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Friday, December 16, 2005

Marty Lederman on the McCain Amendment: Marty Lederman, recovering from ankle surgery (feel better, Marty!), offers a four-part reaction to the McCain amendment banning torture. Here is Marty's summary of what the law will be, and then there are three posts of analysis: The Good, The (Potentially) Bad, and The Ugly. All very much worth reading. The gist:
  For all of the very substantial virtues of the McCain Amendment, there remains a serious risk that the Administration will apply it in a very narrow fashion that could materially undercut Senator McCain's intent. There are potential pitfalls with respect to both of the Amendment's two substantive provisions — and there remains the lurking spectre of a Commander-in-Chief override.
  Check it out.
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Why has there been a shortage of Xbox?

Tim Harford writes:

...supply shortages are a fact of life. The puzzle is somewhere else: Why don't companies raise prices when supply is short and demand is frenzied? Leaving aside oxygen and a few other essentials, there is no such thing as an absolute shortage of anything: There is only a shortage if the price is too low. At the moment, Microsoft is easily selling out the half-million or so Xbox 360 units (there's no official number) for prices starting at $300 for the basic package. Why doesn't Microsoft price them at $700 instead?

Tim despairs:

Over dinner with a friendly local economics department [TC: hmm...], I challenged them to explain the puzzle of why prices stay low in the face of such shortages. They cited a number of ingenious explanations, all of them unlikely.

Surely the legal mind can do better than these economists, comments are open.

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Lawyer Being Prosecuted for Suborning Perjury:

Often a hard crime to prove, but not here; according to TriCities.com,

In the days before [his client's] appearance in court, [attorney Scott] Pratt is accused of sending two emails advising his client . . . of what she should say on the witness stand.

One email says in part: "they won't have anyone there to testify how much you had to drink. You won't be charged with perjury. I've never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we'll just plead guilty and you can get your jail time over with."

Thanks to Tom McKenna (CrimLaw) for the pointer.

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TypePad Problems: TypePad is encountering problems right now, details here. So if some of your favorite blogs are acting strangely, it's not you. Or at least there may be other explanations.
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Patriot Act Reauthorization Uncertain: The Patriot Act reauthorization has passed the House, but is now encountering serious trouble in the Senate. According to the latest report, it may be dead in the water, and Congress may let the expiring provisions lapse on December 31st.

  For those of us who think of the Patriot Act as actual legislation rather than a symbol of the Bush Administration, this is rather puzzling stuff. The dirty little secret about the Patriot Act is that only about 3% of the Act is controversial, and only about a third of that 3% is going to expire on December 31st. Further, much of the reauthorization actually puts new limits on a number of the controversial non-sunsetting provisions, and some of the sunsetting provisions increased privacy protections. As a result, it's not immediately obvious to me whether we'll have greater civil liberties on January 1, 2006 if the Patriot Act is reauthorized or if it is allowed to expire. (To be fair, though, I'd have to run through the effect of every expiring section and all of the reauthorization language to check this - maybe I would feel differently if I did.)

  Of course, four years after the Patriot Act was passed, a meeting of everyone who thinks of the Patriot Act as actual legislation could be held in my kitchen. For most people, the Patriot Act is a symbol of the Bush Administration and the War on Terror. From that perspective, the current debate makes a lot of sense: for opponents, fighting the Patriot Act reauthorization continues the valiant struggle against the evil forces of Big Brother and the out-of-control Bush Administration; for supporters, supporting the Act helps beat Al Qaeda, makes the homeland safe from attack, and helps win the global struggle against terrorism. If neither of these visions bears a particular resemblance to reality, well, hey, no one ever said democracy was perfect. As Boon famously advised Otter, "Forget it, he's rolling."

  What will happen in the end? My hope is that the Bush Administration will agree to renegotiate some of the more controversial provisions, addressing some of the opponents' concerns and reaching a compromise that reflects the current political landscape. My sense is that there is still lots of ready room for compromise; for example, the restrictions on sneak-and-peek warrants in the reauthorization are really pretty weak. They can (and should) be strengthened, and it seems unlikely that strengthening them would impact any terrorism cases.

  Anyway, it'll be interesting to see what happens. Throw some popcorn in the microwave, sit back, and enjoy the show.
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Christmas Capitalism:

I love this:

Sales tags touting deep price cuts were flying like battle flags this week in the electronics department of Wal-Mart in Manassas. Twice each week, about a dozen employees sneak into enemy territory -- Target is just two miles away -- to scope out prices. When they return, the store starts discounting, undercutting the competition by 5 percent or more, manager Beth Melson said.

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Thursday, December 15, 2005

Well, Maybe If You're Sailing to Easter Island:

A Nov. 27 L.A. Times Travel section article bears the headline "Chile; Adventure, Due South."

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Court Christmas Party Stays a Christmas Party: Tony Mauro has the story. Thanks to Santa Howard for the gift link.
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Domestic Surveillance By the NSA?: James Risen and Eric Lichtblau break a tremendously important story in tomorrow's New York Times about a secret program that has permitted the NSA to spy without a warrant inside the United States. The story begins:
  Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
  Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
  The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
  How much monitoring is occurring? Here's what the article says:
  While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time.
  Is this legal, you're wondering? The article offers this:
  Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.
  . . .
  The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.
  According to the story, some officials objected, and DOJ audited the program:
  Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.
  I hope we'll be hearing more about this in coming weeks, as this is big news. While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff. To get up to speed on some of the issues, check out Judge Sand's opinion in United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000). (.pdf)
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Racist Criticisms of Police = Felony?

The Daily News (Longview, Wash.) reports:

Hundreds of racist fliers have been left in the streets of this town north of Vancouver, Wash., apparently the result of a flap over the firing of a police officer. . . .

The cards showed a racial caricature [apparently depicting a chimpanzee wearing a police officer's hat -EV] and expressed support for the town manager, George Fox, who was suspended last week pending an investigation into the firing of a black police officer, Carl Mealing. . . .

"George Fox speaks for the silent majority," the cards read. "Make sure Ridgefield stays the way it should be. Washington state needs more officials like Mr. Fox." . . .

The police, the newspaper reports, say that this "is being investigated as a potential case of malicious harassment, punishable by up to five years in prison and a $10,000 fine." That strikes me as quite troublesome. The flier's distributor can surely be charged with littering, if the city would normally charge such people with littering regardless of the content of the material being strewn. But the content of the speech is fully protected, and doesn't fit within any First Amendment exception. (It would have been otherwise if the speech contained, say, death threats, but no such threats seem to have been made, unless the story is omitting the most troublesome part of the leaflets.)

The fliers are appalling, and should be loudly condemned. But they surely may not be legally suppressed.

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Bobblehead Doll For A Good Cause: Goldstein & Howe is auctioning off a Rehnquist bobblehead doll for charity. Details here.
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Agreement Reached on Torture Ban: CNN has the story. I trust that Marty "Torture" Lederman will weigh in soon over at Balkinization.
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What an Odd Concern:

The New York Times reports more on the recent face transplant. "Among the most disturbing aspects of the debate," the Times writes, "are conflicting reports from doctors about whether the transplant was the result of two suicide attempts, one successful by the donor, and one failed by the recipient." The donor had apparently hanged herself; the recipient's injuries were inflicted by her dog, but there's reason to think that this happened when the recipient deliberately took an overdose of sleeping pills, trying to commit suicide.

