Saturday, August 11, 2007

Should We Teach Law Students the Rule Against Perpetuities?

I am in the process of finalizing my Property syllabus for the coming semester. Some traditionalists may be shocked to learn that I am strongly considering dropping the rule against perpetuities from the curriculum. For nonlawyers, I should perhaps explain that the rule against perpetuities is the traditional common law rule that sought to prevent estates from remaining in limbo for long periods of time after the previous owner's death. If you want a more detailed explanation of the rule (and even if you do, I'm betting you'll wish you didn't!), see here.

In legal circles, the RAP is virtually a byword for abstruse complexity, and is traditionally one of the most hated parts of the law school curriculum. Forcing law students to learn it is almost a form of hazing, much like making them learn the Blue Book.

But that's not why I'm considering dropping it. I think it should probably be dumped from introductory property courses because virtually every state and most foreign common law jurisdictions have essentially abolished it - either by providing for the creation of "perpetual trusts" or by enacting statutes suspending its operation for 90 years after the death of the previous owner. The RAP takes a good deal of time to read about and explain, and causes endless frustration for both students and property professors. I suspect that that time and energy can be better spent on more productive activities - much like the time we spend learning and applying the Blue Book.

But am I perhaps missing something? If you are a property scholar or practitioner and you think that learning the RAP is still a good idea in this day and age, here is your chance to tell me why. It's certainly possible that I've overlooked some benefit of this time-honored rite of law school hazing.

However, let me suggest that it is NOT enough of a justification to tell me that students should learn the RAP because it is on the bar exam or because it is good mental exercise. Yes, it is on the bar exam; but students can still pass the bar even if they don't know it, and in any event I'm not running a bar prep course. As for mental exercise, it is better to exercise the mind while learning something useful at the same time than to do so while learning something basically useless.

Finally, I should note that I am only questioning the value of learning the RAP in an introductory Property class. There is a separate and stronger case for including it in specialized classes on estate law or legal history.

Related Posts (on one page):

  1. Should We Teach the Rule Against Perpetuities? Part II - My Decision:
  2. Should We Teach Law Students the Rule Against Perpetuities?
"Reported Drop in Surveillance Spurred a Law": Today's New York Times has this very interesting story about why the Democratic leadership in Congress recently agreed to amend FISA.
My Reason Article on Post-Kelo Eminent Domain Reform:

My article on Post-Kelo eminent domain reform from the August print issue of Reason magazine is now available online. Here's a brief excerpt:

In Kelo v. City of New London (2005), the U.S. Supreme Court allowed the government to condemn property and transfer it to other private owners in the name of "economic development." Upholding the forced transfer of land in New London, Connecticut, to private developers, the Court ruled that virtually any potential public benefit satisfies the Fifth Amendment's requirement that the authorities can take property only for a "public use." ...

The ruling generated more and broader opposition than any other Supreme Court decision of the last several decades. A 2005 survey . . . showed that 81 percent of Americans opposed Kelo, a backlash that cut across traditional partisan, ideological, and racial lines. Eighty-five percent of Republicans opposed Kelo, but so did 79 percent of Democrats and 83 percent of independents. The decision was likewise opposed by 82 percent of whites, 72 percent of blacks, and 80 percent of Hispanics....

Many observers expected the backlash to prompt legislation that would make judicial protection against economic development takings unnecessary.....

Although important progress in protecting property rights has been made in some states, such predictions turned out to be seriously overstated. The Kelo backlash has not been as effective as many expected. Too often, cosmetic changes have taken the place of real reform.

The Reason article draws on my far more detailed academic paper on post-Kelo reform.

Texas megachurch refuses to bury gay veteran:

In the ongoing culture war, this episode is eloquent:

ARLINGTON, Texas (AP) — A megachurch canceled a memorial service for a Navy veteran 24 hours before it was to start because the deceased was gay.

Officials at the nondenominational High Point Church knew that Cecil Howard Sinclair was gay when they offered to host his service, said his sister, Kathleen Wright. But after his obituary listed his life partner as one of his survivors, she said, it was called off.

"It's a slap in the face. It's like, 'Oh, we're sorry he died, but he's gay so we can't help you,'" she said Friday.

Wright said High Point offered to hold the service for Sinclair because their brother is a janitor there. Sinclair, who served in the first Gulf War, died Monday at age 46 from an infection after surgery to prepare him for a heart transplant.

The church's pastor, the Rev. Gary Simons, said no one knew Sinclair, who was not a church member, was gay until the day before the Thursday service, when staff members putting together his video tribute saw pictures of men "engaging in clear affection, kissing and embracing."

Simons said the church believes homosexuality is a sin, and it would have appeared to endorse that lifestyle if the service had been held there.

"We did decline to host the service - not based on hatred, not based on discrimination, but based on principle," Simons told The Associated Press. "Had we known it on the day they first spoke about it - yes, we would have declined then. It's not that we didn't love the family."

Simons said the decision had nothing to do with the obituary. He said the church offered to pay for another site for the service, made the video and provided food for more than 100 relatives and friends.

"Even though we could not condone that lifestyle, we went above and beyond for the family through many acts of love and kindness," Simons said.

Wright called the church's claim about the pictures "a bold-faced lie." She said she provided numerous family pictures of Sinclair, including some with his partner, but said none showed men kissing or hugging.

Read more about what happened from the man's partner here: "I fully understand the church’s right to deny us the use of their facilities. I also served in the military, (US Army, 1987-2002), and I have fought to defend their freedom of religion and freedom of choice. . . . I loved Cecil truly and deeply, and I am sorry that anyone considers a truly heartfelt, emotional, even spiritual connection to another human being to be sinful, simply because that love is between two people of the same sex."

Under the circumstances, the man is far more indulgent toward the church than I would have been. I understand, while I strongly disagree with, the mainstream Christian view that homosexual acts are immoral. But I doubt the church refuses to bury people it also thinks have sinned, like liars, blasphemers, and adulterers. Holding a service for a person is not an endorsement of anything they did in life; it is an act of compassion toward the grieving family and a mark of respect for the deceased as a person loved by God. If the church was worried about the content of the service it could have discussed this with the family, rather than simply canceling the funeral at the last minute.

I was raised in a Christian home and nothing the church did here resembles the values of respect for human dignity, and for the life of every single person, that I was taught. The most loving, understanding, and tolerant people I have known have been Christians. And they have been loving, understanding, and tolerant not despite their faith, but because of it. The shameful behavior of this church does not obscure that and I hope some of its 5,000 members come forward to disavow what their leadership did.

As its web address suggests, High Point is a "church unusual." If its actions here truly reflect its values, let's hope that's always true.

UPDATE: A few commenters speculate that the church in question might similarly refuse to hold a funeral service for liars, blasphemers, adulterers, and other sinners, if they refuse to repent their sins before dying. That's not a very plausible explanation for what happened here. I doubt High Point Church leaders would evenhandedly apply this hypothetical principle to all biblical sins. Note their claimed fear of appearing to "endorse" homosexuality ("that lifestyle") merely by holding a single funeral for a gay person. This is obsessive fear, not principle.

Moreover, church leaders did not inquire into the state of Cecil Howard Sinclair's soul before deciding to cancel his funeral. As they tell it, all they knew about him was that he was gay based on some pictures they saw of him "kissing" and "embracing" another man. They allowed their horror at this singular fact to overcome compassion for his family or respect for him as a whole person.

In fact, the more I think about it, the more I suspect the real objection to his service was not that he was gay or that he might be in some sense "unrepentant." The real fear was probably that somebody -- perhaps his partner -- would get up and speak postively about their love during the service. If that's right, given the late hour, church leaders had two humane and decent choices: allow the service to go forward as the family planned it and be more careful about such things in the future, or discuss the content of the funeral with the family to minimize any affirmation of homosexuality. On the facts as we know them, they did neither.

The Real Che Guevara:

Few people still admire Lenin and Stalin. Mao Zedong also has few remaining fans in the West (though he still hasn't gotten the negative recognition he deserves for being possibly history's greatest mass murderer). One communist icon, however, still has staying power: Che Guevara. Go to any college campus or hip hangout and you'll find no shortage of Che T-shirts, Che posters, and even Che cell phone messages. The truth, however, is that Che was no less a brutal killer than other communist leaders. If he failed to rise to the same "heights" as Lenin or Mao, it was largely for lack of opportunity.

Recent books by Humberto Fontova and Alvaro Vargas Llosa describe the real Che, and will hopefully cut down the number of his admirers. Among the lowlights, partly summarized by Fontova in this two part interview with CNS News (here and here), and by Vargas here:

1. Che was responsible for the execution of thousands of political prisoners in Cuba (most of them purely for their opposition to Castro's communist policies or for no reason at all).

2. Che enjoyed torturing and abusing the prisoners, including children.

3. Che was instrumental in setting up the Castro regime's massive forced labor camps and secret police apparatus.

4. Che tried to organize campaigns of terrorism against civilians in the US and elsewhere (though he largely failed in these efforts).

5. Far from being merely a Third World nationalist or pragmatic leftist, he was a committed, hard-line Stalinist, even going so far as to call himself "Stalin II" early in his career.

However, as Vargas Llosa points out in this New Republic article, Che was no uncritical admirer of the Soviet Union. To the contrary, he thought the Soviets had not taken communist totalitarianism far enough. In his travels through the Soviet bloc, Che was, by his own account, most impressed with North Korea - not coincidentally also the most oppressively totalitarian of all communist states at the time. Later, as Vargas notes, he criticized the Soviets for giving the private sector too much scope, and for their unwillingness to take even greater risks of touching off a nuclear war during the Cuban Missile Crisis.

In and of himself, Che Guevara was not that important. Cuban communism would probably have been comparably brutal even without him, and he failed miserably in his efforts to establish communist regimes elsewhere (eventually getting himself killed). However, Che's continuing popularity does matter as an indication of our failure to fully recognize the evil of communism and the magnitude of its atrocities. With some 100 million victims, communist regimes killed more people in the 20th century than all other forms of tyranny combined. Cuba's was not the worst communist regime, but its crimes were great nonetheless, if we take account of the country's small size. As Fontova points out, during the 1960s alone, the regime Che helped set up executed over 100,000 people, and incarcerated some 350,000 political prisoners out of a Cuban population that numbered only 6.3 million in 1960 (for more detailed figures, see the chapter on Cuba in the thorough Black Book of Communism). Undoubtedly, there would have been even more executions and political prisoners if not for the fact that so many Cubans were able to flee to the nearby United States.

It would be unthinkable, today, for hip college students to wear T-shirts praising a functionary from a right-wing authoritarian military regime, even though few if any such governments committed crimes on the same scale as Castro's. One small step towards putting the crimes of communism in proper perspective would be to finally consign Che to the ignominy he so richly deserves.

A Poster Child Case for the Contributory (or at least Comparative) Negligence Rule?:

Via Drudge: An individual allergic to cheese claims to have taken every step possible to ensure that his McDonald's quarter pounder didn't have cheese on it--except opening the bun and looking at the burger before biting into it.


Friday, August 10, 2007

Privacy Law and Ethics Questions:

Below is description of a current privacy controversy in Colorado. I invite the VC's readers to supply answers any of the legal and ethical questions.

Facts: Sugar House is a swingers' club, set to open in a Denver area neighborhood on August 25. One of the purposes of the club is to facilitate sexual encounters among members; presumably spouse-swapping is among the faciliated activities.

For purposes of this question, assume that Sugar House is in compliance with all zoning laws (although some people in the neighborhood do not think so). Likewise, assume that Sugar House is not violating any laws. (This assumption sets aside Colorado law by which adultery [sex by a married person someone other than the person's spouse] is defined as a crime, but there is no punishment for the crime.)

KHOW-AM radio host Dan Caplis has urged people in the neighborhood to attempt to drive out Sugar Hill by taking photos and videos of every person entering or leaving Sugar Hill. (The issue is discussed in the last hour of the August 10 show. You can listen via the "Radio Rewind" feature on the KHOW website, which requires free registration.) He argues that clubs such as Sugar House are bad for any neighborhood, because children might walk by, and because the club's purpose is promoting activities which are harmful to society. Caplis has said that he believes that what he is encouraging is legal, and has also said that if he is wrong, he will issue a correction.

Legal questions:

1. Under Colorado and federal law, is Caplis correct? What about the laws of other jurisdictions?

2. Does the answer depend on what the photographers do with with the captured images? If the images are just viewed at home by the person who took them? If the images are distributed for free (e.g., by photocopied flyers, or on a non-commercial website)? If the images are given to the media for publication? If the images are used by people in the neighborhood to identify the customers of Sugar House, and then the images are sent to persons who know the customer (e.g., employers, family)?

Ethical questions:

1. Hypothesizing that the above photo/video conduct is legal, is it ethical?

2. Would the ethical answer change depending on whether the establishment were some other entity which deeply offended several people in a neighborhood? Depending on the neighborhood, some people might be extremely offended by: a Communist bookstore, a white supremacist bookstore, a tavern, a strip club, an adult book or video store, a birth control clinic, an abortion clinic (presume that for the clinics, the photographers use telephoto lenses, so as to comply with bubble laws), a Wiccan religious center, or a gun store. In answering this question, presume that the establishment is fully compliant with all zoning and other laws.

3. If your answer is the photography/video would be ethical for at least one but not every establishment on the list, is there a rationale other than your personal hierarchy of what activities are most detestable? If a person with a different hierarchy of detestation wanted to photograph/film the customers of an establishment which you liked, could you offer any arguments, other than urging him to adopt your own hierachy of values?

UPDATE: Here is a link to a 1995 article by the Colorado law firm Fairfields & Woods. Although the article is mainly about employer surveillance of employees, it does offer some interesting ideas. In terms of statutory law, a video which captured conversations might violate Colorado's wiretap law, if the videographer were concealed from the people who were talking. The relevant torts (for Sugar House customers) might be "unreasonable disclosure of personal facts" and "unreasonable intrusion into the private affairs of another." A key question is whether the publicity or intrusion would be "highly offensive to a reasonable person."

My SCOTUS Crystal Ball is Telling Me that the Supreme Court will agree to hear Hepting v. ATT, the NSA state secrets case that will be argued before the Ninth Circuit next week. My crystal ball isn't telling me whether the case will be argued in the end of the OT2007 or the beginning of OT2008, but it is predicting a reversal of the Ninth Circuit. Of course, it doesn't hurt that my crystal ball just learned that next week's Ninth Circuit panel consists of Judges Pregerson, Hawkins, and McKeown. (I should also point out that my crystal ball is the basic model that is notoriously bad at factoring in the possibility of en banc review.)
Abigail Alliance, Fundamental Rights, and the Declaration of Independence: I haven't blogged about Abigail Alliance since the panel decision was handed down, but after David's post I thought I would add my two cents that the en banc decision was correct. As the lopsided 8-2 vote hints, this wasn't a close case: the doctrine of substantive due process just isn't as broad as the dissent wants it to be.

  To be clear, I prefer the dissent's conclusion as a matter of policy. If it were up to me, I would let the terminally ill take whatever experimental potentially life-saving drugs they can get. The idea that the government would deny the terminally ill the means to try to save their own lives in this way is abhorrent to me. But last I checked, my personal views of sound public policy didn't inform the meaning of the founding charter of the United States Government.

  In his post below, David suggests that the en banc D.C. Circuit was wrong because guaranteeing the "right to life" is specifically mentioned in the Declaration of Independence as a foundational purpose of government. If I understand David correctly, he would say that if the Declaration mentions a right specifically then measures related to it must be "deeply rooted in this Nation's history and tradition" and therefore "fundamental" under the Due Process clause. Describing the right more narrowly is merely "clever wordplay."

