Fourth Amendment Protection in Text Pager Messages:
The Ninth Circuit recently held oral argument in a fascinating case on how the Fourth Amendment protects messages sent and received via pagers. The name of the case is United States v. McCreary, and I have posted the brief for the defense here and the brief for the United States here. You can listen to the audio of the oral argument from mid-October before Judges Hug, W. Fletcher, and Clifton from this link. This potentially is a very important case, so I thought I would blog some relatively detailed thoughts about it. Given the usual pace of such things, the opinion probably will be published in a month or two.
This appeal involves a string of bank robberies McCreary committed in 2002 along with several co-conspirators. Members of the group communicated with each other largely using MCI/Skytel text pagers. The pagers could send and receive messages in various different ways: first, you could enter in the pin # of the pager from another pager and then type in the message; second, you could go to Skytel's website, enter in the pin, and then send a message over the website; and fourth, you could send an e-mail to the PIN number of the text pager at the "skytel.com" domain. At least at the time, in 2002, MCI/Skytel kept records of all messages sent through its pager system.
Investigators found out about the group's use of MCI/Skytel pagers and knew several of the pin numbers, so they issued subpoenas to get the records of the calls and the text of the messages sent and received. MCI/Skytel returned records including the actual texts of the pager messages. (I found the record a little unclear here, but that's the basic idea.) The text pager messages proved very helpful to the prosecution, as the members of the conspiracy were very open about what they were doing in their pager messages.
The legal question in United States v. McCreary is whether the government violated McCreary's Fourth Amendment rights by obtaining the text of the pager messages using a subpoena instead of a search warrant. This big question in turn breaks down into three distinct questions. First, does the legitimate user of a text pager system generally have a Fourth Amendment reasonable expectation of privacy in the contents of his messages? Second, if so, do the facts of McCreary's usage of the pager system fall within that general rule of Fourth Amendment protection? And third, if the Fourth Amendment protects the pager messages, did the subpoena violate the Fourth Amendment?
Let's take these questions in turn. As to the first question, I think the best answer is yes: the legitimate user of a text pager system generally will have Fourth Amendment protection in the contents of his messages. There are a bunch of reasons why, but the best doctrinal reason is explained in what I wrote on this topic in the forthcoming edition of LaFave, Israel, King & Kerr, Criminal Procedure Ch. § 4.3(c) (3d Ed. forthcoming Jan. 2008). The issue was Fourth Amendment protection in text messages and post-cut-through dialed digits — basically, communications you enter using a telephone or other keypad that are contents rather than dialing of numbers. The same analysis seems to apply to text pager messages.
In my view, the key question is how to distinguish Smith v. Maryland, which ruled that a person has no Fourth Amendment protection in numbers dialed. Here's how I tackled the issue in the treatise:
There are two basic ways to interpret Smith v. Maryland, although the existing cases have not drawn out this difference. Under one interpretation, the case is merely a routine application of the party to the communication exception. The phone company was a party to Smith's dialing of the digits and therefore could consent to the monitoring. Because the phone company was a party to the communication, the phone company had control of the numbers dialed and could act in concert with the police much like any other party to the communication. Under a second interpretation, the case stands for the broad proposition that numbers dialed from a telephone do not receive Fourth Amendment protection. Smith dialed numbers from his telephone and the government monitored them; what matters for Fourth Amendment purposes is that the information collected were the numbers dialed. . . . In traditional telephone surveillance cases, the difference between these two [interpretations] does not matter. However, the difference matters a great deal to cases involving more modern uses of telephones such as the monitoring of post cut-through dialed digits. These are digits entered after the call has been connected – that is, "cut through" – and will generally communicate contents to a recipient other than the telephone company. For example, a person might call up a voicemail account and enter in a password or might call the bank and enter the last four digits of a social security number to access an account. Relatedly, a person might send a message to a pager or might send a text message (based on digits) from one cellular phone to another. Under the first interpretation of Smith, the post cut-through digits are contents of communications between the sender and the recipient of the communication; the phone company is no longer a party to the call, so the government cannot use its facilities to monitor the numbers dialed. Under the second reading, the numbers are still only numbers dialed and receive no protection. Although cases have not yet resolved which interpretation is correct, the specific language of Smith v. Maryland suggests that the first limited reading is correct. The reasoning of Smith is based heavily on the notion that the phone company was a party to Smith’s communication of the numbers: "The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber." In an earlier day, Smith would have had a conversation with the operator; the numbers dialed would have been the contents of the call between him and the operator. Thus the key to Smith is that the phone company was the intended recipient of the call, not that the numbers dialed have some special status as numbers dialed. This analysis should lead courts to hold that post cut-through dialed digits and text messages are not covered by Smith and are instead protected under Katz. Because the phone company is not the intended recipient of post cut-through dialed digits or text messages, there is no difference between the phone company listening in on a call and recording post cut-through dialed digits or texts. Both are protected under the Fourth Amendment just like traditional telephone communications.
The next question is whether McCreary in particular has a reasonable expectation of privacy in the messages. The difference between the general case and the specific one is critically important. For example, a person generally has a reasonable expectation of privacy in his car. However, he won't have such protection if it's a stolen car, or he obtained the car by fraud, or (in most circuits) it's a rental car and his name is not on the rental contract. This reflects a broad principle in Fourth Amendment law: Your reasonable expectation of privacy generally requires a particular relationship with the protected space or information, and whether access violates a reasonable expectation of privacy is contingent on how access is obtained. See, e.g.,Minnesota v. Carter (while there is an REP in homes generally, an invited guest lacks an REP when he is in the home only temporarily to bag drugs).
I couldn't quite tell McCreary's factual relationship with the pager. It sounds like it was a borrowed pager; as long as he had the permission of the owner, he should still have a reasonable expectation of privacy in the messages. If it was a stolen pager, it could be a different story. Also, he should have an REP whether he is the sender or receiver; both retain the same rights, cf. United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992).
At the oral argument, the argument focused in part on (a) the role of the Stored Communications Act, and (b) the role of Skytel's billing practices. In my view, the Stored Communications Act is just irrelevant. It is a statutory privacy law designed to supplement any existing constitutional protections, but its provisions neither add to nor can take away from existing constitutional protection. It's possible to come up with arguments that the Act actually creates protection, and it's also possible to come up with arguments that the Act should be read to discourage findings of Fourth Amendment protection. Indeed there are snippets of authority for both sides — see pages 435-36 of my Computer Crime casebook for a discussion if you're interested. But in my view neither of these arguments work: the argument that the statute creates protection fails because the statute intentionally creates only lesser protections, and the argument that the statute takes away protection fails because it's ultimately an argument about the passive virtues rather than constitutional meaning. The constitutional and statutory questions must be kept separate.
The argument about Skytel's billing practices is relevant only insofar as it relates to Skytel's rights to permit third party consent or the private search doctrine. If Skytel had access to all the messages, or even publicized them, then that would impact Skytel's rights to consent to police seeing the text messages or (if the messages were made public, such as posting them on a public website) whether Skytel had conducted a "private search" that exposed the messages to all. Those issues may be indeed relevant in a future case, but I don't see how they are directly relevant here: here the government obtained a subpoena and wasn't seeking third party consent.
The third and final issue is the trickiest: If McCreary has Fourth Amendment rights in the messages, does a subpoena suffice to compel the information from Skytel? At first blush, the issue seems sort of odd: You're probably thinking, hey, doesn't Fourth Amendment protection mean a warrant? However, the answer turns out to be much more complicated. Courts generally treat subpoenas quite differently as a sort of parallel authority based on reasonableness instead of probable cause. The question is one I discussed extensively in my amicus brief in United States v. Bach in 2002 (see pages 15-24, for the three of you still reading): If the government obtains Fourth Amendment protected information from third parties, is a subpoena sufficient or is probable cause required?
I have written about this in my Computer Crime Law casebook (pages 437-445), without ever resolving it: I think it's actually maddeningly hard. To see how hard it is, just take a glimpse at the cases involving subpoenas for blood samples. The government wants a blood sample from you, and they cut a subpoena to get it. You want to challenge the subpoena; what's the standard? Obviously it's some kind of search to force you to give up your blood. But what cause is required? State and federal courts are all over the map on this question: some say that a usual reasonableness subpoena is required, others say that a subpoena must also have reasonable suspicion, and others say that the subpoena must be accompanied by probable cause. The problem is hard because it clashes two principles: the well-established low legal regulation of subpoenas, and the general high legal regulation of collecting evidence from inside the body. Which wins out?
The question of Fourth Amendment access to third party records is similarly hard because it also clashes two principles: the well-established low legal regulation of subpoenas, and the general high legal regulation of private papers. In particular, consider the switch in the legal regulation of access from suspects and third parties. If the government wants to subpoena a document from me directly, the Fourth Amendment offers only very limited protection. I have Fourth Amendment protection, sure, but all I have is reasonableness — generally understood as protection against overly broad, overly burdensome, or downright irrelevant requests. In that setting, it's the Fifth Amendment that protects me instead of the Fourth Amendment: the government is unlikely to subpoena my directly because I normally will have a Fifth Amendment privilege against production (see Hubbell). The Fifth Amendment generally blocks government access.
Now say I hand of my records to a third party, and the government wants the records from the third party. The Fifth Amendment protections evaporate under the Fisher case. So what happens to the Fourth Amendment protection? Does passing off the document to a third party actually raise the protection from reasonableness to full probable cause, sort of filling in for the loss of Fifth Amendment protection? That seems like a pretty weird result. But then isn't it also weird if you have Fourth Amendment protections that are trivial to overcome with a mere grand jury subpoena?
It will be interesting to see how the Ninth Circuit handles this exceedingly difficult problem if it reaches it. The now-vacated panel opinion in Warshak tried to draw the line at notice: it ruled that the standard is probable cause without notice to the customer but reasonableness with notice to the custmer. Perhaps that's right, although I would like to hear more about why. I've started an article on Fourth Amendment protection for e-mail that will have to address this issue, but to be honest I don't know where I come out yet (haven't worked out that part yet — ah, the luxuries of being an academic). Some of my earlier work suggested that the rule should be reasonableness, and I think that's probably the most doctrinally simple approach, but I'm not entirely sure where I come out today. The sparse legal scholarship has tended to say a warrant is required, see, e.g., Tricia Bellia's GW article, but this strikes me as influenced by a significant dose of normative preference. Right now I think it's the most difficult and open question in the McCreary case, and I'm very eager to see what the Ninth Circuit will do (and more importantly, how they explain why they did it).
