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Saturday, April 4, 2009
The New York Times on Public Funding for the New Yankee Stadium:
I have written several posts criticizing the massive public financing of the new Yankee Stadium, which has received more government subsidies than any other stadium project in American history (see here for the most recent, with links to earlier ones). Yesterday, the New York Times had an interesting article on the evolution of sports stadium financing in New York:
In dimensions and decor, the new [Yankee] stadium, handsome and comfortable, is meant to evoke the old one. But the resemblance is only concrete deep. This is not history, but a costume party, a rigging of familiar geometry. It disguises a radical departure from New York’s baseball history: the embrace of public subsidy — around a billion dollars when all the costs are added — for private wealth.
The first incarnation of Yankee Stadium opened in 1923. The owner, Jacob Ruppert, bought private land, raised private funds for the construction, and maintained the place with money he made in ticket sales. Ruppert and his successors paid taxes on the property: the land alone was assessed at $1.75 million in 1923. By 1970, the stadium and land were valued at $5 million.
If you were to page through the annual city tax rolls, you would find the valuation of Yankee Stadium — as well as the Polo Grounds in Manhattan and Ebbets Field in Brooklyn, the homes of the Giants and Dodgers — listed right alongside the other big properties in the city, like Rockefeller Center, the Metropolitan Life building and Loews Paradise theater.
What do those old tax rolls tell us?
They say that for much of the 20th century, baseball in New York was recognized by the government as another commercial venture, with all the opportunities and responsibilities of owning property.
Not at the new “cathedral of baseball.” In fact, the stadium is being treated by the government as if it were a house of worship, not a place to sell $10 cups of beer. The partnership that owns the team has a 40-year lease on what had been city parkland. The partners will pay neither property tax nor the “payments in lieu of taxes” that are made when a private business venture occupies public space.
The fact that sports stadiums were routinely built and financed with private funds up until the 1960s and 70s - at a time when the business of pro sports was far less lucrative than today - undercuts owners' claims that they need government subsidies to survive. Indeed, in that earlier era, sports team owners not only paid for their stadiums themselves but also paid property taxes on them at the same rates as other landowners.
Ironically, as the NYT article points out, the Yankees opposed public financing and tax exemptions for the construction of the rival New York Mets' Shea Stadium in the early 1960s. Then-Yankees General Manager George Weiss warned that publicly funded sports stadiums would become "white elephants" for city governments. Weiss' prediction has turned out to be accurate. Today, public funding for sports stadiums routinely fails to provide economic benefits that even begin to approach their costs. Perhaps it is time for New York and other cities to take Weiss' warning to heart.
UPDATE: The original version of this post wrongly referred to to George Weiss as "Al Weiss." The mistake has now been corrected. Related Posts (on one page): - Exorbitant Ticket Prices at the New Yankee Stadium:
- The New York Times on Public Funding for the New Yankee Stadium:
Why "Voting With Your Feet" in a Federal System Benefits the Poor More than the Rich:
In my last post, I explained how the right to "vote with your feet" in a federalist system provides strong protection for owners of mobile assets. Owners of such assets can leave a jurisdiction which subjects them to confiscation, excessive taxes, or other harsh treatment. By contrast, owners of immobile assets, such as land, benefit less from interjurisdictional competition under federalism because they can't take these assets with them if they choose to move.
This point has an important implication for one of the standard criticisms of decentralized federalism: the belief that voting with your feet benefits the rich more than the poor. In some ways, the reverse might actually be true, because the poor are less likely to own significant fixed assets than the rich do. Wealthy people who own expensive houses or other fixed assets (e.g. - factories, large estates, etc.) can't move as easily as poorer individuals whose only major assets are their bodies and minds. To be sure, the rich will find it easier to pay the costs of a move. However, these costs are unlikely to be large in the modern world, where cheap interstate transportation is readily available (especially for those who don't have a lot of possessions to take with them). Overall, it should usually be easier for the poor to vote with their feet than for the more affluent.
Empirical evidence supports this conjecture. As I note in Part V of this article, people living in households with an annual income under $15,000 per year are twice as likely to make interstate moves as those in higher income classes. Historically, poor and oppressed groups have often used interstate mobility to their advantage, even in periods when the costs of transportation were much higher than today. The mass migration of African-Americans out of the Jim Crow South during the early 20th century (briefly discussed in the same article) is a particularly striking example.
Obviously, attracting poor people is not as valuable to revenue-seeking states as attracting an equal number of affluent ones. However, so long as the poor people in question are economically productive, a state government still has some incentives to compete for them - especially if bringing them in also attracts capital from investments in firms that might hire them. Thus, despite widespread racism, early 20th century northern state and local governments did make at least some effort to be hospitable to southern black migrants out of these kinds of self-interested motives. Moreover, attracting a large number of lower-income workers might benefit a state's bottom line more than attracting a small number of higher-income ones. The former group might actually pay more taxes in the aggregate (especially in a state where much of the revenue comes from sales taxes, which are not progressive).
Advocates of centralization often claim that it benefits the poor. In some ways this is true; for example, it may be easier for the federal government to redistribute income to the poor than for a state to do so. However, it is important to recognize that centralization also undermines the ability of the poor to help themselves by voting with their feet. If the early 20th century United States had had a unitary policy on race, it would likely have been far closer to that of the Southern states at the time than the northern ones. Thus, millions of southern blacks would have lost the opportunity to better their lot. If the European Union had a common labor policy today, it would likely have strictly regulated labor markets similar to those of France and Germany, which would make it impossible for citizens of the EU's poorer nations to improve their situations by moving to areas with better employment opportunities - as millions have done over the last two decades.
As both the United States and the European Union move towards greater and greater concentration of power in the central government, we should be wary of the possible negative effects on our poorest citizens. While centralized control of redistributive welfare programs might help the poor, central direction of many other policy areas is likely to have the opposite effect in so far as it undermines citizens' ability to vote with their feet. Far from helping the disadvantaged, the trend toward centralization might well cause them more harm than good.
"Holder's Way":
Tomorrow's Washington Post will feature an op-ed by former OLC deputy Edward Whelan strongly criticizing Attorney General Eric Holder
At his recent confirmation hearing, a chastened Holder assured senators that he had learned from the past and was committed to upholding the department's high standards. He specifically promised not to politicize DOJ's legal positions: "We don't change OLC opinions simply because a new administration takes over," he said. Any review "will not be a political process, it will be one based solely on our interpretation of the law."
Alas, less than two months into his tenure as attorney general, according to accounts in The Post last week, Holder has abused OLC for partisan political purposes. . . .
it's legitimate, if exceedingly rare, for an attorney general to contest OLC's advice. The office is, after all, exercising the advisory function the attorney general has delegated to it. But there's a right way to overrule OLC, and then there's Holder's way. The right way would have been for Holder to conduct a full and careful formal review of the legal question. If that review yielded the conclusion that Holder's position was in fact the best reading of the law — an extremely unlikely conclusion, in my judgment — then Holder would sign a written opinion to that effect.
Holder instead adopted a sham review that abused OLC's institutional role. . . .
This episode recalls Holder's conduct regarding the Marc Rich and FALN pardons when he was Deputy Attorney General, and fails to meet the standard Holder set for himself at his confirmation hearing.
"Holy Hell" in Torture Memo Fight:
It appears the Obama Administration remains divided over whether to release additional OLC "torture memos." Attorney General Eric Holder wants to release the memos, but high-level intelligence officials, including John Brennan and Leon Panetta, are opposed. Michael Isikoff reports:
the White House last month had accepted a recommendation from Attorney General Eric Holder to declassify and publicly release three 2005 memos that graphically describe harsh interrogation techniques approved for the CIA to use against Al Qaeda suspects. But after the story, U.S. intelligence officials, led by senior national-security aide John Brennan, mounted an intense campaign to get the decision reversed, according to a senior administration official familiar with the debate. "Holy hell has broken loose over this," said the official, who asked not to be identified because of political sensitivities. . . .
The continued internal debate explains the Justice Department's decision late Thursday to ask a federal judge for another two-week delay (until April 16) to file a final response in a Freedom of Information Act lawsuit by the American Civil Liberties Union seeking the release of the memos. The ACLU agreed to the two-week delay only after Justice officials represented that "high-level Government officials will consider for possible release" the three 2005 memos as well as another Aug. 1, 2002, memo on torture, that has long been sought by congressional committees and members of Congress, according to a motion filed by Justice lawyers with U.S. Judge Alvin K. Hellerstein in New York, who is overseeing the case.
The 2002 memo, written by former Justice lawyers Jay Bybee and John Yoo, concluded that waterboarding and other harsh interrogation techniques could be used against Qaeda suspects without violating a federal law that prohibits torture. That memo was publicly withdrawn by the Justice Department in 2004 after its existence became publicly known and sparked a public controversy. But a new set of Justice lawyers—led by Steven Bradbury, the newly installed chief of the department's Office of Legal Counsel—later secretly authored additional memos in the spring of 2005 that essentially approved the same techniques, permitting the agency to barrage terror suspects with a combination of physical and psychological tactics, including head-slapping and frigid temperatures, according to a 2007 New York Times account. Those memos concluded that the harsh interrogation techniques used by the CIA would not violate Geneva Conventions restrictions on "cruel, inhuman and degrading" treatment of prisoners.
The Google Book Settlement:
The NYT reports on the controversy surrounding the proposed settlement in the lawsuit challenging Google's plan to digitize out-of-print books.
a growing chorus is complaining that a far-reaching settlement of a suit brought against Google by publishers and authors is about to grant the company too much power over orphan works.
These critics say the settlement, which is subject to court approval, will give Google virtually exclusive rights to publish the books online and to profit from them. Some academics and public interest groups plan to file legal briefs objecting to this and other parts of the settlement in coming weeks, before a review by a federal judge in June.
While most orphan books are obscure, in aggregate they are a valuable, broad swath of 20th-century literature and scholarship.
Determining which books are orphans is difficult, but specialists say orphan works could make up the bulk of the collections of some major libraries.
Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information. And without competition, they say, Google will be able to charge universities and others high prices for access to its database.
The settlement, “takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google,” said Robert Darnton, head of the Harvard University library system. “Google will be a monopoly.”
Fannie & Freddie to Pay Retention Bonues:
The WSJ reports that Fannie Mae and Freddie Mac expect to pay $210 million in retention bonuses over the next eighteen months. Even though the bonus amounts may be far less than sparked outrage at AIG -- some 7,600 employees could be eligible for bonuses, which would average out to less than $30,000 each -- they are already drawing political opposition. Here we go again.
PETA's Pothole Wars:
Kentucky Fried Chicken has offered to fill potholes at its own expense in select cities -- but there's a catch. KFC wants to stamp the filled holes with a temporary "Refreshed by KFC" logo. People for the Ethical Treatment of Animals objects to this, arguing that any city that accepts the offer is supporting "Kentucky Fried Cruelty." So PETA is offering to fill potholes too. If cities decline KFC's offer, and accept PETA money instead, it will fill potholes and stamp them with the words "KFC Tortures Animals."
Supreme Court Stays Comstock:
Earlier this year, in United States v. Comstock, the U.S. Court of Appeals for the Fourth Circuit held that portions of the Adam Walsh Child Protection and Safety Act, enacted in 2006, exceeded the scope of Congress commerce clause power. Specifically, the court held that the commerce power could not be used to civilly commit a "sexually dangerous person" in federal prison once that individual has completed his entire priison sentence. Eugene and Ilya blogged on the decision here.
