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Saturday, December 15, 2007

Charges Dismissed Against Woman Who Screamed Profanities at Overflowing Toilet: I was pleased to learn, in light of my blog post urging the Pennsylvania courts to "Free Dawn Herb!", that the trial court did just that. Thanks to Howard for the link.
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Happy Bill of Rights Day!

Today is Bill of Rights Day. The Cato Institute's Tim Lynch celebrates here.

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Some Steps to Reduce the Copycat Effect:

The publicity given to an attention-seeking mass murderer tends to lead to other mass murders, as detailed by Loren Coleman, author of the book "The Copycat Effect." In today's column for the Rocky Mountain News, I suggest some guidelines for media coverage of publicity-seeking killers, to at least reduce somewhat the media's contribution to the copycat effect.

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CAPT

vs. Capt.: By the way, those who are interested in actual Navy practices in abbreviating Captain — not that they're dispositive of standard English practice — might want to do a Google search for site:navy.mil Capt and see what comes up. Even in jargon established by hierarchical organizations, language is partly a grown order, not just a made order.

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The War on Drugs Undermines the War on Terror Yet Again:

Over the last two years, I have written numerous posts about the ways in which the War on Terror in Afghanistan is being undermined by our misguided War on Drugs (see here for my most recent post on this subject, and links to earlier ones). In this article on Slate, Joel Cohen and Bennett L. Gershman provide yet another example:

By all appearances, Haji Bashaar Noorzai is a scoundrel. A shadowy figure with ties to the Taliban, Noorzai is heavily involved in international heroin trafficking, according to a federal indictment that is pending against him in New York. But he is a tribal rogue whom U.S. terrorism fighters have relied on, while looking away from his darker side as a dope dealer. For years, the relationship was mutually beneficial—Noorzai helped U.S. authorities uncover huge numbers of terrorist weapons, including Stinger missiles, and in return he got to ply his drug trade with impunity.

In 2004, it appears, Noorzai was invited to the United States for further briefing on his undercover work by two freelance "contractors" associated with the FBI, who told Noorzai they were FBI and Defense Department agents. He was assured that he would not be arrested, and could return home whenever he liked. The contractors introduced Noorzai to actual federal drug agents, who warmly welcomed him. He was lodged in a fancy New York hotel and debriefed for 10 days. And then he was arrested for drug trafficking. For more than two years since then, he has sat in jail.

Noorzai may indeed be a "scoundrel," one who may have committed crimes worse than drug trafficking. But it is the latter sin that got him arrested by federal agents. As Cohen and Gershman point out, other Afghan warlords and drug dealers are unlikely to cooperate with the US against Al Qaeda and the Taliban if doing so might land them in a federal prison courtesy of the Justice Department. And they are especially unlikely to do so if promises of immunity issued by the Pentagon or the FBI can be violated by the DOJ at any time. Whether or not the DOJ's actions in this case were legal, they represent spectacular stupidity from the standpoint of waging the War on Terror. Which is more important: punishing a drug trafficker or improving our ability to get intelligence on terrorists? The Bush Administration's priority seems to be the former; or at least that's what the relevant Justice Department officials seem to think. If the next president reverses these priorities, that will be an important sign that he or she is truly serious about winning the War on Terror.

Related Posts (on one page):

  1. The War on Drugs Undermines the War on Terror Yet Again:
  2. The War on Drugs vs. the War on Terror - Redux:
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20 GOTO 10: In light of the long comment thread attached to yesterday's post on the Fifth Amendment, I thought I would do more research into the "foregone conclusion" exception to Fifth Amendment "act of production" privilege. I vaguely recall that there are a bunch of law review articles on it, but I figure google might have some good stuff, too. So I run a google search for "foregone conclusion" and "fifth amendment".

  What's the first hit for this topic on Google? Hmmm..
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Where Was the Steroid Use "Illegal"?

Believe it or not, the Mitchell Report on steroid use in Major League Baseball may present an interesting international choice-of-law issue. As Roger Alford notes at Opinio Juris, the report presumes that all steroid use that would have been illegal if performed in the United States was illegal, even though some of the alleged offenses occurred in other countries. As Alford notes:

Problem is, under traditional rules of extraterritoriality, the federal regulation of the use of performance enhancing substances does not obviously apply when such use occurs in other countries. And various sections of the Mitchell Report detail allegations of “illegal” use in Canada, Venezuela, and the Dominican Republic.

I am not suggesting that the use of those substances is permitted in any of those countries. But from my reading of the Mitchell Report, it appears that the report omits materially relevant information about the governing law regarding the use of those substances outside the United States. There is almost no mention of Canadian law, and there is no mention whatsoever of Venezuelan law, Dominican Republic law, or for that matter, the 1971 Convention on Psychotropic Substances. Nor is there any explicit reference to the extraterritorial application of federal law to regulate the use of these substances abroad.

The syllogism drawn from the Mitchell Report appears to be that (1) Major League Baseball’s drug policy prohibits the use of “illegal” substances, (2) “illegal” substances are defined by reference to federal law, and (3) therefore, the use by any player of performance enhancing substances anywhere in the world violates Major League Baseball’s drug policy.

Alford is willing to be convinced that this syllogism is correct, but he does not find it to be self-evident.

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Ohio's Electoral Problems:

It's not news that Ohio has election problems. Cuyahoga Conty in particular has been plagued with election irregularities and inefficiencies. Whether or not these problems have affected prior election results (I doubt it), they are a festering sore that undermines the legitimacy of the state's voting returns.

Today's NYT reports on a new report commissioned by Ohio Secretary of State Jennifer Brunner identifying a host of problems in the voting systems used throughout the state and calling for another round of reforms.

At polling stations, teams working on the study were able to pick locks to access memory cards and use hand-held devices to plug false vote counts into machines. At boards of election, they were able to introduce malignant software into servers.

Ms. Brunner proposed replacing all of the state’s voting machines, including the touch-screen ones used in more than 50 of Ohio’s 88 counties. She wants all counties to use optical scan machines that read and electronically record paper ballots that are filled in manually by voters.

She called for legislation and financing to be in place by April so the new machines can be used in the presidential election next November. She said she could not estimate the cost of the changes.

My local polling station in Hudson, Ohio, already uses optical scan machines, and they seem to work quite well, but I'm hardly an expert.

UPDATE: Here's local coverage from the Cleveland Plain Dealer.

FURTHER UPDATE: Ohio State's Dan Tokaji discusses the report on the Equal Vote blog.

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"Correctness":

On the "We Speak English on This Blog" thread, quite a few comments said more or less this:

This is silly.

Use the correct title - it's a matter of courtesy, not clarification. We're not talking about a "select few" here, we're talking about millions of active and former military, many of whom are risking or have risked their lives so you can sit around and whine about differences between the services.

Generally, no one is writing about service members without looking at something else written about them - so there is really no excuse for getting it wrong. There is no need for civvies to actually memorize this stuff.

The trouble is that this argument assumes that what is "correct" in the source language or jargon is also the only correct approach in plain English. My point is that it is no less correct to translate from the source language or jargon to the plain English idiom.

Thus, the correct title for a Russian colonel is "polkovnik" -- correct, that is, in Russian. In common English, "colonel" is a correct translation, and there's nothing discourteous about that.

Likewise, the correct abbreviation in military jargon for a naval captain is apparently "CAPT" -- a departure from normal English abbreviation conventions, but military jargon has its own conventions, to which it is entitled just as normal English is entitled to its own. Yet when one is using normal English rather than military jargon, "Capt." is a perfectly correct normal abbreviation, and there's nothing discourteous about that.

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Green Divides on Alternative Energy:

Earlier this week, the WSJ reported on the growing divide within the environmentalist community over various alternative energy sources, particularly wind power and ethanol. No energy source is safe, however, as even solar projects face local green opposition. As the major Washington-based groups push for a renewable portfolio mandate in federal energy legislation, local activists --even the local chapters of the same national groups that push for the mandate -- fight to block renewable energy projects.

Even as Americans become convinced they need to change the way they power their lives, the environmental community is splintering over how to do that. Does ethanol promote clean fuel or destroy the rural landscape? Is emission-free electricity worth turning mountains into wind farms? . . .