A consumer group prodded the Food and Drug Administration yesterday to regulate salt as a food additive, arguing that excessive salt consumption by Americans may be responsible for more than 100,000 deaths a year.
The government has long placed salt in a "generally recognized as safe" or GRAS category, which grandfathers in a huge list of familiar food ingredients. But in an FDA hearing yesterday, the Center for Science in the Public Interest (CSPI) urged the agency to enforce tougher regulations for sodium.
Doing so "lays the foundation for saving tens of thousands of lives per year," said CSPI Director Michael Jacobson in an interview after the hearing. It "just has tremendous potential to health and to cut health-care costs."
"After 25 years of inactivity, the FDA is taking the salt issue seriously," Jacobson said. "They're really gathering information . . . and getting an earful from all sides."
UPDATE: Katharine Van Tassel has more at BioLaw here. Among other things, she ponders whether revoking salt's GRAS status could have implications for sugar.
I have now completed my ankle surgery and am no longer in pain from it. Thanks to all the well-wishers in cyberspace and elsewhere! I face 4-6 weeks of annoying walking on crutches and other recovery issues, but it should eventually all be OK. For the moment, it is still extremely difficult and disorienting not to be able to walk or drive, but I'm sure I'll overcome the problems involved over time, at least well enough to get through the recovery period.
I do have a couple of reflections for people who may be going through similar problems, now or in the future. First, do not imagine that you can get through the first few days after surgery living all by yourself. I foolishly thought that I could, but my doctor and relatives set me straight, and one of my family members generously came to live with me for a few days. Trying to make it on your own right after a serious surgery is actually both foolish and dangerous. Don't try it if you have any choice at all.
Second, this experience has given me a new appreciation for the value of extended families. As a friend from an extended family culture pointed out to me recently, that setup spreads the burden of caring for an invalid over a large number of different relatives who can each pitch in a little. That makes things easier for both the injured person and the caregivers/family members (none of whom face a really severe individual burden).
Obviously, extended families also have significant drawbacks and I'm certainly not advocating that we all return to that lifestyle. However, it's worth noting that the extended families have their advantages as well, and dealing with crises is certainly one of their strengths.
OK, I think that's enough surgery-blogging. I will try to return to more normal blogging topics as soon as my recovery permits.
UPDATE: Some claim that reliance on family members to help you during an illness or other crisis is unlibertarian, and that a true libertarian would rely on the market to solve such problems. See, e.g., here. This view is based on a misunderstanding of libertarianism that portrays it as advocating that all problems be solved by commercial transactions in the market. In reality, libertarians advocate the superiority of the private sector broadly defined over government. That private sector includes families, civil society, and charitable organizations as well as commercial enterprises. In some cases, noncommercial private sector options will be better than commercial ones (as is probably true for my recovery from my current operation). There is nothing unlibertarian about recognizing that reality. Moreover, even where family or charitable organizations will do a better job than for-profit businesses, the latter may still be better than government service providers. If I had no family members to help me in my current situation, I'd much rather rely on a commercial firm to provide the needed services than on a government bureaucracy that has little or no incentive to do a good job and that will not lose profits if it performs poorly.
Overlawyered.com is rounding up news and commentary about the criminal indictment of noted plaintiffs' attorney Richard Scruggs. Scruggs is not the only high-profile plaintiffs' lawyer under siege. Earlier this year, class action maven William Lerach pled guilty to a federal conspiracy charge.
Along with many others, I've criticized Ron Paul for not renouncing support from assorted loonies. However, at least Paul has not directly solicited their support (update: as a commenter points out, he does, however, appear regularly on "Truther" Alex Jones's radio show). By contrast, "Obama paid his respects to one of Harlem's top powerbrokers - Reverend Al Sharpton, who says he hasn't decided who he is supporting, but the meeting sent a warning to Hillary Clinton that Harlem could be up for grabs." So long as it's considered acceptable for "mainstream" candidates to actually solicit support from the likes of Sharpton, and for that matter Giuliani supporter Pat Robertson, it gives Paul supporters good reason to question why their candidate is receiving such scrutiny for merely refusing to screen supporters. Apparently, if dangerous fringe demagogues have a sufficiently large political constituency, anything goes. (In my own case, I merely pointed out that the Paul campaign's refusal to disassociate itself from fringe supporters discourages me from supporting him as a protest candidate.)
He's just terrible, even when -- which is often, once he's off the subject of the war -- I agree with him. His voice is too high, he can't remember who the Kurds are, and he often comes off like a crazy old man in a bus station.
But that's good news, in a way. Paul's doing better than anyone expected. It's abundantly clear that he's not doing it on charisma and rhetorical skill. Which means that libertarian ideas are actually appealing, since Ron Paul isn't. Paul's flaws as a vessel for those ideas prove the ideas' appeal. If they sell with him as the pitchman, they must be really resonating. I suspect Paul himself would agree with this analysis. Er, except maybe the bus station part.
My post on a proposal by Georgetown law professor Nick Rosenkranz for a constitutional amendment barring the use of foreign law in constitutional interpretation prompted extensive comment. The post was based on a presentation Prof. Rosenkranz made on a panel at the Federalist Society's annual lawyer's conference. Audio and video of the panel are now available here.
To recap the argument, Prof. Rosenkranz proposed a consitutional amendment stating that foreign law should not be used in constitutional interpretation. To be clear on what this proposal entails, it would not bar examination of historical texts, even those from abroad (such as pre-ratification English common law court decisions, Blackstone, etc.) that may help elucidate the meaning of constitutional provisions. It would, however, preclude judges from looking to contemporary sources of foreign law when seeking to discern the meaning of constitutional text. This would not be a new rule of constitutional interpretation, Prof. Rosenkranz argues, but a restatement of the original understanding. As he explains in this paper, "the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states." Like the 9th and 11th Amendments, it would be a restatement of an interpretive rule that had been implicit in the document. However much I am suspicious of constitutional amendments, I think the underlying arguments are important and worth serious discussion.
I should also note that Prof. Rosenkranz was joined on the panel panel by his colleague Vicki Jackson, Yale's Akhil Amar, and the Honorable Frank Easterbrook. All gave interesting remarks, so the whole panel is worth watching (or podcasting).
PENNumbra, the on-line supplement of the University of Pennsylvania Law Review, has posted a debate between Bradley Smith and Ed Foley on voter ID requirements. Later this term, the Supreme Court will hear oral arguments in Crawford v. Marion County Election Board, a constitutional challenge to Indiana's particularly stringent voter ID requirement.
November 29 is the United Nations' "International Day of Solidarity with the Palestinian People." It occurs on the anniversary of the 1947 date that the United Nations voted to partition the British Mandate of Palestine between Jews and Arabs. Many Palestinians and other Arabs rejected the UN partition, and started a war to exterminate the infant state of Israel a few months later. So by choosing November 29 as Palestinian day, the United Nations is in effect rewarding the aggressors who refused to comply with the UN plan. A much better date for the United Nations to acknowledge the suffering of the Palestinian people would be December 8, the anniversary of the 1949 creation of the organization that, for over half a century, has done more than anyone to immiserate the Palestinian people. That organization is UNRWA, the United Nations Relief and Works Agency for Palestine Refugees in the Near East.
That there is 21st-century refugee problem from a war that ended in 1949 is primarily because of UNRWA’s decision to maximize Palestinian suffering for political advantage.
Established in December 1949, UNRWA began operations the next May. The UN Agency's job was to help settle the Palestinians who had left Israel because of the 1948-49 war. According to General Assembly resolution 302(IV), UNRWA's mandate was that "constructive measures should be undertaken at an early date with a view to the termination of international assistance for relief."
Over half a century later, UNRWA's annual budget is nearly half a billion dollars, including nearly $150 million from US taxpayers. As UNRWA's website explains, "In the absence of a solution to the Palestine refugee problem, the General Assembly has repeatedly renewed UNRWA’s mandate." Stated another way, UNRWA's bureaucratic existence depends on making sure that the Palestinian refugee problem is not solved, and that "international assistance for relief" is not terminated at an "early date," or ever.
In 1950, the United Nations created the United Nations High Commissioner for Refugees (UNHCR), which began work in 1951. UNHCR tries to help refugees all over the world. It has worked on behalf of refugees in more than a hundred nations. UNHCR, which whose work is governed by the Convention Relating to the Status of Refugees, has helped more than 25 million refugees begin new lives.
In terms of organizational behavior, UNHCR has no incentive to try to obstruct the solution of any particular refugee problem. To the contrary, UNHCR can work to solve one problem, secure (bureaucratically) in the knowledge that new problems with other refugees will occur soon enough.
But in 1949, there was no UNHCR, so UNRWA was created solely to deal with the Palestinians. UNRWA is the only UN entity dedicated solely to serving a single ethnic group.
The creation of UNRWA turned out to be a catastrophe, particularly for the Palestinians, and also for the Israelis. Because the suffering of Palestinians has been used so effectively by terrorists to build support for attacks on the United States, Americans are also victims of UNRWA. America's naive good intentions in providing billions for UNRWA, while Arab governments contribute only a pittance, has obviously not bought America good will in the Middle East.
In retrospect, it is clear that once the UNHCR was created, the UN should have merged UNRWA into UNHCR. Then UNHCR could have aided the Palestinian refugees the same way that it has aided refugees in so many other countries—by helping them find new, permanent homes, so they could begin building new lives.
The Origins of the Refugee Problem
Wars often produce refugees. People who choose to start a war must accept responsibility for the creation of refugees of a result of the war.
From the end of World War I until 1948, "Palestine" (a name invented by Roman imperialists) was governed by the United Kingdom, as the result of a mandate from the League of Nations. Formerly part of the Ottoman Empire, Palestine (consisting of the modern nations of Jordan and Israel) was acquired by the UK as part of the spoils of World War One.
