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Saturday, November 19, 2005

"Harry Potter and the Half-Crazed Bureaucracy":

An interesting paper by Benjamin Barton, forthcoming in the Michigan Law Review "Books Related to the Law" issue; Prof. Barton makes a good case (to readers and obviously to the journal's editors as well) that the Harry Potter series indeed consists of Book Related to the Law. I'm skeptical of Prof. Barton's suggestion that the anti-government messages in the Potter series will much influence readers towards libertarianism; but the paper is nonetheless worth reading (and fairly short as law review articles go).

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Harvard Law School Admissions Blog: HLS Assistant Dean of Admissions Toby W. Stock has a blog. Hat tip: Brian Leiter.
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Friday, November 18, 2005

Fifth Circuit Returning to New Orleans: This is very good news:
  The United States Court of Appeals for the Fifth Circuit today announced its plan to return the court's operations to its New Orleans headquarters. The court has operated since Hurricane Katrina from the Bob Casey United States Courthouse in Houston, Texas. The return plan contemplates shutting down the Houston operations at close of business on Friday, December 16, 2005 and reopening for business at the John Minor Wisdom Court of Appeals Building in New Orleans on Monday, January 9, 2006.
  Link via Senor Howard.
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CIA Interrogation Techniques: ABC News has an important report on CIA interrogation techniques used on major Al Qaeda suspects in U.S. custody. An excerpt:
  CIA sources described a list of six "Enhanced Interrogation Techniques" instituted in mid-March 2002 and used, they said, on a dozen top al Qaeda targets incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe. According to the sources, only a handful of CIA interrogators are trained and authorized to use the techniques:

  1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
  2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
  3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
  4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
  5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
  6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.
  The article has lots of interesting and important details about how the techniques are used. Check it out.
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The Dartmouth Review Celebrates 25 Years:

The Dartmouth Review celebrates its 25th Anniversary this year and to honor the occastion, ISI Books will be publishing an edition of the Review's greatest hits. James Panero has more (HT: Dartmouth Review). Love 'em or hate 'em, The Review not only has shaped much of many of Dartmouth's culture controversies for the past 25 years, but has in many ways transformed the face of student journalism across the United States, first among conservative imitators, and later through liberal responses.

As a personal note, it is often assumed that I must have written for the Dartmouth Review while in college--I did not. I was on work-study, and my Freshman year I was hired by a couple of my dormmates to be an advertising salesman for The Dartmouth (the main student newspaper at Dartmouth), which not only was fun, but also took the place of my job washing dishes and mopping floors in the cafeteria. Eventually, I became Advertising Manager of The Dartmouth, then still later, I covered Dartmouth football as the football beat writer my Senior year. (BTW, sports writing is great training for anyone who wants to learn how to write in a lively and active manner--a skill that I fear years of lawyerese has beaten out of me). So I was involved with The Dartmouth all the way through college, which was one of my most pleasant and memorable experiences at Dartmouth.

Anyway, for those interested in such things, Panero promises a rolling feast of The Review's greatest hits on the New Criterion blog over the coming months. The one he has up today is quite amusing.

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Senate Blogging Event: Ed Driscoll has a summary of the Senate blogging event held in the Capitol building yesterday. I attended and asked two questions, including one noted in Ed's report, and I hope to blog more soon about the event and the broader issue of blogs and the political process. For now, though, Ed's report should give you the basic idea.

  UPDATE: RightSideRedux has more info on the event, including links to other summaries and some picures.
Note to Prosecutors: Before filing charges, make sure that what the defendant did was actually a crime. Thanks to Ken Lammers for the link.
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Recent University of Chicago Chemistry Graduate Confesses She Turned to Arson.--

There has been an arrest of a suspect, Julita Groszko, in a recent string of fires in my neighborhood. Groszko is a recent University of Chicago college graduate, who repotedly confessed to setting fires mostly to math and science buildings at the University. The possible motives could have been her difficulties in completing her studies and in getting a job after graduation:

Chicago police say 31-year-old Julita Groszko, a former student who graduated last spring has been charged with aggravated arson, aggravated attempted arson, and criminal damage to property. They also say she admitted her role in setting the fires: one on Monday and three on Tuesday. Those were primarily in Math and Science buildings – Groszko’s field of study.

According to officers, witnesses talked about seeing a woman behave erratically in the buildings and gave a pretty good description of her.

On Wednesday a University of Chicago officer who kept his eyes open saw a woman who matched the description and he smelled accelerant as she passed by. When he stopped her, investigators say she had a gasoline can with what appeared to be an accelerant.

As for motive, police say she was stressed out about not finding a job and about the workload that went into her undergraduate chemistry degree.

She was having a rough time getting through. She actually did end up graduating. Apparently maybe after she graduated she realized that maybe she shouldn’t ’ve had as rough of a time as she had and she took it out on somebody,” Detective Kevin Flanigan of the Chicago Police Department Bomb and Arson Squad said.

Another story on her motive:

Bomb and Arson detective said Kevin Flanigan said Groszko set the fires because she was "upset with the university" in general.

NBC5's Darren Kramer reported that the woman told police she was "overworked" as a student and unable to find a job as a graduate.

"She struggled" with her workload during her time at the university and the act was like getting "revenge" for the university's failure to go easy on her, Flanigan said.

Groszko enrolled in the fall of 1993, and left the university in the spring of 1996, according to Larry Arbeiter, director of communications for the university. She returned in the fall of 2004 and graduated with a Bachelor of Science in chemistry in the spring of 2005, Arbeiter said.

Well, my wife is a Chemistry graduate of the University of Chicago--and it was harder than my being a Poli-Sci student at Yale.

Perhaps it's just as well that I lit the fire in our fireplace last night.

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More Kipling on Gun Control and Other Matters:

Dave's post reminded me of an excerpt from Kipling's The Old Issue; Kipling is warning of what may happen if The Old King (the old absolutist monarch) returns. It's a great summary, I think, of a certain libertarian-conservative constitutionalism -- think, in U.S. terms, of the First (speech), Second, Fourth, and Fifth Amendments (due process), plus concerns about the surveillance state, high taxation, and interference with judicial independence -- with a dollop of slippery slope talk thrown in:

All we have of freedom, all we use or know --
This our fathers bought for us long and long ago.

Ancient Right unnoticed as the breath we draw --
Leave to live by no man’s leave, underneath the Law.

Lance and torch and tumult, steel and grey-goose wing
Wrenched it, inch and ell and all, slowly from the King.

Till our fathers ’stablished, after bloody years,
How our King is one with us, first among his peers.

So they bought us freedom -- not at little cost
Wherefore must we watch the King, lest our gain be lost,

Over all things certain, this is sure indeed,
Suffer not the old King: for we know the breed.

Give no ear to bondsmen bidding us endure.
Whining “He is weak and far”; crying “Time shall cure.”,

(Time himself is witness, till the battle joins,
Deeper strikes the rottenness in the people’s loins.) . . .

Here is naught unproven -- here is naught to learn.
It is written what shall fall if the King return.

He shall mark our goings, question whence we came,
Set his guards about us, as in Freedom’s name.

He shall take a tribute, toll of all our ware;
He shall change our gold for arms -- arms we may not bear.

He shall break his judges if they cross his word;
He shall rule above the Law calling on the Lord.

He shall peep and mutter; and the night shall bring
Watchers ’neath our window, lest we mock the King --

Hate and all division; hosts of hurrying spies;
Money poured in secret, carrion breeding flies.