Dan Becker, a former top lobbyist at the Sierra Club, one of the leading U.S. environmental groups, concedes that local fights can undercut the group's national goals. "It doesn't help," he says. Mr. Becker says local activism is a source of the movement's strength. "I'd rather have the debate...than to have a Stalinist approach and say you cannot speak," he says.

These sorts of divisions within the environmentalist movement were inevitable. In environmental policy debates, environmentalist activists often refuse to acknowledge the ubiquity of trade-offs. That did not cause internal problems for environmentalist groups when the dominant and most conspicuous adverse consequences of their policies were economic (or at least non-environmental). In the energy context, however, there is no perfectly benign power source -- and certainly no way of powering modern civilization without significant environmental impacts of one sort or another. This requires sober consideration of the pros and cons of each energy option, recognizing that nothing approaches a true environmental ideal. There is no "perfect" environmental way to meet our energy needs -- no ecological Nirvana on the horizon. Instead, we need to focus on finding the set of energy and environmental policies that provide the greatest benefits (economic, environmental and otherwise) at an acceptable cost.

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Drezner on Huck's Foreign Policy:

Daniel Drezner has read Mike Huckabee's Foreign Affairs article outlining his approach to foreign policy so we don't have to. It seems Drezner is saving us from Huck's "loopy writing" and contradictory arguments.

The essay is a great symbol of Huckabee's campaign -- there are feints in interesting directions, but in the end it's just a grab-bag of contradictory ideas. In a New York Times Magazine profile, Huckabee mentions columnist Thomas Friedman and new sovereigntist Frank Gaffney as his foreign policy influences. Those in the know might believe this to be impossible, but Huckabee's Foreign Affairs essay really is an attempt to mix these two together in some kind of unholy alchemy. Take this paragraph:

American foreign policy needs to change its tone and attitude, open up, and reach out. The Bush administration's arrogant bunker mentality has been counterproductive at home and abroad. My administration will recognize that the United States' main fight today does not pit us against the world but pits the world against the terrorists. At the same time, my administration will never surrender any of our sovereignty, which is why I was the first presidential candidate to oppose ratification of the Law of the Sea Treaty, which would endanger both our national security and our economic interests.

Really, you just have to stand back and marvel at the contradiction of sentiments contained in that paragraph. It's endemic to the entire essay -- for someone who claims he wants to get rid of the bunker mentality, Huckabee offers no concrete ideas for how to do that, and a lot of policies (rejecting the Law of the Sea Treaty, using force in Pakistan, boosting defense spending by 50%) that will ensure anti-Americanism for years to come.

The AP reports on Huck's article here.

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Friday, December 14, 2007

Magistrate Judge Finds Fifth Amendment Right Not to Enter Encryption Passphrase: Imagine the government seizes a suspect's hard drive and finds encrypted files inside. Can the government force the suspect to enter in his encryption passphrase so the government can view the decrypted files? Or does the Fifth Amendment privilege give the suspect a legal right not to enter in the passphrase? On November 29, Magistrate Judge Jerome Niedermeier in Vermont handed down the first opinion to squarely address the issue: In re Boucher. Judge Niedermeier ruled that the defendant did have a Fifth Amendment privilege in such circumstances. This is a hard issue, but I tend to think Judge Niedermeier was wrong given the specific facts of this case.

  First, the facts. Boucher was crossing the border from Canada to Vermont when border agents began to suspect he had child pornography in the car. They saw a laptop in the back of the car and opened it up. It was not password-protected, an an agent began to look through it. (By way of background, the Fourth Amendment has an exception at the border that makes this search legal.) The agent came across several files with truly revolting titles that strongly suggested the files themselves were child pornography. The files had been opened a few days earlier, but the agent found that he could not open the file when he tried to do so. Agents asked Boucher if there was child pornography in the computer, and Boucher said he wasn't sure; he downloaded a lot of pornography on to his computer, he said, but he deleted child pornography when he came across it.

  In response to the agents' request, Boucher waived his Miranda rights and agreed to show the agents where the pornography on the computer was stored. The agents gave the computer to Boucher, who navigated through the machine to a part of the hard drive named "drive Z." The agents then asked Boucher to step aside and started to look through the computer themselves. They came across several videos and pictures of child pornography. Boucher was then arrested, and the agents powered down the laptop.

  Now here's where it gets interesting. Two weeks later a government forensic analyst started to analyze the machine. He created a "mirror" copy of the hard drive and then looked at the mirror to see what it contained. But it turned out that the part of the hard drive that was designated "drive Z" was encrypted with the popular software program PGP, and no one — no one, presumably, except for Boucher — knew the password. The government tried to guess the password and failed, so the grand jury issued a subpoena to Boucher ordering him to disclose the password to drive Z. Boucher's counsel them moved to block the subpoena, arguing that he had a Fifth Amendment privilege not to comply. The government responded that it would be happy to just have Boucher enter in the password without the government ever seeing it. The Court thus addressed only whether Boucher had a Fifth Amendment privilege not to enter in the password.

  Judge Niedermeier ruled that Boucher did have such a privilege and quashed the subpoena. According to Judge Niedermeier, entering in the password would be testimonial.

Related Posts (on one page):

  1. More on Encryption, the Fifth Amendment, and the "Foregone Conclusion" Exception:
  2. Magistrate Judge Finds Fifth Amendment Right Not to Enter Encryption Passphrase:
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Pro-Fred & Anti-Huck:

As regular VC readers know, I am one of several conspirators who is supporting Fred Thompson's campaign for President. I cannot speak for the others, but my reasons for supporting Thompson include his commitment to federalism, his candor on important issues other candidates would prefer to avoid (e.g. entitlements), and his record on regulatory reform and government oversight over the past thirty years. For National Review's pentultimate issue (the one before they endorsed Mitt Romney), I authored an article making the conservative case for Thompson. For those without subscriptions to the print magazine, here is an excerpt:

Sen. Fred Thompson may be a professional actor, but it’s hard to find a more authentic conservative candidate in this campaign. He has been a consistent champion of fiscal discipline, national security, and government reform, among other issues important to the Right. As National Review recently editorialized, “Thompson has set a standard for specificity, conservatism, and soundness” yet to be matched by any other candidate. More than anyone else, he advocates a conservatism of the head that should appeal to conservative hearts. If the Republican nomination should go to the most principled and consistent conservative in the race, there should be little question that Fred Thompson is the man to nominate.

Some worry Thompson doesn’t want the presidency badly enough. In an era when politicians plan their political moves years, if not decades, in advance, Thompson is almost an accidental candidate: someone willing to run if the people want him on his terms. This may be his greatest liability — but it should also be an asset in wooing conservatives to his cause.

Thompson, after all, is not running a campaign of simple slogans or pandering platitudes. He is willing to take positions that risk offending potential constituencies. Witness his attack on the gluttonous farm bill and opposition to some business-favored federal tort reforms. He may have been unprepared to answer a media question about the “Jena 6,” but he can discuss the crisis in Pakistan, the threat of nuclear proliferation, regulatory bloat, or the future of entitlements with a level of nuance and detail that comes only from genuine intellectual engagement. If Republicans are looking for an “anti-Hillary” — a reluctant candidate with a commitment to limited government who will bring honor and integrity to the White House — it would be hard to do better than Fred.

In addition to supporting Thompson, I share Ilya's aversion to Mike Huckabee, and his brand of know-nothing, big government populism. In my view, there is nothing conservative (and certainly nothing remotely libertarian) about Huckabee's agenda. Hence, I declared myself both "Pro-Fred and Anti-Huck."

There are many things I don't like about Huck, ranging from his economic illiteracy and protectionist impulses to his embrace of creationism and nanny-state mentality. As Kimberly Strassel noted in the WSJ, Huckabee sounds good, but the substance is often lacking — and what substance there is provides little comfort.

Over on NRO's The Corner, I have blogged a bit about Huckabee's call to quarantine AIDS victims in 1992. (See also here and here.) Questioned about this statement in the past week, the Huckabee campaign has dissembled (as I noted here), denying he called for a quarantine and pretending as if this was not an irresponsible policy position in 1992. Huck himself took the same tack when asked about the issue on Fox News Sunday, denying the clear import of his prior statement, and suggesting his position was correct, although he would "say it a little differently today." I'm sorry but that's not good enough. If Huckabee cannot acknowledge that his call to "isolate" those who were HIV-positive in 1992 was grossly irresponsible, it is just one more reason he should not be the next President of the United States.