The reason that the League of Nations awarded Palestine to the UK was the 1917 Balfour Declaration, which promised to create a Jewish homeland there. The Declaration was part of a British effort to win Jewish support during the war.
But the British government broke its promise and failed to carry out the League of Nations mandate. Even after World War II and the Holocaust, Britain refused to create a Jewish homeland. The exasperated Jewish population's war of national independence finally led to Britain announcing in 1947 that it would abandon its mandate in Palestine in 1948. In late 1947, the United Nations announced a partition of Palestine: over 80% would be given to the new nation of Jordan, whose population was (and still is) majority-Palestinian. The new Jewish state would be given only territory which was already owned by Jews, or which was Crown property (owned by Great Britain).
On the day in May 1948 that Israel declared its independence, the new state was granted diplomatic recognition by American President Harry Truman. The same day, five Arab states, joined by many Palestinians, launched a war of extermination.
The war lasted from 1948 to 1949, when the Arabs gave up trying to destroy the Jews immediately, and accepted an armistice, although they did not renounce their state of war.
During the Arab war of aggression, several hundred thousand Arabs left Israel. Some left because they listened to the Arab propaganda urging Palestinians to get out of the way of the Arab armies. Some left without prompting because they just wanted to get away from the fighting. Some were pushed out because they were part of Palestinian villages that were fighting to eliminate the Jews.
Many Arabs, however, chose to stay in Israel, and today they constitute one-sixth of the Israeli population. For over half a century they have enjoyed the rights denied almost everywhere in the Arab world: complete freedom of religion, freedom of speech, the right to vote, the right to be elected to government (as many Israeli Arabs have been), the right to due process of law under a fair judicial system, and many other fundamental human rights. The nation with by far the best record in the Middle East for protecting the right of its Arab citizens is Israel.
During war, Israel urged the Arabs to stay, and after the war Israel welcomed back a hundred thousand who did return.
At about the same time--from 1947 to 1950--over three-quarters of a million Jews were forced out of Islamic nations where they had lived for many centuries. Intensified persecution in Iraq, Yemen, Morocco, Syria, and other Islamic countries made life intolerable. The United Nations did nothing for the Jewish refugees.
Most of the Jewish refugees went to Israel, where they were welcomed, and the new government worked hard to integrate them into society. Israel has always accepted Jewish refugees from anywhere, and today Israel is one of the most successful multi-racial and multi-ethnic societies in the world.
The Palestinian Arab refugees did not receive similar treatment from their Arab brethren. Except for Jordan, none of the Arab countries would grant them citizenship. Instead, the Arab governments decided to make them permanent refugees. By preventing them from resettling, the Arab dictatorships could create a human rights problem which could be used to distract the subjects of the Arab dictatorships from the massive human rights abuses of those dictatorships.
As Ralph Galloway, a disillusioned former director of UNRWA observed in 1958: "The Arab states do not want to solve the refugee problem. They want to keep it as an open sore…and as a weapon against Israel. Arab leaders don’t give a damn whether the refugees live or die." (Terrence Prittie, "Middle East Refugees," in Michael Curtis et al., eds., The Palestinians: People, History, Politics (Piscataway, N.J.: Transaction Books: 1975), p.71.)
Today, many of the children, grandchildren, and great-grandchildren of those Palestinians who left Israel in 1948 still live in refugee camps. They are the only refugee population in the world for whom the United Nations has actively prevented resettlement.
UNRWA's Refugee-Maximizing Rules
Because of pressure from Arab countries, UNRWA was, from its very inception, given almost unlimited autonomy. It sends one report per year to the General Assembly, and is subject to essentially no checks or balances on its operations. There are no outside audits; just an audit performed by the notoriously corrupt UN itself.
UNRWA has used its autonomy in the manner favored by its prime UN sponsors—the Arab bloc—to ensure that as many people as possible are classified as "Palestinian refugees."
For all refugees in the world--except the Palestinians whom UNRWA "serves"--the key international law is the 1951 United Nations Convention Relating to the Status of Refugees. The UN's High Commissioner for Refugees follows the standards of the Refugee Convention.
The UNCHR defines its objective as finding solutions, which often means working to ensure that "everyone can exercise the right to seek asylum and find safe refuge in another state." The goal of UNHCR, in accordance with the 1951 Convention, is to help people stop being refugees.
UNRWA does just the opposite. For example, the 1951 Refugee Convention defines a "refugee" as a person who "is outside his/her country of nationality or habitual residence; has well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution."
The UNCHR definition means that, at the least, a refugee must be someone who has left his "country of nationality or habitual residence." If an American businessman lived in China for three years, and then the businessman tried to help some countries which were invading China, and then the American businessman fled China after China won the war, the American businessman would not be "refugee" according to UNCHR's common-sense definition.
Likewise, if a Jewish or Ukranian family fled from Communist persecution in the Soviet Union in 1948, and came to the United States, then the American children, grand-children, and great-grand-children of the Soviet refugees would, obviously, not be refugees according to UNCHR. The children, grand-children, and great-grand-children, having been born and spent all their lives in the United States, could hardly be "habitual" residents of Russia.
UNCHR’s common-sense definition of "refugee" is designed to identify true refugees, while preventing other people from making false claims about refugee status for political purposes.
UNRWA works in exactly the opposite way, awarding refugee status to people who are not real refugees.
Although Jews have lived in Israel continuously for over three thousand years, a surge of Jewish immigration to Israel began in the late 19th century, when the area was ruled by the Ottoman Empire. Immigration continued during the period of British rule, and the formerly torpid economy of the region began to blossom. The Zionist immigrants drained swamps, reclaimed wasteland, started small businesses, and made the desert bloom. The economic growth resulting from Jewish immigration attracted many Arabs, who sought to participate in the economic opportunities that had been created by Zionist initiative.
Many of the Arabs who left Israel because of the 1948-49 war had not been there very long. So UNRWA fabricated the definition that refugees were "persons whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict." By UNRWA's definition, the American businessman who left China after living there three years (or an illegal alien in the United States who got deported after living in the U.S. for more than two years) would be a refugee.
Similarly, UNRWA pretends that any descendant of a refugee is a refugee. By UNRWA’s theory, if your ancestors fled from someplace 150 years ago, then you are still a refugee. In fact, the descendants of many of the Arabs who chose to leave Israel after 1948 have permanently settled in other countries and become citizens. The largest number settled in Jordan, the only Arab country to grant them citizenship. Many others moved to Europe. Yet UNRWA still issues refugee cards to all of these people, and their children, and their children's children.
In contrast, 1951 Convention does not include any descendants of refugees—let along the third or fourth generation of descendants—as "refugees."
Similarly, the 1951 Convention specifies that if a refugee acquires a new nationality and the protection of a new government (e.g., a refugee from Russia becomes a U.S. citizen), she is no longer a refugee. In contrast, UNRWA claims that a "Palestinian refugee" who becomes a citizen of the United States, France, Jordan, or any other nation is still a "Palestinian refugee" forever--and so are his children, his grandchildren, and his great-grandchildren.
UNRWA has been so eager to increase the number of refugees that it can claim to serve that it has given out enormous numbers of refugee cards to people whom it knew were not refugees. (And then, of course, all the descendants of the person with the original refugee card are also counted as refugees.) UNRWA admits that it gave out at least a hundred thousand improper refugee cards (entitling card-holders to UN welfare) in its early days, although the actual number of improperly-issued cards may be much larger.
So today, you may hear that there are over four million "Palestinian refugees," a figure that has grown from the 914,000 refugees that UNRWA claimed in 1950. Most of them are not refugees, but are descendants of people whom UNRWA labeled as "refugee" many years ago.
UNRWA's Abuse of Palestinians
Of the "refugees," about two-thirds have found their own housing, while one-third live in one of the 59 housing facilities that UNRWA operates in five countries. Some of the housing is UNRWA-owned row houses in cities that have grown around or near the camps. Other housing is more primitive. Rarely are the housing facilities well-maintained. Their Palestinian residents do not own them; they belong to UNRWA, so no-one in a housing unit has a financial incentive to conduct preventive maintenance, let alone invest in improvements.
Moreover, UNRWA insists on the fiction that the housing units—which have been occupied from 1950 until the present—are merely "temporary" because the residents will be going "home" to Israel. So UNRWA too performs little upkeep or improvement, lest UNRWA be seen as deviating from its official pretense that the housing is temporary.
When Israeli troops entered Gaza in 1967, they were appalled at the squalid conditions in the UNRWA camps there. The Egyptians had forbidden residents to work outside the camps, and had not allowed electricity or running water inside the camps. Israel attempted to ameliorate conditions there, including medical care, and to replace shacks with small houses, but UNRWA blocked the improvements. UNRWA is often reluctant to allow conditions in the camps to improve, because such improvements might diminish the desire of "refugees" to "return."
In 1985, Israel offered to give 1,300 permanent homes near Nablus to refugees. Israel did not even ask the people who would receive the charity housing renounce their so-called "right of return." But the UN blocked the housing program, and claimed that "measures to resettle Palestine refugees in the West Bank away from the homes and property from which they were displaced constitute a violation of their inalienable right of return."
Similarly, after the Israelis withdrew from Gaza in 2005, the United Arab Emirates donated one hundred million dollars to the Palestinian Authority to build a new city in Gaza, for the benefit of people who have been harmed by the Arab-Israel conflict. Yet the PA refused to allow the refugees to live in this new city.
The Phony "Right of Return"
Under international law, there is no such thing as a right of return. If your ancestors left France, or Russia, or anywhere else (regardless of whether they were forced out, or they just wanted to live somewhere else), then you have no right of return to France or Russia. Nor do your grandchildren.
Nevertheless, UNRWA tells the "refugees" that they have a "right of return"” to Israel—that the grandchild of someone who moved to Tel Aviv to work as a janitor from 1946 to 1948 has a right to live in Israel, and to take back whatever real property their ancestor abandoned when he left Israel.
The pretext for the claim of an "inalienable right of return," is General Assembly Resolution 194, which says, "the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date..."
In fact, Israel did allow one hundred thousand Arabs who had fled the fighting to return to Israel.
