The Volokh Conspiracy

From the Census site:

An unfortunate story, detailed in Revell v. Port Authority (3d Cir. 2010): Gregg C. Revell was flying from Salt Lake City to Allentown, Pennsylvania, via Minneapolis and Newark. He had an unloaded gun legally checked in his luggage, which was supposed to meet him at Allentown.

Supposed to. In fact, the flight to Newark was late, so Revell missed his connection. He booked himself on the next flight, but the airline changed those plans. He was supposed to get on a bus, but his luggage didn’t get on the bus with him. He found the luggage, but the bus had left, so he had to stay overnight at the hotel, with his luggage.

Aha! That’s where the crime came in. The Firearms Owners’ Protection Act protected Revell on the plane, and would have protected him on the bus. But the moment the luggage came into his hands or otherwise became “readily accessible” to him outside a car — here, when he got the luggage to go to the hotel, but it would have also happened if he had gotten the luggage to put it into the trunk of a rental car — he violated New Jersey law, which requires a permit to possess a handgun (and which bans the hollow-point ammunition that Revell also had in a separate locked container in his luggage). Revell was arrested when he checked in with the luggage at Newark Airport, and said (as he was supposed to) that he had an unloaded gun in a locked case in his luggage; he then spent four days in jail until he was released on bail. Eventually the New Jersey prosecutor dropped the charges against him, but Revell didn’t get the gun and his other property back until almost three years later.

Revell sued, and lost; the Third Circuit concluded that once he took the luggage in hand in New Jersey, it became “readily accessible,” and the FOPA immunity was lost. And this is indeed a sensible reading of the statutory text:

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

So what do you if this happens to you?

Stranded gun owners like Revell have the option of going to law enforcement representatives at an airport or to airport personnel before they retrieve their luggage. The careful owner will do so and explain his situation, requesting that his firearm and ammunition be held for him overnight.[18]

[Footnote 18:] Of course, this suggestion leaves unanswered the question of what the gun owner should do if the law enforcement officers decline to assist him. It may be hoped, however, that officers will not compound a blameless owner’s problems in that way.

Hope does spring eternal, but I suspect that airport police and airport staff aren’t going to be willing to hold people’s luggage for them overnight, especially when it contains a gun. And of course the airport police or staff would then have to personally check in the luggage for the owner, since the owner can’t take it in hand without losing the FOPA immunity.

So watch out when you travel with your gun in checked luggage. If your flight gets routed to a different city, or you have to stay overnight at one of the stops, you could be arrested. Or if you drive across country but your car breaks down, and you need to move the luggage to another car, you could likewise be violating the law (though you’d be less likely to be caught, since you have no obligation declare your gun when you switch cars the way you do when you get on a plane). FOPA gives you a good deal of protection on your travels — but, as Mr. Revell learned, not complete protection.

I mean this in less snarky way than the title of this post suggests, but I continue to be surprised by some of what worked its way into the health care reform bill.

Today the Supreme Court held 7-2 in an opinion by Justice Stevens that 31 U.S.C. 3730(e)(4)(A), a provision of the False Claims Act that bars qui tam actions that are based upon the public disclosure of allegations of fraud against the government in (among other things) “a congressional, administrative, or [GAO] report, hearing, audit, or investigation,” includes state and local administrative hearings, audits, or investigations, and not just federal ones.   But tucked away in a footnote is notice that the holding of the case (Graham County Soil & Water Conservation District v. United States ex rel Wilson, 08-304), will have limited application going forward:

On March 23, 2010, the President signed into law the Patient Protection and Affordable Care Act, Pub. L. 111–148, 124 Stat. 119.  Section 10104(j)(2) of this legislation replaces the prior version of 31 U.S.C. §3730(e)(4) with new language.  The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit. See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 948 (1997).

The health care reform law changes the relevant text to provide for dismissal of a qui tam action based on a public disclosures “in a congressional, [GAO], or other Federal report, hearing, audit, or investigation.”  Thus, it essentially overrules today’s decision.  The amendment also eliminates the old language, under which a court would not have jurisdiction over a case based on a public disclosure, to simply state that a court shall dismiss an action, unless opposed by the Government, if substantially the same allegations were publicly disclosed.

The full text of the revised language is available after the jump. A redline reflecting the change is available here.

Critics of the change note that the amendments “are not limited to FCA actions against health care companies,” but it’s not unusual for Congress to make a change apply across-the-board even if it is nominally motivated by concern in a particular area. (Think of the USA PATRIOT Act, which, unless you believe the conspiracy theorists, was prompted by terrorism investigations but which amended provisions of general applicability.)  But the case before the Court involves flood cleanup, not health care fraud.  The amendment to the FCA is germane to health care reform in that it makes it easier to maintain a qui tam action against an entity that allegedly has defrauded the government. But the provision still looks a bit like the sort of provision that gets attached to must-pass legislation as a favor to a powerful constituency, rather than something that Congress considered directly relevant to the subject of the legislation. 

