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Saturday, January 13, 2007

Call the FCC?

During the first quarter of the New Orleans Saints-Philadelphia Eagles playoff game, the Fox broadcast lingered on a young lady wearing a t-shirt bearing the phrase "F*ck da Eagles" (albeint without the asterisk). Now I'm no expert on indecency law, but if Janet Jackson's wardrobe malfunction was an issue, wouldn't this be as well? [to be clear, I'm not defending the FCC's standards. I'm just wondering about the consistency of their application.]

UPDATE: I've correct the post ("da" instead of "the").

Related Posts (on one page):

  1. Call the FCC? - Update:
  2. Call the FCC?
54 Comments

Discouraging Detainee Defense:

Paul Horwitz notes that the issue of which law firms are defending detainees also made it into a Wall Street Journal column by Robert Pollock on "The Gitmo High Life." The bulk of the column discusses the relatively comfortable treatment at least many of the Guantanamo detainees receive. Yet the article also picks up on the suggestion of an "administration official" that law firm representation of detainees should be a "scandal."

Guantanamo detainees don't lack for legal representation. A list of lead counsel released this week in response to a Freedom of Information Act request reads like a who's who of America's most prestigious law firms: Shearman and Sterling; Wilmer Cutler Pickering Hale & Dorr; Covington & Burling; Hunton & Williams; Sullivan & Cromwell; Debevoise & Plimpton; Cleary Gottlieb; and Blank Rome are among the marquee names.

A senior U.S. official I spoke to speculates that this information might cause something of scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500. "Corporate CEOs seeing this should ask firms to choose between lucrative retainers and representing terrorists" who deliberately target the U.S. economy, he opined.

This article should remove any doubt about the meaning of Cully Stimson's remarks and make absolutely clear that at least some within the administration are encouraging corporations to pressure law firms not to represent detainees.

This audio segment from NPR (LvHB) is also worth a listen, and the New York Times chimes in here.

UPDATE: This New York Times news report suggests that not all of the administration is on board with Cully Stimson — or at least not officially.

In an interview on Friday, Attorney General Alberto R. Gonzales said he had no problem with the current system of representation. “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,” he said.

Neither the White House nor the Pentagon had any official comment, but officials sought to distance themselves from Mr. Stimson’s view. His comments “do not represent the views of the Defense Department or the thinking of its leadership,” a senior Pentagon official said. He would not allow his name to be used, seemingly to lessen the force of his rebuke. Mr. Stimson did not return a call on Friday seeking comment.

I have also noticed that Stimson is a graduate of my alma mater, the George Mason University School of Law. [Ack!] I guess he must have slept through professional responsibility; he should have to take it again. Hilzoy is less forgiving: "if either having no clue whatsoever about how our legal system works or being willing to try to subvert it is grounds for disbarment, then Charles Stimson should be disbarred."

139 Comments

George Bush, Mike Nifong, and Information Asymmetries:

I’ve been thinking a bit about information asymmetries. I opposed the Iraq war from the start – it seemed to me that for the invasion to make sense, almost everything had to break our way, so the invasion was akin to making a bet with a 1:1 payoff that you would win only if you rolled snake eyes. The one thing that gave me pause was the confidence George Bush and his advisers had about Saddam Hussein having weapons of mass destruction. If Saddam had WMD, and there was an imminent danger of his using them, then it seemed to me that the cost/benefit ratio of the war was much closer. And Bush had access to information that I could not see. So a huge issue for me (and I’d bet for many others) was the magnitude and significance of the information asymmetry between me and Bush. I ended up concluding that the public case for Saddam’s WMD seemed sufficiently spotty that the information asymmetry was not huge, but of course that was just an educated guess. Only in retrospect does it seem clear that Bush may have thought that he had much more information than the rest of us did, but that information turned out to be unreliable (note to future Presidents: be wary about relying on sources codenamed Curveball”).

When Mike Nifong stated that “there is no doubt a sexual assault took place” (and made more specific claims, like that the alleged victim “was struggling just to be able to breathe” during the alleged attack), again the information asymmetry loomed large. My assumption (like that of most people I know) was that he must have had mounds of evidence to support his confidence. Like Bush with WMD, Nifong had access to information that I could not see, and that access seemed important. It now seems that the only evidence he had for his statements was the alleged victim’s multiple (and contradictory) statements, and Nifong’s confidence (and the whole case) has become some combination of tragedy and farce.

The question that interests me is whether we can articulate any useful metrics for when we should defer to self-serving statements by those with access to more information, and when we should not. In the two instances above, the doubters were vindicated. There are other examples in this vein. LBJ had access to greater information about the Gulf of Tonkin incident than did the doubters, but the latter were right, as the Pentagon and LBJ misrepresented what happened. Indeed, the Pentagon Papers revealed repeated such instances in the Vietnam War. Meanwhile, General DeWitt emphasized his access to information as justifying the government’s Japanese internment in World War II, but we now know that DeWitt simply fabricated and lied (see Eric Muller and Peter Irons on this).

But there are counter-examples. Many people believed that Julius Rosenberg was innocent, but it is now clear the government really did have the goods on him, and that he was guilty. Same for Alger Hiss. Indeed, the airstrikes that President Clinton ordered at the height of the Lewinsky imbroglio – which were widely criticized as trumped up attempts at diverting attention, with little deference to the information asymmetry favoring the President – look quite different after September 11, 2001.

So I return to my question: are there any useful guideposts for how much (if at all) we should defer to self-serving claims that rely on superior information? Or are we left to judge each instance on an ad hoc basis?

1703 Comments

Grisham Goes to Court:

It appears best-selling novelist John Grisham will stand trial for allegedly inflicting emotional distress on a "suspect" in the course of an amateur investigation. Yesterday the Virginia Supreme Court overturned a lower court's dismissal of the case. It seems Grisham should stick to writing about sleuthing, rather than trying to do it himself.

10 Comments

Friday, January 12, 2007

Is it My Bad Luck, or Has Customer Service in the U.S. Really Gone to Hell?

I know one should extrapolate too much from limited experience, but I have consistently been receiving terrible customer service over the last couple of weeks, to wit:

(1) I've already blogged about my experience with Speakeasy.net, which led to several readers emailing me similar stories about that company;

(2) I purchased a ticket on the United Airlines website. I discovered that Orbitz was offering the same ticket for $15 less. I tried to take advantage of United.com's low fare guarantee. I emailed all the pertinent information, with a promised response within one business day. Two business days later, I received an email in the late afternoon demanding more information by fax by midnight. I duly sent that information. That was weeks ago, and I have not heard anything since, despite a followup email, to which I received a boilerplate response. And, it's nearly impossible to get to speak to a live human being, and even more difficult to speak to someone who speaks English in the American vernacular, if one calls United's "customer service" department.

(3) My moving company (which I won't name pending how it ulimately resolves the issue, which is currently "under investigation"), a respectable company affiliated with one of the national giants, promised at least three times that there would be "no charge" for a particular service. On moving day, I was told that there would be a $300 charge. A week later I was told that the charge would actually be $972.

(4) I called Comcast to set up cable installation. They sent a complete moron, who wanted to run a cable from the third floor to the first floor, by way of staircases and hallways. I called Comcast, and they offered to send a new technician two days later. No one showed up. I called Comcast, and was told the technician must be running late. He never showed. I called again, and was told that the previous two folks were wrong, that no one was coming to my house that day, that someone would call me that day to set up an appointment later in the week. Someone did. And then didn't show up for the appointment. I decided we can live without cable.

Is this a real trend, or have I just had bad luck?

UPDATE: I forgot about a fifth example: I learned last week that Alcon has recalled an eyedrop I use, "Systane Free", for safety reasons. Instead of offering a refund, the company is only offering an exchange for other versions of this drop; without boring you with the details, these other versions have different properties, and I don't want them. When I called Alcon's customer service, I was told they hired a third party to handle the recall, so I'd have to take it up with them!

107 Comments

Prosecutorial Misconduct: Dorothy Rabinowitz had an excellent essay in yesterday's Wall Street Journal, available free on OpinionJournal.com, about the Duke rape case entitled, The Michael Nifong Scandal. Her essay places this incident in the context of the prosecutorial abuses that she did so much to combat in the 1980s and '90s:
For all the public shock and fury over his behavior, there is little that is new or strange about Mr. Nifong. We have seen the likes of this district attorney, uninterested in proofs of innocence, willing to suppress any he found, many times in the busy army of prosecutors claiming to have found evidence of rampant child abuse in nursery schools and other child-care centers around the country in the 1980s and throughout most of the '90s. They built case after headline-making case charging the mass molestation of small children, and managed to convict scores of innocent Americans on the basis of testimony no rational mind could credit. Law officers who regularly violated requirements of due process in their effort to obtain a conviction, they grasped the special advantage that was theirs: that for a prosecutor dealing with molestation, and wearing the mantle of avenger, there was no such thing as excess, no limits to what could be said of the accused. In court, rules could be bent, any charges presented, and nonexistent medical evidence proclaimed as proof positive of the accusation.
I believe this disturbing phenomenon is distinct from "normal" prosecutorial overreaching in ordinary cases. This sort of misconduct is fueled by publicity and politics, whereas normal prosecutions take place in almost complete obscurity. On the one hand, fewer people--in particular the press--are looking over the prosecutor's shoulder. On the other hand, the lack of publicity reduces the incentive to dig in and go for broke, which makes it all the more mysterious to me when prosecutors have done so. In large offices, prosecutors must get supervisors to sign off on reducing or dropping charges precisely to prevent them from getting out of trying cases that are not dead-bang winners. But like the psychology of defense, the psychology of prosecution is far more complex than this.

Some commentators on other threads have criticized the lack of blogging on the Duke case here at the Conspiracy. In my case, as a former criminal prosecutor (in the Cook County State's Attorney's Office), I am very interested in the issue of prosecutorial misconduct and incompetence in general, and in this case in particular, and have been following events on Durham-in-Wonderland. But I also know that, aside from the issue of prejudicial statements to the press, accusations of prosecutorial misconduct depend entirely on the state of the evidence available to the prosecutor and that, at this stage in the proceedings, no one besides the lawyers really know what evidence exists. So ordinarily there is nothing to do but wait and see how the evidence unfolds at trial. It is highly unusual for a case to implode in this manner at this stage. Above all, this is a credit to the defense team.