The General Assembly Resolution itself indicates that the only refugees who should be allowed (not who have a "right") to return are those who wish to "live at peace with their neighbours." It is the Palestinians who have the obligation to prove—against a record of many decades of aggression—that they have changed, and are now willing to live in peace with their Jewish neighbors.
In 1974, at the height of the period when the UN was dominated by the Soviets and anti-Semites, General Assembly Resolution 3236 declared "the inalienable right of return" of the Palestinians, and formalized the UN's relationship with what was then the world's foremost terrorist organization, the PLO.
Yet in international law, General Assembly resolutions have no legal force. In contrast to Security Council resolutions, GA resolutions express nothing more than the sense of the General Assembly, and cannot, by themselves, create legal rights.
The notion of a right of return is preposterous not only as a matter of international law, but as a matter of common sense. Israel was established to be the Jewish homeland. To allow immigration by over four million people—the vast majority of whom have never lived in Israel, and whose ancestors rejected the opportunity for Israeli citizenship—would destroy Israel as a Jewish state. Even worse, more than half a century of anti-Israel propaganda education at UNRWA-run schools have turned many of the four million "refugees" into anti-Semites and supporters of terrorism.
UNRWA schools follow the curriculum in the host country, so UNRWA schools in Egypt and Syria are now, and always been, schools for indoctrination in extreme anti-semitism. In 1995, the Palestinian Authority was granted authority over UNRWA schools in the West Bank and Gaza, pursuant to the Oslo Accords. According to the Oslo treaty between Israel and the Palestine Liberation Organization, both sides were required to carefully revise their educational curricula, so that schools did not foment hatred. Israel complied with the Oslo Accords, while Arafat and his PLO did not. So beginning in 1995, UNRWA schools in the West Bank and Gaza adopted the hate curriculum developed by the Palestinian Authority.
The Committee for Monitoring the Impact of Peace (CMIP) analyzed the UNRWA/PA curriculum, based on general guidelines from the United Nations Educational, Cultural, and Scientific Organization (UNESCO). The analysis revealed massive lies about Middle-East history and the present, all of them geared towards fomenting anti-Semitism and encouraging terrorism. The schools' maps do not even acknowledge the existence of Israel. Among the features of the PA hate education are: covering up the extensive historical and archeological record of Jewish habitation of Israel and nearby areas from ancient times until the present; using the Koran to incite hatred to Jews; refusing to acknowledge the existence of Israel; presenting Zionism as a western colonial movement (even though it was resisted by Western colonial powers); ignoring the existence of Jewish holy sites; depicting Jews as uniformly evil; propagandizing for the destruction of Israel; blaming the status of Palestinian refugees solely on Israel (with no hint of responsibility for the Palestinians and other Arabs who started the war against Israel); and extolling jihad and terrorism.
A study of fourth and ninth grade textbooks by the Israel/Palestine Centre for Research and Information (the only joint Palestinian-Israeli public policy think-tank) also found extensive historical misrepresentation, maps which refused to acknowledge Israel's existence, and the promotion of jihad. Although the textbooks did promote "tolerance" in the abstract, the concept was not directly pplied towards modern-day tolerance of non-Muslims.
As a practical matter, no-one but the deluded victims of UNRWA and terrorist propaganda actually expects that Israel would honor the fictive right of return. But by making sure that as many Palestinians as possible remain refugees incensed about the continuing denial of their "right of return," UNRWA fulfills the objective of Arab dictatorships in making sure that the Arab-Israeli conflict is never resolved.
As with so much that the UN does, the "Palestinian right of return" is presented to the world as a high moral principle—but it is a principle that applies only when it can be used against Israel. Consider the many Palestinian guest workers who lived in Kuwait before Saddam Hussein invaded in 1990. Many of these guest workers had lived in Kuwait for much longer than two years (the period that UNRWA claims entitles a Palestinian and every one of his descendants to the right to "return" to Israel).
When Saddam invaded, many of the Palestinians in Kuwait supported him, as did the Yassir Arafat's Palestine Liberation Organization. After US-led forces drove Saddam out of Iraq, the Kuwaitis promptly expelled the entire Palestinian population.
If Kuwait were treated like Israel, the expelled Palestinians would be housed in special camps run by a UN agency created just for their benefit. The United Nations would incessantly denounce Kuwait for violating the "inalienable Palestinian right of return." And while insisting on the Palestinians’ right to return to Kuwait, the UN allow its schools to be used to teach children that Palestinians have a historical right to rule Kuwait, and to claim it by jihad if necessary.
In January 2000, Israel's government, under severe pressure from President Clinton, accepted his demands, and announced it would grant Yassir Arafat's Palestinian Authority a state of its own in the West Bank and Gaza. Faced with the granting of so many demands, Arafat was able to find a pretext for continued war only by insisting that neither he nor anyone else would ever make peace unless Israel also granted the "right to return"—thereby destroying any hope for peace. UNRWA's mission--as perverted by the Arab bloc--had succeeded.
The Annapolis Conference aims to bring peace to the Middle East in 2008. A helpful contribution by the United Nations would be to abolish UNRWA, which has long been an obstacle to a just resolution of the problems of the Palestinian people.
The John G. Roberts Umpire Watch:
Is Chief Justice John Roberts an "umpire," a "servant of the law" who merely "applies the law" rather than "makes the law" to his personal preferences? Or is he a political conservative who will always vote for the conservative cause in an ideologically-charged case? In his confirmation hearings, Roberts expressed hope that he would be an umpire. In his cases Last Term, however, Roberts tended to vote consistently for the conservative side.
In light of the uncertainty, I propose a new feature here at the Volokh Conspiracy: The John G. Roberts Umpire Watch. When a new decision comes down, we'll make a judgment call about whether it was one of the Court's ideologically-charged cases. (This will require umpire-like judgment, perhaps, but I think we can probably identify most of the cases relatively straighforwardly based on how most of the Justices voted.) If it was, then we'll classify Roberts' vote as either politically conservative or politically liberal.
Then, at the end of the Term, we'll tally up the numbers. If we see votes on both sides, it will support the case that Roberts is an "umpire." Someone truly following principle will go wherever that principle will take him, and that should led to mixed views from a political standpoint. On the other hand, if all the votes end up being conservative, that will support the notion that Roberts is voting to make the law to shape his personal preferences rather than merely following it.
I should add: Yes, of course, this kind of vote-tallying is imperfect. There are some circumstances in which a neutral umpire would always vote a particular way. I'm reminded of the pro se appellant who argued that the trial judge was obviously biased: after all, the judge had denied 100% of his motions! Still, I think that's less likely given the wide mix of cases the court hears. Even if a particular legal principle has a political valence, the mix of cases on the Court's docket is so diverse that few principles explain more than one or two votes. Given that, I think the tally should give us interesting insights into how Chief Justice Roberts approaches his job.
Unanimity and the Roberts Court:
Here's an interesting discussion on that topic with Jeff Rosen, Kathleen Sullivan, Doug Kmiec, Ken Starr, and Vikram Amar. (via Howard) A few thoughts in response:
First, I don't agree that we have an unusually divided court. I think the current Supreme Court is less divided than the Court has been at most times in its history. What's unusual about the current Court, from a historical perspective, is that it pretty much only takes cases when there is a clear circuit split. That means the Justices tend to take technical cases that are very hard, rather than grand questions of the direction of constitutional law. It's a pretty different docket today than you had 30 or 50 years ago. This magnifies divisions, as two people who basically agree on a topic can always disagree on particulars.
Second, I think Roberts' interest in unanimity mostly reflected his interest in keeping the role of the Supreme Court fairly narrow. Roberts doesn't want the Supreme Court to make enormous bold leaps, and unanimous decisions are usually decisions that don't rock the boat. As you get to a more divided Court, the chances of bold leaps tends to increase. So Roberts may have been thinking that he could limit the power of the Court by pushing the Justices to adopt narrower, unanimous ways of deciding cases.
Finally, I think the recent frustration apparent among the four liberal Justices is partly the result of Roberts being much more party-line than many expected. Roberts cultivated an image as the principled minimalist, but last Term he consistently voted in a conservative direction. If a coin flip always comes up heads, after a while you're gonna wonder about the coin. I would guess the liberal Justices began to think they'd been "had," and their frustration at least partially reflects that.
Douglas McCullough is a judge on the N.C. Court of Appeals and an announced candidate for re-election in 2008. He's a Republican, as he makes clear when speaking to Republican audiences.
One such occasion was Oct. 20 at Lake Junaluska in Haywood County. A video at McCullough's campaign Web site captures his remarks.
He describes himself and two other candidates -- Supreme Court Justice Bob Edmunds and Court of Appeals Judge John Tyson, also Republicans -- as EMT, a team needed to rescue the judiciary.
No problem with that.
Then he says Edmunds' re-election is especially important because of legislative redistricting, recounting how Democratic gerrymandering has kept Republicans in the minority in the state House of Representatives. After the next redistricting in 2011, a challenge is sure to go to the Supreme Court, McCullough says, strongly implying that Republicans will get a better deal if Edmunds is on the bench....
Clark argues the statements were improper; but it's hard to tell exactly what the judge said, because the video has been taken down from the Web site, and the judge has also apparently demanded that YouTube take down a copy that was posted there. The YouTube page pointed to by Clark reports, "This video is no longer available due to a copyright claim by a third party"; my guess is that the claim was filed by the judge or someone working with the judge (for instance, the videographer used by the Republican group to which the judge was speaking, who likely would not assert his own copyright if it the judge hadn't asked for it).
This takedown strikes me as quite troublesome: The posting of the video seems very likely to be fair use, because it was for purposes of news reporting and political commentary, and because it was highly unlikely to at all affect the market for the video (since the market likely didn't exist). More broadly, the judge is hiding important information from the public, information that he shouldn't be trying to conceal even if copyright law allowed such concealment. If anyone has a copy of the video and can point me to it, or e-mail it to me, I'd love to see it, and post it if it strikes me as newsworthy.
Thanks to my fellow lawprof Michael Kent Curtis for pointing out this story.