Yesterday, SCOTUSBlog reports, Chief Justice Roberts stayed the implementation of the Fourth Circuit's holding — delaying the release of the sex offenders who had challenged the law — pending consideration of the government's petition for certiorari. Like Eugene, I expect this case will go up. If so, it will be a critically important case, as it could determine whether any limits of the scope of federal power remain after Gonzales v. Raich.
Sidestepping Bailout Rules:
It appears that some of the restrictions placed upon the use of bailout funds is discouraging private sector participation. As a consequence, the Obama Administration is seeking ways to circumvent the rules.
The administration believes it can sidestep the rules because, in many cases, it has decided not to provide federal aid directly to financial companies, the sources said. Instead, the government has set up special entities that act as middlemen, channeling the bailout funds to the firms and, via this two-step process, stripping away the requirement that the restrictions be imposed, according to officials.
Although some experts are questioning the legality of this strategy, the officials said it gives them latitude to determine whether firms should be subject to the congressional restrictions, which would require recipients to turn over ownership stakes to the government, as well as curb executive pay.
Sen. Kerry's Moose:
So it turns out that Sen. Kerry's read my book about Jefferson's moose and the Net [see the last few paragraphs of this speech he gave to the Nat'l Cable and Telecommunications Association] [reprinted here]. Kerry, Chairman of the Commerce Subcommittee on Communications, Technology, and the Internet, said:
"I don't intend to display a stuffed moose in the subcommittee's hearing room. But I hope you will keep Jefferson's moose in mind in the days ahead."
Aw, c'mon, Senator Kerry -- bring the moose in!
Guide to Libel Law:
The folks over at Public Citizen have just released what looks like a very useful guide to avoiding libel/defamation liability (and libel/defamation litigation) for "bloggers and non-profit organizations." It's a good idea, and nicely executed. Public Citizen, though unabashedly of the "left," has done some terrific work over the last decade in an area that is also dear to the heart of many on the "right," namely protecting the rights of individuals on the Net to speak freely (and, if they so choose, anonymously). And whereas 25 years ago 99% of the population could go about a lifetime's worth of business without ever thinking about the laws of libel and defamation, that is no longer true, thanks to the Net — another Internet-enabled change in the scale of the relevant legal domain.
That's a New One:
From Paul Ohm, "the world's first law review article that is also a working computer program." I'm not sure I see the benefit of "computer programming and the law" that isn't already captured by empirical legal studies, but then I have never seen an article with a picture of the top of my head before.
Friday, April 3, 2009
Federalism, the Baltimore Colts, and the Limits of Eminent Domain:
Property law scholar Gideon Kanner has an interesting article in the Los Angeles Daily Journal on the 25th anniversary of the Baltimore Colts' midnight move to Indianopolis. As Kanner points out, the Colts' precipitous departure was caused by the team owner's fear that the city of Baltimore would use eminent domain to condemn the team and thereby prevent it from moving. This fear was precipitated by a then-recent California state court decision ruling that the City of Oakland's effort to condemn the Oakland Raiders in order to prevent them from moving was a permissible "public use" under the state constitution.
As Gideon points out, the Colts were able to foil Baltimore's plan simply by leaving before the city could act. More generally, cities around the country have made little effort to condemn mobile businesses or nonprofit organizations, despite the fact that eminent domain jurisprudence in many states is permissive enough that such efforts would likely survive judicial scrutiny. Why haven't state and local governments sought to condemn mobile assets? The answer is clear: businesses would quickly flee any jurisdiction that started using eminent domain in this way. The example of the Colts is telling. Moreover, other firms would forego the opportunity to move into the area in the first place.
For these reasons, condemning mobile assets is a losing proposition for state and local governments - even if courts will let them do it. Federalism and interjurisdictional competition protect property rights in movable goods with relatively little need for judicial intervention. By contrast, there is little similar protection for property rights in land and other static assets. A landowner might be able to flee a jurisdiction with harsh policies; but he can't take the land with him. For this reason, decentralized federalism is less likely to provide effective protection for property rights in immobile goods. Thus, judicial intervention, including that of federal courts, may be necessary. I discuss this point at greater length in this article (pp. 221-23). Once we understand the distinction between mobile and immobile property and the special vulnerability of the latter, there need be no contradiction between support for decentralized federalism and support for federal judicial protection for landowners' property rights.
Gay marriage in the heartland:
The unanimous Iowa marriage decision is based on the state's equal protection clause. Applying those principles, the court held that:
(1) As a threshold matter, gay couples are "similarly situated" to heterosexual couples with respect to their relationship commitment and capacity to benefit from state recognition.
(2) The exclusion of same-sex couples from marriage is a form of sexual-orientation discrimination, because it "closely correlates" with being homosexual.
(3) Sexual-orientation discrimination merits heightened judicial scrutiny.
(4) The heightened scrutiny applied here is "intermediate," requiring that the statute at issue be substantially related to an important state objective. (The court reserved the possibility that it might apply strict scrutiny in a future case.)
(5) There were five objectives advanced by the government: (a) tradition, (b) promoting the optimal environment for children, (c) promoting procreation, (d) promoting stability in opposite-sex relationships, and (e) preservation of state resources.
(6) The state's five objectives were either not sufficiently important (e.g., maintaining a "tradition" for the sake of tradition alone is a circular objective) or were not substantially advanced by excluding same-sex couples from marriage (e.g., excluding gay couples from marriage does not encourage heterosexual procreation or stabilize heterosexual relationships).
(7) Religious objections to same-sex marriage cannot control the definition of marriage, which is a "civil contract" under Iowa statute.
This is the third pro-SSM state supreme court decision in the past year. In addition to the important marriage result, the decision is notable because it continues a growing trend among state courts to treat sexual-orientation classifications as suspect. If it continues, that trend will have consequences on gay-rights questions well beyond the marriage context. State judiciaries are beginning to follow a familiar pattern of hastening civil-rights progress for a group once that group's cause has achieved a measure of legislative success and cultural acceptance.
No other state in the Midwest even recognizes same-sex domestic partnerships, much less civil unions, or marriages. Same-sex marriages will actually begin in Iowa in about three weeks. The state has no residency requirement for marriage, meaning that gay couples elsewhere in the Midwest can easily travel there and get married, although their relationships will not be recognized when they return to their home states. I can see two simultaneous effects from this: (1) rising expectations among gay couples in the Midwest combined with more political pressure to enact domestic partnerships and civil unions, especially in Illinois, and (2) rising alarm and political organizing among gay-marriage opponents in those same states.
The Des Moines Register has more on how the state is reacting. Among other things, the paper estimates that unless the legislature acts very quickly, the state's demanding constitutional amendment process means there would be no possibility of passing a state constitutional amendment to ban gay marriage until 2012.
Either way, there's a large political battle ahead.
Legal Humor:
A reader writes:
I ran across this essay by Charles Reich about his experiences as an associate at Cravath in the 1950s. In the essay, Reich refers to “the many stanzas of ‘The Partners' John,’ a song telling the story of the rise of a young associate to the long-anticipated moment when he receives a key to the partners' john.”
Perhaps one of your readers recalls the song (and can provide lyrics). Or, have we (lamentably) lost “The Partners’ John” to the ages?
Still More on the OLC Opinion Re: D.C. Voting Rights:
In another follow up story, the Washington Post provides more detail about Attorney General Eric Holder's decision to seek a second opinion after learning that OLC concluded that the D.C. representation legislation is unconstitutional. After receiving a legal memo that declared the pending D.C. voting rights bill unconstitutional, Attorney General Eric H. Holder Jr. reached out to another lawyer on whose judgment he had relied for years.
Holder contacted Deputy Solicitor General Neal K. Katyal, who served as one of his advisers in the Justice Department during the Clinton era. Katyal gave Holder, who said he had already decided that the bill passed muster, an informal view that the measure could be defended in court if Congress passed it and the president signed it. . . .
As attorney general, Holder has broad authority to make judgments about the law and to reject conclusions from the department's Office of Legal Counsel, an elite team of lawyers who often have the final word on legal issues in the executive branch. Overriding an OLC ruling is rare, former Justice Department officials said.
Matthew Miller, a spokesman for Holder, said the OLC took up the issue this year as part of a routine process of examining legislation moving through Congress. Holder read the OLC memo, scrutinized research by other lawyers outside the department, and determined for himself that the measure is constitutional. He later reached out to Katyal not for a formal judgment from the solicitor general's office but rather "as a check on his own thinking . . . with a very smart attorney," Miller said. The story also reports on the brewing controversy over whether the Justice Department should release the OLC opinion Holder overuled. Justice Department officials said Wednesday that they will not release the memo, because it reflects internal deliberations and is not a "final" or "formal" ruling. But Republican lawyers who have worked at the department said that a signed OLC memo generally is a finalized document.
Aides to the attorney general said they have no specific plans to draft a new opinion on the bill, which could change yet again as it awaits passage by the House. Given that OLC nominee Dawn Johnsen and other administration officials have argued that OLC should err on the side of disclosing all formal OLC opinions, some argue that the Justice Department should release the OLC memo at issue here. As much as I would like to see the document, it is not clear that the principle advocated by Johnsen and others applies in this case. It is one thing to demand the disclosure of documents that represent the Justice Department's definitive constitutional interpretations, binding on the executive branch. It is quite another to demand working drafts and internal memoranda articulating arguments and positions that are never adopted. So, for instance, while OLC has recently released quite a few Bush Administration opinions on various questions, it has not been releasing various drafts of opinions that were never adopted as the Department's official legal position.
Speaking of Dawn Johnsen, her nomination has received significant opposition, and she may have to wait several more weeks for a Senate vote on her confirmation. This is unfortunate. While I am quite certain I disagree with Professor Johnsen on a wide range of issues, I see no reason to oppose her confirmation. In my opinion, some critics of her nomination have focused on the wrong questions -- whether or not she is too "liberal" or too critical of the Bush Administration -- instead of whether has the necessary qualifications and temperament necessary to "provide an accurate and honest appraisal of applicable law" as her position would require. So even assuming, for the sake of argument, that some of the positions Professor Johnsen advocated as a NARAL attorney or academic are extreme or unwise, this does not make her unfit for the job. Just because she argued something in a brief does not mean she would advance the same argument at OLC. Based on what I have heard from those who worked with her at OLC in the past, I believe she understands the difference between the role of a legal advocate and an OLC attorney. Indeed, I suspect that, whatever her personal views of the subject, the OLC memorandum on D.C. voting representation would have reached the same conclusion were she in charge of the office.
Amending the Iowa Constitution Would Take Time:
I expect there'll be a rather politically popular movement afoot to amend the Iowa Constitution in order to overturn the Iowa Supreme Court's same-sex marriage decision. (The court, after all, was applying the Iowa Constitution that was enacted by the people of Iowa; the people of the state of Iowa are entitled to change the constitution just as they were enacted to enact it in the first place.) But amending the Iowa Constitution is a slow process -- here are the relevant state constitutional provisions, from Article X of the constitution (some line breaks added): § 1. Any amendment or amendments to this constitution may be proposed in either house of the general assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice;
and if, in the general assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to, by a majority of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment or amendments to the people, in such manner, and at such time as the general assembly shall provide;
and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state....
§ 3. At the general election to be held in the year one thousand nine hundred and seventy, and in each tenth year thereafter, and also at such times as the general assembly may, by law, provide, the question, "Shall there be a convention to revise the constitution, and propose amendment or amendments to same?" shall be decided by the electors qualified to vote for members of the general assembly;
and in case a majority of the electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a convention for such purpose, the general assembly, at its next session, shall provide by law for the election of delegates to such convention, and for submitting the results of said convention to the people, in such manner and at such time as the general assembly shall provide;
and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state.