As I have said for many years, our adversarial system depends for its effectiveness on the competence of the lawyers on both sides of the case. Where persons are wrongly convicted (as opposed to being wrongly accused as here) this is usually the result of incompetent defense lawyering, rather than some nefariousness on the part of the prosecutor. Where the criminal justice system is in greatest need of reform is ensuring competent counsel to all accused, regardless of their guilt. In my opinion, and having watched considerable portions of the trial, the OJ Simpson case is a rare example of severe prosecutorial incompetence; to be sure, the defense counsel were competent, but hardly a Dream Team as advertised. Prosecutors with experience in high profile cases, such as those who tried the Gacy case in Chicago when I was an ASA, should have prevailed. It was all-too-easy and a pity to blame the jury in the Simpson case for the failings of the prosecutors. As I said at the time, the Simpson prosecutors were either the best that the LA DA's office had to offer, which would be shocking (and which I do not believe), or they were not, which would be equally shocking (and a poor reflection on Gill Garcetti, the District Attorney who selected them). On the issue of incompetence of the Simpson prosecutors, I recommend Vincent Bugliosi's Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder.

But the scandal of Duke case is not about the incompetence of either line prosecutors or ordinary criminal defense attorneys, but the politically-motivated misconduct of an elected District Attorney. And it is also about how one's life can be ruined, or at minimum forever altered, not to mention bankrupted, by a false accusation from which one is eventually vindicated.
77 Comments

Judge Harry Pregerson, Champion of Federalism: In a dissent filed today in United States v. Reynard, Judge Pregerson argued that the DNA Analysis Backlog Elimination Act of 2000 (the "DNA Act") is unconstitutional because it exceeds Congress's authority. The DNA Act compels those convicted of qualifying federal crimes to submit to DNA collection as a condition of being released on federal probation or supervised release. In his dissent filed today, Judge Pregerson argued that this law exceeds the Commerce Clause power even after Raich:
  [B]y passing the DNA Act, Congress is attempting to regulate something that it — and nobody else — has put into the stream of commerce. Reynard’s DNA — while housed in his body — is not a "thing" in interstate commerce until the government, under the DNA Act, compels the DNA's extraction by drawing blood from a parolee and places the DNA in the stream of commerce for analysis. Congress may not bootstrap its authority to regulate purely local activity under the Commerce Clause. If the government is allowed to regulate anything that it puts into the stream of commerce, its powers under the Commerce Clause would be without limit. "To be sure, 'the power to regulate commerce, though broad indeed, has limits.' " Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003) (quoting Maryland v. Wirtz, 392 U.S. 183, 196 (1968)). By arguing that Condon authorizes Congress to regulate Reynard’s DNA only after the government has placed it in interstate commerce, the government puts the proverbial cart before the proverbial horse.
  Because passage of the DNA Act cannot be justified under any of the three "categories of regulation in which Congress is authorized to engage under its commerce power," Raich, 125 S. Ct. at 2205, I agree with Reynard that passage of the DNA Act exceeds Congress’s power under the Commerce Clause.
  First Judge Reinhardt, now Judge Pregerson. I wonder if these Judges want to bring back the Constitution-in-Exile? (Hat tip: Decision of the Day)
24 Comments

Lott v. Levitt (cont.):

Concurring Opinions guest blogger Michael Abramowicz provides an update on John Lott's defamation lawsuit against Freakonomics co-author Steven Levitt, complete with commentary. Jim Lindgren has written about this litigation on the VC here.

[Note: Those wishing to comment on the litigation can do so at Concurring Opinions.]

UPDATE: Glenn Reynolds' take: "a lawsuit that shouldn't have been brought, over a chain of events that shouldn't have happened, and involving accusations that shouldn't have been made."

Also, Keith Sharfman wonders whether the stakes in the case are as low as Abramowicz suggests.


FOIA Blog!

Yes, there is a Freedom of Information Act blog called, appropriately enough, The FOIA Blog. (Hat tip: Legal History Blog via Law Blog Central.)


Defending Guantanamo Detainees:

I too am very troubled by remarks from deputy assistant secretary of defense of detainee affairs Cully Stimson that seem to urge private businesses to pressure law firms to stop defending Guantanamo detainees:

I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.
Listen to the radio interview yourself, starting at 3:00 into the file. It seems to me quite clear from the interview that the Secretary isn't merely predicting such an action by the law firms, but also saying that such an action would be good. A few thoughts:

(1) Just to avoid misunderstanding, I am not claiming that it is illegal for businesses to pressure their lawyers to stop taking certain other cases, or to boycott lawyers who do take such cases. Businesses, like other clients, are entitled to choose the lawyers they want. Nor am I claiming that it is unconstitutional for government officials to urge businesses to do this, so long as the urging stops short of threat of governmental retaliation (whether through legal punishment or through withdrawal of government contracts). I think Mr. Stimson's urging is improper, not that it's unconstitutional.

(2) I also do not want to claim that it's categorically improper for clients to avoid lawyers who are embarked on legal campaigns of which the client disapproves. In particular, I do think that clients may rightly turn away from lawyers and law firms whose motivations the client finds to be repugnant. If a lawyer or law firm's genuine goal is to try to help jihadists (or racists or Communists or whoever else) avoid legal liability in all circumstances, simply because they back jihadists/racists/Communists, a client may reasonably conclude that he does not want to have doings with that organization.

I think this tracks our common sensibilities in social life as well. I may be sad that a public defender gets a factually guilty rapist released, but he's doing his job, it's an important job, and he's supposed to his job as well as possible; I won't cut off social or business connections with him. But if I learned that a public defender defends rapists because he thinks rape is good, I would have a very different view.

(3) But it seems extremely unlikely that those lawyers who represent Guantanamo detainees do so because they support jihad against America. Rather, I take it that they are doing this chiefly because they think that their actions may (a) reduce the risk of factual error (continued detention of detainees who aren't really guilty), (b) reduce the risk of legal and constitutional violations (deprivation of what the lawyer thinks are important due process norms), or (c) reduce the possible indirect harm that such erosion of due process norms can cause to others in the future. And they believe that, when a legal process is available — as the Supreme Court has held that it is — the legal system is benefited by having trained, qualified lawyers involved on both sides of the process, so that courts and other tribunals see an adversarial presentation with the best cases made for both sides.

Now one might thing that, despite the lawyers' good intentions, their actions will yield bad results. One might, for instance, think that the Court was wrong in holding that courts should consider detainees' habeas claims, and that getting more lawyers involved in the process will hurt national security. That's fine. But surely this is an area on which reasonable, decent, thoughtful Americans can differ.

Again, let's return to the analogy of political belief and expression, in social and professional life. As I said, I'd have no qualms with people's refusing to invite Communists, Nazis, Klansmen, and the like to dinner, or even refusing to do business with them. (I would act the same myself.) But if someone refuses to do business with someone because he disagrees with his stand on global warming, social security reform, the war in Iraq, affirmative action, and the like, that person is being intolerant. He's undermining social norms that are vital to a working democracy — norms that maintain connections across political aisles, that allow people to disagree without rancor or hatred, that eventually allow compromise, and that help make possible unity in the face of common threats. And, if his goal is to try to change others' speech, he's improperly trying to do this through financial and social threats rather than through persuasion. The lines here are not crisp, and since we're talking about propriety rather than law, they neither can be crisp nor need to be crisp.

Likewise when we shift back from a lawyer's political expression to the lawyer's legal representation. In extreme cases, where the lawyer's goal is really to have the jihadists win, or to have rapists rape with impunity, I too wouldn't do business with the lawyer. But when lawyers defend Guantanamo detainees out of the motives I describe above, it seems to me that they are well within the zone of that which should be tolerated, without social or professional retaliation, even if we think that on balance the lawyers' actions end up being harmful. To do otherwise would likewise undermine important social norms of encouraging lawyers to provide the legal system with services that the legal system sees as necessary for its most effective operation.

(4) So far I've spoken just of what businesses should do; now to the government official's statements. The detainees' lawyers are, in court, the government's adversaries. But the premise of our legal system is that you can be the adversary and not the enemy, and that in fact your representation can help the legal system run by the very same government that you are opposing.

It strikes me as especially wrong for the government to try to drum up financial pressure that would deter lawyers from playing this role. Again, the premise of our legal system is that the courts, and not just litigants, are benefited from quality legal advocacy. If the government frightens away lawyers who are on the other side, it will get an unfair advantage in the judicial process, shortchange the judiciary, and (when it comes to decisions that set precedents) potentially yield legal rules that will give too little protection for the rest of us, and not just the Guantanamo detainees.

(5) Finally, quite aside from the argument that businesses should pressure law firms to stop representing detainees, isn't there something troubling with the motivation that Stimson is urging? He's not even saying that corporate CEOs should pressure firms because the CEOs are patriots, or because they hate terrorists, or because they want to prevent future terrorist attacks. It's because the terrorists hit their bottom line.

Is he really appealing not to the CEOs' patriotism, or anger over mass murder, but to their anger that terrorists cost business money? To look at the flip side, should construction and security contractors who made money (perfectly honorably, I should stress) as a result of the terrorist attacks start giving more business to law firms who are representing detainees, on the theory that "those firms are representing the very terrorists who [benefited] their bottom line back in 2001"? Yes, CEOs should surely look out for the bottom line; that's their job. But this strikes me as a context in which the concerns about past impacts on the bottom line should be the least relevant.

* * *

Disclosure: I am affiliated on a part-part-part-time basis with Mayer, Brown, Rowe & Maw, one of the firms correctly named by Stimson as representing some of the detainees. I am not personally involved in those cases.

127 Comments

Interesting Citizen's Arrest Incident, Involving Former Congressional Candidate:

The Cincinnati Enquirer reports on an interesting incident involving former Democratic congressional candidate Paul Hackett, who was also an Iraq War veteran:

Indian Hill lawyer and former congressional candidate Paul Hackett -- armed with a loaded assault rifle -- chased down three men in a car after it crashed into a fence at his home in the early morning hours of Nov. 19.

The driver was charged with failure to maintain reasonable control, driving under suspension and carrying a concealed weapon -- a pair of brass knuckles found in his pocket -- according to the Indian Hill police.

Indian Hill Rangers consider the matter closed, but a Hamilton County grand jury two weeks ago took testimony from the three men in the car and the ranger who investigated the incident, according to an Indian Hill police report....

Ohio law says guns can be used in self-defense in cases to repel deadly force. Criminal damaging is a misdemeanor and would not be considered a crime of deadly force....

[Indian Hill Ranger Paul White] ... arrived at a driveway in the 8700 block of Keller Road to find the three men lying face down near their small, black car and Hackett's pickup truck. With a flashlight, White saw a strap on Hackett's right shoulder and "what appeared to be an assault rifle hanging along his right side," White's report said....

During the investigation, Hackett told police Nov. 30 that he was carrying an AR-15. He said one round was in the chamber and that he usually has 28 rounds in the magazine. He also told police that he did not point the weapon at the three men, the safety was on and he never put his finger on the trigger.

Hackett said he had followed a trail of fluid left by the car, and the vehicle stopped in a driveway. Hackett told police that he hopped out of his truck and that he was armed.

"He told the boys to 'Get the ---- out of the car and get on the ground.' ... He said he did not touch the vehicle with the rifle and maintained his distance. 'I knew they saw I was armed,' he said. He said he had done this about 200 times in Iraq, but this time there was not a translation problem," the Indian Hill police report said....