UPDATE: Both because I assume a high degree of background knowledge from our readers, and because I’m too lazy to provide much background, I don’t explain much about the qui tam mechanism.  One of the posts in the comment thread gives a helpful primer for people who aren’t already steeped in this area of the law.  It’s a fascinating area, with an interesting historical pedigree and which raises juicy separation-of-powers issues.

Continue reading ‘“We have to pass the bill so that you can find out what is in it” (continued)’ »

Read all about it — and see the photos — here. “I gave this about 250 rounds[,] but I think around 150 might actually be enough. But then again I don’t mind when bacon is crispy. Ahh the smell of sizzling bacon mixed with the smell of gunpowder and weapon oil.” Thanks to InstaPundit for the pointer.

Here’s the letter from Women’s Center Director Ada Gregory:

Dear Ms. __:

I wanted to write concerning the recent problem you experienced after reserving space at the Women’s Center for a Duke Students for Life event during pro-life awareness week on campus. First, I am so sorry that your event was cancelled due to actions by Women’s Center staff. Mistakes were certainly made that should not have occurred. I have taken steps to ensure that such an incident will not happen again.

The Women’s Center is indeed intended to be a place that supports the agency and choices of all women, so I hope that you will continue to use the Women’s Center facilities as well as services and the programs that the Women’s Center sponsors on campus.

The Foundation for Individual Rights in Education reports further; for my earlier post on this controversy, see here. Very glad to see that FIRE has prevailed on this,

Very glad to hear about it — congratulations and thanks to FIRE for its work on this.

My 23 minute podcast interview with Colorado Attorney Geneeral John Suthers is here.

People asked about the “Big Bang” example, so here’s the source. It’s of course only an extreme case, used only to amusingly show how far some people are willing to go — I don’t want to claim that it’s at all a common demand (unlike the demands to rename “handicapped,” “American Indian,” and the like):

An astronomy magazine is sponsoring a contest to rename the “Big Bang” theory of how the universe began. Those pushing the name change say the current name is misleading and perhaps sexist. [Note that only some of the objectors are making the "sexist" claim; others say that the metaphor leads to inaccurate ways of thinking about the event. -EV] ...

HEAPS: Since the 1950s, the term Big Bang has also taken on a sexual connotation, and some say changing it could make the mostly male world of astronomy a little more friendly for females.

MEG URRY, Space Telescope Science Institute: A lot of the style is very macho, and that can be offputting to young women, and ‘big bang’ is just another- another little grain of sand in that big sandbox.

UPDATE: Whoops, forgot to include the citation: It’s from CNN, June 14, 1993, transcript #417-5; I personally checked it on Lexis.

I know that the world (at least the VC world) is sharply divided into opposing camps on all matters soccer-related, but we should put aside our differences and gather together at our favorite watering-holes tomorrow (Wednesday — 230 PM EDT, rebroadcast at 8 PM EDT on Fox Soccer Channel) for a match that should be a real beauty (and a chance for the ‘phobes to see what it is that gets real soccer fans so passionate about the game). Arsenal FC v. FCB Barcelona, quarter-finals of the European Champions League.

The ECL is far and away the most prestigious (and the best, and the most-watched) club soccer tournament of all (eclipsed only by the battle of the national teams in the World Cup). It’s a season-long tournament, involving the teams that finished at the top of their respective national leagues the previous year (so, e.g., it starts out with the top four teams from the English Premier League in 2008-09 [Chelsea, Manchester United, Arsenal, Liverpool], the top three from Spain [Barcelona, Real Madrid, Sevilla], France, Germany, etc.) leading up to a one-match Final at the end of May (this year in Madrid) that is always the most-watched soccer match of the year, world-wide. The level of play is generally astonishingly high in all matches – but the Arsenal-Barcelona pairing in this year’s quarter-finals should be particularly delicious. By common consensus, of all the thousands upon thousands of professional soccer teams out there on this earth, these are the two that play the most beautiful soccer of all. Beauty, of course, is in the eye of the beholder — but most neutral fans, whomever they may be rooting for in the competition, would have to agree that no teams can match these two in sheer elegance and grace when they’re on their game.

Describing what is “beautiful” about soccer is no easier than describing what it beautiful in music or painting — but it’s mostly about the intricacy and delicacy of their passing and the complexity of their improvisational moves. For instance, virtually all teams, even at the very highest level, will, when the opponents are attacking and one of the defenders can get his foot on the ball, will simply whack it, hard, up the field to quell the danger. If you watch tomorrow, you won’t see that — or at least, you won’t see it very often. The Barcelona defenders, in particular, are always looking for the outlet pass to a teammate, always looking to start some intricate upfield move. “Hit and hope,” which characterizes the play of even some really good teams, just isn’t in their repertoire. And when they’re attacking the goal – well, you just have to watch. It’s a thing of real beauty.

The atmosphere tomorrow should be white hot at the Emirates stadium (Arsenal’s home ground – the “return leg” is next week in Barcelona). [One other note for neophytes: to determine which team moves on to the next round, the ECL uses a scoring system that looks first to the "aggregate" over the two matches. If the teams are tied on aggregate, the first tie-breaker is "away goals" - the number of goals scored on the opponent's pitch. It has all sorts of interesting implications for strategy, especially in the second of the two games. But it means, for instance, that a 1-1 draw, say, would be a better result for Barcelona than for Arsenal, because of that "away goal."]