If two or more amendments shall be submitted at the same time, they shall be submitted in such a manner that electors may vote for or against each such amendment separately. On the road for the next few days, and not sure I'll be able to blog more until next Tuesday.
Iowa Supreme Court Same-Sex Marriage Decision:
It's available here, from Howard. The introduction: In this case, we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court. From the end of the opinion:
We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.
We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa’s marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.
Bloggers: Agree that energy changes coming; but disagree on auto company welfare program so far:
In this week's National Journal bloggers poll, the first question was "Do you support the Obama administration's handling of General Motors and Chrysler?" On the Left, 80% said "yes," while 87% of the Right said "no." My comment: The business of government is not running or subsidizing automobile manufacturers."
The other question was "What is the likeliest outcome in this Congress of the debate on energy and climate change?" Here, 33% of the Right expected "sweeping change," and 47% foresaw "incremental change." On the Left, 80% also believed that change is coming, but none of them expected it to be sweeping. I was among those expected sweeping change for the worse: "The result could cripple the recovery, prolong the recession for years and permanently weaken the economy."
Hank Greenberg Opposes AIG Bailout:
John Hinderaker has excerpts from Hank Greenberg's testimony in Congress. Greenberg was the former head of AIG who was hounded out by Eliot Spitzer.
My friend David Skeel has making a lot of noise lately arguing that Chapter 11 is an appropriate mechanism for resolving the distress of financial companies, including Lehman. He had a piece in the WSJ last week and there was an interesting piece in the WSJ yesterday that amounted to a profile of his idea. I find David's arguments on this point quite persuasive.
VC March Madness:
Thanks to everyone who participated in the VC March Madness pool this year. And a special thanks to all who are willing to ignore my terrible performance.
Eyeballing the situation for this weekend, it looks like this (I haven't run all the permutations, so I may have missed something--please correct me if there is a sleeper I've missed):
If UNC wins, it looks like Dan Huitink will be the winner. A lot of people chose UNC to win it all but he has a slight edge at this point. There may be someone further back in the pack in the standings in group of those who picked UNC to win who picked either UConn or Michigan State to lose to UNC in the finals. If so, it may be that one of them could over take Huitink.
If UConn wins and plays Villanova in the finals, it looks like David Neidert probably wins. If UConn wins and plays UNC in the finals then Grant Turner will take the prize (he picked three of the final four correctly).
If Villanova wins that would be an outright victory for Brian McLeish--the only entrant to choose Villanova to go all the way.
And if Michigan State takes the crown, Graham Simms would be the victor (one of two entrants to pick MSU to go all the way).
Good luck to all this weekend.
Indictment Suggests Rahm Emanuel Was Extortion Victim.
Ben Smith at Politico is reporting that Congressman A in the Blagojevich indictment is Rahm Emanuel. In 2006, he and his brother were allegedly victims of an extortion scheme:
Patrick Fitzgerald's indictment refers to two incidents involving "Congressman A": In one, Blagojevich discusses approaching the unnamed congressman to broker a deal for Obama's Senate seat.
In another, unrelated, charge, Blagojevich in 2006 allegedly demanded that the congressman or his brother — Emanuel's high-profile sibling is super-agent Ari Emanuel — hold a fundraiser for the governor in exchange for releasing $2 million to support a publicly funded school.
Blagojevich "wanted it communicated to United States Congressman A that United States Congressman A's brother needed to have a fundraiser" for Blago, the indictment says.
The grant, the indictment says, had already been approved, and the school had begun to incur expenses.
That description, a source in the Chicago education world told me this evening, closely matches the Chicago Academy's 2006 battle for the release of a $2 million grant to improve athletic facilities, which was unaccountably held up by the governor even as the project was underway. The school is in Emanuel's district, and Emanuel was among the elected officials fighting for its approval.
I wonder if this 2006 alleged extortion attempt was brought to Fitzgerald by Emanuel after the larger scandal broke last December, or whether they knew of it all along.
The more recent extortion attempt against Emanuel (and Obama) was to be made through intermediaries (as was the approach to Jarrett), so the Obama report, limited as it was only to direct contacts with Blagojevich, failed to mention whether these attempted shakedowns occurred.
Perhaps someday the press will get around to asking Obama about the shakedown attempts specifically alleged by the US Attorney. After all, it's already April.
The House Tries Again on AIG Bonuses:
From the Washington Post:
The House is taking another, albeit weaker, stab at trying to keep bailed-out financial institutions from paying their employees hefty bonuses after lawmakers had second thoughts about their vote two weeks ago to tax the bonuses away.
A new bill, which passed 247-171 on Wednesday, would allow the bonuses if the Treasury Department and financial regulators determine they are not "unreasonable or excessive." . . .
Under the bill, Treasury Secretary Timothy Geithner and financial regulators would set standards for employee compensation at companies that accept bailout money, taking into account an employee's performance, as well as the stability of a financial institution.
Rep. Barney Frank, D-Mass., chairman of the House Financial Services Committee, said the bill would apply only to institutions that receive money through the government's $700 billion Troubled Asset Relief Program and would not automatically extend to others that participate in other TARP-related programs, including Obama's new public-private investment program.
D.C. Voting Rights & OLC:
Thursday's Washington Post had a follow up story on the OLC opinion that legislation to provide voting representation for the District of Columbia in the House of Representatives is unconstitutional. According to the story, the OLC opinion was approved by a political appointee, namely Deputy Assistant Attorney General David Barron. The story also notes that Senator John Cornyn (R-TX) sought a copy of the OLC, but was rebuffed on the grounds that it was a preliminary document, and "not the final, formal opinion."
Do Habeas Rights Extend to Bagram Detainees Under Boumediene?:
Judge Bates says yes, at least for detainees not from Afghanistan who have been detained at Bagram for several years: Under Boumediene, Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time -- here, over six years -- without adequate process may invoke the protections of the Suspension Clause, and hence the privilege of habeas corpus, based on an application of the Boumediene factors. Three petitioners are in that category. Because there is no adequate substitute for the writ of habeas corpus for Bagram detainees, those petitioners are entitled to seek habeas review in this Court. Accordingly, respondents' motions to dismiss the habeas petitions of petitioners al Maqaleh, al Bakri, and al-Najar are denied. As to the fourth petitioner, Wazir, the Court concludes that the possibility of friction with Afghanistan, his country of citizenship, precludes his invocation of the Suspension Clause under the Boumediene balance of factors. Judge Bates's opinion strikes me as a careful and thorough application of Boumediene. The result is plausible under that case, especially given the vagueness of Boumediene and its multi-factor approach.
At the same time, my guess is that the Supreme Court would (will?) look at this differently. Judge Bates ends up focusing a lot on the practical control that the U.S. exerts at Bagram, especially around page 30: Perhaps the difference in jurisdiction precludes the United States from operating at Bagram, as it does at Guantanamo, entirely free from the scrutiny of the host country. As a practical matter, however, when assessing day-to-day activities at Bagram, the lack of complete "jurisdiction" does not appreciably undermine the conclusion that the United States exercises a very high "objective degree of control." My guess is that the Supreme Court would weigh freedom from scrutiny by the host country as a formal legal matter as more important than does Judge Bates, and that the Court would end up effectively limiting Boumediene to Guantanamo so that it generally does not cover detention elsewhere. That's my guess, at least. Obviously this will be an important case to watch.
Thursday, April 2, 2009
My Pennumbra Debate over Democracy and the Constitution with Sanford Levinson:
The University of Pennsylvania Law Review's Pennumbra website has recently posted a debate over "Democracy, Political, Ignorance, and Constitutional Reform," between University of texas law Professor Sanford Levinson and myself. Levinson is a prominent constitutional theorist, and also known to many of our readers for his blogging at Balkinization.
Levinson and I both worry that democratic control over government policy has eroded in the current constitutional system for various reasons, including widespread political ignorance. However, we disagree over the solutions to this problem. Levinson contends that we need an extensive revamping of the current Constitution to make it more democratic. In my view, a better approach would be to reduce the size, scope, and complexity of government, which would make it easier for voters to acquire sufficient knowledge to keep track of what their representatives are doing. I also argue that the combination of political ignorance, war, and economic crisis make this a dangerous time to undertake major constitutional change. The combination of fear, ignorance, and political manipulation thereof could yield a worse system than the admittedly flawed status quo.
Alaska Republicans Ask Sen. Begich to Resign.
Alaska Republicans, including Sarah Palin, have asked Sen. Mark Begich to resign because "the state's voters would have re-elected former Sen. Ted Stevens had they known the U.S Department of Justice would abandon its prosecution of him."
The latest from the great state of Alaska:
The head of the Alaska Republican Party today called on Sen. Mark Begich to step down from the U.S. Senate, saying that the state's voters would have re-elected former Sen. Ted Stevens had they known the U.S Department of Justice would abandon its prosecution of him.
The party chairman, Randy Ruedrich, said that the only reason Begich won his race was because "a few thousand Alaskans thought that Senator Stevens was guilty of seven felonies."
He added that he thought Begich should step down "so Alaskans may have the chance to vote for a senator without the improper influence of the corrupt Department of Justice."
Gov. Sarah Palin concurs with Ruedrich and believes a special election is appropriate, said a spokeswoman for Palin's political action committee, Meg Stapleton. "I absolutely agree," Palin said in a statement.
If Begich had misled or lied to authorities to get Stevens, the Prince of Pork, indicted or if Begich had improperly influenced the DOJ to prosecute Stevens, I could understand this. But just having "but-for" causation on a withdrawn prosecution isn't nearly enough to come close to a sensible request for resignation.
The argument for Illinois Sen. Roland Burris resigning is that he allegedly lied or misled those who inquired into the circumstances of his appointment. But what has Begich done?
Blagojevich Indictment Released.
Rod Blagojevich was indicted by a grand jury, with the indictment released by the US Attorney for the Northern District of Illinois.
The indictment is here.
A press release is here.
A fact sheet is here.
White House Backs Sanford on Stimulus:
Yesterday, the White House acknowledged that state governors, not state legislatures, control the acceptance and disposition of stimulus money. The AP reports:
South Carolina Gov. Mark Sanford has won a key victory in his fight to control $700 million in federal stimulus money intended to help the state's schools, with the White House acknowledging in a letter released Wednesday that state legislatures can't overrule governors who don't want the money.
White House budget chief Peter Orszag said there is no provision in the stimulus law for state lawmakers to accept that money without approval by the governor.
Sanford, a Republican, has said he may decline some of the state's $2.8 billion in stimulus money because the White House won't let him use the cash to pay down his state's debt, including bonds and looming retirement system liabilities. South Carolina started the fiscal year with $8.1 billion in total bonds outstanding, according to the state's comptroller.
The White House remained critical of Sanford's position, disagreeing with his decision to reject a portion of the stimulus funds allocated for his state, but acknowledged his authority to reject the funds.
Wednesday, April 1, 2009
Hurrying Hamilton?
Today the Senate Judiciary Committee held its first hearing on an Obama judicial nominee, David Hamilton, albeit not in the usual hearing room and without the standard webcast or many Republican Senators. Most committee Republicans refused to attend on the grounds that they were not given enough time to review Hamilton's record. Hamilton has been a federal district court judge in Indiana for nearly fifteen years. President Obama nominated Hamilton to the U.S. Court of Appeals for the Seventh Circuit fifteen days ago -- limiting Republican Senators' ability to review his record. The BLT reports: Sen. Arlen Specter (R-Pa.), the committee’s top Republican, said his staff received a background questionnaire from David Hamilton, nominee for the U.S. Court of Appeals for the 7th Circuit, on March 18. Specter said the timing of the hearing kept his staff from fully examining Hamilton’s record, including 1,150 written opinions taking up 9,500 pages from Hamilton’s 15 years as a judge for the Southern District of Indiana.