I take it that the legal question here, on which I'm not up, is whether it's permissible to threaten to use deadly force -- not necessarily use it, but threaten it -- in order to make a citizen's arrest in a situation such as this.

Related Posts (on one page):

  1. No Charges in Citizen's Arrest Incident:
  2. Interesting Citizen's Arrest Incident, Involving Former Congressional Candidate:
103 Comments

Lake Erie Wind Farm:

There is increasing interest in a potential offshore wind farm in Lake Erie. While there are sea-based wind turbines in Europe, proposals for such projects of the U.S. coast have been blocked, often by the same folks who call for greater investments in alternative energy sources (see, e.g., the ill-fated Cape Wind project off of Massachusetts). As a result, a Lake Erie wind project has the potential both to be the first offland wind project in the U.S., as well as the first fresh water wind project in the world. All offshore wind projects to date have been built in salt water.

In my conversations from local wind energy experts, I've learned that a fresh water wind farm might present unique design challenges. Constructing ocean-based wind turbines is rather easy, in large part because constructing ocean-based platforms is nothing new. Engineers know how to address the problems caused by currents, corrosion, and inclement weather. In fresh water, however, the potential problems are different. As the shallowest of the Great Lakes, Lake Erie's depth is a definite plus from a construciton standpoint. On the other hand, the surface of Lake Erie can freeze. Also, as I understand it, drifting ice on the surface can build up substantial momentum, and present different problems than ocean waves. As reported in the story to which I linked above:

Engineering challenges include anchoring towers in a lake that's 50 to 60 feet deep. The towers would stretch 240 feet or more above the water and hold rotating blades that, tip to tip, are longer than a football field. The towers must withstand waves and winter ice.

But encountering the difficulties would generate unique research and development, potentially making the region a hub for off-shore wind power, said Richard Stuebi, the Cleveland Foundation's energy expert.

If VC readers know more about this subject, I would be interested to learn their perspectives on the engineering challenges of such a project, and how they might be overcome.

27 Comments

Banner Day at D.C. Circuit:

The U.S. Court of Appeals for the D.C. Circuit handed down six published opinions today, several of which seem notable (though I have not had the chance to read them all yet). Among today's opinions are:

  • - Doe v. ExxonMobil Corp., a divided opinion on the justiciability of claims brought under the Alien Tort Statute and the Torture Victims Protection Act, in addition to various common law claims, based upon ExxonMobil's alleged complicity with human rights abuses in Indonesia. Judge Sentelle wrote the majority for himself and Judge Edwards; Judge Kavanaugh dissented.

  • - United States v. Henry, another opinion sorting out the implications of Booker (among other things). The court's opinion is per curiam, but Judges Henderson and Kavanaugh wrote separate concurring opinions.

  • - NARUC v. FERC, an otherwise unanimous opinion reviewing a Federal Energy Regulatory Commission order splits over the question of whether FERC has the authority to adopt rules that regulate the use of the states' eminent domain power by or on behalf of utilities. Judge Sentelle's partial dissent says the answer is "no." Judge Williams' majority opinion argues FERC is not really regulating the states' use of eminent domain.

  • - CREW v. FEC, a opinion finding that Citizens for Responsibility and Ethics in Washington lacked standing to challenge the Federal Election Commission's resolution of its complaint alleging that Grover Norquist and Americans for Tax Reform illegally gave the Republican Party an in-kind corporate contribution, in the form of a list of conservative activists.

I've oversimplified these cases in my summaries (in part because I've only skimmed them myself), so I apologize in advance if I've missed important aspects of these cases. I hope to post more on at least some of them, even if only to provide links to fuller discussions and analyses on other blogs.

UPDATE: At Sentencing Law & Policy, Doug Berman comments on United States v. Henry, a "must read" opinion, and explains why the D.C. Circuit and Judge Kavanaugh are so money. "Baby, that was money! Tell me that wasn't money."

3 Comments

Defend Detainees, Suffer Consequences?

As reported in this Washington Post editorial (LvHB), a high-ranking administration official recently suggested that major law firms may have to choose between allowing their attorneys to do pro bono work for Guantanamo detainees and retaining high-profile corporate clients. No joke. In a radio interview, deputy assistant secretary of defense of detainee affairs Cully Stimson noted that a "major news organization" submitted a Freedom of Information Act request to learn the identities and law firms of attorneys representing detainees. He continued:

I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out. (Emphasis added.)
After this suggestion that such pressure should be encouraged (Query: Is this official administration policy?), the Post reports Stimson intimated some firms could be receiving payment for their work on behalf of detainees from nefarious sources.
Asked who was paying the firms, Mr. Stimson hinted of dark doings. "It's not clear, is it?" he said. "Some will maintain that they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that." (Emphasis added.)
Mr. Stimson may well have been shooting from the hip, rather than expressing official policy. Either way, the administration should disavow his statements.

It is wrong to attack law firms because their attorneys do pro bono work on behalf of unsavory defendants. All individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to judicial process, and it is wrong to impugn attorneys on the basis of the clients they represent.

I would think this administration could appreciate this principle. When left-leaning activist groups attacked administration judicial or executive nominees on the grounds some had worked for unsavory clients, the administration correctly responded that it is wrong to attribute a client's position to his or her attorney, and that nominees should be judged upon their professional qualifications, rather than the political appeal or moral caliber of their former client base. As Lee Casey and David Rivkin explained a few years back in Policy Review:

Whether based on the belief that lawyers were above, or below, the fray, and if sometimes honored in the breach rather than in the observance, our society has permitted lawyers to ply their trade without ultimately being blamed or punished for the clients they have represented. This “immunity” is, in fact, essential to the operation of a neutral legal system, which assumes that there are two sides to any question, presupposes that all parties ought to receive a fair hearing of their case, and depends upon lawyers to articulate the relevant legal principles so that disinterested judges and juries can fairly resolve the issues presented.
Folks seem to understand this at the Justice Department and the White House Counsel's office, but I guess Stimson didn't get the memo.

If all the detainees are as guilty as some claim, the administration should have nothing to fear if all detainees receive a vigorous legal defense. Instead, an administration official is suggesting law firms should be punished if their attorneys help detainees. What purpose could this serve, other than to discourage capable and zealous representation for detainees? Back to the Post:

it's offensive — shocking, to use his word — that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It's shocking that he would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking — though perhaps not surprising — that this is the person the administration has chosen to oversee detainee policy at Guantanamo.

UPDATE: Paul Horwitz comments on PrawfsBlawg (also posted at Dorf on Law)

One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not. I would have thought that Mr. Stimson, a lawyer, was fully familiar with Rule 1.2(b) of the ABA Model Rules of Professional Conduct and similar state provisions, and would side with the former views. I see now that I would have been mistaken in thinking so.

97 Comments

Scientists' Critique Shelves Bush Proposal:

In an effort to encourage greater risk prioritization and regulatory cost-effectiveness, the Office of Management and Budget developed new guidelines for risk assessments conducted by government agencies. The aim was to create a set of guidelines to ensure agency risk estimates used to develop regulations would be reliable and consistent. Various activist groups criticized the plan, arguing that it would become an obstacle to the adoption of more protective health, safety, and environmental regulations.

Perhaps in response to public criticism, the OMB submitted its plan to the National Research Council for comment. According to an article in today's W$J, the NRC was not fond of OMB's plan, calling it "too simplistic" and "fundamentally flawed." rather than increase the reliability and consistency of agency risk assessments, the NRC concluded the proposal could "create confusion." As a result (and here is the surprise), the Administration is shelving the plan, at least in its current form. According to the Journal story, neither OMB's acting regulatory chief nor the head of the NRC panel "could recall an earlier instance where a panel of outside scientists had prompted the withdrawal of a White House policy initiative."

UPDATE: Here is the National Research Council release summarizing the report. The report itself can be accessed here.

6 Comments

Brutal Murder of Palestinian Children:

In December, Israeli forces deliberately murdered the three children of an important Palestinian official while the children were on their way to school. Surprisingly, there has been little worldwide outrage over this incident.

Okay, that's not exactly what happened. Here's the edited version: In late December, Israeli Hamas forces deliberately murdered the three children of an important Palestinian [Fatah] official while the children were on their way to school. [Not] Surprisingly, there has been little worldwide outrage over this incident.

As Ze'ev Schiff puts it: "A few months ago, the earth shook when Palestinian civilians were killed by the IDF's misguided artillery fire on Beit Hanun. Tempers ran high in the United Nations, and leftist organizations in Israel demanded that an international commission of inquiry be established and that the GOC Southern Command be dismissed. When Palestinians kill Palestinian children - and not by accident - no criticism is heard."


Thursday, January 11, 2007

Publius of the "Legal Fiction" Blog has closed up the solo blog and joined the crew at Obsidian Wings.
12 Comments

Hair Petting Game:

Reader Tina points to this video, which purports to show young women walking down the street touching strangers' hair, video-recording the process throughout. For a likely higher degree of annoyance to others, and a certainly much higher degree of danger to the petters, see two young men doing the same.

(1) Real or fake? I'll assume real for purposes of the question. I'll also assume that it's in New York, as accounts suggest.

(2) Is it a crime, asks the reader? Oddly enough, I don't think so. It's not assault or attempted assault under New York law, because it involves no actual or attempted physical injury. It's not a sex crime, because it doesn't involve the touching of "sexual or other intimate parts" (hair can be intimate in some senses, but not, I think, in the sense contemplated in that phrase). It's not menacing, because it's not likely to create a fear of "physical injury" (or at least not enough such fear, I'd guess). It's not criminal harassment, because it doesn't involve placing some in reasonable fear of physical injury, repeatedly following the person, or action done with the intent to harass, annoy, or alarm.

Some states seem to have laws banning "offensive touching" (see, e.g., 11 Delaware Code § 601(a)(1), barring "[i]ntentionally touch[ing] another person either with a member of his or her body or with any instrument, knowing that the person is thereby likely to cause offense or alarm to such other person") or "offensive physical contact" (see, e.g., Alaska Statute § 11.61.120). Under these laws, we'd have to figure out whether having one's hair touched for fun (as opposed to having one's hair touched by someone who's trying to brush off a fly, or by someone who's simply trying to make room for himself on a crowded subway) is "offensive" enough; I suspect it would be, but I'd have to do more research to figure this out.

There may well be other statutes that my quick research hasn't found -- please do let me know if you can find some. But for now I can't see a New York law that makes this hair petting illegal.

(3) Is this the tort of "battery"? Yes, if it's "offensive bodily contact," which is to say contact "that a reasonable person would find offensive," because it "offends a reasonable sense of personal dignity." (See above.)

(4) Could this also involve the tortious use of another's likeness for commercial purposes? (The Petting Game people seem to have some commercial motivations, though I'm a little hazy on their business model.) I doubt it, for complex reasons, especially under the New York law of right of publicity, which is relatively narrow.

