Saturday, March 10, 2007

Supreme Conflict:

I just finished reading Jan Crawford Greenburg's book Supreme Conflict, and I thought it was great. I really enjoyed the chapters that discuss the earlier rounds of nominations, such as O'Connor, Kennedy, and Souter, and how she uses those stories to provide the narrative backstory for the response to the Miers nomination. I don't know anything at all about Greenburg's personal legal philosophy, but I appreciated in reading the book that she certainly understood conservative legal philosophy in a very sophisticated and sympathetic way, so that she was able to explain the historical narrative in an accurate and compelling way. In this sense, it is much more sophisticated than The Brethren, to which it frequently has been compared. The Brethren is really quite dated by now too.

A few things that stood out to me as especially interesting. First, although Clarence Thomas's independence and intellectual leadership have been long apparent to most anyone except many journalists and law professors, Greenburg's research and rendition of this story is extremely interesting. Second, the the book paints a relatively unflattering image of Justice O'Connor as extremely thin-skinned and as being unable to separate her personal ego from her public obligations as a Justice. Third, I found very ineresting Greenburg's observation that there were ample warnings at the time of Kennedy's nomination that he would turn out to be unreliable by the standards of those who nominated him, so that no one should have been surprised at how matters eventually unfolded. Fourth, her rendition of the Souter nomination reads almost more as a comedy than a tragedy--the process and outcome was so farcical that it would be absurd to think that it would have been anything but random chance that Souter would have turned out to have been a Justice suitable to conservatives, so Greenburg hardly even wastes any ink suggesting that conservatives could have seriously been surprised or disappointed by how Souter has turned out. Overall, Greenburg's tale is how the combination of politics and personalities tled to the nomination of these three Justices, who came to disappoint the Presidents who appointed them.

In the book all of these points seem quite compelling. Of course, all of this depends on Greenburg's accuracy about the underlying facts. I am aware of at least one anecdote in the book that is a touch inaccurate in the details, although right in the basic point (it is also a minor story, so the accuracy of the precise details may not be as essential). But she seems to be very careful and I haven't heard any serious complaints about the accuracy of her story. The book seems really well-done and well-researched.

The book has a great narrative arc too, as Greenburg basically builds to the climactic event, which is the conservative uprising against the Miers nomination, and how decades of disappointing Supreme Court nominations laid the groundwork for that particular event. Greenburg also predicts that Roberts and Alito will succeed where earlier nominations failed in reshaping the Court, in that they have the personalities and intellectual force that prior appointments lacked (O'Connor, Kennedy, and Souter lacking the intellectual force and Scalia and Thomas lacking the personality attributes), a provocative hypothesis. Finally, it is an exceedingly well-written book, a real page-turner that I read in a couple of days. So it is a perfect book for spring break reading if you have yours coming up soon.

Perhaps other readers of the VC are less enthusiastic than I am, but I recommend it highly.


It occurred to me after I published this that my distinction between comedy and tragedy regarding Souter's nomination may not be correct. Remember--I'm an economist by background, not a literature maven. But as I recall, a comedy typically has a happy ending, which is most certainly not the case here from the perspective of those who backed Souter's nomination. So my use is intended more colloquially, just to characterize the farcical and slapstick nature of the process that generated the nomination. Thus, it doesn't seem to be a tragedy either, in that there was no reason to believe that matter could or should have worked out otherwise.

Please feel free to provide the correct term in the Comments.

The 300, the Battle of Thermopylae, and Gates of Fire:

Glenn Reynolds/Instapundit has an interesting post collecting links about The 300, the new movie about the Battle of Thermopylae, in which 300 Spartan warriors held off a massive Persian army for several days, and helped save Western civilization from destruction in its infancy.

I'm far from certain that The 300 will actually prove to be a good movie, and many of the critics are panning it, as Glenn notes. But, like Glenn, I hope that the movie convinces more people to read Gates of Fire, Steven Pressfield's novel about Thermopylae. Gates of Fire is, quite simply, the best historical novel I have ever read, and I've read quite a lot of them. It illuminates the tragic paradox that the city state of Sparta which played a key role in preserving the Western tradition of liberty during the Persian Wars, was itself founded on slavery to an even greater extent than other ancient societies. And if you read Gates of Fire, you will also find out what the opposite of fear is; I won't reveal it here for fear of "spoiling" the book's impact.

UPDATE: As at least one commenter pointed out, the title of the movie is apparently just 300, without a "the." Personally, I like it better with a "the," but I am correcting my mistake anyway.

N.Y. Times on the Mortgage Crisis:

The mortgage crisis is moving into the mainstream. According to this and other stories, "everyone" is surprised at the crisis. Of course, Volokh Conspiracy readers learned back in June 2005 that mortgage companies had "gone out of their collective minds" (and beyond) and that I felt "sorry for whoever owns these loans, because some decent fraction of the mortgage holders are going to walk away from their six-figure paper losses, either because they can't afford the adjustable-rate increases, or simply because they'd rather saddle someone else with their loss." What I didn't add at that time was that interest-only, no-doc loans were an open invitation to fraud, such that a significant percentage of loans have become non-performing almost immediately.

Advantage: Volokh Conspiracy!


Friday, March 9, 2007

What Counts as an "Aside" These Days:

Earlier today, I blogged about some problems with the New York Times' coverage of the D.C. Circuit's Second Amendment decision; the coverage at times said and at times strongly suggested that this was the first federal court of appeals decision that accepted the individual rights theory, but of course the Fifth Circuit's Emerson decision did the same several years ago. The Times has updated its coverage, and I've posted an UPDATE reflecting that.

Still, I wanted to separately note a problem with the Times' updated coverage, which includes this paragraph:

"The United States Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, also embraced the individual-rights view of the Second Amendment in 2001. But it did so in an aside in a ruling that allowed a gun prosecution to go forward."

Actually, Emerson was a long decision, which stretches (excluding the caption, the synopsis, and the headnotes) from page 210 to 265 of volume 270 of the Federal Reporter, 3rd series, not counting the Appendix, which is all about the Second Amendment. Pages 210 to 218 discuss the facts, the statutory background, and Emerson's statutory, Due Process Clause, and Commerce Clause arguments. Then pages 218 to 260 — over 40 pages — discuss the question whether the Second Amendment secures an individual right, concluding that it does. Pages 260 to 264 conclude that the individual right is nonetheless not absolute, and conclude that the statute at issue in the Emerson case is a permissible restriction on the right. Pages 264 to 265 contain a brief conclusion. Thus, 42 of 55 pages in the opinion "embrace[] the individual-rights view of the Second Amendment." That is "an aside"?

The Times might have been trying to convey the theory that the Emerson opinion is dictum, which is to say not binding because it's not necessary to the holding of the case. The Fifth Circuit began the Second Amendment discussion by asking what the nature of the right was; it concluded the right was individual; it then went on to ask what the scope of the individual right was; it concluded the individual right could be limited in certain ways; and it finally concluded that the statute involved in the case was a permissible limitation. The "dictum" theory is that the individual rights conclusion was unnecessary because the Fifth Circuit could have instead said "Even if we assume the Second Amendment secures an individual right, we'll conclude the right could be limited in certain ways, and the statute involved in this case is a permissible limitation."

But, first — and most important to my criticism of the Times article — dictum isn't the same as "an aside." An aside sounds like a casual, relatively unconsidered assertion. Emerson's 42-page decision, even if it's unnecessary to the holding, is not an aside.

Second — and likely more interesting to those who are more interested in legal questions than in media criticism — Emerson's reasoning is not dictum. Conceptually, that a court could have reached the result some other way doesn't turn into dictum the reasoning that the court actually used to reach the result. And, practically, courts, including the Supreme Court, often decide whether a person's rights are violated by first deciding what the nature of the rights is, rather than using more conditional reasoning.

Consider four such cases: Korematsu v. United States (1944), Everson v. Board of Ed. (1947), Jackson v. Virginia (1979), and Strickland v. Washington (1984). Each of them, like Emerson, had to decide what the basic core of the right was first: Korematsu decided that race discrimination by the federal government was presumptively impermissible; Everson decided that the Establishment Clause was incorporated against the states; Jackson decided that the Due Process Clause required appellate courts to review convictions to see whether there was sufficient evidence to support them; and Strickland decided that the Sixth Amendment protects the right to effective assistance of counsel, and not just the right to counsel.

Yet then each of them nonetheless found that the right was not violated — Korematsu held that the presumption of unconstitutionality was rebutted; Everson held that though states are bound by the Establishment Clause, the program at issue in that case didn't violate the Clause; Jackson held that there was sufficient evidence to convict the defendant; and Strickland held that the assistance of counsel was effective. In each of them, the Court could have avoided the initial constitutional ruling by holding, for instance, that "even assuming (without deciding) that the Establishment Clause is incorporated, it would not be violated here." But the Court didn't avoid the initial constitutional ruling; it made the ruling as part of its chain of reasoning, and then held that the right that it recognized was not violated, as a later part of its chain of reasoning.

I have never heard anyone argue that the nature-of-the-right rulings in these cases were dictum. In fact, Jackson and Strickland are remembered entirely for those rulings. No-one treats them as dictum, which I think further illustrates my conceptual point about dictum: When a court decides first whether a right even exists (is there a right to effective assistance of counsel at all?) and then applies the right, that's an accepted, normal procedure, in which the decision about the right's existence and the right's application are both holding. A court may choose to assume the existence of the right without deciding it; but it is not obligated to do so, and its choice to make the decision about the right's existence does not make the decision dictum.

Talk in L.A., at the Reason Offices, on Slippery Slopes:

I'll be talking on the mechanisms of the slippery slope Thursday, March 15, from 12:05 pm to 1:05 pm at Reason's offices in L.A., 3415 S. Sepulveda Blvd. Suite 400, just north of the corner of Sepulveda and Palms. It's a brown-bag lunch, but apparently you can order a lunch by e-mailing mary.toledo at or calling her at 310-391-2245.

Washington Post on "a 'Militia' Means Just That":

An excerpt from the Washington Post's coverage of the D.C. Circuit's Second Amendment decision:

U.S. District Judge Emmet G. Sullivan dismissed the suit a year later, upholding the D.C. law, and saying the Second Amendment was narrowly tailored to membership in a "militia" — which he defined as an organized military body.

The case moved on to the appellate court, with the National Rifle Association and numerous states siding with the pro-gun faction, and the Brady Center to Prevent Gun Violence and other states and cities joining with the District.

In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the position advocated by the District, that a "militia" means just that. Others have ruled that the amendment is broader, covering people who own guns for hunting or self-defense.

This is either a big editing error — the "that" in "means just that" referring to a definition given three sentences and two paragraphs earlier — or an unwarranted bit of snide (snidish?) editorializing. If the case was just a question of whether "'militia' means just that," the collective rights argument might be stronger. But here's what "militia" means even today:
1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2. a body of citizen soldiers as distinguished from professional soldiers.
3. all able-bodied males considered by law eligible for military service.
4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.
So what exactly does "'militia' means just that" mean (other than "'militia' means what I want it to mean")? (On top of that, the right is expressly said to be a right "of the people," so what "militia" means is hardly the end of the story.)

Incidentally, if the question is whether "militia" in the Second Amendment means just something like the National Guard, that's one thing that the Supreme Court has resolved: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." (Today, after the Court's sex equality cases under the Fourteenth Amendment, it would likely include women, too.) The Militia Act of 1792 took a similar view, as does the currently effective Militia Act.

Thanks to PostWatch for the pointer.

"Free State," Straight Outta Blackstone:

A commenter in a thread below questioned the plausibility of the view that "security of a free State" in the Second Amendment could mean "security of a free country," as opposed to security of one of the States of the Union against federal oppression.

Well, it turns out that talk of what institutions -- especially military ones -- are good for a free state is all over Blackstone's influential Commentaries on the Law of England. There, of course, Blackstone had to have been talking of state in the sense of country or nation (American states as subordinates in a federal system were a decade in the future). Consider, for instance, book 1, p. 408 (emphasis added):

In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitutions, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier.

Or book 1, p. 415 (emphasis added):

To prevent the executive power from being able to oppress, says Baron Montesquieu, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit with the people; as was the case at Rome till Marius new-modeled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing, then, according to these principles, ought to be more guarded against in a free state than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people.

Or book 1 p. 417 (emphasis added):

Nor is this state of servitude [created by excessively rigorous military discipline during peacetime] quite consistent with the maxims of sound policy observed by other free nations. . For, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. These men, as baron Montesquieu observes, seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. Hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where there no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments; 1. To prevent the introduction of slavery at all: or, 2. If it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. Much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation.

Likewise, Blackstone refers to what is good for free states in discussing the liberty of the press ("The liberty of the press is, indeed, essential to the nature of a free state," book 4, p. 151), in discussing the value of popular government ("In a free state every man, who is supposed a free agent, ought to be in some measure his own governor," book 4, p. 158) -- and in praising what he saw as the calming force of the established Church of England (book 4, p. 104):

[R]eligious principles, which (when genuine and pure) have an evident tendency to make their professors better citizens as well as better men, have (when perverted and erroneous) been usually subversive of civil government, and been made both the cloak and the instrument of every pernicious design that can be harboured in the heart of man. The unbounded authority that was exercised by the druids in the west, under the influence of pagan superstition, and the terrible ravages committed by the Saracens in the east, to propagate the religion of Mahomet, both witness to the truth of that antient universal observation: that in all ages and in all countries, civil and ecclesiastical tyranny are mutually productive of each other. It is therefore the glory of the church of England, that she inculcates due obedience to lawful authority, and hath been (as her prelates on a trying occasion once expressed itc) in her principles and practice ever most unquestionably loyal. The clergy of her persuasion, holy in their doctrines and unblemished in their lives and conversation, are also moderate in their ambition, and entertain just notions of the ties of society and the rights of civil government. As in matters of faith and morality they acknowlege no guide but the scriptures, so, in matters of external polity and of private right, they derive all their title from the civil magistrate; they look up to the king as their head, to the parliament as their law-giver, and pride themselves in nothing more justly, than in being true members of the church, emphatically by law established. Whereas the notions of ecclesiastical liberty, in those who differ from them, as well in one extreme as the other, (for I here only speak of extremes) are equally and totally destructive of those ties and obligations by which all society is kept together; equally encroaching on those rights, which reason and the original contract of every free state in the universe have vested in the sovereign power; and equally aiming at a distinct independent supremacy of their own, where spiritual men and spiritual causes are concerned.

And life in a free state may also be reason to suffer some inconvenience, book 3, p. 423 (paraphrasing Montesquieu):

But in free states [unlike despotisms such as Turkey] the trouble, expense, and delays of judicial proceedings are the price that every subject pays for his liberty ....

Montesquieu generally used "a free state" in similar ways: "In a free state, every man, who is supposed a free agent, ought to be concerned in his own government: Therefore the legislative should reside in the whole body of the people, or their representatives"; see also the references to "a free state" in this, albeit later, translation of Montesquieu's The Spirit of Laws.

"State" as "country" (or perhaps more precisely a self-governing nation) is of course pretty longstanding usage; article I, section 9, for instance, bars federal officeholders from accepting presents or titles from "any ... foreign state." Article III, section 2 and the Eleventh Amendment likewise use "foreign state" to mean foreign country. But beyond this, "a free state" as indicating what Englishmen and Americans should cherish and aspire to, is right from Blackstone and other contemporaneous writers.

The First Federal Appeals Court Decision to Recognize an Individual Right to Bear Arms?