“The Constitution, as we all know, calls on the Senate to confirm. And indispensable to the confirmation process is an opportunity to examine the record of the individual. And that means a hearing, and that means questions and answers, and that means an opportunity to prepare,” Specter said. The AP reports that Hamilton is a potentially controversial nominee: Hamilton, a U.S. district judge from Indiana, has issued a number of controversial rulings in more than 1,100 opinions and nearly 15 years on the bench. He struck down the use of sectarian prayer to open the Indiana legislature and also ruled against a state law that required a woman seeking abortion services to receive counseling from her doctor. The counseling was required at least 18 hours before the procedure.
Both decisions were reversed by the Chicago-based 7th U.S. Circuit Court of Appeals, where Hamilton would serve if confirmed. The circuit hears appeals from lower courts in Wisconsin, Indiana and Illinois. More from CQ's Legal Beat and Ed Whelan.
As I've argued before, I believe that the Senate should be fairly deferential to a President's judicial nominees, and ensure that all receive a prompt up-or-down vote on the floor of the Senate. Senators should have ample opportunity to review a nominee's record, but this should not be an excuse for undue delay. In this case, it seems to me Senator Leahy is rushing things along, imposing a tighter schedule than he would have tolerated when Republicans were in charge. Yet even with additional time, I doubt Senate Republicans will uncover anything that would justify opposing his confirmation. Even if Senator Leahy gives the Republicans more time, I expect he'll still be confirmed before the summer.
Did Politics Override Science on Phthalates?
This morning NPR ran an interesting story suggesting Congress disregarded the relevant science when it passed a ban on certain phthalates in children's toys. The measure may have been backed by Democrats, such as Senators Feinstein and Boxer, but it was signed by President Bush. More evidence of a Republican "War on Science."
DoJ Seeks to Toss Stevens Conviction:
In response to serious allegations of prosecutorial misconduct, the Department of Justice is seeking to have Senator Stevens' felony convictions thrown out. The Washington Post editorializes:
this extraordinary reversal cannot erase or forgive the ugly behavior that gave rise to the indictment in the first place. Trial records and testimony painted a picture of a man so consumed with his own sense of entitlement that he did not think twice about accepting such expensive freebies as a Viking gas grill, a vibrating Shiatsu massage lounger and a five-foot sculpture of migrating salmon -- not to mention extensive plumbing, electrical and carpentry work on his "chalet" in Girdwood, Alaska. All told, the government calculated that Mr. Stevens took gifts worth in excess of $250,000.
Gross breaches of law and fairness by prosecutors are the reason that Mr. Stevens will walk free. The Justice Department admitted that the lawyers from the Public Integrity Section who put Mr. Stevens on trial failed to turn over to defense lawyers information about contradictory statements by a key prosecution witness. An agent of the Federal Bureau of Investigation who worked on the case also recently alleged that prosecutors had been willfully withholding pertinent evidence from the defense team. . . .
The decision could not have been easy for Attorney General Eric H. Holder Jr., who cut his teeth as a prosecutor in the very same Public Integrity Section. But it was the right call.
Prior posts on the Stevens prosecution can be found here and here.
Holder vs. OLC:
The Washington Post story linked by Orin below, if accurate, suggests that the new Administration has not ended the politicization of the Department of Justice. According to the Post account, Holder sought to circumvent an unfavorable OLC opinion by seeking a more favorable answer to a different question from elsewhere in the department. Asking the Solicitor General's office whether a statute's constitutionality can be defended in court is not the same thing as asking whether a statute is, itself, constitutional.
Holder may wish to (re)read the recent white paper on the proper role of the OLC, Principles to Guide the Office of Legal Counsel, drafted by AAG for OLC nominee Dawn Johnsen and endorsed by nineteen former OLC attorneys. This paper explained the nature of the legal advice that OLC should provide, distinguishing it from the sort of advocacy advice Holder sought. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action. As Attorney General, Holder's first obligation is to uphold the law of the land, even when politically inconvenient. Based upon the Post account, Holder did not like the result produced by an "accurate and honest appraisal of applicable law," so he sought out assurance that "plausible legal arguments" -- not the best legal arguments -- supported his predetermined position. To overrule OLC on the merits is one thing. To seek out a fig leaf of support for such a move, as Holder reportedly did, is quite another.
Holder was among those who criticized the Bush Administration for politicizing the Justice Department and undermining OLC. Before his confirmation, he promised things would be different on his watch. Perhaps they will be, but not yet.
"Senate Legislation Would Federalize Cybersecurity":
This will be interesting to watch. My instincts are that it's a bad idea: The government has enough trouble securing its own networks. Stay tuned.
More on Free Software and Copyright:
As a follow-on to the discussion here about Richard Stallman's recent talk about reforming copyright law, and his objections to my use of the terms "free software" and "open source software" interchangeably, Stallman sent me the following message (which I reproduce here with his permission, and indeed at his request):
"I see you posted part of my message. Could you please post all of it? If you post just part, readers are likely to conclude that I had no other criticism and agreed with everything else."
Although I am not at all sure I agree that readers would be "likely to conclude" that he had no other criticism of my original posting, I'm posting the other parts of his message below. He continues:
"Did you change "open source" to "free software" in the original posting?"
That's an interesting one. Here's what I wrote back to him in response:
"No, I did not. I have several reasons for not doing so. First, I said what I said, and I'm uncomfortable (as a general rule) with going back and re-writing the history of the discussion -- among other things, the ensuing comments about the use of the terms "free software" and "open source software" would be incomprehensible to a reader if I changed the original posting that way. More significantly, I'm uncomfortable with the notion that you get to decide what the terms mean for others. I didn't use the terms incorrectly - I used them in a manner you disagree with. I've given you the opportunity to explain to my readers your disagreement, and they will decide for themselves whether they agree or not with your position. My job is to communicate with them as best I can, using the lexicon so as to make whatever point(s) I'm trying to make, and I don't think changing the original posting is the right move in that direction."
***************
Stallman's original message to me in regard to my original posting:
I am disappointed that you describe my work as "open source", because
I disagree with that camp and I constantly struggle against the
misinformation which labels my work that way. You might as well call
my work "Republican". For instance, this sentence
"Stallman understands this thoroughly though the vast majority of
commentators on the open source movement have missed this point."
is likely to lead readers to suppose erroneously that I am a supporter
of the open source movement, when in fact I disagree with it
fundamentally.
See http://www.gnu.org/philosophy/open-source-misses-the-point.html for an
explanation of this disagreement.
Would you please replace "open source" with "free software" in this
posting about my work?
". . . he has concluded that copyright law is broken, in fundamental ways, that it no longer functions to encourage the production of creative works, but in fact has quite the opposite effect, serving primarily to stifle creative activity."
But I did not say that. That is not what I think, and I don't say it
either. This is because I reject the more basic supposition that
encouraging the production of works is the sole or principal goal. I
do support that goal, but I think it is less important than another
desideratum: to respect the public's important freedoms to use
published works.
I am willing to trade freedom for the benefit of encouraging
production of works only when it is a matter of an inessential freedom
(which, in the age of the printing press, it generally was).
I suspect that
his ultimate aim is not merely to substantially weaken copyright (as in his
proposal) but to eliminate it entirely,
I do not wish to abolish copyright; if I did, I would say so. I often
speak with people who advocate abolishing copyright, and I tell them
that I do not agree.
I remain am willing to trade inessential freedoms to encourage
production of works, and there are freedoms which I think are still
inessential and fit to be traded in this way. The proposal in my
speech is based on that. It reduces copyright power by restoring to
readers the essential freedoms, but it continues the copyright bargain
in regard to other freedoms which are substantial in economic
importance but not essential in my view.
Holder, OLC, and the DC Voting Rights Bill:
The Washington Post reports: Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.
A finding that the voting rights bill runs afoul of the Constitution could complicate an upcoming House vote and make the measure more vulnerable to a legal challenge that probably would reach the Supreme Court if it is enacted. The bill, which would give the District a vote in the House for the first time, appeared to be on the verge of passing last month before stalling when pro-gun legislators tried to attach an amendment weakening city gun laws. Supporters say it could reach the House floor in May.
In deciding that the measure is unconstitutional, lawyers in the department's Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.
Holder rejected the advice and sought the opinion of the solicitor general's office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.
I don't quite know what to make of this story, not being so familiar with how OLC reviews proposed legislation. First, are OLC opinions about the constitutionality of proposed legislation normally binding on the executive? OLC opinions on interpreting enacted legislation are binding on the executive branch, but I don't know if opinions on the constitutionality of proposed legislation are generally treated the same way. And what is the AG's usual role in reviewing OLC opinions about proposed legislation? I'm not really sure.
Hat tip: Ed Whelan, who has more on this.
Gaza Crossings:
During the Gaza military conflict in January, Hamas apologists claimed that the whole thing was Israel's fault for limiting the amount of goods that can cross into and out of Gaza, necessitating Hamas's "resistance. Yet Hamas and other Palestinian factions have consistently attacked the crossings that are open, knowing that this will inevitably lead to further restrictions.
Sp it's worth remembering an attack last April on the Israeli terminal that supplies gas to Gaza. Two Israeli civilians were murdered. Do you think Hamas condemned the attack for threatening Gaza's gas supply and immiserated the civilian population? Not exactly:
Fawzi Barhoum, a Hamas spokesman, praised the attack as heroic and courageous. He said Hamas was not responsible but affirmed his group's support for "resistance."
[The original version of this post mistakenly suggested that the attack on the gas terminal happpened very recently.]
Tuesday, March 31, 2009
Symposium on Neglected Supreme Court Justices:
Here, in the Vanderbilt Law Review. Because even Sherman Minton deserves a law review article once in a while. (Via CoOp)
Continuity We Shouldn't Believe In - Moral Hazard and the Geithner Bailout Plan:
Nobel Prize-winning liberal economist Joseph Stiglitz points out that the Treasury Secretary Tim Geithner's plan to have the government subsidize investments in "toxic assets" creates a serious moral hazard: Private investors will pocket any gains, while the federal government promises to cover virtually all potential losses:
Professor [Joseph] Stiglitz on Tuesday led a list of well-known economists and high-profile industry figures who have said Treasury Secretary Tim Geithner's toxic asset plan may not be as successful as it first seems.
The plan involves ensuring up to $100bn of government funding is matched by private investors, with the monies combined and leveraged up, in some cases to by as much as 20:1, with the help of the Federal Reserve and the Federal Deposit Insurance Corporation (FDIC), to buy pools of unwanted assets.
Professor Stiglitz, speaking at a conference in Hong Kong, said that the US government is essentially using the taxpayer to guarantee the downside risks, namely that these assets will fall further in value, while the upside risks, in terms of future profits, are being handed to private investors such as insurance companies, bond investors and private equity funds.
"Quite frankly, this amounts to robbery of the American people. I don't think it's going to work because I think there'll be a lot of anger about putting the losses so much on the shoulder of the American taxpayer."
As Stiglitz suggests, this privatization of profits combined with socialization of losses is likely to incentivize overly risky investments that taxpayers will be left holding the bag for. It may also lead to misallocation of resources, as investors transfer funds from more economically efficient uses in order to take advantage of Uncle Sam's blank check for investing in "toxic assets."
Jeffrey Sachs, another prominent liberal economist, makes a similar point in this Financial Times piece (free registration required).