Now there are interesting ethical problems about how we should ration health care between those who apparently don't much want to live and those who do want to live. One could argue that the subjective value of the benefit to the suicide victim is less than to others; or one could argue that there's a substantial chance that the patient will try committing suicide again soon and this time succeed, so all the investment of money and effort will have been wasted. (Query, though, how applicable these arguments are, even if they're sound, to experimental procedures in which the major social benefit comes from learning about the surgery.)

Yet these don't seem to be the main problems that the Times is focusing on. Rather, the first concern, as best I can tell, is that:

If Ms. Dinoire's disfigurement resulted from an attempted suicide, it would raise questions about her emotional stability and her ability to consent to such a risky operation.

Surely many people who try to attempt suicide are emotionally not entirely unstable -- yet they're generally not fools or lunatics. They can understand the costs and benefits of the procedure as well as others. They can understand that their current state is very grim. Are patients generally disqualified from making such judgments just because they've attempted suicide? I'm not suggesting there's nothing to this concern; perhaps the doctors should also have asked the woman's relatives or some specially designated patients' guardian, though query whether it's appropriate to limit suicide attempters' autonomy in making medical decisions (other than perhaps suicidal medical decisions) this way.

But the second concern utterly perplexes me:

Reports that the donor committed suicide also have implications for Ms. Dinoire's future, because if true, and if the transplant is successful, it would mean that for the rest of her life, she would see in the mirror the nose, mouth and chin of a woman who herself met a brutal end.

Does it really seem likely that the beneficiary of a face transplant operation would be that upset by this? I can certainly see why she might be upset at seeing what will at first look like someone else's face (though probably less upset than seeing her own mangled face). But why should it matter to her that the donor had committed suicide?

After all, the donor must have died somehow, and probably not in her sleep of old age. Could have been a motorcycle accident. Could have been early onset cancer. Could have been a rare early heart attack (probably the least unpleasant death of the lot, but not that likely). Or could have been a suicide. I like to think that if I had needed a transplant and had gotten the transplant, I'd be grateful, and wouldn't be that troubled by the face's provenance. Or am I mistaken?

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"Teaching Fellowships for Aspiring Law Professors":

Paul Caron (TaxProf) provides a long list of options (certainly not limited to tax).

UPDATE: Turns out that Harvard has a new fellowship -- and a very attractive (though I'm sure very competitive) one at that. It's in the Health Law Policy, Biotechnology and Bioethics program; they're planning to have 8 fellowships, which will be for staggered terms of 2 years, $60,000/year, with no teaching obligations, just time and money that lets young scholars write the articles that they'll need to get their careers started. Nice work, if you can get it.

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Illinois Class Action against Philip Morris Goes Up in Smoke:

This morning a divided Illinois Supreme Court overturned a $10 billion class action verdict against Philip Morris. The plaintiffs' theory was that the marketing of "light" cigarettes was a form of consumer fraud. Because the cigarettes have less tar, some smokers compensated for the lower quantity of tar in an individual cigarette by inhaling deeper, or smoking larger quantities. Thus, according to the trial court, Philip Morris deceived smokers into thinking the cigarettes were safer. The plaintiffs theory would seem to pave the way for lawsuits against low-calorie "lite" foods, since some consumers compensate for the lower calories of an individual serving by eating more food.

The majority pointed out that, even if one believes (as did the trial judge) the claim of plaintiffs' experts that "compensation is complete" (that every smoker of high-tar cigarettes who switches to low-tar smokes so much extra that total tar intake is the same), new smokers who started on light cigarettes would have nothing for which to "compensate," and therefore would inhale much less tar than than if they smoked "full-flavored" cigarettes.

The majority of the Illinois Supreme Court relied on section 10(b)(1) of the Consumer Fraud Act, which prohibits Consumer Fraud suits regarding conduct "specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States." In a pair of consent orders, the Federal Trade Commission had authorized the use of "light" and "low tar and nicotine."

The decision on narrow statutory grounds appears to be correct, and to have obviated the need to directly address the plaintiffs' outrageous theory that excessive consumer consumption of a "light" product provides a pretext for suing the manufacturer for fraud.

The majority did state that the plaintiff class appeared to have been overbroad and improperly certified. A special concurrence by two justices pointed out that plaintiffs, even if defrauded, had suffered no economic damages, especially because the class representatives continued to smoke, even after learning that "light" cigarettes were not safer (at least not if the smoker "compensates" by smoking extra).

The Supreme Court opinion is here, in PDF. The Illinois Civil Justice League, one the the nation's best tort reform groups, should have updates later today.

The trend towards lower tar and nicotine cigarettes, which began in the late 1960s with the encouragement of the FTC and Congress, has in fact made cigarettes substantially safer than they had been previously.

There is currently a dispute about whether low-tar cigarette smoke may have more mutagenic properties than higher-tar smoke (the trial judge found in the affirmitive), but, in any case, the trend to lower tar was based on the best scientific evidence available at the time. Moreover, the complaint that the reduction of a known danger (tar) may be partially offset by the increase in another danger is similar to complaining that a food which is advertised for reducing the quantity of something the consumer specifically wants to avoid (e.g., calories, carbohydrates, or salt) may also increase the quantity of some other undesirable item (e.g., a synthetic food additive which some people believe is harmful to health).

That the tobacco companies were sued for manufacturing and advertising a safer product is a good example of the perversity of modern tort law, and of the determination of anti-tobacco extremists to punish cigarette companies even when cigarette companies took affirmitive steps to reduce the dangers of smoking.

P.S. The Illinois Supreme Court was not supposed to, and did not, render any decision about the moral behavior of the tobacco companies. My personal belief though, is that the major tobacco companies, including Philip Morris, have engaged in reprehensible and immoral conduct--specifically, by entering into the multistate compact with the state attorneys general. As detailed in a lawsuit by the Competitive Enterprise Institute, currently pending in federal district court, the compact creates a cartel which protects the major companies from price competition by smaller companies--even though the smaller companies were never accused of the supposed misconduct for which the attorneys general sued the larger companies.

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[Puzzleblogger Kevan Choset, December 15, 2005 at 8:40am] Trackbacks
A Related Puzzle:

I highly recommend today's New York Times crossword puzzle by Patrick Merrell. The theme is quite related to the one I referenced here, but don't click on it if you want to try the puzzle first.

Latest on Oregon Takings Initiative:

A couple of months ago, I noted that Oregon's Measure 37 , an initiative that was passed with 61% vote last year, only to be struck down by a state judge under the Oregon constitution. Kimberly Strassel has an update on the situation--including efforts by Oregonians to recall the judge who decided the case and other efforts to intensify scrutiny over judicial elections.

As a big picture matter, there are obviously plenty of interesting questions here about the balance to be struck in elected judicial systems between judicial independence and judicial accountability. This is especially so in light of the fact that Measure 37 was adopted by an overwhelming majority in a popular initiative and does not appear to have the intent or effect of injuring any identifiable minority of the population. Moreover, given the public choice problems inherent in getting governments to tie their own hands (such as is the case here), it is questionable whether there would be any other practical way to bring about this popularly-desired reform without adopting it by initiative.

