Saturday, April 25, 2009

President Bush was right on the International Criminal Court:

President Bush's decision to withdraw the United States signature to the Rome treaty creating the International Criminal Court (a signature which President Clinton had affixed in the final days of his administration) was cheered by the Heritage Foundation, and vigorously denounced by Transnationalists, including Harold Koh, now the nominee for Legal Advisor to the U.S. Department of State. In the current issue of World Affairs, Julie Flint and Alex de Waal detail the disastrous, inept, self-serving, and thoroughly harmful tenore of the ICC's one and only head of the Office of the Prosecutor (OTP), Luis Moreno Ocampo. That Ocampo remains in office after six years is a very important data point that the ICC suffers from severe structural defects. Theoretically, there are good pro/con arguments regarding an ICC. In practice, President Bush's judgment that the ICC as it was actually created was a dangerously bad institution and incapable of self-reform appears to have been correct.


Judge Bybee and the Torture Memos: The Washington Post has an interesting front-page story today on Judge Jay Bybee, who was the head of DOJ's Office of Legal Counsel from November 2001 to March 2003. I find it a bit hard to know what to make of the story, as it's pretty vague and the sources are mostly anonymous; the story indicates that Bybee has regrets about the torture memos he signed, but it's not clear exactly what about them he regrets. Still, it's a pretty interesting story.

Related Posts (on one page):

  1. Judge Bybee Breaks His Silence:
  2. Judge Bybee and the Torture Memos:

Austrian Beer and Wine Bleg:

Next weekend, my girlfriend and I will be hosting a party in honor of F.A. Hayek's 110th birthday. To celebrate the occasion properly, we need an appropriate supply of Austrian beer and wine. Perhaps some of our more alcoholically sophisticated readers can recommend a good place in the DC or northern Virginia area where such beverages can be purchased.

The party might well be the DC libertarian social event of the season, with various luminaries attending, including multiple Volokh Conspirators. So we need to supply the assembled company with praxeologically appropriate sustenance. The Constitution of Liberty needs proper fortification!

On a slightly more serious note, here's a link to my post on why Hayek is still relevant today. Indeed, given current efforts to impose at least temporary government planning on large portions of the economy, Hayek is even more relevant today then when I wrote the post last summer. Also still relevant is Hayek's critique of conservatism.


Is Richer Greener?

Jonathan’s fine post reminds us that some of the gloom-and-doom predictions of people like Paul Ehrlich have proven false, and that it is just as easy to exaggerate the problem of environmental degradation as to neglect it. But in rereading Tierney’s column and some of his other work, I realized that Tierney’s reporting on the environmental Kuznet’s curve repeatedly makes a serious error. I don’t know whether Jonathan has made the same error or not—not explicitly if he did—but it is worth explaining.

As Tierney describes it, the EKC describes a recurrent—but not universal—pattern where increasing wealth in a country is not (as Ehrlich predicted) correlated with increasing environmental degradation; instead, the emission of at least some types of pollutants and activity that causes other forms of environmental degradation flatten out and decline as wealth increases. Tierney observes this pattern and leaps to the conclusion that we needn’t worry too much about global warming and other pollution problems because eventually the flattening out will occur in these cases as well. (And, indeed, he cites empirical research that shows a long-term reduction in carbon per unit of energy.)

But as Jonathan’s examples make clear, the reason for this pattern has nothing to do with the problem of pollution properly understood—as a problem of negative externality. Consider the example of the saw blades. A firm that owns a patch of timber rationally switches from thicker to thinner saw blades because thinner saw blades waste less wood. If demand remains constant, then the firm will destroy fewer trees than in the past. In this way, technological development reduces what Tierney calls “environmental impact.”

But in this example, environmental impact is purely internalized. When a firm can produce output with a new technology that wastes fewer inputs, it will do so. Happily for the rest of us, the extra trees may absorb some greenhouse gases, but that was certainly not the goal of the firm. It just happens that in this particular setting a firm’s profit-maximizing decision to switch to a new technology benefits other people.

But this example reflects contingency only. Why would a profit-maximizing firm care about benefiting the rest of us? Indeed, it will surely destroy more trees than is optimal from the social standpoint since it does not internalize the full social benefit. But Tierney is not comparing the current level of forestation with the optimal level; he is comparing it with a level that existed at an arbitrarily chosen earlier period. Suppose now that a still newer saw blade technology will be even more efficient for the firm, but the manufacturing process needed to produce it generates loads of greenhouse gases. The firm will switch to this technology even though the social costs may be greater than the social benefits (in the form of cheaper wood, more trees, etc.).

I can see only two possible explanations for the EKC. The first is the one I provided in my earlier post: that as people become wealthier, they become more willing to pay for regulation that reduces pollution. (Wealthier people may also be able to demand and secure better governmental institutions that will reliably translate their preferences into outcomes.) The second is that, given our system of incomplete property rights that fails to internalize all positive and negative externalities, it is not surprising that technological change sometimes has positive effects on the environment (a new technology exploits inputs more efficiently, benefiting both the user who needs to pay for fewer inputs and third parties who suffer from less pollution), and sometimes has negative effects on the environment (a new technology benefits a user because it results in more waste being externalized on other parties). Julian Simon won his famous bet with Paul Ehrlich because it turns out that technological development frequently does outpace demand for resources, but Simon never claimed that it follows that we shouldn’t tax activities that cause pollution—because it doesn’t!

It is certainly possible that the first theory applies to carbon use. Fuels that generate energy alone rather than energy plus a bundle of harmful pollutants will, all else equal, provide greater benefits to those who use them because they get more energy for the buck. The long-term trend toward greater energy efficiency thus can be attributed, in part or even in whole, to market incentives, which have caused energy users to switch from less efficient (expensive) to more efficient (cheaper) sources of energy. But because these energy users care about clean energy only to the extent that it reduces their own costs, and not to the extent that it reduces costs for third parties, this process has occurred too slowly, and so government intervention is warranted.

I fear that people like Tierney have fallen prey to the notorious selection effect. They are looking for examples where environmental degradation has receded (forestry) rather than increased (the atmospheric commons, the ocean fisheries), and then, implicitly, saying that the happy outcomes in the first case mean that we shouldn’t care about the bad outcomes in the second. Of course, that is wrong. Where technological change causes people to use their property rights in a way that benefits rather than harms other people, obviously there is no or little reason for government intervention. But where it has the opposite effect, there is. The existence of the first phenomenon does not imply that the second phenomenon does not exist.

A final point. The phrase “richer is greener” may be a reasonable description of the world, but I don’t think it has any implications for policy. If some activity produces pollution, the usual prescription is to tax it so that the marginal cost of the activity equals the marginal benefit. The producer should stop the activity at the point at which an additional unit hurts society more than it helps it. The “richer is greener” slogan may seem to imply that in fact we shouldn’t tax this activity. The tax will make us poorer—consumers pay more and shareholders receive less. If the tax is not imposed, we’ll be richer and therefore (?) greener.

But the goal of social policy is not to make us richer but to make us better off, and when we prefer clean air over extra money, then the tax is justified. The only way I can make sense of the slogan is as a claim that richer people care more about the environment and voluntarily cut back on consumption, buy more green-friendly goods, and so forth; over the long term, more rich people mean a cleaner environment. As I noted before, rich people cause more environmental harm than poor people do. A McMansion uses more energy than a small apartment with leaky windows; a Prius uses more energy than a seat on a bus. But even if this claim were true, by hypothesis, the richer people are worse off than they would be if the tax had been imposed—they are actually poorer in a well-being sense as opposed to a monetary sense. Indeed, if the story about their preferences is true (and I remain skeptical), they will spend a lot of the money they save on taxes by traveling to places with clean air, purchasing oxygen supplies, and so forth, so they may be poorer rather than richer. I suspect that the story is a lot simpler here. In countries where people get their act together and manage to create and sustain high-quality institutions, these institutions (functioning court systems, non-corrupt legislatures, and so forth) adopt socially beneficial policies—including policies that both enable people to accumulate wealth and constrain activities that cause environmental harm.


A Wave of Donor Intent Lawsuits Coming?

Yesterday's WSJ had a major story on the dust-up going on at Trinity College as the administration there tries to plunder a gift made by Shelby Cullom Davis to establish a chair in the study of free enterprise:

In 1981, Trinity President Theodore D. Lockwood wrote to Mr. Davis that the fund, by then $1.6 million, was big enough to be tapped to create a Shelby Cullom Davis Professorship of American Business and Economic Enterprise. The letter listed several related activities, such as campus visits from business leaders. Mr. Lockwood also sought flexibility to use the money as the school saw fit "as conditions evolved and opportunities arose."

In a return letter, Mr. Davis approved the professorship and activities Mr. Lockwood specified. But he rejected any other leeway. "It is my wish that the funds and income from the Endowment be used for the various purposes you have described...and for no other purposes."

Over the years, the value of the chair grew substantially. The current holder of the chair, economist Gerald Gunderson, requested that the Trinity administration add new professorships consistent with the intent of the gift, but Trinity refused:

The Davis fund grew beyond the needs of meeting Mr. Gunderson's $155,000-a-year salary. By 2007, it reached $13.5 million, or 3% of Trinity's total endowment, and generated more than $500,000 a year in income. After recent market declines, the fund is now estimated at $9 million.

Mr. Gunderson, 68 years old, says he complained for years that the school was starving the program and had rejected his frequent requests to add another full-time professor and a business-executive-in-residence program. The letter from Mr. Lockwood provides for the creation of a single professorship, but it doesn't explicitly rule out adding another.

Trinity instead wants to use the money to fund scholarships for international students. Prof. Gunderson complained to the Connecticut AG's office to investigate. More on Gunderson and his efforts here.

Based on the fact here, it seems to me that Professor Gunderson is on the right side of the story and really deserves credit for doing the right thing, even though it looks like he's not the most popular guy on campus these days. It isn't hard to imagine how much pressure he probably was under to keep his mouth shut rather than blowing the whistle. The story reports, "In a February letter, the attorney general's office told Trinity it could find no evidence that Mr. Davis intended the college or his family to have discretion to direct income from the endowment to purposes "other than the study and promotion of the economic theories of the free enterprise system." Amazingly, Trinity tried to do the same thing with restricted endowments in 2004 and backed-down when faculty revolted. And where were the trustees during all of this?

As the WSJ article notes, this is a problem that might be set to explode. The downturns in university endowments is creating intense pressures to invade restricted endowments and to convert them to general uses (like scholarships for international students). Moreover, the impact of the economic downturn on universities may be even greater than society in general.

Today's WSJ has a withering attack on the incompetence of university boards in managing their investments over the past several years (a point I have raised previously):

Idiots, liars and thieves have torched billions of dollars in this financial crisis. But it is a safe bet that at least as many billions were lost by smart people trying to do good, honest work on behalf of others — usually as part of a committee.

Examples are so abundant it isn't hard to trip over them:

Compensation committees on Wall Street awarded multimillion-dollar bonuses to the very people who ended up nearly eviscerating the global financial system. The investment committees at leading universities embraced hedge funds, private equity and real estate so unquestioningly that many ended up with 75% or more of their endowment in these illiquid assets.

Investment committees at charities fell as badly under Bernard Madoff's spell as lone investors did, often losing millions of dollars at a pop.

Boards of directors at mutual funds looked the other way as managers loaded up on toxic mortgage securities.

State boards of trustees approved risky investment menus for the "529" plans designed to help families save for their children's college costs. Not just dollars but dreams were destroyed.

So much for the wisdom of crowds. "The best groups will be better than their best individual members," says Robert Sutton, an organizational psychologist at Stanford University, "and the worst groups will be worse than the worst individual." That is because committees and other groups tend either to follow the leader in a rush of conformity or to polarize into warring camps. For committees and other boards to work well, they must be made up of people with differing perspectives and experience who are unafraid to speak their minds, says Richard Larrick, a psychologist at Duke University's Fuqua School of Business. They must also select and process information effectively and seek to learn systematically from their mistakes.

Obama DoJ Seeks to Narrow Defendants' Rights:

The Associated Press has an interesting story on the Justice Department's effort to limit or overturn Michigan v. Jackson, which limits the ability of the police to initiate questioning of criminal defendants.

The Obama administration is asking the Supreme Court to overrule long-standing law that stops police from initiating questions unless a defendant's lawyer is present, another stark example of the White House seeking to limit rather than expand rights. . . .

The Justice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision "serves no real purpose" and offers only "meager benefits." The government said defendants who don't wish to talk to police don't have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers' questions.

At the same time, the administration acknowledges that the decision "only occasionally prevents federal prosecutors from obtaining appropriate convictions."

The administration's legal move is a reminder that Obama, who has moved from campaigning to governing, now speaks for federal prosecutors.

More from SCOTUSBlog here.


Is Richer Greener? A Comment on Posner on Tierney:

Eric has an interesting post commenting on John Tierney's recent column on wealth and the environment. Eric notes that Tierney's argument is overly simplistic, and that basic arguments about the correlation between economic growth and environmental performance may not apply in the context of global climate change. Fair enough, but I would also like to qualify some of Eric's remarks.

First, I think it is important to note that one of Tierney's primary claims is that the formula of environmental impact advanced by Paul Ehrlich, John Holdren, and others -- the so-called I-PAT formula -- is incorrect. Ehrlich, et al., asserted that overall environmental impact (I) is a function of population (P), affluence (A), and technology (T), such that increasing P, A or T leads to an increase in I (and impact is presumed to be negative. Thus, as Tierney summarizes, "protecting the planet seemed to require fewer people, less wealth and simpler technology." Yet, as Tierney notes, wealthier societies are more able and willing to pay for environmental protections. Moreover, technology can enable us to satisfy human wants and needs with less environmental impact, as occurs when technology increases agricultural productivity, enabling us to feed more people on less land (and set aside more land for nature).

What about population? Is the relationship between population and environmental impact still a positive one? Not necessarily. As economist Seth Norton has shown, economic institutions have a greater effect on some measures of environmental quality and human well-being than does population growth. Specifically, Norton looked at measures like access to safe drinking water, water pollution, and deforestation rates. As Norton found, "compared with other forces, the purely adverse effects of population are very small." Moreover, as it happens, the institutional arrangements which improved environmental performance in Norton's study (and tend to correlate with, although almost certainly do not explain, reduced fertility rates), are also those that tend to encourage economic growth.

In his post, Eric makes the important point that the Environmental Kuznets Curve (EKC) depends upon "legal institutions to translate people’s preferences into outcomes." He further criticizes Tierney for not acknowledging the role of government, in particular the role government plays in enacting people's environmental preferences. He writes: " As I get richer, I am willing to pay more for clean air. But I can’t buy clean air at the store. I have to lobby my legislator for regulation that increases the price of goods that I buy. . . . What Tierney misses is that the Kuznets curves assume the government doing something at the behest of citizens." I agree with Eric on the importance of institutions, and I accept that government intervention is sometimes necessary for environmental improvement, but I think it is wrong to suggest that the positive aspects of the EKC are solely (and perhaps even primarily) the result of such governmental intervention.

Some improvements in environmental performance brought about by increased wealth and technological advance are somewhat independent of people's preferences. That is, some technological changes have dramatically positive, albeit unintended (and certainly not governmentally mandated) environmental effects, and there are reasons to expect such changes to be common. So, for instance, replacing copper wire with fiber optics has substantial positive environmental effects. Insofar as increased wealth and market institutions are necessary for such technological change, these are changes that are dependent upon our legal institutions, but are not dependent upon governmental intervention.

A really good example of an EKC effect that is not the result of legislative action is reforestation in developed nations. Let's take the United States (about which I wrote an article "Poplar Front: The Rebirth of America's Forests" about a dozen or so years ago). For most of the 20th century, the U.S. underwent dramatic reforestation -- and legislative action of the sort Eric describes had almost nothing to do with it. Indeed, if anything, it may have slowed down the process. Why did reforestation occur? Many things contributed. First, increased agricultural productivity meant less land was necessary for agriculture. No less important, agricultural production had migrated from the eastern U.S. into the midwest, allowing forest regrowth in areas formerly under plow. Whereas the eastern U.S. was once farm country, it is now quite forested. Even areas that we like to think of as "wilderness," such as portions of the Adirondacks, had been previously cleared and farmed.

Other technological factors leading to greater forest growth were things like improved sawmill technology (e.g. thinner sawblades so there is less waste in timber production) and the development of the internal combustion engine. As cars and tractors took over for horses, much land formerly farmed for animal feed went back to nature.

What about government efforts to protect forestland? Well, much of the "protected" forest land, particularly in the east, was only protected after it had undergone the forest regrowth I describe above. Second, rates of forest growth in the 20th century appear to be greater on private than on government land. Rates of replanting and regrowth after cutting appear to be greater on private land than on federal land.

My point is not that government intervention is never necessary for environmental improvement. Rather, it is the more modest point (with which Eric might agree) that many of the forces that drive EKC effects are more dependent upon the underlying legal institutions of a liberal market order (e.g. property rights, rule of law, etc.) than upon legislative action. I would also suggest that, in many cases, greater reliance upon such institutions might actually produce superior results than legislative intervention. so, for instance, building upon common law protections of property might produce stronger EKC effects than legislation. Work like Elizabeth Brubaker's Property Rights in Defence of Nature, on the history of the use of common law property protections to protect water quality in Canada -- and the eventual sabotage of such protections by legislatures -- is highly suggestive on this point.

Finally, let me note that I agree with Eric with regard to the application of the EKC to climate change. First, although there is evidence of market-driven improvements in energy efficiency and per-GDP greenhouse gas emissions, we have yet to see an EKC effect with greenhouse gases. Further, there are reasons to doubt that such effects will occur on a national level due to the global nature of the atmospheric commons. That said, meeting the climate challenge -- whether through controlling atmospheric carbon, adapting to anticipated climate changes, or (as will almost certainly be necessary) both -- will require increased wealth and technological advance, so it is worth remembering that environmental policies which reduce economic growth can hamper our ability to meet present and future environmental challenges.

Related Posts (on one page):

  1. Is Richer Greener?
  2. Is Richer Greener? A Comment on Posner on Tierney:
  3. Tierney on Using Energy, Getting Rich, and Saving the Planet

Friday, April 24, 2009

Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights:

Severance v. Patterson, a recent 5th Circuit Takings Clause case, underscores the second-class status of constitutional property rights, that I have often written about in my work.

The case involved a claim by property owner Carol Severance that the state of Texas had taken her land without compensation by requiring her to allow an easement to the public after Hurricane Rita pushed back the waterline in the coastal area where the property is located, in 2005. The state even seeks to compel her to tear down her house in order to make way for the easement. Such an infringement of property rights would almost certainly be a "physical taking" requiring compensation under the Takings Clause of the Fifth Amendment. Texas, for its part, argues that the state had a preexisting right to a "rolling easement" that encompasses any "dry beach" area and moves inland any time a hurricane or other natural disaster causes a shift in the coastline.

The Fifth Circuit, however, did not address the merits of this dispute because they ruled that Severance had failed to first get a ruling on her claim in state court, as required by the Supreme Court's 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank. Williamson requires Takings Clause claims to 1) get a "final decision" from the state administrative body that they intend to displace the owner's rights, and 2) seek and be denied compensation for the loss of their property in state court. As I discuss in this article (pp. 23-24), the first prong of the Williamson test is problematic because it often allows the state to seize property rights without compensation by enabling state officials to delay making a “final” decision until the property owners run out of time and funds. The Severance case, however, illustrates a major flaw in the second prong: claimants who do go to state court might then lose the right to ever have their case reviewed by a federal court, even if the state court rules against them under standards that offer far less protection for property owners' rights than is available under federal case law.

As the Fifth Circuit opinion points out, the Supreme Court's 2005 decision in San Remo Hotel v. City and County of San Francisco holds that if a property rights claimant does take her case to state court, as Williamson requires, her case will be denied any subsequent consideration in federal court because of the Full Faith and Credit Clause. The San Remo Court took this step even though the majority recognized that "“the concern that it is unfair to give preclusive effect to state court proceedings that are not chosen, but are instead required in order to ripen federal takings claims [because of Williamson]." As I discuss in a forthcoming article (pg. 24), this creates a Catch 22 scenario for property owners seeking redress for uncompensated takings: They have to go to state court first in order to meet the Williamson "ripeness" requirement. But if they do and the state court denies their claim, they are then forbidden to go to federal court because the state court judgment has a preclusive effect under San Remo. The Fifth Circuit correctly points out that this Catch 22 applies even if the litigants have little chance of prevailing in state court because the state court in question offers far less protection for federal constitutional property rights than would be available under federal case law. As Judge Edith Jones' opinion explains, Williamson applies unless the state court "unquestionably would afford [the plaintiff] no remedy." There is no other individual constitutional right where the Supreme Court has made it virtually impossible for litigants to assert claims in federal court in this way.

Why does it matter whether a takings case is litigated in state or federal court? Often, it doesn't. Indeed, some state courts offer as much or more protection for property rights as federal courts do. However, as with other constitutional rights, the reverse is also sometimes true. For a variety of reasons, state courts might be more hostile to constitutional rights asserted against their own state governments than federal courts are. After all, many state judges owe their appointment or election to some of the same state political forces as those that seek to violate a constitutional right in a given case. For this reason, among others, the availability of federal court review of constitutional challenges to state government actions has long been considered essential. As Justice Joseph Story explained in the famous 1816 case of Martin v. Hunter's Lessee:

In respect to the powers granted to the United States, [state courts] are not independent; they are expressly bound to obedience by the letter of the constitution; and if they should unintentionally transcend their authority, or misconstrue the constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other co-ordinate departments of state sovereignty . . .

The constitution has presumed (whether rightly or wrongly we do not inquire) that state attachments, state prejudices, state jealousies, and state interests, might some times obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens claiming grants under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals.

This rule has generally been followed. Individuals who assert virtually any kind of constitutional rights violation are not forced to go to state court and then denied review in federal court should they lose - except in the case of violations of the compensation requirement of the Takings Clause. There is no justification for this double standard.

The Fifth Circuit correctly interpreted the relevant Supreme Court case law. But that doctrine itself reflects an indefensible refusal to treat constitutional property rights claims on par with other individual rights.

UPDATE: The original version of this post misidentified Chief Justice John Marshall as the author of Martin v. Hunter's Lessee. I had forgotten that this was one of the very rare constitutional cases in the Marshall Court era where the chief justice did not write the opinion. The mistake in the text has been corrected.

UPDATE #2: I probably should have noted in the original post that, under San Remo, a litigant who takes his state case all the way up to the state supreme court, can then petition for certiorari at the federal Supreme Court. However, given the overwhelming odds against the petition being granted (the Supremes only choose to hear about 70-80 cases per year, out of some 7000 petitions), that is not, for most, a meaningful opportunity for federal court review of their takings claim. Moreover, even to get that far, the property owner will have to first take the case to the state supreme court, which is time-consuming and expensive in and of itself.

Related Posts (on one page):

  1. Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights:
  2. An Odd Sort of Ad Hominem Criticism in an Appellate Dissent:

The Obama prosecutions of 2013/17:

Hypothesize that the Obama administration, or perhaps foreign/international courts, prosecute and convict various officials of the Bush administration. Further assume that the new President who takes office in 2013 or 2017 has promised "I will ensure that the crimes of the previous administration are vigorously prosecuted."

Which, if any, acts of the First 100 Days of the Obama administration might be prosecuted? In answering the question, you may aggressively interpret any statute, treaty, jurisdictional claim, etc., in favor of the prosecution, but the interpretation may not involve a greater stretch than would be required to hypothesize the convictions of Bush, Cheney, Rumsfeld, their attorneys, CIA officers, and so on.


Controversial Weinstein Ruling Overturned: Last year, I had a series of very critical posts about Judge Jack Weinstein's opinion United States v. Polizzi, in which Judge Weinstein gave the defendant a new trial in light of his own prior decision not to instruct the jury about the mandatory minimum sentences that would be applied. Today the Second Circuit reversed Judge Weinstein on this issue in an opinion by Judge Katzmann:
[W]e do not conclude, as the government urges, that a district court may never instruct the jury on an applicable mandatory minimum sentence. Rather, without deciding whether it would have been within the district court’s discretion to instruct the jury on the applicable mandatory minimum sentence in this case, we find that the district court acted beyond its proper discretion when it ordered a new trial at which the jury would be instructed on the applicable mandatory minimum. The court submitted the case to the jury without instructing the jury on the mandatory minimum sentence, a course that was certainly within its discretion and the jury rendered a verdict upon the error-free trial. Absent a strong justification for redoing a properly conducted trial, the interests of finality, as well as respect for the jury’s verdict, counsel against requiring retrial.
Thanks to Howard for the link.

A response from four more law professors

to my questions about their proposal to provide broad religious-liberty exemptions in state statutes that recognize same-sex marriages. (I posted a separate response from Doug Laycock yesterday.) The four authors of this reply, all experts on religious freedom, are Robin Wilson, Carl Esbeck, Rick Garnett, and Tom Berg. Here is their reply, which has also been posted at Mirror of Justice:

Thanks very much for noting our proposal for a religious-liberty exemption to same-sex marriage laws in the context of the Connecticut debate and elsewhere, and thanks too for your questions about the proposal.

At the outset, just a few words about the necessity for religious-liberty protections. We agree with most of what Doug Laycock says on that score. The memo accompanying our proposal details the range of conflicts that have arisen or may arise. You're right that in some such cases, sexual-orientation nondiscrimination laws might already conflict with the religious objection. Nevertheless we believe that same-sex marriage increases the risks to religious liberty. Some of the effects are direct. It's partially, but only partially, that SSM increases the number of occurrences in which traditionalist religions or believers might be asked or pressured to facilitate same-sex ceremonies as organizations or business owners. Beyond that, SSM eliminates the argument, which has sometimes been successful, that a traditionalist organization does not engage in sexual-orientation discrimination as such, but acts against all extramarital sexual conduct. See, e.g., Christian Legal Society v. Walker (7th Cir. 2006) (accepting this argument for CLS's limits on holding leadership positions). Therefore traditionalists in some places will be newly subject to the claim that they are committing sexual-orientation discrimination — or committing marital-status discrimination, if they act based on an objection to an individual's having entering into a same-sex marriage.