(5) Do I recommend such behavior to thrill-seeking New Yorkers? No, I don't.

39 Comments

Chief Justice Roberts on the Role of the Supreme Court: My colleague Jeffrey Rosen has a tremendously interesting article in the Atlantic Monthly based on an interview with Chief Justice Roberts. In the interview, Roberts articulates his goals as Chief Justice and how he wants to change the output of the Court and how the Justices work together. It's a must-read. Thanks to Howard for the link.
13 Comments

Employer Recruiting of "People of Color":

The New York Civil Liberties Union is condemning an employer for taking extra efforts to specifically recruit "people of color." Oh, wait, the employer is the military -- that explains it; I guess they should be scrupulously color-blind in their recruiting (though the NYCLU's allies in supporting affirmative action have long pointed to the military's use of race as an affirmative action success story), even though other employers should indeed specifically recruit non-whites.

The story also reports:

Eleni Angelos Healey, a senior at Trinity School in Manhattan and one of the plaintiffs in the suit, said she had been harassed by letters and e-mail from military recruiters. Her repeated efforts to stop them had failed, she said.

“I’m really glad,” Ms. Healey said, “that there’s going to be a much easier way for kids to get their names off these lists as soon as possible.”

Well, I certainly don't support spam, and if someone asks to be off a mailing list -- including the military's mailing list -- their request should be honored. But it doesn't strike me as a terribly serious civil liberties violation.

(The NYCLU has also apparently been complaining about the military's use of its recruiting database, and the story reports that the Defense Department settled the NYCLU's lawsuit by "agree[ing] to use the database only for recruiting, giving up the possibility of sharing it with law enforcement and intelligence agencies." I assume that the basis of the lawsuit was some statutory objection to the use of the database -- there are no constitutional that I know of -- objections to the use of such a database -- but I don't know the statutory scheme governing the question and thus have no opinion on the subject.)

52 Comments

The Brennan Memos:

All three parts of Jim Newton's series on Justice William Brennan's memos are now available on Slate:

  • Part One: Brennan on Burger (and the death penalty);

  • Part Two: Brennan on Abortion (and U.S. v. Nixon);

  • Part Three: Brennan Dishes on His Colleagues (and on Warren's legacy).

Rick Hasen has some comments on part three, and some of the memos' distrubing disclosures, here.

Related Posts (on one page):

  1. The Brennan Memos:
  2. The Brennan Memo Mystery:
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Did Jimmy Carter Endorse Palestinian Terrorism So Long as

Israel Doesn't Accept "The Ultimate Goals of the Roadmap for Peace"? Lawprof Steve Lubet pointed to a letter by Emory Prof. Melvin Konner:

I ... call your attention to a sentence on p. 213 that had not stood out for me the first time I read it: "It is imperative that the general Arab community and all significant Palestinian groups make it clear that they will end the suicide bombings and other acts of terrorism when international laws and the ultimate goals of the Roadmap for Peace are accepted by Israel."

As someone who has lived his life as a professional reader and writer, I cannot find any way to read this sentence that does not condone the murder of Jews until such time as Israel unilaterally follows President Carter's prescription for peace. This sentence, simply put, makes President Carter an apologist for terrorists and places my children, along with all Jews everywhere, in greater danger.

The chapter in which the sentence appears is available here, and I too find it hard to read the sentence other than how Prof. Konner does. In context, it doesn't just seem as an objective political description of the "terrorism will go on until this-and-such happens, so Israel should do this-and-such because of this practical reality." Nor does it seem to be a call on Arabs and Palestinians of the "acts of terrorism should stop now, but since I realize that you won't do it now, at least you might insist that they stop when this important step is accomplished."

Rather, it seems to be a statement of what the Arab and Palestinian community have a moral obligation to do: Make clear not that they will end terrorism, but that they will end terrorism when Israel makes certain concessions. Are Prof. Konner and I mistaken here?

Related Posts (on one page):

  1. President Carter Apologizes for a Heavily Criticized Item from His Book:
  2. Did Jimmy Carter Endorse Palestinian Terrorism So Long as
128 Comments

Illeist:

The (I hope temporary) habits of my 1.5-year-old remind me of one of my favorite words: "Illeist," which means "someone who refers to himself in the third person."

OK, it's not "favorite" in that I actually use it in conversation, since its obscurity makes it incapable of serving the basic function of a word (effective communication). But I still like to talk about it.

54 Comments

OLC Alums Support Delahunty:

Since several students and professors at the University of Minnesota expressed opposition to the appointment of Professor Robert Delahunty to teach constitutional law, others have expressed substantial support for the decision (or, at least, opposition to the opposition). In particular, I learned that a prominent group of Delahunty's former supervisors from the Justice Department's Office of Legal Counsel wrote to Minnesota's Deans in defense of Delahunty and the appointment. The text of the letter follows:

Dear Deans Charles and Morrison:

We write to defend Professor Robert Delahunty against unjustified attacks by members of your faculty. In a letter dated November 28, nine professors of the University of Minnesota Law School argue that Professor Delahunty is unfit to teach there because his work on a memo concerning the scope of the Geneva conventions shows a lack of legal ethics. We emphatically disagree. The memo at issue in no way seeks to justify torture, but addresses complex legal matters of the kind on which the Office of Legal Counsel traditionally opines. Nothing on its face suggests that it is either incompetent or insincere, and the nine professors offer no persuasive evidence to support their very serious charge of unethical behavior. The only specific issue on which they take issue with the memo is one that has divided the Supreme Court itself.

We are in a good position to evaluate Professor Delahunty’s work as an OLC lawyer. All of us were either Assistant Attorneys General in charge of the Office or Deputy Assistant Attorneys General with supervisory responsibilities. We represent different political parties and three different administrations. None of us has held any executive position in the current administration. We all share the view that Professor Delahunty is an excellent attorney who acted honorably and with distinction in public service. He always gave his sincere and independent advice. He went where his analysis led and he was unafraid to put that analysis in front of his superiors even if he knew that this was not the most politically palatable result. Those of us who teach at law schools would be pleased if Professor Delahunty taught a course at ours: we are sure that students would learn a great deal both from his intellect and his character.

Before turning to the substance of the nine professors’ claims, we should clarify what their letter obscures. The work of which they complain is a single memo, and the memo does not address issues relating to torture. As it makes clear in its second sentence, it considers an important but particular question: whether the laws of armed conflict apply to the conditions of detention and the procedures for trial of al-Quaeda and the Taliban. The memo did not address the applicability of laws and treaties regarding torture to interrogation methods. It thus sensationalizes matters, quite inaccurately, to refer to this draft opinion as a “torture memo.”

Nor can Professor Delahunty be faulted for not addressing questions that were not put to him. OLC memos focus on discrete questions at the request of government clients, and civil servants have no responsibility for determining the questions that should be addressed. Moreover, the memo makes clear that it concerns only a legal question: it expressly declines to consider what policies should be adopted with respect to the detainees. This stance is wholly consistent with OLC’s mission of assessing legality and leaving policy decisions to other departments of the government.

The question the nine professors have raised concerns legal ethics, not the ultimate correctness of the legal views expressed. People often disagree about the content of law, particularly complex and rarely litigated matters like the ones the memo addresses. Some of the signers of this letter largely agree with the conclusions of the memo, others are uncertain, and still others disagree with at least some of them. But we are unanimous in believing that attacks on Professor Delahunty’s legal ethics in writing this memo are baseless.

We are frankly puzzled that a letter that makes such grave charges against an incoming colleague provides so little specific analysis about what reasoning in the forty page memo demonstrates a lack of legal ethics. The nine professors do impugn the memo’s conclusion that common article III of the Geneva Conventions does not apply to Al-Quaeda and Taliban detainees by observing that the Supreme Court has disagreed with that conclusion in its recent Hamdan decision. But a subsequent Supreme Court decision at variance with a legal opinion does not render that opinion unethical. More remarkably still the letter fails to acknowledge that three Justices of the Court accepted the government’s contention that common article III did not apply. Two did so in dissenting from the Supreme Court’s decision in Hamdan. Chief Justice Roberts (as well as Judge Randolph) did so in the appellate court decision which the Supreme Court reversed. This array hardly suggests that the memo’s conclusion about common Article III was without substantial basis in law. One presumes that the nine professors would not object to the ethics of these jurists if Minnesota invited one to teach.

Otherwise the letter of the nine professors offers no substantive analysis of the opinion. They are content to quote from remarks by an official of Amnesty International which also offer no substantive analysis, merely an unsupported suggestion that this memo may have contributed to torture. This kind of conclusory statement by an advocacy group does not provide a proper basis to charge a fellow law professor with a lapse of legal ethics.

Our concerns go beyond the charges in this letter, as reckless as they appear to be to us. Attorneys in OLC are called upon to render legal advice in complex and particularly sensitive matters. Of course, they must behave ethically. But the rest of us and especially those of us who are both lawyers and academics have obligations to those in public service as well, and certainly not to charge them with derelictions of legal ethics without the most substantial analysis and care. Otherwise fine attorneys, particularly those who may hope for subsequent career in academics, may be deterred from giving advice that they recognize may be unpopular in the academy or, for that matter, with the public at large.

We therefore ask that you continue to extend your invitation to Professor Delahunty to teach and welcome him as a colleague. We are confident that the entire Minnesota community will benefit from his fine colleagueship and find him a serious and substantial interlocutor even on matters on which they disagree.

John E. Barry
Partner
Wiley, Rein and Fielding

Douglas R. Cox
Partner
Gibson Dunn

John C. Harrison
David Lurton Massee, Jr., Professor
University of Virginia Law School

Douglas W. Kmiec
Caruso Family Chair in Constitutional Law
Pepperdine University School of Law

John O. McGinnis
Professor of Law
Northwestern University Law School

H. Jefferson Powell
Professor of Law
Duke University Law School

Christopher H. Schroeder
Charles S. Murphy Professor of Law and Public Policy Studies
Duke University Law School

[Note: I've omitted two footnote citations to the Supreme Court and D.C. Circuit's Hamdan decisions from the letter. I am also responsible for the links added to the text.]

I have also learned that there is an online "counter petition" at petitiononline.com, signed by Minnesota law students and alumni, among others. At the time of this posting, it has 143 signatures — a significant number, but less than the number of students and others who have signed petitions against Delahunty's appointment.

What is the consequence of this support for Delahunty? It is hard to tell. This Minnesota Daily story from December suggested that the school's administration was not plannig to retract the offer. It quotes one of Minnesota's Deans stressing the importance of open academic debate, but also says the administrative difficulty of retracting the offer was a rationale given to some objecting students. I have yet to find more recent reporting on the matter.

As noted before, this story has an interesting connection to the VC, as Delahunty was asked to teach the first year section of Constitutional Law traditionally taught by co-Conspirator Dale Carpenter, who will be on leave.

