The Volokh Conspiracy

David Post faulted Justice Scalia’s footnote 1 in Monday’s City of Arlington v. FCC (see also this follow-up), so I thought I’d mention my own thought on the subject, because I think there’s actually a useful lesson to law students there.

The footnote, which accompanied a sentence that began, “In July 2008, CTIA—The Wireless Association,” stated:

This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

And my sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

I’m not sure why Justice Scalia thought it necessary to make such a point in this case; maybe he’d seen similar things in other briefs and hadn’t mentioned them then, but this time he thought he ought to say something. But my sense of his point is simply, “Counsel, make things easy on us — if you use a term we don’t know, define it.”

UPDATE: For a related complaint about overuse of abbreviations, see this Legal Times item quoting Judge Laurence Silberman.

Today Lois Lerner was called to testify before a House Committee about the recent scandal involving the IRS targeting conservative groups for extra scrutiny. Before the Committee, Lerner was invited to make an opening statement. Her opening statement included the following:

On May 14th, the Treasury inspector general released a report finding that the Exempt Organizations field office in Cincinnati, Ohio used inappropriate criteria to identify for further review applications from organizations that planned to engage in political activity, which may mean that they did not qualify for tax exemption.

On that same day, the Department of Justice launched an investigation into the matters described in the inspector general’s report. In addition, members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption.

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

And while I would very much like to answer the committee’s questions today, I’ve been advised by my counselto assert my Constitutional right not to testify or answer questions related to the subject matter of this hearing.

After very careful consideration, I’ve decided to follow my counsel’s advice, and not testify or answer any of the questions today.

Because I’m asserting my right not to testify, I know that some people will assume that I’ve done something wrong. I have not.

Under questioning, Lerner then authenticated answers she gave I.G. investigators about what had happened during the investigation. But she refused to make additional statements.

The Chairman of the committee, Darrell Issa, has argued that Lerner’s statement and her authentication of her earlier statements waived her Fifth Amendment right and that he can call her to testify again without Fifth Amendment protection. A lot of people are wondering, is Issa right? Did Lerner waive her rights so she could not then assert them?

I don’t think the answer is clear, as there are no cases quite like it. The general rule is that a witness can’t testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination. Here’s what the Court said in Mitchell v. United States, 526 U.S. 314, 321(1999):

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.

The tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment. On one hand, if you say that Lerner merely expressed her view that she is innocent but did not actually testify as to any facts, then you could say she did not waive her rights with her statement. Questioning would not be about the details of facts she already testified to, but rather would require her testimony on a subject she declined to testify about. On the other hand, if you say that Lerner’s reciting the allegations and then denying them effectively testified about the allegations, then you could say that she did testify and did waive her rights. From that perspective, she already testified about “the subject” by saying that she did not violate any IRS rules or submit false testimony, and further questioning would be about the details of why she thinks that.

I’m not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question earlier today (based on press reports of what Lerner said, not the full transcript) to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point. So it’s at least a somewhat open question.

UPDATE: I have updated the post to include more from the transcript of the hearing.

The credibility of NGOs like Human Rights Watch depends on their being above and apart from the conflicts they monitor – to not take sides. Human Rights Watch has been criticized by many, including its founder, for giving up all objectivity an adopting an anti-Israel campaign.

Their grudge against Israel has been clear for a while, and David Bernstein has written about it frequently here.

Now, we find evidence of direct personal animus. A news story reveals a private Facebook group whose members include a medley European journalists, NGO officials, and far-left activists. Recently the group turned to discussing an Israeli government report that the famous killing of a Palestinian boy at the start of the Second Intifida was in fact staged. Not only was he not shot by Israel, as much prior evidence suggested, he appears not to have been killed at all. (It would not be the last time Palestinians elaborately staged deaths for PR purposes.)

The issue is not the IDF report, but the comments made about it by Peter Bouckaert, HRW’s Emergencies Director (responsible for civilians in wartime, according to his twitter page). He wrote: “Typical IDF lies. As usual, it takes them a long time to really build up the falsehood.”

He goes on the complain that the New York Times coverage of the Israeli report will be used by supporters of Israel.

I previously criticized HRW for releasing reports on alleged Israeli crimes without waiting for the IDF’s comments - now we know: why wait for a “typical lies” that just build up the more time they get? Seriously, HRW should reveal what reports the “emergencies director” was involved in writing.