Update:

Ben Barros's link to this post alerted me to another post of his, which mentions a forthcoming article that analyzes Measure 37.

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Wednesday, December 14, 2005

John Scalzi's Agent to the Stars:

I've been meaning to mention this book for a while — I read it a few months ago and found it to be a lot of fun. It's very different from Old Man's War; both are well-written, but Old Man's War (which was written after Agent) is more serious and generally meatier. Still, Agent is a pleasant read, and I much enjoyed it. If you want to choose one of the two, choose Old Man's War; but both are worth reading.

UPDATE: InstaPundit, who recommends this book, too, reminds me that you can check out the text free here.

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Another Troubling Restriction on Parent-Child Speech:

McCorvey v. McCorvey, 2005 WL 2863915 (La. Ct. App. Nov. 2), upholds the contempt citation of a divorced father. The family court judge had ordered the parent not to use any racial slurs in the presence of the child; here's the judge's rationale:

There was testimony elicited . . . that there were certain statements made . . . regarding racial and ethnic matters with the child of tender age . . . . There were allegations that the child was being restricted in the manner in which the child was being raised . . . contrary to racial equality, which was of concern to me . . . Some concerns by the mother . . . that the child was not to be exposed to any diversity whatsoever . . . . [EV: In context, this seems to mean that the mother disapproved of the father's racism.] I wanted to make sure the child had full exposure to all cultures, all races . . . . That was a deep concern of mine . . . . I wanted the child to have a good, wholesome upbringing so that the child would be exposed to society as society is, not in some tunnel vision type approach . . . .

The father later used a racial slur against the child's stepfather, and was held in contempt for this (as well as for some racial comments about one of the child's dolls). Setting aside the procedural question whether the court's order could be challenged collaterally in a contempt hearing — as opposed to on appeal — it seems to me that the order is unconstitutionally broad and viewpoint-based. Even if it were constitutional to bar the father from saying anything derogatory about the child's stepfather, I don't think a court may enter an order that (1) goes far beyond protecting the child's relationship with his new family, and that (2) focuses only on statements that express a racist ideology.

I agree, by the way, that teaching a child racist ideology (or various other kinds of ideologies) is against the child's best interests, which is the standard legal test in child custody cases. It just seems to me that the First Amendment limits the extent to which the government may restrict parent-child speech even when the government is trying to serve the child's best interest. (I discuss this in much more detail in my forthcoming Parent-Child Speech and Child Custody Speech Restrictions, 80 N.Y.U. L. Rev. (forthcoming 2006).)

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Toll Roads at Last?

As I sat in another unexpected midmorning traffic jam in Northern Virginia yesterday, my mind recalled this article from the Washington Post that describes future plans to build a network of private toll roads in the DC area. We'll see if the whole thing ever actually materializes.

Pete Boettke has a brief comment on some of the Economics 101 of private toll roads in DC.

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Bob Newhart v. King Kong:

Is it just me, or does anyone else think of Bob Newhart every time you hear about the new King Kong movie?

For those who are not familiar with Newhart's classic bit on King Kong, this NPR Report from a few years ago has a fairly lengthy excerpt from it.

Criminal Justice in Poetry:

Prof. Peggy DeStefano is looking for examples of criminal justice themes in poetry and music. If you have some suggestions, please post them in the comments.

I had very few suggestions myself. My two favorite law-related poems are W.H. Auden's "Law Like Love" -- which is more connected to theories of jurisprudence than to criminal law -- and Kipling's "Law of the Jungle" (which I suppose sets forth obligations of the sort that we'd enforce through criminal law, though primitive justice systems generally tended not to distinguish criminal law from civil law much). I also like Auden's "The Hidden Law," but that too isn't criminal law.

David Byrne's "The Dream Police" is probably too surreal to really have a serious criminal justice theme, though it's an amusing counterpoint, I think, to certain crim law cases. And of course there's "I Shot the Sheriff," but that's cliche. In any case, I'd love to see what our readers can come up with.

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Library Bans Employees from Wearing Religious Jewelry:

In Kentucky, yet, not exactly what you'd think of as a hotbed of antireligious sentiment. Yet it's true — while there's plenty of hostility to atheists, and some legal discrimination against atheists and atheist speech, there've also been plenty of cases where the government has unconstitutionally tried to suppress religious speech.

The most recent one I've read involved the Logan County Public Library in Kentucky. At first, the library just banned its employees from wearing "clothing depicting religious, political, or potentially offensive decoration." This might be permissible, I think, because it doesn't single out religious advocacy for worse treatment than other ideological advocacy (so there's no unconstitutional discrimination against religion) and because it restricts a form of speech that may well prove disruptive of the library's function: Such T-shirts tend to be somewhat in-your-face, and are not unlikely to alienate quite a few patrons precisely because of the prominence of the message. I'm not positive that the rule is constitutional (though a neutral rule that required more professional dress likely would be), but at least there's a decent case for it.

But then the library changed the policy to prohibit religious ornaments as well, and applied it to bar an employee from wearing a cross on her necklace. (Obviously the same policy would also ban stars of David and other religious symbols.) The library's justification? "[T]he policy is necessary to protect librarian impartiality on issues that could be the subject of patron inquiry," and "the policy is required to avoid the appearance of religious favoritism and to avoid violating the state's duties under the Establishment Clause."

Really? Aren't library patrons able to realize that the clothing and jewelry that one wears — especially among librarians who pretty clearly don't have fixed uniforms — is usually selected by the wearer as a citizen, and not by the government? When I see a Kentucky state employee wearing diamond earrings, I don't think the state is endorsing De Beers; when I see her wearing a cross necklace, I assume she's the one who chose it, just like she chose her other jewelry.

As to "librarian impartiality," surely we all know that librarians have beliefs about controversial topics. We may hope that they set aside those beliefs in some measure when asked for impartial advice; we may expect that they don't set them aside entirely; but their potentially judgment-clouding beliefs are present whether or not they wear religious jewelry. (Of course, if you take the librarian impartiality argument seriously, you'd have to refuse to hire anyone who even dresses or wears his or her hair in religiously distinctive ways; no orthodox Jewish men with yarmulkes, no Sikhs wearing turbans, no Muslim women wearing distinctively Muslim garb.)

Finally, though the line between T-shirts and jewelry is one of degree, symbolic jewelry tends to be much less obtrusive, and also much more commonplace and therefore familiar even in quite professional circles. Whatever professionalism objections there may be to the T-shirts, it seems to me that they don't apply to the jewlery. The court quite rightly concluded that the library's concerns about any possible disruption or even controversy were purely "speculative and hypothetical." The government acting as employer must have some authority to control on-the-job expression by its employees; yes, the answer might well be different for T-shirts and for jewelry, for pins saying "Fuck You" and for cross necklaces. But that there is some such necessary authority doesn't mean that the government should have absolute authority to suppress all religious self-expression by its employees merely based on entirely speculative fears.

In any case, the federal district court quite rightly held the policy unconstitutional. Draper v. Logan County Public Library, 2005 WL 3358686 (W.D. Ky. Aug. 29). Too bad it had to take a lawsuit to get the library to treat its employees properly.