That was United States v. Emerson, a Fifth Circuit decision from a few years ago, which got plenty of press. But apparently that decision somehow vanished in time for the New York Times' coverage of the D.C. Circuit decision recognizing an individual right to bear arms. The Times Web site front page blurbs the article as:

The decision today was the first from a federal appeals court to hold that the Constitution gives individuals, not just state militias, the right to bear arms.
Now these short blurbs are necessarily oversimplifications, and sometimes err. But here it largely echoes the article, which begins:
A federal appeals court in Washington today struck down on Second Amendment grounds a gun control law in the District of Columbia that bars residents from keeping handguns in their homes.

The court relied on a constitutional interpretation that has been rejected by nine federal appeals courts around the nation. The decision was the first from a federal appeals court to hold a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias.

But if you think the circuit headcount is important enough to mention in the second sentence, shouldn't you mention that the D.C. Circuit's constitutional interpretation had been accepted by one other federal appeals court? True, that earlier decision upheld the gun control law despite its conclusion that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias. Still, the paragraph makes it sound like the individual rights theory was entirely unprecedented, which it certainly is not.

After all, wouldn't you interpret "has been rejected by nine federal appeals courts" as a statement that the theory has been rejected by nine and accepted by none, as opposed to that it has been rejected by nine and accepted by some unspecified number? And if reasonable readers would do that, shouldn't the Times try to avoid misleading them this way? Either don't do the head count, or state it completely.

In the very last paragraph, the article does say that "Most federal appeals courts have said that the amendment, read as a whole, protects only a collective right of the states to maintain militias — in modern terms, the National Guard." That might seem like a (belated) acknowledgment that not all federal appeals courts that had considered the issue had adopted the collective rights theory, even before this decision. Even on its own, though, it is both belated and ambiguous — given what the article had said earlier, "most" might well be read as meaning "all but this one."

But what that sentence might possibly give in terms of clearing things up, the very next sentence (the last sentence in the piece) takes away, repeating and exacerbating the problem in the second paragraph and in the blurb:

But in yesterday’s decision, the majority focused on the second clause, saying that the amendment broadly protects the rights of individuals to own guns — an approach that has been embraced by the Justice Department and by some constitutional scholars.

Doesn't that last clause implicitly assert that the Justice Department and some constitutional scholars are the most authoritative bodies to adopt the individual rights view, and implicitly suggest that the view hadn't been accepted by courts? Again, wouldn't it have been less misleading to say "an approach that has been embraced by the Justice Department, by some constitutional scholars, and by the United States Court of Appeals for the Fifth Circuit"?

(If the Times really wanted to paint an accurate picture, it could also have noted that the approach had been accepted the courts in several states, which the D.C. Circuit majority expressly cited; but that might not be well-known to legal journalists, even ones who write about the Second Amendment — the existence of the Emerson Fifth Circuit decision should be well-known to such journalists.)

Thanks to Dan Schmutter for the pointer. (Note that I've reworded the post since I first put it up, chiefly to make it more readable, but also to note the front-page blurb, which I didn't at first see.)

UPDATE: The Times has corrected its front-page blurb to read "Advocates of gun rights said the decision raised the prospect of a national re-evaluation of the meaning of the Second Amendment and the rights of gun owners"; and it has added a fourth-to-last paragraph that acknowledges Emerson: "The United States Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, also embraced the individual-rights view of the Second Amendment in 2001. But it did so in an aside in a ruling that allowed a gun prosecution to go forward."

Let's recall Emerson: It was a long decision, which stretches (excluding the caption, the synopsis, and the headnotes) from page 210 to 265 of volume 270 of the Federal Reporter, 3rd series, not counting the Appendix, which is all about the Second Amendment. Pages 210 to 218 discuss the facts, the statutory background, and Emerson's statutory, Due Process Clause, and Commerce Clause arguments. Then pages 218 to 260 -- over 40 pages -- discuss the question whether the Second Amendment secures an individual right, concluding that it does. Pages 260 to 264 conclude that the individual right is nonetheless not absolute, and conclude that the statute at issue in the Emerson case is a permissible restriction on the right. Pages 264 to 265 contain a brief conclusion. Thus, 42 of 55 pages in the opinion "embrace[] the individual-rights view of the Second Amendment," a conclusion that the New York Times labels "an aside." (For more on why the reasoning isn't dictum, see here and here; but it surely isn't an aside.)

So Emerson did rule, as the Times now acknowledges near the end of the article, that the Second Amendment secures an individual right. Yet the Times article's second paragraph still reads, "The decision was the first from a federal appeals court to hold a gun control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to the collective rights of state militias. Nine other federal appeals courts around the nation have rejected that interpretation." Again, why mention the nine other federal appeals courts here, and not mention the Fifth Circuit's acceptance of the individual right interpretation as well?

Likewise, several paragraphs down (and several paragraphs before the acknowledgment of Emerson), the article says, "The decision relied on what has so far been a minority interpretation of the Second Amendment, though one that has been embraced by the Justice Department in the current administration and by some constitutional scholars"; again, why the mention of the Justice Department and some scholars with no mention of the Fifth Circuit? Much as I like to think our scholarly views are authoritative, surely a court decision is more authoritative -- so that if all that's mentioned is the Justice Department and scholars, readers could reasonably infer that this is the best that the D.C. Circuit had on its side. Not very good work on the Times' part, it seems to me.

The Unusual Suspect:

Check out the state and city amicus briefs in the D.C. Circuit Second Amendment case on the individual rights side and the collective rights side.

On the individual rights side: Alabama, Arkansas, Colorado, Florida, Georgia, Michigan, Minnesota, Nebraska, North Dakota, Ohio, Texas, Utah, and Wyoming — makes sense, since they are all gun country states (not necessarily red states, but many blue states and blue state politicians support gun rights).

On the collective rights side: Idaho, Maryland, Massachusetts, New Jersey, Boston, Chicago, and New York City. Mostly makes sense — all have relatively heavy gun regulations, all either lack a state constitutional right to bear arms (Maryland, New Jersey, New York), have a state right that has been interpreted as collective (Massachusetts), or have a state individual right that is written and has been read very narrowly (Illinois).

Except one: Idaho, a solid gun country state, with an individual right to bear arms in its state constitution, precedent enforcing it, and even precedent applying the Second Amendment as an individual right to the states (though contrary to the Supreme Court's then-relatively-fresh Cruikshank decision, which held that the Second Amendment didn't apply to the states). True, the precedents are old, but Idahoans' support of gun rights seems to remain current, and the Idaho Attorney General who signed on to the brief — Lawrence Wasden — is a Republican with an A- rating from the NRA.

What's the backstory here? Does AG Wasden simply have firm views on the Second Amendment that he wants to prevail as a matter of legal principle? Does he solidly believe in self-government for D.C., and doesn't want to unduly shackle the D.C. voters' representatives? Is there some personal connection between him and the other states' AGs that led him to try to help a buddy? Inquiring minds want to know.

Thanks to reader Fredrik Nyman for prompting me to post this.

UPDATE: The D.C. Circuit docket sheet reports that Idaho withdrew from the brief. Alan Gura, one of Parker's lawyers reports that "Idaho withdrew its support of that brief, stating that it was in error." Matthew Bower reports (though without claiming 100% confidence) that "The directive to withdraw Idaho's support came directly from the AG, whereas the decision to support the Mass. brief in the first place apparently did not. To my understanding that decision was made by a deputy who rather badly overstepped his bounds." Interesting.

The D.C.-Is-Not-a-State Argument:

The dissent in the D.C. Circuit Second Amendment case relied chiefly on the theory that, because D.C. is not a State, the Second Amendment — which reads "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" — "does not extend to [D.C.]" She argues that the reasoning of Miller v. United States so commanded:

[Miller held]:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Id. at 178 (emphases added). Then, quoting Article I, § 8 of the Constitution [specifically, the Militia Clauses -EV], the Court succinctly — but unambiguously — set down its understanding of the Second Amendment: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee

of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id. Construing its two clauses together so that, as Miller declares, the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States, I believe that, under Miller, the District is inescapably excluded from the Second Amendment because it is not a State.

The trouble with this reasoning, it seems to me, is that Miller did not hold that the continued vitality of the Militia "is required to safeguard the individual States." Miller talked about the Second Amendment's being aimed at preserving the Militia, which Miller held "comprised all males physically capable of acting in concert for the common defense" (and who, at the Framing, "were expected to appear bearing arms supplied by themselves"). It said nothing about the Militia being required to safeguard the States. And the Militia as understood by Congress (from 1803 to the present) included the citizenry of D.C. as well.

Nor does the reference of a "a free State" exclude D.C.; as the majority points out, "a free State" likely meant what Madison originally wrote, "a free country" ("State" being a common term for country as well as for an individual state). The prefatory clause thus refers to protection of a free country — and it makes sense that the operative clause speaks of the right of "the people," not of state citizens or even of the militia, because it too refers to the people living in this country, including in D.C. and in the territories (recall that the Northwest Territory was an important part of the 1791 United States).

This does leave an interesting question that neither opinion seemed to discuss: The Militia Clauses of article I, section 8 read:

Congress shall have Power ...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Does it follow that there may not constitutionally be any Officers or training for any militia in the District of Columbia and the Territories, since while Congress is free to organize, arm, and discipline the Militia everywhere, only the States may appoint officers and train the militia, and no State has jurisdiction in D.C. and the Territories? I doubt it; I would think, as did Congress in 1803, that the Militia — the armed citizenry — can exist and can be officered and trained throughout the breadth of the country. (Perhaps Congress's power to officer and train the D.C. militia comes from the Seat of Government clause and the Territory Clause, which wouldn't be limited by the "reserving to the States" proviso.) And if I'm right, then that's evidence that the citizenry has indeed long been understood as having a right to have arms even in D.C. and the Territories.

Submissions in the D.C. Circuit Second Amendment Case

are available here. It looks like a pretty comprehensive set, and includes amicus briefs.

Excellent SF Novel:

Finished my review copy of John Scalzi's Last Colony, the sequel to his Old Man's War and Ghost Brigades. I liked them all a great deal; if you've read and liked the first two, I think you'll much like the third -- if you haven't read the first two, well, start.

Key Excerpts from the D.C. Circuit Second Amendment Decision:

The whole decision is much worth reading, and, except for the standing issues, quite nontechnical. It's also hard to boil down, since the argument's components are closely integrated. Still, here is what seems to me to be the best very short excerpt:

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right — “the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” — indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.

The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all — e.g., “the states.” These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions....

The District points to the singular nature of the Second Amendment’s preamble as an indication that the operative clause must be restricted or conditioned in some way by the prefatory language. However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it.

We think the Second Amendment was similarly structured. The prefatory language announcing the desirability of a well-regulated militia — even bearing in mind the breadth of the concept of a militia [which the court had earlier concluded “was a large segment of the population” rather than just a government-selected National Guard-like subgroup -EV] — is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias....

[I]f the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit — and thus the most appropriate to express in a political document.


Whatever one might plausibly say about whether the Second Amendment secures an individual or collective right, and whether it applies to citizens in D.C., it seems to me one can't plausibly say (as the dissent in the D.C. Circuit case did) that the majority opinion is "dicta," or that "the meaning of the Second Amendment in the District of Columbia (District) is purely academic."

Dictum, or the plural dicta, refers to "An opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision" (Black's Law Dictionary). Dictum is not binding on future panels within the Circuit -- though it might be persuasive, just as concurrences (set aside concurrences in the judgment needed to form a majority) are not binding and thus pure dictum, but might be persuasive, and just as dissents might sometimes be persuasive (at least when the contrary view expressed by the majority is not binding). It is also sometimes seen as poor form, though my sense is that nearly all judges engage in it on occasion with little embarrassment.

Thus, if the majority had stated that it thought the right to bear arms was incorporated against the states, that would be dictum, because that conclusion would likely not be essential to the logic of the majority's decision: Since the majority is speaking of a right as against a federal entity under the Second Amendment (the District of Columbia), and its reasoning does not require a judgment about what the right would be as against a state under the Fourteenth Amendment, any opinion on the matter is "not essential to the decision" that the panel handed down.

But deciding whether the right is individual -- and surely deciding "the meaning of the Second Amendment in the District of Columbia" -- is essential to the majority's reasoning. The majority's ultimate conclusion, which is that the D.C. gun ban is unconstitutional as to the one plaintiff who has standing, relies on the intermediate conclusion that the right is individual, and therefore applies to individuals throughout the country, in states or out. As the majority points out on p. 48 n.16, it's possible that the majority's intermediate conclusion is wrong. But, right or wrong, it "directly supports [the majority's] holding," and is therefore holding, not dictum.

Finally, note that reasoning does not become dictum just because the majority could have reached the same result through a narrower decision (an argument that had been made as to the Fifth Circuit Emerson decision holding the Second Amendment to be an individual right, but holding that the Amendment wasn't violated by the statute at issue in that case). For instance, in Everson v. Board of Education (1947), the Court decided that the Establishment Clause applied to the states and not just to the federal government; and the Court also defined in some measure the scope of the Clause. Nonetheless, the Justices went on to apply this (admittedly quite ambiguous) definition to conclude that the Establishment Clause was not violated by the practice at issue in this case. The Court could have just said "even if the Establishment Clause applies to the states, the practice here would not violate the Clause." This would have reached the same result through a narrower decision. But it was not the reasoning that the Court used; and given that deciding on whether the Clause was incorporated was an essential part of the Court's reasoning, that decision is binding holding, not dictum. (For other examples, see here.)

But in any event, regardless of what you think about the "majority could have reached the same result through a narrower decision, so their broader decision is dictum" argument, it can't apply here: Here, adopting the dissent's supposedly narrower view would have yielded the opposite result. Again, the majority's reasoning may well be incorrect holding, but it's holding.

[Sabrina Safrin (guest-blogging), March 9, 2007 at 11:38am] Trackbacks
Ramifications of Chain Reaction Propertization.

Many thanks both to Eugene and to all who have shared their insights over the last several days. I conclude today by discussing two ramifications of the chain reaction evolution of property rights: 1) less efficient property regimes and 2) the importance of first movers.

First, if, property rights can arise in reaction to each other, as I obviously believe they do, we will see less efficient property regimes than those anticipated by Demsetz and other traditional theories for the evolution of property rights.

For example, the property regimes over raw genetic material created by developing countries are extremely costly to create, to administer and to enforce. In addition, complying with these regimes entails substantial expense. Impressive revenue streams have not offset these high costs. In fact, rather than generating much revenue for their countries, the laws that restrict access to genetic material have caused scientists and corporations to cease or minimize their bioprospecting activity.

Moreover, researchers no longer share genetic and biological material as freely with each other. Concern over the growing unwillingness by scientists to share tangible research material prompted the NIH in 1999 to issue guidelines to encourage sharing. The restrictive trend, however, continues.

Patent rights in the genetics area also appear to be spiraling to an inefficient and unhappy outcome. By mid-2000, the U.S. PTO had issued over 6,000 patents on full-length genes isolated from living organisms and had under consideration over 20,000 gene-related patent applications.

In a frenzy, researchers and companies rush to patent genes and parts of genes that they have isolated before someone else does. All of this frenetic genetic patenting activity is, or at a minimum, risks creating an anticommons in genetic material that deters innovation. An anticommons can occur when multiple individuals or entities have rights of exclusion to a given resource.