Academic writing on human rights and international law often treats groups like HRW as custodians of the truth, and accepts their claims without much further scrutiny. That practice is methodologically unsound.

UPDATE: Buockaert is apparently responsible for the HRW report on the 2nd Lebanon War, entitled “Why the Died,” which accuses Israel of war crimes largely based on relies on (favorable) credibility judgements regarding Lebanese testimony about whether certain targets were Hezbollah sites. The report also admits significant errors in earlier report (that doesn’t make them lies!).

Tags: Human Rights Watch, Israel, Palestine

Here’s an interesting new application of Florida v. Jardines (March 26, 2013), which recently held that bringing a drug-sniffing dog up to the front door of a home for a “sniff” of the front door area is a Fourth Amendment search. In this morning’s decision in Powell v. State of Florida, officers went up to the front door of a mobile home and knocked. When there was no answer, they took a step off the front steps and peered through a window at eye level about two feet from the front steps. Peering in, the officers saw marijuana growing under lamps in the home; they later obtained a warrant based on that viewing and searched the home.

The state intermediate court held that peering into the window was a Fourth Amendment search that required a warrant. Going up to the front door and knocking was fine, but peering through the window off of the front steps was not okay under the Jones trespass/intrusion test:

The deputies . . . deviated from established norms by entering upon that portion of the property directly in front of the window. Nothing in their testimony or the record establishes any license to do that. The officers had to step off the front door step, move two feet to the left, and position themselves directly in front of the window, their faces no more than a foot away. At that point they were virtually within the home without breaking its close. Because they physically entered a part of the curtilage where they had no right to be for the purpose of gaining information, the intrusion test is met.

The court notes that the Jones trespass/intrusion test is the easiest way to resolve the case: “Cases involving warrantless searches of the home or curtilage may be somewhat easier to analyze under the intrusion approach because the property interests are generally better defined.” (The court also concludes that the Jones test is best characterized as being about physical “intrusion” not “trespass.” See Footnote 3.) The court also holds that this was a search under the Katz privacy test:

Similarly, the State’s evidence lacked any indicia that the privacy of the mobile home’s kitchen area had been diminished by its occupants. No evidence exists that Powell or Wilbourn knowingly exposed the interior of their home where the plants were located to the public view or impliedly licensed the general public to peer in their front window from a foot away. No evidence was presented that the kitchen area (where the plants were located) could be seen from the public roadway, from the pathway leading to the front door, or from the front door itself. Instead, the plants could only be seen from outside the home by stepping away from the front door, placing officers within a hand’s width of the window pane, casting their view rightward at an acute angle. As in Olivera, Powell and Wilbourn “could reasonably expect that no one would observe or overhear [their] activities” from just outside their window.

It’s true that the window was right near the front door. But the fact that the officers stepped off the front porch meant that it exceeded the implied permission of the homeowners:

We cannot agree . . . that stepping off a porch, even a few feet, onto portions of the curtilage where persons are uninvited and then looking into the home at a sharp angle from a hand’s length away from the window pane is anything other than an impermissible intrusion into constitutionally protected space. Whether two feet or twenty, the distance between the door and window matters little given that the officers said they could not see the plants without leaving the front door step and positioning themselves at a spot where they had no right to be.

Does that sound like a fine line? Well, welcome to the fact-sensitive Fourth Amendment:

That said, we can envision front door configurations that have windows incorporated directly into their designs through which a visitor might be able to see the interior using no unusual means or devices. This case simply does not involve such a situation. Under certain circumstances, implicit permission may exist to look through an un-curtained window while standing on a front porch momentarily to see whether the resident is approaching the door, assuming no unreasonable means or devices are used.

Thanks to several Florida lawyers for sending on the opinion — including among them Howard Blumberg, who argued and won Jardines.

Slate columnist Farhad Manjoo has an interesting article arguing that conservatives are right to complain about the IRS’ use of political profiling, but argues that they should use the same reasoning to rethink their support for racial profiling in law enforcement. As he points out the IRS justification for political profiling is very similar to standard arguments for racial profiling in combatting terrorism and crime:

Pretend you work at the Internal Revenue Service... Every day, a big stack of files lands on your desk.... Each file represents a new application for a certain tax status—501(c)(4), a tax-exempt designation meant for “social welfare” organizations. Nonprofits with this status aren’t required to disclose the identity of their donors and they’re allowed to lobby legislative officials. The catch is that they must limit their political campaign activity....