  But this approach seems quite problematic to me. First, the Declaration of Independence does not only mention the right to life; it mentions the right to "life, liberty, and the pursuit of happiness." It would be odd if the Constitution triggered strict scrutiny of any law that regulates "liberty" or "the pursuit of happiness." It would make me quite happy to steal my neighbor's Porsche and drive around DC at 90 mph; the fact that the laws of private property and local traffic regulations block my pursuit of happiness in this way shouldn't mean that they are subject to strict scrutiny. But if the test is whether the Declaration mentions the right, then I'm not sure how we avoid such a result.

  Second, while David dismisses the narrow description of the right as "clever wordplay," it seems to me that this "wordplay" is required by the same Supreme Court decision that requires the right to be "deeply rooted in this Nation's history and tradition" in the first place. Washington v. Glucksberg goes to significant lengths on the issue, emphasizing that "we have a tradition of carefully formulating the interest at stake in substantive due process cases" and requiring a "careful description" that is "precise." The D.C. Circuit was bound by that precedent, and as far as I can tell the en banc majority was faithful to its directions.

Related Posts (on one page):

  1. Abigail Alliance, Fundamental Rights, and the Declaration of Independence:
  2. Abigail Alliance and the Declaration of Independence:
Abigail Alliance and the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The right to life, then, is indeed a "fundamental" right, recognized as such at the nation's birth. Our founding document states that government exists to secure this right, and that any government that becomes destructive to this right is illegitimate. You can't get much more "fundamental" than that.

When you consider the issue of whether a terminally ill patient has the right to try an experimental lifesaving drug in light of the Declaration's statement of American political principles, the idea, put forth by the majority, that the issue should be whether this specific right is "deeply rooted in this Nation's history and tradition" strikes me as farfetched. Justice Scalia and his allies argue that the Declaration has nothing to say about Constitutional law, but if we are looking for evidence that a right is "deeply rooted" in America's history and tradition, I don't see how we can do better than look to the Declaration. I don't think that clever wordplay can transform the right to self-preservation, to life, into a narrower, historically anachronistic right (how could there be a deeply rooted right to use experimental drugs when life-saving drugs didn't exist until the 20th century?)

If the U.S. government decided to kill terminally ill people by lethal injection because they use up too many medical resources, would the D.C. Circuit hold that there is no right deeply rooted in America's history and tradition not be killed by a lethal combination of toxic drugs injected into the forearm?

UPDATE: A quick response to Orin's post, above, along with some of the commenters. First, what "life" means is pretty clear, at least in this context. No one sensible is going to deny that a terminally ill patient's life is potentially at stake when he is denied the right to use experimental drugs. What separates "liberty" from "license", much less what constitutes the legitimate "pursuit of happiness," (beyond, perhaps, some notion that the government must protect some minimum of property rights) is far more obscure, and the Declaration isn't much help there, in the absence of a strong consensus on what constitutes liberty and the pursuit of happiness.

Second, I didn't say that the Declaration mandates any particular constitutional result. What I did say is that I think it's absurd, when the right to try to preserves one's life is at issue, to define the right as narrowly as possible, indeed in an anachronistic way that makes it literally impossible for the right to be found to exist (another example: there is no historically rooted right to airplane travel, is there? But it would be absurd to define a right to use airplanes that narrowly, as opposed to the right to travel, the right to locomotion, etc.), and ignore the foundational principles of the republic.

Third, to say the right to life is "fundamental" doesn't mean that the government can't regulate it, it just has to show a sufficiently compelling interest to rebut a strong presumption against it. If, for example, the government was preventing the dying from being defrauded, as with laetrile, that would, it seems to me, clearly justify government regulation. (Such regulations would clearly be a function of the police power. The Federal Government isn't supposed to have a general police power, but that's an entirely separate can of worms.) But I'm arguing here that the right is fundamental, not that the government can never, ever, justify regulations that impinge on that right.

Fourth, the Declaration of Independence is actually right at the beginning of the U.S. Code, providing further evidence that it's always been considered part of our LEGAL heritage.

Finally, I'm not expressing any strong opinion as to whether the D.C. Circuit's opinion is consistent with Supreme Court precedent (though I see how my post could be read that way; my best guess is that it's consistent with, but not mandated by, Supreme Court precedent). Rather, I'm attacking the theoretical premise of the opinion, whether or not it's rooted in USSC precedent, that defining the right at issue as "the right to access experimental and unproven drugs in an attempt to save one's life" makes any sense as a matter of first principles, even if one accepts that premise that only rights firmly rooted in American tradition deserve the protection of the Due Process Clause.

One more update: I'm sympathetic to the argument that adopting my position would make the judiciary responsible for more than it's capable of doing, or at least doing well. If that was the court's argument, so be it. The Supreme Court argued in the 1930s that all legislation must be for the general welfare, but it would not police that provision because it was better left to the political branches. Legislation not for the general welfare is still unconstitutional, even if no one is enforcing it. Similarly, if the courts don't feel competent to enforce the right to life, it's still Congress's and the FDA's obligation to only make rules consistent with that right. Denying that the right exists, however, by defining the right at stake in an incoherently narrow and anachronistic manner, strikes me as a lawyerly dodge, a way of saying "we don't want to deal with the problems attendant to enforcing these rights, so instead of honestly acknowledging that, we're simply going to define them out of existence."

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  1. Abigail Alliance, Fundamental Rights, and the Declaration of Independence:
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Airport Searches:

The Ninth Circuit makes clear, in a 15-judge en banc decision, that airport searches are constitutionally justified as "special needs" searches because they are generally reasonable and aimed at more than just normal law enforcement, and not because of some (fictional) implied consent on the part of passengers. This has legal consequences:

We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.” Our case law, however, has erroneously suggested that the reasonableness of airport screening searches is dependent upon consent, either ongoing consent or irrevocable implied consent.

The constitutionality of an airport screening search, however, does not depend on consent, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks.

Thanks to How Appealing for the pointer.

Abigail Alliance and therapeutic cloning

What is most interesting about Rogers' dissent in Abigail Alliance (which in its essentials was the original panel's majority opinion) is that it would interpret a historical record showing a lack of regulation as evidence of a "tradition" supporting unrestricted liberty. (The dissent is correct that the historical record of regulation laid out by the majority shows only a tradition of prohibiting fraud, not a tradition of regulation to ensure efficacy and/or safety.) This move, if it had ultimately carried the day, would have provided support for finding a fundamental right of unimpeded access to new technologies, because there is no historical tradition of regulating these technologies.

I've thought about this argument in the context of attempts by Congressional conservatives to pass a law that would prohibit therapeutic cloning, the technique by which scientists seek to create an embryo with the genome of an adult cell and then harvest embryonic stem cells for research. No one has been able to make this process work in humans yet, but most scientists think it is possible and will be perfected sooner rather than later. The ultimate goal of therapeutic cloning is to one day be able to take a skin cell from a patient, create an embryonic stem cell line with the patient's genome, and then create individualized stem cell treatments that won't subject the patient to the problem of immune system rejection.

Would a Congressional prohibition of therapeutic cloning infringe a fundamental right? If we were to interpret a historical absence of regulation as equivalent to a history of affirmative support for an individual freedom, perhaps so: there is no tradition of the states or the federal government attempting to prevent anyone from seeking the health benefits of therapeutic cloning!

The Rogers' approach never had much of chance to survive review by either the en banc Circuit or the Supreme Court (although I am surprised that she and Ginsburg couldn't garner even one additional vote when the D.C. Circuit heard the case en banc). Here's an excerpt discussing the original panel decision from my forthcoming book, Stem Cell Century: Law and Policy for a Breakthrough Technology (which will be published by Yale University Press this fall):

As a practical matter, it seems unlikely that the U.S. Supreme Court would either uphold the D.C. Circuit [panel] ruling in Abigail Alliance or determine that the due process clause provides patients with a right to seek therapeutic cloning. The majority of justices currently serving on the U.S. Supreme Court have, in previous opinions, articulated a relatively narrow view of the substantive due process doctrine. Under this prevailing perspective, the only rights protected by the due process clause that are not explicitly enumerated in the Constitution are those specific rights that have been traditionally been recognized as such in Anglo-American law. In Washington v. Glucksberg, for example, the Court refused to recognize physician-assisted suicide as fundamental right under the due process clause, leaving legislatures to prohibit the practice if they see fit. The Court majority relied mainly on the observation that the practice of assisted suicide — and, indeed, suicide in general — enjoyed no historical tradition of support in the United States, or support in Great Britain prior to the American Revolution. More generally, the Court pronounced that substantive rights under the due process clause must be "deeply rooted in this Nation's history and tradition" and stated that constitutional rights cannot be "simply deduced from abstract concepts of personal autonomy."

The Abigail Alliance [panel] attempted to inoculate itself against the current Supreme Court's negative view of unenumerated rights by claiming that there is a "long-standing tradition in our Nation that would protect individual access to potentially life-saving medication." The factual support for this claim provided in the Abigail Alliance opinion is the lack of regulation of pharmaceuticals prior to the twentieth century, rather than any evidence of governmental recognition of an affirmative right. This approach turns the reasoning of Glucksberg on its head, shifting the burden of proof on the question of historical tradition from individuals claiming a right to government actors denying the existence of any such right, and it is not likely to be accepted by the Supreme Court's current majority.

For more on the policy and constitutional issues concerning therapeutic cloning, see my article Stem Cell Research and the Cloning Wars, 18 Stan. L. & Pol. Rev. 161 (2007), available on my SSRN page, or preorder the book on Amazon!

Looking for Cute Tarot Deck To Use for Calling Randomly on Students:

I'd like to pass a deck around to my Criminal Law students so they can write their names on each card, and so I can then call on them fairly randomly. Since the class is 80 students, I take it a Tarot deck plus one or two other cards will do the trick.

Can anyone recommend any Tarot decks I can order online that are either generally visually appealing, or, better yet, have a legal motif or a crime motif (though not too gory)? They would also need to have some white (or pale) space in which each student's name can be written. Thanks!

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Federal Reserve Intervenes a Third Time Today.--

For the third time today, the Federal Reserve has intervened to provide liquidity to banks at its discount window. After the second intervention, CNBC reported that the size of the Fed’s two interventions was larger than in any day since September 2001. The third intervention was a very small addition ($3 billion) to the other two ($35 billion).

What the Fed bought was mortgage-backed securities, the market for which has dried up. According to CNBC news reports, the Federal Reserve was forced to act because US banks have been reluctant to lend short-term money to each other. As banks refuse to cooperate in the usual way because of the spreading credit crunch, the possibility of major problems over the next few months accelerates.

UPDATE: On further investigation, it is unclear whether news reports of the Federal Reserve buying mortgage-backed securities are in error.

From reading the Fed's website, I think that the Fed may have merely accepted such securities as collateral for three-day loans.

2D UPDATE: Two of the expert talking heads on CNBC are now saying that the Fed did not buy mortgage-backed securities today. Rather, according to them, the Fed accepted the CDOs as collateral. The two experts then disputed whether the Fed had effectively provided a price for these securities that are not being publicly traded. It would appear from the Fed's margin requirements for collateral that an implicit minimum price would have been set by the Fed's acceptance of them.

If so, I would hope that banks, hedge funds, and public corporations would mark their investments to market as quickly as possible so that the capital markets can adjust to this latest estimate of value, even if it is flawed. As this credit crunch is playing out, almost every day for nearly a month, we hear of new problems surfacing in new places. As some VC commenters have noted, we don't want a long-term refusal to mark assets to market, as occurred when the Japanese real estate market collapsed in 1990.

Hedge Funds Are Beginning to Disclose Recent Losses.--

Among the many hedge funds disclosing recent losses is the main one run by Renaissance Technologies. Jim Simons, the spectacularly successful hedge fund manager of Renaissance, just reported that his main hedge fund has lost 8.7% so far in August. Nonetheless, in a letter to investors, he claims that "The culprit is not our Basic System" of investing (no online link yet). (According to Wikipedia, Simons’s personal compensation was $1.7 billion in 2006 and $1.5 billion in 2005.)

Hedge funds that severely restrict withdrawals may not be subject to severe challenges in the next few weeks, but others that don't routinely restrict substantial redemptions from investors may be selling parts of their portfolios — both to deleverage their investments and to raise cash to pay investors.

For the last few months, I have been developing and forward testing some statistical models to predict daily moves in the US stock market, ETFs, and some no-load, no-fee mutual funds. I noticed that in late July, my models ceased predicting moves in both the stock market and in commodities. I then completely redid the models, which have performed well in August, but they are much less consistently correct than they were in the May to mid-July period. Things have changed from the way they were from mid-2003 to mid-2007.

Abigail Alliance -- The Practitioners Respond:

Attorneys Jim Beck and Mark Hermann reply to the comment thread at this post critiquing their commentary on Abigail Alliance. They write in part:

We realize that no court has yet found a drug company to be a state actor in this context, but, until now, no one had created an environment in which scores of intelligent, motivated plaintiffs' counsel would be pursuing multiple theories to try to achieve that result. As our full post (not just the excerpt posted on Volokh) discussed, even without the constitutional right there's already been litigation -- so far unsuccessful, to be sure -- seeking to force drug companies to provide experimental drugs when they've decided to terminate clinical trials. This isn't some paranoid fantasy, as some of the Volokh commentators suggest.

If a court were to create a constitutional right for terminally ill patients to ingest experimental drugs, cases asserting that right will (quite properly) hold immense emotional appeal for the plaintiffs. Lawyers will line up left and right to take those cases, and judges will bend over backwards to find a remedy. We're litigators, that's something we know. . . .

We appreciate the constitutional subtleties involved in all of this, but, frankly, the companies put at the center of the fray -- those who invent and manufacture the drugs -- will spend years litigating their way out of this trap, if courts choose to create it. And even when they win, they lose, both in terms of $$$ spent on yet another way of keeping lawyers busy billing time, and in terms of bad publicity.

In my own defense, I would note that I acknowledged that suits of the sort Beck and Hermann (and their clients) fear have already been filed, and that drug companies' near-certain victory against such suits does not make them any less expensive to litigate. As I wrote: "I certainly understand why drug manufacturers would be wary of such suits — after all, even suits with little merit can be costly to defend against — I just don't think such suits would ever be successful."

No Sex Talk, Please, We're the University of Iowa:

From Iowa's sexual harassment policy, which covers student-student interactions and not just employment:

Sexual harassment occurs when somebody says or does something sexually related that you don’t want them to say or do, regardless of who it is. For example:

* Talking about their sexual experiences.
* Asking you to talk about yours.
* Telling sexual jokes, innuendoes, and stories, or comments (about your clothes or body, or someone else’s)....

Sexual Harassers

Sexual harassers can include (but aren’t limited to) professors, teaching assistants, research assistants, supervisors, co-workers, classmates, other students, acquaintances, friends, partners, dates, and strangers....

What makes someone a sexual harasser isn’t based on what they do for a living, their status as a high profile person, or where they hang out. What makes someone a sexual harasser is behavior, (including words and actions) that uses sex to be disrespectful, hurtful, embarrassing, humiliating, intimidating or frightening to you or another person....

It's not clear whether the last quoted sentence modifies the definition that I quote at the outset, but even if it does, consider how strikingly broad this rule is, both from its text and from the examples given:
Examples Red Flags / Harassing Behavior ...

* Somebody puts up sexually graphic posters, magazines, screensavers, web pages, and/or emails where you can see them....

So (as is usual) sexual harassment is not defined to include solely behavior targeted at the complainant. Nor is it limited to behavior in class or in university workplaces (where of course the professor and the supervisors may rightly constrain speech).