In addition to the direct effects in the marriage-related contexts, there are spillover effects in other contexts such as employment or adoption. SSM with weak religious-liberty exemptions increases traditionalists' exposure to already-existing sexual-orientation nondiscrimination laws in those other contexts. This is in part because it might (as you suggest) weaken the public regard in general for religious liberty. But more specifically, it would likely weaken defenses under state religious-freedom provisions, constitutional or statutory (state "RFRAs"), that require a compelling interest to override religious freedom. Without religious exemptions, SSM may well be perceived by courts as strengthening the assertion that the government has a compelling interest in eliminating sexual-orientation discrimination in all contexts, not just marriage-related ones, with no religious exemptions. This was precisely the Supreme Court's logic in the Bob Jones University case: the government had prohibited race discrimination in multiple contexts without exceptions for religiously based discrimination, therefore no exception should be made for a tiny college to keep its tax-exempt status. Thus, in contrast with you, we think that passage of SSM with weak or nonexistent exemptions might very well have a significant negative effect on Catholic Charities' argument — a meritorious argument, as you've said — that forcing it out of special-needs adoption work serves no sufficient purpose when many other agencies are available to assist gay couples.

Including a significant religious exemption in a SSM bill, on the other hand, sends the message that the state's policy in general is to value religious liberty as well as nondiscrimination norms. It bolsters this more balanced resolution of the gay-rights / religious-freedom conflict not only in the marriage context but elsewhere. And it's in the interest of SSM supporters to back generous exemptions, which address an objection to SSM that you and the four of us all seem to agree is real, but which in most cases (the four of us think) will not erect significant barriers to gay couples.

On your questions about interpretation of our proposal:

1. Religious exemptions should include individuals, not just nonprofit religious organizations, as all of us seem to agree with the wedding photographer case (unfortunately, VT and CT haven't protected them). We are open to hardship exceptions from exemptions in cases where the exemption would, as you put it, impose "substantive (as opposed to symbolic) hardship on married gay couples and families." But we doubt that this substantive-symbolic distinction can be squared with your suggestion that individual state employees should be categorically excluded from exemption. If one wedding registrar objects to memorializing the marriage but another is immediately available, is there any measurable harm that's not merely symbolic? We think that putting a state employee to a choice between her faith and her job should require something more.

We also think that a hardship exception to a religious exemption should mean real "hardship" as opposed to mere inconvenience. To take some of the examples in our letter: If a marriage counselor is dismissed or sanctioned for refusing to counsel same-sex couples, or a small landlord is subject to fines or injunctions for refusal to rent, or a religious college is forced to provide housing for same-sex intimate couples, these objectors suffer loss of livelihood or other real hardships that should only be imposed, if at all, in cases of greater hardship on the other side. So we agree with you that the devil is in the textual details here, and we'd be interested in hearing your proposed standard.

2. We agree that a religious exemption should not protect harassment, provided that the definition of "harassment" is cabined to respect rights of free speech and non-coercive criticism along the lines Doug Laycock sketches. We don't think the language "refusing to provide services, refusing to solemnize, or refusing to treat [a marriage] as valid" can plausibly be read to protect active harassment as opposed to, in Doug's words, the right to be left alone.

3. We wouldn't expect language in this proposal to broaden exemptions in other nondiscrimination laws beyond how courts have reasonably interpreted them. Our concern regarding other laws, as mentioned above, was the opposite: that recognition of SSM with minimal religious-liberty protections would weaken or undermine religious-liberty arguments that objectors in other contexts were previously able to make.

4. Our proposal covers all religiously based objections to marriages so as to respect the principle of neutrality among religious beliefs. Like Doug Laycock, we think that other religious objections to marriages will be extremely infrequent. For example, we searched on Westlaw for cases after Loving v. Virginia in which individuals refused to solemnize an interracial marriage and could find only 1 news story, and that dispute settled. We think that conflicts of this sort are no more likely today.

I appreciate the great thought, care, and time that went into this reply. Along with Professor Laycock's response, it has been very helpful in clarifying my own thinking about this. It deserves a more thorough and considered reply than I can give it right now, but I do hope to address in a few days both the underlying religious-liberty concerns and some of the potential ways to address those concerns. In the meantime, however, I wanted to share this response with readers and get their reactions.


Obama too far left? End the Cuba embargo? Right and Left bloggers disagree:

In this week's National Journal poll of political bloggers, the first question was: "What is your top concern in how President Obama has dealt with Congress in his first 100 days?" On the Left, 68 percent said, in effect, that he has not been strongenough with Congress -- either that he has not provided enough direction, or that he has been too accommodating. On the Right, the overwhelming vote was that Obama "has governed too much from the left."

That was my vote, along with this comment: "A bold and transformative agenda to use today's economic problems as a pretext for the federal government taking vastly greater control of American economic life."

Question 2 was "Should Congress repeal the trade embargo on Cuba this year?" One hundred percent on the Left thought so, as 35 percent on the right.

I voted No, with the explanation "Repeal if and only if repeal advocates can present a plan in which repeal can help lead to the destruction of the Castro tyranny, and the Obama administration is willing to implement the plan."


An Odd Sort of Ad Hominem Criticism in an Appellate Dissent:

From the start of Judge Wiener's dissent in Severance v. Patterson (some paragraph breaks added):

With genuine regard and respect for my colleagues of the panel majority, I must dissent.


Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s published mission statement declares that its raison d’être includes “defend[ing] the fundamental human right of private property,” noting that such defense is part of each generation’s obligation to guard “against government encroachment.”) The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets.

And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance’s action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

Maybe I’m mistaken, but this seems a bit troubling. Appellate decisions should be about which side has the better argument, not whether some side is on a “Libertarian crusade,” or whether they are California or Texas residents, or what a law firm’s mission statement might be, or whether the party or the law firm is in the driver’s seat. Starting an opinion with a condemnation of the supposedly carpetbagging Libertarian lawyers, and then saying that this judgment about the lawyers and their plans provides a “framework” for the substantive analysis, doesn’t seem to me to be the right approach.

To be sure, a case’s being part of a broader litigation campaign might have some indirect relevance to a court decision, especially when the law isn’t clear. For instance, say a court is considering some proposed legal principle (e.g., considering whether and when the intentional infliction of emotional distress tort should be available to award damages based on the content of certain newspaper articles), and is evaluating the possible future consequences of the principle. A party’s or law firm’s long-term litigation strategy — e.g., a law firm's clear plans to bring this as a test case aimed at setting precedent for broader restrictions — might provide some useful example cases against which the rule will be tested. If a court knows that case B is coming down the pike, and that case A is just a means for trying to set a precedent supporting a certain result in B, a court might want to consider both cases A and B in figuring out the right rule now in case A.

But even there the identity and plans of a law firm are of extremely limited relevance. After all, if a court is worried about possible future consequences of the decision, those consequences could arise even in cases involving completely different law firms. And that’s true whether or not this firm is part of a “crusade,” or cares only about a particular case; the focus should be on what cases might actually be brought, not on what the law firms’ supposed agenda (or principal place of business) might be. All the more reason, I think, to focus on the parties’ arguments — even if one includes the long-term consequences of the arguments — rather than on who the lawyers are.

That’s why the majority opinion, written by Judge Edith Jones and joined by Judge Clement, strikes me as setting forth the better approach:

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent (“Context”), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

Related Posts (on one page):

  1. Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights:
  2. An Odd Sort of Ad Hominem Criticism in an Appellate Dissent:

Firing Cops for Bad Speech:

So today's Philadelphia Inquirer brings us this news:

Five Philadelphia police officers were fired yesterday for alleged misconduct, including two incidents in which officers were accused of using racial slurs.

Among them was William Thrasher, 24, who allegedly called African Americans in his 22d District "animals" and worse.

Thrasher, who had been on the force for two years, was quoted by a Temple University journalism student who was riding with him on patrol for a class assignment. . . . During the ride-along, Thrasher allegedly referred to the violence in his predominantly African American district as "typical n- s-" or "TNS."

Officers Donald Swan and Anthony Ferriola were also dismissed on allegations that they used racial epithets on the job. The remarks allegedly were made toward students while the two responded to a fight March 13 inside Audenried High School in South Philadelphia.

We've come to a pretty unfortunate place when the words "First Amendment" do not even show up in an article like this. Putting aside consideration of what kind of jackass would say stuff like that when he's got a journalism student in the back seat for a ride-along, firing a cop because he said nasty things to a ride-along journalist seems fairly outrageous to me — without any showing that his conduct on the job was in any way deficient.

[And in a nice Kafka-esque touch, given the questions that were raised about the accuracy of the journalism student's account of Thrasher's language, "Chris Harper, the associate journalism professor at Temple who edited McDonald's article, said the commissioner's action vindicated the accuracy of McDonald's work." Nice! The Commissioner fires Thrasher because of the contents of the article, and that shows that the article was accurate!]

[Update: Well, I must say I'm very, very surprised at the comments here. The vast majority of VC readers (or at least VC commenters) don't seem to find any First Amendment issue when the government of Philadelphia fires a policeman for remarks that he made in a conversation with a journalist. I'm stupefied by that, to be candid. That's what I mean when I said "we've come to a pretty unfortunate place" -- the First Amendment, which one would think would quite obviously protect a government employee's speech, has simply lost much of its power, and most people seem to take it for granted that it doesn't apply here. So presumably if a cop were to say "Man, I hate those freaking Democrats," or a state college professor said "Israelis (or Palestinians) are responsible for everything that's gone wrong in the Middle East," or a public school teacher were to say "Gay marriage is an abomination" or "Jews are really pushy, no?" -- no problems giving them the axe. Hugo Black is turning over in his grave (Jefferson, too). Silly me, but I thought the First Amendment meant that the state couldn't punish you for the content of your speech without a truly compelling reason for doing so. I know that the Supreme Court's not been with me on this - but I really did think that most of the VC readers would be.]


Thursday, April 23, 2009

Interior Designers Have the Right to Call Themselves "Interior Designers,"

even if they don't have a state license, the Fifth Circuit held yesterday in Byrum v. Landreth. Texas doesn't require interior designers to be licensed, but forbids unlicensed designers from calling themselves "interior designers." The Fifth Circuit held that this likely violated the interior designers' "commercial speech" rights (i.e., the lesser but still substantial First Amendment rights recognized by the Supreme Court as to commercial advertising), and thus ordered the district court to grant a preliminary injunction against enforcement of the law. In principle, the Fifth Circuit just made a preliminary finding of likelihood of success on the merits, but the reasoning of the case suggests that the same result would likely be reached on a motion for permanent injunction.

Here's an excerpt from the court's reasoning:

The State advances a circular argument that the speech inherently tends to mislead consumers. It runs: Texas created a licensing regime; therefore, unlicensed interior designers who refer to themselves as interior designers will confuse consumers who will expect them to be licensed. The descriptive terms “interior designer” and “interior design” are not, however, inherently misleading. They merely describe a person’s trade or business. The terms can be employed deceptively, for example if a person does not actually practice interior design, but the speech is neither actually nor inherently misleading. This argument also proves too much, as it would authorize legislatures to license speech and reduce its constitutional protection by means of the licensing alone.

The State next relies on two pieces of evidence to prove that unlicensed interior designers who use the title are engaged in misleading speech. The district court correctly rejected both proffers. The State offers a survey that asked irrelevant questions concerning the respondents’ general preferences for “licensed” professionals. The survey included five substantive questions and seventeen demographic questions. The only question even arguably relevant to whether the job title “interior designer” is misleading was, “if there were two professionals offering the same service, one with a license, and one without a license, do you think that it is deceptive or misleading or both that the licensed and unlicensed person can use the exact same professional title?” Unfortunately, because no definition of the qualifications of the “licensed” professional was included, no probative value can be attached to the responses. We are also unable to attribute probative value to a legislative report, prepared three years before the statutes here at issue were passed, finding that some people are confused about what type of services interior designers provide and marshalling comments for and against licensing these occupations. Significantly, the legislative committee that authored the report made no suggestions for legislation of any kind.

Both the survey and the legislative report expose the fallacy in the State’s effort to characterize certain interior designers’ professional practices as misleading. There is no fixed definition of the covered occupations. Interior designers may confine their work to harmonizing color schemes and selecting furnishings for private residences; or they may design the physical layout of commercial spaces, including aesthetic, functional and safety attributes; or they may furnish services on a wide spectrum between these alternatives. Where no fixed definition of the services exists, there can hardly be a claim that the public is being misled about particular individuals’ truthfully expressed level of expertise or services. The State has offered no evidence that the public has actually been misled about interior design services.


The Investment Bankers Strike Back:

Dr. Roy Poses has more on the implications of the takeover of higher education boardrooms by investment bankers and TJ Rodgers comments here.

Tierney on Using Energy, Getting Rich, and Saving the Planet

John Tierney argues that:

1. There will be no green revolution in energy or anything else. No leader or law or treaty will radically change the energy sources for people and industries in the United States or other countries. No recession or depression will make a lasting change in consumers’ passions to use energy, make money and buy new technology — and that, believe it or not, is good news, because...

2. The richer everyone gets, the greener the planet will be in the long run.

How could this be? Tierney explains:

By the 1990s, researchers realized that graphs of environmental impact didn’t produce a simple upward-sloping line as countries got richer. The line more often rose, flattened out and then reversed so that it sloped downward, forming the shape of a dome or an inverted U — what’s called a Kuznets curve.

In dozens of studies, researchers identified Kuznets curves for a variety of environmental problems. There are exceptions to the trend, especially in countries with inept governments and poor systems of property rights, but in general, richer is eventually greener. As incomes go up, people often focus first on cleaning up their drinking water, and then later on air pollutants like sulfur dioxide.

Tierney makes two big mistakes. First, the environmental Kuznets curves (which are themselves somewhat controversial) depend on legal institutions to translate people’s preferences into outcomes (as Tierney briefly acknowledges). As I get richer, I am willing to pay more for clean air. But I can’t buy clean air at the store. I have to lobby my legislator for regulation that increases the price of goods that I buy.

This makes good sense if I live in a city with factories that pollute the air and can be regulated. But if the problem is flooding caused by greenhouse gas emissions, I can’t just lobby my legislature to fix the problem. If my city or state or national government increases the costs of fossil fuels, while the rest of the world does nothing, the effect on climate change will be virtually nil. I have to lobby my government to enter treaties with other governments. But if Tierney is right that “no leader or law or treaty will radically change the energy sources for people and industries in the United States or other countries,” then I am wasting my time trying to lobby my government. I’ll be richer but more miserable because I can’t do anything about climate change—and over the long term I’ll not even be richer in monetary terms, as my taxes rise so that the government can afford sea walls and the like.

What Tierney misses is that the Kuznets curves assume the government doing something at the behest of citizens. He talks as though richer people will independently consume less as they become richer, but there is absolutely no evidence of that!

Second, there is no particular reason to think that the Kuznets curves (even if there is one for carbon, and it is not clear there is) will level off in all countries in time to save us from the worst consequences of climate change. Indeed, if Tierney is right that the Kuznet curve peaks at when a country’s income reaches $30,000 per capita, then we are in deep trouble. China’s per capita income is around $6,000 and it is the biggest emitter in the world. Even with relatively optimistic assumptions, we will be in trouble unless carbon emissions from the energy sector has been reduced to zero or close to it by, say, 2050 (based on figures taken from the Stern Review). (Agriculture and land use, which are harder to control, would continue to account for significant increases in greenhouse gases, and of course there is the large stock of carbon already in the atmosphere.) Even if the United States and other rich countries have in fact reduced their energy-related emissions to zero by that time, on Tierney’s account China, India, Indonesia and other huge industrializing or industrialized countries will be belching out vast quantities of the stuff, far more than is being emitted today, and with disastrous consequences if mainstream climate models are correct.

Related Posts (on one page):

  1. Is Richer Greener?
  2. Is Richer Greener? A Comment on Posner on Tierney:
  3. Tierney on Using Energy, Getting Rich, and Saving the Planet

Chrysler Bankruptcy and Threats to Lewis.

Today's two biggest financial stories are a probable Chrysler bankruptcy in the next week or two and revelations from Ken Lewis's testimony.

The Wall Street Journal is subscription only, but its Ken Lewis story has been spread widely. This is from a US News blog:

Lewis Silenced, Threatened Over Merrill By Bernanke And Paulson

Bank of America's Ken Lewis' testimony sheds some light on the gory details of last year's crisis management. From the WSJ (sub. req.):

Mr. Lewis, testifying under oath before New York's attorney general in February, told prosecutors that he believed Messrs. Paulson and Bernanke were instructing him to keep silent about deepening financial difficulties at Merrill, the struggling brokerage giant. As part of his testimony, a transcript of which was reviewed by The Wall Street Journal, Mr. Lewis said the government wanted him to keep quiet while the two sides negotiated government funding to help BofA absorb Merrill and its huge losses.

The cost of refusing to keep shareholders in the dark might have been his job:

The Wall Street Journal previously reported, in a page-one story on Feb. 5, that Mr. Lewis agreed to proceed with the Merrill merger only after Messrs. Paulson and Bernanke said that he and his board would lose their jobs if Bank of America backed out of the deal. Mr. Lewis's testimony with the New York attorney general's office corroborates that account.

Bernanke's denial that he threatened Lewis is not literally inconsistent with one version of the story discussed on CNBC: that Paulson made the threat at Bernanke's request.

If true, this story is a stark reminder that the heavy-handed government takeover of the financial industry started last fall, before the Obama Adminstration took charge.

Perhaps Professor Bainbridge would know whether, if Lewis's account is accurate, Lewis would be liable for failing to disclose material information and whether Bernanke or Paulson would be liable for inducing them to do so.

I confess that I find Mr. Lewis's testimony somewhat ambiguous (from the WSJ):

Mr. Lewis testifies about his discussions with Mr. Paulson about the possibility of Bank of America walking away from the Merrill deal, citing the "material adverse effect" clause, or MAC, in its merger agreement:

Mr. Lewis: I remember, for some reason, we wanted to follow up and see if any progress — as I recall, we actually, had not agreed to call a MAC after the conversation that we had, and so I tried to get in touch with Hank, . . . and he — this is vague; I won't get the words exactly right — and he said, "I'm going to be very blunt, we're very supportive of Bank of America and we want to be of help, but" — I recall him saying "the government," but that may or may not be the case — "does not feel it's in your best interest for you to call a MAC, and that we feel strongly," — I can't recall if he said "we would remove the board and management if you called it" or if he said "we would do it if you intended to." I don't remember which one it was, before or after, and I said, "Hank, let's deescalate this for a while. Let me talk to our board." And the board's reaction was one of "That threat, okay, do it. That would be systemic risk."

Is The GOP Becoming More Libertarian?

Public opinion analyst Nate Silver argues that the Republican Party is turning libertarian:

Are Republicans turning into libertarians?

Last week's Tea Party protests had their origins in the libertarian movement. Although many conservative groups were eager to co-opt their purpose, the core of the message — anti-tax, anti-big government — was about as libertarian as it gets . . .

We can argue about the significance of the tea paries and we can argue about whether they represent the way forward for Republicans. But they are just one manifesation of what seems like an increasing drift toward libertariansim within the party. Consider also:

-- A new Gallup survey suggests that 80 percent of Republicans think that big government is a bigger threat to the government than big business, versus just 10 percent who think the opposite. This represents an enormous partisan split from Democrats, among whom a majority think that big business is the greater threat. Moreover, the partisan split has grown significantly since 2006; it has now become almost a definitional issue for Republicans.

-- The Republican alternative budget could be considered a somewhat radical experiment in libertarianism, dramatically slashing taxes while promising to balance budgets — an achievement that would only be possible if the size of the government were cut enormously. . .

-- Republican insiders are increasingly uncertain about whether gay marriage, which was such an important issue for the party over 2000-2004, is any longer a winning issue at all for them. Reaction to the Iowa Supreme Court decision was surprisingly muted in conservative circles. . .

-- If gay bashing is becoming less in vogue among Republicans, it's unclear which other cultural issues — areas where Republicans sometimes favor bigger, more statist government — might take its place. Yes, there's always abortion. But I'm surprised there hasn't been more anti-immigrant sentiment, as often happens when jobs are scarce; perhaps the Republicans' poor performance among Latino voters on November 4th might have scared them away from that issue. Marijuana legalization seems to be gaining some traction (although more among pundits than policymakers), but about half the conservative commentariat (see Glenn Beck, for instance, who calls himself a libertarian) seems to embrace it.

I welcome all of the above developments. But I'm less convinced than Silver that they signal a major move towards libertarianism by the GOP. Much of the GOP's current support for free markets is a function of the federal government's having come under the control of the Democrats. Both parties are far less enamored of big government if it's under the thumb of their opponents. When the Republicans themselves controlled the White House and Congress just a few years ago, they pushed through a massive expansion of federal spending and regulation. President George W. Bush presided over a highly statist administration, by almost any measure. It's possible that the GOP has definitively rejected the Bush-era model of big government conservatism. But it's too early to tell. The real test will be how the Republicans act when and if they regain a share of power at the federal level (e.g. - by controlling at least one house of Congress, or at least having a large enough minority to significantly influence the content of major legislation).

Silver's points on social issues are well taken, but I have a few caveats here. Many conservative pundits and intellectuals have long supported drug legalization, including such luminaries as the late William F. Buckley. But that hasn't had much effect on the GOP's actual policies. I am happy, as Silver seems to be, that many Republican insiders want the party to deemphasize its opposition to gay marriage. But this stance may be due to the fact that the issue has been overshadowed by more important concerns, such as the financial crisis. Whether the Party changes its long term orientation away from social conservatism remains to be seen. I suspect there will be strict limits to any such movement, because the GOP cannot afford to completely alienate its social conservative base.

In the meantime, however, there is certainly room for cooperation between GOP conservatives and libertarians, to the extent that both oppose the Democrats' massive expansion of government. Whether the two groups can agree on a positive program as well as a negative one remains to be seen.


GMU/Microsoft Conference on the Law & Economics of Innovation:

On May 7 here at GMU Law School will be a conference on "“Online Markets vs. Traditional Markets,” co-sponsored by Microsoft and GMU Law School. Details are here and further background is here. Registration is free.

The lineup of speakers is impressive:

Bill Kovacic, FTC Commissioner (keynote) Susan Athey, Harvard Economics (keynote) Peter Klein, Missouri Economics Tom Hazlett, GMU Law Eric Goldman, Santa Clara Law Peter Swire, OSU Law Howard Beales, GWU Business Florenica Marotta-Wurgler, NYU Law Phil Weiser, DOJ/Colorado Law Randy Picker, Chicago Law Scott Kieff, GWU Law Susan DeSanti, FTC Director of Policy Planning Christopher Wolfe, Hogan & Hartson

Randy Barnett's "Federalism Amendment":

Co-blogger Randy Barnett has an important Wall Street journal op ed arguing for the enactment of a "federalism amendment" limiting the powers of the federal government. In an interesting parallel with constitutional reformers on the left such as Sanford Levinson, he suggests that the amendment be enacted through a convention of the states, as allowed under Article V of the Constitution. Randy recognizes that a constitutional amendment severely limiting Congress' own powers is highly unlikely to get two-thirds support in the House and Senate:

In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds.

Randy urges the states to enact the following amendment:

Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.

Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.

I generally favor the substantive provisions of Randy's amendment; I too have argued for stronger limitations on federal power than those imposed by today's Supreme Court, which is generally content to let Congress regulate and control virtually any activity, no matter how remote from interstate commerce. However, I would not support Section 4, because on the whole I would rather that the federal government be funded through income taxes than through sales taxes or tariffs. Tariffs damage our economy for well-known Econ 11 reasons, while sales taxes are less transparent than income taxes, and tend to hide the true cost of government from voters. My other reservation is about Section 2, which takes away from Congress the power to "regulate or prohibit any activity that takes place wholly within a single state." The key words here are "wholly within a single state." If interpreted very literally, the scope of Congressional authority might not be diminished at all. Almost any activity involves moving at least one molecule of matter across state lines. Hardly anything is wholly within one state. If, on the other hand, "wholly" is interpreted in a way less favorable to federal power, it might not be possible for Congress to regulate transboundary pollution generated by industrial activity. Presumably, Randy doesn't intend such an outcome, since he himself wrote about the need for congressional intervention in that area in his excellent book Restoring the Lost Constitution. But it is a plausible interpretation of his proposed text.

My biggest disagreement with Randy, however, is that I am far less optimistic than he is about the likelihood that state governments will support such a massive reduction in federal power. Randy writes that "States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people." In reality, however, many state governments have a great deal to lose because they receive massive amounts of federal money(equivalent to some 20-30% of their total budgets; see Table B-86 here) that would mostly be cut off by Section 3 of Randy's proposed amendment. The states got some $450 billion in federal funding in 2008, and are likely to get even more this year. Right now, most states are very happy to take federal stimulus money, and many would like to get even more. State governments also often support federal regulation of private activity. John McGinnis and I discuss the reasons why state governments often favor broad federal authority in greater detail in this article. If the states really did have "nothing to lose" from imposing tight constraints on federal power, they probably would not have allowed the latter to grow to its current bloated size in the first place.

As Randy points out, any constitutional amendment adopted by his proposed convention of states would still have to be ratified by three-fourths of state legislatures. Given how much many state governments benefit from feeding at the federal trough, I doubt that such broad support can be obtained.

On the other hand, Randy may be right to suggest that the amendment be taken up by the "Tea Party" activists as a rallying cry. Even if it never comes close to being enacted, it could help with political mobilization. In much the same way, the Equal Rights Amendment movement once helped galvanize feminists and the abortive movement to pass an anti-gay marriage amendment helped mobilize social conservatives.


Does Arizona v. Gant Extend Beyond Passenger Compartments?: In Tuesday's decision in Arizona v. Gant, the Supreme Court limited the search incident to arrest power as follows:
[W]e hold that [New York v.] Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U. S. 615 (2004) , and following the suggestion in Justice Scalia’s opinion concurring in the judgment in that case, id., at 632, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.
  I wonder, do the "circumstances unique to the automobile context" justify a search of a car's trunk, not just the passenger compartment?

  The question is interesting and potentially important because the scope of search incident to arrest under New York v. Belton is limited to a search of the passenger compartment of a car. Belton stated its holding as follows: "we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." In plain english, Belton allows a search of the interior but not the trunk.

  Gant plainly limits the reachable area aspect of Belton, briging it closer to Chimel, such that the passenger compartment can be searched only when he can actually access the passenger compartment. But does the new exception allowing searches "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle" apply beyond the passenger compartment of the car?