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We Speak English on This Blog:

A reader writes,

When abbreviating U.S. Navy ranks, be sure they are in all caps with no period. e.g.: CAPT Mariner.

There is a whole system of "rank grammar" surrounding this. For each service no less! Without saying what the ranks are, U.S. Army and Navy abbreviated ranks are in all capital letters. U.S. Air Force and Marine Corps abbreviated ranks are in mixed case, with a period following if used in correspondence.

I always respect foreign languages, especially when they come with massive amounts of firepower. But wonderful as Militarese may be for its speakers, I don't see why I should abandon standard English abbreviations for Militarese abbreviations, any more than I should abandon standard English spellings of foreign place names and instead use the foreign original. So it's Capt. and (say) Florence for me, not CAPT and Firenze. (I also like the look of mixed-case more than I like the look of all-caps, which helps influence my decision, though standard English idiom is more important to me than aesthetics.)

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May Government Punish Business for Posting a "When Ordering Speak English" Sign?

Apropos a story that David Bernstein first covered in 2006:

The Philadelphia Commission on Human Relations will hold a public hearing Friday to address a controversial sign at the popular Geno's Steaks that has gained national attention.

The hearing was scheduled after allegations were made accusing Geno's Steaks of discrimination for posting a sign that reads: "This is America. When ordering speak English." ...

Philadelphia Commission on Human Relations ... alleges Geno's is in violation of the Philadelphia Fair Practices Ordinance - Chapter 9 Section 9-1105(A)(1)(b) of The Philadelphia Code.

The commission believes the sign discourages patronage by non-English speaking customers.

"Individuals who operate in a place of public accommodation cannot post signage or express messages that might have the resulting affect of making any group, any ethnicity, and any national origin person feel unwelcome," said Nick Taliaferro, Human Relations Commission....

Note, incidentally, the breadth of Mr. Taliaferro's assertion — presumably any speech that has the effect of making any group feel unwelcome (e.g., a posting of the Mohammed cartoons, an allegedly racist display, a Confederate flag, a supposedly sexist picture or slogan, and so on) is punishable when posted in a business, whether a pizza shop, a bookstore, a theater, or whatever else.

I should note that statements expressing an intent to engage in unlawful discrimination in a business transaction (for instance, "Blacks Not Served") may indeed be unprotected under the Court's rules related to commercial advertising, on the theory that they are akin to statements proposing an unlawful transaction. (They aren't quite, but that's how a 1973 case involving sex-based job advertisements, Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, has been interpreted in recent decades.) But it sounds like Philadelphia's theory is much broader than that; plus it's far from clear that rejecting orders in other languages — something that people who speak only one language routinely do — would be illegal in any event.

Thanks to Sebastian for the pointer.

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Captain Rosemary Mariner Blogging Next Week on Women in Combat:

As I mentioned a few weeks ago, when introducing Kingsley Browne, I'm delighted to say that Captain Rosemary Bryant Mariner (United States Navy, Retired) will be joining us next week to present a view different from Prof. Browne's. Capt. Mariner is a Research Fellow with the Center for the Study of War and Society at the University of Tennessee Knoxville; she teaches U.S. military history in the university's History Department; she is co-editor with G. Kurt Piehler of a forthcoming anthology, The Atomic Bomb and American Society, from the University of Tennessee Press; and she is an oft-quoted expert on gender integration in the armed forces.

Before her retirement 10 years ago, Capt. Mariner was (among many other things) the Chairman of the Joint Chiefs of Staff (CJCS) Professor of Military Studies at the National War College, where she taught national security strategy and joint warfare. Capt. Mariner is also a member of the first group of women trained as full-fledged military pilots in 1973, and the first American female aviator to qualify in a tactical jet aircraft, the single-seat A-4E/L Skyhawk, in 1975. During the Gulf War, she commanded Tactical Electronic Warfare Squadron Thirty Four, becoming the first woman to command an aviation squadron and was selected for major aviation shore command. I much look forward to reading Capt. Mariner's thoughts on this matter.

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Odd Sort of Concurrence:

Check out the lineup in a Tenth Circuit erogenous zoning case, Abilene Retail #30, Inc. v. Bd. of Comm'rs, decided in July by a panel consisting of Judges Lucero, McWilliams, and Ebel: Judge Lucero delivers the majority opinion, which I take it is joined by at least one judge. Then Judge Ebel files a concurrence, which is joined by both of the other judges.

Now it would be odd but understandable if the concurrence concurred in the majority in its entirety. But the concurrence, while it joins in the result, only joins "most of [the majority's] reasoning"; and Judge Ebel states, "Although the majority in this case decides that the County has failed to meet its initial burden under Alameda Books, I disagree." Yet Judge Lucero, who wrote the majority, and Judge McWilliams, who must have joined it in order to make it a majority, join Judge Ebel's opinion disagreeing with the majority. (Note also that Judge Gorsuch's dissent from denial of rehearing en banc says that "All the panel members joined the concurrence," so the list of joining judges doesn't seem to be a simple clerical error.) What's up?

UPDATE: Sorry, should have included this passage from the majority: "We agree the ordinance is facially content neutral, but conclude a genuine dispute of material fact exists as to whether the Board reasonably relied on studies analyzing the secondary effects of adult businesses on surrounding communities in passing the ordinance. If the Board's reasonable reliance were not in dispute, we agree that Abilene has cast sufficient doubt on the Board's rationale to preclude summary judgment. On that basis, we join in the concurrence of Judge Ebel as an alternative ground for our holding."

But my point is that Judge Ebel's concurrence says he disagrees with the majority; in addition to the sentence I quoted, the concurrence also argues that the majority's "rural/urban distinction is [not] sufficient at the initial stage of our analysis" (though the majority thought it was), that "the County has presented sufficient evidence ... to meet its minimal initial burden under Alameda Books" (contrary to what "the majority instead concludes"), and that even if the majority were right on this, "the result would not be to remand this claim for a trial, as the majority does" but instead just invalidate the ordinance. How can the majority join such a concurrence on any basis?

But on reflection perhaps I'm just being too picky: Maybe one should just read the opening line of the concurrence as "Ebel, J., concurring, and joined by McWilliams, J., and Lucero, J., except as to those portions that express disagreement with the majority."

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The Bush Administration's Failed Appeasement of China:

An op-ed by Rep. Tom Tancredo (R-Colo.) in the Taipei Times examines the consequences of the Bush administration's efforts to gain the Chinese dictatorship's support on other issues at the expense of Taiwan's rights. Tancredo argues that the Bush policy has failed. Little has been gained in the way of meaningful Chinese cooperation on other issues, while the kow-towing over Taiwan has undermined U.S. influence and prestige in Asia.

Before being elected to Congress, Tancredo served as President of the Independence Institute, where I work, from 1993-98. My own writings on Taiwan are here.

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Thursday, December 13, 2007

The Mitchell Report, the Red Sox and Conflicts of Interest:

As a Boston Red Sox fan, I can't help but notice the large number of New York Yankees stars named as steroids or human growth hormone users in today's Mitchell Report on the use of banned substances in major league baseball (see here for a handy list of players named in the report). In addition to Jason Giambi and Gary Sheffield - whose likely steroids use had been disclosed previously as a result of the Balco investigation - the Report also accuses Roger Clemens, Andy Pettite, and Chuck Knoblauch of using banned substances at a time when they were major contributors to Yankees championship teams. Several lesser but still notable Yankees players are also listed, such as Mike Stanton (a key middle reliever on the 2001 pennant winning team), and David Justice. A few Red Sox players are also listed. But all are fringe players, with the exception of Mo Vaughn, a big star with the Red Sox in the 1990s. And even Vaughn is only mentioned as having used banned substances in 2001, several years after he had left the Sox. Clemens, of course, also played for the Red Sox for many years. But he, like Vaughn, is only accused of having used banned substances after he left the team (in Clemens' case during his stints with the Toronto Blue Jays and Yankees in 1997-2003).

Unfortunately, the prominence of Yankees stars in the Report and the near-absence of Red Sox stars raises the question of whether Senator George Mitchell, the Report's primary author, was compromised by his status as a Boston Red Sox director. Was he deliberately targeting Yankees players and/or purposely overlooking offenses by Red Sox?