UPDATE: Given the course of the comment thread, I would request that folks who wish to comment on this post please try and focus on the substance of the post and, in particular, the Delahunty controversy and the letter presented above. The signatories are an ideologically diverse lot, each with impressive credentials. Whether or not one likes their reasoning or conclusions, I would think the substance of their letter can be substantively addressed without violating Godwin's Law or engaging in ad hominems.

106 Comments

Restaurants and Aspirin (and the Like):

On occasion, I've found myself with a nasty headache in a restaurant; and when I've asked the front desk whether they had any aspirin (or whatever else, but I'll just say aspirin for now) I could have, they've always said no.

Now my sense is that, like most employers, they do have some aspirin for their staff, likely in those little individually wrapped packets. It's also probably in their interest to help out with it: If I've got a bad headache, I'm going to have a less pleasant dinner, and while I probably won't consciously resent them for not helping, I'll be slightly less likely to come back soon (since often one comes back to a restaurant because of memories of recent pleasant dining experiences there). And of course giving me some of the aspirin would cost very little money and time. So why not help out, especially given that they're in a service industry where the presumption (I'd think) is that they should try to help the customer with simple requests that could make him happy?

One possible theory, which I recall having heard a couple of times from restaurants, is that they don't want to give out aspirin for fear of product liability should anything bad happen to me. But I don't really see the real liability risk: There's nothing negligent in their giving me something that I could buy over the counter at a gas station — it's not like they're giving me medical advice. Given that they're not negligent, the only extra risk is strict product liability, but that only arises in the extraordinarily rare circumstance the aspirin was somehow defective; and even in that rare case, it's likely that the payment would come from the manufacturer, not the distributor, with the distributor being on the hook only if the manufacturer is insolvent.

So is it that the restaurant just doesn't want the hassle of helping me? That, contrary to my assumption, they don't have aspirin around for the staff? That they fear liability without much foundation, because there's some industry myth about it afoot (or because they just haven't looked into the legal question, and err on the side of caution)? That, contrary to my sense of tort law, they may in fact be legally on the hook if I react badly to the aspirin? Or something else?

UPDATE: A recurrent thread in many responses is that the restaurants are afraid even of a tiny risk of litigation, and are reasonable to be afraid of it. I wouldn't generally fault them for it; I'm sympathetic with such concerns. Still, if the risk of litigation is really tiny -- some commenters suggest that it's not, but I'm still not persuaded -- wouldn't they at some point conclude that keeping a customer happy is worth the tiny risk of even a huge hassle and cost? (My guess is that much of the cost would be insured, by the way, though I'm not sure.) After all, despite the supposedly "paralyzing" risks of litigation (I quote one of the commentators here), business do lots of things that have some litigation risk.

Some other commenters dealt with this, by suggesting that businesses will run litigation risks in what they see as the core area in which they must, but will shun even tiny risks outside that area. This isn't necessarily so -- for instance, though I hear that many businesses have tamed down their Christmas parties, many do still have them, even though any such activity involves some extra risk (harassment litigation, lawsuits from people hit by employees who drive home drunk, and so on), and even though it's far from obvious that such parties are really necessary to build morale -- but I suspect it's part of the explanation. Still, I think one needs some such explanation and not just a theory that businesses will always avoid any risk of liability, however unlikely.

83 Comments

Wednesday, January 10, 2007

My Political Compass Score:

I retook the Political Compass questionnaire tonight, and scored fairly libertarian: 7.38 on the economic left/right axis, and -2.92 on the social libertarian/authoritarian axis.

Like others, I have problems with the test. Among other things, some of the questions seem to presume that if one holds that a given practice or activity is immoral or unethical, it is appropriate for the state to intervene. Yet I reject this view. There are activities, both economic and social, that I believe to be wrong, yet should remain perfectly legal. Therefore, I question the relevance of questions about one's moral views in a test that purports to measure one's political views.

Related Posts (on one page):

  1. My Political Compass Score:
  2. Another political compass test:
30 Comments

Kiesling on Electricity Metering, Pricing and Competition:

At The Knowledge Problem, economist Lynne Kiesling discusses the NYT article on variable-rate electricity pricing I highlighted Monday. As she sees it, there is a problem of asymmetric information.

In the case of electricity, retail customers do not see price changes until after those changes have taken effect, because under existing regulation they pay averaged rates and only receive information about the prices they face at the end of the month when they receive their bill. However, underlying costs of serving those customers can change hourly, so with customers paying averaged prices there is a mismatch between the prices they pay and the costs of serving them.

We could improve efficiency (and thus enable conservation and lower costs) if we had pricing that allowed for a better match of the price the customer pays with the cost, but unless the customer has some way of gaining information about prices in advance, but if we don't do that, then we have the aforementioned asymmetric information problem.

As Kiesling explains, the solution is not purely technological. Having gizmos that provide information about price changes is important, but so is rate reform.

The technology can't create all of these benefits on its own: rate redesign to allow dynamic pricing is imperative. What good is having technology to enable responsive demand if the meter just gets the same old, same old averaged price signal? Not much. Digital technology and dynamic pricing are symbiotic. Furthermore, the most significant benefits of digital technology and dynamic pricing are largely unseen by us in advance, which is why it's so bloody hard to get them enacted in regulation!

The most substantial benefits of the retail competition that technology + pricing enable come from product differentiation and innovation in the products and services available to customers. Think about telecom: we got some benefit from the reduction in prices for long-distance service, but the real value proposition has been in the proliferation of new products and services that have transformed our lives. There are entrepreneurs out there thinking about ways to do that in electric power retail service, and the potential exists, if we will but let it happen.

In other words, to truly take advantage of technological innovation and price information, there must be regulatory reforms that allow for retail electricity competition. The cost savings from time shifting would be only a portion of the resulting economic benefits.

Related Posts (on one page):

  1. Kiesling on Electricity Metering, Pricing and Competition:
  2. Variable Rate Electricity Pricing:
1 Comments

Academic Freedom at AALS:

I did not attend the AALS conference this year, but from these accounts (Inside Higher Ed and Dorf on Law), it sounds like there was an interesting panel on academic freedom. Among other things, the panel addressed the controversy at the University of Minnesota over the decision to have University of St. Thomas law professor teach constitutional law this spring.

1 Comments

What's the Essence of a Carnival?

Illinois Compiled Statutes § 11-54.1-1 tells us:

"Carnival" means and includes an aggregation of attractions, whether shows, acts, games, vending devices or amusement devices, whether conducted under one or more managements or independently, which are temporarily set up or conducted in a public place or upon any private premises accessible to the public, with or without admission fee, and which, from the nature of the aggregation, attracts attendance and causes promiscuous intermingling of persons in the spirit of merrymaking and revelry.

Promiscuous intermingling of persons in the spirit of merrymaking and revelry -- I couldn't have said it better myself.

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Audio of Panel on Presidential Power: The Federalist Society has posted the audio of the recent faculty symposium panel, "May the President disregard a congressional statute for national security reasons?", featuring John Yoo, Doug Kmiec, Louis Fisher, and co-blogger Ilya Somin.

  Here's a rough breakdown of the appearances (with breaks for Q&A by moderator Doug Kmiec):
Doug Kmiec (0:00 to 11:00).
Louis Fisher (11:00 to 24:30)
John Yoo (30:00 to 43:00)
Ilya Somin (47:00 to 58:00)
Q&A (first with questions by Kmiec, later by the audience) (58:00 to 1:29:00)
  Near the end of the Q&A, I asked a question to John Yoo in response to his presentation. You can hear my question, and his answer, starting at the 1:24:30 mark.
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Question to Current or Recent Law Review Articles Editors:

Someone asked me -- when one circulates an article to law reviews, is it helpful to include a short abstract at the start, or should you let the Introduction do the talking (perhaps with a few things said in the cover letter that aren't as easy to say in the Introduction, such as how hot and novel the proposal is)?

I'd love to hear your views, if you now are or have recently been a law review articles editor. Thanks!

19 Comments

Restriction on Union's Political Use of Coerced Fees from Non-Members:

Lawprof Rick Hasen (Election Law blog) predicts a 9-0 vote upholding the law, and reversing the Washington Supreme Court's decision holding that the law violated the union's First Amendment rights. I cowrote an amicus brief in the case on that side, and I'm pleased to hear Rick's prediction. It's generally risky to put much stock on prediction from oral arguments, but here the case in favor of the law's constitutionality strikes me as objectively very strong (for the reasons mentioned in the brief), and the oral argument analysis thus strikes me as especially plausible.

UPDATE: Lawprof Paul Secunda (Workplace Prof blog) agrees that this is the likely result, though by a 7-2 vote.

Related Posts (on one page):

  1. Restriction on Union's Political Use of Coerced Fees from Non-Members:
  2. Amicus Brief in Forthcoming Supreme Court First Amendment Case:
71 Comments

Another political compass test:

These tests are pretty arbitrary as to your precise position on the ideological spectrum. Do one's views on gay marriage get weighted just the same in the outcome as whether one thinks parents should use spanking as a form of discipline? Weighted more? Less? How much so? But the tests do tend to capture roughly where people stand. Besides, they're fun.

I came out a +2.00 on the economic issues scale (that's slightly right of center) and -3.38 on the social issues scale (that's libertarian, a word I would not use to describe myself, but only slightly so). Pretty boring: I'm basically a moderate according to this test, certainly less libertarian than either Andrew Sullivan or, I'm guessing, most of my fellow VC bloggers.

Related Posts (on one page):

  1. My Political Compass Score:
  2. Another political compass test:
53 Comments

For Virginia Postrel Fans

(like me): So what do you think is at http://docnet.dc.state.ks.us/postrel.htm, http://www.sfsheriff.com/postrel.htm, and http://www.norcalserviceleague.org/postrel.htm?

If only these sites were in a certain other state, er, commonwealth, and not Kansas or California! In any event, Virginia Postrel denies everything.

14 Comments

Tuesday, January 9, 2007

Supreme Court Calls for A Response in Brendlin: Readers who were interested in my earlier blog post on Brendlin v. California might want to know that the Court has in fact called for a response. According to the docket page, the Court requested the response yesterday; California's Brief in Opposition is due on February 7.
15 Comments

Science Fiction and Conservatism:

Like Eugene Volokh and Glenn Reynolds, I too am a big fan of John Scalzi's recent Science fiction books Old Man's War and Ghost Brigades. But the New York Times was wrong to describe the Volokh Conspiracy and Glenn as "conservative" in its review of Scalzi's works.

More fundamentally, it is not clear to me that there really is much affinity between science fiction and conservatism. Most of the prominent "conservative" science fiction writers (e.g. - Robert A. Heinlein, whose work the reviewer compares with Scalzi's) are in fact libertarian in their ideology. Conservatism, or at least those variants of it that emphasize the value of tradition, is likely to be in tension with the emphasis on progress in both technology and social organization that is a major theme of science fiction. Religious conservatism is likely to be in similar tension with the rationalism that is a major part of the sci fi ethos.