Strangers of his counsel, hirelings of his pay,
These shall deal our Justice: sell -- deny -- delay.

We shall drink dishonour, we shall eat abuse
For the Land we look to -- for the Tongue we use.

We shall take our station, dirt beneath his feet,
While his hired captains jeer us in the street.

Cruel in the shadow, crafty in the sun,
Far beyond his borders shall his teachings run.

Sloven, sullen, savage, secret, uncontrolled,
Laying on a new land evil of the old --

Long-forgotten bondage, dwarfing heart and brain --
All our fathers died to loose he shall bind again.

At the same time, whenever I quote Kipling's more libertarian words, I also have to recall his more communitarian ones, from The Law of the Jungle (special bonus for law geeks -- Chevron deference included!):
Now this is the Law of the Jungle -- as old and as true as the sky;
And the Wolf that shall keep it may prosper, but the Wolf that shall break it must die.

As the creeper that girdles the tree-trunk the Law runneth forward and back --
For the strength of the Pack is the Wolf, and the strength of the Wolf is the Pack. . . .

Because of his age and his cunning, because of his gripe and his paw,
In all that the Law leaveth open, the word of the Head Wolf is Law.

Now these are the Laws of the jungle, and many and mighty are they;
But the head and the hoof of the Law and the haunch and the hump is -- Obey!

Related Posts (on one page):

  1. More Kipling on Gun Control and Other Matters:
  2. Rudyard Kipling on Gun Control
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Conceptually Important Constitutional Law Questions That Aren't Often Asked:

Michael Froomkin has a great list; here's a sample:

Around the country, law students who study Constitutional Law in the Fall sone will be studying for their finals; not long afterwards, those who study it in Spring will start up their course. So it's as good a time as any to list the questions that, back in the days I used teach Constitutional Law I, I used to ask my students during the first week of class.

Some of these questions are very easy (although even in those cases, the answers may surprise you); some only appear to be. Others are inspired by real and difficult cases; a few illustrate doctrines of constitutional interpretation, some more controversial than others. And perhaps one or two don't have answers, or at least not answers that everyone agrees to. Which is remarkably odd given the simplicity of most of these questions....

Read The US Constitution, and the Amendments then take the quiz...

1. What clause, if any, of the Constitution permits Congress to establish an air force? . . .

3. May Congress pass secret laws? If so, may (must?) the courts enforce them? . . .

7. What is "corruption of blood," and why do we care? (you did look it up, didn't you?) . . .

9. Can a person simultaneously be a Member of the House of Representatives and hold office in the Cabinet? . . .

11. Is there anything in the federal constitution that would prevent Congress from being chosen by a lottery among all registered voters?

12. Can Generals be impeached? . . .

18. Could Congress validly give the Chief Justice the power to appoint the Attorney General? . . .

The answer to the first question is here (though for the record I think that what Michael derides as the "wimpish" answer is actually perfectly fine, though other answers can also reinforce it).

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Drezner on Boynton on Academic Blogging:

Daniel Drezner has some comments on the Robert Boynton article in Slate that discussed academic bloggers and prominently featured a discussion of Drezner's own experience (though, as Drezner notes, Boynton never contacted Drezner for the article).

Here are more thoughts from Ann Althouse and John Hawks.

Related Posts (on one page):

  1. Drezner on Boynton on Academic Blogging:
  2. Boynton on Academic Blogging:
Oh, Good Lord:

Stop the ACLU favorably quotes this press release:

The Reverends Rob Schenck . . . and Patrick J. Mahoney will visit ACLU headquarters today to hand-deliver more than 20,000 petitions demanding that the left-leaning liberal attack group back off of terrorizing communities and individuals who seek to affirm America’s Judeo-Christian values.

Schenck, who heads up Faith and Action in the Nation’s Capital, and Mahoney, director of the Christian Defense Coalition, asked their respective members to sign the statements after the ACLU sued a small rural school district in Adams County, Ohio, over four displays of the Ten Commandments in front of public schools there. The ACLU won an order for the Commandments to be removed, then demanded that the school reimburse them for legal expenses. After Christian ministers in the community stepped forward with a pledge to replace the money taken from the school budget, the ACLU settled for $80,000.

“The ACLU is this generation’s Ku Klux Klan,” said Rev. Rob Schenck. “They gallop into small towns with legal hoods over their heads and terrorize good people by threatening to harm children by draining the coffers of local schools if they so much as dare to recognize our nation’s true heritage. These ACLU bullies are nothing more than psychological terrorists.” . . .

Yup, that's right, ACLU=KKK, presumably just like on the other side Bush=Hitler. Murdering blacks and threatening blacks is very closely related to filing lawsuits to enforce what courts have, rightly or wrongly, held to be the constitutional rule. Oh, and it's terrorizing, too: A terrorist who murders innocent civilians is a fine analogy for a lawyer who files a lawsuit that you think should be meritless (though under our legal system's rules is likely meritorious).

Might it be possible that someone you strongly disagree with is . . . simply misguided? Takes an erroneous view of the Constitution? Has a misplaced sense of priorities? Is something other than a Klansman, a terrorist, a Nazi, a fascist, or whatever else?

UPDATE: I wrote that "Stop the ACLU favorably quotes this press release" because the post quoted the release and then said "I’m not sure it will do any good, but its great to see that people are out there fighting the good fight with us."

The Stop the ACLU people now tell me, though, that they don't endorse the press release's description of the ACLU; an update on their post reads: "I do not think the ACLU are terrorists as in killing people. I don’t think they are anything like the KKK as far as race goes. While I understand the feelings, I do not endorse these descriptions of the ACLU, but I do endorse the action of taking the petitions asking them to back off." I'm pleased that Stop the ACLU takes this view, though puzzled as to why they would nonetheless quote the press release favorably. In any event, my criticism of the press release, and of those who would endorse it, still stands.

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FAIR v. Rumsfeld:

A couple of interesting columns in the Weekly Standard on FAIR v. Rumsfeld, the Solomon Amendment case, "Don't Serve / Don't Tell: The limits of liberal tolerance at Harvard Law School" by Harvard Law Student Kate Thornton Buzicky and Scott Johnson's "JAGS Not Welcome: America's top law schools try to figure out a way around the Solomon Amendment."

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Rudyard Kipling on Gun Control

"When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes would cease.
But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said 'Stick to the Devil you Know.'"

Rudyard Kipling, "The Gods of the Copybook Headings" (1919). The full poem is about the perpetual folly of mankind in forsaking the elemental truths learned in school (the gods of copybook headings) in favor of seductive, but ultimately destructive, utopian teachings (the gods of the market place). For example,

"In the Carboniferous Epoch we were promised abundance for all,
By robbing selected Peter to pay for collective Paul;
But, though we had plenty of money, there was nothing our money could buy,
And the Gods of the Copybook Headings said: 'If you don't work you die.'"

Related Posts (on one page):

  1. More Kipling on Gun Control and Other Matters:
  2. Rudyard Kipling on Gun Control
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Kuwaiti Gun Prohibition

Gun News Daily links to an article from Arab Times reporting that Kuwait has raised the penalty for gun possession from a five year sentence to a ten year sentence. Kuwait bans all firearms possession, except that the wealthy and well-born have a very limited ability to acquire hunting guns.

Regarding gun control, the policy of the Kuwaiti royal family for Kuwait appears to the same policy that Saddam Hussein had for Kuwait, except for milder penalties. Hussein had decreed the death penalty for any Kuwaiti possessing firearms without his permission, and had ordered that all guns be surrendered to the Iraqi army.

