I was just doing some research in the archived posts and noticed that a problem that occurred when we switched servers hasn’t been found. All the old posts are there, but they often have the wrong “byline.” I.e., a post I wrote may have Eugene’s or Randy’s or Orin’s name on it. So I would suggest that if you are planning to cite one of our old posts somewhere, you check with the purported author to see if he actually wrote the post before attributing it to him. [...]
For a project I’m working on, I’m collecting examples of statements made by high-level Democratic officials (especially, but not exclusively, Barack Obama) before January 2009 that such and such is unconstitutional (e.g., using military force without congressional approval, use of executive signing statements) that those Democrats either flipped-flopped on publicly (in the case of the president, this could be by his actions rather than words) or have been silent on since 2009. Citations, please. You could list these in the comments or send examples to dbernste at gmu dot edu.
And note, I totally understand and accept that Republicans do the same thing when the White House flips their way. Feel free to note such examples in the comments, though they don’t happen to be useful to my project. [...]
Here’s yet another brief that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks. This brief is in a Ninth Circuit university student dismissal case, and it’s filed on behalf of the Foundation for Individual Rights and the Student Press Law Center, in Oyama v. University Hawaii (the link is to the decision that is being appealed). My students Charlie Linehan, Jun Shimizu, and Michael Smith worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here. You can also read FIRE’s post and SPLC’s post on the case.
Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.
SUMMARY OF ARGUMENT
The University of Hawaii dismissed Oyama from its teaching credential program, in part because “the views [he had] expressed regarding students with disabilities and the appropriateness of sexual relations with minors were deemed not in alignment with standards set by the Hawaii Department of Education” and other entities. Oyama v. Univ. of Hawaii [...]
My wife and I have been much enjoying this new TV show, which we’re watching on Amazon Instant Video. It’s in French, with English subtitles, but they haven’t interfered with our getting into the story. The premise is that dead people are coming back to life (as apparently ordinary people, not zombies) in a small French town; the tone is realistic, though with an unrealistic premise, rather than fantastic. In any case, I thought I’d pass along the recommendation.
Robert Barnes’ piece in the Washington Post today recounts a hypothetical from Justice Breyer at yesterday’s argument in Lozano v. Alvarez, involving the tolling of the statute of limitations under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Following up on Justice Sotomayor’s hypothetical about the effect of a parent taking a child and concealing them in Peoria, Illinois, Justice Breyer asked (see p.33) about a circumstance where a “mother kidnaps the child” and they “live in a grain elevator, a nicely refurbished grain elevator, in Peoria for a year.”
Because Peoria is my (much-loved) hometown, I happen to have a photo of “a nicely refurbished grain elevator” just outside Peoria. Peoria is more industrial than agricultural, so there’s many more refurbished warehouses than grain elevators; indeed, this is the only one I know of, which why it warranted a photo.
I hasten to add that the question is very much a hypothetical in the most relevant sense, in that there is no reason whatever to believe that anyone is living there in violation of a custody order.
I’m pleased to post nominations in the hotly contested first category of Dubious Achievements in Privacy Law. Take your time to make a choice. Voting will not open until all nominations have been published — likely December 15.
Corrections and suggestions for additional nominees may be sent to firstname.lastname@example.org. But for those who think a particular nomination is unfair, the best remedy is to vote for a nominee who deserves the award and encourage others to do the same.
The 2014 Privies –
“Privacy Hypocrite of the Year”
a. Viviane Reding, European Commissioner for Justice, Fundamental Rights, and Citizenship
Why Regulate Ourselves When We Can Regulate the United States?
Commissioner Reding has led the charge to impose European restrictions on the way the National Security Agency gathers intelligence. When asked by the Guardian why the European Commission didn’t start by imposing restrictions on the way European Union members like Great Britain gather intelligence, she said
[T]here was little she or Brussels could do …, since secret services in the EU were the strict remit of national governments. The commission has demanded but failed to obtain detailed information from the British government on how UK surveillance practices are affecting other EU citizens…. “I have direct competence in law enforcement but not in secret services. That remains with the member states. In general, secret services are national,” said the commissioner.