Although I may be influenced by my own pro-Red Sox biases, I think it is unlikely that Mitchell was out to get the Yankees or covering up for the Red Sox. Since leaving the Senate, Mitchell has made a career of serving as an elder statesman/conflict mediator from Northern Ireland to the Israeli-Palestinian conflict. I highly doubt that Mitchell would be willing to risk that reputation - to say nothing of his lucrative consulting business - just to help out the Red Sox or stick it to the Yankees. Even if Mitchell were indeed willing to fall on his sword for the Sox, an experienced politician like the former Senator surely knows that any attempt at an anti-Yankees witch hunt or pro-Red Sox coverup would probably leak to the press. The resulting scandal would be extremely damaging to both Mitchell and the Red Sox. Finally, any witch hunt or coverup would have had to involve numerous staffers and investigators, as well as Mitchell himself. I don't see why these people would be willing to risk their own careers and reputations just to help Mitchell do a good turn for the Red Sox.

That said, it was a mistake for baseball Commissioner Bud Selig to appoint Mitchell to head this inquiry. Even if there wasn't any bias in Mitchell's investigation, there was certainly a conflict of interest - a conflict exacerbated by the longstanding Yankees-Red Sox rivalry and the prominence of Yankees players among those accused of steroids use. Surely Selig could have found some other elder statesman to take on this job, one with no affiliations with any major league team.

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Former Blogger Heading to 1 First Street: Congrats to Will Baude, familiar to many VC readers as the former head of Crescat Sententia, who recently accepted a clerkship for OT08 with Chief Justice Roberts. By my count, Will is the fourth legal blogger to get a Supreme Court clerkship.
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New Jersey to Become First State in Over 40 Years to Ban Death Penalty: News story here. I believe that makes the count 37 states "for" the death penalty and 13 states "against." Like a lot of states that have the death penalty on the books, New Jersey's was more symbolic than anything else; although defendants were occasionally sentenced to death, I believe the state hadn't actually executed any one in decades.

  I tend to support the death penalty, but I have to say I'm a big fan of the fact that New Jersey is banning it the old-fashioned way -- through the elected branches.
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Against Mike Huckabee:

I may not know who I'm for in the Republican presidential race. But I do know one leading candidate I'm definitely against: newly anointed frontrunner Mike Huckabee.

Conservative UCLA law professor Steve Bainbridge, libertarian Cato Institute scholar Michael Tanner, and libertarian-leaning columnist Deroy Murdock present some excellent reasons why anyone who cares about limiting the power of government has every reason to oppose Huckabee's nomination. In addition, the pro-free market Club for Growth gives a strongly negative review of his record on economic policy as Governor of Arkansas, concluding that he holds "profoundly anti-growth positions on taxes, spending, and government regulation." As Bainbridge points out, the libertarian Cato Institute gave Huckabee an "F" on its fiscal policy report card, a worse record than numerous very liberal Democratic governors.

I don't quite agree with all of Bainbridge, Tanner, and Murdock's points. Like Huckabee and unlike Bainbridge, I support the death penalty; like Huckabee and unlike Murdock, I am skeptical of the need to use waterboarding of prisoners as part of the War on Terror. However, the overall picture of Huckabee that emerges is one that exemplifies the worst elements of "big government conservatism." Huckabee combines a predilection for high levels of government spending and economic regulation with an even stronger commitment to nanny state regulation of personal behavior. The latter is exemplified by such positions as his support for a national smoking ban, his advocacy of government programs to prevent obesity, and his enthusiasm for government enforcement of conservative social mores.

To be sure, as I noted in one of my earlier posts on the presidential race, candidates' records are difficult to interpret because many of the positions they take are produced by the political constraints they face rather than by conviction. Perhaps some of the more objectionable elements of Huckabee's record are products of the vagaries of Arkansas politics. Nonetheless, it is telling that in his years as governor of relatively conservative Arkansas, Huckabee posted a significantly more anti-market record on economic policy than did Romney as governor of liberal Massachusetts and Giuliani as mayor of liberal New York City; indeed, his record was worse than that of many liberal Democratic governors of liberal states. It is also noteworthy that Huckabee endorses not only those forms of social regulation that other conservatives embrace (e.g. - cracking down on pornography), but also many of those usually associated with liberals (e.g. - the smoking ban). The latter can't easily be explained by the constraints Huckabee faced in conservative Arkansas.

I'll end on this note: the real danger posed by Huckabee is not so much his potential impact on specific policies as his impact on the future of the Republican Party. As president, Huckabee's policy initiatives will to some extent be constrained by a Democratic Congress and other factors. However, if he attains a reasonable degree of popularity and political success, a President Huckabee would have a freer hand in reshaping his own party in his image. He might be able to complete the work begun by George W. Bush and his congressional allies: the transformation of the Republican Party into a pro-big government party emphasizing populism and social conservatism. At this point, of course, it is still much more likely that the next president will be a Democrat. However, if things continue to improve in Iraq and the economy doesn't go south, there is some chance of a Republican victory. If it does happen, let's hope the lucky beneficiary won't be Mike Huckabee. One big government conservative administration in the 21st century is more than enough.

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Fourth Amendment Podcasts Brought to You By the Federal Government: They're available here, from the Federal Law Enforcement Training Center in lovely Glynco, Georgia. DHS agents are the intended audience, but you can listen in, too. (The instructor is Jenna Solari, a Senior Instructor in the Legal Division at FLETC; I don't know her, but she seems to know her stuff.)
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Interesting Statistic on GOP Presidential Race: In a recent CBS/NYT poll taken between 12/5 and 12/9, likely GOP primary voters were asked if they were certain about who they would support in the GOP Presidential primaries or whether it was too early for them to be certain. The response: 76% said they were not certain, and only 23% said they were certain.
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If You Like Watching C-Span on Saturday Nights, you won't want to miss Eric Muller discussing his new book this Saturday at 10pm on BookTV. I understand if you have other plans.
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Here He Comes, To Save the Day: From the Associated Press:
  The age-long animosity between cat and mouse could be a thing of the past with genetically modified "fearless" mice that Japanese scientists say shed light on mammal behaviour.
  Using genetic engineering, scientists at Tokyo University say they have successfully switched off the rodents' instinct to cower at the smell or presence of cats - showing fear is genetically hardwired and not learned through experience, as commonly believed.
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Gun "Buybacks"

Newport News, St. Louis, New Haven, and other cities are conducting gun "buybacks." In a 2000 article for National Review Online, I suggested that gun "buybacks" were a poor idea. Social science research by persons who are generally sympathetic to gun control has found no evidence that buybacks reduce gun misuse--since the people who surrender their guns tend to not be the kind of people who would misuse a gun in the first place.

Moreover, the term "buyback" is a misnomer, since the police departments did not originally own the guns. And the notion of taxpayer dollars or government employee time being used to encourage people to surrender the means of exercising their constitutional rights is contrary to, at the least, the spirit of the state and federal Bills of Rights.

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Self-Awareness and Good Faith: In the comment thread to my post on presuming good faith, commenter Bluquark writes:
I think many cases of apparent bad faith are mainly self-deceit. People very commonly ignore or distort evidence that goes against their preconceptions. It can be difficult for an outsider to tell the difference between this, and a more conventional lie designed to deceive only others.
  I would put this point differently: Levels of self-awareness vary, and people often make arguments instinctively. They see themselves as being on a side, and they have a general sense that their side is right and the other guys are wrong. As a result, people often feel comfortable grabbing an argument that comes along even if they haven't thought it through carefully. Of course, there's a big difference between making an argument you should know is weak and making an argument that you actually don't believe.
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w00t:

That's Merriam-Webster's #1 Word of the Year. Grant Barrett (The Lexicographer's Rules) has more on the word's history.

I had never once heard or seen the word (with whatever spelling) until I heard about the Merriam-Webster's selection. Thanks to Haym Hirsh for the pointer.

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USASpending.Gov:

Today the White House Office of Management and Budget (OMB) is launching a new website, USASpending.gov, to increase transparency and accountability in the federal appropriations process. As Glenn Reynolds notes, this is "good news on the pork front."

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Alberto Gonzales - "Lawyer of the Year":

The ABA Journal has named former AG Alberto Gonzales as one of their "lawyers of the year" for 2007. More here.