  Here's an example of facts that will raise the question. The police pull over a driver and arrest him. They develop a reasonable belief that there is evidence of the crime in the trunk of the car (perhaps the driver keeps looking nervously at the trunk area). However, the police do not quite have probable cause that there is evidence in the car. The police search the trunk and find the evidence. When charges are brought, the defendant moves to suppress the evidence seized from the trunk. Should a court suppress that evidence or not?

  Before Gant, this would have been easy: The evidence should be suppressed. After Gant, however, I think the better answer is that the court should not suppress the evidence, and that this particular aspect of Gant actually expands police power. Nothing in the reasoning of Justice Scalia's concurrence in Thornton (adopted in Gant) seems to be limited to the passenger compartment of the vehicle. Instead, it seems to talk about vehicles generally, and the general interest in collecting evidence there. The formulation of the proposed test adopted in Gant then speaks only of cause to believe the evidence is in the vehicle, and he unique circumstances of cars, not anything specifically about passenger compartments.

  A contrary reading could lead to some strange results. It would be pretty odd if the test were focused on cause to believe the evidence is in the car somewhere, but then allowed only a search of the passenger compartment. If the police had cause to believe the evidence was in the trunk, but they knew there was no relevant evidence in the passenger compartment, the contrary reading would allow them to search only where they knew the evidence wasn't actually located. That would be quite odd. I suppose one way out of this would be to read the new exception as implicitly limited to cause to believe evidence is in the passenger compartment, but that seems hard to square with the actual language used in the opinions. So I think Gant probably does extent beyond passenger compartments.

Symbolic Expression and the Original Meaning of the First Amendment:

I'm pleased to say that this article of mine is now officially out, in 97 Georgetown Law Journal 1057 (2009). I blogged about it last year, so I won't say much about it here, but I just thought I'd post the Conclusion:

I hope I’ve shown that the original meaning of the First Amendment protects symbolic expression to the same extent that it protects spoken, written, and printed verbal expression.

I doubt the Framers of the First Amendment focused much on this issue: then as now, symbolic expression was much less important than verbal expression. But if you asked lawyers of the era whether symbolic expression was covered by the new provision, they would likely have answered “yes,” as the sources I cite above suggest.

This doesn’t tell us whether the Framers would have understood any particular form of symbolic expression, whether flag burning, liberty pole raising, armband wearing, or dancing, as constitutionally protected. Perhaps they would have recognized a special exception for flag desecration, though I doubt it. Perhaps they would have concluded that some forms of expression, whether symbolic, printed, or verbal, were so likely to lead to breaches of the peace that they merited restriction; it’s hard to tell. Perhaps some would have concluded that any subsequent punishments were permissible, so long as they were imposed by juries.

Perhaps they would also have concluded that symbolic expression is protected only against laws that target it precisely because of what it expresses, and not against generally applicable laws (such as public nudity laws) that incidentally cover expressive conduct. The original meaning of the First Amendment is in many ways hard to determine.

But most critics of the Court’s symbolic expression cases don’t seem to seek a wholesale rejection of eighty years of broadly libertarian Supreme Court precedent on the freedom of speech. Rather, they criticize only the symbolic expression doctrine, which to them seems the most clearly inconsistent with text and original meaning, and which can be reversed without vast shifts in the law.

And on this narrow question -- was symbolic expression understood as legally tantamount to verbal expression, and thus protectable by “the freedom of speech, or of the press” even when the expression wasn’t communicated through spoken words or through printing? -- the original meaning is comparatively clear. Seventy-five-year-old Supreme Court precedent and original meaning point in the same direction: symbolic expression and verbal expression ought to be equally covered by the First Amendment.


"Religious conscience" protections in Connecticut:

The Connecticut same-sex marriage bill passed overwhelmingly by the state legislature last night includes several provisions addressing concerns of religious-liberty advocates. Among them are these:

Sec. 501. (NEW) (Effective from passage) Notwithstanding any other provision of law, a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage or celebration of a marriage and such solemnization or celebration is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action, or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.

Sec. 502. (NEW) (Effective from passage) The marriage laws of this state shall not be construed to affect the ability of a fraternal benefit society to determine the admission of members as provided in section 38a-598 of the general statutes or to determine the scope of beneficiaries in accordance with section 38a-636 of the general statutes, and shall not require a fraternal benefit society that has been established and is operating for charitable and educational purposes and which is operated, supervised or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society's free exercise of religion as guaranteed by the first amendment to the Constitution of the United States and section 3 of article first of the Constitution of the state.

Sec. 503. (NEW) (Effective from passage) Nothing in this act shall be deemed or construed to affect the manner in which a religious organization may provide adoption, foster care or social services if such religious organization does not receive state or federal funds for that specific program or purpose.

(HT: Robin Wilson.)

It looks like the bill will also reaffirm the principle, which has never been contested, that no religious official will be required to officiate at or solemnize a same-sex marriage. And, as in similar laws around the country, it looks like the bill will allow parents to opt out of any marriage instruction for their children in the public schools.

The bill obviously draws on the proposal made by the five academics whose ideas I discussed earlier today. It does omit some of the more problematic aspects of the proposal, such as providing an exemption to "any individual" and its specific reference to the "sincerity" of religious belief.

Lots of practical questions remain about proposals like this, but if enacting a same-sex marriage law comes down to a negotiation over how broadly to draft a religious-liberty exemption then the problem becomes soluble — not much different from any legislative matter. Over the past decade, the political fulcrum has shifted from no recognition (pre-2000) to civil unions (2000-09) to same-sex marriage with protection for religious dissenters (2009- ). That's a healthy shift, and should help address the kinds of concerns that sank gay marriage in California.


Professor Laycock responds

to my questions about the meaning and potential applications of the proposal that he and four other academics have advanced for reconciling religious-liberty concerns and same-sex marriage. Here is his response:

I wrote one of the two letters that Dale Carpenter references in his post on the same-sex marriage legislation in Connecticut. Let me say a few things by way of background, and then respond to his four specific questions.

I wrote separately from the others, and I speak only for myself here. I wrote separately because I support gay rights and same-sex marriage and I also support religious exemptions; in my view, these are parallel protections for quite similar claims to individual liberty in matters essential to personal identity.

We may also have a different sense of the magnitude of the problem. Compelling a person or religious organization to do things in violation of conscience can be devastating to the individuals affected. There are several high profile cases around the country, but the total number of such cases that have come to public attention is not large, and the lack of a marriage case per se in five years in Massachusetts is encouraging. Of course, Massachusetts is also notorious for forcing Catholic Charities to entirely withdraw from adoption services because of its conscientious objection to placing children with same-sex couples..

The number of people who think same-sex marriage is morally or religiously wrong is large. But the percentage of those people who feel sufficient personal responsibility to assert a conscientious objection claim rather than facilitate what they perceive to be the immoral acts of others is considerably smaller. The percentage of those who are in an occupation where the issue arises for them is much smaller still. The percentage of those who will turn away business in the name of conscience is somewhat smaller still. And as same-sex marriages becomes more familiar and accepted, each of these percentages should fall. On the other side, that portion of the gay and lesbian community that is more interested in making examples or provoking legal confrontations than in living their own lives may also be rather small. For all these reasons, I don’t find it surprising that there are a relatively small number of cases in which conscientious objection to facilitating same-sex marriage is actually asserted. Of course that means that the cost of granting exemptions is also small, while the benefit to the individuals who need the exemption remains great.

I have addressed the implementation of exemptions as some length in the Afterword to Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony M. Picarello, and Robin Fretwell Wilson, eds.) (Rowman & Littlefield 2008). As that publication makes clear, I think that any right to exemption cannot be absolute. An individual who occupies a blocking position – who is the only person reasonably available to provide a needed service – is not in my view entitled to an exemption. Similar issues might arise in a community in which many service providers are conscientious objectors, or a needed service is in shortage. In my view, this proposed exception to the exemption language is a specific application of the compelling interest test.

The statutory language that the other letter proposed and that I endorsed did not include this exception to the exemptions. That is because we were contacted very late in the legislative process; the letters and the proposed amendment were drafted in hurry, and may well need some tweaking. I endorsed the proposed language because in a legislative debate, it is essential to rally around a single proposal; negotiation and amendments could come later if we got anyone’s attention. And I think the exception to the exemptions are unlikely to arise very often in a state like Connecticut, which is compact, urbanized, and politically liberal.

With that background, let me turn to Dale’s specific questions:

1. The state’s interest in insisting on equal service for all is at its maximum in state offices, and the individual’s claim to private conscience is considerably weakened when he is acting in an official capacity. And the state is a monopolist for things like licenses. So state officials will often be in a blocking position, and in the context of governmental services, even a minimal blockage is a serious problem. So I think a clerk who does not want to issue a marriage license must have a co-worker immediately available to issue that license at the same window at the same time, without requiring the couple to stand in a new line.

On the other hand, a judge who performs an occasional wedding, usually for a friend or acquaintance, is acting much more personally. She is empowered by her office to perform weddings, but she is not obligated by her office to perform weddings; she is not remotely in position to block anyone from getting married, or even to cause inconvenience, because the request to perform the wedding typically comes well in advance of the date. The reality is that a judge has broad discretion to perform a marriage or not, and I would not allow a claim of discrimination against same-sex marriages to interfere with that discretion.

2. It was certainly not my intention to protect harassment. What counts as harassment must be defined in light of free speech and free exercise; not every expression of disapproval can be defined as harassment. But the targets of such disapproval have the right to stop the conversation and insist that it not be renewed. The purpose of exemptions is to protect people who conscientiously object to personally facilitating a same-sex marriage; these people just need to be left alone. Those who want to affirmatively interfere or harass present a very different and less defensible claim.

3. In my view, the right to exemption for conscience should be quite general, subject to the compelling interest test as developed and applied in particular factual contexts. So there should not be much difference between the right to exemption from same-sex marriage laws and the right to exemption from gay rights laws more generally, and issues of coordinating the two exemptions should rarely arise. In the real world, I would interpret each set of exemptions to protect as broad a set of conscience claims as the statutory text permits, subject to the constraint that the conscientious objector cannot inflict significant harms on others.

4. Again, I think the right to conscientious objection should be general, and so of course it should include similar objections to other controversial marriages, although these claims are likely to be even scarcer than claims of conscientious objection to facilitating same-sex marriages.

I am committed to a book project this summer and may not reply to all follow up questions. But as I mentioned, my answers to implementation questions are largely set out in the book.

I'm grateful for this characteristically reasonable and thoughtful response. It leaves some issues of interpretation and application on the table, but helps clarify what many of those issues might be. We disagree in particular on the significance of the Massachusetts Catholic Charities case, which I believe is not attributable to SSM, but to a 1989 antidiscrimination law that does not turn on the existence of a marriage. We appear to disagree on whether a state employee, in her capacity as an employee, should ever be able to get a religious-liberty exemption from performing what are otherwise her duties to the public.

But we agree on the general principal, I think, that for private parties (including individuals, like wedding photographers, and groups, like the Knights of Columbus) fairly broad exemptions should be available to protect religious scruples when the exemptions won't impose any substantive (as opposed to symbolic) hardship on married gay couples and families. How you draft an exemption to implement that general principle -- no more, no less -- is the hard part.


Banning 9-1-1 Call Broadcasts:

An Ohio state senator wants to ban broadcasting the tapes of 911 calls on TV, radio, and the internet. He argues that some people may be reluctant to call 911 to report crimes for fear that the tape will be broadcast and their identity will be revealed. In some states 911 call tapes and transcripts are not public records. In such states, broadcasting the tape is not an issue because the tape is not released. The question here, however, would be whether the state can bar the broadcast of the tape after permitting its release.

I am skeptical of this legislation on both constitutional and policy grounds. It seems to me that there are many less-restrictive means of addressing the alleged problem (if it is a problem in the first place). Among other things, broadcasters could be required to use voice-distorting technology on broadcasts (or the state could use such technology before the tape is publicly released). A more focused rule, perhaps targeted to calls informing the police of violent crimes, would also be less restrictive. One of my colleagues, interviewed for this story, also points out that informants might, in some instances, also be identifiable from the transcript.

I am also skeptical that there is any real problem here to solve. Is there any evidence that people are refusing to call 911 because they are afraid the call will be aired on TV? More likely, this legislation is a response to some of the uses to which 911 calls have been put. For example, when an Ohio middle school teacher committed suicide after being accused of showing pornographic material, the 911 call he placed before killing himself was featured in several tribute (or, in some cases, "anti-tribute") videos on YouTube. Yet this sort of thing would hardly justify a ban on broadcasting a public record.


Abolish the White House Counsel's Office?

The White House Counsel's office has grown ever larger since its creation sixty-some years ago. While the office has often staffed-up late term, particularly when a President is (as seems inevitable) subject to investigation or extensive oversight, the Obama Administration has already fully staffed the office with more than double the number of attorneys it had just fifteen years ago. Is this a positive trend?

Yale law professor Bruce Ackerman thinks the White House Counsel's office should be abolished, and the President should rely upon the Justice Department for legal advice. While I don't know if I would go as far as Ackerman, I certainly agree that it the growth of the office is a negative trend. Indeed, I have heard as much from several former Justice Department officials (of both parties) and a former White House Counsel, each of whom believes that the migration of legal policy questions to the White House increases the politicization of how such questions are handled.

Ackerman would go even further, however, and also abolish -- or completely reconfigure -- the Office of Legal Counsel. Ackerman believes that OLC analyses are too one-sided and advocacy oriented, and would better serve the nation if it had to render legal opinions after an adjudicative process. I think Ackerman is wrong on this point. Contrary to his suggestion, OLC has not traditionally operated as an advocacy shop. That is not the office's institutional culture, and OLC has traditionally (if not always) resisted tailoring its legal opinions to the political preferences of the administration in office. (See, e.g., the Obama OLC's conclusion that a D.C. representation bill would be unconstitutional.) This is one reason why the political views of a potential OLC nominee are less important than the nominee's understanding of OLC's function within the government.

Insofar as some of the Bush Administration national security memoranda were faulty or one-sided, I believe this was due to departures from traditional OLC norms and procedures, including the walling-off of those who drafted such memoranda from the rest of OLC (as well as from legal offices in other parts of the government that may have reached contrary conclusions). These departures may have been understandable (even if regrettable), due to the sensitive nature of the issues involved or the sense of urgency engendered by the 9/11 attacks, but they were departures from business-as-usual at OLC, and should not be used as a basis for eliminating the office. If anything, it makes the case for reinforcing OLC's traditional norms.

A well-functioning OLC is not an advocacy shop -- as opposed to, say, the Solicitor General's office or the Office of Legal Policy. Rather, it plays the role of counselor, seeking to provide the executive branch with the best, objective legal advice. This is an important role -- even more so if the White House Counsel's office were to be reduced or eliminated. So while there may be a good argument for revisiting size and scope of the White House Counsel's Office, eliminating or restructuring OLC would throw the baby out with the bathwater.


Treasury says it may break its promise to businesses.

I watched Tim Geithner in his Congressional testimony assure businesses that they would NOT be subject to the compensation restrictions if they participated in the asset-buying program.

Yesterday Charlie Gasparino reported that big investors were reluctant to participate in the public-private partnership because they were afraid of having their compensation restricted or being called before Congress to justify why they made money. I thought the investors' caution understandable, but given Geithner's explicit promise, it seemed perhaps a tad excessive. Surely Geithner's word must be worth something.

It turns out I was wrong.

Jennifer Rubin nails this one (tip to Instapundit):

The rules according to Tim Geithner: Rule #1 is there are no rules. Last month when the AIG bonus feeding frenzy was boiling over he assured the firms he was trying to lure into the toxic asset-buying program, “The comp conditions will not apply to the asset managers and investors in the program.” Today the Washington Post reports:

Treasury Department lawyers have determined that firms participating in a $1 trillion program to relieve banks of toxic assets could be subject to limits on executive compensation, contradicting the Obama administration’s previous public position, according to a report to be released today by a federal watchdog agency.

Really, at this point any CEO who agrees to do business with the government should be fired. If he signs up with the government, he in essence is turning over control of his company to political operatives who bounce from position to position like ping pong balls. Public opinion squawks, they jump and the rules are different. This is the worst form of statist intervention — lawless and unpredictable. It operates outside any published regulatory regime or statute and without regard even for a gentleman’s promise. No business can operate successfully this way; the entire financial sector of our economy certainly cannot.

Rubin refers to a "gentleman's promise." Yet this assumes that Tim Geithner is a gentleman; every day he is becoming more and more like a character from an Ayn Rand novel.

Freeing Data for the Birds:

Transportation Secretary Ray LaHood will not allow the Federal Aviation Administration to keep data on airplane bird strikes secret. From the Washington Post:

"I think all of this information ought to be made public. . . . We're going to, you know, make this information as public as anybody wants it," LaHood said in an interview for The Washington Post's "New Voices of Power" video series. "The people should have access to this kind of information," he said.

LaHood said that FAA efforts to keep information about bird strikes secret "doesn't really comport with the president's idea of transparency."

"I mean, here they just released all of these CIA files regarding interrogation, and . . . the optic of us trying to tell people they can't have information about birds flying around airports, I don't think that really quite comports with the policies of the administration," he said. "It's something that somebody wanted to put out there to get a reaction. We got the reaction, and now we're going to bring it to conclusion."

I am sure there's a really awful (bird-brained?) pun I could make at this point, but I'll leave that to the commenters.


Religious Objections to Laws That Ban Nonlethal Weapons But Allow Lethal Ones:

As usual, for more details and footnotes, please read the whole draft.

I now turn to the last part of my analysis, focusing for this argument (as opposed to the right to bear arms and right to defend life arguments) only on those many contexts — discussed in the opening post of this thread — where stun guns, irritant sprays, or both are banned but firearms are allowed.

Some of the people who want to use nonlethal weapons rather than firearms may take that view for religious reasons. They might, for instance, follow the Mennonite theologian John Howard Yoder and the Pentecostalist theologian David K. Bernard, who reasoned that nonlethal defensive force is permitted though deadly force never is. Or they might follow the view of the Presbyterian Church (U.S.A.) that “deplore[s] the killing of anyone, anywhere, for any reason,” but might themselves conclude that self-defense using force short of killing is permissible. Or they can independently read the Bible or other holy books as forbidding deadly force but not nondeadly force. The view that “thou shalt not kill” prohibits all killing — but doesn’t prohibit nonlethal defensive force — is certainly a plausible view for a religious person to take, though it’s obviously not the only plausible view.

Alternatively, the objectors might read the Catholic catechism and the work of St. Thomas Aquinas as mandating the least amount of violence necessary. The Talmud also reflects this view. Other religious traditions that call for avoiding harm to others (even to wrongdoers) could lead one to the same view. And people who take this view might conclude that, because a stun gun (for example) would usually be adequate, they should have a stun gun rather than a lethal weapon available. (In principle, they might conclude that they should have both available, as many police officers do; but in practice they might find it too expensive to buy both a firearm and a stun gun, or too difficult to pick up both when faced with the need for self-defense.) That way they can still protect themselves and their families without risking what would likely be an unnecessary killing of a wrongdoer.

Regimes that ban stun guns — and especially that ban both stun guns and irritant sprays — but allow firearms put these religious objectors in a difficult position. State law lets people have effective defensive weapons. (I assume here that the arguments I mentioned in the last few posts are not accepted — perhaps because there’s no right to bear arms or right to defend life recognized in the jurisdiction — so the matter would indeed be a privilege and not a constitutional right.) But state law in effect attaches a condition to this privilege: If you want to use such a defensive weapon, you have to use a deadly one (a gun). And that is a condition that the religious people I describe above can’t comply with without violating their felt religious obligations.

What is the legal significance of such religious sentiments? From 1963 to 1990, the Supreme Court took the view that the Free Exercise Clause presumptively required religious exemptions from generally applicable laws. In 1990, the Court reversed course, but since then about half the states — plus the federal government as to federal law — have adopted similar exemption regimes. This includes most of the no-stun-gun jurisdictions, and most of the irritant-spray-limiting jurisdictions. In some states, the state constitution’s religious freedom clause has been interpreted as mandating religious exemptions. In other states, religious exemptions are presumptively required under a state Religious Freedom Restoration Act. And in D.C. and the Virgin Islands, they are presumptively required under the federal Religious Freedom Restoration Act.

The most familiar application of these religious exemption statutes is when the law directly bans an activity that some people see as religiously obligatory, for instance consuming the hallucinogen hoasca. Another familiar application is when the law mandates an activity that some people see as religiously forbidden, for instance sending one’s teenagers to school (something the Amish oppose). These scenarios are not present with stun gun bans, since the law doesn’t obligate people to use firearms, and since the activity the law bans isn’t itself seen as a religious obligation.

But the religious exemption statutes also apply when the law offers people some privilege, but conditions this privilege on the person’s doing something that his religion happens to forbid. Such a condition is seen as a “substantial[] burden” on “exercise of religion,” and is impermissible unless the government shows that the condition is “the least restrictive means of furthering [a] compelling governmental interest.” We see this in the Supreme Court’s very first case recognizing a mandated religious exemption, Sherbert v. Verner, a case that is routinely mentioned in Religious Freedom Restoration Acts as a model of the approach that the Acts are trying to restore.


In Today's WSJ: The Case for a Federalism Amendment Last week I was on the Glenn Beck Show urging that state legislatures petition for a convention to amend the Constitution rather than passing purely symbolic "sovereignty amendments." You can watch the 2 minute segment here. Although typically called a "constitutional convention," this term does not appear in Article V, which states “on the application of the legislatures of two thirds of the several states,” Congress “shall call a convention for proposing amendments.” I think "amendments convention" is a more accurate term that distinguishes it from "constitutional conventions"--such as are convened in states specifically to rewrite state constitutions in their entirety. Of course, before becoming part of the Constitution, any amendment proposed by an amendments convention would still need to be ratified by three-quarters of the states.

In The Case for a Federalism Amendment, in today's Wall Street Journal, I suggest that that states petition for a convention to propose an amendment repealing the 16th Amendment authorizing an income tax. Such a repeal would result in the Congress imposing a national uniform "excise" or sales tax as authorized by Article I, Sec. 8.

Alternatively, states could include the repeal of the 16th Amendment in a more comprehensive "Federalism Amendment" such as this:
Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.

Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.

Except for its expansion of Congressional power in Section 1, this proposed amendment is entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers and reaffirms the power of courts to police this boundary and protect individual liberty.

Section 1 of the Federalism Amendment expands the power of Congress to include any interstate activity not contained in the original meaning of the Commerce Clause. Interstate pollution, for example, is not “commerce . . . among the several states,” but is exactly the type of interstate problem that the Framers sought to specify in their list of delegated powers. This section also makes explicit that any restriction of an enumerated or unenumerated liberty of the people must be justified.

Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment. And a state is free to enter into compacts with other states to coordinate regulation and enforcement, subject to approval by Congress as required by Article I.

Section 3 adopts James Madison’s reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments. Section 4 eliminates the federal income tax, after five years, in favor of a national sales or excise tax.

Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress’s enumerated powers.
By coincidence (or is it?), in yesterday AEI's journal, The American, there appeared The Coming of the Fourth American Republic by James V. DeLong. In a very lengthy and interesting essay, DeLong identifies what he calls the "Special Interest State" as the Third American Republic. Near the conclusion, he discusses how the Special Interest State might be ended, including the following:
The Constitution has a residue of the original alliance-of-states polity that has never been used. Two-thirds of the state legislatures can force Congress to call a constitutional convention, and the results of that enterprise can then be ratified by three-quarters of the states. So reform efforts could start at the grassroots and coalesce around states until two-thirds of them decide to march on the Capitol. There is already a lively movement along these lines. On the other hand, the states are no paragons, in that the model of the Special Interest State reigns triumphantly there as well, so a few comments about pots and kettles could be made. Realistically, though, organization from the bottom up is a real possibility.
Read the whole thing.

"Morning-after pill" will be available to some teens without a prescription.

As a matter of government policy (not necessarily law), I was happy to see that 17-year-olds will probably be able to get the "morning-after pill" without a prescription:

The Food and Drug Administration said Wednesday it would accept, not appeal, a federal judge's order that lifts Bush administration restrictions limiting over-the-counter sales of "Plan B" to women 18 and older. U.S. District Judge Edward Korman ruled last month in a lawsuit filed in New York that President George W. Bush's appointees let politics, not science, drive their decision to restrict over-the-counter access. . . .

[Judge] Korman ordered the FDA to let 17-year-olds get the birth control pills. He also directed the agency to evaluate clinical data to determine whether all age restrictions should be lifted. . . .

In 2003, a panel of outside advisers voted 23-4 to recommend over-the-counter sales without age restrictions. But top FDA officials told their subordinates that no approval could be issued at the time, and the decision would be made at a higher level. That's considered highly unusual, since the FDA usually has the last word on drug decisions.

In his ruling, Korman said that FDA staffers were told the White House had been involved in the decision on Plan B.

Protecting religious liberty from gay marriage and protecting gay marriage from religious liberty:

In debates over same-sex marriage, much attention has recently been given to religious-liberty concerns. For example, the award-winning ad campaign to pass Prop 8 in California focused heavily on how SSM might erode the liberty of religious objectors.

For reasons I gave here almost a year ago, I'm not convinced that gay marriage adds much to the pre-existing confrontation between religious traditionalists and antidiscrimination laws protecting gays. That's not to say that there aren't legitimate religious-freedom concerns with antidiscrimination law. There are some egregious cases, especially in the context of providing personal and non-essential services (see, e.g., the already infamous New Mexico proceeding against a photograhper who refused to shoot a same-sex "commitment" ceremony). It's only to say those concerns don't arise from SSM. After five years in Massachusetts, a state with broad antidiscrimination laws, the evidence for religious repression attributable to SSM is scant.

The most that can be said uncontroversially is that formal state recognition of gay relationships will help increase acceptance of gays over time, which might indirectly influence the content and application of antidiscrimination law (more expansive laws, less generous exemptions).

On the other hand, the debate over same-sex marriage itself might help sensitize us to possible conflicts. When gay marriage is accomplished legislatively, at least, it's more likely that the core interests of gay families and religious traditionalists will be represented and some accommodation can be found. There is evidence of that in the recent gay-marriage bill from Vermont, which included what even prominent opponents of gay marriage called substantive (but to them, insufficient) religious-liberty protection.