UPDATE: Though WESTLAW showed this as an August 2005 case, someone familiar with this litigation has told me that it's actually an August 2003 case. The substantive analysis remains the same, of course.

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Follow-Up on Larry Darby, Formerly of the Atheist Law Center:

Let's just say there's little doubt about where he stands -- for some comments of his about "Zionist-Occupied Government" on a discussion list that I run, see, e.g., here, here, and here.

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Hearsay Exception Movie:

Here's one way to study for that evidence exam (and it features animated Lego!).

Patriot Act Final Conference Report: The text of the latest conference report on the Patriot Act — 219 pages of fun statutory text — is available here in .pdf format.
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Tuesday, December 13, 2005

Translation of the Swedish Decision on Anti-Homosexuality Speech

(in the Ake Green case): The Alliance Defense Fund has produced it — many thanks to them, and to Roger Alford (Opinio Juris) who pointed me to it.

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Alito's brand of conservatism: Although I certainly do not agree with it in its entirety, this op-ed, The importance of determining Alito's brand of conservatism, is unusually sensitive to the differences amongst judicial "conservatives." Perhaps it is a sign that these differences are starting to be more widely appreciated. Here is just a teaser from the middle:
Liberals may not agree with originalism as a judicial philosophy. Nevertheless, I contend most would prefer the principled application of the wrong philosophy to the results-oriented inconsistency that Scalia's Raich opinion represents. Where Alito falls on this spectrum is unknown. Indeed, his opinions from the Third Circuit reveal little enthusiasm for originalism at all (although Court of Appeals work generally lends itself less to originalist analysis than it does to struggling to apply Supreme Court precedent). Certainly, Senator Schumer would better serve his constituents by probing Alito's penchant for consistency than by lamenting Alito's obvious differences vis a vis O'Connor.
See King Kong! I just returned from seeing a preview screening of the new King Kong. At the risk of losing all credibility for film sensibilities, I would rate it as one of the best movies I have ever seen—certainly the best "big picture" blockbuster film. It is everything the original famously wanted to be, and the remake tried completely unsuccessfully to be. A love story.

The special effects are simply amazing. It is as though they were invented to make this film possible. (I admit that Lord of the Rings was awesome too but, though I enjoyed all the pictures, I was never into the Trilogy. I just didn't care.) So I don't spoil a minute, I won't give any examples of especially effective scenes—there are lots (and only one I would question). But the reason why this film succeeds is that the technology finally allows Kong to show the emotions we are supposed to know he feels and how the relationship between Kong and Ann develops. Naomi Watts accomplished the difficult task of credibly reciprocating her feelings (to a nonexistent creature). And she screams real good too.

I saw the film under ideal viewing conditions in Singapore. An enormous screen and perfect sound in a huge new stadium-seating theater. It was the perfect theater for an action movie. The fact that Singapore is mentioned several times in the opening of the film added an extra kick.

It is after 2:30 AM here on Wednesday morning now so I won't write more. I decided to stay up to post, however, so readers would know to go see this movie at their earliest opportunity. I have not read anything about what the critics are saying, but for my money, it is well worth the effort. You will relish all three hours of it.

Now to bed.
The Troubling Case of Cory Maye: Kieran Healy points to an emerging blog movement concerning the very troubling case of Cory Maye, who is on death row in Mississippi for killing a police officer.

  The remarkable part of the case is that it seems pretty likely that Maye was acting in self-defense. The police broke into Maye's apartment at night while executing a warrant for drugs, but apparently they had the wrong apartment. Specifically, the police didn't realize that the apartment had been divided into two units, and — at least according to blog reports — Maye was in one and the drugs were in the other.

  According to Maye's testimony at trial, as reported in the Hattiesburg American on Jaunary 23, 2004, Maye had no idea that the people breaking in to his apartment were cops, and shot the intruder to protect his young daughter:
  Cory Maye, 23, said he was asleep on a chair in the living room of his Prentiss apartment as his 14-month-old daughter slept in the bedroom when he heard a loud crash at his front door.
  "I immediately ran to my daughter's room, got a pistol, put in a magazine and chambered a round," said Maye, who is on trial for capital murder in Marion County. "As I laid on the floor by the bed, I heard kicks at the back door. I was frightened, I thought someone was trying to break in on me and my daughter."
  ;Maye testified that it was dark in his apartment when he heard someone breaking into the back door, which was located in the bedroom.
  "That's when I fired the shots," Maye said. "After I fired the shots, I heard them yell 'police! police!' Once I heard them, I put the weapon down and slid it away. I did not know they were police officers."
  How could this have led to the death penalty, you're wondering? Well, first of all, I gather that the jury didn't believe Maye's story. Presumably they believed that Maye knew that he was killing an officer who was executing a warrant against him. Whether there was any evidence supporting that belief is unclear; the fact that the police didn't find the drugs in the apartment suggests that this story is pretty hard to believe. The case is now on appeal to the Mississippi Supreme Court, and I hope that court will take a very close look at the evidence.

  Second, the officer Maye shot and killed turned out to be the son of the local chief of police, who was a fourth-generation police officer. The local prosecutor in turn pushed for capital murder charges. (Lots of bloggers are also pointing out that Maye is black and the officer was white, although my recollection of the Baldus study is that the race of the victim and defendant generally aren't believed to exert a strong impact on the likelihood of capital punishment in extreme cases — and I think this counts as an extreme case.)

  The MSM hasn't paid any attention to this story, but it should. And I hope the Mississippi Supreme Court will be paying lots of attention, too. For more on the story, visit The Agitator, which has been leading the charge on this case.
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More on Secret Laws: Over at Stop the Bleating, Matt Rustler takes a look at the statutes and regulations likely at issue in the Gilmore case.
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Check it out before the copyright cops shut it down:

James Enck has written a lament for telecommunications policy -- really -- using this truly spectacular tool provided by Swedish radio. [Just type some text in the box and hit "play" to hear your "song" ...]. A clear violation, alas, of copyright law, and I'm sure some copyright lawyer out there is on the case, intent on ridding the Internet of more cool stuff (like the lyrics sites I mentioned the other day . . .)

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In Search of Jefferson's Moose:

So a couple of weeks ago I gave a talk at NY Law School (where I've been visiting this past semester) about the book project ("In Search of Jefferson's Moose: Notes on the State of Cyberspace") I've been working on for a while. The basic idea is to re-create Jefferson's "Notes on the State of Virginia," focusing not on Virginia or the (old) "New World," but on cyberspace (the new "New World").
The organizing trope is the story of how Jefferson, while in Paris, had a complete moose skeleton shipped to him from New Hampshire. He was trying to show the French zoologists of the time that animals did not get smaller in the New World -- and, additionally (or so I argue), he wanted to dazzle them with the sight of an animal they knew nothing of and that was truly an awe-inspiring sight. And I'm looking, among other things, for the cyberspace equivalent -- the "aha moment" that gets people to think "we've got something truly new on our hands here."
In any event, I go off to my cabin in Vermont (where my Internet access is slo-o-o-o-w, and where I don't get out on the Net much), and my friend and colleague Susan Crawford does a blog posting about the whole thing, which got picked up here, and then here, and then all of a sudden I start getting email from people saying "hey, this Jefferson's moose thing is getting a lot of play these days ..." It's all pretty interesting -- and if you have any ideas for what our moose equivalent might be, send them my way ... David

Richard Lazarus on Scalia and Property Rights:

In what promises to be a fruitful and fascinating trove of information and research ideas, Richard Lazarus has been doing extensive research in Justice Blackmun's papers over the past year or so. He has a paper up on SSRN that draws on those documents, "The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court." By delving into Blackmun's papers, Richard can uncover the internal deliberations of the Supreme Court and the way in which internal coalitions and opinions are assembled, a process about which many have speculated but little concrete is known. This current paper is in that spirit.