After Americans died to put the Kuwaiti royal family back on the throne, one royal family member announced, immediately after the cease fire: "The first thing we must do is to disarm the resistance to restore order." In other words, take the guns away from the brave Kuwaitis who had been fighting for their homeland, in order to assure the continued rule of a royal family that danced away the war in Cairo nightclubs.

Once back in Kuwait, Interior Minister Hamoud Sabah decreed a 15 year prison term for citizens who fail to surrender their guns. (Since the, the penalty has apparently been reduced and then recently increased.) Since the Minister's decrees have been repeatedly ignored, the government enforced the ban with house-to-house searches.

Said one Kuwaiti resistance fighter: "We trust no one; the guns are the only protection we have from the Palestinians and the government. We earned these guns. We stayed here and fought. The government didn't." [Before 1991, Kuwait had a huge population of Palestianian guest workers, many of whom supported the Saddam invasion. Afterwards, they were expelled.]

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Thursday, November 17, 2005

What Sir William Blackstone Might Have Said About Law Professors

(I posted this last year, but it's worth repeating): Blackstone was the leading late 18th century commentator on English law, and highly influential in the colonies, and this is what he had to say about why the English common law was better than the Continental civil law:

The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration. I may instance in the civil law: the text whereof, as collected by Justinian and his agents, is extremely voluminous and diffuse; but the idle comments, obscure glosses, and jarring interpretations grafted thereupon by the learned jurists, are literally without number. And these glosses, which are mere private opinions of scholastic doctors (and not, like our books of reports, judicial determinations of the court) are all of authority sufficient to be vouched and relied on; which must needs breed great distraction and confusion in their tribunals.

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Seeking Arguments Why Blogs Should Be Treated Worse Than the Mainstream Media:

I'm writing a law review article on whether bloggers should be entitled to various protections that mainstream media writers get -- the media exemption from campaign finance laws (which the FEC just said bloggers should generally get), the journalist's privilege, protection under libel retraction statutes, and the like. For this, I'd like to thoroughly canvass the various arguments why bloggers should not get such equal treatment. I know I've seen plenty, and I'm sure I can find some of them, but I'm afraid I might miss many.

I'd therefore like to ask for your help: Can you point me to arguments -- whether from professional journalists, academics, government officials (legislative, executive, judicial, or otherwise), or bloggers -- why bloggers shouldn't be entitled to the special protections offered to the media? Specific citations or URLs would be especially useful.

I am not looking for arguments that bloggers should be entitled to such protections, or that no such special protections should exist. I am only looking for arguments that they should be denied such protections. If you have some, please post them in the comments. Thanks!

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Luther and the Christian Duty to Defend Innocents

The Wisconsin legislature is currently considering adopting a concealed handgun licensing law, similar to the laws in 38 other states. The legislature is acting in part because the Wisconsin Supreme Court (as I detailed in an Albany Law Review article) ruled that Wisconsin's statutory ban on concealed carry violates the state constitution's right to arms clause. The court urged the legislature to consider statutory reform.

Opposed to reform is Rev. Sue Moline Larson, who is director of the Lutheran Office for Public Policy in Wisconsin. On a November 13, The Capital Times & Wisconsin State Journal published her op-ed "Most women here don't want it: Neither would Martin Luther."

It seemed astonishing for Rev. Larson to claim to know Luther's opinion on a bill written more than four centuries after his death. Most of Rev. Larson's op-ed was a recitation of the typical bogus statistics propounded by the gun prohibition lobby. Regarding Luther, her argument Luther was:

"Martin Luther recognized that every person is both saintly and sinful, capable of the most exalted acts of goodness and the most depraved despotic acts of criminality. Good people may have more disciplined control of their impulses, but good people can drink too much and become threatening and belligerent, fall into depression and lash out in anger and despair, or have frightening experiences that trigger hasty and harmful behaviors.
...
The Evangelical Lutheran Church in American [sic] is guided by a vision in which people are free from violence, justice is done and the common good is realized."

Whatever may be said about Rev. Larson's "vision in which people are free from violence," it quite plainly is not the vision that Martin Luther articulated.

In Luther's lengthly commentary The Sermon on the Mount (written in 1530, and published 1532), Luther argued that an individual Christian was forbidden to defend himself. A Christian could not defend himself with a sword, and he could not even defend himself by going to court.

In contrast to the Christian as individual, wrote Luther, there was the "Christian-in-relation" who had an "obligation" to "some other person, whether under him or over him or even alongside him, like a lord or a lady, a wife or children or neighbors, whom he is obliged, if possible, to defend, guard, and protect." For the Christian-in-relation, it was "ridiculous" to say "turn the other cheek"—like "the crazy saint who let lice nibble at him and refused to kill any of them on account of this text, maintaining that he had to suffer and could not resist evil."

A superior's duty to the people under him or her came from "the imperial or the territorial law." Only a "crazy mother" would not defend her child from a dog or a wolf. Christ "did not abrogate this duty, but rather confirmed it."

"Similarly, if a pious citizen sees violence and harm being done to his neighbor, he should help to defend and protect him. This is secular business, all of which Christ has not forbidden but confirmed."

In short, Luther did not imagine, at least in earthly world before the end of time, some utopia free of violence. To the contrary, he recognized that violence (from wolves and from human predators) existed, and he insisted that good Christians had a duty to use force to defend their neighbors against such violence.

Because of Luther's realistic understanding of human nature, he was also an advocate of the well-established Christian tradition of Just War. Directly rebutting pacifists, Luther wrote "Whether Soldiers, Too, Can Be Saved" in 1526, and answered in the affirmitive:

"But what are you going to do about the fact that people will not keep the peace, but rob, steal, kill, outrage women and children, and take away property and honor? The small lack of peace called war or the sword must set to limit, to this universal, worldwide lack of peace which would destroy everyone."
Much more reluctantly, Luther eventually endorsed the right of revolution against tyranny, in extreme circumstances. In the 1531 "Warning to His Dear German People," Luther encouraged armed resistance to the Holy Roman Emperor, who was attempting to extinguish the Reformation by armed force::

"...when the murderers and bloodhounds wish to wage war and murder, it is in truth no insurrection to rise against them and defend oneself….Likewise, I do not want to leave the conscience of the people burdened by the concern and worry that their self-defense might be rebellious…. …self-defense against the blood-hounds cannot be rebellious."
It's an interesting question whether Luther's writings on resistance in 1531--which presumed that the right of self-defense was obvious--represented a step away from his 1530 text denying that Christians could defend themselves. But what is indisputable about Luther is his belief that good Christians sometimes had an affirmtive duty to use violence--in defense of others, in just wars, and in resistance to tyranny. It is preposterous for the Religious Left of the 21st century to tell people that Luther would have been against a law which allows people, under a detailed regulatory system, to carry arms for the defense of their families and other innocent people, when attacked by animals or by criminals.

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Anonymous Blogging:

In the wake of David Lat's decision to come forward as A3G, Howard Bashman has some thoughts on the viability of anonymous blogging. Howard is absolutely correct that truly anonymous blgging is exceedingly difficult to do, particularly if someone is determined to find out who you are and you respond to e-mails and blog on matters that relate to your professional or personal interests. I believe Howard was one of the first to figure out who I am, but he certainly was not the last. Indeed, I am quite surprised that my pseduonym has lasted this long and that I have not been unmasked by a reader less respectful of my decision to blog pseudonymously than Howard has been. In any event, this discussion will soon be moot, as I will not be blogging as Juan much longer. (And when that happens, I am quite certain it will generate less surprise, attention, and comment than with A3G.)