Subpoena Ruled Unconstitutional Because Some Bloggers Are Really Freaked Out By the Bush Administration:
Here's an excerpt from Magistrate Judge Stephen Crocker's new ruling that the First Amendment doesn't let criminal investigators issue a subpoena to people who purchased items from a person charged with tax evasion. The government apparently wanted the testimony so individuals could testify that they really did pay for the items, thus proving the income required. Why did the First Amendment block the subpeona? The person charged with tax evasion sold books, so the subpoenas are for book purchasing, and DOJ is part of the Bush Administration, and geez, we all know how some people like totally lose it about that kind of stuff:
In this era of public apprehension about the scope of the USAPATRIOT Act, the FBI’s (now-retired) "Carnivore" Internet search program, and more recent highly-publicized admissions about political litmus tests at the Department of Justice, rational book buyers would have a non-speculative basis to fear that federal prosecutors and law enforcement agents have a secondary political agenda that could come into play when an opportunity presented itself. Undoubtedly a measurable percentage of people who draw such conclusions would abandon online book purchases in order to avoid the possibility of ending up on some sort of perceived "enemies list." [FOOTNOTE: I am not finding that such fears are well-founded, but neither can I find them completely speculative or irrational. Quite apart from any book buyer's personal fear of federal apparatchiks or black helicopters is the more commonly shared notion that living in the land of the free means that it's none of the government’s business what books people are reading.] Taken a step further, if word were to spread over the Net — and it would — that the FBI and the IRS had demanded and received Amazon’s list of customers and their personal purchases, the chilling effect on expressive e-commerce would frost keyboards across America. Fiery rhetoric quickly would follow and the nuances of the subpoena (as actually written and served) would be lost as the cyberdebate roiled itself to a furious boil. One might ask whether this court should concern itself with blogger outrage disproportionate to the government’s actual demand of Amazon. The logical answer is yes, it should: well-founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon’s customers could frighten countless potential customers into canceling planned online book purchases, now and perhaps forever.
I just love the line, "the chilling effect on expressive e-commerce would frost keyboards across America", immediately followed by the warning, "Fiery rhetoric quickly would follow." Yeah, always gotta worry about that fiery rhetoric — it can pop up any time, really. In terms of the law, here's what I don't get, or rather, here's one of the several things I don't get: If public misunderstanding of Judge Crocker's decision makes the otherwise constitutional subpoena unconstitutional, can't Judge Crocker write his opinion in a calming and soothing way to make the subpoena constitutional? Or are bloggers and their fiery rhetoric really that incorrigible?
UPDATE: Commenter Matt Bruce asks a good question: "Wouldn't the fiery rhetoric just melt the frost off the keyboards?"
My former boss, Judge Kozinski, is becoming the Ninth Circuit's Chief Judge this Dec. 1. "The chief judge of the circuit assumes the position based on seniority. The chief judge is the judge in regular active service who is senior in commission of those judges who are (1) 64 years of age or under; (2) have served for one year or more as a circuit judge; and (3) have not served previously as chief judge. Judge Kozinski also believes that looks count, though he can provide no support for that proposition."
Judge Kozinski is sentenced to serve a seven-year term, or 84 months, as we former federal clerks like to say.
Pennsylvania Supreme Court Treats Second Amendment as Involving an Individual Right:
D'Allesandro v. Pennsylvania State Police involves the question whether hearsay rules apply to administrative proceedings governing the issuance of concealed carry permits. Here's the brief discussion of the Second Amendment (paragraph break added):
[T]his Court has stated that an individual should not be faced with sacrificing “‘inherent and indefeasible rights’” for the sake of prosecutorial convenience in the administrative setting. A.Y., 641 A.2d at 1150. In A.Y., an individual sought removal of her name from the Statewide Child Line and Abuse Registry as a suspected child abuser following an administrative determination based solely on hearsay evidence. Noting the common evidentiary problems accompanying child abuse cases and the serious consequences for an individual labeled as a suspected child abuser, this Court adopted the evidentiary guidelines in Rule 807 of the Uniform Rules of Evidence for use in administrative proceedings in suspected child abuse cases, guidelines which are similar to the standard later adopted at 42 Pa.C.S. § 5985.1 by the General Assembly for use in criminal proceedings involving child abuse. Id. at 1152.
The present matter involves appellee’s right to bear arms, which implicates the Second Amendment of the United States Constitution, U.S. CONST. amend. II. (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”). It has been the practice of Pennsylvania courts to afford heightened evidentiary protection of “inherent and indefeasible rights” in administrative proceedings.
For the purposes of this opinion, we assume such a right is implicated, and thus, we will
evaluate a denial of a license to carry a firearm according to the standard hearsay rules
governing more formal judicial proceedings....
The opinion is not entirely clear here on many points, but the one thing it pretty clear does do is treat the right to bear arms as individual. I don't think the court is treating the Second Amendment as binding in these situations -- among other things, the court would then have had to discuss whether the right is incorporated against the states via the Fourteenth Amendment. Nor is it expressly saying the right is "inherent and indefeasible," since it's just assuming this for the purposes of this opinion.
But the court is saying that cases involving individual gun rights "implicate" the Second Amendment, which requires a judgment that the Second Amendment is about individual rights, not just a state's right or a right belonging to some state-run National Guard-type organization. In this, the court seems to be joining several state court systems that have held the same, and opposing slightly more that have held the opposite. From the D.C. Circuit's decision in Parker v. D.C.:
Of the state appellate courts that have examined the question, at least seven have held that the Second Amendment protects an individual right, see Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 240 (Colo. Ct. App. 1988); Brewer v. Commonwealth, 206 S.W.3d 343, 347 & n.5 (Ky. 2006); State v. Blanchard, 776 So. 2d 1165, 1168 (La. 2001); State v. Nickerson, 126 Mont. 157, 247 P.2d 188, 192 (Mont. 1952); Stillwell v. Stillwell, 2001 Tenn. App. LEXIS 562, 2001 WL 862620, at *4 (Tenn. Ct. App. July 30, 2001); State v. Anderson, 2000 Tenn. Crim. App. LEXIS 60, 2000 WL 122218, at *7 n.3 (Tenn. Crim. App. Jan. 26, 2000); State v. Williams, 158 Wn.2d 904, 148 P.3d 993, 998 (Wash. 2006); Rohrbaugh v. State, 216 W. Va. 298, 607 S.E.2d 404, 412 (W. Va. 2004), whereas at least ten state appellate courts (including the District of Columbia) have endorsed the collective right position, see United States v. Sandidge, 520 A.2d 1057, 1058 (D.C. 1987); Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847, 850 (Mass. 1976); In re Atkinson, 291 N.W.2d 396, 398 n.1 (Minn. 1980); Harris v. State, 83 Nev. 404, 432 P.2d 929, 930 (Nev. 1967); Burton v. Sills, 53 N.J. 86, 248 A.2d 521, 526 (N.J. 1968); In re Cassidy, 268 A.D. 282, 51 N.Y.S.2d 202, 205 (N.Y. App. Div. 1944); State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231, 232 (N.C. Ct. App. 1989); Mosher v. City of Dayton, 48 Ohio St. 2d 243, 358 N.E.2d 540, 543 (Ohio 1976); Masters v. State, 653 S.W.2d 944, 945 (Tex. App. 1983); State v. Vlacil, 645 P.2d 677, 679 (Utah 1982); see also Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 470 N.E.2d 266, 269, 83 Ill. Dec. 308 (Ill. 1984) (stating in dicta that Second Amendment protects collective right).
Federal prosecutors have withdrawn a subpoena seeking the identities of thousands of people who bought used books through online retailer Amazon.com Inc. (AMZN), newly unsealed court records show. The withdrawal came after a judge ruled the customers have a First Amendment right to keep their reading habits from the government. "The (subpoena's) chilling effect on expressive e-commerce would frost keyboards across America," U.S. Magistrate Judge Stephen Crocker wrote in a June ruling. "Well-founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon's customers could frighten countless potential customers into canceling planned online book purchases," the judge wrote in a ruling he unsealed last week.
A bit about the criminal case that led to the subpeona:
Federal prosecutors issued the subpoena last year as part of a grand jury investigation into a former Madison official who was a prolific seller of used books on Amazon.com. They were looking for buyers who could be witnesses in the case. The official, Robert D'Angelo, was indicted last month on fraud, money laundering and tax evasion charges. Prosecutors said he ran a used book business out of his city office and did not report the income. He has pleaded not guilty. D'Angelo sold books through the Amazon Marketplace feature, and buyers paid Amazon, which took a commission. "We didn't care about the content of what anybody read. We just wanted to know what these business transactions were," prosecutor Vaudreuil said Tuesday. "These were simply business records we were seeking to prove the case of fraud and tax crimes against Mr. D'Angelo." The initial subpoena sought records of 24,000 transactions dating back to 1999. The company turned over many records but refused to identify the book buyers, citing their First Amendment right to keep their reading choices private.
This will be celebrated 'round the blogosphere, but at least based on the press story, I don't think I understand the legal argument behind Judge Crocker's decision. True, there are precedents on the books involving First Amendment limitations on civil subpoenas. But Dan Solove's wishes notwithstanding, I don't think I've ever heard of a First Amendment right to anonymity trumping a grand jury subpoena obtained in a criminal case. The general rule is that if the grand jury issues a subpoena, there's no third party right to assert a First Amendment interest of others against the grand jury subpoena. Or so I have always thought.
To respond to the comments that will be coming: Yes, of course you can try to extend cases and draw analogies to established principles. And yes, it may be consistent with your view of what the law should become, the fundamental truths of the cosmos, etc. My point is only that, at least off the top of my head, I can't think of a court approaching the law this way until Magistrate Judge Crocker's decision. Anyway, I'm sure someone will post the decision, as it sounds like Judge Crocker was quite eager for it to be public.
UPDATE: The order is there, via commenter Opus. I'll add a new post on it shortly.
I will have a hopefully brief blogging hiatus while I recover from ankle surgery over the next few days. It's a fairly simple operation, but may nonetheless prevent me from blogging for awhile. Back next week, I hope!