Here's the abstract:

This article takes the measure of Justice Scalia's ability to produce significant opinions for the Court, by focusing on the Court's property rights cases during the past several decades. Much of the analysis relies on the Official Papers of Justice Harry Blackmun, which provide a virtual treasure trove of information revealing the Court's deliberative process when Blackmun was on the Court from 1971 to 1994. The article concludes that Justice Scalia may have appeared an effective champion of pro-property rights rhetoric to those outside the Court, but he has been much less effective within the Court in furthering that agenda. He not only repeatedly failed in his efforts to build a workable majority coalition on the Court, but he instead pushed away potential allies. The upshot was, in the first instance, precedent heavy on strong rhetoric yet light on staying power. In combination with other causes, the ultimate result was a splintering of those Justices, which included more than a simple majority, intuitively sympathetic to property rights claims and the reconstruction of a new majority more often led by Justice John Paul Stevens that returned the law to where it had been prior to Justice Scalia's joining the Court.

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Scientists vs. Activists on the Causes of Cancer:

The New York Times has an interesting article on the current conventional wisdom within the scientific communityt on pollution's relative role (or lack thereof) in U.S. cancer rates. Contrary to some claims, there is little evidence that pollution and exposure to toxic chemicals are significant contributors to cancer rates.

pinning cancer on trace levels of poisons in the environment or even in the workplace is turning out to be a vexing task. There has been recent progress in addressing the issue, but the answers that many people believe must be out there remain elusive.

"It's an area where there's certainly been a lot of heat and not a lot of light for some time," said Robert Hoover, director of the epidemiology and biostatistics program at the National Cancer Institute. For the most part, Dr. Hoover said, "we are down to speculations based on some data but without having the information we need."

In 1993 the National Institute of Environmental Health Sciences and the Environmental Protection Agency began a major study of chemical exposures and cancer rates of 55,000 farmers and their spouses in Iowa and North Carolina. Farmers are a good group to study because they are regularly exposed to pesticides. Thus far, the study has yet to find any "definitive" connections, just what one researcher calls "interesting leads." Overall, cancer data show no evidence of a "cancer epidemic" brought about by industrial pollution.
Rates of cancer have been steadily dropping for 50 years, if tobacco-related cancers are taken out of the equation, said Prof. Richard Peto, an epidemiologist and a biostatistician at Oxford University.

What appear as increases in cancers of the breast and prostate, Dr. Peto added, are in fact artifacts of increased screening. When healthy people are screened, the tests find not only cancers that would be deadly if untreated, but also a certain percentage of tumors that would never cause problems if let alone.

His analysis of cancer statistics leads Dr. Peto to this firm conclusion: "Pollution is not a major determinant of U.S. cancer rates."

The story does contain some contrary views -- but not from scientists. Rather, various activists and cancer survivors are quoted on their beliefs about the causes of cancer.

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Actual Title of a Washington Post Story, Tuesday, December 13, 2005, on page A03, by Dan Eggen:
ACLU OPPOSES PATRIOT ACT PROVISION
  The story suggests that the ACLU may just misunderstand the obscure provision at issue (one I have never heard of before), and that even the ACLU doesn't think the provision is a big deal. Slow news day at the Post, perhaps?
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Monday, December 12, 2005

Hostility to Atheists in the 1991 GSS.--

Eugene is correct about public hostility to atheists and the willingness to admit discriminatory feelings against them. In 1991, the General Social Survey asked 1244 respondents this question (variable POLSGOD):

How much do you agree or disagree with each of the following?: Politicians who do not believe in God are unfit for public office.

RESULTS:

15% Strongly Agree
15% Agree
27% Neither Agree Nor Disagree
31% Disagree
11% Strongly Disagree

Note that 30% think that atheists are “unfit for public office,” and only 42% actively disagree with the statement that they are unfit.

By comparison, in the 1991 GSS, 90.5% of Americans said that they would vote for a qualified black for President if nominated by their party. Similarly, 91.4% of Americans said that they would vote for a qualified woman for President if nominated by their party. The difference for atheists is stark.

In looking at some demographic breakdowns, there is no difference in tolerance of atheists between Republicans and Democrats, but there is between conservatives and liberals, with liberals being significantly more tolerant. Also, whites are significantly more tolerant of atheists than African Americans.

All this emphasizes for me how different the law teaching world is, where atheists (such as myself) are strongly over-represented and Christians, particularly fundamentalist and evangelical Christians, are strongly under-represented.

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Still More on Hostility to Atheists:

Quite a few of the comments to my earlier posts suggested that there isn't that much wrong with people saying that they had an "unfavorable" view of atheists, or that they wouldn't consider voting for an atheist candidate. Let's say that the posts were instead about Jews, not about atheists, and the data was:

  1. A poll question asked "Would you consider voting for a political candidate who [was religiously Jewish]?" The responses were: Yes: 26%; No: 69%. (The real question asked was "Would you consider voting for a political candidate who did not believe in God?")

  2. A poll question asked whether "your overall opinion of [people who are Jewish by religion] is very favorable, mostly favorable, mostly unfavorable, or very unfavorable?" The answer was 7% very favorable, 28% mostly favorable, 22% mostly unfavorable, and 28% very unfavorable. (The real question asked about "your overall opinion of Atheists, that is, people who don't believe in God.")

Would people be troubled by such results, results that show that 69% of the public wouldn't even consider voting for a religiously Jewish political candidate, and that 50% of the public had an unfavorable view of people who are Jewish by religion (22% mostly unfavorable, 28% very unfavorable)? If you are, then is there any reason to be less troubled by the same results as to atheists?

UPDATE: I meant to focus this on attitudes towards people who are Jewish by religion, rather than by ethnicity, and made that clear in item 1, but I neglected to make it clear in item 2. I just corrected that, and also for clarity noted that in the paragraph following the list.

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Lyrics Websites Targeted in Lawsuits:

According to a story in the London Telegraph, the UK music industry (led by the publisher Warner Chappell)has targeted Internet song lyrics websites for copyright infringement actions. "We're fed up with internet entrepreneurs 'ripping off' songs - from perennial favourites such as Happy Birthday and Rhapsody in Blue to the music of Madonna and Sir Elton John," a Warner Chappell spokesman was quoted as saying, and the firm has apparently already been successful in closing down an Australian-based lyrics website (pearLyrics.com).
It's a sad business. As a musician, I find these lyrics sites -- the ability to pull up, in 2 seconds, the lyrics to damned near any song one might want to sing -- to be one of the true marvels of the Internet. The impact of these sites on creators' incentives is, in the vast majority of cases, either (a) nonexistent, or (b) positive; there is no substantial market for song lyrics independent of the music they're attached to that can be harmed by these sites, and most artists benefit from the additional exposure they get from having listeners who can connect directly to their lyrics. It's true that copyright law as currently configured makes it an infringement to post song lyrics -- but the problem, imho, is not with the posting of the lyrics, but with the copyright law that defines this as infringement.