Likewise, the Connecticut legislature is considering a bill to bring the state's marriage statute in line with the state supreme court's decision last year in Kerrigan v. Comm'r of Pub. Health, which mandated that the state allow same-sex couples to marry. Five respected academics, in two separate letters (here and here), are urging the legislature to include a provision broadly protecting religious traditionalists against potential discrimination claims by married gay couples and possible denial of various benefits by the state. (HT: Mirror of Justice, a Catholic legal blog.) Here is the text of their proposed "marriage conscience protection":

No individual and no religious corporation, entity, association, educational institution, or society shall be penalized or denied benefits under the laws of this state or any subdivision of this state, including but not limited to laws regarding employment discrimination, housing, public accommodations, licensing, government grants or contracts, or tax-exempt status, for refusing to provide services, accommodations, advantages, facilities, goods, or privileges related to the solemnization of any marriage, for refusing to solemnize any marriage, or for refusing to treat as valid any marriage, where such providing, solemnizing, or treating as valid would cause that individual or religious corporation, entity association, educational institution, or society to violate their sincerely held religious beliefs.

This is a sentence only a lawyer could love.

The proposal is important, both because it comes from acknowledged experts in the field of religious liberty and because it is likely to be endorsed in some version by even more academics and other advocates. My guess is that something like it will be introduced every time a same-sex marriage bill is considered. And even though I don't agree with the authors on the extent or seriousness of the underlying problem ("widespread and devastating effects" on religious liberty), or their proposal in all its applications, it stimulates exactly the kind of concrete discussion we should be having.

If addressing religious-liberty concerns facilitates and hastens the passage of SSM laws without sacrificing any substantial rights of gay families, that's a plus for SSM advocates. But first I'd want to hear from experts in antidiscrimination law about the possible effects. I'd also have lots of questions about the proposal. The four that occur to me right away are these:

(1) Would its application to "any individual" include government employees acting in their capacity as government employees and providing benefits and services to married same-sex couples? If so, I assume this would mean that a state employee could refuse to issue a marriage license to a same-sex couple, refuse to participate in any way in giving benefits under state law available to married same-sex couples, refuse to serve as a judge in a divorce, tort, or any other proceeding implicating their marital status, and so on. Is that right?

(2) Could "an individual" who continually harrasses or discriminates against a co-worker or subordinate on religious grounds be disciplined (reassigned, fired, demoted) by his employer attempting to comply with the state's employment antidiscrimination law? Or would that be a "penalty" imposed "under the laws" of the state?

(3) Would the exemption affect any claim of sexual-orientation discrimination under state law that a person would have had independent of the recognition of the person's same-sex marriage? For example, would it allow a religious employer or landlord otherwise covered by a law forbidding sexual orientation discrimination to discriminate against a gay person (by excluding the person from a job or an apartment) once that person marries a same-sex partner? I assume the intent is to allow religious objectors to discriminate solely on the grounds of the marital status of a person in a same-sex marriage but not on the grounds of the person's sexual orientation. Connecticut already has religious exemptions in its sexual-orientation non-discrimination laws, and the authors say this proposal is "modeled" on such exemptions. But as I think they'd acknowledge, it is broader than Connecticut's exemptions in several ways.

(4) Would the exemption protect those who objected on religious grounds to other marriages, e.g., interracial marriages, interreligious marriages, and second marriages following divorce? The text is broad enough to encompass any sincere religious objection to any marriage, but its adoption and placement in a bill meant to authorize same-sex marriages might lead to a narrower construction.

These questions are addressed initially to the authors, but not exclusively to them. Their understanding won't control the interpretation of the statute they draft.

One can imagine many more questions about the proposal. How do we know when a belief is "religious" rather than a deeply help moral or philosophical one? How do we know when a religious belief is "sincere" as a opposed to pretextual? (In this regard, it's easier to imagine an individual crafting his supposed religious beliefs to fit the exemption in response to a lawsuit than it would be to imagine a religious business or association credibly doing so.) Do we want courts deciding when a person's religious beliefs have been "violated" rather than been made less comfortable? But while these are good questions, for the most part they do not seem particular to this proposal. They're endemic in religious liberty law and protection.

Finally, I'd be interested in the reaction to this proposal from readers, both supporters and opponents of SSM.

If a you're a supporter of SSM, could you live with this proposal, especially if it made the passage of SSM bills more likely and more likely to be soon? Would you support any special religious-liberty protection in the context of an SSM bill?

If you're an opponent of SSM, and although you may continue to oppose SSM on other grounds, would it at least satisfy any religious-liberty concerns you might have? If not, would any proposal be sufficient to satisfy your religious-liberty concerns?

UPDATE: It appears the Connecticut legislature has passed its marriage bill, with significant protection for religious liberty included. An anti-SSM activist in Connecticut calls the provision "a significant improvement" of "a bad bill" because it lets groups like the Knights of Columbus refuse to rent halls for gay weddings. I'm waiting to get the exact text.

Related Posts (on one page):

  1. Religious liberty and SSM, continued:
  2. A response from four more law professors
  3. "Religious conscience" protections in Connecticut:
  4. Professor Laycock responds
  5. Protecting religious liberty from gay marriage and protecting gay marriage from religious liberty:

Wednesday, April 22, 2009

When Is It "Reasonable to Believe" That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?: Imagine the police arrest the driver of a car, and they handcuff and put him in the back of the squad car. The police want to search the car for evidence, but they don't have probable cause to believe there is evidence in the car. The police can't search the car based on officer safety concerns because the driver is now in the back seat of the squad car. However, yesterday's decision in Arizona v. Gant holds that there is another rationale the police may be able to rely on to search the passenger compartment of the car: the police can search if they have facts that make it "reasonable to believe the vehicle contains evidence of the offense of arrest." Here's my question: What level of certainty does the "reasonable to believe" standard require? Is that probable cause? Reasonable suspicion? Something else?

  At first blush, my thought was that "reasonable to believe" surely can't mean probable cause: Under the automobile exception, the police can search any part of a car that might store evidence if they have probable cause to believe that evidence is in the car. That's true without an arrest, and it's why the police almost never get a warrant to search a car. Notably, Justice Alito in his dissent assumes that "reason to believe" is different from probable cause. (Alito asks, "Why, for example, is the standard for this type of evidence-gathering search 'reason to believe' rather than probable cause?") But if it's not probable cause, what is it?

  Let's take a look. We start with the holding of Justice Stevens' majority opinion in Gant that adopted the "reasonable to believe" test:
[W]e hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U. S. 615 (2004) , and following the suggestion in Justice Scalia’s opinion concurring in the judgment in that case, id., at 632, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.
The analysis section of the opinion offers this explanation:
Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton,541 U. S., at 632 (Scalia, J., concurring in judgment). In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. See, e.g., Atwater v. Lago Vista, 532 U. S. 318, 324 (2001); Knowles v. Iowa, 525 U. S. 113, 118 (1998). But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein. . . .
  So the test is straight from Justice Scalia's concurrence in Thornton v. United States. Let's turn to that next.

  Unfortunately, Justice Scalia's opinion is not particularly clear on what the "reasonable to believe" standard means. As I read the opinion, there are two potentially relevant passages. First, Scalia quotes a source that used a "reason to believe" formulation, an 1872 edition of Bishop's Criminal Law treatise, 1 J. Bishop, Criminal Procedure §211, p. 127 (2d ed. 1872), which Scalia quotes as follows:
"The officer who arrests a man on a criminal charge should consider the nature of the charge; and, if he finds about the prisoner’s person, or otherwise in his possession, either goods or moneys which there is reason to believe are connected with the supposed crime as its fruits, or as the instruments with which it was committed, or as directly furnishing evidence relating to the transaction, he may take the same, and hold them to be disposed of as the court may direct." Bishop, supra, §211, at 127.
(emphasis added). Although this formulation uses the "reason to believe" language, it seems to be referring to the relevance point ex post after the evidence is found, not how much certainty must exist ex ante before the search can occur. So that doesn't seem very helpful.

  The second passage is more directly useful. Scalia's opinion in Thornton suggests that the "reasonable to believe" standard was applied in United States v. Rabinowitz, 339 U.S. 56 (1950), an early search-incident-to-arrest case involving a business. Scalia explains that in Rabinowitz,
we did not treat the fact of arrest alone as sufficient, but upheld the search only after noting that it was “not general or exploratory for whatever might be turned up” but reflected a reasonable belief that evidence would be found. 339 U.S., at 62—63;
  If you look up Rabinowitz, however, it does not actually use the "reasonble belief" formulation. Here's the relevant passage from Rabinowitz:
In the instant case, the search was not general or exploratory for whatever might be turned up. Specificity was the mark of the search and seizure here. There was probable cause to believe that respondent was conducting his business illegally. The search was for stamps overprinted illegally, which were thought upon the most reliable information to be in the possession of and concealed by respondent in the very room where he was arrested, over which room he had immediate control, and in which he had been selling such stamps unlawfully. Harris v. United States, 331 U. S. 145, which has not been overruled, is ample authority for the more limited search here considered.
  Hmm, not so helpful. Harris v. United States, cited in Rabinowitz, isn't helpful for our purposes, either. Indeed, Harris states at page 154 that no "mere evidence" can be searched for incident to arrest, which presumably went out the window with Warden v. Hayden in 1967 (if not before).

  So maybe Justice Scalia in Thornton had some more general sense of what "reasonable to believe" means in Fourth Amendment law? I'm not aware of the Supreme Court using "reasonable to believe" elsewhere in Fourth Amendment law, but I am aware of three different lines of cases that have used "reason to believe." Now, it's not obvious to me that a "reason to believe" standard is the same as a "reasonable to believe" standard. You could have a reason to believe X, and yet countervailing considerations could make it unreasonable to believe X. But it seems more likely that they are meant to be the same; note that Justice Alito's dissent in Gant repeatedly refers to the majority's standard as a "reason to believe" standard, not a "reasonable to believe" standard. See also United States v. Gorman, 314 F.3d 1105 n.4 (9th Cir. 2002) (noting that the terms are often used interchangeably, at least in the Ninth Circuit).

  So perhaps the Fourth Amendment lines of cases using a "reason to believe" standard can reveal the answer.

Related Posts (on one page):

  1. Does Arizona v. Gant Extend Beyond Passenger Compartments?:
  2. When Is It "Reasonable to Believe" That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?:
  3. One Lesson of Arizona v. Gant,
  4. The Holding of Gant, and Some Initial Questions as To Its Application::
  5. Supreme Court Limits Search-Incident-to-Arrest Exception:

The Marine's Hymn:

Researching the piracy issue led to finding out more about the First and Second Barbary Wars. And to learning that in 1805, President Jefferson and Congress authorized William Eaton to raise a force against Tripoli. In Alexandria, Egypt, Eason assembled several hundred Arab, Greek, and Berber mercenaries, plus United States Marines, under the command of 1st Lt. Presley O’Bannon. They marched west 500 miles, with offshore support from three American warships.

On the 27th of April, they reached the fortress port of Derne, capital of the province of Cyrenaica. After 75 minutes of fighting, they captured it, and for the first time raised an American flag of conquest in the Old World. Their actions are immortalized in the Marine’s Hymn, which begins, “From the Halls of Montezuma, to the shores of Tripoli.” An Arab ally, Prince Hamet, presented Lieutenant O'Bannon with the Mameluke Sword, which Marine officers wear to this very day.

So I looked for the best on-line version of the Marine's Hymn. My objective was that it had to have singing (not just instrumental), with good graphics, and with all three verses.

Here's the best that I've found so far. It has almost everything, including excellent footage of the USMC in action in Iraq. It does lack the second verse, but the reprise of verse one is excellent.

Bonus: Three versions of Battle Hymn of the Republic: historical movies; WWII footage; and in French (!), performed by the great French patriotic singer Mireille Mathieu, with Civil War photos.

And that led me Mireille Mathieu's wonderful performance of Le Chant des Partisans.

Mathieu has recorded many wonderful versions of La Marseillaise, but, at least from an American viewpoint, the most inspiring version of that song is this one. Get's me choked up every time.


Wikipedia Articles Not Subject to Judicial Notice:

So holds an unpublished opinion from the New Jersey Superior Court's Appellate Division:

The common law doctrine of judicial notice is codified in N.J.R.E. 201. Subsection (b)(3) describes the rationale of the rule.

The purpose of judicial notice is to save time and promote judicial economy by precluding the necessity of proving facts that cannot seriously be disputed and are either generally or universally known. Judicial notice cannot be used "to circumvent the rule against hearsay and thereby deprive a party of the right of cross-examination on a contested material issue of fact." Because judicial notice may not be used to deprive a party of cross-examination regarding a contested fact, the doctrine also cannot be used to take notice of the ultimate legal issue in dispute.

... Wikipedia bills itself as the "online encyclopedia that anyone can edit." Anyone with an internet connection can create a Wikipedia account and change any entry in Wikipedia. In fact, Wikipedia warns readers that "[t]he content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields." Thus, it is entirely possible for a party in litigation to alter a Wikipedia article, print the article, and thereafter offer it in court in support of any given position. Such a malleable source of information is inherently unreliable, and clearly not one "whose accuracy cannot be reasonably questioned."

The material that the trial court erroneously judicially noticed was a page "offered ... to establish that Bank One Corporation was purchased by J.P. Morgan & Company in 2004. Against this backdrop, counsel represented to the trial judge that J.P. Morgan sold the accounts, (including defendant's account) to his client Palisades Acquisition." This was relevant to whether the plaintiff actually had a right to sue over the failure to pay on that account.

Thanks to Victor Steinbok for the pointer.


Part-Time and Full-Time Students:

I mentioned offhandedly the other day that George Mason's part-time students are "a bit weaker" than our full-time students. Allow me to clarify that my comment was meant only in the very specific context of the criteria utilized by U.S. News: U.S. News considers only LSAT scores and undergraduate GPAs in judging a school's students.

In deciding to "merge" full-time and part-time statistics this year, U.S. News's rankings are completely innocent of the fact that, as at other law schools, many of our part-time evening students have been out of college for years, and have substantial accomplishments in their chosen fields of endeavor, graduate degrees, and other credentials that simply don't count for U.S. News purposes. Moreover, given consistent, creeping undergraduate grade inflation, an evening student's slightly lower GPA from, say, a decade ago, may actually be higher in "real" terms than a newly minted B.A.'s slightly higher GPA. [One of my best students had an undergraduate GPA from many years back from a particularly rigorous undergraduate institution in the mid-to-high 2s, which placed him at the top of his class!] All of these arguments were made to U.S. News by various deans in urging the magazine not to combine apples and oranges, i.e., part and full-time students, and all were ultimately disregarded by U.S. News. [Last Summer, I pointed out on this blog that "I've had, for example, evening students in their 40s and 50s who have successfully built multi-million dollar businesses. Does it make sense to judge them based on their undergraduate GPA from twenty years earlier?]

That George Mason's part-time students have slightly lower undergraduate GPAs and LSATs than our full-time students, and thus for U.S. News purposes are "a bit weaker" than our full-time students, is a statistical fact that anyone could look up on various pre-law websites. The same is true at every other law school that I know of that has a part-time program. And it does mean that when U.S. News, contrary to prior practice, combined full and part-time students' statistics, it hurt those schools' rankings to a greater or lesser degree.

In my experience, though, our part-time students are fully as capable as our full-time students. They also bring a maturity and life experience that is invaluable in the classroom. Many of my best students have been part-timers, and I am constantly amazed at how much they manage to accomplish while holding down full-time jobs and often having family responsibilities as well (see this post from 2006). And unlike some law schools, we have never treated our evening students as a "cash cow" or as second-class citizens. They receive the same instruction and instructors as everyone else, are graded on the same curve, are eligible for the same extra-curricular activities, such as moot court, law review, and serving as writing fellows, and overall succeed spectacularly.

In a just or even rational world, the accomplishments of our part-time students, and the special qualities they bring to the law school, would actually raise our U.S. News rankings.

As I've pointed out before, flaws in U.S. News' method of ranking law schools doesn't lead to me to argue that U.S. News shouldn't be ranking law schools. Rather, I wish that some other prominent sources, such as the Wall Street Journal or The American Lawyer, would undertake their own rankings (as Brian Leiter has done), to give U.S. News some competition and diminish the absurdly disproportionate impact U.S. News has on student decision-making and law school governance.

Would Worldwide Taxation of US Corporations Help or Hurt?

On CNBC, commentators today were discussing the proposal to tax the worldwide income of American corporations, even when that income is not brought home to the US. I haven’t seen much discussion in the blogs on this issue, but there has been some.

At present, we have a set of tax treaties with many countries that, among other things, prevent those countries from treating foreign subsidiaries of American corporations less favorably than they treat their domestic corporations. Thus, Switzerland should not tax Swiss subsidiaries of American corporations at higher rates than Swiss corporations.

After getting other governments not to discriminate against US corporations, we are proposing to do just that to our own corporations. Will a US-owned Swiss subsidiary be able to compete on price with a Swiss company that pays lower taxes on its corporate income? Obviously, the US-owned subsidiary will be at a disadvantage if it must pay higher taxes than its competitor.

So in the real world, what are the likely responses?

1. First, as noted, US corporations will be weakened in competition with foreign corporations in their non-US operations.

2. Second, even in their US operations, US corporations will be weakened in competition with foreign corporations because those foreign corporations can use synergies from cooperating with their foreign entities, operations that are tax-advantaged in favor of foreign corporations (see 1 above).

3. Third, some US corporations will sell otherwise profitable foreign operations simply because of unequal tax treatments; indeed, the more profitable the foreign operation, the more likely it will be sold. If one owner can make more profit than another owner, the less profitable owner should sell it to the more profitable owner. This weakens US corporations economically and reduces diversification.

4. Fourth, true multi-nationals will simply change their home from the US to another country. To persuade the IRS that they are really a Canadian or Swiss company, they would have to move their higher corporate staff out of the US. If that isn’t enough, they might have to cut jobs in the US and move some of their lower US operations elsewhere (or simply sell some of their US divisions).

5. Last, some US corporations will do what the proposal intends to happen: they will move jobs back from low tax foreign jurisdictions because they are no longer effectively low tax jurisdictions.

Overall, it is possible that the intended effect of taxing the worldwide profits of US corporations (#5 above) will turn out to overcome the other negative effects (#1-4 above). But I personally am skeptical that a net good can come from putting US corporations at a competitive disadvantage.

Effects 1 and 4 would seem to be especially strong. If a true multi-national can avoid the worldwide tax by simply moving its headquarters, cutting back its US operations, and downsizing its American workforce — few profit-maximizing multi-nationals would fail to do this. If worldwide taxation passes, I would expect net job losses in the US and many fewer major incorporations in the US in future years. One doesn’t create wealth or jobs by crippling American corporations.

UPDATE: This evening on CNBC, Greg Valliere, who during the campaign last year was a very strong supporter of President Obama, made some of the same arguments that I had made earlier on Wednesday.

Thoughts on "The Legal Workshop": In his post below, Sasha links to the new website, LegalWorkShop.Org, which will post very short versions of published law review articles from participating law reviews. Larry Solum and Brian Leiter liken it to a Reader's Digest version; I would update that to the 21st Century and say it forces each scholar to reproduce his or her article as a long blog post.

  On the whole, I think it's a good experiment. At its best, it may help articles become better known within the scholarly community. When an article is 60 pages long, it's tempting for many to read the introduction, pick through a few sections, and feel that you have the basic gist of it. Most readers won't actually read it cover-to-cover unless it's unusually interesting or on an issue they're following particularly closely. More people will read short summaries, especially if they are reasonably complete, and that will help get the ideas out.

  Plus, authors forced to write a three-page version of their article are likely to express their ideas with more clarity and force than they do in a 60-page version. It may be that the short versions become valuable not only for their brevity but for their clarity. Consider the perspective of a casebook author looking to excerpt part of an article for a casebook. It is often hard to find the core argument of an article expressed clearly and quickly in the article itself. On the other hand, it may be much easier to find that in the Legal Workshop version. If so, it's all for the good.

  At the same time, I'm not entirely sure the experiment will work. First, I doubt the public will be very much interested. A short article about an esoteric legal topic is still an article about an esoteric legal topic. Second, many authors try to give the three-page explanation of the article in the introduction already. If the introduction to an article already does much of the work of the LegalWorkshop version, it's not clear the latter will be worth the extra effort to authors and journals.

  Still, on the whole I think it's a useful experiment. Worth watching.

Nonlethal Weapons and the Right To Defend Life:

(As usual, please see the article draft for more details.)

Twenty-one state constitutions expressly secure a right to “defend[] life.” The states with such a provision include the no-stun-gun or partial no-stun-gun jurisdictions of Delaware, New Jersey, Ohio, and Pennsylvania, as well as Massachusetts, which both entirely bans stun guns and bans possession of pepper spray by people who aren't U.S. citizens and people who aren't Massachusetts residents. To quote the Pennsylvania provision, to which the others are very similar,

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

The “defending life” and “protecting property” provisions have been read as securing a judicially enforceable right, including in many Ohio and Pennsylvania cases. And it’s possible that the right to defend life is implicitly guaranteed by the federal Due Process Clause or the Ninth Amendment.

For the reasons discussed in Part II, nonlethal weapon bans substantially burden people’s right to “defend[] life and liberty,” because they take away a device without which defending life and liberty becomes much harder. And as with other constitutional rights, such a substantial burden should be treated as presumptively unconstitutional. (I discuss this in much more detail in a new article I’m working on, tentatively titled Facilitative Constitutional Rights.)

Consider, for instance, contraceptive bans, which deny people devices for preventing contraception but leave people free to use device-less techniques such as the rhythm method. The availability of the rhythm method doesn’t keep the bans from being burdens on people’s right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The right to control one’s reproduction is implicated not just by overt prohibitions on begetting (or on not begetting), such as the mandatory sterilization at issue in Skinner v. Oklahoma. It is also implicated by bans on those devices that make such begetting (or not begetting) much more effective, since such bans substantially burden the exercise of the right. The same logic should apply to bans on those devices that make defending life much more effective.

Likewise, the freedom of speech includes the freedom to use physical devices, such as telephones, the Internet, loudspeakers, and the like in order to speak, because they too are important devices for making speech effective. [See, among many other cases, Ward v. Rock Against Racism, 491 U.S. 781, 796, 802 (1989) (applying First Amendment scrutiny to a content-neutral restriction on the use of sound amplification equipment, and upholding it only on the grounds that the law was “narrowly tailored to serve a significant governmental interest,” and “le[ft] open ample alternative channels of communication,” including the use of amplified sound with some “regulati[on] of the extent of amplification”).] And, similarly, the right to defend property -- a close cousin of the right to defend life -- has been read by courts to include the right to use devices to kill wild animals that have been destroying one’s property. No-one suggests that the right allows one to kill moose, but only with one’s bare hands, just as no-one suggests that the right to control one’s reproduction protects only device-free contraceptive techniques and not condoms. The right to defend life should similarly be interpreted as presumptively including the right to use those devices needed to make self-defense especially effective.

More broadly, courts have routinely recognized that various rights are unconstitutionally burdened by laws banning behavior that is needed to exercise those rights effectively. The freedom of speech presumptively protects the freedom to associate for expressive purposes, precisely because association is an important device for making speech effective. The freedom of speech presumptively protects the freedom to spend money in order to speak, because spending money is an important device for making speech effective.

Likewise, the right to hire a lawyer, the right to educate one’s children, and the right to get contraceptives or an abortion, also presumptively protect the freedom to spend money to exercise the right. Just as “the right to counsel is the right to the effective assistance of counsel,” so other rights are the rights to more than just some opportunity to speak, to choose not to beget children, to educate one’s child, or to defend life. They are the rights to do so effectively -- to be presumptively free of substantial burdens on the right, burdens that materially interfere with the rightsholder’s ability to accomplish the purpose for which the right is secured.

Of course, these rights are not unlimited in scope. For instance, though courts have held that the right to speak often includes the right to use loudspeakers, it might not include the right to use loudspeakers that are excessively distracting (for instance when they’re used at night, or are too loud). Likewise, the right to spend money to speak may sometimes be trumped by compelling interests in preventing quid pro quo corruption.

Similarly, one can argue that the right to defend life does not include the right to possess deadly weapons, precisely because those weapons pose special dangers of death well beyond the dangers inherently posed by the recognition of self-defense (even deadly self-defense) as a defense to a charge of homicide. A court may conclude that a right that is so dangerous must be expressly secured through a right-to-bear-arms provision, rather than implicitly found in a provision protecting the defense of life or liberty.

But when it comes to nonlethal weapons, the extra danger of crime posed by their possession is not particularly great, for the reasons discussed in Part II. And the burden on the right to defend life posed by bans on nonlethal weapons is great indeed, likewise for reasons that Part II canvasses. So the general principle outlined above should apply: The right to defend life should include the right to possess the nonlethal weapons needed for effective self-defense, much as other rights include the right to possess and use similar devices needed to effectively exercise those rights.

The right to defend life, as applied to possession of nonlethal weapons, should also cover minors and felons who have finished serving their sentence. There is no case holding that felons lack the right to defend life. In fact, a few cases have read the right to defend life as justifying even felons’ picking up firearms in an emergency (though not possessing firearms in ordinary life, in expectation that they might eventually be needed). Nor are there cases holding that minors lack this right; and there would probably be less pressure on courts to so hold, when the right involved is not as closely linked to the possession of deadly weapons as the right to bear arms is. So the arguments made in Parts III.A.4 and III.A.5 as to the right to bear arms should apply to the right to defend life, but even more strongly.


[Eugene Kontorovich, guest-blogging, April 22, 2009 at 12:36pm] Trackbacks
Rethinking the Hamdan Interpretation of Common Art. 3 in Light of Piracy Problem

Over at OpinioJuris, Duncan Hollis asks whether captured pirates might be entitled to the protections of Common Article 3 of the Geneva Conventions. I address the problems posed by the Geneva conventions to piracy prosecutions in my forthcoming essay, pg. 21-27. Forget Article 3, I wrote; the pirates have a weak but colorable claim to prisoner of war protection, or at least an Article 5 hearing. (See pgs. 21-27).

However, in thinking about a problem with applying common article 3 to Somali pirates noted by Prof. Hollis, it occurred to me that the problem reveals a difficulty with the Supreme Court’s interpretation of the provision.

In Hamdan v. Rumsfeld, the Court ruled that Common Article 3 of the Geneva conventions Geneva Convention, dealing with “conflict not of an international character occurring in the territory of one of the High Contracting Parties.” The Administration had argued that this was not applicable to conflict between the U.S. and a foreign non-state group because such a conflict was international. Common article 3, in this view applies purely to internal (civil) wars.