UPDATE: More on this subject at Concurring Opinions and Half Sigma.

UPDATE: Still more worth reading at Prawfsblog.

George Mason University Speech Codes:

The Foundation for Individual Rights in Education has some apt criticisms. It's not completely clear what happened in the particular incident that triggered FIRE's interest, but I agree that the policies that FIRE has uncovered -- policies that (1) bar distribution of "flyers/leaflets" that are "inconsistent with the educational mission of the University," and that (2) require "prior authorization" for posting materials, distributing or selling newspapers, seemingly without any requirement that the authorization be given promptly and viewpoint-neutrally -- are unconstitutional and inconsistent with academic freedom principles. (More details here.)

To its credit, GMU seems to be looking at the problem closely. To its discredit, there's a problem here that does need fixing.

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Noted Historian Arrested for Supposedly Spreading False History:

The AP reports:

British historian David Irving was arrested last week in southern Austria on a warrant accusing him of denying the Holocaust . . . .

Irving was detained on a warrant issued in 1989 under Austrian laws that make Holocaust denial a crime, Golia said. The accusation stemmed from speeches Irving delivered that year in Vienna and in the southern town of Leoben.

Irving in the past has faced allegations of spreading anti-Semitic and racist ideas. He is the author of nearly 30 books, including "Hitler's War," which challenges the extent of the Holocaust. . . .

If formally charged, tried and convicted on the charge, Irving could face up to 20 years in prison . . . .

Let me briefly explain why I think Holocaust denial laws are so pernicious:

Naturally, I don't remotely agree with Irving's views, as I've heard them described. But why? I haven't researched the subject myself. I'm relying on the consensus of scholars, as we must on virtually all topics (except the few on which we can do primary research).

Yet that conventional wisdom is only reliable to the extent that people are free to challenge it. If both sides are able to make the arguments, and the overwhelming majority of experts comes to a particular view, that's pretty strong reason to believe that view. But if one side is barred from making its argument, then the consensus of experts tells you much less about the true merits of the debate. Maybe there's some fact out there that would shatter the consensus, but it just isn't being exposed because it's a crime to make that argument.

Consider a subject on which we've heard much less, the death of millions of Armenians in Turkey during World War I. I suspect that this subject is much less familiar to our readers than is the Holocaust; it certainly is much less familiar to me. Ask yourself: Which scenario would most make you confident of the assertion that the Turks deliberately tried to exterminate the Armenians -- (1) leading historians all agree that this happened, and while contrary arguments may legally be made, leading historians aren't persuaded; (2) leading historians all agree that this happened, and it's illegal to make contrary arguments? It seems to me that scenario 1 would create far more confidence than scenario 2.

True, the fact that advocacy of a historical position is banned by a generally democratic country is some evidence that the position is false. In that sense, the laws banning Holocaust denial do have their intended effect of further discrediting the false theory. But it's not very strong evidence, it seems to me; even generally democratic countries are capable of promulgating myths, and political judgments will often turn on matters other than dispassionate historical inquiry. On balance, it seems to me that the fact that a theory may be spread but has been roundly rejected is much stronger evidence of the theory's invalidity than is the legal judgment that the theory may not be spread.

I've always had little patience for claims that speech can't cause harm. Of course speech can cause harm. If speech has the power to do good, it has the power to do harm; and many kinds of harm -- political violence, organized racial violence, and the like -- are almost always caused in large part by speech. People can vandalize, steal, rape, or kill simply because of their own purely internal passions. I suspect that they can even attack someone of another group without having heard bigoted speeches. But people generally don't plan suicide bombings without having been primed for this by political or religious advocacy. They generally don't organize pogroms without having heard racist hatred.

Rather, it seems to me that speech must be defended on the grounds that letting the government restrict speech ultimately causes more harm than protecting it. And it seems to me that letting the government decide that certain historical claims are illegal will ultimately do much more harm than good.

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"Support Creditors" Under Bankruptcy Reform Law:

Years ago, in the early days of the bankruptcy reform debate, the argument was made that somehow the bankruptcy reform legislation would injure those seeking to collect domestic support obligations from divorced spouses/parents. Given the manifest and unequivocal improvements for these creditors in the legislation, this argument was soon recognized to be unsupportable, and largely disappeared soon thereafter, except for a periodic whisper campaign that the press occasionally still picks up. The relevant provisions are well-summarized in the testimony of nationally-respected child support enforcement expert Philip Strauss before the Senate this year.

Nonetheless, despite this demonstrable improvement of position for domestic support creditors, a residual argument remains. I have seen it many places, but most recently in this new student note , but I have even seen the argument in recent updates to bankruptcy casebooks. So while I pick on this particular example because it just came across my desk, I have seen it elsewhere. The argument typically goes something like this (emphasis added):

A more important but less widely perceived consequence of the 2005 Act is that it indirectly jeopardizes support creditors by increasing competition for scarce postbankruptcy resources. Whereas support creditors once occupied a privileged position as one of the few classes of creditors with “nondischargeable” claims, the 2005 Act allows certain lenders, such as commercial creditors, to more easily pursue their claims beyond the point of bankruptcy, pitting these lenders against support creditors in an unstructured battle for the debtor’s future income and assets. Because support creditors are far less adept than credit card companies at recovering debts in this unregulated environment, the 2005 Act effectively reduces support creditors’ chances of receiving much-needed compensation.

While intuitively plausible, it turns out that this argument is confused on many levels and rests on a misunderstanding of the nature of debt-collection outside bankruptcy (or as in this situation, after bankruptcy). Outside bankruptcy there are two relevant types of creditors--regular creditors and these support creditors. Making debt of regular creditors nondischargeable after bankruptcy is functionally the same as the nonbankruptcy world, so it is the same analysis.

Ceteris paribus is is certainly the case that in a hypothetical "unregulated environment," institutional creditors could be more adept than support creditors in collecting debts--this is the intuitive argument. But is the non-bankrutpcy world an "unregulated environment"? Of course not. Precisely because of this potential imbalance in power, support creditors have a multitude of protections that regular creditors lack, regardless of how big and bad those creditors may be. These protections include intercept of tax refunds, suspension of drivers licenses and passports, government assistance in collection including interstate collection, and last but certainly not least, prison. So the argument is based on an incorrect premise.

But one need not even be familiar with all of the advantages for support creditors in order to recognize the fallacy of the argument. Again, the relevant benchmark here is simply nonbankruptcy debt collection. Thus, any scenario about life under the bankruptcy reform legislation is identical to life outside bankruptcy generally. As a result, the notion that credit card companies somehow can "beat" domestic support creditors would be reflected in practice outside bankruptcy today. I am not aware of a single shred of evidence that suggests that this supposed scenario actually exists under nonbankruptcy law today. None. If this nightmare scenario were true, then exactly the same competition exists under nonbankruptcy law, and the problem would exist. The reason again is obvious--nonbankruptcy law gives so many advantages to support creditors that the notion that there is some sort of "competition" between support creditors and other creditors is simply a fiction. They are essentially different in kind, not merely degree from one another. Debtors are not paying their credit card debts instead of their support debts, at least not because credit card issuers have some sort of "leverage" that others do not. They are not paying any of them, and if they are not paying their support debts there is no evidence that it has anything to do with the leverage that other creditors have, but for a myriad of other reasons. If the competition was a problem (and there is no evidence that there is), then the solution would be to provide further changes to nonbankruptcy law collection rules.