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Col. Davis and the Testimony that Wasn't:

As Eugene noted below, the Pentagon did not let Col. Morris Davis testify before the Senate about military commissions. As it turned out, the military sent Brigadier General Hartmann instead, and he was "not equipped to answer" some of the Senate Committee's questions, such as whether it would violate the Geneva Convention if Iran waterboarded a downed U.S. airman. Has it really come to this? More from Marty Lederman here.

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Arguing in Good Faith: Debates in the blogosphere often involve accusations of bad faith. Positions are often dismissed as disingenuous, two-faced, and deceitful. In this post, I want to argue for the importance of taking a different approach: I think we should debate with a strong presumption of good faith.

  My first reason is that I think arguments made in bad faith are actually pretty rare in the blogosphere. Granted, we all have our own quirky perspectives. We all approach hot-button issues in different ways, and all of us occasionally say things that readers find wrong, silly, or outrageous. But in my experience, the overwhelming majority of those cases are real efforts to articulate honestly-held views.

  When that's the case, an accusation of bad faith is like a poison. To all but the most partisan readers, the accusation will come off as a lame non-answer: "you don't really believe that" will sound like an excuse not to articulate why the position is wrong. And of course it only makes the person you're arguing against angry and less likely to take you seriously. In a disagreement, it's natural to treat nice people nicely and mean people defensively. Making a false accusation of bad faith just makes people dig in their heels.

  But wait, you're thinking: Some bloggers do in fact argue in bad faith. They really are disingenuous. Unfortunately, it does happen. But here's the thing: when it happens, pretty much everyone knows it. Most blog readers are pretty sharp, and they can see the signs from pretty far away. Pointing it out doesn't achieve anything.

  And besides, if someone is really making a disingenuous argument, it's probably pretty easy to counter it on the merits. If the person who wants to believe the argument realizes it's unpersuasive, it shouldn't be hard for you to show exactly why that's the case. And when you do that, it demonstrates the strength of your position much more than an accusation of bad faith ever could.
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If You Ever Build It, Maybe Some Economic Development Will Come - The New London Development Project Since Kelo:

When the Supreme Court upheld the condemnation of private property for transfer to other private parties in Kelo v. City of New London, it was in large part on the theory that courts should defer to local governments' judgments about when the use of eminent domain is needed to promote "economic development." However, two and one half years after the Supreme Court ruled in favor of the city and some seven years after the condemnation proceedings were first initiated, little or no economic development has occurred on the condemned land. As the New London Day documents in this recent article and this editorial, the New London Development Corporation (the city agency responsible for the condemnations) and its designated private developer Corcoran Jennison have missed repeated deadlines to begin construction of the new housing that they were supposed to build in the area. Indeed, as The Day points out, no construction at all has taken place on the site since the Supreme Court's decision was issued in June 2005.

Yesterday, the NLDC and Corcoran reached an agreement under which the developer must meet a May 29, 2008 deadline to secure financing for the construction of 66 luxury apartments and 14 townhouses in the area. If it fails to do so, it will forfeit its right to develop the property and the NLDC will be free to pick a new firm to develop the area.

Even if Corcoran Jennison and the NLDC finally get their act together, it is unlikely that their project will produce enough economic development to offset the more than $80 million public funds that have already been spent on the project (see my article on Kelo for the source for this figure). And that estimate does not include the economic damage inflicted on New London by the destruction of the precondemnation uses of the property, including a significant number of homes and businesses. It also does not include the economic costs of letting the area lie unused for a period of several years while the NLDC and Corcoran tried to find a way to finance their planned development project.

If the Kelo condemnation ultimately ends up creating more economic costs than benefits, that would not be a surprising development. For reasons I have explained in great detail in several articles (e.g. here and here), economic development takings often harm local economies more than they benefit them. Local governments and the private interest groups that seek to acquire condemned land have strong incentives to overstate the benefits of such condemnations, while understating the costs. And it is extremely difficult - often impossible - for voters to assess their self-serving claims accurately.

What is striking about the Kelo takings is that this pattern held true even in a case where intense nationwide media scrutiny was focused on the local government and its chosen developer. The Day also deserves credit for providing some excellent local coverage of the controversy. In more typical cases, where there is much less media attention, local governments have even less incentive to actually produce the "economic development" that supposedly justified condemnation in the first place.

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Wednesday, December 12, 2007

Law in Fantasy Literature:

Lawprof Dave Hoffman has an interesting interview with fantasy writer Patrick Rothfuss on the portrayal of law in the fantasy genre.

Rothfuss makes the interesting point that there is nothing antithetical between having a functioning legal system and a society that believes in and uses magic. After all, ancient and medieval legal systems functioned in a society where most people took the idea of magic seriously and believed in the existence of demons, witches, monsters, and so on. The real reasons why civil law doesn't play a big role in fantasy literature area combination of 1) the relative ignorance of most fantasy writers about law and legal systems, 2) the fact that legal disputes are usually not a good way to advance a fantasy plot (as Rothfuss implicitly points out), and 3) the strong demand of much of the fan base for "action"-oriented plots that feature lots of violence and sorcery. However, as Hoffman and Rothfuss discuss, that may be changing with the rise of more "realistic" fantasy literature in recent years; "realistic" not in the sense that the authors' imaginary worlds conform to the laws of science as we know them, but in the sense that the story is set in a more fully developed and internally consistent society. This has already led to a more realistic and sophisticated treatment of political systems by fantasy writers. The same development might also impact the portrayal of legal systems.

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Congress Is Making It Harder to Obtain or Refinance a Mortgage.--

For years, Congress had been pushing lenders to lend vigorously in poor neighborhoods and to avoid redlining. This effort worked--only too well.

Now Congress has discovered "predatory lending."

Jack Guttenberg (on Yahoo and in the Washington Post) has been criticizing Congress's efforts (H.R. 3915 the Mortgage Reform and Anti-Predatory Lending Act of 2007) to impose new requirements on lenders and brokers who repackage loans:

The tangible net benefit rule applied to loans being refinanced would make lenders responsible for something over which they have little or no control.

Virtually all refinanced mortgages provide tangible benefits — otherwise borrowers wouldn't do them. . . .

The problem is that, in exchange for the benefit, the predator extracts a pound of flesh. That's why the proposed legislation requires a "net" benefit, meaning that the benefit outweighs the cost. Unfortunately, there is no way that a lender can determine this. Whether or not the benefit outweighs the cost in any particular case depends heavily on what is in the borrower's head.

This will become clear from looking at the four main reasons that borrowers refinance: to reduce costs, raise cash, reduce monthly payments, and reduce interest-rate risk.

The Tangible Net Benefit in a Cost-Reduction Refinance

A cost-reduction refinance is one in which the new interest rate or mortgage insurance premium is lower than the existing one. In most cases, however, the borrower incurs costs upfront. If there is to be a net benefit, therefore, the future savings must outweigh the upfront costs.

But future savings depend, among other things, on how long the borrower expects to have the mortgage. This critical piece of information, if it is anywhere, is in the borrower's head.

The Tangible Net Benefit in a Cash-Out Refinance

Some of the worst market abuses arise on "cash-out" refinances, where the motive is to raise cash. Suppose that in raising $5,000 this way, John Doe has to accept a 7 percent loan as replacement for his current 6 percent loan, and $5,000 in refinance costs that are tacked on to his loan balance. The tangible benefit of $5,000 in cash is clear, but is it a net benefit?

There is no objective way for the lender to answer the question. The price seems high, but maybe the borrower needs the $5,000 to pay for life-saving medicine for his children? Again, the answer is in the head of the borrower.

It could be argued that whether or not there is a net benefit also should depend on the borrower's options. If the borrower could raise the $5,000 elsewhere at a much lower cost, the finding should be that there is no net benefit. It is neither feasible nor fair, however, to make lenders responsible for assessing their customers' options.

The Tangible Net Benefit in a Payment-Reduction Refinance

Some borrowers are willing to pay a stiff price, in the form of wealth reduction in the future, in order to reduce their monthly payments now. Frequently this involves converting a fixed-rate loan into an adjustable loan carrying a lower rate, often with an interest-only option, for a limited period. Costs are usually tacked on to the balance.

Whether there is a net benefit depends in good part on how critical it is to the borrower to lower the payment. Perhaps the alternative to a payment reduction is default. Only the borrower knows.