The Court however ruled that “international” only means between two sovereign states. Because the United States is not fighting a country, it is not a conflict with an international character. See Part VI.D.2 of the opinion. (This is somewhat ironic in that modern international law sees its subject as not just relations between nations, but between nations and individuals.)

The pirate question calls into doubt the Court's construction. The Geneva Conventions apply in full naval operations and the high seas. Indeed, the Second Geneva Convention focuses on "members of the armed forces at sea," and questions of shipwrecks and so forth. Because Common Article 2 does not limit application to “the territory of one of the high contracting parties” there is no problem applying the conventions to operations on the high seas.

Yet operations on the high seas are currently excluded by the plain language of common article 3. In the interpretation given to it by the Court, if the United States was fighting Al Qaeda on land some, Geneva Convention protections would apply. If they are fighting Al Qaeda — or pirates — on the seas, there is not the minimal common article 3 protection. Given That the Geneva Conventions As a whole are equally solicitous of naval combatants and land combatants, it is hard to believe that article 3 would completely abandon the interests of the former. The most obvious way of resolving this paradox is to say that common article 3 is designed to deal with internal civil wars. Once the campaign is waged on the high seas, it is by definition of an international character and outside the scope of article 3.

In a conflict between a nation and an internal armed group, both sides will not have warships that will encounter each other in international waters, and thus the territorial limitation does not harm. In other words, the best way to make sense of it is to say that Common Article 3 applies neither on the high seas nor on land in conflicts between an armed group and a foreign power.


Huge Differences Between Government Outlays and Revenues.

At the Congressional Budget Office (via Mankiw) is this stunning chart:

Total Revenues and Outlays in CBO's Baseline and Under the President's Budget (Percentage of GDP)

click to enlarge

While the main takeaway is the current peak in outlays and trough in revenues, one shouldn't ignore the strong pattern of Clinton-era fiscal responsibility. In the Tea Party protests, I sometimes saw Obama lumped with Bush and Clinton on spending. At least as to Clinton, this is a very unfair comparison. The Clinton administration was, for the most part, very frugal, a policy for which it gets too little credit (of course, it had help on this front from the Congress). On balance, the Clinton administration's frugality was a very good thing (though with hindsight it also had its downside, ie, preventing timely reconstruction of the levies in New Orleans).

Hamilton to Get Second Hearing:

CQ's Legal Beat reports the Senate Judiciary Committee will have a second hearing on the nomination of David Hamilton to the U.S. Court of Appeals for the Seventh Circuit on April 29. At the same hearing, the committee will consider the nomination of Andre Davis to the U.S. Court of Appeals for the Fourth Circuit.

Related Posts (on one page):

  1. Hamilton to Get Second Hearing:
  2. Heat Rises Over Hamilton Nomination:
  3. Hurrying Hamilton?

Dartmouth's Kangaroo Court:

TJ Rodgers has a strong commentary on my booting from Dartmouth's Board in today's issue of The Dartmouth, "Hang One, Warn a Thousand":

“Hang one, warn a thousand” says the ancient Chinese proverb. In its April meeting, the Dartmouth Board of Trustees hanged Todd Zywicki ‘88, thus warning the petition trustees — and any others tempted to express independent views — not to cross the party line. The Board’s action was coldly deliberate. The legal machinery by which it was achieved took two years to construct.

I have pondered previously on whether new accusations arose during the closed-door deliberations that I was unable to address. TJ--without revealing any details of the charges--makes clear that this indeed was the case:

On the day of his trial, Zywicki was asked if he wanted to make a statement. He apologized again for his Pope Center speech and exited. In order to maintain the confidentiality of board proceedings, I cannot give details. However, I can say from personal knowledge that many of the statements made in that meeting about Todd Zywicki were factually incorrect, but Todd was not there to respond. In my opinion, all of the issues, including his speech, did not rise to the level of negating the votes of the alumni who elected Todd. Despite my objection, the vote — for the only time in my five years on the Board — was secret.

Later, as I watched, Todd was told in a hallway that he had been ejected. He was not given the vote count or even the reasons for his ejection. I walked him to his rental car and watched him leave Hanover, perhaps for the last time.

Todd was offered the option to save himself — to resign before the vote and slink out of town. Todd Zywicki’s greatest achievement as a Dartmouth trustee may well be having the personal courage to force the Board Majority to take responsibility for a political lynching.

Real classy, Trustees.

Read the whole thing--it is a real eye-opener.

The Dartmouth also ran a panoply of student reaction on the issue the other day. Let's hope the Trustees learn something from the students and not the other way around. And let's hope that incoming Dartmouth President Jim Kim cleans-up the place when he takes over.

Did Coercive Interrogation Produce Actionable Intelligence?

National intelligence director Dennis Blair maintains that the coercive interrogation techniques approved by the controversial OLC "torture memos" generated valuable, [actionable] intelligence, but this fact was initially omitted from the material released to the media in conjunction with the most recent "torture memo" disclosures. As the NYT reports:

“High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country,” Adm. Dennis C. Blair, the intelligence director, wrote in a memo to his staff last Thursday. . . .

Admiral Blair’s assessment that the interrogation methods did produce important information was deleted from a condensed version of his memo released to the media last Thursday. Also deleted was a line in which he empathized with his predecessors who originally approved some of the harsh tactics after the attacks of Sept. 11, 2001.

“I like to think I would not have approved those methods in the past,” he wrote, “but I do not fault those who made the decisions at that time, and I will absolutely defend those who carried out the interrogations within the orders they were given.”

A spokeswoman for Admiral Blair said the lines were cut in the normal editing process of shortening an internal memo into a media statement emphasizing his concern that the public understand the context of the decisions made in the past and the fact that they followed legal orders.

"The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means,” Admiral Blair said in a written statement issued last night. “The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

As Blair notes, the fact that the relevant techniques produced actionable intelligence does not demonstrate the wisdom, morality, or necessity of resorting to such techniques. The same intelligence may have been obtainable through other means, and some interrogation techniques should be out of bounds irrespective of their utilitarian value.

Adm. Blair said he will "absolutely defend those who carried out the interrogations within the orders they were given." This qualification is important as there is reason to believe that the CIA exceeded the scope of what OLC had approved in its actual interrogations. In other words, at least some CIA operatives appear not to have acted in good faith reliance on the OLC memos. A new report further concludes that military and intelligence officials decided to rely upon coercive interrogation methods before any high-value detainees had been captured or anything had been approved by OLC.

Meanwhile, David Ignatius has a column explaining how the "torture memo" disclosures have influenced morale at the CIA. This column goes a long way toward explaining why high-ranking intelligence officials — both those who served under Bush and those currently serving under Obama — opposed the memos' release.

UPDATE: As some commenters have noted, there is some ambiguity in Adm. Blair's statement about whether the intelligence obtained through coercive interrogation techniques was "actionable" or merely "valuable." Any intel obtained through these methods could have been the latter without necessarily being the former.


[Eugene Kontorovich, guest-blogging, April 22, 2009 at 9:20am] Trackbacks
The Administration's Pathetic Piracy Policy, or Freezing Asses

The attention focused on the arraignment yesterday of the surviving Alabama pirate in federal court yesterday should not divert attention from the absolute failure of Western efforts against Somali piracy. The situation is not likely to improve, given the anti-piracy measures dramatically promised by the Obama Administration.

(In my too-slowly-forthcoming but particularly timely essay, “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Calif. Law. Rev., I predict many legal difficulties with policing and prosecuting piracy, which I argue explains the lack of aggressive action in the field or in the courtrooms. The new anti-piracy proposals are in keeping with this.

In the wake of the sudden public attention generated by the seizure of the U.S. vessel, both the president and Secretary of State Clinton vowed to crack down on the international criminals. But the measures they promised are pathetic. The highlight of Clinton’s four-point anti-piracy plan is to “seize pirate assets.” I admit when I first heard this I thought it was a joke. Pirates do not have money in London or New York banks. Somalis are more likely to have asses than assets. The pirates put in their booty into mansions, cars, multiple wives and qwat. How will Clinton freeze that?

Apparently “freezing assets” has become part of a rote litany of soft power diplomacy, along with travel restrictions and the like. The problem with such measures — and with things like universal jurisdiction, which often rely on them as enforcement tools — is that they're much more effective against leaders of Western democracies than a variety of Third World thugs. Somali pirates, like the North Korean Politburo, are not signing up for the Grand Tour of Italy, or a trip around England’s maze gardens. Such sanctions will be largely ineffective against them.

One can only hope that when such measures are discussed the sanctions against Iran to prevent them from acquiring nuclear weapons, it is not meant to be such an obvious commitment to do nothing.

I am not being unfair to Clinton’s plans. The asset freeze is the most aggressive of her proposals, the rest of which include holding “meetings,” a “diplomatic team to engage” Somalia’s transitional government; and tasking other officials to “work” with the shipping industry on their self defense measures.

This is not the first time an administration has boldly announced it would put an end to Somali piracy and is not the first time in such announcements would be in vain. Last fall, after the hijacking of a Ukrainian ship, the Faina, carrying dozens of battle tanks, the Bush administration and other nations declared that the pirates have finally gone too far. Secretary of State Rice devoted considerable time and her last months in office working this issue at the United Nations. Yet those pirates got a ransom too, and the piracy epidemic has only increased.

Indeed, as I've recounted elsewhere, since the beginning of the piracy epidemic last summer the United Nations has passed five Security Council resolutions on the subject– all under its binding Chapter VII authority. No other issue, not even the Israeli-Palestinian conflict (to say nothing of the bloody civil war in Sri Lanka or the ongoing genocide in Darfur) has commanded as much of the Council’s attention. Yet the piracy epidemic has only increased apace. In the days after Obama announced that the U.S. would be getting tough on pirates, as if to mock his words several more vessels were seized, including another American ship.


High Unemployment States Have High Income Taxes or High Unionization or Both.

As the nation considers increasing marginal tax rates and facilitating greater union membership, I thought it might make sense to look at the states with the highest and lowest unemployment rates to see if there might be any relevant patterns.

The six states with the highest unemployment rates are:

  • 12.6% Michigan

  • 12.1% Oregon

  • 11.4% South Carolina

  • 11.2% California

  • 10.8% North Carolina

  • 10.5% Rhode Island

The six states with the lowest unemployment rates are:

  • 5.2% Iowa

  • 5.2% Utah

  • 4.9% South Dakota

  • 4.6% Nebraska

  • 4.5% Wyoming

  • 4.2% North Dakota

In the six states with the highest unemployment rates, the average top state income tax bracket is 8.05%. All but Michigan have marginal tax rates of at least 7% (and Michigan has a very high unionization rate).

On the other hand, the average top tax bracket for the six states with the lowest unemployment is only 4.4%, with 4 of the 6 states having a top marginal rate of 5.54% or less.

Further, union representation averages 14.1% in the six high unemployment states, with a median of 17.4%. All but the Carolinas are among the most unionized states in the nation (and the Carolinas have relatively high marginal income tax rates of 7% and 7.75%).

Putting this together, 3 of the 6 states with the highest unemployment (California, Oregon, and Rhode Island) have both high marginal income tax rates and high union representation. Michigan has high unionization but moderate marginal income tax rates, and the Carolinas have high marginal income taxes, but low unionization rates.

Among the 6 states with the lowest jobless rates, 4 have low unionization rates and no state income tax or modest marginal rates and a fifth (Nebraska) has average income tax rates and low unionization. The exception is Iowa, which has average unionization rates (13%) and high marginal income taxes (8.98%).

I would put less emphasis on my analysis of the LOW unemployment states because they are all in the upper Great Plains. But the HIGH unemployment states are otherwise quite diverse (from the West Coast to New England to the upper Midwest to the Carolinas). What they share are high marginal income taxes or high unionization or both.

As with so many of the reforms contemplated in the budget passed a few weeks ago, we can't know that they will be counter-productive, but the stated goals and the means to achieve those goals do seem to point in opposite directions.

Tuesday, April 21, 2009

The Legal Workshop

is up and running -- this is the product of a consortium of top law reviews to produce op-ed-length online versions of their full-length paper articles. Here's a quote from their press release (I'm cribbing from Larry Solum's post):

A consortium of America’s most influential law reviews today launched The Legal Workshop (, a free, online magazine featuring articles based on legal scholarship published in the print editions of seven participating law reviews: Stanford Law Review, New York University Law Review, Cornell Law Review,Duke Law Journal, Georgetown Law Journal, Northwestern Law Review, and University of Chicago Law Review.

The Legal Workshop features short, plain-English articles about legal issues and ideas, written by an author whose related, full-length work of scholarship is forthcoming in one of the participating law reviews. But The Legal Workshop does not house a collection of abstracts. Instead, it offers an engaging alternative to traditional academic articles that run 30,000 words with footnotes, enabling scholars to present their well-formulated opinions and their research to a wider audience. In addition to making legal ideas understandable, The Legal Workshop seeks to house the best of legal scholarship in one place—making it easier for readers to find the best writing about all areas of law.

"But," as Chaucer says, "wherfor that I speke al this?" Note that today's lead article is my very own Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, recently published in the NYU Law Review. And the bottom article on the page is also my very own Privatization and the Law and Economics of Political Advocacy, recently published in the Stanford Law Review. Larry Solum has interesting ideas about the project as a whole, so I'll just send you there so you can Read The Whole Thing.


Assault Weapons Bans,

in the Violence Policy Center's own words (from 1988) (emphasis added):

[A]ssault weapons are quickly becoming the leading topic of America's gun control debate and will most likely remain the leading gun control issue for the near future. Such a shift will not only damage America's gun lobby, but strengthen the handgun restriction lobby for the following reasons:

* It will be a new topic in what has become to the press and public an "old" debate.

Although handguns claim more than 20,000 lives a year, the issue of handgun restriction consistently remains a non-issue with the vast majority of legislators, the press, and public. The reasons for this vary: the power of the gun lobby; the tendency of both sides of the issue to resort to sloganeering and pre-packaged arguments when discussing the issue; the fact that until an individual is affected by handgun violence he or she is unlikely to work for handgun restrictions; the view that handgun violence is an "unsolvable" problem; the inability of the handgun restriction movement to organize itself into an effective electoral threat; and the fact that until someone famous is shot, or something truly horrible happens, handgun restriction is simply not viewed as a priority. Assault weapons — just like armor-piercing bullets, machine guns, and plastic firearms — are a new topic. The weapons' menacing looks, coupled with the public's confusion over fully automatic machine guns versus semi-automatic assault weapons — anything that looks like a machine gun is assumed to be a machine gun — can only increase the chance of public support for restrictions on these weapons. In addition, few people can envision a practical use for these weapons....

So when gun rights supporters worry that "assault weapons" bans are (1) attempts to grease the slope to restrictions on handguns and other guns, and (2) attempts to capitalize on public confusion about what assault weapons really are, they are really only saying what the Violence Policy Center has itself already said.

Thanks to Dan Gifford for the pointer.

UPDATE: I originally said this was a 1998 study, because that's the copyright date, but it turns out the study itself came out in 1988. Thanks to commenters Bill Twist, Dan M., and Edward M. for the correction.


More on the Right To Bear Arms and Nonlethal Weapons Bans:

Again, for more details, please see the article draft.

Minors: Minors have some constitutional rights, like many aspects of the freedom of speech, and the right to have the criminal charges against them proved beyond a reasonable doubt. But they entirely lack other rights, such as the right to marry, to exercise sexual autonomy, or to access sexually themed publications. And they have weaker versions of other rights, such as the right to abortion.

It seems quite likely — and sensible — that minors would be seen as outside the scope of the right to bear arms where deadly weapons are concerned. While no right-to-bear-arms provision expressly excludes minors, it seems likely that such provisions were enacted with an understanding that minors did not have all the constitutional rights that adults have. This background understanding likely reflected a judgment that minors weren’t mature enough to fully appreciate the consequences of their actions, a judgment that could apply to minors’ potential dangerousness to others, as well as to themselves. And such a judgment particularly supports limits on minors’ rights when the minors’ immaturity could mean unnecessary death.

Nonetheless, it’s not clear that the same general principle should be applied to minors and nonlethal weapons. A minor’s immature misuse of nonlethal weapons is much less dangerous than the minor’s immature use of guns. And, as importantly, denying the minor the tools needed for self-defense is much more dangerous to the minor than is delaying the minor’s ability to legally have sex, have children, or view pornography. One reason that contraceptive rights and abortion rights — once accepted (however controversially) for adults — were extended to minors is that denying minors such a right risks irreversible and harmful changes to the minors’ lives:

The pregnant minor’s options are much different from those facing a minor in other situations, such as deciding whether to marry. A minor not permitted to marry before the age of majority is required simply to postpone her decision. She and her intended spouse may preserve the opportunity for later marriage should they continue to desire it. A pregnant adolescent, however, cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy.

Moreover, the potentially severe detriment facing a pregnant woman is not mitigated by her minority. Indeed, considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor.... In sum, there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.

The same would apply to tools that defend against assault, rape, and murder, as well as to tools that defend against unwanted pregnancy and childbirth. Delaying the right to use such tools until the minor is 18 may equal denying the minor the right when she most needs it, and having likewise “grave and indelible” consequences.

The constitutional rights of minors are a difficult matter, which I’ve only touched on here. I feel comfortable, as I suggested above, that the majority American view as to stun guns (allow possession at least by 16-year-olds and generally even somewhat younger minors, with parental permission) and the nearly unanimous American view as to irritant sprays (allow possession by minors generally) is sound policy. I’m not as confident that this should be seen as a constitutional principle. Still, the contraceptive and abortion rights cases generally suggest that the rights of minors, especially older minors, to keep and bear nonlethal defensive weapons can’t be lightly rejected.


Digital Rights Management

is the subject of the latest Intellectual Property Colloquium podcast with Profs. Ed Felten (Princeton) and Randy Picker (Chicago), hosted (as usual) by my UCLA colleague and IP Colloquium founder Doug Licthman. Here's the description:

Ten years ago, the rights and responsibilities associated with copyright protection were largely defined by federal law. Today, while those explicit rules are obviously still important, a meaningful discussion of copyright protection can't help but also include technological protections -- like the encryption technologies that serve to discourage consumers from making unauthorized copies of their DVDs, or the watermarks that to some degree allow copyright holders to detect when their audio or video content shows up without permission on a site like YouTube. These so-called "digital rights management" or DRM technologies are impacting every aspect of the copyright equation. On this edition of the show, we therefore set out to take a comprehensive tour of the technology, law, and strategy of DRM. Guests include Ed Felten from Princeton University and Randy Picker from the University of Chicago.


More on "Deferred" Law Firm Employment and Breach of Contract:

In an earlier post, I raised the question of whether a law student whose offer of employment at a law firm has been "deferred" might have a breach of contract claim against the firm. [Putting aside the question of whether they'd want to assert that claim or not] The general consensus of the commentators seemed to be that (a) these are at-will employment contracts, and therefore (b) there's no breach claim for withdrawing the offer when the employee could have been fired for any reason, or no reason at all, the minute after he/she was hired. [One commenter even asked: "David Post, are you trolling your own blog? This flame's been on ATL for months, and only recently has been mocked down into silence."]

Well, perhaps it's a character flaw, but it's not so easy to mock me into silence. I spent a little time doing some research on the problem [when I surely should have been doing some work for which I'm paid more than minimum wage ...], and it turns out things are a little more complicated than one might have thought (or than the folks on ATL might have realized, had they not been so busy mocking ideas into silence). Turns out there have been a bunch of cases on this very question, and the outcomes, perhaps surprisingly or perhaps not, go in both directions. A good ALR annotation collects the cases together [1 ALR 5th 401 ("Employer's state-law liability for withdrawing, or substantially altering, job offer for indefinite period before employee actually commences employment")]. Here's a summary:

"Many courts, recognizing that employees hired for an indefinite period normally have no cause of action where discharged after beginning work, have addressed the issue whether there is a cause of action under state law when an offer of employment was revoked or the employee was terminated before commencing employment. The courts were usually faced with a question whether there was liability based on breach of the employment contract or on the theory of promissory estoppel, but have also dealt with actions based on failure to give reasonable notice of termination, and actions brought under state statutes restricting the right to discharge employees.

Many courts have held that there was no cause of action for breach of an employment contract because the employment would have been terminable at any time by any party and refused to find the situation where a party was terminated, or an offer of employment revoked, before employment was commenced different from the situation where an employee began work and was terminated after the first day. Many of these courts found that, in order to allow recovery based on breach of a contract of employment for an indefinite hiring, there would have to be an exception to the employment-at-will doctrine present, such as consideration in exchange for the promise of employment or other "distinguishing features," and generally rejected the argument that quitting prior employment, and other acts the employee took in reliance on the offer of employment, constituted additional consideration or distinguishing features. However, several courts have held that an employee did have a cause of action for breach of employment contract, some finding that the promise to employ was separate from the employment contract itself, and some finding that steps taken in reliance on the contract took the contract outside of employment at will , while others found the employer liable because it failed to give reasonable notice of termination. In one jurisdiction, there appears to be a conflict over the right to sue for breach of contract under these circumstances ( [] § 3[d])."

One case, Slate v. Saxon, 166 Ore. App. 1 (2000), has a nice discussion of the whole problem, and concludes:

"In our view, it would be completely illogical to hold that an employer is exposed to liability if it invokes the right to terminate at will before the employee begins working but is absolved from liability if it defers doing so until immediately after the employee first reports for work.

But it's not illogical at all (given e.g. the possible loss of health benefits via COBRA). I'll stand by what I said initially: I'd be happy to try to persuade a court of the proposition that if the defendant had performed its promise (to hire, even with the right to immediately fire) my client would be in a very different position than he/she is today (never hired), and those are damages recoverable for breach of contract.

Related Posts (on one page):

  1. More on "Deferred" Law Firm Employment and Breach of Contract:
  2. Law Firms' Breach of Contract?:

How Many Bloggers Use Blogging As Their Primary Source of Income?: My co-blogger Jonathan Adler notes the Wall Street Journal essay reporting the following about blogging:
The best studies we can find say we are a nation of over 20 million bloggers, with 1.7 million profiting from the work, and 452,000 of those using blogging as their primary source of income. That's almost 2 million Americans getting paid by the word, the post, or the click — whether on their site or someone else's. And that's nearly half a million of whom it can be said, as Bob Dylan did of Hurricane Carter: "It's my work he'd say, I do it for pay."
The idea that there are 452,000 people in the United States using blogging as their primary source of income seems truly incredible to me. The Volokh Conspiracy is a pretty popular blog, but we tend to earn less than minimum wage for our time blogging here.

   If I'm not mistaken, the 452,000 figure is way off. The conclusion that 452,000 people in the United States use blogging as their primary source of income is based on calculations from a blog post at Media Bistro that links to a report by Technorati on the state of the blogophere. The Media Bistro post copies a chart from the Technorati report (see it here) in which two percent of the participating bloggers reported that blogging was their primary source of income.

  The trick, though, is that Technorati's participating bloggers were likely an unusual bunch rather than a representative one. According to the report's explanation of its methodology:
We emailed a survey invitation to a random sample of Technorati registered users around the world. To qualify for the survey, respondents needed to be bloggers over 18 years old. The survey was hosted by Decipher Inc., was in the field from July 28, 2008 through August 4, 2008, and received 1,290 completed responses from 66 countries.
The methodology doesn't tell us how many e-mails were sent out to get those 1,290 responses, or how many of those responses were from bloggers in the United States. Nor do we know if Technorati's e-mail asking for responses promised respondents anything in the nature of free advertising for their blogs (some was given, in the form of individual blogger profiles in the report) which would likely skew the numbers. All we know is that Technorati received 1,290 responses from bloggers who responded to its query. Of the ones who responded from around the world, 2% — about 25 people — said that they relied on blogging as their primary source of income.

  It seems that the WSJ story assumed that this group of bloggers was representative of the bloggers in the United States. The WSJ article thus calculated the number of bloggers making their primary living from blogging by taking one figure they had — that there were 22.6 million bloggers in the U.S. in 2007 — and then multiplying by the percentage of bloggers in the Technorati study who said that blogging was their primary source of income — that is, two percent. Voila, 22.6 million times .02 = 452,6000 people in the U.S. making their primary living from blogging. But the group of bloggers who are enthusiastic enough about blogging and eager enough to take their time to complete a survey is likely highly unrepresentative of the whole.

One Lesson of Arizona v. Gant, handed down today: New York v. Belton is not a "super precedent."

  Interestingly, though, the one Justice who was on the Court at the time of Belton has stayed pretty consistent. Justice Stevens did not sign on to the majority in Belton, and concurred in Belton only because he thought the automobile exception applied given the facts of that case. As he wrote in his dissent in Robbins v. California, handed down the same day as Belton, he thought at the time that the Belton rule erroneously "authorizes unreasonable searches of vehicles and containers without probable cause to believe that contraband will be found."

  Of course, Stevens did not have the votes for that back in 1981, before the Reagan and Bush appointees had arrived. Back in 1981, the likes of Justices Blackmun, Powell, and Stewart had control of the Court, and so the police were given a broad rule in their favor. It was not until these Justices retired, and were replaced with Reagan and Bush appointees like Scalia, Thomas, and Souter that Stevens would have the votes he needed to protect defendants with a more privacy-protective rule than could be mustered back in 1981.