As Strauss again observes, given the many, many advantages provided to support creditors under nonbankruptcy law, the notion that there is a "competition" either outside bankruptcy or after bankruptcy simply rests on an erroneous understanding of how such debts are collected. The biggest problem support creditors faced, therefore, was debt-collection inside bankruptcy, not this supposed conflict outside bankruptcy. He summarizes the point (emphasis added):

Even when the debtor is not a wage earner, support creditors have numerous and highly significant advantages over other creditors. While this list is certainly not exhaustive, support creditors have the following remedies not possessed by other creditors, and certainly not credit card or other financial creditors: (a) support debts are already reduced to judgments and have the advantages of court process to collect judgments; (b) tax intercept collection; (c) interception of unemployment benefits/worker compensation benefits; (d) free or low cost collection services by the government; (e) license revocation for nonpayment of support; (f) free or low cost interstate collection, including interstate wage withholding and interstate real property liens; (g) criminal prosecution or contempt actions; (h) no avoidance of judicial liens securing the support debt; (i) federal collection and prosecution for support debts; (j) denial of passports; (k) collection from otherwise protected sources: ERISA plans, trusts, and federal remuneration. To say that these advantageous remedies will necessarily result in the collection of support is not possible. Many support debtors are actually quite skillful evaders of support obligations. These same people will probably be just as adept at avoiding collectors from financial institutions. The point to be made, however, is not that support debts will necessarily be collected after bankruptcy, but that the collection of support debt is in no way hampered simply because credit card debt has survived bankruptcy and financial institutions are going to attempt to collect it.

Some have argued that after bankruptcy a support debtor will be inclined to pay credit card debt to retain a credit card and not pay support. Of course, this argument assumes that after bankruptcy the debtor will find an institution willing to extend credit. Even if one did, it seems unlikely that retention of a credit card would be more important than retention of a driver’s license, staying out of jail, or keeping a passport. The bottom line as I see it in analyzing S 256 with respect to its effect on the collection of support is to note that the advantages explicit in the bill far outweigh any speculative concerns that some debtors might not pay support if they are left with credit card debt after bankruptcy. What concerns support collection professionals the most in carrying out their duties is not competition with financial institutions outside bankruptcy, but competition with other general creditors, including financial institutions, during bankruptcy. S 256 readjusts the relative strength of support creditors during the bankruptcy process, giving them meaningful, even crucial, assistance. The support provisions of this bill certainly justify the approval given them by virtually all of the national public child support collection organizations in this country.

Again, my request here is simple--I would hope that commentators and scholars studying the effects of the legislation going forward would focus on what the bill actually does and the actual impact it will have, rather than speculative claims and basic factual errors about how debt collection works outside bankruptcy. I have yet to see a critic of these provisions who is either aware or acknowledges the massive protections given to support creditors and to discuss why these are insufficient or insufficient only for post-bankruptcy debts but not nonbankruptcy debts generally. This is not to say that we shouldn't also adopt the Note's policy recommendations on top of what is already done (or other proposals), but that is a separate question.

22 Comments

Wednesday, November 16, 2005

A Very Tentative Reaction to the Patriot Act Compromise: I just finished reading the compromise language hammered out to settle the future of the Patriot Act, and I wanted to blog some initial thoughts. Importantly, these thoughts are highly tentative: I sat down with the 97 pages of statutory text for about an hour before I started to write this post, and it's always possible I missed something important or misconstrued some key sections. With that caveat made, here is my take. [UPDATE: This posts assumes the compromise bill will become law, although according to this story, it may not.]

  This is a win-win bill, but on the whole it's more of a win for the Administration. The basic structure of preexisting law remains in place, but the new law bolsters judicial review and enhances record-keeping and Congressional oversight concerning some of the most controversial provisions of the Patriot Act. From the government's perspective, they get to keep the Patriot Act, subject to some new restrictions. From a civil libertarian perspective, they are stuck with the Patriot Act, but get some of the increased judicial review and Congressional oversight they wanted. On the whole, the compromise is more or less what I expected. Each side gave up something relative to their positions in 2001, but the Administration's better bargaining position (owing to a relative lack of current public opposition to the Patriot Act) meant that the government gave up less.

  Here is a summary of the key developments.

  Section 215 Orders. The big changes here are judicial review of order applications, explicit rights to challenge orders, and increased Congressional oversight. To obtain a Section 215 order for the production of "tangible things," the government must show facts establishing reasonable grounds that the items are relevant to an authorized investigation. The language here is pretty poorly written, but I think the factual showing is reserved for cases that do not invove a "United States person," FISA-Speak for U.S. citizens and lawful permanent residents. The basic idea: the government has to prove the case for relevance to a judge if the order concerns a citizen or permanent resident.

  The Section 215 provisions add a regime of judicial review after the order has been signed, as well. People who receive a Section 215 ordes can consult with attorneys and challenge the order in the FISA court on the ground that the order "does not meet the requirement of [the] section or is otherwise unlawful." The FISA Court of Review can hear appeals from the FISA court's resolution of those challenges, and the losing party can then file a petition for certiorari before the Supreme Court.

  DOJ has to do lots of record-keeping relating to Section 215 orders, as well. In annual reports, DOJ must disclose the number of orders granted, modified, or denied, and must give breakdowns for particular types of orders, such as library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, etc. Finally, the DOJ Inspector General has to do a comprehensive and detailed audit of how Section 215 powers are being used.

  Sneak and Peek Warrants. The compromise bill also imposes a few additional limitations (albeit rather weak ones) on delayed notice warrants. Existing law permits judges to delay notice on warrants for a "reasonable period" for a range of reasons. The new language replaces the "reasonable period" standard with this rather puzzling standard: "a reasonable period not to exceed 30 days after the date of [the warrant's] execution, or on a later date certain if the facts of the case justify a longer period of delay." I suppose judges may read this as establishing a presumption that a "reasonable period" normally will not exceed 30 days, but it's not really clear.

  The sneak-and-peek provisions also add a requirement that judges who authorize delayed notice warrants must file a report with the Administrative Office of the United States Courts explaining that a warrant was applied for, and granted, listing the period of delay, and the crime under investigation. The Administrative Office will then provide Congress with an annual report summarizing the data they received by judges. It'll be interesting to see if the reporting requirement makes some judges less willing to issue delayed notice warrants; I would imagine that some judges would rather not have to file the reports.

  National Security Letters. Finally, the compromise bill adds some new regulations of National Security Letters (NSLs), letters issued by the FBI ordering the disclosure of third-party records. First, recipients of NSLs can file a petition in any district court in which they live or do business asking the district court to modify or set aside the order on the ground that compliance would be "unreasonable, oppressive, or otherwise unlawful." They can also petition the court for permission to no longer be bound by the gag orders that accompany NSLs. District courts can modify or set aside gag orders if they find "that there is no reason to believe that disclosure may endanger the national security of the United States" or interfere with an investigation or diplomatic relations. At the same time, the Attorney General, Assistant, AG, and FBI Director retain the right to file a certification in the action stating that disclosure would endanger those interests; if such a certification is filed, it is conclusive unless the court believes it was filed in bad faith.