The Tangible Net Benefit in a Risk-Reduction Refinance

When interest rates are expected to rise, as was the case during much of 2005, many holders of adjustable-rate mortgages consider converting them to fixed-rate mortgages. The borrowers making the switch are willing to pay a higher rate now in exchange for future rate certainty. On this issue, lenders are in no position to substitute their judgment for the borrower's.

In sum, regardless of why borrowers refinance, the question of whether they receive a net benefit from it is for borrowers alone to answer. Lenders do not have the information needed to second-guess them.

This act would create new opportunities for lawyers to sue lenders and mortgage brokers for making or repackaging loans. This should raise the cost of borrowing and further restrict lending by banks and brokers. With a drop in housing prices and the need of many borrowers to refinance, substantially raising the cost of money may well make things worse rather than better.

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I Smell an Auto-Correction Glitch:

From the American Association of Law Schools program:

In 1934, in the Departmenth of the greatest depression in history ....

By the way, can we really say that the Great Depression was the greatest depression in history?

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The New Legal Realism?: In this short paper, Cass Sunstein and Tom Miles argue that the recent spurt of empirical studies of judicial behavior in the last decade amounts to a new movement that they dub "the New Legal Realism":
A distinguishing feature of the New Legal Realism is the close examination of reported cases in order to understand how judicial personality, understood in various ways, influences legal outcomes, and how legal institutions constrain or unleash these influences. These inquires represent an effort to test the (old-style) realist claims about the indeterminacy of law, and to implement its call for empirical study of how different judges decide cases by responding to the "stimulus" of each case.
I never know what to make of claims about "movements" in law. Such claims often artificially focus our attention on some plausible differences while ignoring many important similarities. Given that, it can be hard to tell if the differences are really significant enough to justify the label. Still, I thought this was a pretty persuasive paper about a useful and interesting methodology.

  By way of full disclosure, I should acknowledge that I wrote a New-Legal-Realist-y paper as a law student: see my first "real" article, Shedding Light on Chevron: An. Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 Yale J. Reg. 1 (1998). I guess I grew out of it, unless the Umpire Watch brings me back into the fold.

  Thanks to Legal Theory Blog for the link.
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Rube Goldberg Indicted for Murder:

Lovers of law school exams might enjoy my Fall criminal law exam, which I am just about to start grading:

Oleander O’Leary owns a restaurant, called Oleander’s. The restaurant is losing money, and O’Leary doesn’t know how she can keep it running. So, with deep regret, she decides to burn it down for the insurance money. She pours gasoline all over the property, but just as she is about to light the match to ignite it, she has second thoughts: Maybe she can turn the restaurant around in the next month, she thinks. She puts the matches back in her pocket.

Meantime, Vera Variola, a brilliant but sometimes forgetful biology researcher at the local university, is walking home past Oleander’s. Morgan Dexter and Bar Sinister are standing in a nearby alley, talking. Dexter sees Variola approach, and tells Sinister, “Let’s rob her.” Sinister says “No, it’s too risky.” Dexter says, “You coward, if you don’t help me, I’ll beat you up.” Sinister says, “OK, OK.”

Analyze, both under the common law and the Model Penal Code.

UPDATE: Commenter CDU adds:

Law student Lester Leighton, trying to comprehend the above question, suffers a brain aneurysm. Lyssa Lang, another law student sitting nearby, notices his distress. However, she places a higher priority on getting a good mark on the exam and says nothing. After the exam is over, a janitor, John Jones notices Lester lying on the floor of the classroom and calls 911. Paramedics arrive and find Lester is still alive. On the way to the hospital, a car driven by Dilbert Dinkins, who a breathalizer test later indicates had a blood alcohol level of .24, collides with the ambulance fracturing Lester's skull. At the hospital a medical mistake results in the doctor operating on the wrong side of Lester's head, causing his death. The autopsy reveals that Lester could have survived the aneurysm without significant disability had 911 been called immediately, would have survived with a disability had the accident not occurred, and would have even survived the injuries from the accident had the doctor operated on the correct side of the head.

Discuss Professor Volokh's liability for Lester's death.

My quick thought: It's poor form to have one character's name start with the same letter as another character's.

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"The Serpent Beguiled Me And I Did Eat": The entrapment defense is a modern creation. It was unknown at common law, and didn't really surface until the Supreme Court's decision in Sorrells v. United States, 287 U.S. 435 (1932). In the 19th century, defendants occasionally made the argument that they shouldn't be liable if they were entrapped. But courts generally rejected the claim. Here's a particularly memorable (if not terribly prophetic) passage along those lines from an 1864 New York court decision:
Even if inducements to commit crime could be assumed to exist in this case, the allegation of the defendant would be but the repetition of the plea as ancient as the world, and first interposed in Paradise: “The serpent beguiled me and I did eat.” That defence was overruled by the great Lawgiver, and whatever estimate we may form, or whatever judgment pass upon the character or conduct of the tempter, this plea has never since availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say christian ethics, it never will.
Board of Commissioners v. Backus, 29 How. Pr. 33 (N.Y. Super. Ct. 1864).
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Obama on Handguns:

In a 1996 questionnaire, he answered "Yes" to the question, "Do you support state legislation to ... ban the manufacture, sale and possession of handguns?" Politico reports on this, and goes on to say:

A week after Politico provided the questionnaire to the Obama campaign for comment, an aide called Monday night to say that Obama had said he did not fill out the form, and provided a contact for his campaign manager at the time, who said she filled it out. It includes first-person comments such as: “I have not previously been a candidate.”

The campaign said his views have been consistent, and points out that his positions have always been more nuanced than can be conveyed in yes-or-no answers.

Obama, who makes an issue of his opponents’ consistency in the presidential race, has tempered many of those 1996 views during his quick rise to the pinnacle of American politics. He now takes less dogmatic positions many of those hot-button issues -- in the view of some Democrats, he abandoned the stands as he rose through the ranks....

On handguns, his campaign said he has consistently been for “common-sense limits, but not banning” throughout his 11-year political career.

The Hillary Clinton campaign responded:

Barack Obama’s campaign is on the defensive about his electability today in the face of a new CBS/New York Times poll showing voters find Hillary Clinton far more electable and a news report showing Sen. Obama previously held positions -- such as banning all handguns -- that he no longer claims to espouse.

Thanks to InstaPundit for the pointer.

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Free Speech Victory in Georgia -- Though It Shouldn't Have Gone This Far:

I heard about the initial arrest, but didn't have the time to blog about it -- now it looks like the prosecutor has done the right thing:

On the day after Thanksgiving, [Robert Dean] Roethlisberger [Jr.] drove a truck with [14-feet-long] banners displaying images of aborted fetuses, including a bloody and headless torso. Roethlisberger works for Operation Rescue, a national anti-abortion organization.

Roethlisberger, 44, of Belton, Mo., had been charged under a provision of Georgia law that makes it a crime to use "obscene and vulgar or profane language" in the presence of a person under age 14.

[Gwinnett County Solicitor Rosanna Szabo dropped the charge, and stated,] "I have reviewed the evidence and law in this case, and concluded that the physical display of the images in question -— as shocking and offensive as they are -— does not constitute 'obscene and vulgar or profane language' as specifically prohibited by this statute."

I'm glad Ms. Szabo dismissed the charges, but they should never have been filed in the first instance. It's quite clear that, disturbing as the images might be, they are protected by the First Amendment (and are very, very far from the obscenity exception, even the broader version of the exception that may be present when the material is visible by minors).

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Another Attempt to Restrict Speech in Canada:

In Warman v. Beaumont, Richard Warman -- a frequent filer of complaints calling for punishment of bigoted speech, and a former employee of the Canadian Human Rights Commission -- filed a complaint about various posts by Jessica Beaumont; the Canadian Human Rights Commission joined in his complaint. Much of the complaint was about expressly racist, anti-gay, anti-Semitic, and otherwise bigoted speech; as blog readers know, I believe even such speech should be protected, but there's little new at this point in Canada's restrictions of such speech.

One item, though, is novel -- Warman's and the Commission's complaint about this post:

Message 7 - August 14, 2004

[16] This message was posted on a sub-forum entitled "Let Muslim women keep hijabs on". The discussion related to a news report that then Prime Minister Paul Martin believed that the practice at Montreal's airport of requiring Muslim women to remove headscarves as they pass through security screening should be stopped. Ms. Beaumont posted the following comment in this regard:

That drives me nuts, I take photos for the citizenship, passports, pr (permanent residence), visa cards etc. and as I have been told from human resourses that the ears MUST be visable, which means, if your hair covers your ears, it has to be tucked back.