Rather, it deliberately covers any place and context in the university. If someone puts up a sexually themed cartoon on his dorm room door (either "sexually graphic" or presumably including "sexual joke[s]," from the first quote), that's a "red flag[] / harassing behavior." Likewise, when someone tells a sexual joke in a cafeteria to his friends at your table (even if the last sentence of the first quote is part of the definition, assume the sexual joke is disrespectful to its subject, say Britney Spears), and you hear it but you don't want to hear it, that's sexual harassment, and apparently a university disciplinary matter. Likewise if he talks about his sexual experiences in a way that's embarrassing to some other person, and you overhear (again, assume you're sitting at the table with the people he's talking to). And this at a university, where 18-to-21-year-olds live, socialize, and have sex with each other. Oy.

The Foundation for Individual Rights in Education (which passed along the pointer to the page) points out that there's also another, much narrower, definition elsewhere in Iowa's materials. But, as FIRE points out, "students at the University of Iowa are now forced to guess -- under threat of punishment -- which definition the university will choose to enforce." That's hardly proper in any circumstances, but especially when one of the definitions is so laughably broad.

Repeated Divide on Sixth in Richey:

Today a panel of the U.S. Court of Appeals for the Sixth Circuit divided on a habeas appeal (surprise!), in Richey v. Bradshaw. What is particularly interesting about this case is that this is not the first time this panel has divided over this this case. The panel first split over Kenneth Richey's habeas petition in 2005. The Supreme Court reversed and remanded in a per curiam opinion.

Today's opinion, on remand, nonetheless reaches the same result as the original opinion, and divides along the same lines. The opinion for the court, written by Judge Cole and joined by Judge Daughtrey, summarizes the case:

This case is on remand to us from the Supreme Court. On January 25, 2005, we reversed the judgment of the district court denying Kenneth Richey’s petition for a writ of habeas corpus, on the grounds that (1) Ohio law did not permit Richey to be convicted of aggravated felony murder on a transferred-intent theory, and (2) the state courts unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in holding that Richey had not been deprived of constitutionally effective representation. Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005). The Supreme Court vacated our judgment, holding that we erred in our interpretation of Ohio law on the transferred-intent issue. Further, the Court held that we had not properly examined whether the arguments and evidence that formed the basis for our ruling on Richey’s ineffective assistance-of-counsel claim were procedurally barred. Bradshaw v. Richey, 546 U.S. 74 (2005).

Consistent with the Supreme Court’s remand instructions, we now revisit Richey’s ineffective-assistance claim. For the reasons set forth below, we hold that Richey did not procedurally default this claim, that we properly considered it on the merits, and that the record supports our original conclusion granting Richey habeas relief because his trial attorney did not function as counsel guaranteed by the Sixth and Fourteenth Amendments.

Judge Siler wrote an opinion concurring in part and dissenting in part.

UPDATE: Sentencing Law & Policy discusses another divided Sixth Circuit opinion here.

Originalism vs. Judicial Restraint:

Jack Balkin responds to Matthew Franck's critique this morning here. (For a recap of what came before, see here.) In an effort to clarify their differences on constitutional interpretation, he notes that "judicial restraint" and "originalism" are not the same thing (though they may overlap).

Matt's originalism sounds very much like a theory of judicial restraint. Now I for one don't think that originalism and judicial restraint are the same thing. For one thing, judicial restraint is a theory of how judges should act, not a theory of how people in general should interpret the Constitution. Judges are not the only people with the right and the duty to interpret the Constitution. For another, judicial restraint might not be faithful to the Constitution in many cases, especially when the judge believes that the best reading of the Constitution is that certain activities of the other branches are beyond their powers or otherwise unconstitutional. However, in the brief discussion that Matt offers it seems he thinks that originalism and judicial restraint dovetail very significantly. I'd be interested in why that might be so. That would help us focus where we are in agreement and where we disagree.
I think this is an important point that is worth developing. To restate it: Originalism is a theory of constitutional interpretation; judicial restraint is a theory of how judges should act. Matthew Franck (like Judge Robert Bork) advocates both an originalist approach to constitutional interpretation and a very limited role for federal judges in correcting or second-guessing the other branches of government. [For an example of an alternative pairing — originalism and judicial "activism" — see the Roger Pilon op-ed I noted here.]

One justification for this approach is that the President and members of Congress are also oath-bound to support and uphold the Constitution, and both are ultimately accountable to the people if they should stray to far in their constitutional constructions. A possible rejoinder is that this crabbed view of the judicial function may be more limited than the original understanding of the judicial function at the time of the founding. One could argue, for example, that the Franck-Bork approach to judicial review is more limited than that elucidated in The Federalist and Marbury. One question for originalists, then, is what conception of the judicial role is itself compelled by the original meaning of the "judicial power."

Roger Pilon on Abigail Alliance:

The Cato Institute's Roger Pilon takes to the WSJ editorial page to lambaste the D.C. Circuit's Abigail Alliance decision.

Judge Thomas Griffith, who had dissented in the earlier opinion but wrote now for the majority, recast the right at issue as "the right to access experimental and unproven drugs in an attempt to save one's life." Through such "tragic wordplay," as the dissent put it, the right ceases to be "fundamental," under Supreme Court precedents, because it is "not deeply rooted in the Nation's history and traditions."

So described, the right is not "deeply rooted," of course, because the very idea of "experimental and unproven drugs" implies a regulatory regime like the FDA, and that is a recent development. Yet as the dissent detailed, for most of our history individuals were free to take whatever drugs they wanted without a doctor's prescription. It was only in 1951 that Congress created a category of prescription drugs. Then in 1962 it began requiring drug companies to conduct extensive tests to ensure drug "efficacy," which led to long delays for drug approval and to the deaths of countless patients who would gladly have borne the unknown risks for a chance at life.

As a legal matter, what Judge Griffith achieved with his linguistic legerdemain was a shift in the burden of proof: No longer would the government need to justify its restrictions; the dying would have to try to overcome those restrictions. But that would be impossible because now the court would no longer strictly scrutinize the government's rationale. Rather, it would apply a "rational basis" test under which the government would win as long as it had any reason for restricting access. Deference so complete, the dissent noted, amounts to nothing less than "judicial abdication."

Plainly, the issues here go well beyond this case, which is doubtless why the court decided to rehear it en banc. And they go beyond liberal and conservative as well, as the mixed seven who joined Judge Griffith's opinion should indicate. What we have here, arguably, is a revolt of sorts by Judge Rogers and Chief Judge Ginsburg against what passes today for "constitutional law." Reducing that revolt to a simple question: Under a Constitution that expressly protects the right to life, how did we get to where government can effectively restrict the right, and the courts will do nothing?

. . . liberal jurists could rule against Abigail Alliance to ensure the dominance of the regulatory regime. Conservative jurists, viewing that regime as "settled law," could do likewise to avoid even the appearance of judicial activism. The approach of liberals is understandable: Long ago they abandoned the written for the "living" Constitution, which enables ad hoc adjudication, the rule of law notwithstanding. The approach of conservative "originalists," however, is less easily explained, since they purport to take the Constitution seriously.

For those without a WSJ Online subscription, Pilon's op-ed is also available on the Cato website here.

"Impeach Bush" Sign Update:

The Cleveland Plain Dealer reports:

Kevin Egler, who was ticketed after posting an "Impeach Bush" sign in a garden near a Kent intersection last month, will not face a charge of unlawfully advertising in a public place.

City Law Director James Silver asked a municipal judge on Thursday to dismiss the case, which some viewed as a free-speech issue. However, Silver said he may file a littering charge against Egler.

Related Posts (on one page):

  1. "Impeach Bush" Sign Update:
  2. "Impeach Bush" Sign Draws Ticket:
Wind Energy for Thee, But Not for Me:

Wind power is an important source of renewable energy, but in some cases it poses unacceptable risks to local communities (or wilderness) and must be stopped. Jason Jones reports here.

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  1. Conservation for Thee, But Not for Me:
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White House Official Answers Questions About New FISA Legislation: Earlier today I spoke one-on-one for about 15 minutes with a senior White House official who participated in today's conference call, and who agreed to speak on the record about the questions I posed in my earlier post but didn't get to ask during the conference call. Here are the questions, along with the White House official's answers as paraphrased by me (or exactly as stated by the official when quotations are used).

  Here was my first question:
What is the meaning of "surveillance directed at" a person? If you're watching suspect A in Pakistan, and he starts speaking with known suspect B in the United States, is the surveillance "directed at" only A or is it now directed at both A and B?
  According to the official, this language is designed to codify the traditional intelligence community notion of having a surveillance "target." When the government has a "target," it tries to monitor all of that person's calls to which it is legally entitled. So in the case of watching suspect A in Pakistan who starts talking with known suspect B in the United States, the surveillance would still be directed only at A so long as the surveillance was designed to capture A's communications.

  I then asked the official what I think of as the Marty Lederman question: Doesn't this let the government watch people in the U.S. who just so happen to be communicating with foreigners? That is, doesn't it let the government use the "directed at" language to keep tabs on people in the U.S. so long as they are talking to people abroad?

  The official's answer was that this wasn't a realistic scenario in light of how intelligence investigations actually work. Under the legislation, the government's protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h). See the new 1805A(5). The traditional minimization rules require the government to screen out and not use contents of collected communications that do not contain "foreign intelligence information" as defined in 50 U.S.C. 1801(e). This sets up two possibilities when the government is targeting someone abroad and that person is communicating with someone in the United States. Either the contents of those communications contain "foreign intelligence information" — that is, information about terrorist attacks or terrorist groups — or they don't.

  These two possibilities explain why the hypothetical of the government monitoring the foreign communications of people inside the U.S. without a warrant isn't realistic. If the calls to the person in the U.S. don't involve foreign intelligence information, the government has to screen out that information and it can't be used in any way. If the call does involve foreign intelligence information, then the government will likely have probable cause at that point to get a FISA order on the person in the United States. And it would be silly of them not to get a FISA order at that point: If a person in the United States is really a target and they now have probable cause, it would make no sense to just get by with the scraps of information the government has from monitoring a different person abroad rather than get the full picture of information it can collect by obtaining a FISA order targeting the particular person in the United States.

  Finally, the official stated that it's actually very rare for a person who the government is monitoring abroad to have communications with a person in the United States. It's just not common for an intelligence target to have communications with people in the U.S.; communications from abroad to abroad are the norm.

  Here was my second question:
Under the new statute, providers that are required to comply with this program can challenge its legality in court. The legislation states that the legal documents in the case must be filed under seal. In your view, does the new FISA legislation prohibit a provider from disclosing the mere existence of the court challenge and/or the legal basis for the challenge? That is, will we as members of the public even know about the challenges or what legal issues are being raised?
  The official noted that there are actually two types of judicial review authorized by the statute. First, the FISA court has to approve or disapprove the DNI/AG certification under the "clearly erroneous" standard. See the new 50 U.S.C. 1805C. Second, the FISA court has jurisdiction to hear challenges by providers as to the legality of the program and their involvement in it. See the new 50 U.S.C. 1805A(h)(1)(A).

  According to the official, challenges by providers under 50 U.S.C. 1805A(h)(1)(A) would remain under seal both as to the fact of the challenge and the legal arguments asserted. That has been the practice under FISA, and it would remain the practice going forward. The official indicated that there was likely a somewhat different answer for judicial review under 50 U.S.C. 1805C. The official stated that this was new territory for everyone and the statute didn't address the question, but that his "sense" was that the fact of judicial review proceedings before the FISA court (and if necessary, the court of review and Supreme Court) would be public "in some way." The official didn't seem sure as to exactly how the existence of the proceedings would become public, or how much would be able to be disclosed, but he seemed to agree that the fact of the legal proceedings themselves would not be a secret.

  Anyway, those were my questions, and the official's answers (as paraphrased by me as accurately as I could from my notes and memory). Many thanks to the folks at the White House for their willingness to speak about these issues. Whether you think the legislation is a good idea or a bad one, I think it helps everyone to get a better sense of how the new law is likely to be implemented.

Related Posts (on one page):

  1. White House Official Answers Questions About New FISA Legislation:
  2. Conference Call on the New FISA Legislation:

Thursday, August 9, 2007

Is Illegal Gun Possession a "Violent Felony"?

Aubrey Shante Amos pled guilty to being a felon in possession of a firearm. At sentencing, the prosecutor sought an enhanced sentence for his three prior convictions of predicate offenses under he Armed Career Criminal Act (ACCA). Two of Amos' prior convictions clearly qualified as either a "violent felony" or serious drug offense, but the defense disputed the third: a conviction for possession of a sawed-off shotgun. Contrary to the government's claim, the defense argued, mere possession of a weapon cannot constitute a violent felony. The district court agreed, and the government appealed.

Today, in United States v. Amos, the U.S. Court of Appeals for the Sixth Circuit held, 2-1, in Amos' favor. The opinion for the court, written by Judge Martin, concluded that possession of a sawed-off shotgun, without more, does not satisfy the definition of a violent felony as defined in the ACCA:

the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, . . . that-- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another;
As Judge Martin reasoned,
Because possession of a sawed-off shotgun is not one of the specifically named offenses (burglary, arson, or extortion), and does not involve the use of explosives or the threat of physical force against another person, it would only qualify as a predicate offense if it is deemed to be “conduct that presents a serious potential risk of physical injury to another.”
In this case, Amos was not convicted of anything other than simple possession of the weapon, which does not itself pose a serious potential risk to others.
there is no showing that Amos did anything with the sawed-off shotgun beyond merely possessing it, and the analysis of this crime as a violent felony question focuses only on the language of the statute and the fact that he violated it. Further, as Amos points out, the Court “must consider the least objectionable conduct that would violate this statute.” United States v. Maness, 23 F.3d 1006, 1008 (6th Cir. 1994). Consequently, to qualify as a violent felony, the possession of the gun would have to pose a serious potential risk to others even if Amos kept it as a collector’s item or family heirloom, stored it in his attic, or used it to fend off groundhogs from his garden.
Judge Batchelder wrote a separate concurring opinion, in which she endorsed "the majority's judgment and reasoning."

Judge McKeague dissented, arguing that possession of a sawed-off shotgun is "inherently dangerous conduct." According to McKeague,

It should go without saying that unlawfully possessing one of these “gangster-type” “weapons of war” creates a serious potential risk of physical injury. In comparison to a regular shotgun, a sawed-off shotgun is generally less, not more, accurate and has a lower range—both of which are presumably considered drawbacks by most gun enthusiasts. However, what it lacks in accuracy and range, it more than makes up for in concealment and maneuverability. With its shorter barrel, a sawed-off shotgun can be concealed under a large shirt or coat. It is the combination of low, somewhat indiscriminate accuracy, large destructive power, and the ability to conceal that makes a sawed-off shotgun useful for only violence against another person, rather than, for example, against sport game.

The potential risk for physical injury is magnified when a person unlawfully possesses a sawed-off shotgun or another one of these weapons. By doing so, that person has evinced an obvious disregard for federal and, in some cases, state law (here, Tennessee)—never a good sign when that disregard is manifested by the act of possessing a “gangster-type weapon.”

Judge Martin responded arguing that if Congress agreed with this view, it would have completely banned sawed-off shotguns or explicitly defined illegal possession as a violent felony Instead, possession is only a federal crime if the weapon is unregistered, and possession is not among those crimes specifically listed as violent felonies in the ACCA. That seems like the correct argument to me.