  Finally, the Inspector General of DOJ has to perform a detailed audit of how the NSL authority is being used.
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House of Representatives Urges Ninth Circuit To Be More Activist,

By a 320-91 Vote: Two weeks ago, a Ninth Circuit panel rejected a parent's claim that a school district's allowing children to be surveyed about sex violated the parent's constitutional rights. Today, the House passed a resolution asking the Ninth Circuit to rehear this decision en banc, "in order to reverse." (Thanks to How Appealing for the pointer to the House vote.)

It seems to me that the Ninth Circuit's decision was quite right. Whether or not the school district's decision may have been wrong, foolish, or harmful, it wasn't unconstitutional. The proper remedy for the district's failure is through the elected branches of government, not through the federal courts setting educational policy.

Nothing in the U.S. Constitution gives parents a right to veto the questions that a school district will ask their children. It's not in the text — parental rights are nowhere mentioned in the Constitution. It's not in the precedents; the cases that the House resolution mentions, and all the other parental rights cases that the Court has decided, have involved the parents' rights to send their children to private school (or perhaps not to send them to school at all), not their rights to dictate to government officials what they may or may not ask.

What's more, the boundaries of the rule would be very hard to define (they certainly aren't defined in the Constitutional text or structure), or to limit to questions about sex. The House resolution certainly makes no effort to define them; nothing in it explains why schools can ask children questions about math, science, or ethics and not about sex. This is the quintessential example of the kind of matter that calls for legislative or executive action, setting forth specific rules (perhaps including arbitrary lines of the sort that courts are rightly reluctant to draw) that are based on what the voters and their relected representatives want — not for action by elected courts who'll be telling school boards what to do or not do.

I realize that many people are angry about courts telling school boards what to do with regard to religious symbolism — but at least there we see a constitutional provision (the Establishment Clause) that at least mentions religion, and that might possibly be read as covering religious speech by the government (especially coupled with the Fourteenth Amendment, which makes most of the Bill of Rights applicable to the states). There we have over 50 years of Supreme Court precedent that support this position. And there at least we have a textual limitation that would keep this position, whether right or wrong, limited to a small part of the curriculum. Not so as to a general right of parents to control what schools say to or ask of their children, which is either conceptually unlimited, or, if it is limited only to sexual matters, has no textual anchor for such a limitation.

I also realize that many people are particularly peeved because the panel decision was written by the liberal Judge Reinhardt, who they suspect would be happy to make up other more liberal-seeming constitutional rights that he liked better than this sort of broad parental right to control what the school says to your children. I'm always troubled by these sorts of hypothetical-based charges of inconsistency — that Judge Reinhardt is willing to recognize some ambitious constitutional claims doesn't obligate him to recognize all ambitious constitutional claims; he might well have a perfectly good explanation for why this claimed right is different from other claimed rights. But in any event, even a stopped clock (if that's your view of Judge Reinhardt) is right twice a day. Judge Reinhardt got it right here, and we shouldn't fault this right result because we think Judge Reinhardt would get other things wrong in other cases.

Either the House of Representatives is asking the Ninth Circuit to reject a strict constructionist, deferential decision and instead adopt an activist position — or, if that's not so, it's only not so because the word activist has come to mean nothing except "a result I dislike."

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Can Kazakhstan sue Ali G?

Sacha Baron Cohen, star of the "Da Ali G Show," is doing his part to put Howard Stern's FCC battles into perspective. Kazakhstan's Foreign Ministry is threatening to sue him for portraying the central Asian state in a "derogatory way." The 34-year-old British comic is under attack for "Borat Sagdiyev," a faux Kazakh TV personality he plays, who gleefully describes his countrymen as drunken sexual deviants.

Here is the link and story, thanks to Alina Stefanescu for the pointer.

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A Suggestion for Law Reviews: Law reviews are steadily embracing ever-more-helpful websites, and this post is a pitch for a particular feature on those websites: A preview of future issues. Law review websites should list the articles and notes slated for the next few books. Editors at the journals already know the articles and notes that they will be publishing; drafts of some of the articles may be found on SSRN. Why not let readers know what articles are coming down the pike to whet their appetite?

  A few journals do this already. The best of the group may be the Virginia Law Review, which has a terrific Forthcoming page that includes the titles of articles selected for issues through June 2006 (along with abstracts where available). More journals should do this, perhaps with links to current drafts on SSRN. It's good advertising for the journal, and very helpful for scholars who are curious about what's new in legal scholarship.
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St. Louis Appearance Tomorrow:

Tomorrow, I will be debating Professor Sam Bagnestos at Washington University Law School: "Resolved: Antidiscrimination Laws are a Threat to Civil Liberties." The debate, sponsored by the Wash. U. Federalist Society and ACLU, will be held at 2:00 p.m., and is free and open to the public. Also, I'll be speaking Friday at the Washington University Journal of Law & Policy conference, "The Rehnquist Court and the First Amendment," which has a very interesting lineup of speakers, including Balkinization's Jack Balkin.

Boynton on Academic Blogging: Robert S. Boynton has an interesting piece on academic blogging in Slate. An excerpt:
  . . . [A]cademic blogging represents the fruition, not a betrayal, of the university's ideals. One might argue that blogging is in fact the very embodiment of what the political philosopher Michael Oakshott once called "The Conversation of Mankind"—an endless, thoroughly democratic dialogue about the best ideas and artifacts of our culture. Drezner's blog, for example, is hardly of the "This is what I did today …" variety. Rather, he usually writes about globalization and political economy—the very subjects on which he publishes in prestigious, peer-reviewed presses and journals. If his prose style in the blog is more engaging than that of the typical academic's, the thinking behind it is no less rigorous or intelligent.
  I would also add that, in some ways, academic blogging is more challenging than traditional scholarly writing. At its best, it's scholarship without a safety net. The traditional model imposes lots of layers of review between an author and his audience. An academic writer might start with a draft, and then review it himself; get reviews and suggestions from friends; get reviews from colleagues; suggestions from experts in related areas; reviews from workshops; and then reviews and suggestions from editors. By the time the article is published, it may reflect as much the views of friends, colleagues, and editors as the views of the writer himself.

  In contrast, blog posts are unfiltered. The author writes up a few paragraphs and presses "Publish," instantly exposing the idea to an audience of hundreds or even thousands of people (and in the case of the VC, maybe tens of thousands). A traditional draft with a dumb idea is never seen or quickly forgotten; a blog post with a dumb idea gets linked to around the globe and is preserved online in perpetuity.

Related Posts (on one page):

  1. Drezner on Boynton on Academic Blogging:
  2. Boynton on Academic Blogging:
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Patriot Act Compromise: The Associated Press has a report on how Congress is likely to resolve the reauthorization of the USA Patriot Act:
  House and Senate negotiators struck a tentative deal on the expiring Patriot Act that would curb FBI subpoena power and require the Justice Department to more fully report its secret requests for information about ordinary people, according to officials involved in the talks.
  The agreement, which would make most provisions of the existing law permanent, was reached just before dawn Wednesday. But by midmorning GOP leaders had already made plans for a House vote on Thursday and a Senate vote by the end of the week. That would put the centerpiece of President Bush's war on terror on his desk before Thanksgiving, a month before more than a dozen provisions were set to expire.
  This sounds positive as an abstract matter, but, as we know, the devil is in the details. If anyone has more information about the details of the compromise, I hope you'll leave a comment. Links to actual proposed text would be best of all.
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Tuesday, November 15, 2005

A3G Hits the NYT: After his hard-hitting expose of Yale Law School's reaction to the Alito nomination, Adam Liptak of the New York Times now has a story on Article III Groupie of Underneath Their Robes. Link via How A3Gealing.
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Harvard Law Review Supreme Court Issue: The Harvard Law Review's Supreme Court issue is out and available online in .pdf format. Richard Posner wrote the Foreward, A Political Court, and Professors Vicki Jackson, Jeremy Waldron, and Ernie Young each contributed short pieces on the role of foreign and international law in constitutional law cases. The issue is dedicated to the late Chief Justice William H. Rehnquist, and includes tributes to him by several colleagues and several former clerks including John Roberts, Maureen Mahoney, and Ted Cruz. Finally, it wouldn't be the annual Supreme Court issue without the Term Statistics.
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Led Astray By Context:

I'm looking for examples of how people have learned a new word or phrase from context -- but learned it incorrectly, either (most amusingly) because they interpreted an ambiguous term the wrong way, or (probably more commonly) because they didn't learn an important limitation or qualification that just wasn't raised by this particular context.