Conservative traditionalism probably has greater affinity with fantasy literature than with science fiction. Fantasy often relies on nostalgia for the values of the past and tends to be suspicious of social change. And it is no accident that some of the greatest fantasy writers (most notably J.R.R. Tolkien) have also been conservatives.

This is not to say that there is no conservative science fiction or that conservatives shouldn't like sci fi. Some science fiction can be conservative by cutting against some of the dominant themes of the genre; similarly, there are liberal and even a few libertarian fantasy novels. And there are good reasons for enjoying literary works that you don't agree with ideologically. Personally, I like fantasy even more than science fiction, even though the latter is a much better fit for my libertarian ideology.

Finally, like Eugene, I'm happy to receive any review copies of science fiction books that publishers care to send me:). Who better to review new Sci fi and fantasy books than a blogger who has devoted posts to such topics as the portrayal of federalism in science fiction and fantasy, and The Law of Star Trek?

Related Posts (on one page):

  1. Science Fiction and Conservatism:
  2. Science Fiction:
180 Comments

Lots of Great Blogging about recent federal court of appeals cases over at the Decision of the Day blog.
18 Comments

Science Fiction:

The New York Times book review section (Dec. 24, 2006) ran a piece about John Scalzi -- whose Old Man's War and The Ghost Brigades I much enjoyed -- and in the process noted that "the book owes its ... success in part to recommendations from conservative political blogs like Instapundit and The Volokh Conspiracy."

I'm pleased to hear that some think that my recommendations helped the book (though I'm quite sure that Instapundit's influence was far greater than mine). I'm also particularly pleased by the possibility that perhaps some fantasy and SF publishers, editors, authors, and publicists might read the review -- or perhaps some odd post that happens to link to the review -- and decide that it would be a wonderful idea to send me review copies of the fantasy and SF books that they are promoting ....

Related Posts (on one page):

  1. Science Fiction and Conservatism:
  2. Science Fiction:
14 Comments

The Brennan Memo Mystery:

Where did Jim Newton's Slate article go? Rick Hasen wonders here.

UPDATE: Mystery solved (check the updates).

Related Posts (on one page):

  1. The Brennan Memos:
  2. The Brennan Memo Mystery:

Are Sundays "Days"?

One of new Ohio Governor Ted Strickland's very first official acts was vetoing a bill that outgoing Governor Bob Taft had intended to let become a law. The legislation, Senate Bill 117, would have amended the state's consumer protection laws to cap noneconomic damages in predatory lending suits and limit the ability of Ohio municipalities to sue paint manufacturers aleging that lead paint used decades ago constitutes a "public nuisance" for which the manufacturers are responsible.

According to the Cleveland Plain Dealer, there is a dispute over whether Governor Strickland's veto was constitutional. Once the legislature passes a bill, it will become law if neither signed nor vetoed by the Governor within ten days. At issue is whether the to count Sundays when the legislature is out of session. Bill supporters say "yes"; Governor Strickland and incoming state Attorney General Marc Dann say "no." The relevant Constitutional provision provides:

If a bill is not returned by the governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it, unless the general assembly by adjournment prevents its return; in which case, it becomes law unless, within ten days after such adjournment, it is filed by him, with his objections in writing, in the office of the secretary of state.
Because the legislature adjourned after passing the bill, supporters maintain, Sundays should be included in the ten days, and the clock ran out on January 5. Strickland's office, however, claims he had until Monday, January 8, which is when he vetoed the bill. At present, it looks like this one will end up in court.

Related Posts (on one page):

  1. Ohio Legislators File Sunday Suit:
  2. Are Sundays "Days"?
93 Comments

Monday, January 8, 2007

Cloned Bull:

Slate's William Saletan defends cloned food. It's a good article, that briefly summarizes and refutes the conventional arguments against meat and milk products from cloned animals.

Messing with nature at this level is never simple. It requires ongoing debate, monitoring, and regulation. But we're not even getting that debate. Instead, opponents are relying, as they have in the human cloning debate, on the sheer fact that cloning freaks people out. To reinforce this revulsion and intimidate regulators, politicians, and food producers, they constantly emphasize surveys showing that Americans are uncomfortable with cloned food, think it's unsafe, and won't buy it. As though polls settled the matter. As though the FDA should put science before politics, but only when it suits liberals.

Yes, we're scared of cloned food. But according to the same polls, most of us have heard little about animal biotechnology, don't know biotech food is already in supermarkets, and, against all reason, are more afraid of cloning animals than of genetically engineering them. Don't be cowed. Question your fears. That's the difference between us and the animals.

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More on Sex Between Professionals and Their Former Clients:

Caddy v. State, 764 So. 2d 625 (Fla. App. 2000), offers an interesting treatment of the issue. The Florida Constitution expressly secures a right to privacy, which the courts interpreted (in my view, quite reasonably) as presumptively protecting sexual autonomy. Florida law barred all sexual contact between a psychologist and a former client "in perpetuity"; interestingly, while Florida law banned sexual contacts between doctors or psychiatrists and patients, it only covered former patients "on a case by case basis with consideration given to the nature, extent, and context of the professional relationship between the physician and the person."

The Florida Court of Appeal held that the law was facially overbroad, and violated the state constitutional right to privacy. The court concluded that "the State has a compelling interest in protecting the mental health of its citizens, and there is an obvious power imbalance in the psychologist-patient relationship that involves the most basic mental and emotional characteristics of the patient." But it held that the State should have served that interest using a "[less] intrusive means," such as "a rule calling for a decision based on the individual facts of a case" rather than a flat "forever banned" rule.

Here, by the way, were the facts of the case:

In mid-1986, an attorney representing D.J. in divorce proceedings retained Dr. [Glenn R. Caddy, a university professor and forensic psychologist] to perform a forensic assessment on D.J. relative to a child custody dispute. Dr. Caddy met with D.J. on several occasions, examined the child, considered reports from other psychologists in his office, consulted with D.J.'s attorney, and submitted to a deposition as an expert witness. The extent of Dr. Caddy's professional involvement with D.J. lasted for about one month, and he had no further contact with her on a professional basis after October of 1986.

About nine months later, D.J., now divorced, sought out Dr. Caddy in his office at Nova Southeastern University to ask him questions about some courses she was contemplating taking. The two renewed their acquaintance and, thereafter, commenced a friendly relationship which included sharing lunch or dinner on a few occasions. In September of 1987, nearly a year after appellant had seen D.J. in a professional capacity, their relationship became more intimate, including sexual intimacy. This relationship, which was at times tumultuous, included periods when the two shared a residence and continued over the next six years until they parted company under less than friendly circumstances.

Soon after the break-up, D.J. filed a complaint with the Board against Dr. Caddy....

Query whether the same result should be reached under the federal Constitution, given the Lawrence v. Texas decision -- which notoriously failed to make clear what constitutional test it was applying to interference with sexual autonomy. Query also whether the same result should be reached under the right to marry, if Caddy and D.J. had married and then had sex after marriage (as was the case with the massage therapist in the case noted in my earlier post, though the rule there imposed only a two-year ban on sex rather than a perpetual ban). The Court has held that infringements on the right to marry are indeed subject to strict scrutiny or something like it.

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Op ed on the Didden case:

University of Chicago Law Professor Richard Epstein and I have coauthored an op ed in the National Law Journal urging the Supreme Court to review the important eminent domain case of Didden v. Village of Port Chester. Here's an excerpt:

The U.S. Supreme Court's 2005 decision in Kelo v. City of New London generated a backlash on both sides of the political spectrum..... Many of the rear-guard defenders of this ill-conceived decision insisted that abusive condemnations are an aberration in an otherwise sound planning process. They, it turns out, were wrong. Didden v. Village of Port Chester, a most unfortunate decision out of the 2d U.S. Circuit Court of Appeals, helps demonstrate the shortcomings of their optimistic view.

In 1999, the village of Port Chester, N.Y., established a "redevelopment area" and gave its designated developer, Gregg Wasser, a virtual blank check to condemn property within it. In 2003, property owners Bart Didden and Dominick Bologna approached Wasser for permission to build a CVS pharmacy on land they own inside the zone. His response: Either pay me $800,000 or give me a 50% partnership interest in the CVS project. Wasser threatened to have the local government condemn the land if his demands weren't met. When the owners refused to oblige, their property was condemned the next day.

Didden and Bologna challenged the condemnation in federal court, on the grounds that it was not for a "public use," as the Fifth Amendment requires. Their view, quite simply, was that out-and-out extortion does not qualify as a public use. Nonetheless, the 2d Circuit . . . upheld this flexing of political muscle. At present, Didden and Bologna are working against the odds to persuade the U.S. Supreme Court to hear the case. If the 2d Circuit's reasoning prevails, private developers everywhere could follow Wasser's example to extort money from property owners in thousands of development zones, which while created for noble purposes, can easily be turned to ugly ones.

I previously blogged about the Didden case here. Along with several other eminent domain experts, Richard Epstein and I coauthored an amicus brief urging the Supreme Court to review Didden. The brief can be accessed here.

CONFLICT OF INTEREST WATCH: As I noted in the initial post, I once briefly worked as a summer law clerk for the Institute for Justice, the public interest law firm representing the property owners in this case.

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Fred Fielding to be the Next White House Counsel: So reports Time Magazine, link via Bench Memos. An excellent pick: Fielding is a real pro, having worked in the White House Counsel's Office in the 1970s and having served as Reagan's Counsel from 1981 to 1986. His law firm bio is here.

  This reminds me of Clinton's naming Lloyd Cutler to serve as his Counsel when the Whitewater situation was heating up. Like Fielding, Cutler was a major figure who had served as White House Counsel in a previous administation and was a name partner of a large DC law firm.
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Balkin's Originalism: Underlying Principles, my very brief (11 pages) comment on Jack Balkin's Original Meaning and Abortion, is now up on SSRN. Here is the abstract:
In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."

In this brief reply, I caution that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding. And it is the text, properly interpreted and specified in light of its underlying principles, not the underlying principles themselves, that is to be applied to changing facts and circumstances by means of constitutional doctrines. There is another highly familiar and very nonoriginalist way to see the relationship between "text and principle": One could discern the principles underlying the text, and then apply these principles directly to new circumstances. By so doing, one can end up potentially expanding the reach of, and even contravening, the text itself. Because Balkin sometimes appears to be endorsing the second of these two approaches to text and principle in this paper, he may give some readers the mistaken impression that he is still employing a living constitution approach under the guise of original meaning originalism.
In his contribution to the symposium, Ethan Lieb agrees that Balkin's move to originalism is both real and significant:
It certainly seems like the originalists are winning. Professor Jack Balkin — finding that he couldn't beat 'em — joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote we are all living constitutionalists now. But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the ascendant and dominant theory in constitutional interpretation is on the decline. Still, don't count living constitutionalism out of the game just yet.
You can read Ethan's article, "The Perpetual Anxiety of Living Constitutionalism," here.