Those Fantasy Drafters Strike Again:

Those wacky folks at the fantasy draft blog (Motto: "Fed up with those pesky sports fantasy drafts? We've decided to hold fantasy drafts of everything else"], not content to waste their time on drafting breakfast cereals, TV sitcoms, brands of beer, and the like, recently held a Constitutional Amendments draft. Commentary -- as always, there's snide commentary ex post on the results of the draft -- by yours truly adds to the mayhem.

Tookie Williams Clemency Petition Denied: CNN.com has the story.
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More Hostility to Atheists:

Some commenters to the post below suggested that unfavorable views of atheists may not indicate any desire to discriminate against individuals because they're atheists, but just annoyance at the views of prominent atheists (especially those who label themselves "atheist" rather than "agnostic" or "irreligious"). That's possible, and I don't know how to test this directly using existing polls, but here's the closest I could come up with.

A June 23, 1999 Fox News poll asked, "Would you consider voting for a political candidate who did not believe in God?" The responses were: Yes: 26%; No: 69%.

The closest comparable poll that I could find related to other religious groups was a Jan. 14, 2003 Fox News poll that asked, as to various groups, "Over the years there has been debate over whether a presidential candidate's religion is an obstacle or an advantage to getting elected. I'm going to read you some religious affiliations and I'd like you to tell me whether you think that affiliation is a positive thing that might make you more likely to vote for the candidate or a negative thing that might make you less likely to vote for the candidate...." Here are the results:

Candidate's affiliation

Positive, More likely to vote [for the candidate]

Negative, Less likely to vote [for the candidate]

Doesn't matter [volunteered]

"Jewish"

14%

12%

70%

"Roman Catholic"

19%

11%

67%

"Christian Coalition"

21%

24%

46%

"Muslim"

3%

49%

44%

"Protestant"

25%

5%

67%

So in 2003, 47% of respondents said they'd ignore a candidate's being a Muslim, or see it as a plus. 49% said the candidate's being a Muslim would make it less likely that they'd vote for him, though presumably for some respondents, there would remain some possibility that they'd vote for the Muslim candidate.

Yet in 1999, only 26% of respondents said they'd consider voting "for a political candidate who doesn't believe in God" (even without any reference to the possibly emotionally laden term "atheist"), and 69% apparently wouldn't even consider such a possibility.

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Pro-Alito Ad Goes Over the Top: Is it just me, or does this pro-Alito advertisement seem like something from Saturday Night Live? Hat tip: Bench Memos.
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Hostility to Atheists:

As I noted below, the hostility to atheism in America seems remarkable, and quite troubling. A July 7, 2005 Pew Research Center poll, for instance, asked people several questions about their views of various religious and political grounds, and whether "your overall opinion of [the group] is very favorable, mostly favorable, mostly unfavorable, or very unfavorable?" Here are the numbers for various groups:

Group

Very favorable (%)

Mostly favorable

Mostly unfavorable

Very unfavorable

"Catholics"

24

49

10

4

"Jews"

23

54

5

2

"Evangelical Christians"

17

40

14

5

"Muslim Americans"

9

46

16

9

"Atheists, that is, people who don't believe in God"

7

28

22

28

This strikes me as quite troubling — 50% of Americans have an unfavorable view of people whose great sin, as best I can tell, is that they refuse to take on faith what others are willing to take on faith. I'm pleased that hostility to Jews and Catholics seems to be much less than what it used to be in the past. I hope the same will soon happen as to Muslim Americans and Evangelical Christians; that one may disagree with some Evangelical Christians' political agenda, for instance, is surely no reason to view them unfavorably as people (just as one's disagreement with most American Jews' liberalism is no reason for viewing them unfavorably). Yet the high level of disapproval of atheists should make us worry about American religious harmony and tolerance more broadly.

UPDATE: For more information, which may more precisely reflect willingness to discriminate against individuals (at least in voting) and not just unfavorable viewpoint of a group, and which involves a poll that didn't use the possibly negatively laden term "atheism," see the post above.

UPDATE: One of the commenters thought these were all options in answering one question; I've tried to clarify above that there were separate questions for each group.

FURTHER UPDATE: Another commenter wrote, "I dont know about this poll. How much of this might be blowback from the lawsuits about the pledge of [allegiance], the 'holiday' season, the cross in the city seal of LA, etc etc etc?" Well, I can't speak to all these lawsuits, but we can probably control for the Newdow pledge of allegiance lawsuit; that lawsuit really hit the news, to my knowledge, in June 2002, when the Ninth Circuit ruled in favor of the plaintiff. A Pew Research Center poll in Feb. 2002 asked "Now thinking about some specific religious groups, is your overall opinion of...Atheists, that is, people who don't believe in God very favorable, mostly favorable, mostly unfavorable, or very unfavorable?" 5% said "very favorable," 29% "mostly favorable," 23% "mostly unfavorable," and 31% "very unfavorable" — results quite similar to those found by the 2005 poll.

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Leading Atheist Legal Activist and Candidate for Alabama Attorney General

Has Some Rather Interesting Views About Jews, Zionism, and the Holocaust: Larry Darby is apparently a pretty prominent atheist legal activist. He was the president of the Atheist Law Center (though he has since stepped down to run for public office); filed amicus briefs in the Supreme Court's Ten Commandments cases on behalf of various atheist groups and also on behalf of Scouting for All; ran the Alabama chapter of American Atheists; got the Atheist of the Year award from American Atheists; has been quoted in various newspapers, mostly in Alabama but also elsewhere; and has appeared on various television programs in connection with his opposition to Judge Roy Moore's actions related to the Ten Commandments. Darby is now running in the June 2006 Democratic primary for Alabama Attorney General — I suspect that he has little chance of winning, but I take it that he'll want to use the race as a platform for expressing his various views, which include juvenile law reform and decriminalization of marijuana.

Mr. Darby also (1) apparently wrote that "David Duke is right on with the problem of Zionism and the Zionist-Occupied Government we live under," (2) seems quite interested in whether media representatives who contact him about such matters are Jewish, and (3) was substantially involved in organizing a speech by noted Holocaust denier David Irving.

I first heard about this when an acquaintance of mine e-mailed me an exchange that included Mr. Darby's "Zionist-Occupied Government" quote. I then e-mailed Mr. Darby to verify the quote. (I had and still have no reason to question my correspondent's veracity, but I thought that checking would be a good idea.) The closest Mr. Darby came to denying the accuracy of the quote is when he eventually said — after an exchange of several e-mails — "Know that what you sent to me as represented by [my correspondent] is not authentic," which seemed to me like a somewhat coy way of addressing whether Mr. Darby indeed said the "Zionist-Occupied Government" item.