It’s your job to decide which 501(c)(4) applications represent legitimate social-welfare organizations, and which ones are from groups trying to hide their campaign activities. What’s more, you’ve got to sort the good from the bad very quickly, as you’re being inundated with applications....

So what do you do? You look for a shortcut. Someone at your office notices that a lot of the applications for 501(c)(4) status are from groups that claim to be part of the burgeoning Tea Party movement. Aha! When you’re looking for signs of political activity, wouldn’t it make sense to search for criteria related to the largest new political movement of our times? So that’s what you do...

[T]here’s a name for the kind of shortcut that the IRS’s Cincinnati office used to pick out applications for greater scrutiny: “profiling.” By using superficial characteristics—groups’ names or mission statements—to determine whether they should be subject to deeper investigation, the IRS was acting like the TSA agent who pulls aside the guy in the turban, or the FBI agents that target mosques when investigating terrorism, or New York City cops who stop and frisk young black males in an effort to prevent crime....

All these efforts rely on the same intellectual justification—looking at surface characteristics makes sense because they’re a potential signal of deeper activity, whether it’s terrorism or crime or electioneering. As a right-wing blogger might say, “Not all Muslims are terrorists—but most terrorists are Muslims....”

That’s exactly what the IRS was doing with Tea Party groups. Not all Tea Party groups applying for 501(c)(4) status were engaged in campaign politics. But out of all the many groups that applied for such status, wouldn’t any reasonable person guess that a group called “Tea Party Patriots” is more likely to be engaged in campaign activity than, say, a group focused on rescuing abandoned puppies?

The deep irony of the IRS scandal is that people on the political right are being subjected to exactly the kind of profiling that they’ve long advocated in fighting terrorism and crime—and they don’t seem to appreciate it. I’m on their side: This case perfectly illustrates why profiling is wrong...

I made a similar point several years ago when I explained the parallels between the conservative defense of racial profiling and left-wing rationales for affirmative action (see here and here). Overall, I think Manjoo is right. And if he has not already done so, he should extent his skepticism about the use of profiling to cover the affirmative action case.

But I do have two caveats about his argument. First, I am not convinced that the IRS was merely engaged in neutral profiling intended to increase the chance of ferreting out political groups. It is true that “a group called ‘Tea Party Patriots’ is more likely to be engaged in campaign activity than, say, a group focused on rescuing abandoned puppies.” But the same is true of a group called “Occupy Wall Street” or one with some other name using a standard left-wing catch-phrase. Yet there is no evidence that the IRS targeted groups with liberal code words in their names in the same way it targeted conservative ones. That suggests political bias, not just a simple effort to economize on search costs. Obviously, however, racial profiling in law enforcement often flunks the neutrality test as well.

Second, I would not go as far as Manjoo in abjuring all forms of profiling. There is a difference between profiling based on characteristics that impinge on important constitutional rights such as freedom of speech and freedom from racial discrimination by government and profiling policies that rely on less problematic proxies. The latter may also be unjust or ineffective. But they are not as objectionable as profiling based on race or ideology.

That said, I hope that the IRS scandal will indeed persuade conservatives who support racial profiling to reconsider the issue. I also hope that more liberals will apply their critique of racial profiling to affirmative action.

Tags: IRS

Last week, economist Bryan Caplan wrote an interesting post explaining why people’s virtue or lack thereof is often most evident in their unpopular views:

Consider a world where 80% of people are Conformists, 10% of people are Righteous, and 10% are Reprobates. The Conformists are epistemically and morally neutral, so they believe and support whatever is popular. The Righteous are epistemically and morally virtuous, so they believe and support whatever is true and right. The Reprobates are epistemically and morally vicious, so they believe and support the opposite of what the Righteous believe and support....

What happens? There are clearly two equilibria: one good, one bad. If the true&right is popular, then the Conformists and the Righteous have 90% of the vote, so the true&right prevails. If the true&right is unpopular, then the Conformists and Reprobates have 90% of the vote, so the false&wicked prevails.

Now suppose that in this world, you are trying to assess an individual’s virtue. In the good equilibrium, identifying the virtuous is hard. Only 1 out of 9 supporters of the status quo is genuinely virtuous. The vast majority support the true&right out of sheer convenience. Identifying the vicious, however, is easy. In the good equilibrium, all supporters of the false&wicked are vicious.