Can any of you contribute such examples from your own history, or that of your friends -- preferably funny examples? I'd like to use some such examples as cautionary tales in something I'm writing, but for some reason none come to my mind right now (even though I'm sure this has happened to me in the past). Please post the examples in the comments. Thanks!

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Constitutional Challenge to BAPCPA:

The American Bankruptcy Institute reports that a Minnesota firm has filed a constitutional challenge to the bankruptcy reform legislation:

The law firm Milavetz, Gallop & Milavetz P.A. is challenging the constitutionality of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) for allegedly violating the First and Fifth Amendment rights of attorneys and consumers. The declaratory judgment petition challenges BAPCPA’s ability to limit attorneys’ advice to clients and would stop classifying attorneys as “debt relief agencies.” The complaint alleges that the vagueness and overbreadth of the new law creates a chilling effect on the public’s right to receive information and advice from attorneys and limits the freedom of expression of attorneys, among other grounds, according to the firm.

The Complaint is available here.

I have not yet had a chance to dig into the First Amendment issues here, so for now I will leave it to others to hash out the strength of the claim.

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More on National Security Letters: Last week, the Washington Post had an important story on the use (and possible overuse) of National Security Letters, an authority that permits the FBI to order third-parties such as ISPs and banks to disclose information in national security cases. The story quoted Michael J. Woods, former chief of the National Security Law Unit in the FBI’s Office of the General Counsel, who was critical of some current FBI practices. I contacted Michael and asked him for further comment on the Washington Post story and the use of NSLs.

  Here is his response in its entirety, reprinted with his permission:
  My interest in National Security Letters (NSLs) stems from my experience running the office in the FBI’s Office of General Counsel that, among other things, actually produced the bulk of these letters for the Bureau. In the counterintelligence/counter-terrorism business, NSLs are unglamorous, journeyman tools that historically garnered far less attention than the more intrusive search and surveillance authorities found in the Foreign Intelligence Surveillance Act (FISA). Significant changes to the NSLs were made in the USA PATRIOT Act with very little debate (even by the standards of the Act), and, absent Bart Gellman’s article in the Post last Sunday, I doubt there would have been much discussion of them in the context of PATRIOT Act re-authorization.
  There are basically four kinds of NSLs, each of them delineating an exception to a statute protecting personal information in the hands of a third party. The most commonly used NSL exists in the Electronic Communications Privacy Act and allows access to telephone and electronic communications transactional records. The FBI is granted access to financial records by an NSL established in the Right to Financial Privacy Act, and to credit information by two separate NSLs found in the Fair Credit Reporting Act. All of these authorities in some way derive from the 1976 Supreme Court decision United States v. Miller, which held that there was no constitutionally protected privacy interest in business records entrusted to third parties. For those interested in a more detailed history, I traced the history of NSLs in the opening section of an article on Section 215 of the PATRIOT Act (it’s in the Journal of National Security Law & Policy, and is available at http://www.mcgeorge.edu/jnslp/media/01-01/03%20Woods%20Master.pdf.
  In my view, NSLs reflect tensions between evolving technology and the increasing inadequate consent-based theory behind Miller. NSLs developed in a limited context: the users of NSLs (FBI counterintelligence agents) had discretionary access to the authorities, but were regulated by fairly strict guidelines and by the legal standard ("specific and articulable facts") embedded in the NSL statutes. At the same time, the utility of the "transactional information" available from an NSL was limited by the trivial nature of the information itself and the FBI’s lack of technical or legal ability to do much with it. The PATRIOT Act and subsequent revisions of the FBI’s operating guidelines significantly lowered the legal standards, devolved NSL issuing authority to FBI field offices, and even extended one species of NSL to an indeterminate list of other government agencies. The general impetus toward information-sharing among government entities and the massive investment in technical solutions may eventually deliver to the government the ability to process data efficiently. Finally, the rate at which individuals shed transactional data simply by living in a networked world seems to increase daily. The composite picture of individual activity that can emerge from such data is often of startling clarity, and will likely sharpen with in the future.
  We don’t really have a coherent legal theory to address appropriately the growing privacy interests in this kind of data. The full-scale judicial supervision accorded electronic surveillance and physical searches is probably overkill, and far too cumbersome for data for which basic investigative access is justified. On the other hand, the Miller view that the "consensual" delivery of this data to third parties strips it of any privacy interest looks untenable when one considers the effect of the information aggregated. NSL revisions could be a vehicle for shaping a new approach, but I think this unlikely given the time pressures. Although the NSL provisions of the PATRIOT Act do not "sunset" this year, they are effectively part of the re-authorization legislation (which will be in conference this coming week). I am encouraged that there is talk of inserting into NSLs a right of the recipient to challenge the letter (which is not explicit in any of the NSLs now, and is thus quite difficult to do – as evidenced in the pending NSL cases). It is possible that successive challenges to individual NSLs will generate a transactional information jurisprudence, though this doesn’t seem to me the most efficient path to such a solution. Whatever happens to NSLs next week, they are definitely worth watching.
  I disagree with Michael on one point: I think it's a little inaccurate to say that United States v. Miller is responsible for current practices. Miller makes the proper legal threshold a legislative question rather than a judicial one, but it doesn't say anything about what that legislative threshold should be. Still, the possibility that Congress should modify the statutory standards for obtaining NSLs is worth debating. Stay tuned.
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Compromise Over Detainee Jurisdiction: From the Washington Post today:
  A bipartisan group of senators reached a compromise yesterday that would dramatically alter U.S. policy for treating captured terrorist suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights.
  The compromise links legislation written by Sen. Lindsey O. Graham (R-S.C.), which would deny detainees broad access to federal courts, with a new measure authored by Sen. Carl M. Levin (D-Mich.) that would grant detainees the right to appeal the verdict of a military tribunal to a federal appeals court. The deal will come to a vote today, and the authors say they are confident it will pass.
  Graham and Levin indicated they would then demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities.
  This is an important development, but it's somewhat difficult to know exactly what it means without looking at the text of the compromise bill. If anyone has a link to the text or the text itself, I hope you'll consider posting it in the comment section so the rest of us can take a look.
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What should we do about avian flu?