I don't care if it's a religious thing or not, if you don't want to follow our rules, even if it is taking off your scarf thing for one lousy picture, then stay out of my effing country!

To its credit, the Canadian Human Rights Tribunal did not cite this message in holding against Beaumont; perhaps they do not take the view that this speech is now punishable in Canada.

But the Canadian Human Rights Commission and Mr. Warman apparently do take this view. According to them, the statement "I don't care if it's a religious thing or not, if you don't want to follow our rules, even if it is taking off your scarf thing for one lousy picture, then stay out of my effing country!" may be legally suppressed, on the grounds that it's "likely to expose persons to hatred or contempt on the basis of religion." If the Commission had its way, how far further down the slope would Canada slip?

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Surreptitious Recording of the Police:

Apropos the story about secret videotaping of the police in Massachusetts, check out this incident:

A teenage suspect who secretly recorded his interrogation on an MP3 player has landed a veteran detective in the middle of perjury charges, authorities said Thursday.

Unaware of the recording, Detective Christopher Perino testified in April that the suspect "wasn't questioned" about a shooting in the Bronx, a criminal complaint said. But then the defense confronted the detective with a transcript it said proved he had spent more than an hour unsuccessfully trying to persuade Erik Crespo to confess — at times with vulgar tactics....

Perino, 42, was arraigned Thursday on 12 counts of first-degree perjury ....

Perino had arrested Crespo on New Year's Eve 2005 while investigating the shooting of a man in an elevator. While in an interrogation room at a station house, Crespo, then 17, stealthily pressed the record button on the MP3 player, a Christmas gift, DeMarco said....

[After the disclosure, p]rosecutors then offered Crespo, who had faced as many as 25 years if convicted, seven years if he pleaded guilty to a weapons charge. He accepted.

Thanks to Wade Glover and Prof. Arnold Lowey for the pointer.

UPDATE: For a transcript of portions of the recording, see this Village Voice piece.

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Defending the Ostrich:

From the federal prosecutor's brief in United States v. Translavina, 2003 WL 22716483 (signed by assistant U.S. Attorney Greg Addington):

In concluding that the movant in Duke had not been diligent in bringing his Rule 41(e) motion, the Court stated that “the victim of an alleged wrong [may not] postpone the running of the statute of limitations by willfully closing his eyes, ostrich-like, to a known probability that he has been injured, even if he is not certain.”

[Footnote:] The analogy to ostrich behaviour reflects a myth which endures in popular culture. The popular conception that an ostrich will bury its head in the sand when confronted with danger or unpleasant stimuli has been thoroughly debunked. Various theories abound about the source of this ornithological myth, including the observation that ostriches will dig holes in the sand to bury their eggs and that they will occasionally place their heads on the ground when resting. The ostrich (Struthio camelus, of the group of flightless birds which includes emus, rheas, and kiwis) has been unfairly maligned as a symbol of cowardice and shirking of responsibilities. Once shorn of this erroneous negative association, the ostrich can take its proper place in the ornithological spectrum.

Curiously, the first use of the phrase “head in the sand” is in a poem by Elizabeth Barrett Browning in 1844. The text (stripped of its poetic context) is as follows: “this Ostrich age, which exposes its own eggs, and then hides its head in the sand...” Poems, Browning (1844). The myth endures through repetition in popular media as well as in obscure Circuit Court opinions.

All well and good, but what's with all this "behaviour"? Didn't we fight a couple of wars once upon a time about all that? Also, always be careful before saying something is the "first use of [a] phrase," even if you rely on the Oxford English Dictionary (which does give the 1844 reference as the earliest). Google Books -- which was introduced after the brief was filed -- points to several pre-Browning references.

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Lawsuit Challenging Qualifications of Deputy Patent & Trademark Office Director Rejected:

I blogged about this suit in July:

The complaint ... alleges that Deputy PTO Director Margaret Peterlin lacks the statutorily required "professional background and experience in patent or trademark law."

I can't speak to whether the deputy director in fact lacks such background and experience.... I'm more interested in the institutional question here: What should courts do with vague criteria such as "shall ... [have] a professional background and experience in patent or trademark law," criteria that give no instructions about the level of background and experience required? I'm not an administrative law expert, but I'm inclined to say that this is the sort of judgment that is left to the Director (and, indirectly, to the Secretary of Commerce and the President, who can decide to remove the Deputy Director), not to courts. But I'd love to hear what administrative law experts have to say about this, and about other procedural questions that this lawsuit raises.

Last week, a federal district court rejected the lawsuit, reasoning in relevant part:

Two of plaintiffs’ three claims appear to be brought directly under 35 U.S.C. § 3(b), the statute which structures the United States Patent and Trademark Office (USPTO) and creates the office of the Deputy Director which is held by Ms. Peterlin. Defendant argues that there is no private cause of action under this statute, and plaintiffs have functionally conceded this argument by failing to respond. Nor would a response have made much difference: neither the text nor the legislative history of the statute evinces anything approaching the congressional intent required to establish a private cause of action -– that is, intent to create both a private right and a private remedy.

One of plaintiffs’ three claims invokes Administrative Procedure Act (APA), which ... does provide a cause of action for persons aggrieved by final agency decisions that are arbitrary, capricious, or contrary to law. A claim alleging violation of the standard in 35 U.S.C. § 3(b) is unreviewable under the APA, however, because 35 U.S.C. § 3(b) lacks standards that a court could meaningfully use in evaluating this type of high-level personnel decision. Because the only statutory standard is vague and highly subjective, the decision whom to appoint Deputy Director must be considered “committed to agency discretion by law.”

The presumption must be that decisions involving high-level policymaking personnel are left primarily to the executive. In such a situation, one would expect Congress to speak in precise terms if it intended the courts to monitor the minimal qualifications for agency officers. Here, Congress has given only the broadest of instructions -– that the Deputy Director should have “a professional background and experience in patent or trademark law.” The statute is silent as to the content of those terms. Were the decision subjected to APA review, the Court -– not Congress -– would be the ultimate source of the standards by which the qualifications of Ms. Peterlin would be judged: Is a law degree necessary? Is it sufficient? Are law school courses in intellectual property a requirement? Is certification to practice before the USPTO? Is law firm experience? How many years? If Congress had intended the extraordinary situation in which judicial review would reach to the very qualifications of agency officers for their policymaking positions, its statute would not be drawn “in such broad terms that ... there is no law to apply.”

Thanks to reader Michael Hall for the pointer.

Related Posts (on one page):

  1. Lawsuit Challenging Qualifications of Deputy Patent & Trademark Office Director Rejected:
  2. More troublemaking Volokhs:
  3. Lawsuit Challenging Qualifications of Deputy Patent & Trademark Office Director:
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In the Mail: The Wire, the Complete Fourth Season. Sure, it's old news to readers who have HBO; but for some of us, it's an event.
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Tuesday, December 11, 2007

Bush Issues Pardons:

President Bush has been notably stingy in his use of the Presidential pardon power over the past seven years. Today, however, he issued 29 pardons. The full list is here.

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A New Negative Ad:

Here's a new negative ad for the ages. (Thanks to Dan Lowenstein for the tip.)

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The Dark Side of Privacy Law:

InstaPundit links to a story about someone who was "convicted of violating state wiretapping laws" for "conceal[ing] a camera to videotape a Boston University police sergeant ... during a 2006 political protest."

That's pretty outrageous, but it's entirely consistent with a 2001 Massachusetts Supreme Judicial Court decision in Commonwealth v. Hyde, which is based on Massachusetts' extremely broad privacy law:

This case raises the issue whether a motorist may be prosecuted for violating the Massachusetts electronic surveillance statute ... for secretly tape recording statements made by police officers during a routine traffic stop. A jury in the District Court convicted the defendant on four counts of a complaint charging him with unlawfully intercepting the oral communications of another .... We conclude that [the state interception law] strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter. Accordingly, we affirm the judgments of conviction.