Interestingly, in his article, Ethan wrongly guesses that my reaction to Balkin will be similar to my reaction to Justice Scalia's originalism. Even more interestingly, he and commenters on PrawfsBlawg muse about why I seem to be going so easy on Jack here. Except for the last 2 posts (at 4:44:13 & 1:01:37), it's an unusually perceptive exchange.

For those who have not seen my critique of Justice Scalia, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, I just uploaded the published version here. Here is the abstract:
In this essay, based on the 2006 William Howard Taft lecture, I critically evaluate Justice Antonin Scalia's famous and influential 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as faint-hearted originalism, I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the underlying principles approach - and why originalism, properly understood, does not lead to the types of grossly objectionable results that lead Justice Scalia to be faint of heart.

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Michigan Supreme Court Justice Dissents from the Re-Election of a Chief Justice:

This remarkable document is now posted here. I didn't even know that it was possible for a judge to file such a written dissent, until Howard Bashman (How Appealing) posted about it, but I guess it is.

The Chief Justice of the U.S. Supreme Court, of course, is specially appointed as Chief by the President; some states similarly treat the Chiefship as a specially appointed or elected position; other states and (all?) federal circuits, I'm told, generally have the office rotate by a combination of seniority and age. But some states, including Michigan, have the Chief be elected by the Justices themselves.

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If the Devil Wears Prada,

wouldn't it be specially adapted Prada for Cloven Hooves?

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What Occupation Has the Highest Homicide Rate?

(Or at least had it in 1990-92; my quick search couldn't find more recent data.) We're talking here about generally accepted Department of Labor job categories, which are limited to legal occupations, are nationwide, and apparently exclude the military.

The answer is here; the homicide rate for this occupation was 30 times the average overall occupational homicide rate. Of course, none of these approach the nearly 2% yearly homicide rate racked up by this perfectly legal job.

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Alternating Consonants and Vowels:

Some countries have names in which consonants and vowels alternate -- consider Canada and Panama. What is the longest such name?

Thanks to Warren Usui for passing this along.

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Has the Bush Administration Claimed New Power to Open Mail?: In the last few days, there has been a lot of press on the Bush Administration's claims that the government can open postal mail without a warrant in some cases. Last Friday's story in the Washington Post is typical:
  President Bush signed a little-noticed statement last month asserting the authority to open U.S. mail without judicial warrants in emergencies or foreign intelligence cases, prompting warnings yesterday from Democrats and privacy advocates that the administration is attempting to circumvent legal restrictions on its powers.
  A "signing statement" attached to a postal reform bill on Dec. 20 says the Bush administration "shall construe" a section of that law to allow the opening of sealed mail to protect life, guard against hazardous materials or conduct "physical searches specifically authorized by law for foreign intelligence collection."
  White House and U.S. Postal Service officials said the statement was not intended to expand the powers of the executive branch but merely to clarify existing ones for extreme cases.
  "This is not a change in law, this is not new, it is not . . . a sweeping new power by the president," spokesman Tony Snow told reporters. "It is, in fact, merely a statement of present law and present authorities granted to the president of the United States."
  But some civil liberties and national-security law experts said the statement's language is unduly vague and appears to go beyond long-recognized limits on the ability of the government to open letters and other U.S. mail without approval from a judge.
  Kate Martin, director of the Center for National Security Studies in Washington, said the government has long been able to legally open mail believed to contain a bomb or other imminent threat. But authorities are generally required to seek a warrant from a criminal or special intelligence court in other cases, Martin and other experts said.
  "The administration is playing games about warrants," Martin said. "If they are not claiming new powers, then why did they need to issue a signing statement?"
  Administration critics said they were particularly confused because the relevant portion of the postal reform legislation — which prohibits opening mail without warrants in most circumstances — remains unchanged.
  So there are two accounts of what is happening. In the first account, the Bush Administration is unilaterally asserting new powers to open mail; in the second, the Administration is simply restating long-settled law. But which account is correct? My own answer is that I'm not sure yet. There may be nothing here, but there's a possibility that there is something important.

  Here's what I could figure out. The Postal Accountability and Enhancement Act was passed in late December, and mostly regulates the internal operations of the U.S. Postal Service. It's really dry stuff about employment law, perhaps interesting if you work at the Postal Service (or you're an employment lawyer) but not otherwise.

  The relevant section of the Act is Section 1010(e), which comes at the very end of the act in a section about "technical and conforming amendments." This section doesn't do much: it simply moves a paragraph of statutory text from one place in the U.S. Code to another. Specifically, the section takes a paragraph from 39 U.S.C. 3623(d) — a paragraph that has been there since the 1970s — and moves it to 39 U.S.C. 404(c). Here is the paragraph that has been moved from one section to another:
The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection. The rate for each such class shall be uniform throughout the United States, its territories, and possessions. One such class shall provide for the most expeditious handling and transportation afforded mail matter by the Postal Service. No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee.
  Okay, so that brings us to the President's signing statement. The signing statement for this Act has the following to say about the technical amendment in Section 1010(e):
The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.
  So what does this signing statement mean? First, it pretty clearly says that the Administration reads the moved paragraph as having implicit exceptions that track the Fourth Amendment's exceptions to the warrant requirement. The Fourth Amendment has long required a search warrant to open postal mail, subject to the usual Fourth Amendment exceptions such as exigent circumstances. The signing statement appears to say that the Administration construes that law as implicitly incorporating the Fourth Amendment's warrant exceptions. In other words, the law isn't intended to require federal officials to obtain a warrant when exigent circumstances or other exceptions exist.

  The second possible meaning of the signing statement is that the Executive may construe other statutory laws as authorizing warrantless searches, and that in those cases the other laws trump. "Physical searches specifically authorized by law for foreign intelligence collection" could refer to searches authorized under the emergency exception to FISA's rules requiring a warrant for physical searches, or might possibly — and here is where it gets interesting — refer to the AUMF.

  Is this something new? Is this construction of the statute the same construction the executive has always taken, or does it reflect a change in policy? In other words, does the issuance of the signing statement for this technical amendment simply signal the Bush Administration's unusual overreliance on signing statements — so much that they would make a statement to restate existing law even when the paragraph is just moved from one place to another — or does it hint at a previously unknown Administration's practice?

  I don't know. My guess is that the signing statement doesn't signal a major reinterpretation of the statute as against Fourth Amendment exceptions. Here, my thoughts are very tentative: I spent about a half hour looking for cases that would answer whether the postal statute block searches in exigent circumstances or when another exception to the warrant requirement applies, and came up mostly empty. Somewhat to my surprise, I could only find a handful of suggestions and snippets on this, none of which was certain. (The reason for the lack of cases may be that exigent circumstances may require the seizure of mail, but won't often require its search. I'm not sure.) On the whole, though, this led me to think that the statute has in the past been understood to be more about internal postal service procedures rather than investigations, so it would make sense for the statute to not trump the usual Fourth Amendment doctrines allowing warrantless exigent circumstances searches.

  But what if the signing statement isn't really about recognizing constitutional exceptions, but rather the Bush Administration's reading of the AUMF? Recall our many discussions about the legality of the NSA domestic surveillance program. FISA's prohibition on physical searches for national security reasons has the same prohibition as FISA's prohibition on wiretapping: it also prohibits searches "except as authorized by statute." 50 U.S.C. 1827(a)(1).

  DOJ's defense of the NSA surveillance program argues that the AUMF is clear statutory authorization to use fundamental tools of war to fight terrorism, and that "[e]lectronic surveillance is a fundamental tool of war that must be included in any natural reading of the AUMF’s authorization to use 'all necessary and appropriate force.'" Thus, in the Administration's view, the AUMF is statutory authorization to conduct electronic surveillance. If electronic surveillance is a fundamental tool of war, then presumably postal surveillance is a fundamental tool of war, as well. I can't think of a reason why you would think the AUMF allows national security wiretapping but not national security letter-opening. If you can intercept John's e-mail to Jane for national security reasons, presumably you can intercept John's snail mail to Jane, too.

  So where does that bring us? Not to any certainty, unfortunately. It may be that this signing statement is nothing, and it just reveals the Administration's willingness to issue signing statements about everything. On the other hand, it may be that it hints at a program allowing the government to open postal mail under the claimed authority of the AUMF.
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Variable Rate Electricity Pricing:

A pilot program in Chicago could help make variable rate pricing for electricity a reality for consumers. The idea is straightforward: Because the demand for electricity varies from day-to-day, as well as by time of day, electricity prices should reflect this fact. This would encourage consumers to shift some electricity use, such as running the dishwasher, from peak daytime hours into the evening. Some industrial users already purchase electricity this way, but the benefits of implementing such reforms could be signficiant -- and would move retail electricity service in the direction of an actual market in which prices provide information about supply and demand.

The NYT reports:

Most people are not aware that electricity prices fluctuate widely throughout the day, let alone exactly how much they pay at the moment they flip a switch. . . .

Just as cellphone customers delay personal calls until they become free at night and on weekends, and just as millions of people fly at less popular times because air fares are lower, people who know the price of electricity at any given moment can cut back when prices are high and use more when prices are low. Participants in the Community Energy Cooperative program, for example, can check a Web site that tells them, hour by hour, how much their electricity costs; they get e-mail alerts when the price is set to rise above 20 cents a kilowatt-hour.

If just a fraction of all Americans had this information and could adjust their power use accordingly, the savings would be huge. Consumers would save nearly $23 billion a year if they shifted just 7 percent of their usage during peak periods to less costly times, research at Carnegie Mellon University indicates. That is the equivalent of the entire nation getting a free month of power every year.

Meters that can read prices every hour or less are widely used in factories, but are found in only a tiny number of homes, where most meters are read monthly.

The handful of people who do use hourly meters not only cut their own bills, but also help everyone else by reducing the need for expensive generating stations that run just a few days, or hours, each year. Over the long run, such savings could mean less pollution, because the dirtiest plants could be used less or not at all.

Related Posts (on one page):

  1. Kiesling on Electricity Metering, Pricing and Competition:
  2. Variable Rate Electricity Pricing:
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Obesity Report Cards:

Math: A; English: B; History: A; Spanish: B; Body Mass Index: F

It seems that some schools are joining the obesity police. The NYT reports that some school districts send home report cards on how children fare on the "Body Mass Index," a crude measure of obesity. Children that are above the 85th percentile on the BMI are considered "obese," or at risk of obesity. Pennsylvania, for example, requires BMI reporting for children in K-8.