The mirror image holds in the bad equilibrium. Identifying the virtuous is easy: Everyone who supports the true&right despite their unpopularity is virtuous. Identifying the vicious, in contrast, becomes hard...

On the plausible assumption that most real-world people are basically conformists, you can’t accurately assess virtue by studying people’s views in isolation. You have to look at their unpopular views. Believing true&right things despite their unpopularity is a sign of genuine virtue. Believing false&wrong things despite their unpopularity is a sign of genuine vice.

There is a lot of truth to Bryan’s argument. For example, modern Americans deserve little credit for being opposed to slavery, because almost everyone holds that view today. By contrast, William Lloyd Garrison deserves great credit for being an antislavery activist back when it was extremely unpopular in the 1830s. I would, however, extend Bryan’s argument to separate out moral and epistemic virtue. Some people might be genuine truth-seekers willing to court unpopularity, but simply do a poor job of evaluating the truth or falsehood of particular views. Others might be very good at evaluation, but choose not to use those skills because they care more about social acceptance than truth. One could argue that the well-intentioned but epistemically incompetent person deserves greater moral credit than the one who combines the opposite set of traits.

For readers who want to evaluate me using Bryan’s test, here are some of the most unpopular views I have ever expressed here at the VC, based on their divergence from those of the average voter:

1. Organ markets should be legalized.

2. Most (though not all) public sex and public nudity should be legalized.

3. Knowledgeable children should be allowed to vote.

4. The entire War on Drugs (not just the ban on marijuana and a few other relatively popular drugs) should be abolished.

5. It is unjust to decide immigration policy without giving the rights and interests of would-be immigrants at least close to the same weight as those of current residents of the United States.

Somewhat less unpopular, but still strongly counter to conventional wisdom:

6. No one has any special moral obligations to other people of the same race or ethnicity, including members of historically persecuted minority groups, (e.g. – Jews have no special moral obligations to other Jews, blacks have no special obligations to other blacks, etc.). It is possible that this position is more popular than I think it is. I haven’t seen any systematic survey data on it, and am mostly judging based on personal experience, combined with the ubiquity of rhetoric claiming that we have obligations to “our people” and the like.

7. Nationalism is a great evil, usually causing more harm than good even in its relatively more moderate forms. The conventional wisdom, I think, is that nationalism is a generally good or at least neutral phenomenon that becomes problematic only if taken to extremes.

There are important commonalities between 1, 2, and 4 on my list, and also between 5, 6, and 7. The former stem in part from my rejection of moral arguments that draw on the “yuck factor,” at least in so far as they are used to justify making anything illegal. The latter are partly a reflection of my unusually strong skepticism about moral claims based on ties of race, ethnicity, culture, or sovereignty.

Several of the above positions are less uncommon in academia than among the general public. But most do not enjoy majority support even among academics. There are, of course, many other issues where I go against the views of the majority of academics (who are, on average, much more left-wing than I am). But most of them are cases where my view has much greater support from general public opinion than the above.

UPDATE: I have made a few stylistic changes to this post.

Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.”  (Available free and not behind the subscriber wall.)  It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.

The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right.  There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security.  It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones.  Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.

Commentary is a conservative magazine, obviously, and I’m writing there as a conservative for a conservative audience.  The framing above is political.  But there’s a much more neutral, less political way of framing the issue that ought equally to appeal to the broad national security center across both parties: the core elements of US counterterrorism policy, including detention policy and the whole range of what I’ve sometimes called “counterterrorism-on-offense” (including drones), needs to be put on a much firmer and more permanent basis.

Call this “institutional settlement” in counterterrorism strategy.  We need an institutional settlement around counterterrorism – we have a lot of policies that work pretty well, but they rely largely on executive branch discretion.  There are substantive reforms that need to be made in order to institutionalize counterterrorism policies, and they depend upon the two political branches coming together to give them legitimacy.  In my view there is broad agreement in the center as to these policies in substance; what they lack is a political foundation in actual legislation.  (But giving important credit, let’s note that Rep. Mac Thornberry (R-TX) has just offered legislation that would begin to address legislatively the accountability and oversight issues created by the growth of military special operations; on my first read, it looks like a very good start.)