Avian flu has been attracting blogosphere attention for much of the last year, including from Glenn Reynolds and Andrew Sullivan. I have had a hand in starting an avian flu blog. Recently I have finished work on a 40 pp. piece on what we should do about avian flu, here is the pdf link. Here is the Executive Summary. My core approach is to rely on decentralization and incentives. I am skeptical of quarantine or use of the army. Well-functioning, decentralized health systems will likely save the most lives. Stockpiling Tamiflu or vaccines is often overrated in potential effectiveness. We also should, when needed, purchase the relevant intellectual property rights for a fair price rather than simply confiscating those rights. We should ease liability for vacciner makers and institute prizes for good vaccines. Better-developed prediction markets would be useful for charting the progress of the flu. Your comments, of course, are welcome, either below or email me.

Related Posts (on one page):

  1. Avian Flu:
  2. What should we do about avian flu?
19 Comments

Monday, November 14, 2005

Secret Docketing in Florida Federal Courts?: Law.com has a troubling story about federal district courts in Florida putting cases on a "secret docket." The intro:
  Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket.
  "We … exercise our supervisory authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional," the panel said in its unusual reprimand.
  Defense attorneys, civil liberties groups and the news media celebrated the panel's words, which came in the course of upholding a drug lord's conviction and sentence of more than 30 years in prison.
  Now, one of the South Florida federal judges who agreed to hide a case admits that she made a mistake and vows never to do it again. "Judges are not gods," U.S. District Judge Patricia Seitz, a seven-year veteran of the federal bench, said in an interview. "Like any human being, we make mistakes. When your mistake is pointed out, you reconsider your action and you promptly make a correction."
  The Eleventh Circuit's October 20th decision in United States v. Ochoa-Vasquez is available here. Hat tip: HoBa.
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William Bryant: Judge William Bryant of the U.S. District Court for the District of Columbia has passed away at the age of 94. The Washington Post obituary is here. If my memory is correct, Judge Bryant was the second African-American federal judge in the District of Columbia; he was confirmed to the District Court in 1965, just one year after Spottswood W. Robinson, III.
Alito's Personal Statement: The statement of his political views that Sam Alito made as part of his application to become a political deputy at the Office of Legal Counsel in 1985 is available here, on pages 15-16. The document was written in response to the following question:
  Have you ever served on a political committee or been identified in a public way with a particular political organization, candidate, or issue? (Please be specific . . . )
  Link via Colonel Bashman.

  UPDATE: A reader points out that I may be misreading the form, and that the Alito essay is probably a response to this somewhat different question:
  Please provide any information that you regard as pertinent to your philosophical commitment to the policies of this administration, or would show that you are qualified to effectively fill a position involved in the development, advocacy and vigorous implementation of those policies.

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A3G Responds: Over at Underneath Their Robes, A3G responds to the New Yorker story.
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Article III Groupie Comes Out of the Closet: Via Howard, I learn that Jeffrey Toobin of The New Yorker is announcing that Article III Groupie of Underneath Their Robes is David B. Lat, an Assistant U.S. Attorney in Newark, NJ. An excerpt:
  Although he intended to remain anonymous, the success of the blog made coming clean irresistible. "I felt frustrated that I was putting a lot of time into this and was unable to get any credit for it," Lat said. "But eventually these things have a way of coming out anyway. I only hope that the judges I appear in front of don’t read it."
  David is a Harvard College and Yale Law grad who clerked for Judge O'Scannlain on the Ninth Circuit; my understanding is that he now argues Third Circuit appeals from the Newark office.

  No word yet on whether David is also behind the short-lived Proculian Meditations.
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Sunday, November 13, 2005

Should Tenure Reviews Be Anonymous?

I had always assumed that scholarship reviews for tenure promotions were anonymous. This is certainly the case at many (most?) schools, but I've learned it is not the universal practice. At my school, external reviews are anonymous and heavily redacted. Internally generated scholarship reviews can be anonymous as well. While I would love to know the identities of my reviewers -- especially those whom I've never met and yet had very positive things to say about my work -- I have no particular quarrel with the system. At other schools, however, external reviews of a tenure candidate's scholarship are not redacted. At still others, I've gathered that the reviews are officially anonymous, but that tenure candidates regularly learn their reviewers' identity.

The case for anonymity is straightforward: Giving reviewers a promise of anonymity encourages greater candor. Insofar as a tenure candidate's scholarship is deficient, this is more likely to be uncovered through anonymous reviews, as reviewers will feel more comfortable criticizing a fellow academic's work if they can do so from behind the veil of anonymity. Among other things, anonymity may make it easier to criticize a peer whom one knows personally. It may also lesson the risk of reprisal (though this concern is less serious in the legal academy where most journals are faculty edited and relatively few scholars recieve peer-reviewed grants).

Not all academics think anonymity is the best approach, however. Among other things, anonymity may enable some academics to settle personal scores and attack those with whom they disagree. (Yes, this would be wrong for any academic to do, but that does not mean it does not happen.) Others believe that academics should be able to offer honest critiques of others' academic work without concealing their identity.

When I was up for promotion to associate professor (without tenure), one reviewer mailed me a copy of his letter with a note. We had never met, and he was critical of one of my articles (though he still recommneded my promotion. In his note he said he did not believe in anonymous review. In his opinion, anything critical of my scholarship that he would be willing to say to my senior colleagues, he should be willing to say to me. As a tenured professor, he explained, he had little to fear from a junior academic, though he could threaten my career prospects with a negative review. He also suggested that I had a right to know who was criticizing my work. In a sense, he suggested it was cowardly for an external reviewer to hide his or her identity when criticizing someone else. [Insert ironic reference to my own current anonymity here.]

Was my external reviewer correct? Should external reviews be anonymous? I would be interested to learn what VC readers think, and to know more about what is done at other schools and in other disciplines.

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Are Scholars Ignoring Al Qaeda?

Daniel Drezner has an interesting post on whether there has been sufficient attention to al Qaeda in International Relations scholarship.

Yale Law on Alito: The New York Times has a story by Adam Liptak about how Yale Law professors and students are reacting to the nomination of Yale Law graduate Samuel Alito (as well as how Yale responded to the nominations of graduate Clarence Thomas and former professor Robert Bork). If you're wondering why Yale Law School's reaction to Yalies being nominated to the Supreme Court should be considered national news, keep in mind the bio of the story's author: Adam Liptak is a 1984 graduate of Yale College and a 1988 graduate of Yale Law School who was a law student during the Bork nomination.

  In any event, here is an excerpt from the story:
  The mood here appeared to be cautiously hostile. A few students who supported Judge Alito tended to make strategic or structural arguments. Some said, for example, that ideology alone should not derail a candidate who was otherwise qualified.
  "He is a remarkably careful, conscientious, craftsmanlike, modest, even humble judge," said Peter H. Schuck, a law professor who described himself as a political moderate. "It's true that he generally comes out on the side of those who call themselves conservative. If I were in the Senate, I would like to think I would not vote against him on that ground."
  But the dominant view, based on a day of interviews at the law school, appeared to be that Judge Alito's jurisprudence represented a betrayal of the law school's liberal values.
  Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito's 15 years of opinions. "Alito is a careful carpenter," Professor Gordon said. "The things are well built, but they are not beautiful. Alito in my judgment is just too steadfastly conservative."
  For responses to various aspects of the story, check out Dan Solove, Tom Smith, and Will Baude.
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Judge Alito and the First Amendment:

My Wall Street Journal piece on the subject is now online. One quibble: The subhead says "Judge Alito has an expansive view of the First Amendment," but to be precise he seems to have a relatively expansive view of the Free Speech Clause and the Free Exercise Clause, and a somewhat narrower view of the Establishment Clause. (The body of the article makes that clear.)

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