As patentees acquire thousands of patents on genetic sequences for specific genes and fragments of genes, moving forward with any particular gene therapy requires securing the consent of these multiple patent holders. Obtaining such consent, in turn, involves high transaction costs to locate and bargain with the holders of all of these gene patents. Moreover, any one patent holder can thwart a project entirely by refusing to license its individual genetic component unless it receives a bribe. Not all agree that a genetic anticommons of any significance exists. Most scholarship, however, suggests that the patent system in the genetics area has overreached.

The over-enclosure of genetic material is costly. The anticommons and other problems engendered by both the sovereign-based and the patent-based ownership systems lead to the under-utilization of potentially helpful genetic material.

More broadly, the patent paradox and overall patent activity in the United States seems to indicate that the U.S. patent system has settled on a sub-optimum level of property rights. Between 1983 and 2002, the number of patents issued in the United States roughly tripled, growing from 62,000 to 177,000 per year. This would constitute good news, if it signaled that we had become a nation of Thomas Edisons. Yet, according to Adam Jaffe and Mark Lerner, international comparisons show that U.S. inventions with confirmed worldwide significance grew at a rate less than half that of domestic U.S. patent grants in the 1990s.

This extensive patent activity comes at a high price. People currently spend approximately $4.3 billion annually to obtain patents and several billion more to enforce them. According to one study, in 1991 U.S. companies spent over $1 billion enforcing or defending patent lawsuits, while expending only approximately $300 million on research and development.

In addition to these direct monetary costs, extensive patent rights improperly granted to trivial innovations can also impede scientific collaboration and can deter researchers from pursuing a field. These intangible costs are exacerbated by the drag that extensive patent rights place on international scientific collaboration and international comity. Jaffe and Lerner conclude that the intangible costs of the present U.S. system with its high level of low quality patents greatly exceed even litigation costs.

Property scholars note that property rights are sticky. Once societies create them, they find them difficult to dislodge, and inefficient and imprudent property regimes do not readily self-correct.

Property rights over genetic material exhibit this stickiness. For example, rather then curtailing their control over raw genetic material in light of the dearth of bioprospecting activity, nations like Brazil have tightened their grip over genetic material even further by refusing to grant a patent unless the applicant has complied with their access-restricting regimes. Although some contrary examples do exist, the expansion of intellectual property rights that has occurred in the last two decades largely exhibits similar tenacity.

In addition to predicting less efficient property regimes, the chain reaction theory indicates that those who first demand property rights play a critical and underestimated role in the evolution of property rights. These propertization pioneers can trigger a chain reaction of demands for similar or different yet related property rights. The role that NIH played in triggering the stampede to patent genetic fragments beautifully illustrates the importance of first movers.

Decision-makers, therefore, must exercise extreme caution before bowing to the demands of these first movers. Accommodating their propertization requests can create a propertization chain reaction. At present, government agencies, legislators and courts usually appear unaware that their actions can set off a process with widespread and potentially undesirable implications. The chain reaction theory cautions decision-makers to think carefully before expanding property rights, particularly in borderline cases, and to build in restrictions on these rights more thoughtfully.

At a minimum, decision-makers should exercise particular care before expanding property rights in situations where people have identified potential spillover effects. For example, scholars, news services and organizations like the U.S. National Academies of Sciences raised concerns that proposed new intellectual property rights over databases risked dramatically curtailing access to data itself. Congress has so far refrained from creating property rights for databases and thereby has avoided initiating a chain reaction that would have likely led to the propertization of data.

Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election:

Say that the D.C. Circuit decides not to rehear the case en banc; that probably means the en banc petition will be denied within several months. Assume that it's denied by late June — the petition for certiorari will be due in late September, the Supreme Court will consider it in the next month or two (unless it decides to call for the views of the Solicitor General, but I doubt this will be necessary). That means the case will likely be heard in early 2008, and decide by June 2008.

What will the extra prominence of the issue do to the primaries?

Assume the decision is 5-4 in favor of the individual rights theory; what will that do to the general Presidential election race? Assume it's 5-4 in favor of the collective rights theory, with Kennedy joining the four liberals on the collective rights side — what will that do to the race? What if it's 5-4 with Roberts or Alito joining the liberals? I take it that if it's not 5-4, or (possibly) if it's 5-4 with a less liberal/conservative split, the effect will be less; is that right? Or is this decision not that relevant, either on the theory that the issue won't energize people that much, or on the theory that plenty of people would be energized on gun control and the Second Amendment regardless of how the case comes down?

Naturally, if one of the Justices retires this year or next, the effect on the Presidential race would be still greater, I suspect. And if the case is delayed (say, by en banc activity, by a call for the views of the Solicitor General, or the like) so that it's heard in Fall 2008 and expected to be decided in Spring 2009, I take it the effect on the election would be bigger still.

Finally, note that if there is a pro-individual-rights decision from the Supreme Court, I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban, and will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations.

D.C. Circuit Accepts Individual Rights View of the Second Amendment,

strikes down D.C.'s gun control law. The opinions in the 2-1 decision, which I haven't read yet but which I will blog about later today, are here. Thanks to How Appealing for the pointer.

I doubt that this will get reversed by the entire D.C. Circuit sitting en banc, though such a reversal is not impossible; the D.C. Circuit is relatively conservative, and conservative judges have historically had different views on this question, as they have recently had on free speech, jury trial, and other constitutional rights. (Recall that Chief Justice Burger, who was indeed quite conservative, expressly took the collective rights view in public statements, though that was before the recent spate of scholarship on the Second Amendment, and before the modest turn towards libertarianism — at least as to enumerated rights — of modern conservatism.)

And if the D.C. Circuit decision survives a call for rehearing en banc, it seems to me that the Supreme Court will indeed agree to hear the case: There would be a square split between the D.C. and Fifth Circuits on the individual right side and several other circuits on the collective right side, a decision based on the individual right in favor of the challenger (so that the District can sensibly appeal), and what looks at first glance to me like a clean procedural posture (summary judgment for a plaintiff).

UPDATE: Several colleagues of mine at Mayer, Brown, Rowe & Maw, at which I'm a part-part-part-time academic affiliate, are representing the Violence Policy Center as amicus in support of the D.C. gun ban; I have been entirely uninvolved in the case, but I thought I would notice my colleagues' participation.

DC Circuit Strikes Down DC Gun Law Under the 2nd Amendment: This morning the D.C. Circuit handed down a decision endorsing the individual rights view of the Second Amendment and striking down the District of Columbia's broad gun ban. The opinion in Parker v. District of Columbia is here. The majority opinion was by Judge Silberman; Judge Henderson dissented. I'll probably post more commentary as I read the opinion, and no doubt other bloggers here will be weighing in, but for now I wanted to just point out the decision. Thanks to Howard for the link.
What is Off The Record?: This article in yesterday's Washington Post, Harsh Words Die Hard on the Web, about law graduates whose employment prospects were possibly impaired by anonymous posts brought to mind a growing concern of mine. Although it is not nearly so disturbing as being the subject of malevolent and hurtful anonymous posts, I find it troubling nonetheless.

I love the Internet, and it was the advent of accurate search engines, Google to be specific, that really brought out its potential. Add to this the ability to reach an audience via blogging. So far as I am concerned, the Internet + search + blogging is a modern miracle. But, as with any technological marvel, there are downsides. One for me is the threat to the sanctity of a private conversation. I once had private lunch at a restaurant with two student interns who peppered me with questions. Afterward, one of them posted an account of my answers as though it had been an interview. The account was positive and generally accurate, but contained candid statements concerning my career ambitions that, while I had no qualms about offering them in private, would certainly not want published. I later learned that a goodly number of my students had read it.

Another time, I was giving an invited luncheon talk to a small group of summer interns and, once again, some of my remarks were later blogged. As this was a more formal gathering rather than an entirely private lunch, the proprieties were murkier. Still, I was more frank about certain matters in this group of 20 or so students than I might have been on C*SPAN. I should emphasize that both of these incidents involved young overenthusiastic students who liked me and were not trying to embarrass me in any way. While I appreciated their passion, I did not appreciate their lack of discretion.

So here is my concern: I am often called by reporters. The default rule is that everything said is "on the record" unless I go off the record. BTW, perhaps I have been lucky, but I have never been burned by a reporter publishing my off-the-record remarks. In the world of Internet + search + blogging, however, what is "off" and what is "on" the record?

Of course, I expect if I make a casual remark to someone over lunch, or at a closed meeting, it may later be repeated to others. However inconsiderate this might be — and depending on what was said it could be perfectly all right — one expects the dissemination of such statements to be quite limited. But the Internet changes the potential for both preservation and distribution. One simply does not expect one's casual remarks to be enshrined forever in the Internet and readily accessible by doing a Google search.

When I was growing up, when you did something bad in school, it was jokingly said that it would be made a part of your "permanent record." Now that joke is coming true. Another example is "break up" websites where angry former spouses and lovers rake their ex's over the coals.

As there is no stopping the technology, what is the appropriate response? Be much more self-conscious and cautious about what one says in private? Over dinner? In one's office? Or does an ethic of "off-the-record" and "on-the-record" need to develop that is somehow scalable to the venue at which one is speaking? Should there be a default rule of "off-the-record" in some places or times? What is the (nonlegal) remedy for breach?

In the two examples above, I was quoted generally accurately, though in one case not entirely. What about unintentional or intentional distortion? I see this as a potentially stultifying development that could lead one to be more circumspect in what one says, even in what seems to be a purely private conversation, imagining how it might read on line. Everyone would have to monitor themselves constantly like politicians or celebrities must have to do (which is a sufficient reason never to aspire to be a politician or celebrity).

Will our private interactions be compromised or "chilled" unless we can develop a new cultural norm to handle the new power to disseminate information world wide? Or should we simply become far more cautious about our statements to others? Or am I making too much of this sort of occurrence? I wish I had answers to these questions, but I don't.

Then after we address this, we can tackle the need for a new cultural norm to govern people who talk loudly on their cell phones in public. Sheesh.
Very Funny Inside-Legal-Academy Law Review Article:

Pierre Schlag's My Dinner at Langdell's (2004). An excerpt:

It was one of those cold wet April Cambridge mornings. Too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse -- the laudanum was wearing off.

Tonight would be dinner at Langdell’s. To say I was apprehensive does not quite capture my condition. It was to be an important affair. I had been asked to attend. It felt like a convocation of sorts -- though to what end, I remained unaware.

It occurred to me that not everyone is invited to Langdell’s for dinner -- certainly not wayward law professors from the provinces. This was an extraordinary opportunity. I took out the engraved invitation from my navy overcoat, just to make sure it was really there. It was, of course -- though having taken it out three or four times previously this morning, the cream-colored paper fibers had begun to separate. The paper felt gummy and the ink was smudged. I coughed and drew my coat around my shoulders. A drink would help.

Langdell, of course, did not know of my present situation. And realistically, how could he? His professional life ended in 1895 when he retired from The Law School. Mine didn’t really begin (if I can call it a beginning at all) until 1991. It would be a chance meeting. By the time I started teaching, he had been dead for nearly 85 years.

I realized, of course, that this would make our encounter all the more difficult, all the more awkward. Indeed, you might reasonably wonder how could we meet at all? A fair question. It is not everyday that a fictional narrator can have dinner with a man who’s been dead for close to 100 years. The problems from both sides are significant. The literary challenge alone is immense.


Thursday, March 8, 2007

Everything old is new again:

Emily Yoffe writes in Slate of the experience of being fiftysomething and joining Facebook. She writes: "I provided a photograph and minimal information for my profile . . . and waited for the 'friending' to begin. (You can try to resist, but friend is now a verb.)"

I did once try to resist, but then, in the early 13th century, the Guide for Anchoresses said: "Make no purses, for to friend yourself therewith." Then, around 1387, Thomas Usk wrote, in the last sentences of his Testament of Love: "Charity is love, and love is charity. God grant us all therein to be friended." Then, around 1425, Wyntoun wrote in his Chronicles: "And after soon friended were the King David of Scotland and Stephen, king then of England." In 1562, John Heywood wrote, in his Proverbs and Epigrams: "Friend they any, that flatter many?" In the late 16th century, Rollock wrote in a sermon: "Thou shall never get regeneration before God be friended with thee: thou is his enemy, thou must be friended with him."

At first I was all "Who's ever heard of these clowns anyway?" But then, in 1599, Shakespeare wrote, in Henry V: "Disorder, that hath spoil'd us, friend us now!"

It just kept coming: In 1600, Philemon Holland wrote, in his translation of Livy: "They had undertaken the warre upon king Philip, because he had friended and aided the Carthaginians." In 1622, Michael Drayton wrote in the Poly-Olbion: "But friended with the flood the barons hold their strength." In 1676, William Row wrote: "Reports came that the King would friend Lauderdale." In 1721, Thomas Southerne wrote in The Spartan Dame: "There the street is narrow, and may friend our purpose well."

Finally, in the Victorian period (1867), I read Matthew Arnold's St. Brandan: "That germ of kindness, in the womb / Of mercy caught, did not expire; / Outlives my guilt, outlives my doom, / And friends me in the pit of fire."

Yes, Emily, you can try to resist, but "friend" is now a verb. I stopped trying a couple hundred years ago.

IHS Summer Seminars If you are a student with libertarian curiosity, you should consider attending a thought-provoking summer seminar organized by The Institute for Humane Studies. The faculty present their ideas and expect to be challenged by students, as well as by other professors, inside and outside the classroom. There is lots of time for informal interaction. Lectures are interdisciplinary with an overall theme of liberty, but there is no party line.

My first association with IHS came in 1975 when I received an IHS Law & Liberty Fellowship in the summer after my first year of law school that enabled me to write what became my 1977 article, "Restitution: A New Paradigm of Criminal Justice." I started teaching in the IHS summer seminars when they began in 1980 by taking vacation time from the Cook County States Attorney's Office. Writing and giving those lectures provoked my decision to move to academia from practice. After a long hiatus, I resumed teaching last year at the Advanced Studies in Liberty Seminar, which this summer will be held at Loyola in Chicago. More information on all the seminars is available here. Now, the IHS has made some videos about the seminar experience featuring faculty and students that you can watch here:

And here:

Saturday Night Special Samurai Swords:

The Telegraph (UK) reports:

The sale of imitation samurai swords could be banned by the end of the year, the Home Office announced today....

Collectors and martial arts enthusiasts owning or using genuine samurai swords would be exe[mp]t from the ban[.]

According to Home Office estimates, there have been at least 80 serious crimes involving the swords in England and Wales over the last four years.

It is currently legal to buy samurai swords -- which are freely available at martial arts shops and on the internet -- provided they are not brandished in a public place.

The Home Office now wants to ban their sale as part of a wider crackdown on knives and bladed weapons....

Quite similar, in theory and in their problems, to the bans on cheaper "Saturday Night Specials" that allow richer buyers to still get the weapons they want (and thus diminish the political opposition to the bans).

Thanks to Hamline lawprof Joe Olson for the pointer.

Arthur Schlesinger Jr. Biography:

The full text of my biography of Schlesinger is now on-line, with individual chapters as PDF files. Schlesinger has long been a role model for me as a great writer and scholar, and as an intellectual who helped serve the country he loved by taking part in its public affairs.

Scanning and reformatting the thesis for on-line publication also reminded me great it was that I could word-process the thesis on Brown University's mainframe. When I was a freshman, computer science students were programming with punch cards. It was wonderful to have word processing available; my thesis was much better as a result. And would have been much better still, if like today's lucky students, I had possesed a laptop computer.

The thesis also reminded me just how terrible Vietnam was--not only in the direct effects of war itself, and the totalitarian regimes that won it--but also in how it more or less destroyed the liberal anti-communist movement which Schlesinger had done so much to create, and which did so many good things for America and the world in the 1960s.