The fault lies both with the administration and with Congress, but one way or another we today owe it to whoever is responsible for national security tomorrow to make sure that there is a stable, functional, institutionally legitimate framework going forward.  It won’t ever satisfy certain constituencies ever – a big chunk of the international community, Obama’s leftwing, or the Pauline wing of the Republican Party, which are simply at odds with the substance – but it is the pretty clear view of the broad center of both voters and this country’s leadership.  That said, precisely the fact that in the political center most everybody’s on board with the substance means that it’s hard to generate energy to give it the process, oversight, and accountability legs it needs to make its legitimacy permanent.  But institutional settlement, stability of the framework over time and administrations of different parties, matters hugely.

Certainly I hope the President’s speech tomorrow reaches out to address the needs of institutional settlement.  And I very much hope that Congress, and Congressional Republicans especially, take up the opportunity to find ways to engage legislatively – legislating as if there might be both Republicans and Democrats in the presidency.

(And thanks to John Podhoretz, editor of Commentary, for getting this June article up early in advance of the President’s speech, and for making it available free to non-subscribers.  Plus, for anyone interested, at this moment it looks as though I’ll be part of a roundtable commenting on the speech on To the Point on NPR tomorrow afternoon.)

This Vancouver Sun article reports that dogs are much more effective at sniffing out meat than drugs [HT: Steve Bainbridge]:

Federal search dogs at international border entry points have a penchant for sniffing out one thing more than anything else: meat.

In fact, dogs trained to find animal products turn up meat around 20 times more frequently than drug-sniffing dogs find narcotics, according to government documents obtained by Postmedia News under access-to-information legislation.

The release of the data comes as federal officials question the necessity and effectiveness of the dogs, with the Canada Border Services Agency dismantling some of its search-dog teams over the past year – a move the federal union believes will erode the ability to quickly search incoming cargo and seize drugs and firearms.

The article gives lots of explanations for this entirely unsurprising finding. But it ignores the obvious points that dogs like meat a lot more than drugs. Meat is edible while drugs (usually) are not. Thus, your average canine has evolved to be a much better meat detector than drug detector. In addition, as I discussed in this post, drug-sniffing dogs often err because their main objective is to please their human handlers rather than find the drugs as such; as a result they tend to signal “false positives” if they sense that that’s what the handler wants. By contrast, meat-sniffing dogs have reasons of their own for finding meat. The point is so glaringly obvious that this could be considered a dog-bites-man story – except that it is actually much more common for dogs to bite pieces of meat than humans.

Unfortunately, there is a more serious side to the story. Despite the fact that drug-sniffing dogs have a high error rate, government policy – and even Supreme Court decisions - are often based on the assumption that they are far more accurate than the evidence shows.

Anger at Chinese hacking continues to build in American business and government circles.  As a result, establishment figures have begun to embrace the idea of letting private companies do more than passively defend their networks.  The latest evidence is the report of a commission headed by two Obama appointees, former US Ambassador to China (and minor GOP Presidential candidate) Jon Huntsman and former Director of National Intelligence Dennis Blair. The report apparently names Chinese hacking as a major threat to intellectual property (it’s due out later today).  And according to early press reports the commission calls for an expansion of private companies’ authority to track their stolen data back to the attacker’s network:

“The commission argued that American companies “ought to be able to retrieve their electronic files or prevent the exploitation of their stolen information” by designing their computer files to self-destruct if they fall into the wrong hands. But the authors of the report also say that if the damage “continues at current levels,” the government should consider allowing American companies to counterattack — essentially taking cyberwar private.

“If counterattacks against hackers were legal, there are many techniques that companies could employ that would cause severe damage to the capability” of the Chinese or other groups committing computerized theft, the report said. But it added a qualifier: “while properly empowered law enforcement authorities are mobilized.” Many in the administration have opposed such ideas, fearing that they could lead to a cycle of escalation between the United States and other nations that could easily spin out of control.”

The commission also adopts another view first popularized here:  that attribution of attacks should be followed by retribution, and it comes up with at least one clever bit of retribution that I’d missed:  restrictions on access to US stock exchanges:

“The new report does propose specific remedies. One is to mandate that foreign companies that want to be listed on stock exchanges in the United States first pass a review by the Securities and Exchange Commission about whether they use stolen intellectual property. “They all want their shares to be traded here, so this would impose a real cost,” Mr. Blair said. Similarly, whether companies protect intellectual property would be considered by the Committee on Foreign Investment in the United States, which judges whether an investment in the United States could pose a security risk. Currently it looks only at national security implications of investments; this would add a new criterion.”