A Surprising Comment For a Libertarian Blog:
Once in a while a commenter will criticize a VC post on grounds that it is inconsistent with libertarianism. The argument usually goes something like this: "I am surprised to see Position X at a libertarian blog. Position X is far from the correct libertarian view."
I find myself puzzled by these sorts of comments. Sure, most of us tend to lean libertarian. We tend to like free markets, and we tend to like limited government. But we're human beings, not robots: We don't get our marching orders from a book or a website that tells us the "correct" way to think.
To borrow from Holmes (at the risk of annoying David), "The Volokh Conspiracy does not enact Mr. Herbert Spencer's Social Statics." So tell us when we're wrong, and tell us when we're being inconsistent. But no need to tell us when we're not being libertarian.
Pending Appellate Cases and the CTA-BRIEF Database:
A few weeks ago, I blogged about amending the Federal Rules of Appellate Procedure to require appellants to state "questions presented" early on in the appellate process so potential amici and commentators could weigh in. The comment thread suggested that I am pretty much alone in liking the idea.
Fortunately, I've come across a better-than-expected substitute: Westlaw's CTA-BRIEF database. I don't know how comprehensive it is, and it looks like it takes a few weeks before filed briefs show up in it, but the database lets you run text-searchable queries for appellate briefs citing particular statutes, cases, phrases, or combination thereof. It's a pretty cool service: If you run queries with a date restriction of the last few months you end up with briefs filed in cases not yet decided. Plus, a WESTCLIP request can direct Westlaw to e-mail any briefs that satisfy your query when they enter the database.
Among other things, this will let me blog about interesting pending cases rather than decisions already out. I hope to have the first such post on a very interesting Ninth Circuit case argued in October about the Fourth Amendment and text messages. Meanwhile, check out the CTA-BRIEF database if you're interested — it's pretty cool.
Defamation Liability for Disagreements About Political Labeling:
The Canadian case I note below reminded me of U.S. v. Cooper, an 1800 case in which Cooper was convicted under the Sedition Act of libeling then-President Adams.
On its face, the Sedition Act was (as its defenders pointed out) a considerable improvement over the English law of seditious libel; it purported to punish only false statements, and ones that were "malicious" to boot. Even today, factually false statements about particular people (even political leaders) said with knowledge of their falsehood may be punished, potentially even criminally. But in practice the Act ended up being used to punish opinions that judges disagreed with, and not just false factual allegations.
Cooper offers a great example. Here's one part of Cooper's allegedly libelous statement: "Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace, while the unnecessary violence of official expressions might justly have provoked a war." Here's the relevant part of Justice Chase's instruction to the jury (at the time, judges were expected to express their opinions about the facts in the course of their instructions, though Chase seems to have gone pretty far even by the standards of the time):
The [defendant] states that, under the auspices of the president, “our credit is so low that we are obliged to borrow money at eight per cent. in time of peace.” I cannot suppress my feelings at this gross attack upon the president.... Are we now in time of peace? Is there no war? No hostilities with France? Has she not captured our vessels and plundered us of our property to the amount of millions? Has not the intercourse been prohibited with her? Have we not armed our vessels to defend ourselves, and have we not captured several of her vessels of war?
Although no formal declaration of war has been made, is it not notorious that actual hostilities have taken place? And is this, then, a time of peace? The very expense incurred, which rendered a loan necessary, was in consequence of the conduct of France. The [defendant], therefore, has published an untruth, knowing it to be an untruth.
Whether the time of the "quasi-war" with France was or was not a "time of peace" is not a question of fact; it's a question of opinion -- of how you should define "time of peace" -- and Cooper's readers would have recognized it as such. Even when libel law may properly punish factual falsehoods, it shouldn't let judges or juries proclaim some political characterization of the facts (we're in a time of peace because no war has been declared, even though there are sporadic hostilities; someone who uses lawful means for restricting speech is an enemy of free speech) to be "false."
Likewise, consider another part of Cooper's statement, "Nor were we yet saddled with the expense of a permanent navy, or threatened, under his auspices, with the existence of a standing army." Here's Justice Chase's instruction related to this point:
[T]o assert, as [defendant] has done, that we have a standing army in this country, betrays the most egregious ignorance, or the most wilful intentions to deceive the public.
We have two descriptions of armies in this country -- we have an army which is generally called the Western army, enlisted for five years only -- can this be a standing army? Who raises them? Congress. Who pays them? The people. We have also another army, called the provisional army, which is enlisted during the existence of the war with France -- neither of these can, with any propriety, be called a standing army.
In fact, we cannot have a standing army in this country, the constitution having expressly declared that no appropriation shall be made for the support of an army longer than two years. Therefore, as congress may appropriate money for the support of the army annually, and are obliged to do it only for two years, there can be no standing army in this country until the constitution is first destroyed.
There is no subject on which the people of America feel more alarm, than the establishment of a standing army. Once persuade them that the government is attempting to promote such a measure, and you destroy their confidence in the government. Therefore, to say, that under the auspices of the president, we were saddled with a standing army, was directly calculated to bring him into contempt with the people, and excite their hatred against him.... This publication is evidently intended to mislead the ignorant, and inflame their minds against the president, and to influence their votes on the next election....
Again, the alleged falsehood wasn't related to specific facts (e.g., Adams was paid such-and-such a bribe by so-and-so to authorize certain military expenditures) -- it had to do with the characterization of a certain army as a "standing army." Chase thought this political term ought to be used to mean only certain kinds of forces, just as he thought "time of peace" ought to be used to mean only certain situations; Cooper disagreed. That's a difference of opinion about how to apply political labels -- but Chase's interpretation of the Sedition Act treated the matter as involving a factual falsehood, which could be legally punished.
That's a big potential problem with libel law, a problem that American law has in recent decades has largely avoided. (There are other problems with American libel law, but I set them aside for now.) Unfortunately, Canadian law seems to be slipping into this problem, when criticisms of anti-"hate-speech" activists are involved.
Calling Speech Restrictors "Enemies of Free Speech" Can Now Lead to Legal Liability in Canada:
Richard Warman, a lawyer who worked as an investigator for the Canadian Human Rights Commission, often filed complaints against "hate speech" sites — complaints that were generally upheld under Canadian speech restrictions. Fromm, a defender of various Holocaust deniers and anti-Semites, has been publicly condemning Warman for, among other things, being "an enemy of free speech." Warman sued, claiming that these condemnations are defamatory.
Friday, the Ontario Superior Court held for Warman — chiefly on the grounds that because Warman's claims were accepted by the legal system, they couldn't accurately be called an attack on free speech. Thus, for instance:
 The implication, as well as the clear of meaning of the words ["an enemy of free speech" and "escalated the war on free speech"], is that the plaintiff is doing something wrong. The comment "Well, see your tax dollars at work" also implies that Mr. Warman misused public funds for this "war on free speech".
 The plaintiff was using legal means to complain of speech that he alleged was "hate" speech.
 The evidence was that Mr. Warman was successful in both the complaint and a libel action which he instituted.
 Freedom of expression is not a right that has no boundaries. These parameters are outlined in various legislative directives and jurisprudence. I find Mr. Fromm has exceeded these. This posting is defamatory.
Likewise, apropos another statement ("Since then, a number of dissidents have been dragged before human rights tribunals, largely through the efforts of CHRC hatchetman Richard Warman"), the court responds:
 While opposition to legislation is permitted, it is defamatory to say that Mr. Warman is largely responsible for "dragging" dissidents before the human rights tribunal, when in fact the "dissidents" were disseminating prohibited hate speech. The tribunal upheld the complaint. This posting is also defamatory.
Likewise, here's another statement that the court treated as defamatory and legally punishable:
 At the press conference after Mr. Fromm's comments, he introduced three other people who spoke of their "problems with Richard Warman". Mr. Fromm added, after one speaker:
Thank you very much, Jason. So, for posting an opinion, the same sort of opinion that might have appeared in editorial pages in newspapers across this country, Jason and the Northern Alliance, his site has come under attack and people who are just ordinary Canadians find themselves in front of the courts for nothing more serious than expressing their opinion. This is being done with taxpayers' money. I find that reprehensible.
 In one posting Mr. Fromm describes Mr. Warman's "campaign of intimidation" recitingvarious actions taken by Mr. Warman. He states that freedom of the Internet was the key issue.
 Again Mr. Warman was referred to as acting like a one-man thought police agency.
 The plaintiff is accused of using taxpayer money to "restrict freedom of speech" and of refusing "to allow those with differing opinions the right to express their views."
 The tone of all these allegations is derisive and holds the plaintiff up to ridicule and contempt. The words themselves and the inferences to be drawn are all defamatory.
Likewise, the court says, " Mr. Warman is criticized for his anti-hate speech stance, and his professionalism and integrity are attacked. This would lead a reasonable reader to conclude that the plaintiff was an ideologue who wanted only to deny freedom of speech to those with whom he disagrees. [60 ]I find this posting defamatory."
* * *
It seems to me that Fromm was simply expressing opinions that the court disapproved of — that people who try to restrict "hate speech" are "enem[ies] of free speech," that people who are punished for hate speech are "dissidents," that people who for ideological reasons use the law to restrict speech they disagree with are ideologues who want only to deny freedom of speech to those with whom they disagree. Who is an "enemy of free speech" obviously turns on the speaker's view of free speech, and the view that he expects his audience to share, or that he wants to persuade his audience to share. Who deserves to be labeled with the generally positive term "dissident" depends on what dissent the speaker believes to be legitimate and morally proper.
Yet the Canadian justice system not only allows the suppression of certain viewpoints, and excludes them from free speech restrictions. With this case, it also tries to deny critics the right to label the speech they support "free speech," and the dissenters they like "dissidents."
The court is insisting that Canadians' speech not only follows the government-approved ideology on the topic of race, ethnicity, and religion (an ideology that I agree with, but that I don't think should be legally coerced). It is also insisting that Canadians' speech follows the government-approved ideology and terminology on the topic of free speech itself.
Some of the other statements come closer to factual falsehood, for instance when Fromm says Warman went after "tax-fighter Richard Kyburz"; a reader may infer that Warman went after Kyburz because of Kyburz's stance on taxes, rather than because of Kyburz's anti-Semitic speech. I'm not sure that even those, in context, should properly be seen as legally punishable. But the court's decision is in any event much broader than these statements.