And there was also the pleasure of rediscovering some great quotes from Schlesinger. Like an amazingly naive diary entry from when he was serving in the JFK White House, and moonlighting as a film critic; Schlesinger and Robert Kennedy met Marilyn Monroe in New York: "Bobby and I engaged in mock competition for her; she was most agreeable to him and pleasant to me."

Then there's this diary entry from the spring of 1968, when all the politically correct people in New York City were supporting Eugene McCarthy for the Democratic nomination, while Schlesinger was supporting RFK: "I have never felt so much in my life the settled target of hostility...I am hissed at practically every public appearance in this city. I have just been out to get the morning Times, and inevitably someone harangued and denounced me on Third Avenue--again a McCarthyite. I think these people are crazy." The Angry Left is not a new phenomenon.

And there's his characterization, from The Vital Center, of the foolishness of hoping that the problem of totalitarian aggression could be solved by world government, by the "pot of legalisms at the end of the rainbow." In the Americans for Democratic Action, which Schlesinger helped found, "we know that we are no longer living in a utopia. We are living in a jungle and we must do something about it."

Re-connecting with his writings was a pleasant reminder--especially apt these days--of how a great political commentator can write with elegance and wit, skewering his ideological adversaries--without ever needing to use vulgar language, malicious hyperbole, or childish name-calling.

Slippery Slopes and Euthanasia:

Prof. Raymond Tallis had an interesting review of (now Judge) Neil Gorsuch's The Future of Assisted Suicide and Euthanasia in the Jan. 26, 2007 Times Literary Supplement ($). Prof. Tallis disagreed with Judge Gorsuch's opposition to euthanasia, and in the process dismissed Gorsuch's worry about slippery slopes. There's no need to worry, he reasoned, that allowing euthanasia would "have an adverse knock-on effect [i.e., indirect effect] or place vulnerable people at risk":

An appropriately framed law ... would seem to make sure that assisted dying did not fall into that category [of laws that have such an effect]. After all, the wish of a dying person in intolerable pain would seem to be objectively reasonable. This latter criterion prohibits the extension of assisted dying, beyond the terminally ill suffering unbearably, to any competent adult who is merely fed up with life or feels her life is worthless. And the appeal to autonomy forbids the extension of assisted dying to non-competent individuals with or without their prior consent -- the first port of call according to those who invoke the slippery-slope argument.

So, the argument goes, the proposal Prof. Tallis endorses is narrow, and slippage-proof: Its careful limitations "prohibit[] the extension of assisted dying, beyond the terminally ill suffering unbearably, to any competent adult who ... feels her life is worthless." Moreover, the firm language of "prohibits the extension" suggests that assisted dying also wouldn't be extended beyond the terminally ill suffering unbearably to other places on the continuum between the terminally ill and the merely very unhappy (since that to would be "the extension of assisted dying, beyond the terminally ill suffering unberably" to others). And later on Prof. Tallis makes clear that he sees "terminally ill" in the "appropriately framed law" that he endorses (the Joffe Bill) as involving people who are in "the last few days or weeks of ... life."

But here is what Prof. Tallis goes on to say on the next page, when criticizing Gorsuch's "inviolability of life" principle:

Unfortunately, [Gorsuch's proposed principle] makes the withdrawal of life-preserving treatment as problematic as assisted dying. [Gorsuch] reexamines [In] re B, the case of a mentally competent woman who had become paralysed from the neck down. She requested the ventilator on which she was dependent to be switched off -- an act that would have brought about her immediate death. Neil Gorsuch would not allow her expressed judgement that her life is not worth living to carry weight in law.

And couple that with the preceding page, where Prof. Tallis endorses the view that "the act/omission distinction [is] 'morally superfluous,'" because turning off a ventilator or stopping kidney dialysis involves an aggrement that "[the patient's] death is a price worth paying for ending [the patient's suffering" -- which is exactly the calculation that is made, when at your considered and persistent request, I assist you to take a lethal conoction of drugs. Indeed, the former Surgeon General Everett Koop described such cases as 'euthanasia by omission.'"

So Prof. Tallis seems to think that B in In re B (2 AER 449 (2002)), who was not terminally ill -- certainly not in the sense of being in "the last few days or weeks of ... life" -- is entitled to end her life by demanding that her treatment stop. He also concludes that stopping treatment is equivalent to active euthanasia. It follows, then, that he would endorse active euthanasia even for people who are not "terminally ill" in the Joffe Bill's sense; and he faults Gorsuch, it seems, for taking the contrary view.

Yet what then happens to his assurance that the Joffe Bill's "objective reasonableness" requirement "prohibits the extension of assisted dying, beyond the terminally ill suffering unbearably, to any competent adult who is merely fed up with life or feels her life is worthless"? Perhaps the requirement might prohibit the extension of assisted dying to the merely angst-ridden -- though how can we be entirely confident that a court would resist a depressed person's judgment that her mental suffering is unbearable (see the Dutch case cited on p. 1058 of this article, where the Dutch court did not resist this judgment)? But the requirement does not prohibit slippage beyond the terminally ill to those who are paralyzed: Prof. Tallis himself is faulting Gorsuch for not heeding B's desires, which suggests that Prof. Tallis would see B's desire for death (whether termination of life support or active assisted suicide seems equivalent to Prof. Tallis) as objectively reasonable. So already some extension beyond the terminally ill suffering unbearably is endorsed in the very article that seems to dismiss the risk of such extension.

Now it may well be that assisted suicide for the terminally ill should be allowed, and that this should indeed be extended to those who are paralyzed and unable to live off life support. It may be that this should even be extended to any competent adult who chooses this. These are tough questions to which I have no firm answer. But the risk of slippage in this area -- which Gorsuch's book describes carefully, and which I also briefly note on pp. 1057-58 of this article -- ought not, I think, be lightly ignored. Seemingly narrow bills that have criteria that supposedly "prohibit[] the extension of assisted dying" may well lead to broader bills, or even to broader interpretations of the criteria. And that is made especially clear by the arguments of some of the bills' supporters.

[Sabrina Safrin (guest-blogging), March 8, 2007 at 9:24am] Trackbacks
Globetrotting Propertization.

Today’s global economy makes the chain reaction creation of property rights more pronounced because changes in property rights in one country, particularly when internationalized, can trigger unanticipated changes in the property regimes of another. The propertization of naturally-occurring genetic material that occurred in response to the patenting of bioengineered organisms and isolated and purified genetic sequences represents one example of globetrotting propertization. The growing international demand for the creation of new intellectual property rights to cover traditional knowledge represents another.

Most knowledge that we use is both traditional and free. It consists of human innovation and insight developed over millennia and passed down from generation to generation. We take the free availability of most information as a given. Yet, today many nations demand the development of new intellectual property regimes to cover “traditional knowledge.” A flurry of international activity in multiple fora has materialized on this issue. Several nations have already enacted measures to protect traditional knowledge.

What has occurred to cause nations to demand the extension of intellectual property rights to tradition?

Anthropologist Michael Brown observes that “[i]n the late 1980’s, ownership of knowledge and artistic creations traceable to the world’s indigenous societies emerged, seemingly out of nowhere, as a major social issue.”

Did something happen in the late 1980’s that could have engendered such demands? Yes, the internationalization of intellectual property.

In the late 1980s, the United States began to impose trade sanctions against countries that accorded little or no protection to U.S. intellectual property goods. Moreover, in 1986 and 1987, the United States and the European Union linked intellectual property and trade in the negotiating mandate for the Uruguay Round of the GATT. The 1994 adoption of the TRIPs Agreement, which emerged from the Uruguay Round, required countries to put in place, as a condition of participating in the world trading system, copyright, patent, trademark and trade secret laws.

Beginning in the late 1980s, developing countries were thus forced to extend a host of intellectual property protection to a vast range of knowledge that had hitherto remained free in their countries. They responded to these first generation intellectual property rights by demanding in numerous international fora the development of second generation intellectual property rights which would propertize traditional knowledge generated in their countries that had previously remained open.

For example, developing countries strongly object to the TRIPs requirement that they extend patent protection to pharmaceutical goods. In turn, their demands for the extension of intellectual property protection to traditional knowledge often concern the protection of folk remedies. Similarly, developing countries have responded to the developed country insistence on intellectual property rights over plants by demanding the international recognition of “Farmers Rights” to address the historical and continued contribution of farmers to the development of crops.

In response to requirements that developing countries extend copyright protection to artistic works, these countries now demand that some kind of intellectual property right attach to traditional songs and dances that originated in their countries. They decry the copying of these traditional works or their incorporation into new works as “piracy.”

The internationalization of intellectual property began a chain reaction of propertization that not only encompassed new technologies and creative works but also unexpectedly innovations and expressions existent for centuries.

Should the movement to extend intellectual property rights to traditional knowledge take root, I expect that in chain reaction fashion it will engender demands to protect not only knowledge from developing countries and from indigenous communities but also traditional Western knowledge. Each year when I teach about international developments to establish new intellectual property regimes to cover traditional knowledge, some students invariably assert that traditional Western knowledge should receive the same protection. One student recently elaborated on all the intellectual property rights that ought to attach to the hamburger.

(I note as an aside that there exists a tendency in the United States not to take overseas and international propertization developments that seriously. Who cares if Panama or Brazil restricts access to raw genetic material or puts in place an intellectual property system to cover traditional knowledge? These developments can, however, impact the U.S. intellectual property system. For example, an increasing number of both developed and developing countries believe that the TRIPs agreement should be amended to require that patent applications disclose the source country of any biological material used in the innovation. If the amendment is adopted, this disclosure requirement could apply to U.S. patent applications as well.)


Wednesday, March 7, 2007

The Hate Crimes Temptation:

The push is on in Congress to pass a new and dramatically expanded federal hate crimes law. The current main federal law (18 U.S.C. 245) was passed in 1968 during the civil rights struggle. It covers only race, ethnicity, national origin, and religion, provides assistance to local authorities to deal with such crimes, and allows federal prosecution only where the victim is engaged in a federally protected activity (like a civil-rights demonstration). A separate federal law, the Hate Crimes Statistics Act of 1990, provides for federal gathering and reporting of evidence of the incidence of hate crimes, including anti-gay crimes. The FBI reports the incidence of these crimes, and its website has useful data on hate crimes in every state going back to the 1990s.

The proposed hate-crimes law (H.R. 2662) would drop the requirement that the victim be engaged in a federal activity, thus greatly expanding the scope of federal prosecution. It would provide federal investigation and prosecution of crimes motivated by bias against a person's sexual orientation, gender, gender identity, and disability, thus adding to the categories covered. And it would give money and other resources to state and local authorities to investigate and prosecute these crimes.

A new column in the Advocate published under the names of Human Rights Campaign Executive Director Joe Solmonese and Judy Shepard, mother of Matthew Shepard, who was slain in a notorious and vicious crime in Wyoming in 1998, argues in favor of passage of the new law. They argue:

Fear of violence remains a horrible reality for millions of GLBT Americans—even in places that many consider “tolerant” or “progressive.” Every act of violence is tragic and harmful in its consequences, but not all crime is based on hate. A bias-motivated crime affects not only the victim and his or her family but an entire community or category of people and their families.

Nothing much to disagree with there. Having myself been a victim of such an attack 17 years ago, I know that anti-gay violence tends to be especially vicious. Knowledge of its existence places a whole group of people under fear of attack, which has all kinds of effects on how one leads one's life.

But what exactly will an expanded federal hate crimes law do to deal with this problem? Here's the answer Solmonese and Shepard give:

You may ask, isn’t the bill merely symbolic? It won’t stop future attacks or bring back those we’ve lost. Well, it is true that there is some symbolic value to the law. We honor all past victims by creating a federal law to combat hate crimes. But make no mistake about it: this law offers a real solution to combating anti-LGBT violence. It does so by accomplishing two very important goals.

First, the federal government gains the authority to prosecute anti-LGBT hate crimes. No matter how awful the crime, nor how compelling the evidence, the federal government simply cannot act without this law.

Second, this legislation will put crucial federal resources at the disposal of state and local agencies and equip local law enforcement officers with the tools they need to seek justice. There have been numerous hate-crimes cases where local jurisdictions simply lacked the full resources to prosecute the guilty. As an example, when Matthew (Judy’s son) was murdered in Laramie, Wyo., in 1998, the town had to scramble financially to handle the investigation, prosecution, and security required. The case ended up costing this small locality of roughly 28,000 people about $150,000, and the county sheriff’s department was ultimately forced to furlough five deputies to save money. The police department also incurred about $25,000 in overtime costs. Federal assistance would have been a huge help.

I have long been skeptical about the practical value of a federal hate crimes law. Nothing in the Shepard/Solmonese argument allays that skepticism. Consider:

(1) There's no evidence I'm aware of that hate-crimes laws actually deter hate crimes beyond what the law already deters. (If readers are aware of any such evidence, I'd love to see it.) All but seven states already have special laws dealing with hate crimes, and 24 of the states include anti-gay violence. We now have almost 40 years of experience with these laws. Yet Shepard/Solmonese provide no evidence such laws have been effective. Indeed, a careful reading of the column shows that they do not even claim an enhanced deterrent effect. They claim only that passage of a federal bill will improve by some degree the likelihood of punishing offenders for attacks that have already occurred, not that it will deter future violence.

Hate crimes are especially vicious and irrational crimes, welling up from deep hatreds, resentments, and fears that law can hardly touch. They're often committed by young males in their teens and early 20s who can't be expected to know the nuances in criminal law and whose animalistic behavior in this respect is probably not very responsive to nice legal incentives. I doubt the prospect of federal as opposed to state prosecution or of some additional time in prison beyond what the offender would get anyway will deter bias attacks.

(2) Aside from punishing offenders — which does and should happen anyway under existing law and which could be enhanced without creating special categories of protection — the purpose of a hate crimes law seems entirely symbolic. While I'm not unmoved by the symbolic value of law, I'm opposed in principle to criminal laws of purely symbolic value. Opposition to purely symbolic criminal laws was a good reason, for example, to oppose sodomy laws, which were a largely symbolic (and very partial) reinforcement of traditional sexual morality.

(3) The column argues that in some cases local jurisdictions lack the resources to prosecute hate crimes, citing the Matthew Shepard case as an example of the high expense involved. Lack of resources is a common complaint of law enforcement authorities at every level — from prevention to investigation to prosecution. But there is no evidence that this claimed lack of resources is a problem unique to hate crimes, or to crimes against gays. Perhaps there should be a general federal local law enforcement assistance act, but why give special assistance to one class of crimes that seem no more costly to law enforcement than another?

(4) The proposed federal law seems an unwarranted intrusion on federalism. The investigation and prosecution of violent crime, with a few exceptions involving things like federal officers and federally controlled substances, has traditionally been the job of the states. The column notes that the federal government will now be able to prosecute more hate crimes. Yet there is no evidence presented that local and state authorities are not already prosecuting such crimes under existing laws, whether under standard laws against violent crime or under their own hate crimes statutes. There's anecdotal evidence that some law enforcement authorities in a few jurisdictions have occasionally been lackadaisical or unconcerned about anti-gay crimes, but where is the evidence of widespread, systematic underenforcement to justify a federal law covering every jurisdiction in all 50 states? We should ask for some such evidence before the federal government takes over yet another area of traditional state authority.