In the Mail: Rejecting Rights by Sonu Bedi: Just received a copy of what looks like an important new book by Professor Sonu Bedi of the Department of Government at Dartmouth: Rejecting Rights. It looks like Professor Bedi is employing an approach similar to mine. Rather than focus on identifying rights, we ought to focus on identifying and scrutinizing the justifications for restricting liberty. Here is the description:
The language of rights is ubiquitous. It shapes the way we construct our debates over issues such as abortion, affirmative action and sexual freedom. This provocative new study challenges the very concept of rights, arguing that they jeopardize our liberty and undermine democratic debate. By re-conceptualizing our ideas about limited government, it suggests that we can limit the reasons or rationales on which the polity may act. Whereas we once used the language of rights to thwart democratic majorities, Bedi argues that we should now turn our attention to the democratic state's reason for acting. This will permit greater democratic flexibility and discretion while ensuring genuine liberty. Deftly employing political theory and constitutional law to state its case, the study radically rethinks the relationship between liberty and democracy, and will be essential reading for scholars and students of political and legal philosophy.
Here are the blurbs:
"This is an important book, raising a frontal challenge to the regnant paradigm of liberal political thought. And to top it off, it's a genuine pleasure to read!"
Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

"Sonu Bedi offers not only a vigorous critique of the use of rights in political justification but also a novel approach to defending the idea of limited government. Rejecting Rights may well be rejected by liberals and libertarians alike, but Bedi presents a case that is not easily dismissed."
Chandran Kukathas, Chair in Political Theory, London School of Economics and Political Science

"Provocative, deeply original, and lucid: this book makes a powerful case for downplaying liberalism's focus on individual rights in favor of a more nimble requirement of public justification in the face of encroachments on liberty. Sonu Bedi's Rejecting Rights should provoke a fresh reconsideration of liberal constitutionalism. An impressive achievement."
Stephen J. Macedo, Laurance S. Rockefeller Professor of Politics and Director of the University Center for Human Values, Princeton University

Infernal Machines

may not be legally possessed (except by law enforcement) in Massachusetts, reports Eric Muller (Is That Legal?). Here's the statute (paragraph break added):

Whoever, other than a police or other law enforcement officer acting in the discharge of his official duties, has in his possession or under his control an infernal machine or a similar instrument, contrivance or device shall be punished by imprisonment in the state prison for not more than ten years or in jail for not more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment, and the said machine, instrument, contrivance or device shall be forfeited to the commonwealth.

The term “infernal machine”, as used in this section, shall include any device for endangering life or doing unusual damage to property, or both, by fire or, explosion, whether or not contrived to ignite or explode automatically and whether or not disguised so as to appear harmless....

New Hampshire has much the same statute; Ohio requires that "Each sheriff or chief of police shall furnish the bureau of criminal identification and investigation with descriptions, fingerprints, photographs, and measurements of ... Persons who are in possession of infernal machines or other contrivances in whole or in part and reasonably believed by the sheriff or chief of police to be intended to be used for unlawful purposes." (Illinois and Oklahoma had similar statutes until 1961 and 1994, respectively.)

The Oxford English Dictionary, by the way, mentions the term with much the same definitions, with several quotes going back to 1769. My search through Gale's Eighteenth Century Collections Online reveals a 1726 reference ("The bombardment of Dieppe[:] The English made use of an infernal machine without any success, as at St. Malo.").


Constitutional Objections to Nonlethal Weapons Bans:

(As usual, for more, including citations, please read the draft article.)

Stun gun and irritant spray bans, I have argued, are a bad idea. The few jurisdictions that have them should largely repeal them (at least setting aside narrow exceptions such as for young children and violent felons). The many jurisdictions that don’t have them shouldn’t enact them.

But the arguments I gave aren’t just policy arguments. They are also constitutional arguments, under the federal and state constitutional rights to keep and bear arms and under the right to defend life that is secured by many state constitutions. And they may be constitutional or statutory arguments under state religious freedom provisions, if those provisions are raised by people who have religious objections to using deadly force in self-defense.

To begin with, let us consider the right to keep and bear arms in self-defense. This right is secured by the constitutions of Connecticut, Delaware, Illinois, Indiana, Louisiana, Michigan, North Carolina, Pennsylvania, Rhode Island, and Wisconsin (as well as of at least 30 other states that aren’t relevant here because they and their subdivisions don’t ban stun guns or irritant sprays). To quote the Michigan provision, for instance, “Every person has a right to keep and bear arms for the defense of himself and the state.”

In federal enclaves, such as D.C., this right is secured by the Second Amendment. In the Virgin Islands, it is secured by the Virgin Islands Bill of Rights. And if the Court concludes that the Second Amendment is incorporated via the Fourteenth Amendment, then the right to keep and bear arms in self-defense would be secured throughout the nation even against state and local laws.

As I suggest elsewhere, there are four kinds of possible justifications that would make particular weapons control laws constitutional notwithstanding a right to bear arms in self-defense: (1) The law might restrict activity that is outside the scope of the right, as defined by the text, original meaning, tradition, or background legal principles. (2) The law might not substantially burden the ability to defend oneself using arms. (3) The law might be justified because it materially reduces a sort of danger that is greater than the danger that normally attends exercise of the right. (4) The law might be justified because the government is controlling behavior on or using its own property.

The government-as-proprietor arises for some of the restrictions -- on possession in public housing, universities, dorm rooms, parks, and buses -- but I speak more about those general issues elsewhere. The substantial burden and reducing danger arguments are covered in the policy discussion of Part II; those would apply equally to the constitutional argument I discuss here. The remaining questions have to do with what I’ve labeled scope arguments. The scope of the term “arms”: The first question is whether stun guns and irritant sprays should be treated as “arms” for constitutional purposes. Such weapons were historically unknown when all but the most recent right-to-bear-arms provisions were enacted, but D.C. v. Heller expressly rejected the view “that only those arms in existence in the 18th century are protected by the Second Amendment.” Instead, Heller held, “Just as the First Amendment protects modern forms of communications [such as the Internet], and the Fourth Amendment applies to modern forms of search [such as heat detection devices], the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

Some early courts concluded that right-to-bear-arms guarantees covered only weapons “usually employed in civilized warfare,” distinguishing such protected arms from unprotected weapons that “are employed in quarrels and brawls and fights between maddened individuals.” And stun guns and pepper spray of course aren’t usually employed in warfare.

But, as Heller pointed out in rejecting this civilized-warfare test, “arms” in the late 1700s generally meant “weapons of offence, or armour of defence,” or “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” This includes purely civilian defensive weapons, which makes sense given Heller’s holding that the right protects arms used for self-defense, and the relevant state constitutions’ protection of arms for self-defense.

Heller does limit “arms” to weapons that are “of the kind in common use,” and excludes “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Many state cases have used similar definitions. But, as I argue elsewhere, this definition arose in cases involving weapons that were seen as unusually dangerous, not unusually safe. In particular, Heller reasons that the “limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” -- something that suggests that weapons that are less dangerous than protected ones, though still unusual, would indeed be outside the limitation and would thus be constitutionally protected.

Thus, I think that the Oregon courts -- and some other recent authorities -- are right in concluding that weapons such as knives and billy clubs, which are less lethal than guns, should be considered arms alongside guns. A fortiori, stun guns and irritant sprays should be covered as well. And this interpretation has the merit of following function, as I noted above: Stun guns and irritant sprays are indeed useful “arms” for “defense of [one]self.”

Only one case expressly considers whether bans on such nonlethal weapons violate the right to bear arms, People v. Smelter, 437 N.W.2d 341 (Mich. Ct. App. 1989), and here is Smelter’s entire analysis:

Third, defendant claims that the statute prohibiting the possession of stun guns impermissibly infringes on defendant's right to keep and bear arms for his own defense. We disagree. Const. 1963, art. 1, § 6 provides:

“Every person has a right to keep and bear arms for the defense of himself and the state.”

The right to regulate weapons extends not only to the establishment of conditions under which weapons may be possessed, but allows the state to prohibit weapons whose customary employment by individuals is to violate the law. [People v. Brown, 235 N.W. 256 (Mich. 1931) (upholding a ban on carrying blackjacks).] The device seized from defendant was capable of generating 50,000 volts. Testimony in the lower court established that such weapons can not only temporarily incapacitate someone but can result in temporary paralysis. Our Supreme Court in Brown explained that the power to regulate is subject to the limitation that its exercise be reasonable. We conclude that the Legislature’s prohibition of stun guns is reasonable and constitutional.

The court appears to reason that stun guns’ “customary employment by individuals is to violate the law,” and that therefore the regulation is “reasonable.” Presumably the theory is similar to Heller’s view that the right to bear arms doesn’t protect “weapons not typically possessed by law-abiding citizens for lawful purposes.”

But I know of no evidence that stun guns were customarily used to violate the law in the late 1980s; neither the opinion nor the briefs offer such evidence. And it seems especially unlikely that there is any such evidence today. Stun guns, like handguns and other weapons, are today used both by law-abiding citizens and by criminals. And they are especially useful to law-abiding citizens, precisely because law-abiding citizens are more likely to comply with bans on gun carrying, and will therefore need an alternative defensive weapon.

(In Harris v. State, 432 P.2d 929 (Nev. 1967), defendant claimed a Second Amendment defense to a charge of illegal possession of a tear gas pen; but the court held, following United States v. Cruikshank, 92 U.S. 542 (1875), that the Second Amendment didn’t apply to the states, and the Nevada Constitution didn’t then have a right-to-bear-arms provision. State v. Delgado, 692 P.2d 610, 614 n.8 (Ore. 1984), notes the view that “it is incongruous to believe that a woman today to defend herself from a rapist would have constitutional sanction for carrying a switch-blade knife but not for the can of mace because the latter was unknown to the mid-nineteenth century,” but doesn’t discuss it in detail because the case itself involved knives and not irritant sprays.)

[More to come in the coming days.]


The Holding of Gant, and Some Initial Questions as To Its Application:: I'm really interested in what the new Fourth Amendment rule of Arizona v. Gant really means, and how it will apply in practice. Here's the version of the holding on page 10:
We hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. . . . [w]e also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is“reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
Here's the conclusion on Page 11, applying this standard to the facts:
Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable.
Here's Page 18, restating the standard:
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.
Do you read the rule as just referring to "reaching distance", or as also requiring that the arrestee is "unsecured"? Or does unsecured mean handcuffed or put in a locked squad car, and do we assume that once a person is handcuffed they no longer have any reaching distance at all? If that's right, does that mean that as soon as a person is handcuffed, the police cannot conduct a search under Belton? What is a reaching distance -- is that a physical concept of distance, sort like the grabbable area test for search incident to arrest for a person, or is it measured by reference to whether a person could have grab a gun in the car?

Supreme Court Limits Search-Incident-to-Arrest Exception: The Supreme Court handed down Arizona v. Gant this morning, imposing a new limitation on the search incident to arrest power when the police want to search an automobile. Under New York v. Belton, the rule has been that the police can search the passenger area of a car when they arrest an occupant or recent occupant of the vehicle. Today, in a vote of 5-4, the Supreme Court added a new limitation: The police can search a car following arrest only if they could have a reasonable belief 1) that the person arrested "could have accessed his car at the time of the search" or 2)"that evidence of the offense for which he was arrested might have been found therein."

  In the majority opinion by Justice Stevens, the Court concludes that these limitations are proper because the absence of these limitations simply gives the police too much power, power that cannot be justified by the reasonableness requirement of the Fourth Amendment. Stare decisis does not prevail because it is pretty clear to the majority that searches absent an evidentiary or police safety nexus are unconstitutional, and that the police are just going too far relying on the traditional broad reading of Belton.

  Stay tuned for more Gant-blogging throughout the day.

Bloggers for Hire:

The WSJ reports there are over 20 million bloggers in the U.S., 1.7 million of which generate income, and under 500,000 of which make blogging their primary source of income.


Today's Supreme Court Lineups:

The Supreme Court issued opinions in three cases today: n Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, Shinseki v. Sanders, and Arizona v. Gant. SCOTUSBlog has early details here.

I'll leave substantive analysis of these three decisions to others. For now, I jsut wanted to note that all three were closely divided, and all three produced different lineups.

  • Elahi - Majority: Breyer, joined by Roberts, Alito, Thomas, Scalia, and Stevens. Dissenting (in part): Kennedy, Ginsburg, Souter.
  • Sanders - Majority: Breyer, joined by Roberts, Alito, Thomas, Scalia,, and Kennedy. Dissenting: Souter, Stevens, Ginsburg.
  • Gant - Majority: Stevens, joined by Ginsburg, Souter, Scalia, and Thomas. Dissenting: Breyer, Alito, Roberts, Kennedy.

Related Posts (on one page):

  1. Another Interesting Lineup:
  2. Today's Supreme Court Lineups:

Dellinger Says Exec Nominations Deserve Vote:

Former Clinton Justice Department official Walter Dellinger had an op-ed in yesterday's WSJ arguing that all Executive Branch nominations deserve an up-or-down vote in the Senate.

Whether Republicans or Democrats are in office, the loyal opposition should not frustrate a president's ability to execute the powers of his office by denying an up-or-down vote to executive-branch nominees.
He made a similar argument in 2001 when he sought (somewhat unsuccessfully) to discourage Senate Democrats from blocking Bush nominees. As he wrote then and now: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration." I agree. While I may disagree with Dawn Johnsen or Harold Koh on various matters, I believe each should receive a prompt vote following a fair examination of their respective records -- and that each should be confirmed.

While Dellinger focuses on the fact that many Senate Republicans are on record opposing filibusters or other obstruction of executive branch nominees, he also notes that Senate Democrats blocked votes on several Bush nominees to the executive branch, including John Bolton, Otto Reich, and Eugene Scalia. The one qualification I would make to Dellinger's argument is that he seems to suggest that the only principled position for Republican Senators to take is one of unilateral disarmament. While I agree that tit-for-tat has produced unnecessary escalation in nomination battles -- for both executive and judicial nominations -- I also suspect that, as a practical matter, Senate Democrats are unlikely to forswear resort to their prior tactics absent some threat of retaliation. Just as it took several intrusive investigations of the Clinton Administration to sour Democrats on the independent counsel law, I fear it may take the threat of GOP obstruction to convince Democrats to accept a new norm on the treatment of Presidential nominees to the executive branch. I don't want either party to filibuster executive branch nominees, but I understand why one party would be reluctant to forswear this option unless the other would do the same.


Could Attorneys Go to Jail for Letter to Obama?

The San Francisco Chronicle reports that two attorneys for former Gitmo detainee Binyam Mohamed face sanction for sending a letter to President Obama asking seeking government disclosure of information related to Mohamed's treatment. Mohamed claims he was subject to extraordinary rendition that resulted in torture, but government information to substantiate this claim is classified. In an effort to get this information released, Mohamed's attorneys sent a letter to President Obama that contained classified material, in violation of the terms upon which the attorneys were given access to their client and related government information. The two attorneys apparently sought approval for the content of the letter, but there is a factual dispute over how they proceeded and whether the relevant government officials approved the letter's compliance with secrecy rules. At a May hearing, federal district court judge Thomas Hogan will determine whether to hold the attorneys in contempt of court for their actions. Even if Judge Hogan determines the attorneys violated their agreement, based upon the information in the Chronicle story, I would be surprised (and dismayed) if the attorneys received any jail time.


Congratulations to my friend and GW colleague Peter Smith, who was voted the best teaching law professor by the student readers of the Blackbook Legal Blog. I've seen Peter teach, and he is indeed a fantastic teacher: he combines rigor, clarity, and humor in a way few can match.

Safford United School District v. Redding: Tomorrow the Supreme Court will hear oral argument in Safford United School District v. Redding, a Fourth Amendment case involving an 8th grader who was strip-searched for prescription drugs believed to have been wrongly brought to school. The lower court opinion is here; Petitioner's brief is here; the Respondent's brief is here; and the amicus brief of the United States is here.

  Although I generally try to follow all the Supreme Court's Fourth Amendment cases pretty closely, this is the kind of case that I find easy to ignore. As a general rule, I find Fourth Amendment "special needs" cases really boring. The law expressly requires the Court to apply a general Fourth Amendment balancing of interests, which isn't analytically very interesting: You just have a vote around the table for who thinks the government should be allowed to do that, and whichever side gets to 5 is the winner. There isn't a lot to it.

  Anyway, my prediction is that the Supreme Court will agree with the Ninth Circuit that the strip searches here are unconstitutional. A majority will conclude that a strip search is far more invasive than a search of property like a locker, and that the school couldn't submit the student to such a humiliating and invasive search in these circumstances without good reason to think the banned items would be there. I would agree with that conclusion, I should add: I think the school's conduct was plainly unreasonable.

  The trickier question to me is whether qualified immunity should nonetheless apply. The QI test is so context-sensitive that answer that that would require a closer look at the lower court cases than I have interest in providing. Finally, I would expect the Court to reach the merits in this case: Even though the Court now has the discretion to reach the qualified immunity issue without addressing the Fourth Amendment merits, see Pearson v. Callahan, I would think they will reach the merits given the importance of the question.

Monday, April 20, 2009

Law School Rankings and the Wisdom of Crowds:

As Orin notes below, the U.S. News rankings are out, and, as usual, many students will pay too much attention to them. The rankings themselves are methodologically silly for a variety of reasons, with ample demonstration from this year's rankings. Does anyone think that G.W. has really gotten significantly worse in the last year? Or that Indiana-Bloomington has gotten so much better (making perhaps the most astounding rise in the rankings to date)? (Sure, to some extent the rankings can be a self-fulfilling prophecy, but annual blips rarely make a significant difference.)

In an attempt to curtail cheating by some schools, U.S. News has made the rankings invalid for year to year comparisons by suddenly including part-time student statistics in its rankings. My own school, George Mason, went down slightly in the rankings (from 38 to 41), I assume because our part-time students are a big weaker than our full-timers (given that the other statistics appear to be better than last year's), yet if U.S. News had used the same criteria as last year, we would likely be up slightly.

For that matter, consider how U.S. News ranked part-time programs--it sent out a survey asking professors and deans to list fifteen schools with outstanding part-time programs. I am rather confident that no more than a tiny percentage of those who responded to this question are familiar with the particularities of different schools' part-time programs. Unlike some of our worthy competitors, for example, at George Mason (ranked 5th in the part-time rankings) ALL tenured and tenure-track professors teach in the evening, and evening students are eligible for all students activities including law review. I can't imagine why a professor at, say, Valparaiso Law School, would be aware of such details, but U.S. News didn't bother to even attempt to take such factors into account.

Anyway, two pieces of advice for prospective law students. First, there are three groups of law schools: the handful of truly "national" law schools, which place almost everywhere; the somewhat larger group of "strong academic" law schools, which place many graduates regionally but also have the reputation to get you a job elsewhere with a little legwork; and the regional law schools, which don't have placement pull nationally but place their grads locally, often with great success. If you have been admitted only to regional law schools, rankings and the such should be almost entirely irrelevant to you; you should be attending law school in the city in which you would like to live and practice.

Second, if you must rely on ranking and desire a superior alternative to U.S. News, look at matriculating students' LSAT scores. The wisdom of crowds suggests that tens of thousands of law students making hundreds of thousands decisions about accepting and rejecting offers of admission, taking into account everything that prospective law students take into account--location, academic reputation, faculty quality, clinics, placement, specialties, cost, and so forth--provide far more useful information than the hamhanded U.S. News rankings. And unlike GPA, LSAT scores are both a reasonable proxy for student quality (at least when considered across an entire school's student body) and are not really manipulable by the law schools.

Of course, no student is the average student, and anyone about to devote three years and a lot of money to law school should consider how his individual interests and needs may vary from the median. But as a rough approximation as to the true desirability of a law school, I don't think you can go very far wrong with LSAT scores.


Francis Fukuyama's Case Against Academic Tenure:

Well-known political scientist Francis Fukuyama argues that we should abolish tenure:

I'm a tenured professor. But I'd get rid of tenure.

Tenure was created to protect academic freedom after a series of 19th-century cases when university donors or legislators tried to remove professors whose views they disliked...

The rationale for tenure is still valid. But the system has turned the academy into one of the most conservative and costly institutions in the country. Yes, conservative: Economists joke that their discipline advances one funeral at a time, but many fields must wait for wholesale generational turnover before new approaches take hold.

The system also hamstrings younger untenured professors, making them fearful of taking intellectual risks and causing them to write in jargon aimed only at those in their narrow subdiscipline...

These problems are made worse by a federal employment law that bars universities from instituting mandatory retirement. Deans and provosts can't remove elderly professors who take up slots that could fund two or three younger colleagues...

Things don't have to be this way. Academic freedom can thrive in think tanks and research institutes. U.S.-style tenure doesn't exist in Britain or Australia. Japan grants tenure but forces professors to retire at a relatively early age (60 at Tokyo University). . .

I have long shared Fukuyama's concerns. And, even though I was recently voted tenure myself, I still have serious doubts about this institution. I'm not even sure that it really does very much to protect academic freedom. As I explained in this post, a university intent on imposing ideological orthodoxy can simply exclude dissenters at the entry level hiring stage or at the point of promotion to tenure. Although I'm happy to be tenured, I still doubt that the small increment of extra protection for academic freedom provided by tenure is worth the immense costs noted by Fukuyama and other critics.

UPDATE: As a preemptive response to accusations of hypocrisy ("How can you accept the benefits of tenure if you're opposed to it?"), I cite my post on the ethics of benefiting from policies that you oppose.


U.S. News Rankings, 2009 Version: As many in the legal blogosphere have noted, the the new U.S. News law school rankings are out.

  Some of the bigger news this year is an unusual drop for my own school, George Washington, which in the last decade has bounced around between 19 and 25 and averages somewhere around 21. This year we went from 20 to 28, which may reflect the decision by the US News folks to change the way they compute the rankings by including part-time GPA/LSAT scores in the mix (that is, the scores of the night students). But who knows: These numbers seem to bounce around mostly at random, and my guess is that next year the numbers will bounce back to where they were.

  Oh, and I should make the usual caveat: No one other than law students and law school applicants actually think the year-to-year variations have any significance, so there's a good argument to ignore the rankings. On the other hand, law students and applicants are a pretty important audience for law schools, and rightly or wrongly,the rankings have a major influence on school morale. As a result, they're a bit too big too ignore, even if the numbers are so often misunderstood.

More on the Myth of "Green Jobs":

Speaking of "green jobs," my former colleague Andrew Morriss has co-authored a paper with Roger Meiners, Andrew Dorchak, and William Bogart debunking basic "green jobs" claims. The full study, "Green Jobs Myths" is on SSRN. Here's the abstract:

A rapidly growing literature promises that a massive program of government mandates, subsidies, and forced technological interventions will reward the nation with an economy brimming with green jobs. Not only will these jobs improve the environment, but they will be high paying, interesting, and provide collective rights. This literature is built on mythologies about economics, forecasting, and technology.

Myth: Everyone understands what a green job is.

Reality: No standard definition of a green job exists.

Myth: Creating green jobs will boost productive employment.

Reality: Green jobs estimates include huge numbers of clerical, bureaucratic, and administrative positions that do not produce goods and services for consumption.

Myth: Green jobs forecasts are reliable.

Reality: The green jobs studies made estimates using poor economic models based on dubious assumptions.

Myth: Green jobs promote employment growth.

Reality: By promoting more jobs instead of more productivity, the green jobs described in the literature encourage low-paying jobs in less desirable conditions. Economic growth cannot be ordered by Congress or by the United Nations. Government interference - such as restricting successful technologies in favor of speculative technologies favored by special interests - will generate stagnation.

Myth: The world economy can be remade by reducing trade and relying on local production and reduced consumption without dramatically decreasing our standard of living.

Reality: History shows that nations cannot produce everything their citizens need or desire. People and firms have talents that allow specialization that make goods and services ever more efficient and lower-cost, thereby enriching society.

Myth: Government mandates are a substitute for free markets.

Reality: Companies react more swiftly and efficiently to the demands of their customers and markets, than to cumbersome government mandates.

Myth: Imposing technological progress by regulation is desirable.

Reality: Some technologies preferred by the green jobs studies are not capable of efficiently reaching the scale necessary to meet today's demands and could be counterproductive to environmental quality.

In this Article, we survey the green jobs literature, analyze its assumptions, and show how the special interest groups promoting the idea of green jobs have embedded dubious assumptions and techniques within their analyses. Before undertaking efforts to restructure and possibly impoverish our society, careful analysis and informed public debate about these assumptions and prescriptions are necessary.

A second paper — which is basically just a shorter version of the first one — "7 Myths About Green Jobs" is also on SSRN here.


ROTC at Harvard:

The Washington Times has a long editorial today calling for the return of ROTC to Harvard and recounting the distinguished record of military service at Harvard.

The Times also notes that the two petition candidates for the Harvard Board of Overseers, Harvey Silverglate and Bob Freedman both support the return of ROTC to campus:

Over the next few weeks, the Harvard alumni will be voting for candidates for the Board of Overseers. Two board candidates, Robert L. Freedman and Harvey A. Silverglate, have publicly backed the ROTC's return to campus. We hope alumni will cast their ballots for these two candidates and any others who support ROTC's full reinstatement.

Harvey and Bob also had an article in Forbes Magazine a few weeks back explaining the rationale for their candidacy. I know them both and think that they would be great Harvard Overseers.

Spanish University Study Questions Green Jobs.

A Spanish university study finds that the Spanish government's promotion of green jobs was extremely harmful to its economy:

1. As President Obama correctly remarked, Spain provides a reference for the establishment of government aid to renewable energy. No other country has given such broad support to the construction and production of electricity through renewable sources. The arguments for Spain’s and Europe’s “green jobs” schemes are the same arguments now made in the U.S., principally that massive public support would produce large numbers of green jobs. The question that this paper answers is “at what price?”

2. Optimistically treating European Commission partially funded data1, we find that for every renewable energy job that the State manages to finance, Spain’s experience cited by President Obama as a model reveals with high confidence, by two different methods, that the U.S. should expect a loss of at least 2.2 jobs on average, or about 9 jobs lost for every 4 created, to which we have to add those jobs that non-subsidized investments with the same resources would have created.

But there's more:

  • Overall, Spain lost nearly 113,000 jobs while creating their green jobs. Those jobs were lost mainly in "metallurgy, non-metallic mining, and food processing ..."
  • Despite a vigorous support of the green jobs policy, Spain has actually created "a surprisingly low number of jobs." Additionally, the majority (two-thirds) of the jobs created came in short-term construction, fabrication, and installation positions. A further one quarter came in administrative and marketing. Only one in ten of the jobs created were permanent positions in operation and maintenance.
  • Spain spent €571,138 for each green job created, including subsidies of more than €1 million per wind industry job.
  • Each "'green' megawatt installed destroys 5.28 jobs elsewhere in the economy. 8.99 by photovoltaics, 4.27 by wind energy, 5.05 by mini-hydro."
  • These costs are "inherent in schemes to promote renewable energy sources."
  • Comprehensive energy rates would need to be increased by 31% to repay the debt generated by subsidies to renewable energy.
  • The only way for the renewables sector to be "countercyclical" in the current economic crisis is through the provision of government subsidies. Once those subsidies are removed, the industry finds itself in a classic "bubble" condition and facing collapse.
  • The renewable sector in Spain consumes "enormous taxpayer resources. The average annuity payable to renewables is equivalent to 4.35% of all VAT collected, 3.45% of the household income tax, or 5.6% of the corporate income tax for 2007."