From "The Death of Environmentalism" to Break Through:
In 2004, environmental consultants Ted Nordhaus and Michael Shellenberger published an essay provocatively called "The Death of Environmentalism." In it, they argued modern environmentalism had played itself out, had become yet another component of interest-group liberalism, and was incapable of addressing climate change and other major contemporary challenges. Coming from within the movement, the essay caused quite a stir within the environmental community and prompted extensive debate about the movement and its future.
In an odd way, the doomsaying of the global warmists has had a tonic effect, revealing, nearly 40 years since the first Earth Day, that environmentalism is stuck in a midlife crisis. Messrs. Nordhaus and Shellenberger want desperately to get it unstuck. If heeded, their call for an optimistic outlook--embracing economic dynamism and creative potential--will surely do more for the environment than any U.N. report or Nobel Prize.
The review is somewhat brief, so I'd like to expand on some points, particularly some of my disagreements with the authors.
Overall, I think their critique of the environmental movement, and its obsession with the "politics of limits" and a "doomsday discourse," is important and insightful. They explain how the environmental movement has become, in may respects, just another liberal interest group seeking the attention of the Democratic Party. Greens may score occasional political victories, but most are symbolic. As they argue, today’s environmental movement is fundamentally incapable of mobilizing action sufficient to address major ecological concerns, global warming in particular.
They condemn other environmentalists for ignoring trade-offs, confusing hard choices for “false choices,” and obstructing environmental progress. While most environmental leaders embrace the call for alternative energy sources, others like Robert F. Kennedy Jr. devote their energies to fighting offshore wind power near Hyannisport, dividing the movement and chilling investments in future technologies. As Nordhaus and Shellenberger lament, “when push comes to shove, would-be green developers and entrepreneurs too often find themselves abandoned by the very same environmentalists who advocate such projects in theory. The idea that transforming America’s economy, energy grid, or suburban landscape might require tradeoffs is anathema to many environmentalists” who seem wedded to the idea that there is some potential nirvana over the horizon in which humans live peacefully with no impact on the world around them.
Their project is more ambitious than simply announcing environmentalism's obituary. They want to exhume the corpse and resurrect a new progressive politics to take its place. This is a harder task, and I found this part of the book less satisfying. Nordhaus and Shellenberger wish to see environmentalism reborn into a new, post-materialist progressivism driven by an optimistic, growth-oriented and forward-looking vision of the future, what they call “the politics of possibility.” Such a politics should appeal to Americans’ shared values, rather than parochial interest group resentments, and should recognize that well-intentioned environmental measures may have undesirable effects.
While I liked the book, I am not ready to sign on to all of their prescriptions. Portions of their agenda are sensible -- particularly their call for emphasizing innovation over prescriptive regulation -- but other portions are too lacking in specifics or a bit fanciful for my taste. At one point, Nordhaus and Shellenberger lament that the lack of a “thick” environmental identity comparable to that of conservative evangelicals, and call upon progressives to create “a new web of pre-political associations" to advance their cause, as if such institutions could be created from whole cloth. Yet the institutions of civil society must grow and evolve over time -- and are rarely (if ever) created by design. Governments in particular know far more about how to squelch such institutions with ill-conceived government interventions than how to nurture their growth and success.
My disagreements with Nordhaus and Shellenberger may stem from our competing worldviews. I do not share their progressive political outlook or relatively greater faith in government-led solutions. Of course it is a much easier task to challenge the agenda of others than to construct an alternative of one's own. In any event, Break Through makes an important and provocative contribution to the debate over environmentalism’s future. Nordhaus and Shellenberger's call for an optimistic environmental politics that embraces economic prosperity and humanity’s creative potential is refreshing. It provides the base for a keener shade of green, even if their call for a new progressive politics leaves something to be desired. Environmentalism may be dead; long live environmentalism.
Invitation to Nov. 28 "Stem Cell Century" panel discussion:
I want to invite all VC readers in the Boston area interested in the policy issues surrounding stem cell reserach to a panel discussion of my new book tomorrow, Wednesday, Nov. 28, from 6-7:30 p.m. The event, sponsored by the Harvard Stem Cell Institute and the Harvard Law School's Health Policy Center, will be held at "The Meeting Room," located at 2 Arrow Street in Cambridge, MA, about a block away from Harvard Yard. I'll be speaking about the book, and then commentary will be provided by Professors Kevin Eggan (a well-known Harvard stem cell scientist), Frances Kamm (a philosopher at the Harvard Kennedy School of Government), and Pam Samuelson (an intellectual property expert at Boalt Hall and Harvard Law School). The event is open to the public, so please let any friends or colleagues interested in stem cell research specifically or the interface between law and biotechnology in general know.
I recently blogged about some of the failures of the Transportation Security Administration, the federal bureaucracy charged with ensuring airport security in the United States. It was therefore interesting for me to observe Israeli airport security in action during my recent trip to Israel. Israeli airport security is widely considered the best in the world. There hasn't been a successful hijacking of an airliner originating in Israel since 1969, and you can be quite sure that it's not because the terrorists haven't been trying hard enough.
I noticed two obvious differences between the US and Israeli systems. First, the Israelis forego the stupid TSA ritual of making all passengers remove their shoes. Most of the time, this is just an annoying indignity. In this case, avoiding it was a godsend, since I had a twisted ankle (I later learned that it was fractured) that turned taking my shoes on and off into a mild form of torture. Perhaps taking off shoes really does provide some important security benefit that I'm unaware of. But the fact that the Israelis don't consider it necessary suggests to me that any such benefits of this practice are questionable, at best.
The second big noticeable difference between the two approaches is that the Israelis rely far more on profiling than the TSA does. Even though I doubt that the Israeli security officials singled me out for any special scrutiny, one of them nonetheless asked me 8-10 detailed questions about my background, my reasons for visiting Israel, where I had gone, and so on. The idea is, apparently, to look for inconsistencies and other red flags that might suggest the need for closer scrutiny. Every single passenger at Ben Gurion Airport undergoes similar screening.
What can we learn from the Israeli approach? Obviously, the TSA should be compelled to forego its idiotic shoe procedures. Whether we can adopt the profiling aspect of the Israeli system is much harder to say. Israel has the advantage of having only one major airport. Requiring such individualized screening at the hundreds of major airports in the US would be much more expensive and might significantly slow down air traffic. Moreover, some of the questions the Israeli security people ask would be illegal or politically unfeasible in the US. For example, the official who questioned me asked me several questions about my level of religious observance ("what religious holidays do you celebrate?", "do you celebrate them in a synagogue?", etc.). When I explained that I wasn't religious, the Israeli official said that he wasn't either. Although this didn't happen in my case, the Israelis also engage in extensive ethnic screening, imposing especially strict scrutiny on Arabs and Muslims, including even those who are Israeli citizens; they also scrutinize even non-Arab gentiles more carefully than Jews. Such practices might not be legal in the US, and would certainly come under severe political attack if implemented. In addition, they might alienate some of the minority groups whose support we most need in the War on Terror, sch as American Muslims.
For these reasons, I'm not sure that we can fully adopt the Israeli approach to airport security in the US. Nonetheless, we should at least consider moving in the direction of more individualized screening and (nonracial) profiling, and fewer mindless rituals (such as taking off your shoes) that waste time and money without appreciably increasing security.
Boston Globe columnist Jeff Jacoby has a more detailed description of the Israeli approach here.
WHICH single singer/songwriter has a dirty habit of picking up women when he's wasted? He's been spotted stumbling around downtown luring harlots back to his pad.
A single man getting drunk and picking up women? Now that's news.
(I take it that "harlot" is being used as a dysphemism for women who -- like the male singer/songwriter -- are willing to have sex with relative strangers, and not in the sense of prostitute; the "prostitute" meaning seems inconsistent with "luring," and for that matter with the generic term "picking up women," which usually means something other than "picking up prostitutes.")
The Law and Propriety of Posting YouTube Links:
In response to yesterday's post including a link to a YouTube clip of a jazz performance, commenter "Siona Sthrunch" contends that such posts violate copyright law; are hypocritical; undermine the credibility of the blog; and even undermine our commitment to the United States Constitution:
As I've said many times, everyone knows, or should know, that lawyers posting on Volokh are effectively immune from any copyright suit. It's much too expensive to litigate against a bunch of lawyers. Kerr can freely post from now till doomsday and never fear paying any monetary penalties. The only "penalty" the blog suffers from its hosting of Kerr's continual copyright infringement (he posts these kinds of videos periodically) is that it weakens the philosophical underpinnings of the blog's stated commitment to the rule of law and of the constitution. Because Kerr and Volokh both financially benefit from copyright enforcement - seeing as how they both have books that they most emphatically do not put in the public domain - this also makes Kerr's copyright infringement fairly hypocritical. Is this clear? Even though noone will sue Kerr (or Volokh for that matter), when Volokh turns around and tries to argue that "the First Amendment protects the Phelps" or that "the Second Amendment protects the individual right to bear arms" he loses credibility. If he can fudge on the copyright clause of the constitution to gain readership, why shouldn't he fudge on other aspects?
So is Strunch correct that I am guilty of "continual copyright infringement"? Is he right that I am a hypocrite because I am an author trying to profit from the sale of copyrighted materials? (Which reminds me, wouldn't a Computer Crime Law casebook make a wonderful Xmas present? Fun for the whole family!!!) And is he right that posting YouTube links "weakens the blog's stated commitment to the constitution"? These are three pretty serious accusations — and ones "Strunch" and others have made before, at least in some form-- so I thought I would take a closer look.
First, let's examine the question of substantive copyright law. Is it copyright infringement to provide a link to a file hosted on YouTube that is likely an unauthorized copy, and to invite readers to view the file? Copyright is not my area, so maybe my legal analysis is way off. But my sense of the answer is "probably not." The primary issue is liability under the principles of contributory infringement. As the Supreme Court explained in Grokster, "One infringes contributorily by intentionally inducing or encouraging direct infringement." Contributory infringement generally requires (1) knowledge of the infringing activity and (2) a material contribution to the infringement.