The Sixth Circuit's conclusion in Amos is at odds or in tension with the opinions of several other circuits, some of which concluded that illegal gun possession is a "violent felony" under the ACCA, others of which concluded that such possession is a "crime of violence" for purposes of federal law. This would seem to make Amos a reasonable candidate for certiorari.

Hedge Funds in Trouble.—

According to the Wall Street Journal, two Goldman Sachs hedge funds are having trouble. The first of these revelations on Thursday seemed to trigger an acceleration of the market slide that began in Europe.

Apparently, the computer models that had proved so successful over the last few years caused large trading losses in the last three weeks.

Unfortunately, WSJ’s stories are not open to non-subscribers.

Blind to Trend, 'Quant' Funds Pay Heavy Price

Computers don't always work.

That was the lesson so far this month for many so-called quant hedge funds, whose trading is dictated by complex computer programs.

The markets' volatility of the past few weeks has taken a toll on many widely known funds for sophisticated investors, notably a once-highflying hedge fund at Wall Street's Goldman Sachs Group Inc.

Global Alpha, Goldman's widely known internal hedge fund, is now down about 16% for the year after a choppy July, when its performance fell about 8%, according to people briefed on the matter.

Second Goldman Hedge Fund Moves to Sell Some Positions

A second Goldman Sachs Group Inc. hedge fund has hit a rocky patch and has sold down some of its positions, according to a person familiar with the matter.

Goldman's North American Equity Opportunities hedge fund had $767 million under management earlier this year. The Fund was down over 15% this year, through July 27, according to investors and was down more than 11% in July alone. It is not known how much the fund has sold in recent days.

Just before the close yesterday (Wednesday), Goldman Sachs denied rumors that it was about to announce problems with one or more quantitative hedge funds. The Dow, which had tanked about a hundred points in a few minutes on the rumor, rebounded about a hundred points on the denial issued about 10 minutes before Wednesday's close.

What Credit Crunch?--

Today the New York Stock Exchange had its biggest volume day ever, trading 2.8 billion shares.

As the US Stock market neared the end of another big down day (down 2.8%, 387 points on the Dow), here are some of the headlines on the stories at Yahoo Finance:

Dow Plunges [Over] 300 on Mortgage Concerns

Wall Street fell sharply again Thursday after a French bank said it was freezing three funds that invested in U.S. subprime mortgages because it was unable to properly value their assets. . . .

A move by the European Central Bank to provide more cash to money markets intensified Wall Street's angst. Although the bank's loan of more than $130 billion in overnight funds to banks at a low rate of 4 percent was intended to calm investors, Wall Street saw it as confirmation of the credit markets' problems. It was the ECB's biggest injection ever [according to CNBC reporters, twice as big as after 9/11].

The Federal Reserve added a larger-than-normal $24 billion in temporary reserves to the U.S. banking system.

The ECB's injection of money into the system is an unprecedented move, said Joseph V. Battipaglia, chief investment officer at Ryan Beck & Co., adding that it shows that problems in subprime lending are, in fact, spilling into the general economy.

"This is a mini-panic," he said. "All the things that had been denied up until this point are unraveling. On top of this, retail sales were mediocre, which shows that indeed, the housing collapse is affecting the consumer."

Expressing a different view a few days ago, Ben Stein argued against any significant spread in the “subprime mess.” I found most of his arguments unpersuasive (including his assertion that US subprime woes had “no connection” to other developed or developing stock markets).

But Stein made one excellent point:

Ben Stein: "How Not to Ruin Your Life"

What about the supposed drying up of loans for mergers and acquisitions by private equity firms? Well, here's a good, simple test of just how valid that explanation is for stock market moves: The majority of private equity takeovers are financed with junk debt.

If there really were a major shortage of funds for these deals, the interest rate on the junk would skyrocket. Instead, while the rate has risen by about 150 basis points in the past month, the spread between junk and investment grade is now about 290 basis points, according to leading junk analyst Martin Fridson.

This is a lot lower than the year-end average of the spread from 2002 to 2006, and far below the almost 800 basis point spread during a true interest-rate crunch like the one after the tech meltdown in 2000-2002.

So that's phony, too. Interest rates have risen, but not anything like what they've done in real crises.

Conference Call on the New FISA Legislation: I just finished listening to a conference call with a senior White House official on the new FISA legislation. Although I always appreciate when government officials make themselves available like this, the call was very general and didn't get far past talking points. There were two questions taken from the audience, both softballs, but for some reason my efforts to get into the queue to ask my questions didn't work (probably my error, or maybe the software's; I don't know). In any event, here were the two questions I wanted to ask:
(1) What is the meaning of "surveillance directed at" a person? If you're watching suspect A in Pakistan, and he starts speaking with known suspect B in the United States, is the surveillance "directed at" only A or is it now directed at both A and B?

(2) Under the new statute, providers that are required to comply with this program can challenge its legality in court. The legislation states that the legal documents in the case must be filed under seal. In your view, does the new FISA legislation prohibit a provider from disclosing the mere existence of the court challenge and/or the legal basis for the challenge? That is, will we as members of the public even know about the challenges or what legal issues are being raised?
  The call did bring up an interesting aspect of the legislation that I hadn't thought about before. If I understood the White House official correctly, the monitoring program is in effect now (perhaps by virtue of Section 6(b)? I'm not sure). Plus, under Sec. 6(d), it will remain in effect pending appeal even if the FISA court strikes down the program as "clearly erroneous," the FISA Court of Review agrees with the FISA court, and the case ultimately goes up to the Supreme Court. If you figure the time it would likely take for a certification to be made and the legality to be addressed all the way up to the Supreme Court, this pretty much means that no matter what the courts think the monitoring will go on until close to the end of the Bush Administration.

Related Posts (on one page):

  1. White House Official Answers Questions About New FISA Legislation:
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A Practitioner's Perspective on Abigail Alliance:

Private attorneys Mark Hermann and Jim Beck have an extensive post at the Drug and Device Law blog discussing some of the practical implications of the Abigail Alliance litigation. Among other things, their post helps explain why drug manufacturers did not support the Alliance's claims. Here's a taste of their comments:

The recognition of a constitutional right of access to entirely unapproved drugs would create a Catch-22 legal environment where, on the one hand a company definitely should provide warnings – if only to protect itself from liability – but the law absolutely forbids giving them.

Plainly, in addressing the claim of a broad, vague new constitutional right, neither side in Abigail Alliance gave much thought to the practicalities of the situation. In order to satisfy that right, would the manufacturer of an experimental drug be forever locked into providing it, even after it had decided not to proceed with commercialization? FDA good manufacturing practices are pretty strict. Unless manufacturing is turned over to some fly-by-night foreign operation (which nobody advocates), to keep a production process going for a minuscule population claiming constitutional entitlement is not a cheap proposition. So from a purely monetary standpoint, we’re pleased that no new constitutional right is going to interfere with our clients’ ability to allocate their limited resources available for research in favor of those drugs in the pipeline that appear to have the most promise.

Isn’t that putting the crass commercial interests of drug companies ahead of the needs of desperately ill people? Well, if it is, then we’re in good company – eight of ten DC circuit court judges agree with us. Not bad for a couple of tort lawyers whose only real familiarity with constitutional law is limited to preemption and the First Amendment.

Further, we don’t think so, for two reasons: (1) forcing an uneconomic reallocation of research dollars will ultimately result in fewer FDA approvable “safe and effective” drugs being discovered, something that would wind up hurting many more people than a few unapproved drugs could possibly help; and (2) creating an uncertain, litigation-charged environment around experimental drugs that might cure fatal diseases would have any number of unintended consequences – from making enrollment in clinical trials more difficult, to driving the conduct of such trials out of the country altogether.

Nor does it hurt that we’re defense lawyers, and this kind of pejorative rhetoric is something we’ve had thrown at us in practically every case we have to defend.

All of this is why, in the end, we think that notwithstanding some questionable reasoning, the court got it right. These plaintiffs, like so many others, have fallen prey to judicial triumphalism – the notion that litigation and court decisions are the best way to solve any and all societal problems. The solution isn’t for courts to create another undefined constitutional right enforceable through amorphous litigation. Rather, Congress should legislate, and the FDA should regulate to create an environment in which experimental drugs can be available for terminally ill patients under rational and economically sensible criteria, and in which drug companies can provide such drugs without the risk of being sued or being subject to administrative sanction.

Hermann and Beck also suggest that a recognition of a constitutional right to experimental drugs would lead to lawsuits against drug manufacturers from terminally ill patients demanding access to experimental drugs. While I have no doubt such cases would be filed — and they cite examples of such cases that have already been brought — I also have little doubt that drug manufacturers would prevail in such suits. Drug companies are not state actors. Legal recognition of a constitutional right that limits the government's ability to deny access to certain drugs does not create any affirmative obligations on drug manufacturers. I certainly understand why drug manufacturers would be wary of such suits — after all, even suits with little merit can be costly to defend against — I just don't think such suits would ever be successful.

UPDATE: I mistakenly attributed the post at Drug and Device Law blog to only one of the blog's two contributors, when it should have been attributed to both of them. I've corrected the error.

Sexual Assault Problem:

Here's a problem I plan on posing, in one form or another, in my Criminal Law class. My pedagogical goal is to have students (1) reflect on some of the general policy debates in rape and sexual assault law, (2) think about how the law on the books translates into law (and behavior) in reality, (3) think about what unexpected and possibly unintended consequences laws could have, and (4) think about how hard it can be to draft laws that focus just on the intended targets. I'm not trying to get students to The Right Answer, but to lead them to think more about the subject. In any case, I thought I'd pose the problem here, both since I thought some readers would find it interesting, and as beta testing.

California Penal Code § 243.4 provides:

(e)(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.

(2) As used in this subdivision, "touches" means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim....

[(g)](1) "Intimate part" means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.

(Assume that the law applies whenever the defendant was reckless about whether the touching was "against the will of the person touched," which is to say he "consciously disregards a substantial and unjustifiable risk that the material element [the act's being against the will of the person touched] exists.")

Alan and Betty are on their third date. On the first two dates, they briefly kissed. On the third date, they come back to Betty's apartment, and sit for a while on the couch, consensually kissing. Alan, thinking that Betty might be interested in something more than kissing, starts caressing her breast. She pushes his hand away. He feels embarrassed, the mood is broken, and he leaves.

(1) Has Alan commited a crime?

(2) Do you think he deserves criminal punishment?

(3) If you think Alan has committed a crime, what should he have done to avoid it? Do you think it's good for the law to require this?

(4) Do you think the law needs to be changed, and, if so, how?

(5) How does the law in practice deal with this situation? What do you think about that?

As you might gather, I would especially like to hear women readers' answers. I'd also like to hear men readers' answers, but in my experience that's easy enough to get on the blog, so that's why I'm particularly asking women to chime in.

"Impeach Bush" Sign Draws Ticket:

The Cleveland Plain Dealer reports on an interesting First Amendment case:

A soft-spoken teacher posted the words "Impeach Bush" in a public garden, and Kent police cast him as an outlaw. . . .

Police ticketed Egler for unlawfully advertising in a public place because he put up a free-standing sign near the intersection of Haymarket Parkway and Willow and Main streets.

Egler said the officer who cited him July 25 asked: "Why don't you put the signs in your own yard?" Egler said his response was that he's a taxpayer and views the public space very much as his yard. . . .

Egler and about a dozen friends and associates have placed hundreds of anti-war messages around Ohio and neighboring states over the past 10 months. He said the effort is fueled by the notion that President Bush's military response after the 9/11 terrorist attacks was both illegal and immoral.

The ticket in Kent represents the first serious legal challenge to the campaign, Egler said. (He said he was ticketed for littering in Columbus after a sign he placed on a bridge blew over.)

Egler said that when he was stopped in Kent, he asked the police officer how his sign differed from Realtors posting signs on public property saying "This way to the house for sale." He said the officer asked, "You don't know the difference?" but never explained what it might be.

Columbus attorney Bob Fitrakis, Egler's lawyer, said there is a difference: The real estate sign is commercial speech, and Egler's sign is political. Commercial messages do not have anywhere near the legal protections that political speech does, he said. . . .

He said this is the first Ohio case of its kind that he has heard of, because most prosecutions for political signs occur when someone defaces a building with paint or graffiti, but not a free-standing, easily removable sign. Until now.

I don't think there's much question that the government can prohibit placing signs on public property. One of the interesting aspects of this case, however, is the claim that political campaigns and realtors are rarely ticketed for placing free-standing signs that are easily removed, suggesting that the police here engaged in viewpoint discrimination in enforcing the local law.

Related Posts (on one page):

  1. "Impeach Bush" Sign Update:
  2. "Impeach Bush" Sign Draws Ticket:
Justice Alito Event (Pepperdine, Tuesday) on C-Span:

It's here, and it looks fascinating. Some highlights:

Alito flatly stated that it was not the Court’s purpose to take fewer cases and he did not think the quality of petitions filed accounted for the decline. Like others, the Justice speculated that there is simply less division among lower courts and less congressional activity giving rise to the need for interpretative effort. Justice Alito opined that there is no “right” amount of cases, other than the Court fulfilling its duty under Rule 10 to take cases of great importance and to resolve genuine circuit splits. In response to questions from Professor Kmiec, Alito noted that some lawyers do manufacture “conflicts” that on a close reading of cases do not exist.

Carter Phillips of Sidley Austin was the primary discussant with Alito ....

Alito posited that oral argument for him is a straightforward request for assistance from counsel with respect to weak aspects of a case. He revealed that Justices do not by and large identify for each other these weaknesses in advance. Nor, he said, is oral argument a conversation among Justices through the advocate. That would be a most inefficient method of conveying ideas to one’s colleagues, said Alito. Phillips observed that at least with some Justices, the advocate is used as a communications device. Phillips speculated, and Alito did not disagree, that in upwards of 80% of the cases, one can deduce the outcome from the questioning.

As for internal deliberations, Justice Alito thought the process was reasonably aimed to accomplish its opinion writing tasks, though he conceded that on occasion, the views of the Justices change after conference as the opinion is written out. While acknowledging that outlining can be helpful in a complex case, he did not see its need as a general matter.

In terms of collegiality, Justice Alito saw the Court as healthy. Contrary to academic literature, he doubted that collegiality affected outcomes in any serious manner. The law determines outcomes, he said, not judicial friendships....

All four [participants] -- Alito, Phillips, Starr, and Kmiec – were in the Reagan administration while Bill Smith was AG, and the careers of Alito, Phillips and Kmiec in particular have often intersected: Kmiec and Phillips are longtime friends from practice and clerking in Chicago and Washington DC; Phillips and Alito were hired together for the Solicitor General’s office; and Kmiec and Alito served together in the Office of Legal Counsel....

Franck v. Balkin on Originalism:

Over on NRO's Bench Memos, my co-blogger Matthew Franck, was quite dismissive of the idea that an originalist appraoch to constitutional interpretation was compatible with certain legal outcomes important to contemporary liberals and progressives, such as a constitutional right to abortion. Specifically, he wrote:

Perhaps I am being cynical, but this article (h/t Joe Knippenberg at NLT) in The New Republic by Douglas T. Kendall and James E. Ryan strikes me as a real hoot. Or maybe I am responding to the refreshingly candid cynicism of the authors, who think that Democrats can win the arguments over the Constitution—and elections, to the extent they turn on such arguments—by faking being originalists.

I don't know what other conclusion to draw from an article that uses, as its prominent example of progressive originalism, the recent "conversion" of Yale law professor Jack Balkin to "fidelity to the original meaning of the Constitution," proclaimed in the course of his arguing that the text and history of the Fourteenth Amendment support . . . the right to abortion.

The editors of TNR seem to have gotten the joke. They title the piece "Origin Myth." Who was it who said that sincerity is so important a political quality that politicians must learn to fake it?