(5) The proposed bill includes federal punishment for crimes based on "disability." Such crimes are of course horrible and it will be difficult politically to resist inclusion of this category. But what is the evidence that this is a pervasive phenomenon in violent or other crime? In the absence of such evidence, it seems like just a PC add-on, intended more for political than practical effect. The authors say "everyone" will now be protected. But why not cover "Vietnam-era status", age, pregnancy, and so on?

(6) While the column claims that nobody has ever been prosecuted for a mere "thought crime," that is an evasion of the danger these laws may present and of the objections that have been lodged against them. Of course, mere thought is not criminalized. One must commit an underlying crime before a hate-crimes law comes into play. But the potential problem is that evidence of what one thinks about a group may be introduced to prove a hate crime eligible for federal prosecution even if, in fact, it didn't motivate the crime. I'm not personally very discomforted by this prospect since inquiry into motive is common in the law. I'm also not aware of much real danger to the First Amendment in the 40 years of hate-crimes prosecution so far. But the column avoids the issue rather than confronting it.

(7) The proposed law is of dubious constitutionality under United States v. Morrison, which struck down the Violence Against Women Act as beyond Congress's authority under the Commerce Clause and under Section 5 of the 14th Amendment. VAWA had provided a special federal civil remedy for victims of gender-motivated violence. The Court struck it down, citing inter alia the lack of a jurisdictional hook to federal interests and the intrusion it represented on the traditional role of the states in dealing with crime. Providing federal criminal prosecution of hate crimes and stripping the requirement included in the 1968 law that the victim be engaged in a federally protected activity, as the new proposed bill does, raises substantial questions about whether it exceeds Congress's constitutional power. The crimes do not seem "economic" in the sense the Court has used the term in its Commerce Clause decisions, and neither "sexual orientation" nor "gender identity" nor "disability" (added categories in the new bill) have garnered special protection from the Court under its Fourteenth Amendment jurisprudence, justifying a larger federal role under Section 5. It's true the Court has recently retreated from some of the implications of its decisions limiting federal power under the Commerce Clause, but upholding the proposed hate crimes law would be an even more dramatic retreat and would seem at the very least to involve overruling Morrison.

No doubt national gay-rights groups are looking for some kind of win early in the new Congress to show long-suffering donors they can be effective. Winning on hate crimes may also reassure members of Congress that they can vote for a pro-gay bill without serious repercussion. Other important issues — like a federal employment protection bill and repeal of "Don't Ask, Don't Tell" — are on the horizon. An "anti-crime" measure is the easiest first step to take and may actually get President Bush's signature, leading to more progress later.

But I am concerned that passing this seemingly symbolic bill may instead give the new Congress a "pass" — freeing it to avoid the harder and far more consequential questions of employment, military service, and protecting gay families in the law. These are all issues about which Congress really can do something of practical value.

UPDATE: In a comment to this post, Marty Lederman helpfully points out that an earlier proposed hate crimes law contained a jurisdictional hook requiring that the crime be linked to interstate commerce. For that reason, and based on a creative 13th Amendment argument, the OLC during President Clinton's tenure advised Congress the new law would be constitutional even after Morrison.

The new version of the bill also contains a type of jurisdictional hook in subsection (a)(2)(B), requiring that the offense affect interstate commerce in some way, or be connected in some way to travel in interstate commerce, or occur while the victim is engaged in economic activity. The full text of the bill is here.

The inclusion of this hook does indeed improve the chances that the bill will be held constitutional. It does not, however, end the constitutional objections. None of the Court's decisions in the Commerce Clause area since 1995 have definitively addressed whether the inclusion of such a hook would render an otherwise unconstitutional law constitutional. It has always struck me as odd to think that a Court concerned with preserving a historic balance between federal and state power, and with limiting federal commerce authority largely to the regulation of "economic" matters, would be won over by a requirement that, say, the weapon used in the offense moved at some point across state lines. Indeed, the congressional findings of a connection to intertstate commerce recited in the bill, e.g., impeding interstate travel and commerce by victims, are very similar to those found inadequate in Morrison. But the constitutional question will be more interesting than I initially thought.

2Ls & 3Ls Publishing Law Review Articles Outside Their Law School:

Some of my students asked: Just how likely is it that I can get my article published outside a home-school journal? I did some research on recent publications by UCLA law school graduates, and I thought I'd pass it along.

I'd expect that students at some schools publish more, because of the culture of the school and the type of students the schol draws (Yale would be a likely guess here); and students at other schools publish less. But my guess is that, to the extent this shows what UCLA students can do, students at other schools can do, too, especially if they circulate their articles widely enough.

1. In the seven classes from '00 to '06, at least 29 UCLA law students published articles in other schools' journals either the year they graduated (or before), or the year after. Most of the articles published the year they graduated or earlier (22 articles) were probably circulated before the students graduated. Most of the articles published the year after (7 articles) were probably circulated right after the students graduated.

2. For the benefit of those readers who have the usual lawyer affection for arithmetic, let me mention that this is about 3 articles per year from current students, plus 1 article per year from the just-graduated.

3. A little over half the articles (17) were published in specialy journals, such as the Harvard Journal of Law and Public Policy and the Yale Human Rights & Development Law Journal, the Journal of Medicine and the Law, and the like.

4. A little under half the articles (12) were published in general-purpose journals, ranging from one article in UC Davis (top 50) and two articles in USF (second 50) down to the third tier (Cleveland State) and lower-ranked schools (Franklin Pierce, Willamette, Western States, Cal Western, and University of West L.A.).

5. This is likely an underestimate; I searched for author's notes that said something like "JD, UCLA, 2003" (though I crafted the search to be more inclusive than that) -- if an author omitted his year of graduation from the note, the article wouldn't have come up.

6. What fraction of articles that were circulated got placed? Impossible to tell, since we don't know how many people tried to get their articles published. But my sense is that if your article is good and you distribute it widely (talk to me if you'd like to know how widely), chances are that you'll get at least one acceptance; some articles get several, and you can choose the best.

7. Finally, of course use these numbers for comparison -- your mileage may differ, especially since it depends on how good your article is, something no statistical analysis can tell us.

Vying To Be Rutherford B. Hayes, Jr.:

The New York Observer reports that, if Barack Obama or Mitt Romney is elected President, he will be the first Harvard law school graduate to become President since Rutherford B. Hayes.

Avoiding Excess White Space in Justified Lines Containing URLs:

When I include a URL — or another long continuous chunks of text — in a footnote in Microsoft Word, the preceding line often ends up having lots of white space. The usual fix for that is to include an optional hyphen, but I don't want the URL to be hyphenated; I want it to break at a slash or a dot. At times, I've entered manual line breaks, but that's not optimal, because I don't want it to break at a fixed place; I want it to break at the place that yields the least internal white space, and that might change as the earlier lines in the footnote change, or as the article gets reformatted.

I've just stumbled on what seems like a good solution: Insert / Symbol / Special Characters / No-Width Optional Break. You can insert this special character wherever you're willing to see the long continuous chunk be broken; it's still not automatic, but it's better than the alternatives I've noticed (at least the alternatives that let me stick with Word). And if you find yourself doing this often, you can easily assign a shortcut key to this special symbol.

Oddly, Word's Help feature doesn't seem to discuss this; I had tried earlier to search for optional line break, but couldn't find anything useful. So I thought I'd pass this along for the benefit of others who might be facing the same problem I had faced in the past.

UPDATE: Commenter Tim_K points out the downside: "The solution works in terms of improving the appearance of the Word document, but when I tried it, add the special character made it so the URL no longer acted as a link to take you to the website in question. I guess you can get around this by copying and pasting the URL into you web browser, but it's far from an ideal solution. What's wanted is to improve the appearance of the Word document and have the URL function as a link." I don't find this to be much of a problem since most of my links aren't likely to be the sort of things that the typical reader will want to follow. But it may well be a downside for others; and it sure would be great if Microsoft kept this from happening, as they could easily do.

FURTHER UPDATE: Commenter Steven Joyce suggests a fix to Tim_K's problem: "Highlight the full URL (both halves), right-click and select 'Edit Hyperlink' or 'Hyperlink', and then put the correct URL (without the special character) in the 'Address' box."

[Sabrina Safrin (guest-blogging), March 7, 2007 at 6:36am] Trackbacks
Reactive Propertization and Fear of Exclusion.

My last two postings identified two reasons why property rights beget additional property rights. First, some may seek property rights because they are copying the actions of others, particularly the actions of influential members of their community. As an example, I pointed to the dramatic rise in patenting notwithstanding the low expected value of individual patents, commonly referred to as the patent paradox. Dennis Crouch suggested that we refer to this as the lemming theory for the patent paradox, and, upon reflection, I concur. (Thank you Dennis.)

Second, second generation property rights may emerge in response to first generation property rights because the first generation property rights fracture a cooperative norm. I pointed to the emergence of property rights over raw genetic material that arose in response to the patenting of genetic sequences and bioengineered goods as an example of this.

Some of yesterday’s bloggers seemed to want a bit more information on this point. Basically, before the early 1990s, most nations treated genetic material as part of the “common heritage of mankind.” (For example, 100 nations expressly referred to genetic material as part of the “common heritage of mankind” in an international agreement on plant genetic resources). The common heritage principle that prevailed for centuries accounts for the widespread distribution of foods far away from their place of origin. It also accounts for the semi-dwarf varieties of wheat and rice that formed the bedrock of the Green Revolution. U.S. breeders developed these varieties from seeds freely obtained from Japan and, in turn, freely shared their improved varieties throughout the world.

By the early 1990s, this had changed. As developed countries began to patent isolated genetic sequences and bioengineered organisms as well as to require that developing countries, as a condition of free trade relations, extend intellectual property protection to bioengineered goods, developing countries responded by asserting government rights over naturally-occurring genetic material. Why, these countries asked, should individuals and companies from gene-poor developed countries obtain genetic material free of charge from gene-rich developing countries when they then patent these genes and at times sell them back to the country where the genetic material originated? Consequently, in 1992, developing countries insisted on language in the Convention on Biological Diversity that expressly recognized sovereign rights over genetic material and pointedly rejected the common heritage of mankind principle. Since 1992, some 40 nations have or are in the process of adopting laws that greatly restrict access to genetic material within their borders.

Meanwhile, closer to home, patients began to assert property or related legal rights over biological samples that they had contributed in the course of receiving medical treatment.

Today, I offer a third reason for why the creation of property rights can beget additional property rights: fear of exclusion. When some begin to demand and receive new property rights, others naturally experience concern that they will no longer enjoy the ability to use the previously common resource. They respond by securing a property right for themselves in the good that is now the new object of propertization. In the alternative, they demand the creation of new property rights over some related good that they can exchange for access to the first object of propertization.

The fear of exclusion animates much of the frenetic patent activity underlying the patent paradox. Companies and institutions feel compelled to obtain patents over slight and even dubious innovations out of concern that if they do not have such patents, they will have no currency to trade for access to other patented and potentially equally slight innovations. As Internet Patent News Service editor Gregory Aharonian explains: “The big guys couldn’t care less about the quality of their patents …. They just want as many as possible because they trade them like baseball cards. When you have a thousand patents and your competition has 1,500, you don’t care what they are, you just swap them.” Fear of exclusion also helps to explain why so many rushed to file patent applications over gene fragments. They feared that, unless they obtained such patents, those who did would exclude them from entire fields of innovation.

The demand by developing countries for property rights over raw biological material partly arose from their concern that patent holders would exclude them from enjoying the benefits of technology, particularly biotechnology. Developing countries sought governmental property rights over raw biological material partly to leverage such rights for access to patented technologies. The article of the Convention on Biological Diversity that acknowledges sovereign rights over genetic material is immediately followed by an article entitled “access to and transfer of technology.” Together, the two articles envision a world where developing countries exchange access to unimproved genetic material within their borders for technological know-how.

Patients also often lay property or other legal claim to donated samples in order to secure access both to the patented gene and to diagnostic tests based on that gene. For example, in Greenberg v. Miami Children’s Hospital, 264 F. Supp. 2d 1064 (S.D. Fl. 2003), patient groups, who had provided researchers with tissue samples to help them isolate the gene responsible for Canavan disease, sued the researchers for unjust enrichment in order to enjoin the researchers from enforcing the patent on the gene and preventing others from using the gene and diagnostic tests based on that gene.

Other patient donor groups, like the PXE consortium, have insisted on co-ownership of any issued patent again in order to ensure that the patented gene and derivative diagnostic tests remain available to those who suffer from the disease. They thus obtain an ownership interest to secure open access.


Tuesday, March 6, 2007

Hayek on Common Law Judging Over on the Right Coast, Mike Rappaport has a nice post on Hayek's description of common law judging. This is from the middle of his post:
. . . [Don] Boudreaux gives the example of a high school cafeteria, where individuals save their seats by putting their books down on a seat before they get in line for food. When they come back to their books, they reasonably expect that their seat will be “saved.” If someone had taken their seat, pushing their books aside, it would be the job of the common law judge to enforce their reasonable expectation that seats could be saved.

This is a good example to illustrate Hayek’s conception of the common law, and it can be developed further than Boudreaux and Roberts do on the podcast to illustrate some other aspects of Hayek’s theory. First, Hayek claims that judges are limited to enforcing rules which can be known in advance, but this might be thought to be in tension with enforcing an unwritten law. This example shows that there need not be a tension. If judges are enforcing existing customs, they can enforce unwritten rules, without "making up" the law. Second, Hayek also says that judges are not making policy. Here, judges are simply enforcing the customs that have developed. Third, even though judge are not making policy, Hayek imagines common law judges as enforcing rules of conduct that should promote desirable outcomes. Because Hayek believes that the customs that emerge tend to be desirable within an order, the enforcement of those customs and expectations will result in desirable rules, even though judges do not directly aim at developing a desirable rule. . . .
Hayek's account from Law, Legislation and Liberty is important to appreciate the difference between common law judging and policy making.
Alvin Rosenfeld Responds to his Critics:

Professor Alvin Rosenfeld, as readers may recall, is the author of the AJC study identifying and criticizing "Progressive" Jews who express hatred of Israel. The study caused a stir after being completely mischaracterized by the New York Times as a study from a "conservative" organization attacking "liberal" Jews [email correspondence with the author of the piece suggests that she likely believes that anyone to the right of Jimmy Carter is "conservative"]. Rosenfeld has written a piece in The New Republic responding to his critics. Regular readers of this blog will note that Rosenfeld and I have noticed the same dynamic:

The ubiquitous rubric "criticism of Israel," however, has also come to designate another kind of discourse--one that has almost become a politico-rhetorical genre unto itself, with its own identifiable vocabulary, narrative conventions, and predictable outcomes. At its ideational core is what the British scholar Bernard Harrison calls a "dialectical scam." It goes something like this: (1) Spot an Israeli action that can serve as the ground of "criticism of Israel" (e.g., Israel's military incursion into the area near Jenin in April 2002 in response to Palestinian terrorist massacres); (2) Then "dissent" in the strongest possible terms, for instance by likening the "razing of Jenin" to the destruction of the Warsaw Ghetto, while anticipating that "powerful" and "repressive" Jewish institutions will try to "silence" the critics by calling them anti-Semites; (3) When taken to task by more sober-minded critics who find that, contrary to your charge, there was no such thing as "the razing of Jenin" and that the IDF has nothing in common with the SS, cry "foul" and claim their censure perfectly illustrates the point that there really is a Jewish organizational conspiracy to silence "criticism of Israel" by branding the authors of such criticism "anti-Semites." For some, this dialectical scam works nicely and validates their sense of themselves as intellectual martyrs suffering for a higher ideological cause. Once one is on to it, however, the scam readily dissolves into what it actually is: political bias, compounded by a touch of hysteria, masquerading as victimization.