The practice of reporting students’ body mass scores to parents originated a few years ago as just one tactic in a war on childhood obesity that would be fought with fresh, low-fat cafeteria offerings and expanded physical education. Now, inspired by impressive results in a few well-financed programs, states including Delaware, South Carolina and Tennessee have jumped on the B.M.I. bandwagon, turning the reports — in casual parlance, obesity report cards — into a new rite of childhood.

Legislators in other states, including New York, have proposed them as well, while some individual school districts have adopted the practice. . . .

Even health authorities who support distributing students’ scores worry about these inconsistent messages, saying they could result in eating disorders and social stigma, misinterpretation of numbers that experts say are confusing, and a sense of helplessness about high scores.

“It would be the height of irony if we successfully identified overweight kids through B.M.I. screening and notification while continuing to feed them atrocious quality meals and snacks, with limited if any opportunities for phys ed in school,” said Dr. David Ludwig, director of the Optimal Weight for Life program at Children’s Hospital Boston.

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Left & Right Raise Refugee Concerns:

Today's Washington Post has a story about how some conservatives are waking up to the unintended consequences of efforts to keep potential terrorists and their supporters out of the country.

Conservatives who supported President Bush's reelection have joined liberal groups in expressing outrage over his administration's broad use of anti-terrorism laws to reject asylum for thousands of people seeking refuge from religious, ethnic and political persecution.

The critics say the administration's interpretation of provisions mandating denial of asylum to individuals who give "material support" to terrorist groups is so broad that foreigners who fought alongside U.S. forces in wars such as Vietnam can be denied asylum on the grounds that they provided aid to terrorists.

What these conservatives are discovering is that the problems of bureaucratic tunnel vision are not limited to "liberal" programs. What some conservatives decry as "ludicrous" applications of the relevant laws are an extension of the relevant legal provisions by a bureaucracy that has every incentive to keep potentially unwanted people out, even at the expense of not letting desirable refugees in.

The story reports that incoming Senate Judiciary Committee Chair Patrick Leahy has expressed interest in examining the issue.

If there are hearings in the Senate, Paul Rosenzweig, chairman of a Homeland Security advisory committee, could be called to testify. He said he is prepared to answer questions about why the department has not acted on complaints to grant waivers to people who, some say, clearly are not terrorists.

"I will completely own up to wishing we had done more, but it's a big department," he said. In the past year, the department broadened a waiver that allowed more ethnic Burmese refugees into the country, and it is in the process of broadening a waiver for Hmong and Montagnard guerrillas who fought for the United States.

The United States must be careful to not allow terrorists into the country, while fulfilling its promise to harbor the persecuted, Rosenzweig said. "It's a difficult problem," he said. "It isn't as easy as some might wish to balance the security risks that come with this and the humanitarian impulse."

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Sex and the Massage Therapist:

In re Fjellman, 2006 WL 3147575 (Minn. Off. Admin. Hrgs. Sept. 11), authorizes disciplinary action against a massage therapist for having a sexual relationship with an ex-client several months after she stopped treating him. (They married a year later.)

Minnesota law bars a wide range of "health care practitioner[s]" — including massage therapists (I mean the legit ones, not prostitutes claiming to be masseuses) — from "Engaging in sexual contact with a complementary and alternative health care client or former client," with "former client" covering any client who has gotten services from the practitioner "within the past two years." Fjellman raised a constitutional objection, but the administrative agency concluded that it "lacks authority to declare a statute unconstitutional on its face," and that Fjellman had to raise the question in court. I don't know whether Fjellman plans to litigate this further.

1. I understand why the government might want to bar sexual conduct between psychotherapists and patients or even former patients (especially recently former patients). But massage therapists seem pretty far removed from psychotherapists. They don't try to give advice about a person's life, they aren't generally privy to the patient's innermost secrets. They aren't trusted by the patient for guidance (other than perhaps guidance about specific maladies of the sort that massage can fix).

It's hard to see how a sexual relationship between a massage therapist and a former patient is especially likely to be improper. Sure, there's some risk of psychological manipulation and other unsavory behavior — but no more, I think, than in any relationship between two adults.

2. Likewise, I understand why the government might want to bar sexual conduct between doctors or lawyers and their clients: The client may be dependent on the doctor's or lawyer's services, and may fear very serious harms if the relationship sours (at least in certain situations). So it's possible that the professional might try to leverage this dependence into sexual favors, in situations where the client's ability to resist is limited. Yet dooes that seem terribly likely as to massage therapists? If you think your massage therapist is improperly pressuring you, how hard is it to just switch to another massage therapist?

(The possible concern about the sexual relationship distorting the professional's judgment strikes me as less significant, at least setting aside unusual cases such as serious surgery. This sort of distortion may happen even with preexisting sexual or family relationships, yet we generally don't bar lawyers from providing legal services for spouses or close family members, nor should we. Among other things, help from someone who's close with you may be especially effective, because you may have more reason to trust the person.)

3. One could certainly argue that it's more convenient for the government to lay down a flat rule barring all sexual contact between "health professionals" and clients or even former clients, rather than drawing distinctions between psychotherapists, surgeons, and massage therapists. But convenient as such a rule may be, is it really fair, given that a person's choice of romantic and sexual companion — or for that matter, spouse, as ultimately happened in this case — is pretty important in their lives, and is normally the sort of thing that the government ought not try to control? Wouldn't allowing more romantic, sexual, and marital freedom be reason enough to try to draw some finer distinctions?

4. Finally, so far I've talked only about the policy questions, but there is an important policy dimension here. Under Lawrence v. Texas, there are some limits on the government's authority to control people's sex lives; it's far from clear what test Lawrence announces, but it seems to me at least plausible that Lawrence does constrain this sort of interference with people's sexual autonomy, especially when it comes to relationships with ex-clients. (If the ban was only on relationships with current clients, the burden on sexual autonomy would be modest; you'd just have to terminate the professional relationship. But the ban on relationships with ex-clients can't be avoided this way; any possible sexual relationship will be suspended by two years, no matter what you do.)

But even if you disapprove of Lawrence, what about the right to marry? Set aside the same-sex marriage debate, and focus on the right to marry an adult of the opposite sex who's not your close relative — the right that the Court has largely uncontroversially recognized for four decades. This right has generally been understood as involving a right to actually consummate the marriage; yet this law bans even that — even if Ms. Fjelmman had abstained from sex before her marriage, sex on the wedding night, which happened 16 months after the end of the relationship, would have remained forbidden. (Yes, the ban only a total of lasts two years, but that's not exactly the blink of an eye.)

To justify such an interference with people's constitutional right to marry, shouldn't the government need some pretty serious evidence that the sex would lead to some harm, and not just a vague analogy between massage therapists and psychotherapists?

UPDATE: As I noted above, the law applies to a wide range of alternative health care practitioners, and not just massage therapists. In particular, it covers people who practice "(1) acupressure; (2) anthroposophy; (3) aroma therapy; (4) ayurveda; (5) cranial sacral therapy; (6) culturally traditional healing practices; (7) detoxification practices and therapies; (8) energetic healing; (9) polarity therapy; (10) folk practices; (11) healing practices utilizing food, food supplements, nutrients, and the physical forces of heat, cold, water, touch, and light; (12) Gerson therapy and colostrum therapy; (13) healing touch; (14) herbology or herbalism; (15) homeopathy; (16) nondiagnostic iridology; (17) body work, massage, and massage therapy; (18) meditation; (19) mind-body healing practices; (20) naturopathy; (21) noninvasive instrumentalities; and (22) traditional Oriental practices, such as Qi Gong energy healing." Minn. Stat. 146A.001. It thus seems not to be linked to the fact that some forms of massage are "therapeutic" in an, er, direct and not legal way.

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Sunday, January 7, 2007

"The Precise Date" Justice Stevens "Plans to Retire":

ABC News Jan Crawford Greenburg, author of a forthcoming book on the Supreme Court, told Howard Bashman that Justice Stevens told her "the precise date he plans to retire." For whatever reason, this claim has not received more attention or engendered greater uninformed speculation.

UPDATE: Yes, this is probably a joke . . . but that sort of thing has never prevented uninformed speculation before.

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America "Ununited" When It Comes to Weather:

Today's NYT has an interesting story on how different parts of the United States can experience quite different weather extremes at the same time, and how this may influence American perspectives on climate change.

Western Europe often experiences extremes of weather in a uniform way, as when a catastrophic summer heat wave in 2003 in a half-dozen countries caused the deaths of thousands of people.

In the United States, which spans a continent, there is almost never a shared sense of meteorological misery — as was made vividly clear when epic snows buried Denver as if two winters hit back to back while the Northeast basked in warmth that seemed to render the whole idea of seasons meaningless.

Some climate experts muse that the innately variegated climate across the country might help explain why it has taken longer for human-caused global warming to rise to the level of a national priority here than in Europe.

This is not a testable hypothesis, and the experts note that many other factors contribute to varied attitudes on the issue, ranging from contrasting cultural and political biases to different levels of dependence on oil and coal or the industries that profit from them. But they do see the climate issue compounded here by how normal it is to have abnormal — and very different — conditions around the country.

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Dilbert's Doubts on Torture:

Dilbert cartoonist Scott Adams writes in the Washington Post that he used to believe torture could be an effective interrogation tool, but now he has doubts. If torture is not more effective than available alternatives, he argues, we need not debate whether it can be justified, as the answer would always be no.

The burden is on torture's proponents to produce some evidence that torture makes sense as a policy. I don't rule out the possibility that it can be effective in some cases, but if it's being done in my name, I want some frigging evidence that it works.

Then we can talk about morality.

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Sunday Song Lyric: As I've noted before (though it hardly needs mentioning), songs about drugs are nothing new. Marijuana, heroin, cocaine, and LSD have all appeared and influenced classic song lyrics, but what about antidepressants or other modern pharmeceuticals? Are there (m)any great lyrics about Prozac?


Lithium's made at least two notable appearances in contemporary music. Nirvana scored a hit with "Lithium" off of Nevermind. It's a good song, and quite something live. I wonder whether it was a substance with which Kurt Cobain had some experience given his battles with depression.

"Lithium" is also the latest single from Evanesence. Like Cobain, Amy Lee is a powerful performer and songwriter. (Has she suffered similar emotional troubles?) Lee possesses an amazingly affecting voice of the sort rarely heard in pop music (particularly live). (See, e.g., "My Immortal.") "Lithium," off of The Open Door, features a characteristicly powerful vocal performance from Lee and quite melancholy lyrics. Here's a taste:

Lithium - don't want to lock me up inside
Lithium - don't want to forget how it feels without
Lithium- I want to stay in love with my sorrow

Don't want to let it lay me down this time
Drown my will to fly
Here in the darkness I know myself
Can't break free until I let it go
Let me go

Darling, I forgive you after all
Anything is better than to be alone
And in the end I guess I had to fall
Always find my place among the ashes

I can't hold on to me
Wonder what's wrong with me
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