Ironically, the moral hazard created by the Geithner plan is similar to the incentivizing of risky mortgage investments by the government's backing of Fannie Mae and Freddie Mac, which played a major role in causing the financial crisis in the first place, as economists Peter Wallison and Charles Calomiris describe in this paper. Wallison deserves some credit for warning about this danger back in 2005.
Both parties deserve blame for the policy of federal backing for dubious mortgages and investments. Certainly, President Bush didn't help matters when he, in his own words, "use[d] the mighty muscle of the federal government" to promote the issuing of risky mortgages.
Barack Obama, however, promised to break with the failed policies of the past, and often criticizes those who he claims advocate "the same failed ideas that got us into this mess in the first place." Ironically, he has now embraced some of the worst of those ideas himself.
CYB3RCRIM3 Blog:
If you're a reader who likes my occasional posts on recent computer crime law cases, you should check out the CYB3RCRIM3 blog, by lawprof Susan W. Brenner. There's a lot of interesting stuff there, including discussion of new cases.
Moose Sightings, Con't: San Diego
I'll be giving a talk at 4:30 this afternoon, along with paleontologist Tom Demarre of the San Diego Natural History Museum, at the Thomas Jefferson Law School in San Diego. The genesis of this event is pretty wild. About a week after I published my book -- which is really all about Jefferson's seemingly mad obsession with size and scale (reflected in, among many other things, his search for really big animals like moose and mammoths), and why that matters (a lot) for understanding the Internet (and many, many other things) -- news came that a complete fossilized skeleton of a Columbian mammoth had been uncovered while excavating the foundation for a new building at the Thomas Jefferson Law School. It got weirder and weirder -- a few weeks later they turn up a 40-foot baleen whale skeleton, and then, a few weeks after that, a fossilized giant ground sloth -- of precisely the same species as the one that Jeffeson himself described in a paper he presented when he was being inducted as President of the American Philosophical Society in 1797. In the foundation for the Thomas Jefferson Law School?! You couldn't have made this up.
So I wrote to the Dean, Rudy Hasl, and said, in effect, "this is too good an opportunity to pass up - I've got to come out there and give a talk." And he arranged for Demarre, one of the paleontologists who've been studying these finds, to join. It should be an interesting event - how many times do you get to see a palentologist and a law professor talking together about anything, anyway?
The EEOC's Labor Troubles:
From the Washington Post:
The Equal Employment Opportunity Commission, responsible for ensuring that the nation's workers are treated fairly, has itself willfully violated the Fair Labor Standards Act on a nationwide basis with its own employees, an arbitrator has ruled.
UPDATE: More from Hans Bader here.
Open Source and Free Software:
Just for the record, in a response to my earlier posting about free software and copyright law, Richard Stallman sent me the following:
I am disappointed that you describe my work as "open source", because
I disagree with that camp and I constantly struggle against the
misinformation which labels my work that way. You might as well call
my work "Republican". For instance, this sentence
Stallman understands this thoroughly though the vast majority of
commentators on the open source movement have missed this point.
is likely to lead readers to suppose erroneously that I am a supporter
of the open source movement, ewhen in fact I disagree with it
fundamentally.
See http://www.gnu.org/philosophy/open-source-misses-the-point.html for an
explanation of this disagreement.
Would you please replace "open source" with "free software" in this
posting about my work?
Done.
Monday, March 30, 2009
Talks in Arizona this Week:
On Wednesday at 12:15, I'll be speaking at the University of Arizona about my book-in-progress, "Rehabilitating Lochner." On Thursday at 4:00, I'll be at ASU discussing "Threats to Civil Liberties from Antidiscrimination Laws." Both talks are free, open to the public, and sponsored by the local Federalist Society chapter.
"Bias at the Bar":
The new study alleging bias in the ABA's evaluation of judicial nominees, "Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees," by Richard L. Vining Jr., Amy Steigerwalt, Susan Navarro Smelcer, is now available on SSRN. Here's the abstract:
In this paper, we (1) investigate what factors explain the ABA ratings of judicial nominees to the United States Courts of Appeals from 1985-2008 and (2) probe whether prospective Republican and/or conservative judges are systematically disadvantaged. We find both that, all else being equal, Democatic/ liberal nominees are more likely to receive the ABA's highest rating of "Well Qualified" than their Republican counterparts, but also that the ABA relies on more traditional measures of professional qualifications, such as prior experience as a judge or Circuit Court clerk, when rating nominees to the federal appellate courts. Our results lead us to conclude that the ABA should take affirmative steps to ensure liberal candidates are not being unconsciously favored and rated. In particular, our findings suggest that there is some systematic component of the evaluation process, possibly the use of the "judicial temperament" criterion, which lends itself to lower ratings of more conservative nominees. In evaluating judicial temperament, the ABA properly seeks to ensure that potential federal judges will approach each case with an open mind and a sense of fairness toward all parties, but our findings indicate that the Standing Committee should also guard against rating nominees based on their particular positions towards policies and legal doctrines which implicate issues of fairness and equal justice. Therefore, the Standing Committee should strive to ensure that its evaluations reflect a careful balance of both objective and subjective criteria, and that the different types of criterion are given appropriate weight.
This study and a prior analysis of ABA ratings by our own James Lindgren are discussed in this NYT story that will appear in tomorrow' s paper. Ed Whelan comments on the NYT story here.
Upcoming Speech on Kelo and Eminent Domain Reform at Michigan State University:
This Thursday at noon, I will be speaking on Kelo v. City of New London and Post-Kelo eminent domain reform at Michigan State University Law School in Room 340. Many of the issues I will cover are discussed in greater detail in my forthcoming article on post-Kelo eminent domain reform. I will also speak on prospects for strengthening protection for property rights in the future, a question I briefly addressed in the last part of this article.
I suspect that my speech at MSU may be overshadowed by the hoopla over Michigan State's upcoming appearance in the NCAA Final Four. But I'm going to do the talk anyway, and I hope that interested Spartans might take a little time off from the basketball festivities to see it.
If You Use T-Mobile and Pay Your Bills Via EasyPay,
check your bank statement or credit card statement. I recently noticed that they charged me $939.08 (likely as a result of a $93.90 bill around that time, though I can't be sure), and then the next month $287.36 (even though I at that point had a massive credit as a result of the $939.08, and even though my monthly bill was far less than that). They seem to be quite willing to fix it, though the fixing process has itself not been free of errors. But if you are a T-Mobile customer, and use the EasyPay feature, you might want to see if a similar error has happened to you.
The Right To Keep and Bear Arms and People Who Say They Feel Like Killing Others and Themselves:
From People v. Joel O. (Cal. Ct. App. Mar. 24, 2009):
Joel O. appeals from an order precluding him from possessing firearms based on a finding that he would not be likely to use them in a safe and lawful manner. (Welf. & Inst. Code, § 8103, subd. (f).) He contends the preponderance of the evidence standard used in section 8103, subdivision (f) to permit deprivation of the right to possess firearms is unconstitutional, and that the clear and convincing evidence standard should apply. We reject his argument and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2007, Joel's family arranged an intervention with Joel in the presence of several people, including his mother, father, and an addiction intervention worker. During the intervention, Joel (age 31) stated that he felt like raping and killing women who reject him and that he often thinks about killing himself or others. Joel owned several weapons. During the intervention, the police were summoned. The police took Joel into custody and confiscated his weapons, including several firearms.
Joel was transported to a mental hospital and admitted for evaluation and treatment. Staff psychiatrists reported that he had "intermittent suicidal ideation." About five years before, he had engaged in a near suicide attempt with a gun until his friends called for help. Although he had not voiced any "current homicidal ideation," there was concern about his statements about "wanting to kill and rape women who reject him" and his lack of "qualms about hurting other people." He had a chronic history of alcohol and marijuana use. He was assessed as having a moderate potential for harm given his "lack of insight, various stressors, and the comorbidity of substances in the picture." He was given medication and monitored.
On November 9, 2007, Joel told a hospital social worker that he was angry at his family for the intervention and angry that his guns had been confiscated. He stated that if he ever saw the counselor who participated in the intervention he would "knock her down and beat the shit out of that bitch ... [and] she better have a hand full of money to pay [him] back or spread her legs for [him] so [he] could get what [he] want[ed]."
On November 10, 2007, a staff psychiatrist reported that Joel had "[n]o suicidal or homicidal ideation." However, he was "still voicing adamant anger towards the intervention participants and the loss of his firearms ..." and his "[i]nsight and judgment were poor in that he felt as though his rights are being violated and his entitlement towards his prior way of living and collection of weapons were not to be disrupted based on his statements of wanting to shoot people and to shoot himself." He was not interested in participating in a sobriety program and believed he could stop using drugs and alcohol whenever he wanted.
Joel was discharged from the hospital on November 14, 2007. The discharging psychiatrist diagnosed him with "Adjustment Disorder with a Mixed Disturbance of Emotion and Conduct" and "Polysubstance Dependence." The psychiatrist reported that Joel denied current suicidal or homicidal ideation or intent and that he had not displayed self-injurious or assaultive behaviors during his hospitalization. The psychiatrist concluded that his mental state had improved and he had "no current potential for harm to self or others."
At the time of his discharge, Joel was advised of the law prohibiting him from possessing firearms for five years and his right to request a hearing to obtain relief from this prohibition. He requested a hearing, and a hearing was held on December 20, 2007. The People submitted his medical records into evidence, and Joel testified on his own behalf.
Joel testified that he had never violated any firearms laws; he had always been safe and responsible with his guns; and he had stopped drinking and smoking. He stated he wanted to possess firearms for hunting, collectability, and defensive purposes. In his view, the police could not protect him, and he was responsible for protecting himself and people around him who could not protect themselves. He acknowledged that his father currently had a restraining order against him, and opined that his father had obtained it "just to make [his] life hell." He believed the judge imposed the restraining order because people think he has problems or because he disrespected her (the female judge). He testified he had "a hard time respecting some people"; he did not think the founding fathers thought women should be judges; the country was "going down the tubes" and it was his duty to make it better; and he did not have much respect for police officers. When asked if he did not like women, Mexicans, or blacks in positions of authority, Joel replied: "No, I believe in an old school belief system and the Constitution that our forefathers of this country believe in." When asked if he was frustrated that women, Mexicans, and blacks are in positions of authority, he replied: "Sometimes. But my problems [are] with people that get in my way and cause me problems."
Joel denied making statements during the intervention that he wanted to kill and rape women who rejected him, and testified that he had instead stated that "sometimes it feels like [he] might have to just to get laid." He denied stating that he wanted to rape the intervention counselor, and testified that he had instead stated that because she had "a hand in ruining [his] life," he expected "some money, compensation or sexual favors voluntarily." He claimed he would never force himself on a woman because he did not want to go to prison. He testified that "a few people owe [him] things for ruining [his] life this year," in particular his father, who had offered to pay for a treatment program which he viewed as a "rip-off" and a "bunch of scam artists." He testified he wanted "some cash so [he could] maybe go to Europe for a few months, maybe get over it."
The trial court found that the preponderance of the evidence showed that Joel would not likely use a firearm in a safe and lawful manner, and accordingly denied Joel's petition to be released from the five-year prohibition on firearms possession.
DISCUSSION ...
To support his argument that the preponderance of the evidence standard set forth in section 8103 is constitutionally infirm, Joel relies on the United States Supreme Court's recent holding that an individual has a constitutional right to possess firearms. The court noted ... that this right was subject to restrictions by the government, and that "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by ... the mentally ill ...." ...
[The question before us is] what procedures must be followed to determine whether a person who has been detained for a mental disorder can be deprived of the right to possess firearms....