Lenta.ru so reports. The bill would criminalize “actions in public, demonstrating clear disrespect to society and committed with the intent to insult the religious feelings of believers,” with the maximum punishment being one year in prison, or three years if the actions are committed in a place of worship. The final vote on the law is expected by the end of the week. Thanks to my father Vladimir Volokh for the pointer.

At the Lawfare blog, a communication from an unidentified “senior national security official” in the Obama administration on the leak investigation against Fox News’ James Rosen.  It’s striking that a senior official would decide to communicate these views via a blog – though Lawfare (whose editor-in-chief is the former Washington Post journalist turned Brookings scholar Benjamin Wittes) has evolved into something closer to an edited magazine than a blog, with a readership that includes the key national security community in DC.  The unnamed official’s comments raise issues touched on by some of the analyses here; I leave it to others here at VC more expert than I in these areas to say what it means. An excerpt:

[T]he Administration has been roundly [criticized] for suggesting that a reporter who knowingly solicits classified information might be committing a crime. At the risk of violating the old adage about not picking a fight with someone who buys printer’s ink by the barrel, I want to take this on.

Apropos the recent posts on the Administration’s leak investigations and the press, I thought I’d note three items by our own Jonathan Adler from when a similar issue arose during the Bush Administration: Reporting Is Not a Crime: Conservatives Should Think Twice About Criminalizing Journalism (National Review Online), A Troubling Prosecution: United States v. Rosen Has Its Thorns (National Review Online), and Prosecuting the Press (a chain of posts on the subject here at the Conspiracy).

I just ran across the Tennessee statute, Tenn Code Ann. § 36-6-404, that provides the factors that courts are to consider in determining physical custody as between two parents. Many states have such lists of factors, but the bold text seems to me to be unique to Tennessee:

(b) ... The court shall make residential provisions for each child, consistent with the child’s developmental level and the family’s social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child’s residential schedule shall be consistent with this part. If the limitations of § 36-6-406 [which basically deal with abusive, neglectful, criminal, or otherwise unfit parents] are not dispositive of the child’s residential schedule, the court shall consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

[Other factors, which are much more common in such statutes than factor 1 is, omitted. -EV]

(16) Any other factors deemed relevant by the court.

Now I know that Tennessee is the Volunteer State, but preferring parents who can inspire and encourage the child “to prepare for a life of service” strikes me as an improper judgment on the government’s part, and an interference with the parental rights of those parents who don’t favor “a life of service,” or whose vision of “a life of service” is different from the court’s. And a recent case, Wood v. Wood (Tenn. Ct. App. May 16, 2013) (nonprecedential) (emphasis added), suggests that this isn’t just an empty phrase that would be equally satisfied by all reasonable educational plans:

Mother argues that this factor favors her because she values education more than Father as she has a college degree whereas Father was suspended from college for failing grades. In addition, Mother argues that she cares more about the child’s education because she enrolled the child in a college preparatory school. While we agree that Mother appears to care substantially about the child’s education, even Mother agreed that the proposed school in Union City is a good school for the child to attend. In addition, while Father’s own college endeavors proved unsuccessful, nothing suggests that Father does not value education for the child. Further, beyond school, Father testifies that he exposes the child to a church environment, which may help the child prepare for a life of service. Accordingly, we conclude that this factor favors neither parent.

Yet preferring more religiously observant parents over less observant ones, whether because “a church environment” promotes “a life of service” or for some other reason, strikes me as a violation of the First Amendment; see also Part I.D of my NYU Law Review article on the First Amendment and child custody.

The origin of the phrase in Tennessee law seems to be Bevins v. Bevins (Tenn. Ct. App. 1964); the Tennessee statute seems to, among other things, codify part of the Bevins court’s analysis. Here’s the relevant passage:

The real matter to be considered is what is the best thing to do with these children that they may be left in a home where they are nurtured, loved, appreciated and where the environment is such that is conducive not only to the physical welfare of the child, but to its emotional and moral welfare, and where it can have the instructions from those who have control over it to inspire it to activities so as to develop a personality prepared for a life of service, and to successfully compete in the society which the child faces when an adult. Stated in a few words, it surely could be said that if there is a supreme rule to follow, that the consideration to be given determinative significance is in “respect to its temporal, and its mental and moral welfare” of the child as such, and the personality that it is expected to be when it becomes an adult.