Unless those secret services are American, apparently.
b. Francois Hollande, President of France
Spying on Allies is “Totally Unacceptable” Except When We Do It
President Hollande called President Obama to describe U.S. spying on its allies as “totally unacceptable,” language that was repeated by the Foreign Ministry when it castigated the U.S. ambassador over a story in Le Monde claiming that NSA had scooped up 70 [...]
Here’s the press release:
Visitors Freeze George Mason Law Tuition
Fairfax, VA – December 11, 2013: The Board of Visitors of George Mason University voted today at its quarterly meeting to freeze the tuition of the law school for the upcoming year, for current and incoming students, and it declared its intention not to increase law tuition through 2016-17.
The Dean of the law school, Dan Polsby, stated, “One thing we understand is law and economics. Law school tuition went up more than fifty percent in the past seven years. This isn’t a business plan that can be sustained. The Board’s move recognizes that demand for legal education is changing, and that we must change with it. Our applicants can now apply to a top-tier law school with confidence that they will be able to manage the cost of their education.”
George Mason remains the least expensive top-tier law school in the dynamic Washington, D.C., legal market. With this move, Mason reaffirms its commitment to providing the highest value legal education at a reasonable price.
The Board’s tuition freeze is consistent with Mason’s commitment to affordability. Last year, seventy-three percent of Mason’s first-year law students received scholarships toward reducing their tuition.
Dean Polsby noted that “students choose Mason for three reasons: location, quality of education, and price. The location and quality they could always count on. Now they’ll be able to count on price as well.
[DB adds: GMUSL has traditionally been the "low-price, high-value" alternative in the DC legal market, and this and other moves signal a commitment by key players to preserve the law school's identity as such.] [...]
Here at the Volokh Conspiracy, we try to keep readers informed about important new academic research. So it’s essential that we link to this new paper by Radagast the Brown on “The Climate of Middle Earth.” Far from being “Radagast the Bird-tamer! Radagast the Simple! Radagast the Fool!,” as Saruman described him, or being diverted from his mission (as Gandalf believed), Radagast has actually been spending his time conducting important scientific research. For previous VC coverage of Radagast, see here. [...]
I thought I’d pass this along, since many of our readers are interested in the case. Naturally, I’m also open to posting something from one of the lawyers or academics on the opposite side of the issue.
First, I want to thank Prof. Volokh for his fine series of posts on the cases involving the mandate of early abortion causing birth control in health plans. As one of the attorneys for multiple clients challenging the mandate, including the Hahn family of Conestoga Wood Specialties whose case is being reviewed at the U.S. Supreme Court, I was pleased to read Prof. Volokh’s clear and wide-ranging analysis. While I largely agree with his conclusions, there were bound to be some differences in such a broad discussion. Prof. Volokh has graciously allowed me the opportunity to respond to two of those points of departure.
In his post, RFRA Strict Scrutiny: The Interest in Protecting Health, Prof. Volokh wrote:
It seems to me that a compelling interest in protecting health is indeed implicated here. Preventing unwanted pregnancy helps prevent a wide variety of possible health problems. Protecting physical health seems likely to be seen as a compelling interest. And making these contraceptives available to people with no out-of-pocket cost to them will make it more likely that they will be used, and the health problems will be avoided. Moreover, particular contraceptives are particularly effective in dealing with particular conditions. Plan B is particularly effective at preventing pregnancy post-intercourse. IUDs are particularly effective for women who have bad reactions to oral contraceptives. So I expect that the Court will indeed say that the government’s attempt to make these particular contraceptives available to employees of Hobby Lobby and similar employers furthers a compelling interest in protecting health.