As a clean-coal blog notes, this echoes a paper by Andrew Morriss et al. on Green Job Myths:

  • Green jobs estimates include huge numbers of clerical, bureaucratic, and administrative positions that do not produce goods and services for consumption.
  • The green jobs studies made estimates using poor economic models based on dubious assumptions.
  • By promoting more jobs instead of more productivity, the green jobs described in the literature encourage low-paying jobs in less desirable conditions.
  • Companies react more swiftly and efficiently to the demands of their customers and markets, than to cumbersome government mandates.
  • Some technologies preferred by the green jobs studies are not capable of efficiently reaching the scale necessary to meet today's demands and could be counterproductive to environmental quality.
If the Spanish study is correct, can the US afford to spend $900,000 for every green job created and to lose 5 jobs elsewhere in the economy for every green megawatt added?

If the net costs are even a quarter as high as these Spanish estimates, the net effect of the American effort to create 5 million green jobs would be significant GDP decreases, a massive net loss of millions of American jobs, and a staggering waste of money.

Related Posts (on one page):

  1. More on the Myth of "Green Jobs":
  2. Spanish University Study Questions Green Jobs.
  3. Green Jobs: Creating a New Bubble?

Green Jobs: Creating a New Bubble?

No one can question President Obama's commitment to green jobs. He is proposing to create 5 million green jobs (about 3% of the US employed workforce) through new programs such as the Green Job Corps, the Clean Energy Corps, and the Global Energy Corps.

It is a matter of faith, not evidence, that the government is so wise that it can anticipate what green jobs will be needed in several years and train people to do them. Unless energy at least triples in price (which is entirely possible), there are likely to be few jobs for the new green-collar workforce that are mandated, not by the needs of the market, but instead by government.

Nonetheless, the leading advocate of a green economy, Vann Jones, is in the White House pressing his vision on the American economy.

In the London Times, Dominic Lawson opines:

The key to a successful, wealth-generating economy is productivity. Saving energy is what businesses have done already, because it lowers their production costs. The problem with any form of subsidy is that it makes the consumer (through hidden taxes) pay to keep inherently uneconomic businesses “profitable”. Meanwhile, diversified energy companies such as Shell, with plenty of speculatively acquired wind-farm acreage, are salivating at the plans by Obama to introduce cap-and-trade carbon emissions targets for American industry.

Obama’s energy secretary, Steven Chu, had some soothing words for US manufacturing companies that complained that the new policy will make them even less competitive with Chinese exporters, since the people’s republic has indicated that it has no intention of inflicting a similar increase in energy costs on its own producers. He suggested that America might have to introduce some sort of “car-bon-intensive” tariff on Chinese goods. One of China’s envoys, Li Gao, immediately retorted that such a carbon tariff would be a “disaster”, since it could lead to global trade war.

Actually, Mr Li is right: and this is how an achingly fashionable and well-intentioned plan to create “millions of new green jobs” could instead end up making the global economy even sicker than it is already.

The London Times article in effect asks: Are green jobs the new sub-prime (tip to Instapundit)?

Further, do efforts to create green jobs even work to create more jobs than they destroy?

Same Day Audio of Arguments in Voting Rights Act Case:

C-Span reports that the Supreme Court will provide same day audio of the upcoming oral arguments in the voting rights act case, Northwest Austin Municipal Utility District v. Holder. Details here.

Podcast on Nordyke v. King:

Right here, from I talk about the case with Jon Caldara, and explain selective incorporation to a non-lawyer. 16 minutes.


[Eugene Kontorovich, guest-blogging, April 20, 2009 at 7:31pm] Trackbacks
Somali Pirate in New York on Tuesday

The pirate captured by the Navy last week in the rescue of the Maersk Alabama will apparently be prosecuted in federal court in New York. It will be a fascinating case (if he doesn't plead guilty): perhaps the first piracy prosecution in the United States since the late 19th century, in the first prosecution of a foreigner in a much longer time.

He may be charged under the federal piracy statute, which carries a life sentence for piracy against US vessels. However, he may also be charged under 18 U.S.C. § 2280, which codifies the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the “Maritime Safety Convention”). That treaty was drafted as a response to the Achille Lauro hijacking by Palestinian terrorists in the mid-1980s. The treaty criminalizes acts of violence on or against international shipping, which is a broader range of conduct than piracy. While it was intended as a response to international maritime terrorism, it could just as well be used against piracy itself.

There are a few reasons the Justice Department might choose to act under the treaty as well. They may wish to breathe life into the rather moribund treaty, which has once been used as a basis for prosecution anywhere in the world. It could be useful in other piracy cases that do not fit the technical definition of piracy, i.e., where the attack occurs in Somali territorial waters. (Ruth Wedgewood argues the federal piracy statute needs to be updated to explicitly include waters within a nation’s exclusive economic zone, but the Maritime Safety Convention clearly applies an exclusive economic zone seems to obviate the need for such reform.)

The prosecution would not be the first American case 18 U.S.C. § 2280. As I describe in the forthcoming International Decisions: United States v. Shi, 103 AMERICAN JOURNAL OF INTERNATIONAL LAW __ (July, 2009), in a case finally resolved by the Ninth Circuit last year, the statue was used in a universal jurisdiction prosecution of a Chinese cook on a Seychelles-flagged fishing trawler who went postal, killed the officers and briefly took over the vessel. The defendant was not charged with piracy because under international law it does not include mutiny and other true internal disturbances on a ship. However, the Ninth Circuit in a fit of romanticism erroneously invoked piracy law on appeal.

Taking into New York and trying him will almost certainly cost more than the $1 million average ransom for pirated vessel. This doesn’t make it a bad idea, if it deters subsequent pirates. That depends in part on whether there is capacity to prosecute Pirates on a large scale. If this is a one-off thing, it will deter no one.

While I have written about the likely difficulty of prosecuting pirates, I anticipate this case to be a relatively straightforward one. The crime in question was at the center of global attention for a week. This guy was likely filmed by several Navy drones, aircraft and other assets. And given the groundbreaking nature of the case, I'm sure vast efforts will be taken to get it right.

But this is just one pirate. Hundreds have been captured and released by the NATO-lead coalition. It is not clear if this prosecution could be replicated on such a scale, and in many less-well documented cases.

One thing is certain. The defendant has won second prize in the piracy lottery. So far, deterrence is not on the horizon. From the moment he was captured by US forces, the alleged pirate's life expectancy went up by decades. In the coming months, years and maybe decades, he is likely to get the best nutrition and accommodation he or anyone he knows has ever had. Given that he did not kill or injure anyone, a life sentence is very unlikely. If he serves 15 years in a federal prison and is then allowed to remain in America, he will likely come out the healthiest, most educated and perhaps oldest former Somali pirate around.

Related Posts (on one page):

  1. Somali Pirate in New York on Tuesday
  2. Pirate Prosecution NIMBY: Catch-and-Release or the Kenya Option

The New Meme: Fascism.

Last week, I was sensing an emerging meme, journalists arguing that opponents of big government should not talk about fascism — or as Jon Stewart put it: "drop the F-bomb." I saw CNN making a big deal about it in several stories. If this meme were being spread by the White House or by Journolist (and perhaps even if it weren't), I expected to see a lot more about it in the mainstream press this week.

Thus, on Saturday, I posted three reminders of similar rhetoric used in recent years to criticize George Bush.

As if on cue, the New York Times today published a fairly low-key online column by CNBC's John Harwood (who has been very sympathetic to the Obama agenda) on the dangers of the right using the term fascist:

“Rhetorically, Republicans are having a very hard time finding something that raises the consciousness of the average voter,” said Saul Anuzis, a former chairman of the Michigan Republican Party who recently lost a bid to became national party chairman.

Workaday labels like “big spender” and “liberal” have lost their punch, and last fall, Senator John McCain of Arizona and Gov. Sarah Palin of Alaska gained little traction during the presidential campaign by linking Mr. Obama’s agenda to socialism.

So Mr. Anuzis has turned to provocation with a purpose. He calls the president’s domestic agenda “economic fascism.”

“We’ve so overused the word ‘socialism’ that it no longer has the negative connotation it had 20 years ago, or even 10 years ago,” Mr. Anuzis said. “Fascism — everybody still thinks that’s a bad thing.”

Whether fellow Republicans think that is factually appropriate or strategically wise is another question.

Meanwhile, Jonah Goldberg evaluates the Treasury Department's efforts to control the banks without actually nationalizing them: "It's not socialism. It's corporatism."

It is interesting that Harwood depicts the choice to use the word fascist as a strategic choice to pump up the volume, which it may be for some. For other commentators, such as perhaps Larry Kudlow, they might be straining not to deem as "fascist" proposals that they would call fascist if that term were not so politically charged.

Holocaust Remembrance Day -- My Own Family's Story: David posted below about his relatives who were killed in the Holocaust. I have thought many times about posting about my own family's experience, but haven't until now. My father is a concentration camp survivor, and in my case my nearest relatives who were killed are my grandparents and my uncles. Here is their story.

  My father was born in 1928 under the name Aronek Kierszkowski in the town of Suwalki, Poland, a town near the border with East Prussia and Lithuania. My grandfather Oszer was one of the wealthiest men in town, as he owned a prosperous import and export fur business. When the Nazis invaded Poland in September 1939, my father went to Warsaw to try to store his furs for the duration of the war. My grandmother, my dad, and my three uncles became refugees, and they fled to Wilno (now called Vilnius) to escape the occupation. My grandfather was caught and was believed to have been killed in an action at Tawniki, near Warsaw.

  The Nazis occupied Wilno soon after they attacked the Soviet Union in 1941, starting the two year period of the Vilna Ghetto. My father lived through that period in the Vilna ghetto with his mother and three brothers until the ghetto was finally liquidated in 1943. Men and older boys were sent to labor camps; women and young children were sent to the gas chambers. My father, then 15, was sent with his older brother Dudek to the labor camps. My grandmother Riva, and my father's two younger brothers, Maksik (then 12 years old) and Isaczek (then 5), were sent to Auschwitz and gassed.

  My father and his older brother Dudek worked in labor camps in Estonia during 1943-44. Dudek was shot in the fall of 1944, leaving my father without any relatives in the camps. At that point, advances of the Soviet Army led the SS Einsatz Kommandos to commandeer three ships from the German Army in Estonia, which he packed with Jewish prisoners — including my father — and camp guards, and sailed for Danzig. My father ended up in the winter of 1944-45 in the concentration camp Stutthof, near the port of Danzig.

  In January of 1945, the SS started to evacuate Stutthof to escape the advancing Soviet forces, and my father was sent along with thousands of other prisoners on the infamous death marches westward. The death marches ended when the Soviet troops caught up with the SS and their prisoners in a camp near near Rieben in West Prussia. My father was liberated on March 10, 1945, when Russian army scouts entered the camp near Rieben. It was one day past my father's 17th birthday. He was the only member of his immediate family to survive the war.

  From there, my father eventually made his way to West Berlin, and then to West Germany, where he lived in the Displaced Persons camps for a few years near Munich. He came to the U.S. in 1954 after waiting for the Korean War to end (he had seen enough war, and didn't want to get drafted). At that point, he changed his name from Aronek Kierszkowski to Arnold Kerr. He has lived in the U.S. ever since, and last month he celebrated his 81st birthday.

  Postscript: For those interested in the full story as told by my father, instead of the brief and sanitized blog post version, it was a few chapters of a book by James Charles Roy, The Vanished Kingdom: Travels Through the History of Prussia. Chunks of it, including parts of my father's story, are available for free via Google books. Warning: My dad is not one to pull punches, and it's pretty graphic. Gripping, but graphic.

30th Anniversary of Jimmy Carter's Battle With the "Killer Rabbit":

Today is the 30th anniversary of a minor, but telling historical event: President Jimmy Carter's fight with a "killer rabbit":

On a fishing trip in Plains, Georgia, President Carter had an encounter with a "swamp rabbit". This seemingly trivial event was seized upon by the press and became a sort of Rorschach test of the Carter presidency: reporters and commentators saw in this story whatever they wanted to see in Carter's administration. Jody Powell, Carter's press secretary, described the affair in his 1986 book The Other Side of the Story:

It began late one afternoon in the spring of 1979. The President was sitting with a few of us on the Truman Balcony. He had recently returned from a visit to Plains, and we were talking about homefolks and how the quail were nesting and similar matters of international import.

Suddenly, for no apparent reason — he was drinking lemonade, as I recall — the President volunteered the information that while fishing in a pond on his farm he had sighted a large animal swimming toward him. Upon closer inspection, the animal turned out to be a rabbit. Not one of your cutesy, Easter Bunny-type rabbits, but one of those big splay-footed things that we called swamp rabbits when I was growing up.

The animal was clearly in distress, or perhaps berserk. The President confessed to having had limited experience with enraged rabbits. He was unable to reach a definite conclusion about its state of mind. What was obvious, however, was that this large, wet animal, making strange hissing noises and gnashing its teeth, was intent upon climbing into the Presidential boat.

The President then evidently shooed the critter away from his boat with a paddle. The scene was captured on film by a White House photographer.

The incident might have died of natural causes but for the fact that Powell himself later passed the story along to the press:

Several months later I was chatting with Brooks Jackson, one of the White House correspondents for the Associated Press, over a cup of tea, as I remember. For reasons that I still do not fully understand, I told him about the President and the rabbit. I was the one who leaked the killer rabbit story.

Although an experienced reporter, Brooks also failed to appreciate the significance of what he had heard. He did not rush to file an "urgent" story. In fact, he continued the conversation for some period of time and several more cups of tea. Not until the next day did he get around to sending this gripping account out over the wires to a waiting public.....

We were soon corrected. The Washington Post, exercising the news judgement that we in the White House had come to appreciate so keenly, headed the piece "President Attacked by Rabbit" and ran it on the front page. The more cautious New York Times boxed it on page A-12. That night, all three networks found time to report the amazing incident. But that was just the beginning....

Despite the fact that Carter succeeded in fighting off the rabbit, the incident was seem by many as a symbol of the fecklessness of his administration. I'm no great fan of President Carter's. But I don't think he was as bad a president as many people think. For example, he deserves credit for his support of airline and trucking deregulation, for initiating American aid to groups resisting Soviet rule in Poland and Afghanistan, and for assisting in the negotiation of the 1979 Israeli-Egyptian peace treaty. Carter also made many mistakes of course, and I'm glad he was defeated in 1980. To a large extent, however, he was the victim of extremely bad luck. His term in office coincided with several catastrophes that he mostly didn't cause, but took much of the political blame for: a deep recession, the fall of the Shah in Iran, and the Soviet invasion of Afghanistan, among others. Carter's downfall epitomized the tendency of voters to blame the incumbent president for anything bad that happens on his watch, regardless of whether he caused it. Of course, Carter was not wholly blameless in these cases. His responses to the recession and the Iran hostage crisis were almost certainly far less than optimal, and tended to make a bad situation worse.

The "killer rabbit" incident was just one of many examples of Carter's extremely poor luck during his presidency. Of course, Carter's press secretary probably made the situation worse by telling the story to a reporter. It was a case of bad luck badly handled. In that sense, it really did epitomize the overall tenor of Carter's term in office.


Princeton Panel on Legal Blogging:

Tommorrow, I will be speaking at a panel on "The Art of Legal Blogging" at Princeton University. The other panelists will be Lyle Denniston of SCOTUSblog and Alex Wohl of ACSblog. The panel will be held at 4:30 in Robertson Hall, Rm. 002.

I will try to focus my remarks on the contribution that academic lawbloggers can make to public debate. Our main comparative advantage, in my view, is our ability to bring to bear our expertise on particular areas of law and public policy. We usually cannot compete with the traditional media in breaking news stories; nor are our talents likely to be effectively used if we simply cheer on a particular political party or candidate. At the same time, we have to present our knowledge in such a way that it will be accessible to nonexpert readers. Also important, but very difficult to achieve, is the ability to reach out to readers who don't already share our views.


Dartmouth Chairman Responds:

On Friday, the Dartmouth Chairman of the Board Ed Haldeman responded to my open letter of last week.

His statement simply does not respond to the concerns that I raised in my letter. Here's what I said: "There you have it: I was denied reelection either because of the content of my speech or for some unnamed reason for which I received no notice or opportunity to respond."

In his statement, Haldeman describes the process of trustee review in detail: an initial meeting with the Chairman and the head of the governance committee and an opportunity to speak to the full board and address the issues that the trustee is aware of. I was aware, of course, that my controversial speech would be an issue and I took time before the board to express my regret for the harshness of the language and content in the speech. At that point, however, I left the room and the board went into a secret executive session where new matters and charges can be raised to which I was given no opportunity to respond.

So my central point remains unanswered by Haldeman's letter: either they threw me off the board for the content of my speech--the only tangible issue I knew of and had an opportunity to address--or for some other reason arising for the first time in secret executive session of which I was not aware and to which I could not respond.

In a house editorial on Friday entitled "Wrongful Termination" the Editors of The Dartmouth (who have been far from fans of the petition trustees' efforts) wrote:

Assuming that no egregious act remains undisclosed (and there has been no indication that this is the case), Zywicki’s removal disregards the will of the alumni who put him on the Board, and contradicts the democratic manner in which alumni elect trustees.

Dissenting opinions are essential to the operation of any governing body. While Zywicki may have behaved unprofessionally, the public reprimand issued by the Board was sufficient punishment. It is one thing to reprimand a trustee for making statements against the College in a public forum, but to remove dissenting opinions from the boardroom is to undermine the will of the alumni who voted in support of those very views.

I remain as puzzled at the editors of The Dartmouth about the basis for this action. I am not aware of any "egregious" acts that would justify the board majority's act. If any such allegations arose, it happened behind closed doors in executive session after I was given an opportunity to address the board. The fact that there are those on the Board who apparently believe this to be a fair and efficient process says a lot about the judgment and insularity of the Board itself. Note, too, that this was one of the first decisions taken by a newly expanded Board--one for the first time since 1891 sitting in violation of a longstanding compact between Dartmouth alumni and the Board, under which the alumni were empowered to elect half of the non-ex officio trustees. Unless they chose to recuse themselves, a new crop of appointees who had never worked closely with me, were evidently involved in the decision as well.

T.J. Rodgers provides a glimpse inside the closed-door process (without revealing details) in a story in The Dartmouth this morning:

Trustee T.J. Rodgers ‘70, who like Zywicki was nominated to be a candidate for the Board via petition and was successfully reelected at the April meeting, compared the reelection process to a “witch-hunt trial” and said it was “an affront to due process” in an e-mail to The Dartmouth.

“[Zywicki] was ejected by a secret vote — he was not allowed to know the vote count or even the reasons behind his ejection,” Rodgers said in the e-mail.

Rodgers added that he believes the decision not to reelect Zywicki was “an embarrassment for the Board.”

“The effect of Todd’s ejection has been to warn me and any other trustee likely to speak his or her own mind to watch our step,” he said in the e-mail.

With respect to the issue of free speech, other trustees were reelected at the same board meeting who made public statements that could be interpreted as harmful to Dartmouth. Consider the infamous statement by charter trustee Brad Evans that "a position on the Board of Trustees was too valuable from a financial standpoint to give to a student or a young alumnus/a - that spots on the Board should be reserved for alumni who can donate large amounts of money to the college. [Evans] also noted that one of the major problems of petition candidate success was that they took spots away from large donors."

Evans was among those reelected at the same meeting that bounced me. Let me make clear that I believe that Evans has every right to express his views of what he considers good for Dartmouth: for him, apparently it's denigrating the input of ordinary graduates and selling board seats to the highest bidder. To the best of my knowledge, Evans has never publicly apologized for his statements. Nonetheless, I voted for his reelection because even though he made public statements with which I strongly disagree and which I believe to be harmful to the College, he wasn't making College policy--he was expressing his own views. That's what independent directors should do. And it is a principle I have applied equally.

Let me stress that I respect Chairman Haldeman highly: he is an ethical and truthful man and has been a fair and efficient chairman. I don't blame him for this act by the majority of the board. The board's rules establish a kangaroo-court procedure followed by a vote by a secret ballot. The final vote tally is not announced. Ed delivered the outcome of the board's vote to me in private and offered me the opportunity to pretend like I had resigned rather than having been voted off (I appreciate the genuineness of his offer even though I unhesitatingly declined it). Other board members suggested resignation as well, but in a less-charitable spirit. I appreciate Ed's steadiness and effort to lead Dartmouth toward a fresh start, a goal that I share, but apparently not a majority of the board. In Joe Malchow's accurate words, "Call the dismissal of Professor Todd Zywicki the most cowardly post-armistice blindsiding in the history of gentlemanly warfare."

Knowing Ed Haldeman, I can't imagine that he is trying to mislead the Dartmouth community, although his letter implies that I had full notice and opportunity to address charges made against me. If so, then the only issue that I knew of was my speech. If no new issues or charges arose in the board's closed session, then Chairman Haldeman can clear that up easily by making a statement to that effect. He needn't go into detail of any charges, but just make a public statement as to whether new charges arose and whether I was given an opportunity to respond. Instead, he simply repeated his bland description of the process, leaving me as puzzled as ever.

Free speech and governance transparency were the two issues that motivated me to run for trustee in the first place. Yet here we are, four years later, and a majority of the Dartmouth Trustees still can't bring themselves to embrace those concepts.

Holocaust Remembrance Day:

Tonight marks Holocaust Remembrance Day, so I thought I'd recount the little I know about the closest relative I know of who was murdered, my great-grandmother's sister, Chana Basia (Anna) (Tetenbaum) Bogusz. Chana Basia was the daughter of Hersk (Gersk, Herschel) Tetenbaum and Ester Malka Rubensztejn Tetenbaum of Szczuczyn, Poland. (Ester's brother joined the Russian army and moved to Finland, and one of his descendants has created a remarkable family genealogy website.)

The Tetenbaums were a reasonably prominent and well-to-do family in town, with many rabbis in the family. Hersk and Ester Malka had ten children. The first eight were "blue babies" and died in childbirth. The ninth was my great-grandmother, Hinda Meita. The tenth was Chana Basia, who was born in January 1880. According to what my grandmother told me, the delivery didn't go well, and Chana Basia's life was in danger. Ester Malka prayed aloud to God, and asked God to take her instead of her baby. And that's what God did.

Hersk got remarried to a woman named Zelda Jozefson, who was very kind to her step-daughters, and had seven more children with her. After he died in 1903, Zelda and her children gradually left for America, where the sons opened a successful Fortunoff's-type store (my father remembers his cousin going there for her wedding needs). Zelda's brother married my great-grandmother. He died in 1905, and Hinda Meita and her five daughters gradually emigrated to the U.S.

Meanwhile, Chana Basia married a man named Mosko (Max) Bogusz in 1900, and eventually moved with him to Braunschweig, Germany. They had two daughters, Sara Zalka (Sonja) Szpektor and Estera Malka (Esther) Pressburger. Chana Basia and Moszk were deported and murdered in Treblinka circa 1942.

What Now for the Question Whether the Second Amendment is Incorporated Against State and Local Governments?

(1) Even though the County won on the bottom line (its ordinance was upheld), it can still ask the Ninth Circuit to rehear the case en banc, in order to reconsider whether the Second Amendment is incorporated. What's more, other judges can by themselves ask for a rehearing en banc. If a panel decision is seen by some judges as containing an important legal error (or even as resolving a question that's so important that it needs to be reconsidered by more judges), the judges can vote for rehearing en banc in order to correct that error, never mind whether the bottom line was right. The judges, after all, would be laboring under the reasoning (and not just the bottom-line result) of this panel decision for years to come, since judges on one panel are supposed to be bound by the decisions of previous panels; they thus have an interest in making sure that the panel decision is right in its reasoning.

This having been said, I expect that rehearing en banc isn't very likely. First, such en banc review is always hard to get. Second, here at least two of the Democrat-appointed judges — Pregerson and Gould — have expressed their views that the right to bear arms should indeed be incorporated, Gould both here and in the Silveira v. Lockyer case, and Pregerson in Silveira. (Two other Democrat-appointed judges, Reinhardt and Fisher, stated in Silveira that "One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser" — the cases often cited as rejecting incorporation of the Second Amendment — "rest on a principle that is now thoroughly discredited"; but those judges also took the view that the Second Amendment only secured a collective right, and it's not clear whether they would reconsider their position now, following Heller.) Three Republican-appointed judges, Kozinski, O'Scannlain, and Kleinfeld, are likewise on the record as supporting incorporation.

For there to be a majority — 14 of the 27 active judges — for taking the case en banc, all of the 16 Democrat-appointed Ninth Circuit judges other than Pregerson and Gould would have to vote for en banc, or each Democrat-appointed defector would have to be balanced by a Republican-appointed vote for en banc. That's not impossible; some conservatives do indeed support gun controls, just as some liberals support gun rights. But it doesn't seem very likely. (Judge Alarcon, as a senior judge, can't vote on the en banc.)

(2) What about the Supreme Court? The county can't ask the Supreme Court to take the case, because it won below on the bottom line, which bars a certiorari petition (though not an intra-Ninth-Circuit suggestion for rehearing en banc). And if the gun shows petition for certiorari, it's not clear that the Court would want to take the case, since the issue on which they would be petitioning — chiefly the scope of the Second Amendment as applied to government property — is one on which there isn't yet a split among the circuits.

(3) But don't forget the nunchakus! The petition in Maloney v. Cuomo, a Second Circuit case decided January 28, 2009, is due in a bit over a week. [UPDATE: The filing deadline in Maloney has just been extended to June 26, and the name for the case in the Supreme Court is now Maloney v. Rice; thanks to Benjamin Wolf (Elliot Schlissel N.Y. Law Blog).] Maloney, who lost in the Second Circuit both on the incorporation question and on the bottom line, is certainly entitled to petition, and he's sure to stress the now-existing split between the circuits.

As I blogged earlier, my guess is that the Supreme Court would prefer to consider the incorporation question in a case that involves more common facts, and that doesn't raise the additional legal question of whether nunchakus qualify as "arms" for Second Amendment purposes. Moreover, the incorporation issue will surely arise in other circuits, mostly in cases involving more traditional arms, so the Court could decide to wait until then.

On the other hand, there is indeed a split on the incorporation question now, and the Court could certainly agree to consider only that aspect of the case, and remand to the Second Circuit for more consideration of the splitless and underexplored question of which non-firearms qualify as "arms." This will push into the background the exotic nunchakus, and will instead allow the Court to focus on the common and important question of whether the Second Amendment applies, via the Fourteenth, to state and local governments. Maybe four of the Justices will thus conclude that there's no time like the present to decide the incorporation issue, and will therefore agree to grant certiorari in Maloney (though not Nordyke).