When the government deprives an individual of a liberty or property interest, the individual has a constitutional right to procedural due process. (Mathews v. Eldridge (1976) 424 U.S. 319, 332.) "'[D]ue process is flexible and calls for such procedural protections as the particular situation demands.'" One component of procedural due process is the standard of proof used to support the deprivation. The standard of proof must satisfy "'the constitutional minimum of "fundamental fairness."'" (Santosky v. Kramer (1982) 455 U.S. 745, 756, fn. 8.)
To determine whether a procedure satisfies due process, the courts balance three factors: (1) the private interest affected by the proceeding; (2) the risk of an erroneous deprivation of the interest created by the state's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. Regarding the procedural role of the standard of proof, Santosky explains: "[T]he minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants." When the preponderance of the evidence standard of proof is used, the risk of an erroneous deprivation of the interest is shared "in roughly equal fashion" between the parties. The beyond a reasonable doubt standard is "designed to exclude as nearly as possible the likelihood of an erroneous judgment" and "imposes almost the entire risk of error upon [the government]." The clear and convincing evidence standard represents an intermediate standard that "reduce[s] the risk to the [individual] ... by increasing the [government's] burden of proof."
In civil cases, proof by a preponderance of the evidence generally suffices to satisfy due process. However, when in the civil case "the government seeks to take unusual coercive action ... against an individual," the clear and convincing evidence standard may be required. This standard has been required when the civil proceedings involve "'a significant deprivation of liberty'" or "'stigma.'" For example, the clear and convincing evidence standard may be required in cases involving termination of parental rights, involuntarily civil commitment, deportation, or denaturalization.
On the other hand, there are circumstances where the preponderance of the evidence standard satisfies due process even though the case involves the loss of a constitutional right. For example, in Jones v. United States (1983) 463 U.S. 354, the United States Supreme Court upheld a statute permitting the automatic civil commitment of a criminal defendant who had obtained a verdict of not guilty by reason of insanity by proving his mental illness in the criminal case by a preponderance of the evidence. The Jones court noted that the clear and convincing evidence standard was generally required to civilly commit a person because it was "inappropriate to ask the individual 'to share equally with society the risk'" of an erroneous adjudication of mental illness. In contrast, there was less risk of error when the individual has proven his or her mental illness in a criminal proceeding, and accordingly the preponderance of the evidence standard comported with due process for commitment of insanity acquittees.
When evaluating whether the private interest affected by the civil proceeding requires a standard of proof higher than the preponderance of the evidence standard, the courts consider "the nature of the private interest threatened and the permanency of the threatened loss." (Assuming arguendo the Second Amendment applies to the states, under Heller an individual's right to possess certain firearms in the home for defensive purposes is of constitutional stature. However, under section 8103, the deprivation of this interest is temporary, lasting for five years. Further, the loss concerns the loss of property, and does not involve deprivation of physical liberty or severance of familial ties. The deprivation is not akin to the types of cases -— such as termination of parental rights, civil commitment, or deportation —- where a clear and convincing evidence standard is typically imposed. Moreover, although the loss of the right to possess firearms can impact an individual's ability to defend him- or herself, the deprivation does not leave the individual exposed to danger without recourse to other defensive measures, such as installing home security devices and summoning the police.
Balanced against the individual's temporary loss of the right to possess firearms is the state's interest in protecting society from the potential use of firearms by a mentally unstable person. This is an exceedingly high interest which was explicitly recognized in Heller. Although the preponderance of the evidence standard requires the individual to share equally in the risk of an erroneous adjudication, this is appropriate in a case involving possession of firearms by an individual who has exhibited mental instability sufficient to warrant hospitalization. If the government was required to prove the unlikelihood of safe use by clear and convincing evidence, this would increase the possibility that a person might be gravely injured or killed if the government failed in its burden of proof. Balancing the gravity of the potential consequences of a mentally unstable person's possession of firearms against the temporary deprivation of property, the balance tips in favor of permitting proof by a preponderance of the evidence.
Section 8103's use of the preponderance of the evidence standard comports with due process.
Applying the Fourth Amendment to the Internet, Part II -- Replacing the Inside/Outside Distinction with the Content/Non-Content Distinction:
(This is the second of a short series of posts on my new forthcoming article, Applying the Fourth Amendment to the Internet: A General Approach, forthcoming in the Stanford Law Review. For the first post, click here.)
So imagine you're trying to apply the Fourth Amendment to the Internet so that it plays the same role in Internet crime investigations that the Fourth Amendment plays in traditional physical investigations. How can you do that?
The first step is to realize that the Fourth Amendment in the physical world is based on a fundamental distinction between inside surveillance and outside surveillance. If something occurs outside, the police are free to watch it: The Fourth Amendment doesn't regulate them. On the other hand, if something occurs inside, the Fourth Amendment presumptively applies: Barring special circumstances such as consent, the Fourth Amendment regulates government access to that inside space.
The line between inside and outside can get a little tricky, to be sure. In fact, many of the most interesting cases consider exactly where the line falls (think Kyllo or the open fields/curtilage cases). But that distinction is essential to the Fourth Amendment in the physical world. It creates a zone that the police can monitor, mostly involving transactional information about where people are and what they are doing, while carving out a private zone where the police can't go without special circumstances, mostly involving the substance our of private thoughts, writings, and expression.
Now turn to the Internet. Online, the distinction between "inside" and "outside" no longer makes a lot of sense. Some new distinction is needed to replace the function of the outside/inside distinction.
My article proposes that the online distinction between content and non-content information should replace the physical distinction between inside and outside surveillance. The contents of communications, such as e-mail messages, subject lines, and remotely stored files, should be presumptively protected by the Fourth Amendment. Absent special circumstances such as consent or posting documents on the Internet, the Fourth Amendment should regulate government access to contents. On the other hand, non-content information, such as IP addresses mail header information other than the subject line, should not be protected.
I think this approach nicely translates the Fourth Amendment to the Internet because content and non-content information are network substitutes for inside and outside. To see this, you need to think about how networks work and what functions they serve. Networks are means for transporting information or property from one place to another. Instead of transporting information or property yourself, you sit back and the network does that work for you remotely. The non-content information is the information in the network that is generated and used to deliver the package: It records where the package went, when, how big it was, and the like. In contrast, the content information is the package itself: It is the actual information that the person sent.
Replacing the inside/outside distinction with the content/non-content distinction leads to a technology-neutral Fourth Amendment because the latter is a network substitute for the former. The non-content information — that information generated to deliver the package — is the network substitute for what would have been open to public observation and therefore "outside" in a physical environment with no network. The content information is the network substitute for what would have been hidden from public observation and therefore "inside" in a physical environment.
Replacing inside/outside with content/non-content maintains the same basic function of the legal distinction in light of the shift from physical space to network space. Related Posts (on one page): - Applying the Fourth Amendment to the Internet, Part II -- Replacing the Inside/Outside Distinction with the Content/Non-Content Distinction:
- Applying the Fourth Amendment to the Internet, Part I -- Technology Neutrality:
Death Penalty Legal Scholarship:
I just received the very interesting new book, Death Penalty Stories, part of the Foundation Press series of subject-specific essays by different scholars on important cases in the field. It looks excellent, and I look forward to reading it. Looking through the chapters, though, it occurred to me that nearly all the chapters were written by scholars who are noted death penalty opponents. This led me to wonder: Who are the legal scholars who write on the death penalty on a regular or semi-regular basis but who do not write from the perspective of opposition to the death penalty? Stuart Banner might be one: I've only skimmed his book on the death penalty, but it struck me as largely neutral in tone. Are there others? I realize that most legal scholars who write on the death penalty are against it; I'm just curious about who the outliers are.
UPDATE: Just to be clear, the post is asking for the names of scholars, not for readers' personal views of the death penalty. Please keep the comments relevant to the post -- thanks.
Torts Textbooks:
I'll be teaching tort law for the first time this Fall, and would love to hear people's views on what textbooks they liked (and why) or disliked (and why), whether as teachers or students. Let me know, please, with as much detail as possible (both about your law school and the particular things you liked or disliked). Many thanks!
Proposed Ban on Making and Distributing Pornography Involving >60-Year-Olds and the Disabled (Including Spouses or Lovers Consensually Photographing Each Other):
Yup, the law (in Massachusetts) would make it a very serious crime — tantamount to child pornography — to make, and distribute "with lascivious intent," "any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity" involving anyone age 60 or over, or anyone who has "a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection."
The law is not limited to people who are mentally handicapped and thus unable to consent, or who are photographed against their will by their caretakers (the justification discussed in this story). The operative provisions cover people over 60 and the disabled whether or not they are incompetent. One provision, relating to people's being "deemed incapable of consenting," would cover only "an elder or a person with a disability adjudicated as incompetent by a court of the commonwealth," but I don't see how this would stop liability under the other provisions, since consent is no defense under the other provisions in any event. (Plus if they just wanted to bar exploitation of the incompetent, why not simply say "anyone adjudicated as incompetent by a court of the commonwealth," with no limitation to elders or persons with disabilities?)
Likewise, the law is not limited to hard-core pornography that would constitute unprotected "obscenity." It would apply to any pictures of nudes, so long as the defendant is acting with lascivious intent." Hard to see how this would be constitutional, or why it would make much sense.
The bill text is here; the provisions that would be amended are here and here; and the definitions of "elder" (anyone age 60 or older) and "person with a disability" ("a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection") are here. If anyone can point me to a version that merges the existing text with the changes, I'd love to link to it.
UPDATE: Note that the law isn't limited to making pornography for commercial purposes (since the child pornography law that it builds on covers noncommercial child pornography, too). That means that if 60-year-old spouses or lovers — or spouses or lovers of someone who is disabled — decide to photograph each other naked with "lascivious intent," they would be committing a crime (inserted text underlined, especially relevant text italicized):
Whoever, either with knowledge that a person is a child under eighteen years of age, an elder or a person with a disability, or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, an elder or a person with a disability and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child, elder or person with a disability to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.
(Note: I originally misread this as requiring a mandatory minimum sentence of 10 years, but a commenter correctly pointed out that a court could in the alternative impose a fine of at least $10,000 — much better than a 10-year sentence, but still entirely improper.)
A Factoid for Bankruptcy Law Buffs:
What is probably the first American treatise on bankruptcy law was written while the author was in prison. And, no, it wasn't debtor's prison -- the treatise (The Bankrupt Law of America, Compared with the Bankrupt Law of England) was written by Thomas Cooper in 1800, when he was in prison for violating the Sedition Act.
Did the Fed Cause the Housing Bubble?
I was traveling over the weekend and so didn't get a chance to post on Friday about my latest piece in the WSJ, a contribution to an Editorial Page symposium on Alan Greenspan's argument a few weeks ago that the Fed didn't cause the housing bubble.
My argument that the Fed did is in the WSJ, "Low Rates Led to ARMs". It is about halfway down the page.
Some readers will remember that during the fall I posted here the chart that provides the data that I summarize in my Friday column.
In a nutshell, the economic argument is that the substitution by consumers of ARMs for FRMs provides the economic mechanism for Federal Reserve short-term monetary policy to affect housing prices that both Greenspan and John Taylor had not discussed. Greenspan focused on the constancy of the 30-year rate and Taylor focused on the interest rate without providing a mechanism for converting short-term rates into housing prices (which was Greenspan's basic response to Taylor).
TOTM/ Patently-O Blog Symposium: Michael Carrier’s Innovation for the 21st Century:
Truth on the Market will have a two-day symposium on March 30 and 31 on Micheal Carrier's new book Innovation for the 21st Century:
On Monday, March 30th, we will focus primarily on the antitrust aspects of Carrier’s proposals. The four discussants will be: Dan Crane (University of Chicago/ Cardozo), Geoff Manne (TOTM/LECG), Phil Weiser (Colorado), and Josh Wright (GMU).