I think this assumes a compelling interest far
Reporter, who is based in New York, gathers information in Colorado, related to a Colorado crime. She returns to New York, but is subpoenaed to appear in Colorado court proceedings, to testify about her confidential sources. Should New York newsgatherer shield law or Colorado newsgatherer shield law apply? An interesting and unusual choice of law problem, on which New York’s highest court split 4-2-1 yesterday in In the Matter of Holmes v. Winter (N.Y. Dec. 10, 2013). An excerpt:
New York’s Shield Law provides an absolute privilege that prevents a journalist from being compelled to identify confidential sources who provided information for a news story. In this case, the issue is whether it would violate New York public policy for a New York court to issue a subpoena directing a New York reporter to appear at a judicial proceeding in another state where there is a substantial likelihood that she will be directed to disclose the names of confidential sources or face being held in contempt of court.
Petitioner James Holmes is charged with multiple counts of murder, among other offenses, arising from a mass shooting at a midnight screening of a “Batman” movie at an Aurora, Colorado movie theater. Twelve people were killed during the incident and 70 others were wounded. Holmes was arrested at the scene soon after the violence ended. Anticipating that the shootings would generate widespread media attention, the state court presiding over the criminal charges—the District Court for the County of Arapahoe—immediately issued an order limiting pretrial publicity in the case by either side, including law enforcement.
On July 23, 2012, while executing a search warrant, the police took possession of a notebook that Holmes had mailed to a psychiatrist at the University of Colorado before the shootings. Holmes asserted that the notebook, which
Uruguay recently adopted the most far-reaching legalization of marijuana attempted by any nation in recent decades:
The passage of a landmark marijuana legalization measure Tuesday means Uruguay is set to become the first country in the world to have a system regulating legal production, sale and consumption of the drug.
It’s practically a done deal. President Jose Mujica has to sign the bill before it becomes a law. But he’s long backed the measure, and there’s little doubt that he remains behind it….
Supporters of the proposal have said it marks a turning point and could inspire other Latin American nations to take a similar approach….
The proposed law would allow individuals to grow up to six plants of marijuana and possess as many as 480 grams for personal use. Marijuana clubs of anywhere from 15 to 45 members would also be allowed and granted permission to grow up to 99 plants at a time.
Users would have to register, and those claiming to use cannabis for medical reasons would have to show a doctor’s prescription. Marijuana would also be sold at licensed pharmacies.
The Uruguay law goes farther than legalization in such jurisdictions as Portugal and the US states of Colorado and Washington because it allows production and sale of marijuana to a greater extent than they do, as well as possession.
Recognizing Stupid Privacy Laws
It’s time to recognize just how stupid privacy law is getting. And what better way than by acknowledging the most dubious achievements of the year in privacy law?
First I should explain why I think privacy law so often produces results that make no sense. After all, most of us think privacy is a good thing. We teach our kids to respect the privacy of others, just as we teach them good manners and restraint in drinking alcohol. At the same time, no one wants courts and legislators to punish us for rudeness or prohibit us from buying a drink. We’ve already tried mandating abstinence from alcohol once. It didn’t work out so well. And it’s unlikely that Prohibition would have worked better if we’d made it illegal to drink to excess.
The problem is, some rules just don’t translate well into law. We know rude behavior when we see it, but no one wants a Good Manners Protection Agency writing rudeness regulations – or setting broad principles of good manners and then punishing a few really rude people every year. The detailed regulations would never capture the evolving nuances of manners, while selective prosecution of really rude people would soon become a tool for punishing the unpopular for their unpopularity.
All that seems obvious in the case of drinking and rudeness, but when it comes to privacy, proposals for new legal rules seem endless. In fact, though, privacy is every bit as malleable and context-sensitive as good manners, and efforts to protect it in law are inevitably either so general that anyone can be prosecuted or so ham-handedly specific that they rapidly fall out of date. Either way, instead of serving the public interest, privacy laws often end up encouraging official hypocrisy and protecting the [...]
Is it “have proven false” or “have proved false”? “Have proven to be right” or “have proved to be right”? Google Ngrams, in keeping with some usage guides, tells us that historically “have proved” has been the dominant form. In recent books, though, the two have been roughly equally common. I think “have proved” is the safer version, but both now seem standard. [...]