For an earlier reference to the term in another state, see In re Hock, 88 N.E.2d 597 (Ohio. Ct. App. 1947): “It is difficult to conceive of any justiciable subject upon which courts may be required to pass which assumes the grave importance incident to the determination of what shall be the environment of a human life, especially when such determination is made shortly after such life has come into existence. The decree of disposition may result in a happy life of service, or it may be permanently calamitous in its effect upon all concerned.”

If anyone can elaborate further on whether “life of service” has any meaning other than the one I gathered from some quick search — a life of service to the community (or to some other higher cause, such as God) — I’d love to hear it.

Via John Steele at Legal Ethics Forum comes news that Lois Lerner, the Internal Revenue Service official who oversees the tax-exempt office and who first disclosed her office’s targeting of Tea Party groups in response to a planted question at an ABA conference, will invoke her Fifth Amendment right against self-incrimination and refuse to testify before Congress.  Steele thinks Lerner is likely “smart” to take this step, but also suspects she and other IRS officials now wish they had played this issue differently.

In other IRS scandal-related news and commentary, Dave Weigel has a good piece explaining how and why agencies like the IRS are disproportionately staffed by those on the left side of the American political spectrum and, not coincidentally, are most likely to be unsympathetic to Tea Party types and others who call for shrinking the size and scope of the federal government.  As a consequence, there need not have been any orders from above, just as the EPA Administrator need not be responsible for, or even aware that, the EPA is more solicitous of environmentalists than anti-regulatory types in considering FOIA fee waiver applications.  Bureaucrats are people too, and are no less likely to be influenced by their own cognitive biases.  Peter Suderman adds that the real reason the IRS targeted Tea Party groups is that it could.  In other words, this is a problem of government power, not a given official’s particular ideological agenda.

As always, for those who want more, Paul Caron is rounding up coverage and commentary on the TaxProf blog.

Tags: IRS

From today’s Ferguson v. Secretary (11th Cir. May 21, 2013) (thanks to How Appealing for the pointer). Here’s a longer excerpt:

The Supreme Court has decided that a convicted murderer cannot be executed unless he has a rational understanding of the fact that he is going to be put to death and of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60 (2007). In announcing that rule, however, the Court did not decide what rational understanding means in this context. It acknowledged that a concept like rational understanding is difficult to define and cautioned that normal or rational in this context does not mean what a layperson understands those terms to mean....

The habeas petitioner in our case, John Ferguson, contends that under the Panetti decision he is mentally incompetent to be executed. As the facts come to us, Ferguson has a mental illness but he does understand that he is going to die by execution, and he understands that it is going to happen because he committed eight murders. Ferguson also believes, as tens of millions if not hundreds of millions of other people do, that there is life after death. Countless people also believe, as he does, that they are among God’s chosen people. But Ferguson’s religious belief is more grandiose than that because he believes that he is the Prince of God....

One could argue, as Ferguson’s attorneys do, that his belief that he will be resurrected as the Prince of God negates a rational understanding that he will be killed and thereby establishes that he is not mentally competent to be executed. That cannot be correct. Panetti cannot mean that a belief in resurrection or other forms of life after death is inconsistent with the rational understanding of death that is required for mental competence to be executed. If it did mean that, most Americans would be mentally incompetent to be executed.

While Ferguson’s thoughts about what happens after death may seem extreme to many people, nearly every major world religion — from Christianity to Zoroastrianism — envisions some kind of continuation of life after death, often including resurrection. Ferguson’s belief in his ultimate corporeal resurrection may differ in degree, but it does not necessarily differ in kind, from the beliefs of millions of Americans. [Details, including a canvass of many religions throughout the world, omitted. -EV] ...

A conclusion that a particular belief about the afterlife and one’s role in it is extreme enough to be irrational, delusional, and indicative of incompetence to be executed is only a few steps away from the same conclusion about any person who believes in resurrection, in heaven or hell, or in any variation of life after death. Courts should be reluctant to treat as a symptom of mental illness anyone’s belief about what will happen to him after he dies. It is beyond the ken of courts to measure the rationality of religious beliefs –– what will happen to us after we pass through the dark curtain of death is the ultimate non-justiciable question.

Because the state courts’ determination that Ferguson possesses a rational understanding of his execution and the reason for it is not so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement, AEDPA precludes us from disturbing their judgment.