Jack Balkin didn't get the joke.

Hey Matt, what's so funny? There's no fakery here. No insincerity either. Original meaning originalism just doesn't have the consequences you think it does.

There's now a bunch of folks who have studied the issues for some time . . . We've been thinking about constitutional text structure and history a lot. We're trying to be faithful to the Constitution. And guess what? We just disagree with you on reasoned grounds. . . .

Here's the point: we're not just making things up, any more than you are. (You wouldn't be twisting your readings of the Constitution to suit your politics, now would you? No, of course you wouldn't. That would be insincere.)

We just think you don't have a monopoly on constitutional fidelity.

Franck responds here (with a correction here), writing in part:

Readers can plow through the 70 pages of [Balkin's] "Abortion and Original Meaning" for themselves. My own view is that there is an astonishing results orientation to his arguments in this piece—an intensity of focus on an evidently desired outcome that is the antithesis of originalism, or indeed of constitutional jurisprudence properly understood (but I repeat myself). I do not question the "sincerity" of Balkin's claim to be an originalist. But the price of his professed commitment to originalism is a redefinition of the term that would make Humpty Dumpty proud.

Here is a statement central to Balkin's theoretical position: "The choice between original meaning and living constitutionalism . . . is a false choice." Many pages of the paper are devoted to collapsing the distinction between them—to showing that "fidelity to original meaning and belief in a living Constitution are not at odds." Balkin contrasts his approach, which he terms "original meaning," with the flawed originalism of Justice Scalia—and evidently nearly everyone else who normally claims the label—which Balkin calls "original expected application." (This is something of a straw man; a sounder form not so vulnerable to Balkin's argument might be called "originally foreseeable application." The framers did not "expect" railroads, but would have foreseen the application of the federal commerce power to them had they learned of them.) The framers of various constitutional principles, you see, had their own understanding of what the text means, but to the extent that their understanding conflicts with ours, we are free to reject their view and act on our own, saying "they expected it to apply in fashion A but we prefer fashion B." So far this is standard living Constitution stuff, straight out of the William Brennan playbook. Balkin's move—and in chess it would be akin to moving a rook diagonally—is to assert that when we substitute our view for the framers', we are nonetheless displaying "fidelity to original meaning," so long as some principle stated at a sufficiently high level of abstraction can be connected by even a single frayed thread to something the framers seem to have believed.

I do not question the sincerity of either party in this exchange. I am, however, quite wary of any theory of constitutional interpretation, originalist or otherwise, that dovetails too closely with an individual's policy preferences. A libertarian interpretation of the Constitution that replicates the political agenda of the Cato Institute, save for the federal postal service, is hard to take seriously. By the same token, a liberal theory of constitutional interpretation that neatly justifies most all of the New Deal and Warren Court innovations seems just a bit too convenient. So I would suggest that a reasonable threshold test of the seriousness of a given individual's avowed theory of constitutional interpretation is whether the theory produces any results to which the individual finds highly objectionable. If not, there may be reason to suspect that the theory is just a dressed up iteration of the individual's policy preferences.

UPDATE: Matthew Franck has more to say in a post titled Adler's Axiom. Of note, he offers a short list of issues on which his Constitutional conclusions and policy preferences diverge.

Following Franck's example, let me say that I agree with him on Kelo -- horrible policy but good law. I think federal power is more limited than Franck, and that the Court has some role to play here, but my read of the Constitution would hardly bring big government to an end. Additionally, there are many state and local laws that I find repugnant, but believe are constitutional nonetheless. I also support gay marriage and allowing open homosexuals in the military, but I don't believe that either policy preference is constitutionally compelled.

Petition for Rehearing En Banc in Warshak v. United States: Last week the United States filed a petition for rehearing en banc in Warshak v. United States, the e-mail privacy case that I have blogged a lot about (and had several more posts planned on before other events intervened — I hope to finish up the series soon). You can read the petition for rehearing here.

  As you might guess based on my previous blogging, I think the government's petition for rehearing should be granted. Indeed, I will soon be filing an amicus brief to that effect on my own behalf. If all goes smoothly, I should be mailing out the brief later today. I'll post a copy here after it's out the door.

Wednesday, August 8, 2007

Clerkship Notification Blog: is a clearing house for applicants, clerks, and others to post information about which judges are interviewing, have hired, and the like. Sounds like a useful resource, though keep in mind that you shouldn't believe everything you read. Bookmark it if you're applying this year.

I Am Apparently a 95% Feminist,

according to this quiz, which pretty clearly focuses on what some call "equity feminism."

The 5% that is counted against me was on the question, "Women should accept their bodies as they are. Women should not have to conform to wacky beauty ideals." I answered "not sure," because even setting aside health issues (women and men shouldn't accept unhealthy bodies if they can make them healthy) the fact is that men care about women's beauty, as best I can tell likely for biological reasons and not just social ones, and women ignore that at their peril.

Of course, by definition women shouldn't have to conform to wacky beauty ideals. And in a better world inhabited by people who are biologically and genetically different from humans women wouldn't have to conform to any beauty ideals.

In today's world, though, I don't think it's quite accurate to say that "Women should accept their bodies as they are." Some attempts to change one's body are likely counterproductive or on balance harmful. But others (whether dying graying hair, removing hair from certain places, using effective makeup under certain circumstances, mild dieting or exercise for esthetic reasons and not just health reasons, and so on) are probably wise ideas for many women who care about the things that many women understandably care about.

The quiz has some of the usual problems with such quizzes, for instance in the question "A woman should be able to marry and have kids with anyone she wants -- including another woman"; that's a measure of commitment to equal rights without regard to sexual orientation, which strikes me as pretty conceptually different from feminism. And of course calling this an "Are You a Feminist?" quiz deliberately obscures the fact that there are many different kinds of feminist. But as a measure of one's agreement with equity feminism, the quiz is probably fairly decent.

Speakers Arrested Because Their Speech Supposedly Has "No Legitimate Purpose":

Some state laws ban "criminal harassment," including behavior defined more or less as

Engag[ing] in a course of conduct [= a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose] or repeatedly commit[ing] acts which harass or intimidate the person and which serve no legitimate purpose.

The broadest body of caselaw I've seen on this has been in Wisconsin; the statute I just quoted is the Wisconsin one, Wisc. Stat. Ann. 947.013. Note that this is a very different provision than "hostile [work/educational/public accommodations/housing] environment harassment," with entirely different elements; all they share is the label "harassment," and the capacity to restrict speech because of its content.

Here's a specific interest that I think helps illustrate the problems with such laws: Several Fond du Lac residents live near a convicted sex offender (a Michael A. Allen). They printed copies of that offender's Wisconsin Department of Corrections Sexual Offender Registry Registrant Information web page, and publicly posted it in various places -- at a gas station, at a YMCA, and several trees and telephone poles. They were then arrested for harassment. The arresting officer's report explains that the arrest happened

because [the arrestees'] conduct served no useful purpose. Michael Allen is following the rules of the registration system and is not breaking any laws. It appears to be the intent of the suspects to force Michael Allen to move from the area.

I take it that defendants believe their conduct does serve a legitimate and useful purpose -- it may inform their neighbors about the possible danger posed by Allen. Even if they intend to try to get Allen to move, that too may be useful for them and their children, though of course it may lead Allen to move to become a possible threat to other children (for reasons I note below, I don't see him as much of a threat, but obviously they do, and the law does require registration for offenders like Allen).

Moreover, the Court has made clear that people have a right to republish public record criminal justice information, even when it consists of the names of rape victims. (See Florida Star v. B.J.F.) Surely people have at least as much right to republish such information about criminals. (For more, see here.) So I think their speech can't be criminalized.

But more broadly, it seems to me that regardless of whether such speech could be prohibited under a clearly and narrowly drafted law, the current law, which punishes "harass[ing]" speech said with "no legitimate purpose" must be unconstitutionally vague. It gives no meaningful guidance to speakers who want to know if they'll be criminally punished, or to police officers, prosecutors, judges, and juries. It thus poses all the problems that Grayned v. City of Rockford (1972) identified as constitutional defects of vague laws:

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.

Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "`steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked."

By the way, Allen's offense (as reported in the press) strikes me as very minor as sex crimes go:

Court records show that Allen was convicted in 1998 of second-degree sexual assault of a child for receiving oral sex from a 15-year-old girl. The records show that Allen was 16 years of age at the time of the incident, which occurred in 1997 in Shawano County. In a victim statement included with court documents, the 15-year-old girl said it was her idea to perform the sexual act. She also wrote that she didn't think it was Allen's fault or that he should get in trouble.

It seems to me that even if consensual 16-/15-year-old sex should be criminalized, it should not be subject to sex offender reporting (certainly not longterm reporting), or at least any such reports should clearly note the nature of the offense (something the Wisconsin sex offender page does not). Such reporting is not only unfair to the offender, but also harmful to the community, because it misleads the public into overestimating this threat, and distracts them from other possible threats.

Nonetheless, while this would have been good reason for Wisconsin not to place Allen's records on the sex offender site (unless there was something more to the sexual contact than the newspaper reports), and this might make the neighbors' actions morally suspect (if they knew the nature of Allen's crimes), it doesn't strip the actions of constitutional protection. The First Amendment includes the right to convey information even about crimes that many may consider minor (though note that Wisconsin law, which makes the crime a felony and a reportable sexual offense). One might argue that the neighbors' speech is so incomplete as to be false, but I don't think that's right; I take it, for instance, that newspapers couldn't be criminally prosecuted if they accurately reported that someone was convicted of a certain crime, but failed to give all the details that might show how minor the crime was, and the same must be true here. And in any event, none of the facts of Allen's case can remotely justify punishing speakers under the amorphous "no legitimate purpose" standard.

Note also that the same defendants were also arrested for getting into a fight with the offender over the offender's coming onto their property to remove a copy of the sheet that they had posted on their own property. That, though, is a separate charge, which I'm setting aside for now.

What Bulgarians Think of Us:

Just ran across this blog, which seems to me to be in Bulgarian, and which links to our recent post -- no, not this one, but the one about the injunction against the pedophile blogger.

The funny thing, as Sasha pointed out, is the first comment, which in the Latin alphabet but I take it is also in Bulgarian (or maybe it's actually in Russian). On the what-do-you-expect-from-those-arrogant-Russkies theory that Russian speakers can do a pretty good job figuring out Bulgarian (especially if it's actually Russian), I translate it here:

And what do you expect from these Americans? They're obsessed with sex. Anything that flies [?], is for them a sex object. God, how damaged [?] they are!

Oh, and, no, Ms. Ognianova, I'm pretty sure McClellan is no Nabokov.

Who Are You?

Just thought I'd briefly repeat the question from yesterday, for those who missed it; I promise not to bug you folks further about this.

Who are you folks? Lawyers? Techies? Students? Young? Old?

Sure, the comments won't be representative of our readers generally, and we can't be sure they're accurate. But it's still nice to get some sense of at least some of the people who are posting here. So let us, and your fellow readers, know. Post responses here.

Tuesday, August 7, 2007

Science vs. Politics?

USA Today has an extensive article on the intersection of science and public policy. While the article opens by framing the issue as one of scientists versus politicians (and the Bush Administration in particular), it also contains some worthwhile comments on the danger of politicizing science, as well as in pretending that science can resolve contentious policy debates.

"The science community now recognizes that this administration completely puts its political cart before the scientific horse," says Science magazine editor in chief Donald Kennedy, a former Food and Drug Administration chief. "We've seen it with one issue after another."

But White House science adviser John Marburger says one reason science has emerged as such a hot issue is that the research-is-right banner is an easy one to wave.

"Science has become very powerful as a symbol and everyone who has a case to make, or argument to win, tries to recruit science on their side," Marburger says. "Issues that might not have been labeled as 'science-related' controversies in the past are now called science-related."

Science policy professor Daniel Sarewitz of Arizona State University in Tempe says: "I think the opportunity to use science as a political tool against Bush has been irresistible — but it is very dangerous for science, and for politics. You can expect to see similar accusations of the political use of science in the next regime." . . .

Says Princeton's David Goldston, former chief of staff for the House Science Committee under now-retired Rep. Sherwood Boehlert, R-N.Y.: "As politics have gotten more and more polarized, everyone has to claim their views are objective, pure and factual, which means they are pulled into the scientific side. Most of these issues are largely values questions, but no one wants to discuss those, so we end up with baroque debates about science." . . .

"Don't think the problem is going to go away," Goldston says. "With politics more polarized than ever and a lot of these issues just continuing forward, efforts to frame science in debate are now inherent to our system."

All's Well that Ends Well--Colorado Shakespeare Festival

All’s Well that Ends Well is one of Shakespeare’s less-performed plays—and for good reason. Yet many people, myself included, hope to see every Shakespeare play at least once in our lives, and for people like us, the current production at the Colorado Shakespeare Festival is a good choice. The plot revolves around the obsessive, relentless love of Helena--the intelligent, strong-willed, and conniving daughter of a brilliant physician--for her social superior, Count Bertram. The play has the typical Shakespeare quota of disguises, cross-dressing, and clever tricks.

Usually the Shakespeare plays that end with marriage leave us happy, but it’s not at all clear that the play really does "end well." Helena gets her man, but the fourth and fifth acts have revealed Bertram to be just as shallow, selfish, and wildly mendacious as his comically dishonest friend Parolles; indeed, Parolles at least recognizes himself, Bertram, and Bertram’s friends for the rogues that they are.

The trend these days is to set Shakespeare performances in futuristic techno-worlds, or tribal Africa, or a 1950s drive-in, or any other location remote from the world of Shakespeare himself. The CSF production is a welcome change of pace, set in Restoration England, which happens to be the period of the earliest recorded performance of All’s Well. The text itself sets the play in France and Italy, during a war between Florence and Siena. The Restoration motif isn’t precisely contemporaneous with the literal text, but it’s reasonably close.

The CSF version is said to take place precisely in 1660, the year that woman first appeared on stage in Shakespeare plays. So the play opens with an all-male cast "rehearsing" a production of All’s Well. Soon, a message arrives from the king declaring that females should now play female parts; so several actors must yield their parts to actresses. The man who was playing Helena gets replaced, and he resentfully takes over the role of Bertram. The forced transition adds some depth to Bertram’s hostility to Helena, and his ultimate reconciliation to his role as her spouse. It’s interesting to see men playing women as they did at the time of Shakespeare himself, and one female character is still played by a man the whole way through.

The dramaturg’s notes explain that this year’s production is about gender and identity, and the threatening but positive effects of changing traditional roles. The approach is reasonable enough, given that Helena takes the traditional male role as the pursuer, and that her medical knowledge cures the French King of a fatal disease. But it’s just silly to declare, as the dramaturg does, that "opponents of Pelosi and [Hillary] Clinton seek to marginalize them for their assertive qualities." As if opponents on the right do not just as vehemently oppose male supporters of the Pelosi/Clinton policies, and as if opponents on the left (such as Daily Kos for Clinton, or Cindy Sheehan for Pelosi) are motivated by gender animus rather than disagreement on the issues.

All’s Well is at least in part a comedy, and so it is full Shakespeare’s love of sexual double entendres and ribaldry. Accentuating the theme of changing gender boundaries, the cast inflects the script with male-male sexual wordplay--all delivered by guys with shoulder-length hair and flouncy outfits.

All of the costumes, for whatever gender, are gorgeous, and so are the sets. The acting performances are solid, especially that of Bertram’s mother, the Countess, which is one of Shakespeare’s few major roles for an older female. Falstaff (from Shakespeare’s histories), may be Shakespeare’s most famous comic oaf, but you’ll miss out if you never see a Parolles on stage.

