cause I know that you feel me somehow You're the closest to heaven that I'll ever be And I don't want to go home right now . . .

And I don't want the world to see me 'Cause I don't think that they'd understand When everything's made to be broken I just want you to know who I am

Here are the full lyrics and the video.

"Captain Kidd, Human-Rights Victim":

John Burnett, author of Dangerous Waters: Modern Piracy and Terror on the High Seas, has more on Britain's new approach to piracy.

On April 11, French commandos went in with guns blazing and captured a gang of pirates who days earlier had hijacked a luxury cruise ship, the Ponant, and held the crew for ransom. This was the French solution to a crime wave that has threatened international shipping off Somalia; those of us who have been on the business end of a pirate’s gun can only applaud their action.

The British government on the other hand, to the incredulity of many in the maritime industry, has taken a curiously pathetic approach to piracy. While the French were flying six of the captured pirates to Paris to face trial, the British Foreign Office issued a directive to the once vaunted Royal Navy not to detain any pirates, because doing so could violate their human rights. British warships patrolling the pirate-infested waters off Somalia were advised that captured pirates could claim asylum in Britain and that those who were returned to Somalia faced beheading for murder or a hand chopped off for theft under Islamic law.

According to Burnett, Britain's approach is not so popular (at least not with those threatened by pirates.

The British fear of breaching the human rights of pirates has not gone down well in the maritime community. Andrew Linington, the spokesman for Nautilus, a British-Dutch seafarers trade union, has called the Foreign Office’s policy “a get out of jail card” for pirates.

“We despair,” Mr. Linington told me. “We are meant to be a major maritime country. The U.K. is heavily dependent on maritime trade — 95 percent of trade comes and goes by sea. Yet the Foreign Office has its head in the sand. It is just wishing the problem would go away.”

The British attitude has come a long way since the days when pirates were chained to pilings at Wapping and left there until the tidal water of the Thames ebbed and flowed over the bodies three times. So much for Britannia ruling the waves.

Related Posts (on one page):

"Captain Kidd, Human-Rights Victim":
"[Don't] Detain Pirates Because Doing So May Breach Their Human Rights"?

"[Don't] Detain Pirates Because Doing So May Breach Their Human Rights"?

The Times (London) reports (thanks to Overlawyered for the pointer):

The Royal Navy ... has been told by the Foreign Office not to detain pirates because doing so may breach their human rights.

Warships patrolling pirate-infested waters, such as those off Somalia, have been warned that there is also a risk that captured pirates could claim asylum in Britain.

The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.

In 2005 there were almost 40 attacks by pirates and 16 vessels were hijacked and held for ransom. Employing high-tech weaponry, they kill, steal and hold ships’ crews to ransom. This year alone pirates killed three people near the Philippines....

Britain is part of a coalition force that patrols piracy stricken areas and the guidance has troubled navy officers who believe they should have more freedom to intervene....

A Foreign Office spokesman said: “There are issues about human rights and what might happen in these circumstances. The main thing is to ensure any incident is resolved peacefully.” ...

Can this possibly be a correct summary of the Foreign Office directive? It's one thing not to return the pirates to Somalia, but it's quite another to instruct the Navy "not to detain" them. (They may, after all, be tried in places other than Somalia.) Can anyone point me to a more complete summary of the situation, or to the text of the Foreign Office directive? If the story is reasonably accurate, then this is just appalling.

Also, can it really be the case that "[t]he main thing is to ensure any incident is resolved peacefully"? I would think that the main thing should be to minimize harm caused by this incident and the others that are likely to follow. If resolving each incident as peacefully as possible leads to an increase in the number of incidents (some of which will inevitably not be resolved peacefully, and all of which will involve robbery, kidnapping, and other harms even if they don't lead to death or serious injury), and modestly increasing the risk of violence in any particular case will help kill off some pirates, capture others, and deter still more for future cases, then the "resolve[] peacefully" principle may do more harm than good.

Related Posts (on one page):

"Captain Kidd, Human-Rights Victim":
"[Don't] Detain Pirates Because Doing So May Breach Their Human Rights"?

Saturday, April 26, 2008

Friday, April 25, 2008

Thursday, April 24, 2008

Wednesday, April 23, 2008

Tuesday, April 22, 2008

Monday, April 21, 2008

Sunday, April 20, 2008