I then followed up by asking "My question was simply whether you did or did not e-mail the text I asked you about. Did you or didn't you?" He didn't respond to that question, but instead insisted that I tell him whether I was a Zionist and a Trotskyite. Mr. Darby's e-mails to me also included the following, which further leads me to think that my correspondent indeed accurately quoted the "Zionist-Occupied Government" line:

[F]or the record, Dr. David Duke does offer insight into the neoconservative or Trotskyist government in Washington, DC. Some of what he has been saying for years is bearing out in the news today. Have you ever read anything of Duke's your self? I'm sure he'd talk to you. Write him at www.davidduke.com and find out for yourself. And read what he really says for yourself, without relying on what Jewish Supremacists say about him.

Have you been keeping up with all the Zionists (Jews and Jewish-Christians) being arrested by the FBI? I know it hasn't made mainstream media, but it is happening and expectations are that when Kidan turns evidence against Uber-Zionist Abramoff, some other members of Congress might be indicted. Those are only two of several people arrested.

If you aren't keeping up with those issues, then likely you won't be able to understand that Dr. Duke knows what he's talking about when it comes to Jewish Supremacism and Zionism. . . .

Earlier in the exchange, Mr. Darby had also asked me whether I was a "MOT," which he later elaborated to "MOT refers to Member of Tribe. In other words, are you a Jew?" A quick Internet search revealed to me Mr. Darby's invitation of David Irving.

* * *

It seems to me very important that irreligious people participate in public debate, to defend the legitimacy of their views, and to protect themselves against religious discrimination and hostility. I don't agree with everything that all atheist activists urge; for instance, I don't think that the Establishment Clause is properly interpreted as banning religious speech by the government. Nonetheless, there are indeed some egregious forms of discrimination against the irreligious (or the less religious), for instance in child custody cases — these should be assiduously fought.

Moreover, there seems to be a great deal of hostility to atheists among the public: A July 7, 2005 Pew Research Center poll, for instance, asked people about their views of various religious and political grounds, and whether "your overall opinion of [the group] is very favorable, mostly favorable, mostly unfavorable, or very unfavorable?" For Catholics, the total unfavorable percentage was 14%; for Jews, 7%; for "Evangelical Christians," 19%; for "Muslim Americans," 25%; for "Atheists, that is, people who don't believe in God," it was 50%, including 28% "very unfavorable" (only 35% said they had either a "very favorable" or "mostly favorable" view of atheists). Such religious hostility, it seems to me, should also be fought (though of course through argument rather than litigation). Anti-atheist bias is no more justifiable than anti-Jewish bias.

I therefore have nothing at all against atheist political movements in general, nor do I have any reason to believe that atheists generally have any hostility towards Jews, or affection for David Duke. Yet this makes it all the more important, it seems to me, for atheists who are deciding whom to ally themselves with — or for that matter, for members of other groups, such as Scouting for All or any marijuana decriminalization groups — to know Mr. Darby's views that I describe above, views with which I hope most atheists much disagree. Likewise, Alabama Democrats should know who's running in their primary, and should keep in mind the views I note above, even if some of them are tempted to agree with him on marijuana decriminalization, juvenile justice, or even religion in public life. (I doubt there are that many Alabama Democrats who do agree with him on those latter issues, but I imagine there are some.)

And it's also important for Jews — even in America, the place in the world in which it is probably safest to be a Jew — to be reminded that these sorts of views do exist in America, and in what might to many seem like quite unlikely circles.

UPDATE: Corrected "Atheist Legal Center" to "Atheist Law Center"; sorry for the error.

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Is There A Secret Law In the GIlmore Case?: I've been mulling over the Gilmore case some more, and it occcurs to me that the notion that there is a "secret law" in that case may be a fiction, the invention of a civil complaint that was accepted as true for the purposes of a 12(b)(6) motion to dismiss.

  Here's my thinking. John Gilmore claimed in his complaint that the TSA was relying on a "secret law," apparently based on statements made to him at the Oakland airport by airline employees. The district court accepted this claim as true for the purpose of the motion to dismiss. Now, on appeal, DOJ is in the rather odd situation of having to accept for procedural purposes that such a secret law exists, even though it may not. Its argument is that, assuming such a law exists, Gilmore has no case.

  How likely is it that there is a secret law at issue in this case? I'm not sure, but the more I look at it, the less likely it seems. If you listen to the oral argument around the 27 minute mark, the DOJ attorney is saying that they're not disclosing whether the TSA's actions are based on a policy, informal guidance, a regulation, or whatnot only because there is a regulation blocking the disclosure of TSA's practices (presumably promulgated under a statute like 49 U.S.C. 114(s)). An airline employee did tell Gilmore that while he wasn't sure where the rules came from, it was possible there was an "FAA regulation" on this. However, such a tentative statement from an unnamed airline employee to a contrarian passenger isn't a very reliable source of evidence.

  So in the end, it may be that this litigation looks troublesome because DOJ is in a weird situation: the secrecy regulations may be blocking them from disclosing that there is no secret law at all. I can't be sure, of course, but I think it's a significant possibility.

  UPDATE: To clarify a bit, I hope readers will note the difference between a "secrecy law" (a law concerning secrecy) and a "secret law" (a law that is itself secret). The U.S. Code contains a number of provisions that permit the TSA to keep information secret; this Slate article is a good summary. Such provisions are secrecy laws; the laws are public, but permit nondisclosure rules. I am assuing that "secret laws" are different; they are laws that themselves are secret. Thus, the possibility explored in this post is that the secrecy laws in the U.S. Code may be blocking disclosure of the fact that there is no secret law, contrary to Gilmore's claim in his complaint. Does this seem rather odd? Yup, it sure does to me. But I'm just trying to figure out what is happening, not to defend the TSA.

Related Posts (on one page):

  1. More on Secret Laws:
  2. Is There A Secret Law In the GIlmore Case?:
  3. Secret Laws and Gilmore v. Gonzales:
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Cathy Seipp vs. L.A. Times Writer on Blogging:

Check the original article and Cathy's response. Here's an excerpt from Cathy's item:

An article called "Blogging L.A." included neither the much-hyped L.A.-based commercial blogging enterprises that began this year (the Huffington Post and Pajamas Media, of which I'm a member), nor any of the major L.A. blogs (Kausfiles, the Volokh Conspiracy, Little Green Footballs, et al) except L.A. Observed and Defamer, and then only in passing.

Instead, Times readers were told about tiny, diary-style L.A. blogs, the kind that defined the medium about five years ago. You'd also have no idea that since the post-Sept. 11 explosion of political blogs, L.A. has been the capital of the blogosphere. But The Times -- which has a sorry tradition of ignoring trends in its own backyard -- has been missing that story from its beginning. . . .

How obscure are the blogs discussed in Calendar Weekend? The story opened with one that gets just 15 daily visits, and closed with another that no longer exists. What kind of L.A. blogs did these upstage? Just as one example, Little Green Footballs, which played a major role exposing CBS' National Guard memos story as a hoax last year, gets at least 50,000 hits a day. A cynic might suspect that The Times tries to make blogs seem as boring and inconsequential as possible, in order to staunch the flow of readers and advertisers from newspapers to the Internet. . . .

Note that headlines for articles are chosen by the newspaper, not by the author, so Cathy should get neither credit nor responsibility for the headline to her piece, which is "Where, you overpaid fools, was Little Green Footballs?"

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[Puzzleblogger Kevan Choset, December 12, 2005 at 11:36am] Trackbacks
What famous person

has six vowels in his/her full name, all of which are the same? (e.g., Adam Casablanca, if he existed.)