Perhaps the only weak link in the cast is Bertram, a talented but seemingly miscast actor who never displays the charisma that necessary for such a successful rake.

All’s Well that Ends Well continues for two more weeks at the University of Colorado at Boulder, along with A Midsummer Night’s Dream, and Julius Caesar, plus two non-Shakespeare plays: Around the World in 80 Days, and the 18th-century Italian comedy The Servant of Two Masters.

And for those of you who are fans of rarely-performed Shakespeare, start making plans for next summer’s Henry VIII.


Means exactly what you think it would mean (though the OED notes it as "humorous"). Never heard of it before, but there it is. Thanks to the New York Times story on the proposed New York City Council "bitch" resolution for the pointer.

More on Abigail Alliance:

Lyle Denniston discusses the case at SCOTUSBlog here, and the AP covers the decision here.

There's also more commentary at Hit & Run, OpenMarket, and the Drug Law Blog.

UPDATE: Briefs, updates and other materials related to the case are available on the Washington Legal Foundation website here.

Government Speech:

Several people e-mailed me about the proposed New York City Council resolution condemning the words "bitch" and "ho," which at this point has been signed by 19 of the 51 council members, and is up for consideration in September.

The story suggests that this is a "symbolic citywide ban," much like a past resolution referring to "nigger," and it writes that the measure is "unenforceable." Author and blogger David Harsanyi echoes the ban theory, writing,

The New York City Council is on the verge of banning the slur “bitch.” [Quote from article, which mentions that "the measure was unenforceable," omitted. -EV] ...

There’s plenty of discussion about whether such a ban would work (of course not), but there is virtually no conversation on whether such a ban is a restriction of free speech (yes) -— or does that matter not deserve any attention? What possible justification could a city council have to ban a word, even symbolically? Surely someone would challenge such a law. The ACLU? Right? Right?

Well, I looked at the proposal, and it turns out there's less there than meets the eye. The resolution simply says, following a bunch of recitals (which have no legal effect themselves),

The Council of the City of New York calls for a symbolic moratorium on pejorative use of the "b" word and the word "ho."

It's not a ban as the term "ban" is normally used, nor is it "unenforceable" in the sense of being unenforceable because it's trumped by the First Amendment or because it's hard to effectively enforce. There's nothing here to enforce -- this is essentially government speech condemning the words, and calling for people to stop using them. The City Council would be perfectly free to proclaim such a view.

As it happens, I don't much like condemnations of words in the abstract. I'm happy to condemn many sentiments, but words mean different things in different contexts. In some contexts, "bitch" may be vulgar; in some, sexist; in some, it may be insulting but for reasons unrelated to its sexual content; in some, it may be teasing among friends that the listener doesn't resent; in some, it may be a joke. (Things are even more complex when one considers "bitch" as a verb, and other derivatives such as "bitchen.") I'm pretty sure I'd never use "ho" except in a joke or quoted, and I doubt I'd ever use "bitch" in such a context, either. But I also wouldn't categorically denounce the words themselves, especially "bitch," which strikes me as rather more versatile than "ho" (even setting aside the use of "bitch" to refer literally to female dogs).

But in any event, let's not make a federal case out of this: The proposed resolution may be condemned on various grounds, but not because it violates anyone's free speech rights.

Careful With Those Assumptions:

A commenter writes, apropos the Ninth Circuit vote-swap decision:

What bothers me most about this case is that it gives the impression of a case decided to give the political result the judges favored, not on the basis of the legal arguments Eugene uses. The most blatant example of this is the majority's argument that the vote swapping scheme would not alter the electoral college results. The example they give is of a state in which the electorate is divided 49 percent for Bush, 48 percent for Gore, and 3 percent for Nader. They argue that if all the Nader voters engaged in a vote-swap scheme, and Gore won, that would be the proper result. I can't imagine the judges taking such a benign view of a vote-swapping scheme if the names and parties were reversed, and if the scheme led to Bush's winning a state he would otherwise lose.

I'm not that persuaded by such arguments generally -- but especially not when (as another commenter wrote), two of the judges were Bush, Jr. appointees. I can't say how conservative they are, but it's hard for me to casually assume that they were Gore enthusiasts.

Judge Rogers' Abigail Alliance Dissent:

Judge Judith Rogers' dissent in Abigail Alliance is quite strong. It also may be the only time she and Chief Judge Douglas Ginsburg find themselves allied against the rest of their court. Although I somewhat skeptical of the dissent's claims, I think it is worth quoting from the opening of her 29-page opinion at length.

Today, the court rejects the claim that terminally ill patients who have exhausted all government approved treatment options have a fundamental right to access investigational new drugs. The court’s opinion reflects a flawed conception of the right claimed by the Abigail Alliance for Better Access to Developmental Drugs and a stunning misunderstanding of the stakes. The court shifts the inquiry required by Washington v. Glucksberg, 521 U.S. 702 (1997), by changing the nature of the right, by conflating the right with the deprivation, and by prematurely advancing countervailing government interests. The court fails to come to grips with the Nation’s history and traditions, which reflect deep respect and protection for the right to preserve life, a corollary to the right to life enshrined in the Constitution. The court confuses this liberty interest with the manner in which the Alliance alleges that the liberty has been deprived, namely by denying terminally ill patients access to investigational medications under the narrow conditions described by the Alliance. The court conflates the inquiry as to whether a fundamental right exists at all with whether the government has demonstrated a compelling interest, when strictly scrutinized, rendering its restrictive policy constitutional.

These missteps lead the court to rely upon how rights and liberties have been limited and restricted — addressing regulations to prevent fraud in the sale of misbranded and adulterated medications or safety restrictions applicable to all medicines for any palliative purpose — which says little about the historic importance of the underlying right of a person to save her own life. . . .

In the end, it is startling that the oft-limited rights to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one’s own body even if it results in one’s own death or the death of a fetus have all been deemed fundamental rights covered, although not always protected, by the Due Process Clause, but the right to try to save one’s life is left out in the cold despite its textual anchor in the right to life. This alone is reason the court should pause about refusing to put the FDA to its proof when it denies terminal patients with no alternative therapy the only option they have left, regardless of whether that option may be a long-shot with high risks. . . .

It bears outlining the history and common law basis for the Alliance’s claim in order to demonstrate, once again, that the history and traditions of this Nation support the right of a terminal patient, and not the government, to make this fundamentally personal choice involving her own life. Because judicial precedents and the historical record require strict scrutiny before upsetting rights of this magnitude, the FDA must demonstrate a compelling governmental interest before its policy restricting access can survive.

Whether or not one agrees with Judge Rogers' conclusions, it is hard to deny that the right at issue here would seem to fit well among those unenumerated rights the Supreme Court has recognized before. Indeed, some right to voluntarily submit to medical treatment without government approval would seem to be a stronger candidate for constitutional protection than some of the other rights that have found court favor in the past. As I noted before the original panel opinion sought to vindicate the right asserted here without relying upon the Supreme Court's still-controversial sexual liberty and abortion cases, focusing instead on the narrower test established in Glucksberg. In the end, I am not sure the dissent's arguments in Abigail Alliance carry the day, but I think Judge Rogers makes a good go of it.

Jessie Hill on Abigail Alliance:

My colleague Jessie Hill, who has a forthcoming article on whether there is a constitutional right to make medical treatment decisions for oneself, offers the following thoughts about the Abigail Alliance decision.

It would probably be a gross understatement to say that most legal scholars will not be shocked by today’s en banc decision in Abigail Alliance v. von Eschenbach. Yet, as I argue in a forthcoming article in the Texas Law Review (entitled “The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines”), there is ample support for the dissent’s view that a long line of cases, including not only Roe v. Wade and Stenberg v. Carhart, but also Carhart v. Gonzales, and even, I might add, Jacobson v. Massachusetts, appear to recognize that the Constitution forbids government interference with individuals’ attempts to protect their own health. The Abigail Alliance majority, however, points to cases denying access to medical marijuana and the unapproved cancer drug laetrile, and it distinguishes the abortion cases on the ground that here, there is “no proven therapeutic effect” for the forbidden medical treatment.

No proven therapeutic effect? In both Stenberg v. Carhart and Carhart v. Gonzales, the therapeutic value of the outlawed abortion procedure was hotly disputed. What is interesting about those cases is that the Court nonetheless allowed the plaintiffs to introduce evidence of medical efficacy, rather than simply deferring to the legislature’s view. In the cases cited by the Abigail Alliance majority, by contrast, courts largely deferred to the legislature without considering any further medical evidence.

In my article, I argue that the question of how much deference should be given to the government when it finds medical facts is the key one lurking behind many cases dealing with the right to choose particular medical treatments, and it is one that is given insufficient attention by the courts. Rather, courts tend to reflexively view the issue as invoking government’s traditional power to protect the public and, like the majority here, defer to the government’s medical fact finding (which I refer to as the “public health” approach); or, alternatively, they view the issue as one growing directly out of the abortion and contraception cases and, like the dissent, at least carefully consider challengers’ medical evidence challenging the government’s evidence (which I refer to as the “autonomy” approach). In Abigail Alliance, there may be very good reasons for deferring to an administrative agency like the FDA regarding its view of the medical facts. Even if the result in Abigail Alliance may be the right one, however, it seems that the majority and dissent just talked past each other because of their failure to address the underlying disagreement over the appropriateness of deference – in other words, who (doctors, administrative agencies, legislatures, courts) gets to decide whether a treatment in fact has sufficient therapeutic benefit.

Some Thoughts on Abigail Alliance:

Here are some of my initial thoughts and reactions to the majority opinion in today's decision in Abigail Alliance v. Eschenbach. Next I'll post some thoughts and reactions on the dissent.

Abigail Alliance argues that terminally ill patients are typically willing to assume the risks of taking drugs that have not gone all the way through the approval process, and that this choice should be theirs to make, not the government’s. I am exceptionally sympathetic to this claim as a policy matter, but I have trouble making the leap to their constitutional claim. It is tempting to adopt a “presumption of liberty” in cases like this, but such a presumption carries a risk of its own. Every time a court holds that a fundamental right is protected by the Constitution, it effectively removes this issue from the democratic process – indeed, that is the point. This serves to protect rights, but it also functions to insulate erroneously recognized rights from correction. So, despite by strong libertarian leanings, I am more reluctant than many libertarians to read rights into the Constitution.

The question before the court, as framed by Abigail Alliance, was:

Whether the liberty protected by the Due Process Clause embraces the right of a terminally ill patient with no remaining approved treatment options to decide, in consultation with his or her own doctor, whether to seek access to investigational medications that the [FDA] concedes are safe and promising enough for substantial human testing.
At one level, Abigail Alliance’s claim is for a constitutional right to life – or right to take actions that may save one’s life – that imposes limits on the government’s ability to prohibit a patient’s access to new drugs. On the other hand, it is the drug company that must submit itself to the approval process, and terminally ill patients certainly have no constitutional right to drugs that have not yet been placed on the market by their manufacturers. If due to liability concerns or for some other reason manufacturers were not willing to make unapproved drugs available even if the FDA lifted its rules, terminally ill patients would be out of luck. Furthermore, any regulatory scheme that limits the ability of producers to sell or market products without government approval necessarily limits the ability of consumers to purchase such goods. Both parties to the potential transaction have their liberty constrained by such a rule. Nonetheless, such rules are quite common today.

In what strikes me as an important footnote (fn5), the majority rejects the dissent’s effort to frame the issue as whether there is a “right to save one’s life,” as opposed to a”right to access experimental and unproven drugs in an attempt to save one’s life.” Accepting the former would be problematic, the majority maintains, because

If the asserted right is so broad that it protects a person’s efforts to save his life, it might subject to strict scrutiny any government action that would affect the means by which he sought to do so, no matter how remote the chance of success.
Perhaps, but all this would mean is that such government actions are subject to strict scrutiny. Insofar as the government can demonstrate that FDA drug regulation is still necessary to protect the public at large from unsafe drugs, the regulatory scheme could still be upheld.

I think the majority is on fiarly strong legal ground in suggesting that it is a bit late in the game to suggest that the federal government’s power to regulate pharmaceuticals is constrained by a fundamental right to potentially life-saving medical treatment.

our Nation’s history evidences increasing regulation of drugs as both the ability of government to address these risks has increased and the risks associated with drugs have become apparent. Similarly, our legal traditions of allowing a necessity defense, prohibiting intentional interference with rescue, and recognizing a right of self-defense cannot justify creating a constitutional right to assume any level of risk without regard to the scientific and medical judgment expressed through the clinical testing process. . . .

Our Nation’s history and traditions have consistently demonstrated that the democratic branches are better suited to decide the proper balance between the uncertain risks and benefits of medical technology, and are entitled to deference in doing so.

As much as I might like it if the federal government were barred from adopting regulatory schemes to protect us consumers from ourselves, such a principle would cut a whole swath out of the federal regulatory state.

Rejecting Abigail Alliance’s claims necessarily means that there are people whose lives would have been saved had they had access to unapproved drugs. We don’t know how many, but we can be quite certain the number is greater than zero. (Whether the net number of lives saved is negative or positive, however, is a separate question.) The delay between when a new drug is developed and when it is finally approved necessarily has consequences. If there are people who will be helped by a newly approved drug, then there are people who were not helped during the time it took for the drug to be approved. In the case of a life-saving drug, this means that there will be people whose lives could have been saved had the drug been approved earlier. More extensive testing and a prolonged approval process may help avoid the approval of a dangerous drug, but it also delays the benefits of a beneficial drug. There are health costs – and potentially lives lost – on both sides of the equation. One of the things that is interesting about this litigation is that it raises the questions the extent to which the Constitution constrains how a regulatory agency balances these trade-offs.

Who Are You?

I much enjoyed the responses to this question two years ago, and thought I'd ask again: Who are you folks? Lawyers? Techies? Students? Young? Old?

Sure, the comments won't be representative of our readers generally, and we can't be sure they're accurate. But it's still nice to get some sense of at least some of the people who are posting here. So let us, and your fellow readers, know.

"Walking to the Shops 'Damages Planet More Than Going By Car'":

The Times (U.K.) reports:

Walking does more than driving to cause global warming, a leading environmentalist has calculated.

Food production is now so energy-intensive that more carbon is emitted providing a person with enough calories to walk to the shops than a car would emit over the same distance. The climate could benefit if people avoided exercise, ate less and became couch potatoes. Provided, of course, they remembered to switch off the TV rather than leaving it on standby.

The sums were done by Chris Goodall, campaigning author of How to Live a Low-Carbon Life, based on the greenhouse gases created by intensive beef production. “Driving a typical UK car for 3 miles [4.8km] adds about 0.9 kg [2lb] of CO2 to the atmosphere,” he said, a calculation based on the Government’s official fuel emission figures. “If you walked instead, it would use about 180 calories. You’d need about 100g of beef to replace those calories, resulting in 3.6kg of emissions, or four times as much as driving.

“The troubling fact is that taking a lot of exercise and then eating a bit more food is not good for the global atmosphere. Eating less and driving to save energy would be better.”

I have no idea whether Goodall is right or wrong. But there have been enough stories like this — about recycling, energy production generally, carbon emission, and more — that it seems clear that there are all sorts of hidden tradeoffs that both casual intuitive analysis (nuclear bad, driving bad, recycling good) and even published reports often miss. This in turn makes me skeptical about demands that we, either individually or through government action, change our lives to improve the environment.