The law here is really murky, in part because there are so few cases (DMCA notice & takedown letters usually address the problem before a lawsuit is filed), but I think I'm probably not liable. First, I don't think a link in this context amounts to a material contribution to the infringement. The file I linked to is very widely and publicly known. If you google the song name, the file is the second link that appears (right after the Wikipedia entry). The clip has been viewed over 125,000 times in the last year. Further, YouTube is one of the most visited sites on the Internet, and everyone knows that you can get music clips there: just go to youtube.com and search for "cantaloupe island" and this clip is the first thing that pops up.
Second, I'm not sure I have the knowledge required for contributory infringement. The cases here are super-murky, but they seem to suggest that "knowledge" is not satisfied by a decent likelihood, but rather appears to require a pretty bright "red flag" showing that it is essentially certain (in light of the uncertainties of ownership, fair use, and the like) that conduct is leading to unlawfully infringing activity. Do I or should I have that?
Here's my relevant state of mind. First, I'm pretty sure Capitol Record owns the copyright to the clip. When I first saw the clip on YouTube a few months ago, I recognized the performance from the CD I have of One Night With Blue Note (an authorized copy, natch) and figured there must be a DVD out there, too. I then found the DVD and purchased it from Amazon, and indeed can confirm that it's the same performance. I'm also guessing that the posting was not authorized: The file was posted by a user with the screenname "drummer123," who has not posted anything else on YouTube, and I doubt Capitol Records would post a clip in that way.
I also doubt that most uses of the clip would count as fair use, given that one full song (out of a 10-or-so song DVD) is posted. On the other hand, fair use is an inherently murky four-factor test, and it depends in part on factual settings that I don't know. I don't know how many people are following my link and in what circumstances. My jazz posts usually draw about 2 comments (other than those about copyright infringement), and I don't know how many folks will click on the link and watch enough of the clip to be clearly beyond fair use. As I understand it, I need to know (or being in a position where I should know) that I am actually causing copyright infringement to occur to be liable for contributory infringement. See Perfect 10 v. Amazon, 487 F.3d 701, n.13 (9th Cir. 2007). Is my state of mind enough to establishing the knowledge requirement of contributory infringement liability? I've looked at a bunch of the cases, and I'm not really sure. It might be, but I'm not sure.
In sum, I think I'm probably legally in the clear because I don't think the link to such a publicly and widely known clip is a material contribution to infringement in those circumstances. And if it is, there's also a debatable issue of if I have the requisite knowledge to be liable. As I said, though, this is not my area. I didn't mean that as false modesty: Seriously, this ain't my area. (I follow criminal copyright, but contributory infringement is an issue of civil copyright liability rather than criminal copyright law.) So if I'm wrong, let me know.
Finally, am I being hypocritical by posting these links, apart from the legal questions? And what about the VC's commitment to the United States Constitution, and to the Republic for which it stands, E Pluribus Unum? Here, I think I'm in the clear, too. I don't think I'm being hypocritical, as I don't think I'm somehow disrespecting Capitol Records' rights. My post to the YouTube clip included a prominent link to where readers can purchase the DVD, and it highly recommended the DVD, as well. I myself have purchased authorized copies of the music twice: first on CD, and then on DVD. Given that, I don't think I'm being hypocritical by somehow disrespecting the notion that authors and their agents should receive compensation for their works.
And what about the Constitution, enacted by We the People to form a More Perfect Union? To be candid, I don't see how this issue implicates respect for the Constitution. Yes, the copyright laws were enacted pursuant to the Constitution's grant of authority found in the Copyright Clause. But every federal law was enacted pursuant to some affirmative grant of power found in Article I. (Granted, the courts often don't act like it, but I'm tellin' ya, it's totally true.) So compliance with copyright laws doesn't really raise a question of respect for the Constitution, at least unless we want to take the view that compliance with any federal law raises such a question. In any event, given that I don't think my link violates the copyright laws, I am happy to say that the Constitution is getting my full respect either way.
I wonder, though, isn't that becoming a bit outdated? In an era of the web, I think it makes more sense to just include U.S. citations where available (it takes a year or so for them to come out) and cites to the original .pdf slip opinion if it's not. You can easily find these on the web, all for free. And once the official U.S. citation is available, it seems to be what everyone uses. In light of that, I wonder if the extra citations are more trouble than they're worth.
It's probably too early to change practices: there are some folks who have the old books and want to use them, and the added costs of the extra citations is pretty low. But I would guess that over time that group will get smaller and smaller.
Herbie Hancock Quintet Plays "Cantaloupe Island":
Herbie Hancock recorded a string of wonderful Blue Note records in the 1960s, and one of his best was his 1964 recording Empyrean Isles with Freddie Hubbard on trumpet, Ron Carter on bass, and Tony Williams on drums. The album featured one very catchy tune, Cantaloupe Island, amidst the otherwise not-particularly-commercial music. Here's the original group joined by Joe Henderson playing the song on February 22, 1985, at a reunion concert celebrating the rebirth of Blue Note Records:
This performance is taken from a terrific DVD, One Night With Blue Note. Definitely worth checking out. (Oh, and for the copyright folks out there, I note that the clip has been up for almost a year and has over 125,000 views; I'm assuming that the copyright holders don't object to it being posted.)
In Marsh v. Valyou, the Florida Supreme Court (1)reiterated that Florida follows the Frye general acceptance test; (2) held that Frye doesn't apply to a medical expert's "opinion" testimony regarding causation; (3) held that even if Frye did apply, it should be applied only to the issue of whether the technique of "differential diagnosis" is generally accepted in the medical community, regardless of whether the technique was used in a generally accepted way. [It was not, as the dissent explains in some detail. In fact, it wasn't really a differential diagnosis at all, but a differential etiology, and this cannot properly be used to "rule in" a cause that has not been otherwise established by other evidence.]; and (4) implicitly rejected the notion that Florida Rule of Evidence 702, modeled on the federal rule that led to the Daubert Supreme Court opinion, provides a "backup" reliability test for causation testimony.
In short, the Florida Supreme Court essentially held that any qualified medical expert (with qualifications always defined loosely) can testify to almost any causation theory, without any real judicial scrutiny. Florida law, then, has regressed to the pre-Daubert let-it-all-in stage, at least with regard to medical causation testimony. Florida thus joins Illinois and Kansas as states that have applied Frye so liberally as to make it virtually meaningless in cases involving causation disputes. The general argument is that only real scientific methodologies, not "pure opinion", are subject to Frye. As I've written, "this peculiar outcome seems to suggest that the less objective the basis for an expert's scientific opinion, the less judicial scrutiny it should receive!"
The dissent, written by Justice Cantero and joined by two other justices, is a model opinion, and eviscerates the majority's reasoning. The dissent could have found additional support in this article of mine on Frye, published at 41 Jurimetrics J. 385-407 (2001).
Interestingly, the national tort reform groups were absent as amici from this case, once again confirming that are dropping the ball when it comes to ensuring that the victories they won with the Daubert trilogy and amended Rule 702 aren't snatched away by permissive state court rulings.
I hope that Marsh will lead the Florida legislature to joins Georgia and Michigan in adopted a state version of amended Rule 702 by statute. Otherwise, Florida will become a breeding ground for quackspertise.
UPDATE: The best overall discussion of Frye out there is in my co-authored treatise, The New Wigmore: Expert Evidence. To give credit where it's due, David Kaye wrote this chapter.
There's a little scandal brewing in South Carolina over the state Supreme Court's decision to eliminate the results from one question, allowing several people to pass who would otherwise have failed, including the daughter of a influential local pol. Louisville Dean Jim Chen has been on the case. He provides background and links here, and an update here.
Legal professionals, in South Carolina and the rest of the nation, have every reason to question the Supreme Court's decision to mint 20 new lawyers who, by every account, flunked South Carolina's July 2007 bar exam. They have reason to doubt the high court's outlandishly illogical explanation. This sort of thing has happened before; now it is being reinstitutionalized anew. Not Very Bright's timeline leaves no room for doubt: this was a hamfisted, naked power play by South Carolina's judiciary, carried out at the expense of that state's bar and larger public. Yet, like many observers who are far closer to South Carolina than I am, I too expect this scandal to fade from public view as attention turns to Thanksgiving and this weekend's Clemson-Carolina football game. Panem et circenses, indeed.
The simple explanation is, as usual, correct and complete. South Carolina's lawyers, by my informal survey, are horrified by the Supreme Court's abuse of power. They rue how this episode will resonate for years, even decades, as yet another generation of South Carolinians learns that power, not prowess, that pedigree, not performance, holds the key to success. They cringe at the thought of outsiders consigning this most quintessentially Southern of Southern states to perpetual cultural irrelevance in the American pageant.
Sunday Song Lyric:Timbaland has an impressive record as a producer. Now he's impressively successful as an artist two. This past week he had two singles in the top five on American Top 40: "The Way I Are" at number five, and "Apologize" at number one. The former is what one would expect from Timbaland: a well-produced hip-hop dance track. The latter, however, features One Republic, a light-alt rock band who wrote the track and star in Timbaland's video. Timbaland's new album, Shock Value, is filled with such interesting collaborations. While he features some of the usual suspects (Missy Elliott, Nelly Furtado, Justin Timberlake, 50 Cent, and Dr. Dre), the album also features guest appearances by The Hives, Fall Out Boy, and Elton John (on piano).
She Wants Revenge, an 1980s-style alternative band heavily influenced by The Cure, Bauhaus, and similar bands, also makes an unexpected appearance on Timbaland's album in the song "Time." It's a blend of hip-hop and retro alternative. The chorus features a Peter Hook-style bass line backing a vocal reminiscent of Peter Murphy or mid-1980s Dave Gahan.
She's too invested on the hours that pass her by
I'd pay attention if I thought it was worth the time
I tell her easy, but her hands they find a way
Confusing passion for the love he never gave
Fall back on reasons that we know won't stand a chance
Watching her shoulders like a memory from the past
I tell her easy but her hands they find a way
Confusing passion for the love he never gave
Nothing profound, to be sure, but you can almost hear the black lipstick and eyeliner through this portion of the song.