Why the Gun Show Organizers Nonetheless Lost their Case,

even though the Ninth Circuit panel found that the right to bear arms generally applies to state and local governments:

(1) The ordinance that barred possession of guns on county property did not materially burden people's ability to defend themselves on private property, especially in the home.

(2) The government generally has the power to restrict the exercise of constitutional rights on government property, citing the Court's abortion rights cases. Probably the strongest such case on the county's side, which the panel didn't cite, was Webster v. Reproductive Health Servs. (1989), which upheld a state law banning "the use of public employees and facilities [including any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivisions thereof] for the performance or assistance of nontherapeutic abortions."

(3) Heller's suggestion that the government may ban "the carrying of firearms in sensitive places such as schools and government buildings" also applied to "the open, public spaces the County's Ordinance covers," including county parks and the fairgrounds. The panel suggests that "The Court listed schools and government buildings as examples, presumably because possessing firearms in such places risks harm to great numbers of defenseless people (e.g., children). Along the same lines, we notice that government buildings and schools are important to government functioning."

It's not clear exactly what test the panel was applying for deciding what constitutes a "sensitive place[]," especially since county parks and the fairgrounds are probably not as "important to government functioning" as are schools (running which has long been seen by American state constitutions as a core government function) and many government buildings. Is it that all "prohibiti[ons on] firearm possession on municipal property," including public streets and sidewalks — i.e., total carry bans, including in one's car or on one's person on the sidewalk — are constitutionally permissible? (Note that while the government generally has the right to restrict the exercise of many constitutional rights, including not just abortion rights but free speech rights, in many government buildings, it generally is substantially constrained by many provisions — such as the First and Fourth Amendments — on public streets and sidewalks.)

Would the "sensitive places" exception cover only prohibitions in places "where high numbers of people might congregate" (with the threshold perhaps higher than the number of people that would usually be present on a normal city sidewalk)? Would state and federal parks in the sense of Yosemite and the like, as opposed to small city and county parks, also qualify? What about people's apartments in public housing projects, which are "municipal property" but not themselves places where many people congregate?

For more on these questions, you might have a look at PDF pages 31-34, 85-89, and 72-80 of my forthcoming UCLA Law Review article on implementing the Second Amendment. I'm inclined to say that the panel's general analysis on this guns-on-public-property is considerably more cursory and less clear than it ought to be — though I'd also say that, for reason 1 noted above, coupled with aspects of reason 2, the ordinance would be clearly constitutional when applied to selling guns on government property, and displaying them for sale there.


Cyber Civil Rights, Anonymity, and Free Expression:

Some of you may be interested in an online symposium that was recently held (and in which I participated) at the Concurring Opinions blog, focused on Danielle Citron's recently-published paper on "Cyber Civil Rights." Citron's point (from the Abstract of her paper) is:

Today's cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond.

General criminal statutes and tort law proscribe much of the mobs' destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim's employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

What I found most interesting was not the paper itself, but the discussion about the paper, which I found disturbing and a little depressing. As I put it in my contribution to the symposium:

What disturbed me was neither the manner in which the discussion took place (which was civil and informative), nor Prof. Citron's proposals (which are similarly thoughtful and provocative, though I am obviously not a big fan of them), but rather that the values of free expression seem to have so little purchase within this community of intelligent, thoughtful, and reasonable people -- and if it's got little purchase here, my hopes for it elsewhere are correspondingly diminished. Reading the various comments, one gets an impression of a First Amendment that is more, but not much more, than a nuisance standing in the way of progressive social legislation.


Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case:

It seems worth quoting, especially because Gould was one of the two Democrat-appointed judges on the panel (paragraph breaks added):

I concur in Judge O’Scannlain’s opinion but write to elaborate my view of the policies underlying the selective incorporation decision.

First, as Judge O’Scannlain has aptly explained, the rights secured by the Second Amendment are “deeply rooted in this Nation’s history and tradition,” and “necessary to the Anglo-American regime of ordered liberty.” The salient policies underlying the protection of the right to bear arms are of inestimable importance. The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security. We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.

Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.

Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. All weapons are not “arms” within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense. Also, important governmental interests will justify reasonable regulation of rifles and handguns, and the problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment.

The panel opinion, which Judges Gould and Alarcon fully joined, also says something similar:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.


Second Amendment Incorporated by Ninth Circuit Panel, in

Nordyke v. King. For those who count such things, the unanimous panel consists of a Reagan appointee (Judge O'Scannlain, who wrote), a Carter appointee (Judge Alarcon), and a Clinton appointee (Judge Gould).

The panel avoids the late 19th-century cases United States v. Cruikshank (1876) and Presser v. Illinois (1886) by reading them as simply foreclosing the direct application of the Second Amendment to the states, or the application of the Second Amendment to the states via the Privileges or Immunities Clause. The panel instead follows the Supreme Court's "selective incorporation" cases under the Due Process Clause, and concludes that the right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'" And in footnote 16 it points out that

Because, as Heller itself points out, 128 S. Ct. at 2813 n.23, Cruikshank and Presser did not discuss selective incorporation through the Due Process Clause, there is no Supreme Court precedent directly on point that bars us from heeding Heller’s suggestions. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls ....”). But see Maloney v. Cuomo, 554 F.3d 56, 58-59 (2d Cir. 2009) (concluding that Presser forecloses application of the Second Amendment to the states).
(I should note that many scholars view Due Process Clause incorporation as historically unfounded, but take the view that the Privileges or Immunities Clause was originally understood as incorporating nearly all of the Bill of Rights against the states; but that is not the view the Supreme Court has taken.)

This sort of "fundamentalness" reasoning in naturally mushy — as it has been throughout the Court's selective incorporation cases — but here's roughly how the panel goes through it: (1) It points to evidence that the right was seen as very important by the Framers, and concludes, "This brief survey of our history reveals a right indeed 'deeply rooted in this Nation’s history and tradition.' Moreover, whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight."

(2) It points to continued support for the right from the Framing on, noting among other things that 44 state constitutions contain a right-to-bear-arms provision.

(3) It particularly points to the support of the right, including its self-defense component, around the time the Fourteenth Amendment was ratified.

Note that the better articulation of the test the panel actually applied was probably whether the right is "deeply rooted in this Nation's history and tradition" (citing Glucksberg), not whether it's "necessary to an Anglo-American regime of ordered liberty." Among other things, the Anglo- half of "Anglo-American" abandoned the right decades ago, and it's pretty clear that many of the rights that have indeed been incorporated (such as, for instance, the privilege against self-incrimination) aren't strictly necessary to our regime of ordered liberty. But that criticism would equally apply to many of the Court's selective incorporation cases, which probably also followed the "deeply rooted" test even if they didn't articulate their reasoning that way.

The panel's reasoning begins by pointing to the Framing Era sources

Thanks to Alice Marie Beard for the tip. Will blog more as soon as I can carefully read the opinion.


Laws That Ban Nonlethal Weapon Possession by Felons:

(As before, for the footnotes and for the other parts of the argument, please see the full Stanford Law Review draft.)

Felons are generally barred from owning or carrying a firearm. This law may also deter firearm possession by people who live with a felon. Connecticut, Florida, Minnesota, New Hampshire, Pennsylvania, and Virginia -- plus of course the general no-stun-gun jurisdictions -- add to this a ban on felons’ possessing stun guns or having them in their control. Florida, Massachusetts, New Jersey, New York, and Portland (Oregon) ban felons’ possessing or having control over irritant sprays.

Yet felons need self-defense tools, too. They may need self-defense tools more than the average nonfelon does: Being a felon dramatically hurts your career prospects, which means you’ll likely have to live in a poorer and therefore on average more crime-ridden part of town. And the legal bar on felons’ possessing firearms makes stun guns even more valuable to them.

Some felons have committed the sort of violent crimes that might make us reasonably worry that they are especially likely to misuse stun guns or irritant sprays, either in deliberate crimes or in impulsive crimes motivated by anger or revenge. But many felons have been convicted only of nonviolent crimes. And while most nonviolent felons have generally shown a willingness to disobey the law, it seems unlikely that this willingness will map into a substantially greater risk that they will violently misuse nonlethal weapons. This is especially when the past felony is fraud, embezzlement, and similar crimes that are rarely accompanied with violence. (Even embezzlers may sometimes be tempted to kill, when someone is about to uncover their crime. We might therefore worry that if a convicted embezzler returns to a life of embezzlement or fraud when he gets out of prison, he might pose a higher risk of misusing deadly weapons. But it’s unlikely that he will misuse nonlethal weapons to avoid being caught again, because using a nonlethal weapon will generally only add to a criminal’s punishment rather than making the criminal harder to catch, especially when the criminal has already been identified, which is likely the case for repeat-offender embezzlers or defrauders who are about to get arrested.)

It thus seems to me that at least nonviolent felons should generally be allowed to possess stun guns and irritant sprays, and just as they are allowed to possess stun guns in most states. The precise line between which felons are dangerous enough that we need to deny them stun guns and which are not might be hard to draw. But at least for many nonviolent felonies, the case for denying felons the tools needed for effective self-defense seems quite weak.

* * *

To come shortly: The constitutional analysis of nonlethal weapon bans (and not limited to felons or minors), under the right to bear arms, the right to defend life, and the state constitutional and statutory rights to religious exemptions.


The Government Becomes a Loan Shark.

When I first heard rumblings in the Wall Street Journal and elsewhere that the government would not allow big banks to repay their TARP loans, I thought it was either a genuine misunderstanding or an unfair partisan canard against the Obama administration. But the stories continue in the press and Tim Geithner has not done what he needs to do to kill this story: publicly announce that almost any bank that wants to pay back the TARP can bring a "check" to him personally.

It used to be that when you borrowed money from the mob, you could almost never get free. Once the mob got its hooks into you, you found that they owned you.

Now instead of the mob, it's the federal government that won't let you free, even if you want to pay off your loan with interest.

From my vantage point, this appears to be a naked power grab by the government, trying to get more and more of private enterprise within state control. This shift in government policy should be resisted vigorously. The TARP loans, after all, purported to be loans, not fraudulent credit scams. In Congressional hearings, the legislators certainly wanted the funds paid back as promptly as possible.

The latest press report is in the Financial Times, with analysis at Legal Insurrection (via Instapundit):

The Financial Times reports that banks and other financial institutions which received TARP funds may not be allowed to repay the loans. Yes, that is correct:

Strong banks will be allowed to repay bail-out funds they received from the US government but only if such a move passes a test to determine whether it is in the national economic interest, a senior administration official has told the Financial Times.

“Our general objective is going to be what is good for the system,” the senior official said. “We want the system to have enough capital.”

I understand that there are systemic issues as to liquidity, but I don't recall any discussion when TARP passed that the government would not allow the loans to be repaid. The original purpose of TARP was to rescue failing financial institutions and stabilize the housing market by using federal funds to buy bad mortgages; and then TARP was changed to provide direct investment into financial institutions in order to stabilize balance sheets and provide liquidity.

According to the Financial Times article, the purpose has morphed yet again, this time into a recession management tool:

The official, meanwhile, said banks that had plenty of capital and had demonstrated an ability to raise fresh capital from the market should in principle be able to repay government funds. But the judgment would be made in the context of the wider economic interest. He said the government had three basic tests. It needed first to “make sure the system is stable”. Second, to not create “incentives for more deleveraging which would deepen the recession”. Third, to make sure the system had enough capital to “provide credit to support the recovery”.

Something is wrong here. This is taxpayer money, to the tune of $246.73 billion, handed out to banks to avoid a banking system collapse. That collapse, if it ever were a real threat, no longer is a threat. If this were a consumer loan, the banks which received the money could cry fraud:

JPMorgan Chase Chief Executive James Dimon said Thursday that his firm is eager to return the $25 billion they've received from the government, and will do so as soon as possible.

"We could pay it back tomorrow," Dimon told reporters Thursday morning. "We're waiting for guidance from the government."

The justification for refusing to take the funds back is that the administration wants more lending. But maybe the problem is not a lack of liquidity, but a lack of credit-worthy borrowers. If we force banks to keep the money, the next step will be to require banks to lend the money by lowering credit standards, which is exactly the policy which got us into this problem in the first place. And to the extent the banks want to remove executive compensation restrictions to keep personnel, forcing the banks to keep the money and the restrictions may feel good, but it won't get banks to lend.

U.S. Supreme Court Agrees to Hear "Crush Video" Free Speech Case,

as Jonathan Adler had predicted. Here's my summary and analysis of the case from when the Third Circuit decided it en banc:

The relevant statute, 18 U.S.C. § 48, criminalizes (a) "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce," though with an exception for (b) "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

"[D]epiction of animal cruelty" is defined in (c) to include "any visual or auditory depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the [jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the [jurisdiction]." This means that it's a federal crime to distribute videos of cockfighting or dogfighting in, say, California (assuming the depictions lack "serious ... value") even if the cockfighting or dogfighting was legal in the place (say, Puerto Rico or Japan) in which the video was created.

The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens; and it does indeed seem to cover such videos, assuming the relevant state law bars the underlying conduct (often yes as to killing kittens, often no as to killing insects). Don't ask me why people would want to watch this stuff, but apparently some get their jollies this way.

But the statute is written much more broadly than that. On its face, the statute would also punish, depending on how judges and juries interpret "serious religious, political, scientific, educational, journalistic, historical, or artistic value" (emphasis added):

  • A TV program showing foreign bullfights, which might be legal in the country in which they're taken, but illegal in at least some states in which the program is shown.

  • A magazine with photographs of people illegally killing endangered species in a foreign country.

  • A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).

One can certainly argue that all the above has such serious value, but at least as to the first item and maybe as to the others, some factfinders might conclude otherwise — the test is quite subjective, and some jurors or judges might well say "this bullfighting scene has no serious value; it's just aimed to shock, titillate, and get ratings."

Note also an important difference between this clause and the third prong of the obscenity test, from which the clause is borrowed: clause (b) doesn't say that the work has to be judged "taken as a whole." This means the "serious value" exemption under this law may well be a smaller safe harbor than the "serious value" exemption under obscenity law.

The statute doesn't fit within the existing obscenity or incitement exceptions. President Clinton's signing statement tried to cabin the statute by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex"; that at least brings it closer to the obscenity exception, though not entirely within it. But the signing statement isn't part of the law, and is certainly not binding on later administrations.

The real question is whether the child pornography exception — the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created — should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,

  1. production of cruelty videos can be done in secret, but the distribution has to be relatively public;

  2. a ban on production will thus be very hard to enforce;

  3. so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,

  4. to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.

The argument against extending the child pornography exception would be:

  1. The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.

  2. The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.

  3. The harm that the distribution of this speech causes — indirectly furthering animal cruelty — is much less severe than the harm of indirectly furthering sexual exploitation of children. (The legal system itself embodies such a judgment — child sexual abuse is a very serious crime, generally punished much more severely than animal cruelty. Cockfighting, in particular, is not even a crime in Puerto Rico, though Congress could have outlawed it if it wanted to. For more on when and whether it's legitimate for courts to draw such crime severity lines as a constitutional matter, see Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004).)

This also illustrates how the "slippery slope" can work in a legal system that's built on precedent and analogy. Crush video laws have indeed been advocated by their supporters as analogous to child pornography bans; and while courts might well draw the line between the two, perhaps on the grounds that child sexual abuse is just much more harmful than crush videos, the analogy seemed to be at least helpful in persuading legislatures to enact the laws.

Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like. (That's my view, and the Third Circuit decision suggests the risk of spread isn't that high, though note that the 3 dissenters did indeed rely heavily on Ferber as justification for carving out a new exception here.) But one shouldn't pretend that the slippery slope risk doesn't exist.


Law Firms' Breach of Contract?:

Like many law professors these days, I've watched in dismay as many graduating students find that the jobs they thought were waiting for them after graduation are no longer there, either eliminated entirely or deferred into the uncertain future. [I'm dismayed on a personal level — as a social and economic phenomenon, this retrenchment might well be a good thing; law firms are built on an entirely unsustainable business model; there is no rational marketplace in which a first-year associate can earn money for a firm paying her $150,000, and I'm not surprised to see that model stressed and deformed when adverse economic conditions hit]. It got me to wondering — aren't these firms breaching their contracts with these students? I'm no contracts expert — am I missing something? Firm X makes Student Y an offer, Y accepts, and then X withdraws the offer, or alters it without additional consideration being exchanged. Is that not a breach? And if it is, how long will it be before some student sues for damages?

Update: I understand that the "at-will" nature of the employment (assuming these are all at-will positions) changes the analysis -- but I'm not convinced it eliminates the cause of action for breach of contract. X offers (in September, 2008) to hire me beginning in September 2009, and I accept. They rescind the offer in April. I have damages, even though their promise to hire me would have allowed them to fire me immediately. I didn't look for another job in the intervening six months. I rented an apartment in NYC. I don't have health insurance.

The latter strikes me as potentially very important -- if I'm hired and then immediately fired as an at-will employee, I have all sorts of vested rights -- perhaps in the firm 401(k) plan, certainly in their health insurance coverage (which, once I'm fired, can't be taken away from me, as I understand things, for one year, by virtue of COBRA). Now, because they never hired me in the first place but instead rescinded the offer, I'm uninsured beginning in September. That's damage flowing from their breach of contract, no? If the goal of contract law is to place me in the position I would have been in had they performed as per their promise, I should get insurance for the year, no?


Sunday, April 19, 2009

Harold Koh, the Alien Tort Statute, and Decent Respect to the Opinions of Mankind: A Puzzle

So, to my mind at least, the whole theory that that there is such a thing as tort responsibility of individuals or non-state actors in international law is completely unsupported. If I commit a crime against humanity and incur individual criminal responsibility at the international level, that does not mean that I have simultaneously incurred civil or tort responsibility at the international level towards the victims of my crimes.

The quotation does not come from a right-wing Koh-critic, but a respected non-American international lawyer, Marko Milanovic, who says (scroll down to the comments section) that he believes that his position reflects (non-American) international legal thinking in general. So do I. His comment was a response to a post by Ken Anderson at Opinio Juris who made just this point. Like Anderson, I have repeatedly heard similar statements from non-American international lawyers and wondered why they have never published their views. Milanovic answers this query (which was posed by Anderson) in this way:

As for your question why non-US scholars are not actively engaged in debunking (what we see) as an improper interpretation of international law in US courts and the mainstream US legal academia, perhaps a part of that answer is the one that you suggest, namely that we don’t want to interfere with some sort of ‘socialization’ of the US with international law.

However, I think that on the whole the more weighty reason for not engaging with this issue is that most non-US scholars think that, well, this wouldn’t be worth the effort. Legal scholarship is by definition an exercise in persuasion, and I doubt that the generally favorably disposed (liberal majority of the) US legal academia towards the whole ATS stuff would be persuaded to the contrary by external scholarship any more than it is by its conservative counterparts…. Thus, the general attitude is live and let live - if international law is what US scholars think that they are doing with this whole ATS stuff, then so be it.

Harold Koh has been a champion of the modern (post-1979) use of the ATS to impose tort liability on international lawbreakers. He has long grounded his theory of transnational legal process—in which ATS litigation plays a central role—in the importance of giving a “decent respect to the opinions of mankind.” Yet foreigners do not approve of ATS litigation. Foreign countries do not have their own ATS-style litigation and indeed shudder at American tort litigation of any type.

Many (most? all?) foreign international lawyers believe that ATS litigation violates international law. They believe that the American tort system is a lunatic asylum in which international law undergoes electroshock therapy and emerges with its shell intact but otherwise unrecognizable—wild-eyed, harboring delusions of grandeur, and babbling a pidgin that incorporates strange American legalisms and pieties. Foreign governments believe that ATS litigation infringes on their sovereignty and complain that it punishes multinational corporations for doing business with them. Both groups believe ATS litigation reflects the typically American blend of naiveté, arrogance, and power that ends up tying foreigners to the rack of American ideals. When Americans tire of using tanks to inflict their ideology on foreigners, they use lawyers. On the foreigners’ view, if international criminals are to be punished, they should face criminal, not tort, liability meted out by an international court (ideally) or, in some cases, a domestic criminal court that has a proper basis of jurisdiction in international law. International law, grounded as it is in the consent of states, supports no other outcome.

Koh has long supported a type of litigation that probably breaches international law and in any event universally offends foreign opinion. In what sense does this stance show decent respect to the opinions of mankind?


The Return of the Jedi?

According to this article on Sci Fi Wire, some 404,000 people in England, Scotland, and Wales listed their religion as "Jedi" on the 2001 British census (HT: Instapundit). The BBC reported on the growth of the Jedi movement in Britain back in 2003. The Jedi claim that they are Britain's fourth largest religion.

The Sci Fi Wire article also states that the British Office of National Statistics doesn't recognize the Jedi as an official religion and has lumped them in with the atheists. Counting the Jedi as atheists may be technically correct. Throughout the six Star Wars movies, there is no indication that the Jedi worship a God or gods of any kind. They do revere the Force. But the Force seems to be an impersonal power similar to gravity, rather than a conscious deity. Indeed, the ability to use the Force seems to be triggered by genetic anomalies rather than by any spiritual connection to supernatural entities. Jedi mysticism appears to be a secular moral philosophy like utilitarianism or Kantianism, not a religion.

As an atheist myself, perhaps I should welcome the rise of the Jedi in Britain. However, as sci fi writer David Brin documents here, here, and here, Jedi morality has many flaws. Even worse, the growth of the Jedi movement may cause the rise of the Sith, which Tyler Cowen claims is an inevitable consequence of the Jedis' authoritarian tendencies. Tyler is not as forgiving of the Jedis' flaws as I am. On the other hand, Bryan Caplan effectively uses public choice theory to defend the Jedi. Bryan makes some good points; but I find his lack of faith in the Galactic Republic disturbing. We'll just have to see if the Force is with Britain's new Jedi or not.


Newsweek Previews Debate Over Koh:

Newsweek features an essay by Stuart Taylor and Evan Thomas previewing the debate over the nomination of Harold Koh to the State Department and the broader question of the proper use of foreign and international law in U.S. courts. As the article notes, Koh is a highly regarded academic, at the top of his field. He is "well within the mainstream of the academic establishment at elite law schools like Yale—but the mainstream runs pretty far to the left." And this is particularly true in the field of international law. As I've said before, I think the President is entitled to name as his advisors those who share his views and policy agenda. But I also think Koh's stated positions on various issues, from the legality of the Iraq War to the relevance of international law to whether the death penalty is constitutional, could make for an interesting confirmation hearing.

Related Posts (on one page):

  1. Newsweek Previews Debate Over Koh:
  2. Questions for Harold Koh:

Bradley & Goldsmith on Alien Tort Statute Apartheid Litigation:

Curtis Bradley and Jack Goldsmith have an op-ed in today's Washington Post decrying a federal court's refusal to dismiss Alien Tort Claims Act suits against several American corporations for allegedly aiding and abetting the crimes of South Africa's apartheid regime. Their article begins:

As American taxpayers shell out hundreds of billions of dollars to bail out U.S. companies, a federal court in New York recently paved the way for significantly increasing some of these firms' financial burdens. Relying on the Alien Tort Statute of 1789, the court ruled this month that certain companies that did business with apartheid South Africa -- including distressed firms such as General Motors and Ford -- can be held liable for South Africa's human rights violations during that period.

The Alien Tort Statute was designed to allow diplomatically sensitive tort cases to be brought in federal court in the hopes of avoiding the friction with foreign governments that could arise if state courts failed to provide a fair hearing. The statute hid in obscurity for almost 200 years before a federal appellate court in New York invoked it in 1980 to allow victims of human rights abuses committed abroad to sue foreign officials in U.S. courts. This holding turned the statute on its head by creating, rather than reducing, friction with other countries. It also spawned a cottage industry of human rights litigation.

Also of note, the article makes a brief mention of State Department nominee Harold Koh, and his role in developing the legal theories upon which the litigation is based.
The executive branch is unlikely to press for reversal. President Obama recently nominated Yale Law School Dean Harold Koh to be legal adviser to the State Department, the government office that presents the U.S. view of these cases to federal courts. Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.
Sounds to me like this issue could make for another good question to ask Koh at his confirmation hearing.

The good folks at Opinio Juris have more on the Bradley-Goldsmith op-ed here, here, and here.


U.S. to Boycott U.N. "Racism" Conference:

A promising development:

The Obama administration will boycott "with regret" a U.N. conference on racism next week over objectionable language in the meeting's final document that could single out Israel for criticism and restrict free speech, the State Department said Saturday. . . .

The administration had wanted to attend the April 20-25 meeting in Geneva, although it warned in late February it would not go unless significant changes were made to the draft text.

Some revisions _ including the removal of specific critical references to Israel and problematic passages about the defamation of religion _ were negotiated for which State Department spokesman Robert Wood said the administration was "deeply grateful."

But he said the text retains troubling elements that suggest support for restrictions on free speech and an affirmation of the findings of the first World Conference Against Racism, held in Durban, South Africa, in 2001 that the U.S cannot endorse.

No Appeal of Concealed Carry in Parks Decision:

The Obama Administration has decided not to appeal a federal court decision striking down an Interior Department rule allowing concealed carry in National Parks. A federal district court had voided the rule due to the government's failure to conduct an environmental impact statement, or even an environmental assessment, before adopting the rule. According to the NYT, the Administration is "not completely discarding the Bush rule and that officials intended to complete an environmental impact statement on the possible effects of the rule, as well as a range of alternatives."

Related Posts (on one page):

  1. No Appeal of Concealed Carry in Parks Decision:
  2. Does Concealed Carry Significantly Affect the Environment?

Sunday Song Lyric: What can one say about Lily Allen? The first single off of her latest album, "The Fear," is wry and fun (and has its own video game).
I want to be rich and I want lots of money
I don't care about clever I don't care about funny
I want loads of clothes and fuckloads of diamonds
I heard people die while they are trying to find them

And I'll take my clothes off and it will be shameless
Cause everyone knows that's how you get famous
I'll look at The Sun and I'll look in The Mirror
I'm on the right track yeah I'm onto a winner

I don't know what's right and what's real anymore
And I don't know how I'm meant to feel anymore
When do you think it will all become clear
Cause I'm being taken over by the fear
You can see the video here. And for something completely different, here's Ms. Allen singing Britney Spears' "Womanizer."