Some such demands may indeed be quite sound, and there certainly are real environmental hazards. Poisoning our neighbors, and ourselves, is bad, if there are alternatives that poison less at acceptable cost. (Recall that some degree of environmental harm is inevitable to get important benefits; to give a simple analogy from the context of biological poisoning, we put our fellow citizens at risk of contagious disease whenever we walk near them, even when we seem asymptomatic, but we think the benefits of such interaction exceed the cost.) But I'm cautious about jumping on bandwagons in this field, and the more strident the bandwagoneers, the more I wonder whether they've really examined the tradeoffs dispassionately, carefully, and thoroughly.

Thanks to Victor Steinbok for the pointer.

House Probe of Jefferson Suspended:

The Washington Post reports:

The House ethics committee has suspended its investigation into Rep. William J. Jefferson, acceding to requests from federal prosecutors who believe the congressional inquiry could interfere with the criminal case against the Louisiana Democrat, who was indicted this summer on 16 corruption charges.

The six-member subcommittee handling the inquiry decided to hold off because of concerns from the Justice Department that it "might create legal or factual issues that would complicate or impede the criminal prosecution and related law enforcement efforts in this matter," the panel's top lawmakers, Reps. Stephanie Tubbs Jones (D-Ohio) and Doc Hastings (R-Wash.), said in a statement.

One More Vote-Swapping Example:

Imagine someone puts together a site called The site would urge voters to promise to vote for Gubernatorial Candidate X if this candidate publicly pledges to support gun rights (assume the term is suitably defined, for instance by focusing on one particular issue).

Voters who agree would record their promises, either on the site or in e-mail to the campaign. And the site would especially try to persuade voters who usually aren't single-issue voters, and who might have normally voted against candidate X because of his stands on other issues, but who are willing to pledge a single-issue vote just this once (perhaps to better demonstrate the power of pro-gun-rights voters).

I take it that this site would be quite proper, and perfectly constitutional, even though it solicits a deal: a pledge of citizen votes for a pledge of politician votes. Offering the candidate $10,000 (assume it's for his pocket, not even a campaign contribution) to vote for gun rights: a criminal bribe. Offering voters money to vote Candidate X: a criminal bribe. But offering the candidate valuable votes, and in exchange offering the voters valuable political victories: constitutionally protected.

This is further evidence, I think, that swapping political acts for political acts is often quite different from swapping political acts for money; the first should be legal and is like constitutionally protected, while the second is bribery. So the "vote swapping by voters is the same as vote buying" argument rests, it seems to me, on an unsound analogy.

Let's also look at it from another perspective. A legislator promising to vote a particular way if another legislator votes a particular way: ordinary log-rolling. A legislator promising to vote a particular way if voters elect him: ordinary and constitutionally protected (Brown v. Hartlage) campaign promises. Voters promising to vote for a legislator if the legislator promises to vote a particular way: the example above, which I think is quite proper. Voters promising to vote a particular way if other voters promise to vote a particular way: that's, and it seems to me hard to see why it should be a crime when the others are permissible and even constitutionally protected. If legislator-legislator, legislator-voter, and voter-legislator deals are permitted, why not voter-voter deals?

Funny Titles:

Funny titles for articles or papers usually aren't very funny. But a few are pretty good I should add one more (thanks to my colleague Jonathan Zasloff): A Desire Named Streetcar: How Federal Subsidies Encourage Wasteful Local Transit Systems, written by Randal O'Toole for Cato.

Remarkable Decline in Housing Prices:

I've seen many, many, articles on the unraveling housing bubble, but few that give readers an idea of just how much and how quickly prices have come down. So let's take my own home market, the D.C. metro area, which of late is one of the worst performing regional markets. According to the Housing Tracker website, at the top of the market, in August '05, the asking price for the 75th percentile home was 700K. Currently, two years later, the asking price is 579K, or about a 17% decline. (Housing Tracker also has a site that it claims has "better" data, whatever that means, but the data there doesn't go back far enough, so I'll stick with an apples to apples comparison). Also, two years ago the average house was selling at asking price. Now, from what I've seen it's more like an average 5% discount. Two years ago, houses were selling "as-is." Now, buyers come with a laundry list of requests, which, combined with some extra sprucing to sell, perhaps adds another 1% loss to the seller. Finally, one has to factor in 6% or so inflation. So, at the higher end of the market, the price of the average D.C.-area home has fallen almost 30% in real terms in two years.

Then consider that the D.C. and inner suburb (Arlington, Bethesda, parts of Alexandria and Falls Church) markets have been much healthier than the general suburban (Rockville, Fairfax, etc) market, which have in turn been much healthier than the outer suburban market, and it looks like parts of the market have declined more like 40% in real terms. The figures are only slightly better at the 50th and 25th percentiles. Of course, it's possible that these figures are skewed if the mix of homes for sale has changed substantially, but I doubt that this would make more than a 5% difference, given that the 25th percentile asking price is also down substantially.

It's important to keep in mind that very few homeowners bought in the Summer of '05, and most area homeowners still have substantial equity from rising prices, if (and this is a big if), they didn't aggressively refinance their house. [When I was still in the buying market, I bid on several homes that were overpriced, but had been sitting on the market for months. Turns out that the owners, who bought before the boom, couldn't "afford" to sell for less than asking, because they no equity in their house, had no savings, and needed to cover their mortgage (I was sorely tempted to tell an agent for one such couple that perhaps they should sell their 2007 50K SUV!)] Even those who bought near the top aren't doing too badly if they locked in a historically low interest rate (I know someone who got a 4.75% 30 year mortgage with virtually no closing costs).

Anyway, when you see such stark figures, you can understand why builder stocks are plummeting, and why the mortgage market is in such turmoil. Homeowners who want to refinance when their adjustable rates adjust won't be able to, and many others--especially those with no-money-down loans--won't want to, and will instead walk away from substantial losses on their homes.

UPDATE: A couple of additional caveats: (1) overpriced homes are sitting on the market, while market-priced homes are selling, which could skew the asking prices higher; and (2) On the other hand, in a declining market, the current asking prices may bear little relationship to the ultimate asking price (e.g., the record of our transaction will show that we paid 100% of asking price, but only after the seller dropped his asking price 200K), so the asking prices may skew the data the other way.

No Constitutional Right to Drugs:

The U.S. Court of Appeals for the D.C. Circuit has just released its long-awaited en banc decision in Abigail Alliance v. Eschenbach. As anticipated, the Court held 8-2, against the Abigail Alliance for Better Access to Developmental Drugs. The majority opinion, written by Judge Griffith, begins:

This case presents the question whether the Constitution provides terminally ill patients a right of access to experimental drugs that have passed limited safety trials but have not been proven safe and effective. The district court held there is no such right. A divided panel of this Court held there is. Because we conclude that there is no fundamental right “deeply rooted in this Nation’s history and tradition” of access to experimental drugs for the terminally ill . . . we affirm the judgment of the district court.
Judge Rogers, joined by Chief Judge Ginsburg, dissented.

For some earlier posts on this case see here. More to follow.

UPDATE: For more past blogging on the case, see Randy Barnett's posts here and this post from Glenn Cohen (who worked on the case) from Prawfsblawg.

Gun Owners -- a Photo Gallery, with Audio:

A very interesting item on (go here and click on "One Nation, Under Gun"), pro-gun the same way that a photo-plus-voice gallery of a dozen gays (mostly in couples) talking calmly and reasonably about their homosexuality would be pro-gay: To people who see gun ownership as the sort of thing that No-One I Know Would Ever Do, simply seeing law-abiding gun owners as normal people — mostly family people, women as well as men, old as well as young — can have a profound effect. ABC seemed to carry a similar item, as did (though photo and text only, without audio).

I should stress that I don't agree with everything that the people depicted say, and I do agree that the item is biased the way that an item depicting a dozen victims of gun crime would be biased: It shows one part of the picture — in my view a needed corrective to the mainstream media's tendency to stress the harm of guns more than the harms of gun control, but nonetheless a biased corrective. Still, it seems to me noteworthy that a mainstream media outlet (ABC News and, though I don't know whether MSNBC and Newsweek carried it, too) devoted time, space, and money to such a project.

The item seems to be based on a book (Armed America) by writer and photographer Kyle Cassidy. The Washington Post reviewed the book positively. The review concluded with "The result is highly political, even polemical. The question is, in which direction? Each picture in Armed America could be a pro-gun advertisement — or an anti-gun poster. That's what makes the book so riveting." I'm skeptical that this is so, for reasons I mentioned at the outset, at least if the and items are representative of the book.

Thanks to Dan Gifford for the pointer.


Monday, August 6, 2007

Felons' Right To Possess Gun in Self-Defense, and While Delivering It to the Police:

The Fourth Circuit reaffirms this, and sets aside a 15-year sentence imposed after the defendant's lawyer wrongly advised the defendant that no such defense exists, and the defendant pled guilty in reliance on that.

Unfortunately, it looks like the defendant ended up serving at least 4 years in prison because of the lawyer's error, but at least it's not 15. Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. Congratulations to Meghan Poirier,
  2. Felons' Right To Possess Gun in Self-Defense, and While Delivering It to the Police:
Sex, Slang, and Pejorative (or at Least Formerly Pejorative) Ethnic Stereotypes:

Which terms referring to particular sexual practices derive from the names of particular ethnicities or nationalities? Two should be pretty obvious (one can be even a single word, while the other seems to be in the dictionary only using the nationality's name plus a noun), but the source of one other word struck me as quite surprising when I first learned about it. An interesting perspective, it seems to me, on how these terms develop, often stemming from political and religious animosities that are now long forgotten.

Rules for answers: Please quote or link to a dictionary (including a slang dictionary) that supports your definition and, where the etymology is at all controversial, the etymology.

Bribe or Permissible Political Deal?

A commenter on the vote-swap site thread writes:

I think the court has confused what is going on (vote buying) with the purpose of what is going on (doing interesting political stuff).

Plainly, something of value is being given in exchange for a vote. That's vote buying. Would it have mattered if the safe-state guy was given money to vote for Nader? How is that different? The court talks about an "illegal" exchange "for private profit," suggesting that motivation is the key, not the purchase of the vote itself. But I think the purchase is the evil, since motives are notoriously hard to show.

If you want Nader to get a lot of votes in "safe" states, you should urge people in those states to vote that way; you shouldn't pay them to do so, whether with money or your own vote somewhere else.

An interesting analysis, which sounds appealing — and yet this isn't the way we reason as to political decisions, is it? Senator Smith to Senator Jones: "I'll pay you $10,000 if you vote my way." Criminal bribe. Senator Smith to Senator Jones: "I'll vote your way on the bill you like if you vote my way on the bill I like." Legislative business as usual, sometimes slimy but sometimes necessary for politics to function; clearly not illegal, and perhaps constitutionally protected (not that anyone has tested this). Yet "something of value is being given in exchange for a vote," no? (In fact, if the Senators fear losing reelection if they don't make deals like this, then the something of value translates into something of financial value for them — their salaries.)

OK, you say, legislative deals are special. But why should the sovereign voters have fewer rights to make deals than their servants in Congress? And in any event, let's set aside the legislator-legislator deal. Millionaire Smith to Senator Jones: "I'll pay you $10,000 if you vote my way." Criminal bribe. Millionaire Newspaper Publisher Smith to Senator Jones — or for that matter Middle-Class Advocacy Group Director Smith to Senator Jones — "I'll endorse you for reelection if you vote my [or my organization's] way," or, if you prefer "if you vote the wrong way, we'll editorialize strongly against you." Political business as usual, I take it, legal, not even slimy if publicly disclosed, and likely constitutionally protected (though that again hasn't, to my knowledge, been tested).

Yet "something of value is being given in exchange for a vote," no? And of course an endorsement by a leading newspaper or advocacy group is worth much more than a single vote by a voter.

My colleague Dan Lowenstein has written in detail about how many unclear boundary cases there are in this area (see Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L.Rev. 784 (1985)), and how many cases there are — such as the ones I mention above — in which the clear bribe and the clear permissible deal are separated by only one factor that might at first not seem dispositive (here, whether the deal is vote-for-vote or endorsement-for-vote on one hand, or money-for-vote on the other). But in any case, I hope these examples illustrate that one can't simply equate trading votes for money with trading votes for other votes.

First Amendment Right To Create Vote Swap Site:

My view: The Ninth Circuit's analysis generally seems quite right, and further reinforces the principle that even speech that creates or offers an agreement is sometimes (though not by any means always) constitutionally protected, and that it's a mistake to blithely conclude that agreements and offers are by their nature "situation-altering" and thus unprotected. See generally my Speech as Conduct article, PDF pages 64 and 58-59.

The facts (throughout all the quotes, some paragraph breaks may be added, and many citations omitted):

Appellants created two websites, and, that encouraged people to “swap” their votes and provided email-based mechanisms for doing so. The vote-swap mechanisms enabled third-party supporters in a swing state such as Florida or Ohio to agree to be paired with major-party supporters in a “safe state” such as Massachusetts or Texas, whereby the swing-state users would promise to vote for the major-party candidate and, in exchange, the safe-state users would promise to vote for the third-party candidate. The point of the swaps, at least when agreed to by Nader and Gore supporters, was to improve Gore’s odds of winning the Democratic-pledged electors in the swing state without reducing Nader’s share of the national popular vote (which needed to exceed five percent in order to qualify his party for federal funding in future elections).

The California Secretary of State demanded that the sites be taken down, reasoning:

Your website specifically offers to broker the exchange of votes throughout the United States of America. This activity is corruption of the voting process in violation of Elections Code sections 18521 and 18522 as well as Penal Code section 182, criminal conspiracy.... The right to free and fair elections is a cornerstone of American democracy. Any person or entity that tries to exchange votes or brokers the exchange of votes will be pursued with the utmost vigor .... As the Chief Elections Officer of the State of California, I demand that you end this activity immediately. If you continue, you and anyone knowingly working with you may be criminally prosecuted to the fullest extent of the law.

The site operators complied, but sued, claiming their operation of the site was protected by the First Amendment. The court held that "agreements to swap votes on election day" are "protected by the First Amendment." (It also pointed out that the pro-Nader and pro-Gore advocacy on the sites was protected, but that wasn't in doubt; the question was whether the agreement itself, and the sites' participation in bringing together people who would enter into the agreement, was constitutionally protected.)

The court concluded that the agreements were presumptively protected by the First Amendment:

Whatever the wisdom of using vote-swapping agreements to communicate these positions, such agreements plainly differ from conventional (and illegal) vote buying, which conveys no message other than the parties’ willingness to exchange votes for money (or some other form of private profit). The Supreme Court held in Brown v. Hartlage, 456 U.S. 45, 55 (1982), that vote buying may be banned “without trenching on any right of association protected by the First Amendment.” Vote swapping, however, is more akin to the candidate’s pledge in Brown to take a pay cut if elected, which the Court concluded was constitutionally protected, than to unprotected vote buying. Like the candidate’s pledge, vote swapping involves a “promise to confer some ultimate benefit on the voter, qua ... citizen[ ] or member of the general public” -— i.e., another person’s agreement to vote for a particular candidate. And unlike vote buying, vote swapping is not an “illegal exchange for private profit” since the only benefit a vote swapper can receive is a marginally higher probability that his preferred electoral outcome will come to pass....

[Footnote moved:] Though Brown, is not directly on point because it involved candidate-voter rather than voter-voter communication, it generally supports our conclusion.... While recognizing that “illegal exchange[s] for private profit ... may properly be prohibited,” the [Brown] Court made clear that most communication and negotiation surrounding the exercise of the franchise cannot be banned. In the Court’s words, “[t]he fact that some voters may find their self-interest reflected in a candidate’s commitment does not place that commitment beyond the reach of the First Amendment.” In one respect, moreover, this case is easier than Brown because it does not involve any financial self-interest whatsoever. The voters in Brown could have expected to receive some (small) pecuniary advantage from the promised salary-saving. Here, in contrast, people agreed to swap votes without any promise at all of financial benefit.