This morning, the Supreme Court unanimously reversed the U.S. Court of Appeals for the Sixth Circuit in Berghuis v. Smith.  The Court held, in an opinion by Justice Ginsburg, that the Sixth Circuit had erroneously concluded that the Michigan Supreme Court’s rejection of criminal defendant Diapolis Smith’s Sixth Amendment claim involved an unreasonable application of clearly established federal law, as is required to grant a habeas petition under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  Smith had argued that jury selection in his trial had violated his Sixth Amendment right to an impartial jury drawn from a representative cross-section of the community.

Of note, this is the third reversal of a Sixth Circuit decision granting a crminal defendant’s habeas petition this term.  The first two were Smith v. Spisak and Bobby v. Van Hook.  Two more Sixth Circuit habeas cases remain, Renico v. Lett and Berghuis v. Thompkins.  As I noted here, in all five cases, the Sixth Circuit granted the habeas petition.  Will the Supreme Court reverse in all five?  We’ll see.  Three down, two to go.

When I teach the patent law material in my Introductory Intellectual Property class, we discuss the (very fundamental) principle that “naturally-occurring” things are not patentable subject matter – that patents only cover creations springing from the human mind. “But wait a second,” someone often asks, “what about all those ‘gene patents’ I read about in the newspaper? How can someone have a patent on a human gene if naturally-occurring things aren’t patentable?”

It’s a very good question. The answer, in a nutshell, is that the PTO, and the courts, have developed a doctrine under which the “purified” and “isolated” form of the gene is deemed to be a patentable composition of matter (because it does not, in fact, occur in nature in that form), as opposed to the gene as it actually sits on your chromosome. This allows all of us, thankfully, to do things like beget children without obtaining the authorization of the patent holder (even though the process of begetting children constitutes a “use” of the gene in question . . .).

I’ve always thought it dubious law and even-more-dubious policy (though I’m no expert in the matter), and a federal judge, for the first time, seems to agree. In a very important decision (though it will undoubtedly be subject to review, and quite possibly may be reversed), Judge Sweet (SD NY) invalidated the patent held by Myriad Genetics, Inc. on a gene thought to be associated with breast and ovarian cancer. [The full text of the opinion is here] The language is strong, and calls into question pretty much all 2000 or so of the patents issued in recent years to parts of the human genome (and the many other animal/plant gene patents as well). Noting that many people regard the notion of patenting the isolated form of the gene (but not the gene itself) as nothing more than a “lawyer’s trick,” the court wrote:

“DNA represents the physical embodiment of biological information, distinct in its essential characteristics from any other chemical found in nature. It is concluded that DNA’s existence in an isolated form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issue directed ‘isolated DNA’ containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable . . .”

I think the judge got it right. There’s a little bit of an “emperor’s new clothes” feel to the opinion — why has it taken everybody so long to realize the obvious? [Kudos to the ACLU, and the Cardozo law School clinic, which managed the litigation on behalf or the Association of Molecular Pathology, and thanks to Tom Bednar for the pointer]

First Things is having a “Tournament of Novels.”  Vote here.  I just learned about it and so missed voting in the first round but just cast my vote in the second round.  Some of the match-ups were very clever, such as Lord of the Rings versus Atlas Shrugged in the first round. (HT: Mere Comments).

Yikes–I’m even more behind than I thought!  A Commenter tells me that they’ve been doing a round a day and are already up to the fourth round.

Chapman Law School professor Hugh Hewitt runs an excellent blog, with plenty of stimulating commentary, even for people who disagree with Hugh’s viewpoint. Some people, however, were put off by Hugh’s adamant defense of the Supreme Court nomination of Harriet Miers. Discerning readers have learned to take Hugh’s prediction of Republican election wins with many grains of salt. But now I feel compelled to speak out at something that has long been a problem on Hugh’s blog,  and which just went far over the line.

Although Hugh is currently a Californian, he grew up in Ohio, and so he uses his blog and his national radio program to promote his endless enthusiasm for Ohio sports teams, predicting (not always accurately) victories by the Cleveland Browns and so on. As an Ohio man, Hugh also enjoys taunting Michigan, which is one of the things that Ohioans have long done to keep themselves amused. Fine, if that’s what makes him happy. But Hugh is also a member of the University of Michigan Law School class of 1983. Today, he celebrated the victory of the Miami of Ohio hockey team over the University of Michigan, in the final game of the NCAA regional tournament. If he wants to rejoice when the University of Toledo defeats Eastern Michigan University, that’s his privilege. But to root against–and to rejoice in the defeat of–one’s own alma mater seems to me very wrong.

There must be some conservative principle about being loyal to the institution that provided you with a fine education and helped make your professional success possible. I am sure that Edmund Burke would never have gloated over the defeat of the Trinity College football team or the Middle Temple hockey team, if those great institutions had football and hockey teams.