UPDATE: I can think of at least two, both very famous.

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"What is $1,000 An Hour?":

Benjamin Civiletti's billing rate. The highest reported associate billing rate is $835 an hour.

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Secret Laws and Gilmore v. Gonzales: Kevin Drum has a post up about last week's Ninth Circuit oral argument in Gilmore v. Gonzales, a case involving ID requirements to board a commercial airline flight. Kevin expresses astonishment over the "secret laws" allegedly at issue in the case:
  Seriously, is this true? I'm just gobsmacked. Congress is passing laws that the American public isn't allowed to know about? Any of us might be prosecuted under one of these laws that we don't know exists? Courts are being asked to interpret laws they've never seen?
  This gives Kafkaesque a very chilling and newly concrete meaning.
  Kevin is a terrific blogger and a heavyweight analyst, so I decided to take a closer look at the Gilmore case. I found the briefs here, and the oral argument here. My research suggests that, fortunately, the reality is considerably less troubling than what Kevin fears it may be. Maybe not entirely untroubling, but a lot less troubling than it first appears.

  First, some background about the case. John Gilmore filed a lawsuit arguing that he has a constitutional right to board a commercial flight without presenting a government-issued photo ID or being subject to additional screening. Gilmore bought a ticket from Oakland to Baltimore-Washington airport, refused to provide his ID, and was not permitted to board. He was then given the option of undergoing a search of his person to be allowed to board the flight without a photo ID, but he refused. Gilmore's primary claim is that the ID requirement (or at least the ID requirement absent consent to a search) violates the constitutional right to travel, the First Amendment, and the Fourth Amendment. He also argues that the government's failure to disclose the legal authority imposing an ID requirement violates due process and the separation of powers.

  It's the latter issue, involving the secrecy of the relevant legal authority, that has Kevin concerned. He quotes a report on the oral argument authored by Declan McCullagh, in which Declan writes the following:
  The Bush administration...claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it.
  A three-judge panel of the 9th Circuit Court of Appeals seemed skeptical of the Bush administration's defense of secret laws and regulations but stopped short of suggesting that such a rule would be necessarily unconstitutional.
  "How do we know there's an order?" Judge Thomas Nelson asked. "Because you said there was?"
  ....The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.
    This isn't my area, but some research suggests to me that the picture is somewhat different than what Kevin fears it may be. As I understand it, the answer to all of Kevin's questions is "no": Congress did not pass a secret law, no one can be prosecuted under a secret law, and courts are not being asked to interpret laws they've never seen.

  As best I can tell, the "secret laws" at issue in the Gilmore case are regulations promulgated by the FAA and TSA on who can board an airplane, such as the No-Fly list. Federal law permits the TSA/FAA to prohibit disclosure of information relating to aviation security if it would be detrimental to aviation security, and the TSA/FAA apparently has decided that the text of the legal guidance it uses internally to determine who can fly on an airplane should not circulate outside the government.

  Importantly, this doesn't necessarily mean that the rules themselves are secret. At least in the Gilmore case, the relevant rule is well known: it is widely understood that you need a government-issued photo ID to board an airplane. As the TSA's website explains:
If you have a paper ticket for a domestic flight, passengers age 18 and over must present one form of photo identification issued by a local state or federal government agency (e.g.: passport/drivers license/military ID), or two forms of non-photo identification, one of which must have been issued by a state or federal agency (e.g.: U.S. social security card). For an international flight, you will need to present a valid passport, visa, or any other required documentation. Passengers without proper ID may be denied boarding. For e-tickets, you will need to show your photo identification and e-ticket receipt to receive your boarding pass.
As I understand Gilmore's claim, his view is that this isn't enough. He claims that he has a due process right to be able to see the legal authority that TSA employees were relying on when they blocked him from boarding the flight.

  Now, just to be clear, I have no idea whether the TSA's decision not to publish the text of its regulations is a smart one. I can understand why they don't publish the names on the No-Fly list, but it's not obvious to me why they can't publish the regulation or rule (or the relevant part) requiring an ID. Maybe this is a misguided law, or an appropriate law being implemented in a misguided way. I don't know; as I said, this isn't my area of expertise. Further, I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't.

  At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane.

  Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file a version of its brief under seal. According to the government's claim at oral argument, the version of the brief filed under seal would have included the text of any regulations TSA follows. The Ninth Circuit rejected the motion without comment, however, and if one judge's comment at oral argument is any sign, it may be because the actual text of the regulation isn't essential to the case. As best I can tell, then, DOJ hasn't filed the undisclosed regulations with the Court because the Court rejected its motion to do so under seal, and the alternative, filing it in open court, would have defeated the purpose of having the text of the regulations unpublished.

  Anyway, that's my sense of things. If I'm missing something, which is quite possible, I hope readers will leave comments setting things straight.

Related Posts (on one page):

  1. More on Secret Laws:
  2. Is There A Secret Law In the GIlmore Case?:
  3. Secret Laws and Gilmore v. Gonzales:
53 Comments

Sunday, December 11, 2005

Cindy Sheehan Meets Her Muse:

The Islamist terrorists in Iraq are "freedom fighters" declares Cindy Sheehan. The September 11 terrorist attacks were entirely legitimate, according to Italian playwright Dario Fo, who shortly after September 11 wrote: "The great speculators wallow in an economy that every years kills tens of millions of people with poverty — so what is 20,000 dead in New York? Regardless of who carried out the massacre, this violence is the legitimate daughter of the culture of violence, hunger and inhumane exploitation."

Fo, who won the Nobel Prize for Literature in 1997, is also well-known for criticizing the Italian Communist Party for being too right-wing.

Now, the two famous admirers of terrorism have come together, in a new play by Fo, based on the life of Cindy Sheehan. "Peace Mom" stars Frances de la Tour, who recently portrayed the giantess Madame Maxime in "Harry Potter and the Goblet of Fire."

Personally, although I believe that Leni Riefenstahl was a very talented actress, her participation in any movie subsequent to "Triumph of the Will" would have made me enjoy the movie less. Likewise, although I enjoy the Harry Potter movies from Warner Brothers, I will enjoy future installments less if they include Ms. de la Tour, who, like Ms. Riefenstahl, has chosen to devote her considerable talents to promoting advocates of terrorism and mass murder.

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NYT on "Competing View" of Patriot Act: From the New York Times:
  Publicly, the debate over the law known as the USA Patriot Act has focused on concerns from civil rights advocates that the F.B.I. has gained too much power to use expanded investigative tools to go on what could amount to fishing expeditions.
  But [newly obtained internal FBI documents] . . . offer a competing view, showing that, privately, some F.B.I. agents have felt hamstrung by their inability to get approval for using new powers under the Patriot Act, which was passed weeks after the terrorist attacks of Sept. 11, 2001.
  One internal F.B.I. message, sent in October 2003, criticized the Office of Intelligence Policy and Review at the Justice Department, which reviews and approves terrorist warrants, as regularly blocking requests from the F.B.I. to use a section of the antiterrorism law that gave the bureau broader authority to demand records from institutions like banks, Internet providers and libraries.
  "While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us," read the e-mail message, which was sent by an unidentified F.B.I. official. "This should be an OIPR priority!!!"
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