An Appellate Procedure Perspective on the High School Anti-Homosexuality T-Shirt Case:

A reader writes:

[The Ninth Circuit panel decision in Harper v. Poway Unified School District is indeed] not binding precedent on the Circuit because it has been vacated by the Supreme Court. [But] I think it creates what is called a "come-back" situation. If appealed (certainty) the case should be assigned to the same panel as had the brother's case. Guess what they will do. By the time the case is ready for en banc, Kelsie (the sister) will have graduated from high school. The predictability of the panel re-doing what it did is pretty high. So the precedent will be back.

Very interesting.

All we need is "Love"?: I saw the Beatles "Love" CD at Virgin Records and thought, "Just what I don't need, another Beatles anthology." Much as I loved the Beatles, thanks to my Ipod, I have grown very tired of their recordings. But when I saw this was a "remix," I decided to give it a try since I liked the Elvis remixes released a few years ago until I wore those out as well. What I did not realize is that this CD is not just remixed individual songs, but an entire 90+ minutes of remixed music. For example, one track might mix 3 drum riffs from different songs before starting a fourth song, play a portion of it before transitioning to two more excerpts. Two songs can be playing over each other simultaneously. An early acoustic version can meld into the full studio version. Reading the liner notes, I discovered that this was a sound track for a Cirque du Soleil show in Las Vegas called "Love" and was mixed by George Martin and his son Giles. As a result it all sounds fresh and new again. I recommend it. You can listen to samples of each track here (using the "listen" button at the bottom) but most of the samples are from the heart of the songs rather than the more interesting transitions and overlays so it is not indicative of why I like this CD.

But then I had a very different thought. We could be enjoying this sort of thing all the time with different artists, or multiple artists except for one thing: Intellectual (so-called) Property. How did this single CD come about? Turns out George Harrison was buddies with Guy Laliberté, one of Cirque's founders, and arranged permissions from the other principals after three years of negotiations. Otherwise we would not have this one remix. And we won't have any more unless lightning strikes.

IP is supposed to create incentives for innovation. Here, as elsewhere, it is suppressing innovation. I know the counter arguments: The Beatles songs would not exist in the first place if not for IP; nor would this mix. And they deserve recompense. And they should be able to control the quality of derivative uses lest the value of their property be diminished, etc. I know the drill.

I also know the responses. The Beatles would not have created music unless compensated untold millions? Cirque Du Soleil would not have need a sound track for their show? Unlikely. They would not have created music unless their decedents were made millionaires many times over? Hardly. They deserve to control all derivative uses? What about the writer of the poster on which "For The Benefit of Mr. Pike Kite" was based and his or her deserving descendants?

We won't settle this here. Suffice it to say that there is an enormous difference between tangible and intangible property rights. With tangible property you control your stuff. With intangible property you control other people's stuff. (For more tentative thoughts along this line see here (pdf).)

One problem with IP is the "P." Private property, of which I am a big fan, invites a right of unlimited exclusion, unlimited terms of ownership, rights to bequeath to one's heirs in perpetuity, and the dreaded accusation of THEFT. The Constitution does not use the term "property," but merely "exclusive right" for "limited times." Hardly how one would express a full-blown property right. If you really MUST have a legal subsidy for authors, composers and performers, unlike chefs and dress designers, there is no reason why copyrights, like patents, could not be for a 5 or 7 years nonrenewable term, after which a work is in the public domain. Probably 99% of all value to be gleaned by artists from all copyrights would be captured by these terms leaving the works to be exploited by others with creativity rather than by entertainment companies collecting rents. For another example of rent-seeking, see this post about the RIAA killing internet radio with royalties.

But most people reading this post already know all this and have chosen up sides on the IP debate. I cannot help that when I heard this wonderful Beatles remix my second thought was: "Love" is not all we need.

Update: I found the following video on Against Monopoly, a very interesting IP-skeptic blog that is well-worth checking out:

Serbian Government's Planned Demand for Federal Investigation of Supposedly Anti-Serb "Racist Remarks":

I blogged over the last several days about the planned philosophy lecture at Kent State — the 2007 Veroni Memorial Lecture in Philosophy and the Humanities, to be delivered by Peter French, Lincoln Chair in Ethics, and Director, Lincoln Center for Applied Ethics at Arizona State University — which was titled On Being Morally Challenged by Collective Memories, and had the following blurb:

During the ethnic cleansing in Kosovo, Serbian men described themselves as compelled to rape and murder Kosovar women and children. This felt necessity was provoked and sustained by collective memories nurtured in Serbs for seven centuries. The basic question I hope to answer is whether group members caught in the throes of collective memories should be held responsible for their actions when they "can do no other."

Here's a copy of a fax from the Serbian consulate that was sent before the lecture was called off:

201 E. Ohio Street, Suite 200, Chicago, IL. 60611
Tel: 312/670-6707; Fax: 312/670-6787

Friday, March 02, 2007

David W. Odell-Scott, Chair Philosophy Department
Kent State University
P.O. Box 5190
Kent, OH 44242-0001

VIA FACSIMILE: 330-672-4867

Dear Professor Scott;

It has come to our attention that the Philosophy Department at Kent State University is sponsoring a lecture "On Being Morally Challenged by Collective Memories" to be held on March 7, 2007 featuring Peter French as the speaker.

After reviewing the promotional materials concerning Mr. French’s speech, we are deeply disturbed and shocked. We view these remarks as racist and hateful, and feel compelled to react. My Consulate is responsible to inform the Serbian Government of such anti-Serbian rhetoric, as well as US authorities about possible legal violations.

If this lecture is allowed to proceed, we will demand from the Office of the US Attorney in Cleveland an investigation about racist remarks and demand an explanation from the State of Ohio, regarding State sponsored hate speech. We are very sorry that no one at your School recognized this shameful conduct and did not react to prevent its announcement.


Desko Nikitovic
Consul General
Cc: Kent State President Lester A. Leftonfax

201 E. Ohio Street, Suite 200, Chicago, IL. 60611
Tel: 312/670-6707; Fax: 312/670-6787

Fortunately, in America the U.S. Attorney does not investigate allegedly racist remarks by scholars (plus, as I noted before, the allegations were based on some very thin evidence). Let's hope it stays that way, and European norms of speech restriction — whether from Serbia, France, England, or elsewhere — do not make their way to the U.S.

Related Posts (on one page):

  1. Serbian Government's Planned Demand for Federal Investigation of Supposedly Anti-Serb "Racist Remarks":
  2. Cancellation of the Lecture That Was Objected to by Some Serbian-Americans:
  3. Brewing Academic Controversy:
Irons v. Carey: Two years ago, the Ninth Circuit panel of Judges Reinhardt, Noonan, and Fernandez created quite a stir when they strongly hinted that they were going to strike down 28 U.S.C. 2254(d)(1) of AEDPA, the 1996 statute that limits the power of federal courts to provide habeas relied for state prisoners. Under this statute, federal courts can grant habeas relief only when state courts really messed up; if the legality of the state court processes was a close call, the federal courts cannot intervene.

  The Ninth Circuit and the Supreme Court have been playing a bit of a cat and mouse game over the last few years with this particular statute. A number of Ninth Circuit judges (Reinhardt included, of course) opted to ignore it or minimize it to see if the Supreme Court would notice; the Supreme Court noticed, and reversed the Ninth Circuit (and Reinhardt in particular) in a string of cases.

  The interesting question was whether Reinhardt and Noonan were going to take things up a notch and strike down the statute outright, effectively forcing the Supreme Court to add a case to its docket and respond to their view that AEDPA interferes too much with the judicial function.

  Today the panel finally handed down its opinion, Irons v. Carey. Somewhat to my surprise, the panel opted against that course. The judges filed a short unanimous opinion resolving the case and noting that Ninth Circuit precedent upheld the constitutionality of the provision years ago. (The judges were therefore bound by the earlier panel, although in the Ninth Circuit such rules are followed somewhat sporadically.) Next, Judges Noonan and Reinhardt made their arguments that the statute should be deemed unconstitutional in non-controlling concurrences rather than in the majority opinion. Judge Noonan wrote the main concurrence; Judge Reinhardt wrote a short concurrence agreeing with Noonan's concurrence; and Judge Fernandez wrote a short concurrence disagreeing with the other concurrences and noting that none of the concurrences were binding.

  Hat tip: How Appealing.
Unhappy Anniversary:

Today marks the 150th Anniversary of Dred Scott v. Sandford. Tony Mauro comments at BLT here.

What If Roe Goes?

My colleague Jessie Hill has posted the second and third installments on "Overruling Roe over at PrawfsBlawg. I noted her first installment here.

In Part II, she briefly explored the landscape of abortion law in a post-Roe environment.

One possibility . . . is that the post-Roe legislation regulating abortion in ways inconsistent with earlier bans would be understood as impliedly repealing the prior legislation. Another possibility is that the eponymous doctrine of desuetude, or some version thereof, might prevent their enforcement, especially given that such pre-Roe laws in many cases would not garner a majority of the present-day legislatures in the states where they exist.
In Part III, she raises the more interesting issue of the implications of a challenge to Roe — or, more likely in the immediate future, the overturning of Stenberg v. Carhhart — to a constitutional right to protect one's own health. Jessie argues that the Court's abortion decisions, particularly their insistence on a women's health exception to abortion restrictions, suggest a constitutional right to protect one's health that has not, as of yet, been relied upon in other contexts. The question, then, is whether this right would survive an overturning of Roe, and how it would play out in other health contexts.

Relatedly, our own Eugene Volokh explores a right to "medical self-defense" here. Jessie's discussion also brings to mind the D.C. Circuit's recent discovery of a right to potentially life-saving drugs, which we blogged about here and here.

UPDATE: For more on the D.C. Circuit's Abigail Alliance case, see here.

[Sabrina Safrin (guest-blogging), March 6, 2007 at 9:23am] Trackbacks
Its Not Just About Money: Propertization of Genetic Material and a Tit-for-Tat.

Yesterday, my post explored how patents can beget additional patents as people and corporations, like lemmings, following the patenting activity of others. Today, I want to explore one of the best examples of reactive propertization – the emergence of exclusive property rights over raw genetic material.

Until recently, nations and individuals treated genetic material – the subcellular sequences that direct the structure and characteristics of all living things – as open access property. Like information in the public domain, genetic resources were available in principle for the use of all. No one held an exclusive ownership interest in this material, and individuals and countries freely shared samples of seeds, soil and even animal specimens containing it.

In sharp contrast, today extensive ownership rights envelop genetic material. Individuals and corporations patent genetic sequences that they have isolated. Patients no longer share biological specimens that they contributed in the course of receiving medical treatment as readily as they once did. Meanwhile, national governments of developing countries, which house most of the world’s genetic material in its natural state, increasingly assert sovereign ownership rights over biological samples containing this material.(I discuss this trend in a prior article:

What accounts for this transformation? The canonical explanation offered by Harold Demsetz for the evolution of property regimes is that private property rights emerge when the economic value of a resource changes relative to the costs of controlling it such that it becomes cost-efficient to establish a property regime over the resource and to internalize costs or benefits previously experienced as externalities. Changes in relative value typically occur when some external shock, like the introduction of a new technology or the opening or closing of particular markets, alters the costs and benefits of the existing property regime.

Demsetz’s thesis as well as traditional theories for the granting of intellectual property rights explains the actions of those who first sought to patent bioengineered goods and isolated genetic sequences as well as developed countries’ grant to them of these first generation property rights. The biotechnology revolution offered economic reward to those who could isolate genetic sequences and create bioengineered innovations.

These theories do not, however, adequately explain nor even usually anticipate the second wave of propertization: the emergence of exclusive ownership rights over raw biological material. Granting property rights in naturally-occurring genetic material does not encourage innovation. This material already exists. While a desire to profit from biological samples plays some role in demands both by developing countries and by patients for a property interest in their raw biological samples, it leaves much unexplained.

Instead, I believe these second generation property rights arose in response to the first generation patent rights. A tit-for-tat dynamic, rather than a cost-benefit analysis designed to capture the actual or potential economic value of raw genetic material, animates the emergence of these responsive property rights. Patients and developing countries felt that if researchers and corporations obtain property rights by patenting cell lines and genetic sequences isolated from tissue samples, than they too should claim a property interest in the raw tissue samples from which those patents sprung.

As John Dawson observed three decades ago, “Uncompensated gains are pervasive and universal; our well-being and survival depend on them…” And so we share. Indeed, experiments show that people cooperate and forgo free riding much more often then economists predict. In fact, as Cass Sunstein notes, if most people cooperate and share “the social meaning of non-cooperation is greed.”

However, if some stop sharing and cooperating, preferring instead to claim certain property or knowledge as exclusively their own, continuing to share under such circumstances transforms the good public citizen into a public patsy. Game theorists have shown that in a repeated game, players will cooperate in the first period but will defect in subsequent periods if the other player defected in the immediately preceding period. Absent such defection, they will continue to cooperate.

Underlying the creation of property rights over raw genetic and biological material lays a desire by those demanding such rights that others not exploit them. When individuals and corporations began to patent isolated and purified genetic sequences, cell lines and living organisms, those from whom the raw biological material came felt exploited. They no longer viewed the sharing of raw biological material as international collaboration but rather as “biocolonialism.” As the president of Tanzania said, “[M]ost of us in developing countries find it difficult to accept the notion that biodiversity should [flow freely to industrial countries] while the flow of biological products from the industrial countries is patented, expensive and considered the private property of the firms that produce them. This asymmetry … is unjust.” Developing countries created property rights over material that they had previously shared to prevent others from taking advantage of them.

A similar sentiment animates patient property claims to biological specimens. Patients willing donated biological specimens when they believed they were contributing to a greater social good. The obtainment of patent rights by researchers and institutions over cell lines and genetic sequences fractured this cooperative spirit. Contributors, like those who joined the effort to find the gene responsible for Canavan disease and then sued the researchers who patented the gene as well as John Moore who sued those who patented a cell line isolated from his spleen, felt taken advantage of.

Their fury and sense of violation do not stem from concern over lost potential economic opportunities but rather from being used. As John Moore exclaimed: “What the doctors had done was to claim that … my genetic essence was their invention and their property.” The furious Canavan donors did not seek a share of future royalties. Rather, in their complaint, they sought to prevent the patent holders from restricting access to the Canavan gene and from limiting genetic screening tests.

Colonel Davis Versus Cully Stimson - Continued:

Cully Stimson provoked legitimate outrage because he sought to encourage sanctions against private attorneys for the mere fact they represented military detainees. His remarks were contemptible because they struck at the principles upon which the American justice system depends. Colonel Davis, on the other hand, criticized a military officer (in a different service) who is serving as a detainee's defense attorney for specific conduct — public statements to the Australian press about the U.S. government's conduct. Regardless of whether Col. Davis' criticisms of Major Michael Mori are correct on the merits, his remarks are not comparable to those of Cully Stimson.

As the comments to my last post indicate, some disagree. Mark Kleiman is outraged by Colonel Davis' comments, likening the Gitmo prosecutor's remarks to Stalinist persecution of political dissidents.

Back in the Stalinist days of the Soviet Union, someone could be held in prison without charges for five years, tortured, and then charged under a law that hadn't even been passed when he was picked up. If he ever got a trial at all and his defense attorney, in the course of defending him, dared to criticize the Party Secretary or the Defense Minister, the prosecutor could charge the defense attorney with "using contemptuous language toward high officials," a charge for which the defense attorney could be sent to prison.