On Tuesday, March 31st, we will focus primarily on the intellectual property aspects of Carrier’s work. The three discussants will be: Dennis Crouch (Patently-O/Missouri), Brett Frischmann (Cornell/ Loyola), and F. Scott Kieff (Wash U./ Hoover/ and on his way to GW).
More details here.
Money in Politics:
My last post in this discussion is on lobbying and campaign money, topics discussed in Chapters 8 through 11 of my book.
Chapter 8 is titled Bagmen in Black Tie or Professional Intermediaries: the Growth of the Lobbying Industry and Prospects for Reform. Here I point out that the present success of the lobbying industry is driven largely by our system of campaign finance. I suggest that we cannot significantly change the lobbying industry and how it operates without changing campaign finance.
Chapter 9 discusses the many advocacy groups that engage in lobbying of public officials and that overtly or covertly engage in political campaign activities for public officials. These include public policy groups, legal policy groups, single issue advocacy groups, religious advocacy groups, foreign policy advocacy groups, trade associations, 527s and others. To the extent these groups conduct activity that would otherwise be conducted by registered lobbyists subject to the Lobbying Disclosure Act of 1995 or activity that would otherwise be conducted by political campaigns subject to the FEC disclosure rules, these groups are analogous to the special purposes entities (SPEs) that businesses use to move some operations off their books. All or most of the activity of these groups is constitutionally protected free speech, but this speech is not free. These groups are a significant part of a growing industry in Washington that turns money into law and public policy.
Chapter 10 discusses political activity of White House and other Executive Branch officials, a topic addressed in my first post last Monday. This activity provides a key access point for lobbyists and SPEs as well as other campaign contributors.
Finally, Chapter 11 discusses campaign finance. This topic has been well worn by other authors and various systems for regulation have been proposed. Although I do not conduct a separate analysis of each proposal, which would require another book, I suggest that regulation of money in politics is an uphill battle. Between First Amendment protections that limit the de jure scope of regulations and practical difficulties that limit the de facto scope of regulations, there is relatively little that can be done other than to require more meaningful disclosure (in some instances I suggest less disclosure, for example eliminating disclosure of small contributions that may discourage such contributions).
In the end, I suggest that government subsidies may be needed. Expanded public financing of campaigns would by no means eradicate the influence of money on politics, but it would increase the total amount of political speech. This should reduce the marginal benefit to be obtained from private expenditures, or at least make private expenditures that have a meaningful impact more expensive. Public financing of political campaigns could also be tied more tightly to the support of small donors, thus bringing more voices into the process. In short, more political speech not less, is probably the answer.
In general I do not like government subsidies. However, the current regime allows campaign contributors and their lobbyists and SPEs to extract subsidies in ways ranging from earmarks to inefficient regulation and bailouts. It would be cheaper to subsidize political campaigns directly in meaningful amounts if doing so would reduce the marginal impact of these private expenditures on a federal budget running into trillions of dollars and a national economy that is even bigger. The alternative may be having a system that provides, but only for those willing and able to pay, the best laws money can buy.
In closing, I should point out that lobbyists do not always get what they want.
Jack Abramoff and his colleagues, for example, tried to fire the chief White House ethics officer, my predecessor Nanette Everson. Everson had apparently given an ethics briefing to the White House Intergovernmental Affairs office in which she encouraged direct contact between the White House and Indian tribes. Abramoff and his colleagues were furious. As reported by the House Committee on Government Reform in investigating Abramoff:
It began on March 1, 2003, when Kevin Ring reported to his associates “a disturbing problem” he had heard about from the White House:
Just wanted to let everyone know of a disturbing problem I just learned about at the White House. The Intergovernmental Affairs Office just received their ethics briefing, and when all was said and done, they concluded that they should NEVER call lobbyists anymore – will call tribes directly – and will NEVER have lobbyists sit in meetings, EVEN WHEN the client is meeting with the IGA Office.
* * *
Finally, it is scary that the White House ethics advisor – a Nanette Everson – told the IGA folks that tribes shouldn’t even need to have lobbyists, anyway – and that it is wrong for them to pay so much money for lobbyists when people in the government should be meeting with them as needed. Those are fighting words!!!!
Abramoff responded, “This is horrible. Why would they f**k us like this?”
Over the weekend, the team developed a game plan in a series of e-mails to “straighten out” this matter:
Kevin Ring: It’s not about us, but we’re included. … Neil, this is definitely something Barry Jackson needs to hear about.
Michael Williams: WH folks are getting really arrogant lately. Not sure who is driving the train but they need to remember who there friends are ... or they risk the fate of Bush 1.
Shawn Vasell: I will talk with Matt as well. This is bulls**t.
Neil Volz: I will call [Deputy Assistant to the President] Barry Jackson with this today. Unacceptable.
Duane Gibson: 1) find out if there is any basis whatsoever in the advice from the ethics person. Get this in house if possible, not from the WH.
2) get everson fired, because I cannot imagine any basis for such advice.
3) act quickly to find out as much as possible about her.
4) start a phone bank and give everson 1000 calls a day from every tribe with a problem.
Staff Report , U.S. House of Representatives, Committee on Government Reform, 109’th Congress, September 29, 2006, citing e-mail exchange between Abramoff and his colleagues.
Everson was not fired and there is no indication that she backed down on this issue. Neither did I.
The UN Human Rights Council Resolution on "Defamation of Religion" and the Influence of Repressive Regimes on International Human Rights Law:
Last week, the United Nations Human Rights Council adopted a resolution supporting the suppression of speech that "defames" religion. The resolution is not considered to be binding international law in and of itself, but many experts claim that such resolutions should be considered in determining what counts as "customary international law."
The substantive weaknesses of the resolution are fairly obvious. In any society where people advocate public policies based at least in part on religious reasoning, free political debate is impossible unless opponents have the right to criticize that reasoning. Even when adherents of a given religion do not seek to use the power of the state to impose their views, open debate over the merits of those views is vital. For example, when the Catholic Church claims that the use of contraceptives is forbidden by God (but does not argue that contraception should be forbidden by the state), skeptics should be able to reply by arguing that the Church has misinterpreted God's will or even that there is no God in the first place.
The UN Human Rights Council resolution also exemplifies a crucial procedural weakness of international human rights law: the extensive role of repressive authoritarian states in determining its content. Most of the nations that voted for the Human Rights Council resolution are oppressive dictatorships, whereas most liberal democracies opposed it. As I explained in this post, the same thing happened when a similar resolution passed the UN General Assembly in 2007. Obviously, authoritarian regimes like the resolution because they can use it to suppress criticism of religions they seek to promote. For example, the present resolution was sponsored and promoted by the Organization of Islamic Countries; most OIC members are dictatorships that have Islam as their official religion and they have an obvious interest in suppressing critics of Islam or even advocates of more liberal interpretations of Islam that view it as compatible with individual freedom and democracy.
To the extent that the content of human rights law is influenced by the very sorts of governments most likely to violate rights, that content is likely to do more to support their repressive activities than curb them. Unfortunately, that problem is far from limited to this particular resolution. As John McGinnis and I discuss in this forthcoming article, it afflicts many other aspects of international human rights law as well. Even the Universal Declaration of Human Rights, usually considered the most important international human rights treaty, includes repression-justifying provisions inserted at the behest of Joseph Stalin and his communist allies. Indeed, Article 7 of the UDHR (inserted because of Soviet influence) can easily be used to justify banning "defamation of religion," since it forbids speech that incites "discrimination" and any speech critical of a religious doctrine might inspire "discrimination" against that religion's adherents.
The fact that the content of international human rights law is heavily influenced by oppressive governments does not prove that all of that content is harmful. Brutal dictatorships might sometimes support beneficial legal norms, and certainly democratic governments often support harmful ones. However, as John and I explain in our article, it does suggest that we should be wary of allowing such international law to displace the domestic law of liberal democracies. Although there will be exceptions, on average the domestic human rights law of democratic states is likely to be far better than international human rights law whose content has been heavily influenced by repressive regimes. Related Posts (on one page): - Vaclav Havel on the UN Human Rights Council:
- The UN Human Rights Council Resolution on "Defamation of Religion" and the Influence of Repressive Regimes on International Human Rights Law:
- Assessing the Universal Declaration of Human Rights:
Sunday, March 29, 2009
Beware the Google Book Settlement?
I don't know much about IP, nor the class-action litigation against Google for digitizing books, but this op-ed by Lynn Chu makes me think I should be concerned about the suit's potential settlement.
After Google began digitizing the University of Michigan library in 2004, the Authors Guild, the Association of American Publishers and a handful of authors and publishers filed a class-action lawsuit for copyright infringement. Last November, those "class representatives" reached an out-of-court settlement with Google that would, if approved by the federal court, permit Google to post out-of-print books for reading, sales, institutional licensing, ad sales, and other publishing exploitations, by Google, online. The settlement gives the class-action attorneys $30 million; a new, quasi-judicial bureaucracy called the Book Rights Registry $35 million (more on this later); and $45 million for owners infringed up to now -- about $60 a title. It remains subject to a final fairness hearing, slated for June 11.
No one elected these "class representatives" to represent America's tens of thousands of authors and publishers to convey their digital rights to Google. Nor are the interests of this so-called class identical. There is nothing more individual in the world than a book, an author, a publisher, and the value of a contract. The aging baby boomers now flacking the settlement don't seem to understand that PDF scanning (how Google and everyone else digitizes books) isn't rocket science; it's cheap and easy. Books will be digitized without Google. But the Google settlement sets in amber today's overhyped role of the Internet, ruled by that great and magnificent Oz -- Google.
Sound like hyperbole? Consider this: Under the settlement, every rights-owner in America is supposed to hand over all their private contract data, on every edition of every work they ever wrote -- and every excerpt permission ever granted to others -- at the peril of losing the money Google will be making on their backs. This is a massive burden on everyone in the book industry, making us all, in effect, Google's data-entry slaves. Indeed, in most cases such information about every permission ever granted is unlocatable. It opens a Pandora's box of disputes and mistaken claims about who actually owns what.
I would be interested to hear what those who know more about copyright, and the specific claims at issue here, think about this.
Free Trade Is Common:
Don Baudreaux has an interesting post on the ubiquity of free trade.
A response on torture and setting the right priorities:
I face the curious accusation that I oppose torture in order to sell copies of my book. At most eight pages (129-134 and 137-141) of the book deal with the torture memos. Nobody should pay $55 (probably the best price for my book on line) in order to hear from me a new and insightful argument against torture. The fact that cruel and degrading treatment of human beings is wrong has already been conclusively established, for example in a best selling book available free of charge in most motel rooms.
I have been asked to provide more specifics to support my argument. There are enough specifics provided in the comments to my posts, including references to crushed testicles and similar inflictions. We should not be talking about this kind of thing in the United States.
From the opposite side, I face criticism for not being enthusiastic about state bar associations sorting through what went wrong. Fact is that, with the notable exception of the District of Columbia bar, state bar associations have said relatively little that is specific and informative about the obligations of government lawyers besides prosecutors. There have been relatively few disciplinary proceedings, apart from those against prosecutors. Ethics of government lawyers is a topic – like the role of corporate lawyers prior to Sarbanes-Oxley – that has suffered from benign neglect. Most authorities on legal opinion writing are oriented toward private clients, and many of these authorities are slanted toward allowing the lawyer too much flexibility in telling the client what the client wants to hear. As I pointed out in an earlier post, malpractice litigation not bar disciplinary proceedings is the mechanism by which sloppy opinion writing for private clients is deterred. It is perhaps unfortunate that we do not have, and may not be able to design, a similar malpractice regime for the government bar.