And the court found that the state's arguments for restricting the agreements didn't pass intermediate scrutiny.

Thanks to lawprof Rick Hasen (Election Law blog) for the pointer, and other comments on the decision.

UPDATE: If you think vote-swapping should be constitutionally unprotected because it's analogous to vote-buying, please read this follow-up post, in which I explain why I think such an analogy is flawed.

Recognizing Out-of-State Adoptions:

I just read the Tenth Circuit opinion on recognition of out-of-state adoptions (cited and discussed by Dale below). Oklahoma law generally recognized out-of-state adoption judgments, but specifically exempted any out-of-state "adoption by more than one individual of the same sex." This, the Tenth Circuit held, violated the Full Faith and Credit Clause — "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." The panel's ruling was 2-0 on the constitutional question, with one judge dissenting because he would have accepted Oklahoma's narrow reading of the statute that would have rendered the statute inapplicable to the relevant parties.

The Full Faith and Credit Clause analysis sounds right to me, but I'm not an expert on that Clause, and in any case want to leave the constitutional analysis to others. Here I just want to ask: Even if restrictions on recognition of out-of-state adoptions are constitutional, wouldn't they be a remarkably bad idea, and especially bad for children?

Consider especially children who are adopted by two new parents, rather than situations where a parent's child is also adopted by a second person (whether a same-sex partner or a traditional stepparent). The child's birth parents are often out of the picture — sometimes dead, sometimes unfit, sometimes just moved on to other matters. The adopted parents will often be the only parents the child ever knew. Even in open adoptions where a birth parent or parents remains in contact with the child, the whole point of the adoption is to relieve the birth parents of legal rights and responsibilities over the child, and to let the child be raised by — and bond with — the adoptive parents, with only a minimum amount of participation by the birth parents.

So here's this child, who has been raised by the adoptive parents for years. She comes to Oklahoma — perhaps on a trip to visit the adoptive parents' family or friends, alone on some school trip, or when the family moves to Oklahoma for a parent's job. Now some occasion arises on which Oklahoma law must determine the child's parents: An Oklahoma hospital needs to get consent for medical care; an Oklahoma police agency needs to determine whether the adults with the child are legally authorized custodians for the child; an Oklahoma school needs authorization for this or that from the parent.

Under Oklahoma law, as I read it, the adoption can't be recognized. So who are the child's parents? Why, the biological parents, wherever they are and whatever they may be doing. Even if the adoptive parents can be somehow treated as the child's guardians, presumably there'd need to be some checking with the biological parents. What if the biological parents are virtually impossible to find? What if they are dead? What if they decide to reassert their parental rights, almost certainly very much against the child's desires, but perhaps if they're trying to implicitly extort some payment from the adoptive parents? (Such implicit extortion can take place without any incriminating statements being made by the biological parents.) [UPDATE: Some commenters suggest that perhaps the termination of the biological parents' rights would be recognized but the adoption by the adoptive parents would not be — in which case, the child would have no legally recognized parents, and might perhaps then end up the ward of the state, hardly an improvement over the scenario I first described.]

What a horrible situation for the child — to have the government not recognize the only parents you've known as your parents, and to have the government thus interfere with your ability to get all the services that require your parents' approval. This is much worse than not having your parents' marriage recognized as a marriage, which might burden you in other ways. It's much worse than even not having one of your parents recognized as your parent (bad as that would be). It might put you in the position where there is no-one close to you who has the legal power to help you in those legal contexts that require a parent.

And what possible justification can there be for harming children this way? Say you think that children are better off with parents of the opposite sex than with parents of the same sex. I'm not sure that's right; and I suspect that restricting adoption will on balance leave more children with no permanent parents at all, the worst possible situation for them.

But even if children are better off with parents of the opposite sex, I doubt that the Oklahoma law will have much of a deterrent effect on adoptions by same-sex couples. Certainly people who adopt in California are unlikely to decide not to adopt (or to adopt with a different partner) because of a fear that they'll have trouble if they move to Oklahoma. Perhaps a few Oklahoma couples won't leave the state to adopt and then come back. Yet on balance the harm to adopted children will, I think, very much outweigh whatever conceivable benefit there may be in shifting some adoptions away from same-sex couples and towards opposite-sex parents.

So the Oklahoma statute would either harm children of same-sex couples who visit or move to Oklahoma — or will lead their parents not to go to Oklahoma at all, or let their children go to Oklahoma. I see no plausible justification for either alternative, which is why it seems to me that, even apart of constitutional questions, laws such as Oklahoma's should be strongly condemned.

Protector of the Orientals:

Who was known by this title (at least according to an argument reprinted in a U.S. Supreme Court opinion)?

Congressional Shenanigans:

John Fund has an interesting article on Congressional shenanigans and heavy-handed parliamentary rule in the House of Representatives. In some respects, he notes, this is nothing new, and it's not getting any better:

The breakdown has been a long time coming. In the 1980s, after almost 40 years of control, House Democrats had become arrogant and casually exercised the near-absolute power that body gives the majority. In 1985, Democrats insisted on handing a disputed Indiana House seat to the Democratic incumbent by a four-vote margin despite clear evidence that ballots had been handled in a completely arbitrary way during a special recount by a House task force. In 1987, Speaker Jim Wright held open a budget vote for an extra 10 minutes in a frantic effort to convince someone to change his vote. The maneuver prompted then-Rep. Dick Cheney to call Mr. Wright "a heavy-handed son of a bitch."

Republicans didn't act any better during the reign of Majority Leader Tom DeLay. In 2003, a massive Medicare prescription drug entitlement was passed only after a vote was held open for three hours at 3 a.m. as Mr. DeLay strong-armed reluctant GOP members into voting for it. Votes were held open at least a dozen times during the last years of the Republicans' troubled control of the House.

Democrats issued a report in early 2006 pointing out the abuses of GOP rule. None other than Newt Gingrich admitted that he thought his party was too dismissive of the rights of the minority and risked a backlash if Democrats regained control.

Indeed, that happened with stunning speed after the GOP's fall from power last November. Despite Ms. Pelosi's pledge that "we would have the most honest and open government," the new majority quickly adopted a whatever-it-takes approach to passing legislation. Last week alone, a dubious ethics bill was passed less than 24 hours after being introduced. The bill expanding health-care coverage to children was rewritten at 1 a.m., a rule harshly limiting debate was passed at 3 a.m., and the bill was sent to the floor for a final vote the same day.

Fund argues that it is in the interest of both parties to stop the infighting, but offers no reason to be particularly optimistic.

Related Posts (on one page):

  1. Congressional Shenanigans:
  2. Disorder in the House:
Are Telcos Still Liable for NSA Cooperation?

As Orin noted below, one of the most significant changes to FISA is that ISPs and Telcos are now required to cooperate with the program. Yet according to today's WSJ (subscription only), the FISA reforms do not resolve questions about ISP and Telco liability for cooperation with the program in the past.

he measure lacks a provision sought by the White House and telecommunications companies: protection from lawsuits filed against phone companies by privacy groups and customers for past cooperation with government spy programs.

Under the expansion of surveillance authority since Sept. 11, 2001, some major phone companies have complained that their cooperation has left them vulnerable to legal liabilities. AT&T Inc. and Verizon Communications Inc. have been sued by civil-liberties groups and state-utility regulators. Some phone companies have curtailed their cooperation with intelligence programs in recent months, according to people familiar with the matter. The new law instead provides a more limited element of legal cover by compelling phone companies to cooperate. . . .

Partly to tackle the companies' concerns, the new law includes language that compels telecommunications providers to cooperate with government intelligence surveillance orders. The compulsion order is critical, because it provides phone companies with a ready-made justification if sued. The law also explicitly gives telecom companies protection for future cooperation with government surveillance programs.

However, absent from the law is a blanket liability protection to absolve companies for any privacy violations that may have occurred during their cooperation with earlier surveillance activities. The White House pushed for such a measure and has promised to try to have it included when a long-term update to FISA is considered, probably later this year.

UPDATE: Jack Balkin notes liability protection remains high on the Administration's wish-list and offers some thoughts.

Evaluating The Two-Income Trap Hypothesis:

As I've been working on my book on bankruptcy this summer, I've been going back through the various hypotheses that have been advanced for the rise in American bankruptcy filings in the 1980s and 1990s. One hypothesis was that advanced in The Two-Income Trap: Why Middle Class Mothers and Fathers are Going Broke by Professor Elizabeth Warren and Amelia Warren Tyagi.

Warren & Tyagi's argument can be easily summarized. They focus on the rise in the number of households with two parents working as an indication of economic distress. Conventional economic theory would indicate that one benefit of having a second wage-earner is that it will make the family more resilient to a financial setback or loss of job than a traditional family with only one wage-earner. Families today, unlike those a generation ago, can save the second earner's income as precautionary savings, thereby making it easier to withstand a setback.

Warren and Tyagi disagree with this conventional economic approach.

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Sunday, August 5, 2007

Magic Jack:

This is the name of a device that you plug into a USB port, allowing you to make phone calls from a regular phone to U.S. [and Canadian] numbers for free. The license fee is $40 for the first year (includes the device), and $20 for the next year. It supposedly works over any high-speed line, including outside the U.S. (but you can only call U.S. [and Canadian] numbers). I started using it last night. It took about three seconds to plug the device in, and another 2 minutes to get the software set up. I was assigned a local number, though local numbers are only available sporadically. Anyway, really amazing! I mostly use my cell phone for long distance, and Magic Jack makes much clearer calls, on both ends. I can't imagine how Vonage and other companies charging $20 plus per month for essentially the same service will compete.

"Looking for a Leaker":

Micahel Isikoff reports in Newsweek that the FBI raided the home of Thomas Tamm, a former attorney in the Justice Department's Office of Intelligence Policy and Review (OIPR), seizing several personal computers and some of his personal files. According to Isikoff, "two legal sources who asked not to be identified talking about an ongoing case told Newsweek the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media."

My Take on the New FISA Amendment: Last night the House of Representatives approved a temporary amendment to the Foreign Intelligence Surveillance Act that passed the Senate on Friday night. President Bush will sign it shortly. The language is here. On the merits, I think this legislation on the whole seems relatively well done. I would have tinkered with it in some ways, and there are parts I'm not sure about, but the basic structure seems pretty good. Given that this is a 6-month temporary fix, not a permanent change, I tend to support it.

  Of course, we're talking about policy here, not law, and different people will have different reactions based on their policy preferences and sense of the threat. Some will think the new legislation is tepid; others will think it signals the coming of the National Surveillance State. Some people think Al Qaeda is about to nuke America, and others think Al Qaeda poses no threat at all. For the most part, our reactions to new surveillance laws hinge on where we fall on those two lines. My own preferences and sense of the threat are both somewhere roughly in the middle (or so I think -- it's hard to guess exactly what the distribution is). Based on those preferences and sense of the threat, as well as my initial read of the legislation, I think this legislation on the merits is relatively well done.

  So what does the legislation do? As I see it, there are three key parts of the new legislation. The first change is a clarification that FISA warrants are not needed for "surveillance directed at a person reasonably believed to be located outside of the United States." That is, if the government is monitoring someone outside the United States from a telecom switch in the U.S., it can listen in on the person's calls and read their e-mails without obtaining a FISA warrant first. The Fourth Amendment may still require reasonableness in this setting when one or more people on the call of e-mail are inside the U.S. or are United States citizens, but there is no statutory warrant requirement.

  The second change is a requirement of a formal authorization of a program to do such monitoring. The Director of National Intelligence and the AG have to approve a program (for up to one year) reasonably designed to be limited to the monitoring of persons outside the United States. Those procedures have to be submitted to the FISA court, which then reviews whether the Executive's conclusion that the procedures are reasonably designed to only pick up the communications of people reasonably believed to be outside the U.S. is "clearly erroneous." If the conclusion is clearly erroneous, the court sends them back and tells the Executive to try again. The government can also appeal that determination to the FISA Court of Review and if needed the Supreme Court. I'm not exactly sure, but my sense is that this is a one-size-fits-all order; that is, the one authorization covers all the providers.

  The third change -- and probably the most important, albeit something that a lot of people will overlook -- is that ISPs and telcos have to comply with the program. They will get compensation for their time and effort "at the prevailing rate," and they can challenge the legality of the program in the FISA court, but they can't opt out of the program if it is held to be legal. In effect, the government's certification of the program is akin to a court order; it makes the program mandatory instead of optional. So long as the program passes legal muster, the providers have to go along with it; if they refuse to cooperate, the FISA Court can hold them in contempt. (Note that the providers can't be held civilly liable for their mandatory participation in the program, either.)

  This is pretty complicated legislation, and my morning-after blogging isn't going to capture a lot of the nuances. Still, here are some reactions. First, I have a number of concerns about the legislation from a civil liberties perspective. For example, limiting judicial review to whether it is clearly erroneous that something is reasonably designed to target those reasonably believed to be outside the U.S. seems like a pretty weak threshold. I'm guessing that the FISA Court judges will be pretty tough on this despite the statutory language, but the statutory language itself is obviously very deferential. I also would want the courts to pass on the reasonableness of the government's method more than once a year (note that under the sunset, an authorization can go on for a year even if the legislation has been sunsetted; I gather this means that the legislation is really effective for a year, not six months). I also have an instinctive difficulty with the mandatory nature of the program without individualized court orders forcing compliance.

  At the same time, this legislation does a number of things well. I think I basically agree with the idea that if someone is outside the United States, FISA should not regulate the monitoring of their communications. Intelligence agencies have long been able to monitor such calls from listening posts outside the U.S. without triggering FISA (think Echelon); this legislation makes the same rule apply regardless of where the communication is routed. Although I'm not happy about forcing ISPs and providers to comply with a mandatory program, the basic idea of letting the government access those communications without a statutory warrant requirement seems appropriate.

  I also like the idea of submitting the means of implementing FISA to the judges for evaluation. Although the review is deferential, it recognizes that the technical means of implementing FISA's broad guidance is really critical to how the statute operates. I also think it's important that this is a temporary fix. If the Patriot Act experience is any guide, any reauthorization will come with some serious legislative scrutiny and a ratcheting up of oversight mechanisms as a condition of re-approval.

  Anyway, those are my tentative thoughts. More reactions can be found at Balkinization and Obsidian Wings.
FISA Reform Round-Up:

At Balkinization, Marty Lederman has a collection of "Helpful FISA Posts." How Appealing also has a round-up of news coverage here.

Sunday Song Lyric: Marcy Playground is best known for their single "Sex and Candy." Reader Alan Stern thinks some of their other songs are worth a listen. In particular, he suggests "The Vampires of New York":
The music itself is half the fun because it provides the atmosphere (counterpoint) for the lyrics. It's a very light, sing-songy vibe as if the singer is a carnival barker (suggested by others at the above link) trying to sell the listener on an amusement park ride, or as if the listener is on one.

I was listening to it a bit ago and was struck by the social commentary. Quite a few potential interpretations. The whole while the singer is acting as if it's fun and games. The last lines are particularly light.
The lyrics begin:
Come see the vampires of New York
Come lose your mind in Central Park
But don't leave your soul behind
Come take in 8th street after dark
Such peculiar people you'll remark
You might even see a murder

And all the whores on Bleecker Street
They wear the blissful grin
Caused by the drugs they take
To relieve them of their sins
The full lyrics are available here, and here is a user-created video on YouTube.