Aren't you glad we don't live in such a country?

Oh, wait ...

I think the comparison is more than a bit overwrought.

Major Mori is not a private defense attorney, or even a public defender. He is a military officer. As such, he is bound by the military's code of conduct, whether or not he's representing a detainee or anyone else. Thus, he does not have the same freedom to fly around the world giving press conferences and stirring up political opposition to the prosecution of his client as do private attorneys — but this was true before he started representing alleged enemy combatant David Hicks. The limitations on what Major Mori can say are a consequence of his being a military officer, not his participation in this case. Defense attorneys remain perfectly free to criticize their government and public officials without fear of government retribution. I agree with Kleiman that military commissions are less hospitable to defendants than civil courts, and I am willing to believe that the charges against David Hicks may be overstated, but that doesn't make Col. Davis' recent comments tantamount to Stalinist persecution.

While I am willing to give Col. Davis a clean bill of health for his latest remarks, it appears Davis said some things last year that may have put him in Cully Stimson territory. As reported by Tony Mauro in the Legal Times last March, at a press conference in Guantanamo, Davis said it was "ironic" that the same law firms that represent corporations with large defense contracts were also doing pro bono work for detainees.

The nearly united front among the nation's legal elite against the White House has not gone unnoticed by the administration. In remarks at a press conference at Guantanamo Bay Naval Base earlier this month, the Defense Department's chief prosecutor for the military commissions there, Air Force Colonel Moe Davis, said it was "ironic" that big law firms representing large defense contractors such as Boeing Corp. allow their lawyers to represent Guantanamo detainees pro bono.

Miami lawyer Neal Sonnett, the American Bar Association's observer in Guantanamo, said when he heard the comment he took immediate exception, saying at a press conference that if it was meant to intimidate law firms, "it was beneath Colonel Davis' rank and status."

Sonnett, a former president of the National Association of Criminal Defense Lawyers, added, "These lawyers and their firms are true patriots."

Some who heard Davis' remarks thought he was referring specifically to Perkins Coie, the Seattle firm that has represented Hamdan from the beginning of his challenge to his detention in 2004. Perkins Coie is one of several law firms employed by Boeing, and one of the firm's lawyers will be at the counsel table when Georgetown University Law Center professor Neal Katyal argues Hamdan's case before the Court.

"If it was directed at us, it was out of line," said Perkins Coie partner Harry Schneider Jr., who has taken the lead in the firm's representation of Hamdan. Schneider said the firm has never heard negative feedback from any client about its representation of Hamdan.

Obviously there may be more to what Davis said last year, and it would be important to judge his remarks in context. (Stimson's comments, it should be noted, acutally looked worse when placed in their full in context.) Nonetheless, it seems that Col. Davis may have pulled a Cully Stimson before Cully Stimson did. If so, these earlier remarks — rather than his recent comments — are what is worthy of rebuke.

Biological Essentialism and Parenting:

Chuck Colson's syndicated column is about the Miller-Jenkins v. Miller-Jenkins case. I won't repeat the details here, though you can find them here; and you can find a broad response to Colson in this post by Walter Olson.

Here, though, I wanted to focus narrowly on a specific part of Colson's argument:

The subhead in the Post article says it all: "Janet Jenkins and Lisa Miller got hitched and had a baby together." Together? Anybody who knows anything about biology knows that’s impossible. But that’s just how the courts are looking at it. As a judge in the case told Janet Jenkins’s lawyer, Janet (the lesbian partner) "without question is presumed to be the natural parent ... by the basis of the civil union." So in the court’s eyes, Isabella is the child of two women, something biologically impossible.

"Had a baby together" is impossible to "anybody who knows anything about biology" only if you think "had a baby together" must be a statement about biology. Yet the whole point of a civil union is to make a partnership through which you commit to do things together. And one of the things that people try to do together through a civil union (whether others approve of civil unions or not) is bring into the world -- or, with adoption, into their family -- a child that they commit to support together. In reliance on the mutual promises, they invest time, effort, money, and physical exertion. One is willing to invest some things and another some other things (as with a male-female marriage) precisely because they've committed to this project together.

In fact, this is precisely how a man and a woman can have a baby together even if infertility requires them to use another man's sperm. It surely is an impoverished conception of parenthood to say that it's "impossible" (or wrong) for a husband and wife to have a baby together when they together commit to raising it, and they together arrange for it to be born, but for biological reasons they have to use donated sperm.

Yet it turns out that this is the very conception of parenthood that Colson is pointing to -- later on he condemns the use of donated sperm as well:

How is it possible that laws and court procedures could have become so dangerously fantasy-based? Actually, we should not be surprised. Many modern parents have unwittingly been collaborating with the process for years. The Washington Post tells us how Judge Cohen explained it: "[C]onsider the situation of a heterosexual couple in which an infertile husband agrees for his wife to be artificially inseminated with donor sperm." In such a case, the judge stated, the husband would be presumed to have parental rights even though someone else had actually fathered the child.

It all ties together. Heterosexual couples have tacitly approved this practice of including a silent third partner in a marriage to produce a child. And then it makes it very difficult to cry foul when homosexuals do the same thing.

Isabella’s plight shows us the tragic consequences of rejecting the biblical view of marriage, which provides for one man and one woman in the union to raise the child. Sure, there are extraordinary circumstances, and adoption is possible. But the norm is the norm, and the law has always recognized the natural moral order.

Even adoption seems to be, despite his assurances, outside his vision of "the biblical view": He says it's "possible," and appears to defend it simply on the grounds that it's an "extraordinary circumstance." But surely 120,000 adopted children per year are likely to be no more "extraordinary" than the children of same-sex couples. (If 3% of the U.S. population is gay or lesbian, and if every one of them ended up in a couple and each couple yielded two children over the members' lifetimes, that too would be about 120,000 children per year.)

I strongly suspect adoptions are less "extraordinary" than births using donated sperm. And if a birth of a child who's biologically unrelated to the mother's husband is against the "biblical view of marriage," then it seems that an adoption -- especially an adoption at birth -- would be even further from that biblical view. (I realize that Colson says "the biblical view of marriage ... provides for one man and one woman in the union to raise the child," but from the sentences before and the sentences after, I take it he means for the biological father and the biological mother to raise the child, since otherwise this sentence would be completely unrelated to his faulting of heterosexuals' using donated sperm, or his discussion of adoption.)

How did this supposedly religiously motivated fixation on the child's biological relatedness to both parents come about? Does the Bible indeed somewhere condemn, explicitly or by strong implication, the use of donated sperm? I know the stories of Hagar and Tamar in the Old Testament discuss what some people do when they can't have children naturally with their spouses (because of the wife's infertility, the husband's death, or the husband's refusal to impregnate the wife); but I take it that the moral message of the stories is not necessarily clear.

Is there something elsewhere that takes such a biologically essentialist view, to the point of prohibiting the use of donated sperm, and treating adoption as grudgingly tolerated in "extraordinary" cases? (I'm not speaking just of Catholic natural law reasoning; Colson is a Protestant who, I take it, focuses much more on the words of the Bible.)


Monday, March 5, 2007

Cancellation of the Lecture That Was Objected to by Some Serbian-Americans:

Last week I blogged about what struck me as an unjustified fracas over a forthcoming moral philosophy lecture by Prof. Peter French at Kent State University; some Serb-Americans apparently objected to it, on grounds that struck me as likely unsound.

The lecture has been called off; when I e-mailed Prof. French to ask for an explanation, he kindly responded. He told me that "Kent State wanted me to go on with the lecture and promised security at the event, but my family insisted that it was not worth it," and also passed along the following (some paragraph breaks added):

I was scheduled to give a lecture at Kent State University of March 7, 2007, as a part of the Veroni Memorial Lecture Series. The title of my lecture was to be "On Being Morally Challenged by Collective Memories." I intended to discuss how collective memories (what some have called heritage stories) can be seen as a potential source of a type of moral impairment that I call "being morally challenged."

The paper that I would have read has three parts. In the first part of the paper I distinguish between being morally incompetent and being morally challenged in terms of an account of moderate moral reasons responsiveness combined with the Frankfurt conception of volitional necessity. In the second part, I provide a sketch of different types of memory and offer an account of what collective memories are.

I conclude in the third section with an attempt to provide a convincing account of how collective memories can cause volitional necessity leading to moral challenges for some individuals in group situations. The primary point I make at the conclusion of the paper is that though collective memories may engender what Harry Frankfurt called volitional necessity in some group members and render those individuals morally challenged in certain circumstances with regard to doing the right thing, they do not convert those group members into moral incompetents with respect to whom moral responsibility assessment is inappropriate.

This all undoubtedly sounds highly philosophical and probably rather dull to most people. However, in the third section I offer a few examples of how I believe certain individuals may have been morally challenged when elements of their heritage or collective memories were used by their leaders to incite untoward actions. One of the examples I use is that of the speeches of Slobodan Milosevic that recalled the 1389 battle on the Field of Blackbirds as a way of motivating Serbs against Kosovo/Albanian Muslims. This example is discussed in two brief paragraphs of a paper that is about 20 pages long. It is in no way the focus of the paper.

Nowhere in my examples, nor anywhere else in my paper, do I make any claims about the morality of the Serbian people. However, after event organizers generated a poster with a blurb citing the Serbian/Kosovo example to announce the lecture and displayed it on the Kent State University campus and website, there arose an outcry of complaints and accusations regarding my supposed views about Serbs.

This escalated into an outrageously false (and I believe libelous) article posted on a website ( in which my views are grossly mischaracterized. This website wrongly attributes to me the claim that "Serbian people are rapist and killers because they are delusional about their history during the time they lived under the Islamic Law in Kosovo." I make no such claim. Nor do I make any of the other wild claims now attributed to me in emails and elsewhere. I do not think the Serbian people are or were delusional and I was not going to say so in the lecture. Nor do I think the Serbian people are rapists and killers (although individual Serbs have raped and murdered, as have members of every ethnic group on Earth).

I have written extensively on the complex issues of individual and collective responsibility, and I am the last person to make unsophisticated, sweeping statements about the morality of any ethnic group or to make assumptions about the morality of an individual based solely on his or her ethnicity. The website article goes on to quote Susan Ilievski, a person I have never met. She says, "This man is out of his mind. Whatever French says is a fiction or was he paid to say that, who knows." This is, of course, utter nonsense.

Ms. Ilievski has no idea what I say in the paper because I have not given it and I have not provided a copy of it to anyone at Kent State. It is most irresponsible for anyone to make incendiary claims about someone's views based solely on an advertising blurb created to excite audience interest.

Unfortunately, the audience interest that was incited was poisonous and most unsettling. I have received a large number of harassing emails from within the U.S. and from abroad, accusing me of racism, being a closet Islamist, collaborating with those who would destroy Western Civilization, and much more. I was told to expect a very unpleasant experience at Kent State should I dare to give the paper. After consultation with my family and my attorney I decided that traveling to Kent to give this somewhat technical philosophical paper in such a hostile climate (and at my age) was unwise.

Philosophical discourse is all that interests me. The utter irrationality and vituperative rhetoric of the attacks I have endured is astounding and depressing. Hearing from so many hate-filled people who have no idea of the actual philosophical points that are in my paper and clearly have no desire to engage intellectually with me made it clear that this visit would not be a worthwhile philosophical experience.

With reluctance, I decided to cancel my talk. I had hoped that my talk would provide an opportunity to engage the Kent community in an interesting discussion of a complex philosophical concept. It is astounding and tragic that a simple academic exchange could spiral into such a controversy.

Greenburg on the Souter Nomination:

I've started reading Jan Greenburg's much praised Supreme Conflict. As she describes the nomination of David Souter to the Supreme Court, President Bush didn't decide to nominate him until just before he announced the decision publicly. This conflicts with the little inside knowledge I have. At the time, I was acutely interested in who the Supreme Court nominee would be. I was in between my second and third years of Yale Law School, and was scheduled to clerk for then-Judge Clarence Thomas on the D.C. Circuit, who was rumored to be under consideration, along with Edith Jones. On Saturday night after Justice Brennan resigned, I spoke to a very well-connected friend and classmate, who called to tell me, "it's going to be Souter." I responded, of course, "who"???? And next, "are you sure?" he was sure. The Souter nomination was announced on Monday.

I don't know where my classmate got this information, but it certainly turned out to be correct. Even if the decision wasn't 100% final when he imparted this information to me, it seems to have been a lot more certain than Greenburg makes it out to be in her account. According to Greenburg, Bush interviewed both Jones and Souter that Monday morning, before making his final decision. Combining what I heard from my classmate with Greenburg's account, it seems to me like the decision had already been made, so long as Souter didn't completely blow his interview with the president, with Jones waiting in the wings just in case.

Is Colonel Davis Another Cully Stimson?

Colonel Morris Davis, lead government prosecutor for the Guantanamo military commissions, was sharply critical of one of the attorneys representing Guantanamo detainees this past weekend. As reported yesterday in the International Herald Tribune:

The prosecutor, Colonel Morris Davis, said that the lawyer, Major Michael Mori of the U.S. Marine Corps, should not be running about Australia making public appearances in uniform on behalf of his client, David Hicks, and that Mori faced possible prosecution for some of his remarks.

"I don't know what Major Mori's plans are right now, but if he wants to come back home and represent his client, that would be helpful," Davis said in an article published Saturday by The Australian, a daily newspaper in Sydney.

"Certainly in the U.S. it would not be tolerated having a U.S. marine in uniform actively inserting himself into the political process," Davis said. "It is very disappointing to see that happening in Australia, and if that was any of my prosecutors, they would be held accountable."

He added that it would be up to the Marine Corps to decide whether Mori had violated Article 88 of the U.S. Uniform Code of Military Justice, which makes it a crime for a military officer to use "contemptuous words" about the president, vice president, secretary of defense and other high-ranking officials.

Major Mori did not take the criticism well, suggesting Colonel Davis was seeking to intimidate him and compromise his and others' defense of detainees. According to the report, Mori also compared Davis' comments to the now-infamous remarks of former Pentagon official Cully Stimson, who made comments seeking to discourage the private representation of Gitmo detainees. (See here for a chain the VC's posts on the Stimson controversy.)

Based upon this report, Col. Davis' comments are not remotely comparable to those made by Stimson. Davis did not challenge the fact of representation, nor did he suggest that Mori or anyone else should suffer consequences for representing detainees. Rather, he criticized that manner in which Mori is representing his clients. Moreover, Davis is not challenging Mori's legal advocacy on behalf of detainees, but Mori's out-of-court conduct, particularly various political comments Mori has allegedly made overseas. Such criticism is not tantamount to lawyer intimidation, nor does it compromise any detainee's defense. At most, it seems that Davis would like Mori to spend more time preparing his defenses in court, and less time courting international public opinion.

Bashman on the Limits of Lawrence

How Appealing's Howard Bashman's latest column explains that fears Lawrence v. Texas would result in the wholesale invalidation of morals legislation "have proven to be overblown" -- at least thus far. As evidence, Bashman cites the Ohio Supreme Court's Lowe decision I noted last week and a recent decision of the U.S. Court of Appeals for the Eleventh Circuit upholding the state of Alabama's statute restricting the sale of sex toys.

If two recently issued appellate court rulings are any indication, the post-Lawrence fears of those concerned that public morality would no longer remain a valid basis for legislating consensual sexual conduct have proven to be overblown. Instead, these rulings demonstrate that, even where consenting adults are involved, Lawrence has failed to usher in an "anything goes" era, free from governmental interference.