I said in my book that competence standards in legal opinion writing should be strictly enforced by the states where lawyers are licensed to practice, by the federal government, or by both (page 133). The problem is that these authorities have not, except in the most general language, articulated what those standards are. A lot more attention needs to be paid to defining and enforcing standards in this area.
What is needed is an executive order banning torture and anything that comes close to torture (I believe we now have one, but given the amount of hairsplitting in our conversation, I should reread the President’s order to make sure). We then need an act of Congress signed by the President that says the same thing so the definition of torture will not change every four to eight years. The law should specifically provide that tactics such as waterboarding, sleep deprivation, and humiliation are illegal and criminal. Finally, a mechanism should be set up within the Department of Defense and the CIA to enforce the law. Prisoner abuse, whether in United States custody or in Chicago police stations, has been the subject of a “don’t ask, don’t tell” mentality for too long.
I will not respond to invective against the Right Rev. Gene Robinson, Bishop of New Hampshire. None of that is interesting to most readers here, except perhaps the fact that when people in New Hampshire choose their own clergy, or their own license plates saying “live free or die”, there is bound to be trouble if others do not leave them alone.
The more relevant point on that topic is that many of our political leaders as well as parts of our religious establishment have focused debate in recent years on issues that reflect the wrong priorities. In 2005, in the midst of wars in Afghanistan and Iraq, weeks were spent by officials at the highest levels of all three branches of the federal government debating both sides of a case involving one terminally ill patient in Florida. That case involved important issues, but did they have to be federal issues? Meanwhile, hundreds of thousands of American soldiers are depending on our government to make decisions – ranging from proper interrogation techniques to proper protective gear -- that could determine whether they live or die. Sometimes the federal government should have the good sense to know when it is into enough difficult matters already and should stop getting into more.
Interesting Patent Case:
PatentlyO (Prof. Dennis Crouch) blogs about the cert petition in IGT v. Aristocrat Tech of Australia, which has also drawn in an amicus petition from various tech industry giants (Google, Microsoft, Dell, etc.):
Every year, the PTO revives hundreds of unintentionally abandoned patent applications, and about half of those eventually issue as patents ....
In court, IGT has argued the revival was improper and thus, that the patents are invalid[, but t]he Federal Circuit ... [held] that improper revival is not a "cognizable defense" to patent infringement ... [because it] did not fall within any of the four categories of [statutory] defenses .... The case implicitly calls into question other traditional defenses such as nonstatutory double patenting, improper inventorship....
Of course, a defendant should have some mechanism for challenging an improperly revived patent -- either through the courts or a post-grant procedure at the PTO. Under the Federal Circuit's rule, however, a typical defendant would have no recourse. (Two potential avenues could be (1) inequitable conduct in the revival and (2) trigger an interference.)
Leaving the PTO's revival grant's unchallengeable is particularly troublesome because of the serious lack of transparency in the petitions office. Pre-grant revivals are tucked away in individual prosecution file wrappers and cannot be searched in any public database. Thus, the public is left without any check on the system at either the micro or macro level....
In several ways, this cases parallels the other recent Supreme Court patent cases such as KSR, eBay, and MedImmune. At least as history tells the story, each of those cases began with a rigid rule created by the Federal Circuit to favor patent holders. In each case, the Supreme Court softened the rule to add flexibility in a way that favors the defendants. In KSR, the rigid TSM test for applying multiple references during obviousness analysis was relaxed. In eBay, the rule strongly favoring injunctive relief was relaxed. And, in MedImmune, the rule setting a reasonable apprehension of a lawsuit as a condition precedent to a declaratory judgment action was also relaxed. In the IGT case at hand, the Supreme Court has the opportunity to tear down another rigid application of the law and open a new avenue for defendants to challenge a patent holder's rights....
Disclosure: The lawyers on the petition are colleagues of mine at Mayer Brown LLP.
The Fed's Role in the Housing Bubble:
The WSJ had an interesting symposium on the role of the Fed in the housing bubble. Contributors included David Henderson, Gerald O'Driscoll, David Malpass, Judy Shelton, Vincent Reinhart, and our own Todd Zywicki.
Regulating Freddie Mac:
The Washington Post has an interesting story on conflict between Freddie Mac and the feds.
Half a year after the government seized Freddie Mac, confusion about its role is stoking tensions between the company and its regulator, including a dispute this month over how much the mortgage giant should reveal to private investors about its financial troubles.
Federal officials who took over Freddie Mac stopped short of nationalizing the company, leaving it partly in private hands. This means Freddie still has to answer to investors and file financial disclosures.
But when Freddie Mac's executives concluded a few weeks ago that they had to disclose that the government's management of the McLean company was undermining its profitability and would cost it tens of billions of dollars, the firm's regulator urged it not to do so, according to several sources familiar with the matter.
Freddie Mac executives refused to bend. The clash grew so severe that they threatened to go to the Securities and Exchange Commission, which oversees corporate disclosures, to secure a ruling that the regulator's request was out of line. The company's regulator backed down, the sources said.
North Caroline Speeches Update:
In my posts last week, I mistakenly reversed the days I will speaking at the University of North Carolina and Duke on "Was Lochner Right? Natural Rights and the Fourteenth Amendment." Here is the correct information and details:
Monday, March 30 at noon:
UNC Law - Room 4085
160 Ridge Road, Chapel Hill, NC 27599
Tuesday, March 31 at 12:15:
Duke Law - Room 3037
Duke Law is at the corner of Science Dr. and Towerview Rd. in Durham.
Studying the Right:
The New York Times reported this week on the creation of a new research center at the University of California at Berkeley's Institute for the Study of Social Change: the Center for the Comparative Study of Right-Wing Movements. “This is unique,” said Paola Bacchetta, an associate professor at Berkeley and an editor of the collection “Right-Wing Women: From Conservatives to Extremists Around the World.” “There are no other centers that I know of.”
Scheduled to open in the fall, the new center, which Lawrence Rosenthal will oversee, is affiliated with Berkeley’s Institute for the Study of Social Change. “Part of the motivation is that it is an understudied area,” Mr. Rosenthal said. . . .
From which political direction the financing for this latest effort is coming is masked. The donor’s request for anonymity may be more to ward off requests for other contributions than for political reasons. The donation, $777,000, is relatively small, but enough, Mr. Rosenthal said, for the center to sponsor lectures, conferences and colloquiums; offer fellowships for undergraduate and graduate students; and publish papers. The story claims that "little effort" has been made within the conservative movement to study its on history. I don't think this is true. In my experience, conservative institutions are intensely interested in understanding their history and studying the intellectual roots of their ideology. There are many books by conservatives writers and historians examining the growth and development of the conservative movement, most notably George H. Nash's The Conservative Intellectual Movement in America Since 1945. Among those sponsored by various conservative institutions are Jeffrey Hart's The Making of the American Conservative Mind, the American Conservatism encyclopedia, and Lee Edwards' The Conservative Revolution and Bringing Justice to the People. And then there are other recent works like Stephen Teles' The Rise of the Conservative Legal Movement, Ann Southworth's Lawyers of the Right, and Kim Phillips-Fein's Invisible Hands: The Making of the Conservative Movement from the New Deal to Reagan, as well as recent works on libertarianism, including Brian Doherty's Radicals for Capitalism and the Encyclopedia of Libertarianism.
From the story, it seems the real niche the new Center will fill is "comparative" studies of "right-wing" movements in various countries. I am skeptical of such work, particularly insofar as it tries to draw links between modern American conservatism and European fascism. The mainstream American conservative movement is grounded in the classical liberal tradition, and thus is quite distinct from "right-wing" or "conservative" movements in many other places.
The story also compares this center to those that already exist throughout academia to study left-wing political and social movements (e.g. labor, feminism, etc.). What the story omits, however, is that most academic efforts to study left-wing political movements are quite overtly sympathetic to the subjects of their study, and are often as engaged in activism as rigorous academic inquiry. It is unlikely the same could be said here, however, as I doubt those at Berkeley's Center will be particularly sympathetic to conservative and libertarian movements, nor particularly eager to advance their cause.
Sunday Song Lyric:
"Tracks of My Tears" is the poignant confession of a broken-heared man. The song was a signature of Smokey Robinson and the Miracles, and co-written by Robinson, Warren Moore, and Marvin Tarplin. I was surprised to learn that the song never topped the charts, but it's on Rolling Stone's list of the 500 Greatest Songs of all Time and in the Grammy Hall of Fame. The song begins: People say I'm the life of the party
Cause I tell a joke or two
Although I might be laughing loud and hearty
Deep inside I'm blue
So take a good look at my face
You'll see my smile looks out of place
Just look closer, it's easy to trace
The tracks of my tears
I need you, need you Here are the full lyrics, and a performance by Smokey Robinson and the Miracles.
Like any classic song, "Tracks of My Tears" had been covered many, many times, most recently by Adam Lambert on American Idol. That performance, available here, received a standing ovation from Smokey Robinson himself
Its just plain wrong:
My criticism of legal arguments justifying torture seems to have created much controversy this week. I recognize that citation to international law and the views of a former head of the Office of Legal Counsel does not conclusively establish the case against torture. Neither do the views of Senator John McCain, a man who experienced torture in Vietnam, nor the views of the Presiding Bishop of the Episcopal Church who wrote to Senator McCain.
One commentator asks me to differentiate between prohibiting torture and prohibiting consumption of broccoli. In an earlier era, President George H. W. Bush might have found this analogy amusing because he publicly stated that he disliked it when his mother made him eat broccoli. In light of what has happened in recent years, the matter should be viewed more seriously.
This is not an argument which a person wins by citing cases or finding ways in which the Constitution might conflict with treaty obligations the United States voluntarily entered into. This is a question of right and wrong, and there are certain things a civilized society does not do. Much of the work of an ethics lawyer, or any lawyer for that matter, is giving a client advice that amounts to common sense. The advice required on this question is that torturing prisoners is morally and legally wrong and that legal opinions seeking to justify torture will expose the United States to widespread international criticism and other adverse consequences. They did.
Of course I bring my own moral views to this question. It would be difficult not to. There is admittedly a gray area when a lawyer believes something is clearly legal but also morally wrong. Advice given to a client may vary depending on the circumstances and the lawyer. When something is widely viewed as being both illegal and morally wrong, however, constructing an argument to the contrary is a disservice to the client, even if the client appears ready to entertain such an argument. The lawyer’s job is to say no.
In an earlier post I expressed some reservations about legislating certain aspects of personal morality (sex, alcohol, etc.). I worry that having too much law can encourage disrespect for the law. I fail to see why this is a reason not to have a law against torture. Simply because we do not have a law against everything, must we live in a society without laws against anything?
Finally, I did not take sides in any of my posts in the dispute currently afflicting the Episcopal Church. I did say that there are more important matters – such as the torture issue discussed in Bishop Griswold’s letter to John McCain -- than the personal life of the Bishop of New Hampshire. I hope that churches, and our government, will focus on these more pressing matters, of which there are many.
I also don’t think anybody is interested in listening to Episcopalians argue about sex. When, however, an argument about sex spills over into an argument about money and real property, there is a subject about which passions truly run high. The resulting litigation over breakaway parishes, currently going on in Virginia and in many other states, involves Civil War era statutes on disposition of church property, trust law, canon law, church-state issues, corporate governance law and other fascinating questions. This litigation will entertain law professors and other bystanders, although I hope the Church does not bankrupt itself in the process.
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