Other cases seem to confirm this (lack of a) post-Lawrence trend. For instance, as some commenters on my prior post noted, the U.S. Court of Appeals for the Seventh Circuit also upheld a state law prohibiting consensual incest between adults in the 2005 decision of Muth v. Frank. Thus, it seems, Lawrence is has having less impact than some of its proponents hoped and critics feared.

"Marketplace" Story on NYC Associate Salaries: American Public Media's "Marketplace" has an interesting story today on the causes and impact of the latest salary increase among associates at major New York law firms. You can listen to the story here and read a transcript of the report here. I particularly liked the vibrating BlackBerry, no doubt in part because I don't have one.
"People Who Don't Believe in Government Do a Bad Job of Running It":

I've heard this refrain over and over, with regard to FEMA, the V.A., and other examples of government incompetence that happen to occur in the Bush Administration. Via commenter Justin, here's an example from "Balloon Juice": "people who don’t believe in government do a crappy job when they try to run it. You can look practically anywhere in government today and find the same story – managing the occupation of Iraq, science, women's health, disaster management."

Here are two major problems with this thesis: (1) The Bush Administration is not exactly full of libertarians; exactly who in the Bush Administration "don't believe in government"? Given that government spending during this administration has increased at rates not seen since Lyndon Johnson, the better lesson would appear to be that "throwing government money at problems doesn't make them go away." (2) We have plenty of examples of people who surely did believe in government that didn't do a very good job running it. Anyone for the late and unlamented Mayor John Lindsay of New York? The kibbutzim of Israel, which survived for decades on government subsidies, before finally abandoning their model when the Likud reduced these subsidies? On a completely different level, the commisars of the former USSR? A common belief among folks on the economic left is that good intentions lead to good results, and thus "fixing" government is simply a matter of getting high-minded people into the right positions. Surely, government can be more or less efficient depending on how it's set up, how competent the people who run it are, and what incentive structures are in place, and so on. But it's simply a fallacy to believe that the fundamental problems attendant to statist economic organization can somehow be resolved with a large dose of idealism.

Related Posts (on one page):

  1. "People Who Don't Believe in Government Do a Bad Job of Running It":
  2. Socialized Medical Care for Veterans:
Supreme Court Vacates Reinhardt Anti-Homosexual T-Shirt Decision: Back on April 20, 2006, Eugene authored a post that began,
Sorry, Your Viewpoint Is Excluded from First Amendment Protection: That's what the Ninth Circuit holds today, as to student speech in K-12 schools, in a remarkable — and in my view deeply unsound — decision. (Harper v. Poway Unified School Dist.)
  Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, it said "Homosexuality is Shameful." The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.
  Harper's speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" — which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations — are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."
  But as so often happens with decisions by Judge Reinhardt, Reinhardt's word was not the last. Today the Supreme Court vacated Reinhardt's in an order that states in relevant part:

. . . The district court . . . has now entered final judgment dismissing petitioner’s claims for injunctive relief as moot [because Harper graduated from the school]. We have previously dismissed interlocutory appeals from the denials of motions for temporary injunctions once final judgment has been entered. See Pacific Telephone & Telegraph Co. v. Kuykendall, 265 U. S. 196, 205–206 (1924); Shaffer v. Carter, 252 U. S. 37, 44 (1920). In this case, vacatur of the prior judgment is also appropriate to "'clea[r] the path for future relitigation of the issues between the parties and [to] eliminat[e] a judgment, review of which was prevented through happenstance.' " Anderson v. Green, 513 U. S. 557, 560 (1995) (per curiam) (quoting United States v. Munsingwear, Inc., 340 U. S. 36, 40 (1950)) (alterations in original). The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss the appeal as moot. See United States v. Munsingwear, Inc., supra. Reported below: 445 F. 3d 1166.

Justice Breyer dissents.
  What does it mean? It means that Judge Reinhardt's opinion has been "taken off the books," and the Ninth Circuit has been ordered not to issue any more opinions in the case. At the same time, the case is now over because the student graduated, so the Supreme Court won't be hearing the case. "Clear the path" indeed. Thanks to Howard for the links.

  UPDATE: Oops, I see that Eugene beat me to it while I was drafting this. I guess I'll keep this post up given that it offers more details, but if readers would rather I delete it just let me know. Also, I have updated the post for readers who don't know what it means to "vacate" a decision.
High School Anti-Homosexuality T-Shirt Case Vacated as Moot:

Thanks to Constitutionally Correct and How Appealing for the pointer. This means that the Ninth Circuit opinion upholding the school's prohibition of the T-shirt loses its precedential value.

Ask Etymology Ethelwulf, Part 2:

In the comments to the previous Ask Etymology Ethelwulf post, In Which I Gave The True Etymology Of The World "Umbrella," a commenter asked me to explain "agnostic," "helicopter," "amnesia," and "pregnant." I did so in the comments, but who reads the comments anyway? So I thought these new etymologies (with minor alterations) were worth posting in the main text:

"Agnostic" is from "agnus" (lamb) + "stick" — lamb on a stick; this is a derogatory term for unbelievers, dating back to ancient times in the Middle East, similar to the modern derogatory term "cafeteria Catholicism."

No, just joking! That was obviously made up. Actually, the "agnus" part is real, but the second part is from "Stygis," the river Styx of the underworld. Originally the label "agnostic" wasn't applied against members of all religions, but just those who thought that Christianity, with its specific miracles like the Resurrection, was unprovable. Early Christians were horrified by this, not because it was unbelief — that was of course the most common view in ancient times — but because it was the refusal to take a stand on an important spiritual question. Remember how, in Dante's Inferno, there's a special place just outside of Hell reserved for the cowards, rejected by Heaven and not accepted by Hell, who didn't take a stand in life? That has direct roots in the beliefs of the early Christians, who taught that those who neither believed nor disbelieved would be worse than damned — in classical metaphorical terms, stranded at the Styx (i.e., not allowed to cross the Styx into the underworld) — by reason of the lamb of God ("agno-Stygian" or "agnostycus").

"Helicopter" is from "helio-" (sun) + "Copt" — a reference to early Christian writings of the Patristic period (written in Coptic by Church Fathers living in Alexandria, and possibly inspired by ancient Egyptian sources) in which the souls of the dead were depicted traveling up to the sun in machines powered by angel wings ("heliocoptic transfiguration").

"Amnesia" comes from the Latin "amnis" (plural "amnes"), meaning "river." Recall that (while "denial" is not a river in Egypt) forgetfulness, to the ancients, was a river named Lethe; so to forget was to be "taken by the river" ("fluitare secundum amni Lethe"), and "amnesia" was just the abstract-noun form of that concept.

"Pregnant" is from "precor" (the Latin verb "to entreat, pray for, wish for," hence the Italian expression "prego!" and our modern word "prayer") + "nans, nantis" (the present participle of the Latin verb "no, nare," meaning "to swim"). This isn't too hard to understand — any expectant parents wish that their child will be born, and the traditional metaphor for birth was swimming (Ausschwimmung in the archaic Germanic sources).

You can check out the comments to the original post, where I also explain the etymology of the word "Shhhh."

Socialized Medical Care for Veterans:

If private companies had mismanaged outpatient care for veterans the way the V.A. system has, there would be strong calls from all the usual quarters for a government takeover, and proclamations of how we can't trust "greedy" for-profit companies to take care of veterans. Funny how this thought process doesn't seem to work in reverse, except among "free market ideologues," who have been criticizing the V.A. for years.

Related Posts (on one page):

  1. "People Who Don't Believe in Government Do a Bad Job of Running It":
  2. Socialized Medical Care for Veterans:
[Sabrina Safrin (guest-blogging), March 5, 2007 at 6:56am] Trackbacks
Can Property Rights Beget Additional Property Rights?

Thank you Eugene for inviting me to guest blog about Chain Reaction: How Property Begets Property. There I argue that intellectual and other property rights can arise in reaction to each other. These reactive property rights may have little to do with the value of the resource in question or efficiency concerns.

The chain reaction evolution of property helps to explain the emergence of more restrictive intellectual and other property regimes. It does not, however, explain the transformation of all property regimes or serve as the exclusive explanation for the process through which all property rights evolve. The theory cautions that once property rights are created, they take on a life of their own and can have adverse consequences.

Over the next several days, my posts will explore examples of and reasons for reactive propertization. My final post will discuss some ramifications of the chain reaction evolution of property rights.

Let us consider one of the most perplexing phenomena of today’s patent activity – the so-called patent paradox. Patent activity has risen dramatically in the last two decades even though paradoxically the expected value of individual patents has diminished. Patent filings generally rose by about 40% between 1993 and 2003. In addition, patent intensity - the measure of patents obtained per research and development dollar - nearly doubled from the mid-1980’s to the late 1990s. Meanwhile, empirical research indicates the low average expected value of the overwhelming majority of patents. Studies set the average value of patents at considerably below their average acquisition costs. A paper by Mark Lemley estimates that only 1.5% of patents are litigated, of which courts deem almost half invalid, and only a small additional number are licensed for royalty (as opposed to cross-licensed). A 2005 study by Judge Kimberly Moore shows that most patentees view their patents to hold so little value that they let them lapse before their term rather than pay the periodic maintenance fees.

Why do so many seek patents despite their apparent low expected individual value?

Scholars have offered several excellent theories. Clarisa Long suggests that patents serve a signaling function. They provide information about the invention or firm to, for example, potential investors. Some argue that patents act as lottery tickets. Individuals and corporations obtain patents hoping that one will turn into a winning ticket. Because they do not know in advance which of their patents will ultimately prove the winner, they patent everything. Richard Levin and others have suggested that patents provide a means to measure employee performance. University consideration of the number of patents awarded to individual professors in promotion and tenure decisions exemplifies such use. Meanwhile, Gideon Parchomovsky and Polk Wagner advance a patent portfolio theory. They argue that patents of little individual worth become valuable when bundled together.

Each of these theories helps explain the patent paradox. I believe, however, that something else is going on too. Patent activity itself begets additional patent activity. If we apply insights from those who study group behavior to the patent paradox puzzle, we see that people and corporations may be seeking patents because others have done so.

Group behavior theorists John Miller and Scott Page recently tackled the standing ovation problem. They summarize the problem as follows: A theater performance ends. The audience begins to applaud tentatively. A few audience members stand. “Does a standing ovation ensue or does the enthusiasm fizzle?” Using computational models, They found that the system often converged on the wrong equilibrium. Most people stood even though most did not like the performance. They also discovered that greater pressure to conform led to less efficient aggregation of information. In addition, they found that people sitting in the front had a large impact as almost everyone patterned their behavior off them.

The 1990’s frenzy to obtain patent rights over genetic fragments illustrates this copycat behavior. In June of 1991, Dr. Craig Venter, on behalf of the National Institutes of Health (NIH), applied for patents on some 2,700 gene fragments of unknown function that he had sequenced using automated sequencing methods. NIH’s attempt to patent and hence control a large quantity of genetic material whose function it had not identified was unprecedented. Academics and industry groups immediately and harshly denounced NIH’s action, and uncertainty existed as to whether the PTO would even issue patents on such gene fragments.

Despite these criticisms, legal uncertainty and the enormous expense of preparing and filing patent applications, once word of NIH’s applications got out, the patent lemmings began their march. Applications covering hundreds of thousands of genetic fragments began to pour into the PTO – confronting the office with a 90-year backlog. As a leader in the scientific community, NIH served the societal function of a front row theater-goer standing to applaud. Other researchers and institutions followed its lead.

The increasingly widespread use of defensive patenting also evidences a chain reaction dynamic. Corporations and individuals obtain patents not because of the patents’ potential positive value, such as their ability to generate license revenue or to provide a manufacturer with a competitive edge, but rather for maintenance in a patent arsenal. If threatened with a lawsuit, the corporation threatens to counter-sue with one of its warehoused patents. The suits go away, and each corporation returns to business as usual.

In this defensive patenting environment, people patent because others in their field are doing so. Commentators consistently liken the situation to an arms race, the quintessential example of a wasteful tit-for-tat, rather than to an enterprise designed to promote innovation by capturing the actual or the potential value of technological advances.

Have others in the blogsphere come across examples of copycat or reactive propertization?

Sabrina Safrin Guest-Blogging on Intellectual Property Chain Reactions:

I'm delighted to say that Sabrina Safrin, who teaches patent law, international law, and contracts at Rutgers-Newark, will be joining us this week to discuss her new article, Chain Reaction: How Property Begets Property (forthcoming in the Notre Dame Law Review). Professor Safrin spent eight years as an attorney-adviser at the U.S. State Department Office of the Legal Adviser, where, among other things, she helped negotiate treaties and international instruments pertaining to biotechnology, biological diversity, and marine pollution.

I invited Professor Safrin because I read the Chain Reaction piece and liked it very much; here's the abstract:

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society's movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today's global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another.

The article offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and tangible goods from open access or commons property to exclusive ownership regimes. The chain reaction theory of the evolution of intellectual and other property rights has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes.


Sunday, March 4, 2007

Sunday Song Lyric: As it turns out, my unprofessional, uninformed Best Song Oscar prediction was wrong. Melissa Etheridge's "I Need to Wake Up" from Al Gore's An Inconvenient Truth beat out Randy Newman's "Our Town" from Cars. I prefer Melissa Etheridge's earlier work -- and I'm hardly an Al Gore fan -- but this is the one that won the Oscar, so here's a taste of the lyrics.
Have I been sleeping?
I’ve been so still
Afraid of crumbling
Have I been careless?
Dismissing all the distant rumblings
Take me where I am supposed to be
To comprehend the things that I can’t see

Cause I need to move
I need to wake up
I need to change
I need to shake up
I need to speak out
Something’s got to break up
I’ve been asleep
And I need to wake up
Etheridge performed the song live at the Academy Awards. Her website has more, including a discography.
Zalmay Khalilzad on Federalism and the New Iraqi Oil Law:

Zalmay Khalilzad, the US Ambassador to Iraq, presents an optimistic take on the new Iraqi draft oil law in this Washington Post op ed.

Here is his summary of the law's benefits:

· [The draft law] Reaffirms that oil and gas resources are owned by all the people of Iraq and contains a firm commitment to revenue-sharing among regions and provinces on the basis of population.

· Establishes a predictable framework and processes for federal-regional cooperation that demonstrate the government's commitment to democracy and federalism.

· Creates a principal policymaking body for energy -- the Federal Council on Oil and Gas -- that will have representatives from all of Iraq's regions and oil-producing provinces.

· Ensures that all revenue from oil sales will go into a single national account and that provinces will receive direct shares of revenue, thereby significantly increasing local control of financial resources.

· Establishes international standards for transparency and mandates public disclosure of contracts and associated revenue and payments. This is essential to build confidence in the new political order and to counter corruption.

As I explained in my post on the oil deal, I have several major reservations about it, and am therefore not as optimistic as Khalilzad is. Moreover, Khalilzad's official position probably precludes him from publicly expressing any reservations he might have. Nonetheless, I do agree that the law is an important step forward relative to the status quo.

What do you say to a beautiful mathematician?

"I wish I were your first derivative, so I could lie tangent to your curves."

More humor: e∧x (that is, the mathematical constant "e" raised to the power of "x") went to party. He stood around morosely in a corner. The host came up to him and said "why don't you mix in with the other guests? Maybe that would cheer you up." He replied, "It's no use. If I integrate, I'll still be the same."

Commenters are urged to supply more calculus humor.