... On October 26, 1998, just after 10:30 P.M., an Abington police officer stopped the defendant's white Porsche, because the automobile had an excessively loud exhaust system and an unlit rear registration plate light. Three other Abington police officers arrived shortly thereafter and the stop quickly became confrontational. During the course of the stop, which lasted approximately fifteen to twenty minutes, the defendant and his passenger, Daniel Hartesty, were ordered out of the automobile, and Hartesty was pat frisked.

One officer reached into the automobile, picked up a plastic shopping bag that lay on the floor by the passenger seat, and looked inside. (The bag contained compact discs.) At one point, the defendant stated that the stop was "a bunch of bullshit," and that he had been stopped because of his long hair. One officer responded, "Don't lay that shit on me." Later, another officer called the defendant "an asshole." The defendant was asked whether he had any "blow" (cocaine) in the car.

At the conclusion of the stop, the defendant and Hartesty were allowed to leave. No traffic citation was issued to the defendant, and the defendant was not charged with any crime. According to the testimony of one police officer, the defendant was "almost out of control" and the stop "had gone so sour," that it was deemed in everyone's interest simply to give the defendant a verbal warning. Unbeknownst to the officers, however, the defendant had activated a hand-held tape recorder at the inception of the stop and had recorded the entire encounter.

Six days later, the defendant went to the Abington police station to file a formal complaint based on his unfair treatment during the stop. To substantiate his allegations, he produced the tape recording he had made. A subsequent internal investigation conducted by the Abington police department, which concluded on February 1, 1999, exonerated the officers of any misconduct.

In the meantime, the Abington police sought a criminal complaint in the Brockton Division of the District Court Department against the defendant for four counts of wiretapping in violation of [the state law].

So there you have the dark side of "privacy" — the law aimed at protecting privacy ends up wrongly restricting people's liberty, and people's ability to protect themselves against police misconduct. Here's part of the court's rationale:

We reject the defendant's argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute's preamble expresses the Legislature's general concern that "the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth" and this concern was relied on to justify the ban on the public's clandestine use of such devices.

And this protection of "privacy" extends not just to allegedly misbehaving cops but also to ... kidnappers calling in ransom requests: "In Commonwealth v. Jackson, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited ...."

These incidents aren't necessarily an indictment of all such laws. Perhaps such a law could be properly drafted to exclude audiotaping of conversations with the police, or of conversations with people who one reasonably believes are trying to extort something from you or threaten you. But the incidents are a warning that not all laws proposed in the name of "privacy" are good, especially when they try to protect one person's privacy by constraining another's liberty to record conversations to which one is lawfully a party.

UPDATE: Even Prof. Dan Solove (Concurring Opinions), who often disagrees with me on privacy issues, agrees on this one.

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Crack/Cocaine Disparity Changes To be Made Retroactive: Jacob Sullum reports:
  Today the U.S. Sentencing Commission decided to retroactively apply recent guideline changes that shrank the disparity between crack and cocaine powder. That means crack offenders sentenced prior to November 1, when the changes took effect, can apply for resentencing. Families Against Mandatory Minimums says retroactivity applies to nearly 20,000 prisoners, about 2,250 of whom could be eligible for release within a year.
  Neither the Supreme Court ruling nor the sentencing commission's decision affects the five- and 10-year statutory mandatory minimums for crack offenses. . . .
  You may be thinking, "wait, how can they do this?" The statutory authority is provided by 18 U.S.C. 3582(c)(2):
The court may not modify a term of imprisonment once it has been imposed except that . . . in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994 (o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
  As one commenter said yesterday, in light of Kimbrough, "Man, did I start my crack habit at the right time or what!"
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Jim Geraghty Responds to Steve Chapman's and My Comments on Mitt Romney:

Jim writes, on National Review Online's Campaign Spot blog:

[Heading:] Uncharitably Reading An Old Romney Comment Steve Chapman, as well as Eugene Volokh, think Romney is hypocritical on the issue of "religious tests" for office.

At issue:

Like John F. Kennedy, who said in 1960 that the presidency should not be "tarnished by arbitrarily withholding its occupancy from the members of any one religious group," Romney said there should be no religious test for this office. "A person should not be elected because of his faith nor should he be rejected because of his faith," he said.

Rejected because of his faith, no. But rejected for his lack of faith? That's another question. Romney evinces a powerful aversion to skeptics. "We need to have a person of faith lead the country," he said in February, which sounds like a religious test to me.

I disagree. We should have no Constitutional or legal requirement of religious faith for office. But the voters are certainly entitled to take a candidate's religious views, or lack thereof, into their decision-making process.

In fact, voters have every right to ask Romney a bunch of questions about what he believes about God; reporters have that right as well and have exercised that right to embarrassing lengths this cycle. A candidate has the choice to answer those questions, as well as the right to say, "that's private, and that's none of your business."

When Romney says, "we need to have a person of faith lead the country," I have a hard time reading this as anything other than an expression of personal preference, and/or his assessment of what the country needs in a leader right now. He's not calling for a religious test or legal requirement for the office; the audience that Romney addresses can either say, "yes, we agree," or say, "no, we don't need a person of faith, we need a person of competence/vision/whatever." (Not that faith contradicts any of those other qualities.)

I wonder, though, whether Jim disagrees with Romney more than he does with me. As my post suggested, it's certainly plausible to argue that voters should inquire into a candidate's beliefs about God. But Governor Romney seems to take a different view:

There are some who would have a presidential candidate describe and explain his church's distinctive doctrines. To do so would enable the very religious test the founders prohibited in the Constitution. No candidate should become the spokesman for his faith. For if he becomes President he will need the prayers of the people of all faiths.

So it sounds to me like Romney is indeed saying that it's wrong (not illegal, but wrong) for voters and journalists to ask a candidate about his religious views, and to hold it against him that he hasn't adequately answered their questions.

Maybe Jim sees this just as Romney's exercising his "right to say, 'that's private, and that's none of your business.'" But then I don't quite see what Jim means by "voters have every right to ask Romney a bunch of questions about what he believes about God," unless he is simply making the (fairly obvious) legal point that voters are legally and constitutionally free to ask Romney anything they please.

Related Posts (on one page):

  1. Jim Geraghty Responds to Steve Chapman's and My Comments on Mitt Romney:
  2. Romney on Religious Tests:
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More on the Taser Video -- A Response to Scott Greenfield: Over at Simple Justice, defense attorney Scott Greenfield has an interesting objection to yesterday's post arguing that there are two legitimate ways to construe the Utah taser video I blogged about last Friday. In response to my claim that an officer could reasonably fear that the driver was fishing for a weapon in his pocket at the 2:36 mark, Greenfield strongly disagrees:
  This is where it becomes clear that the academic's view lacks practical connection with reality. It's not just the hands. It's the bulge. The minutes the driver exited the vehicle, the cop eyeballed the guy for a bulge, the telltale sign of a weapon. Guns are big and heavy. People who have never seen or held a gun don't realize that they are big and heavy. Check the waistband and the pockets for the bulge. Check under the arms. No bulge, it's safe.
  The cop isn't afraid that the driver is going to reach into his pocket and throw loose change at him. The only reason for a cop to be concerned is a weapon. There could be a small pocket knife, but the cop already has the taser out and aimed, so he's not worried that the driver will reach him with a pocket knife. There's no chance of that happening. But most importantly, and regardless of what the driver is doing with his hands, there's no bulge.
  Why does it matter that a known criminal law scholar like Orin makes such rookie mistakes in his analysis? Because there are a lot of lawyers, and some of them will be your judge someday and others may be on your jury, who think they are learning about "real-life" criminal law from him. . . .
  Was the use of force "reasonable" from the officer's perspective? Only if one lives in a fantasy world where one deliberately closes one's eyes to both the reality of police work and the fundamental expectation that police do not go around using force against citizens because they, the cops, are screw-ups. No Orin, I can't agree that it was reasonable. And I can't agree that your efforts to "explain" the cop's perspective demonstrate that you take a fair and reasonable view of police/citizen encounters. You blew this one big time.
  I always appreciate careful criticism of my analysis, so I wanted to post this and then offer a few thoughts in response.

  I think there are two issues here. The first is Greenfield's claim that no reasonable person could possibly think that the driver was armed based on observing him during the stop. On this, I'll happily defer to others with more experience with handguns. The driver is wearing shorts with big baggy pockets, and I would think a smaller-size handgun could fit in those pockets without making a large and obviously visible bulge. (Of course the officer could frisk the driver for weapons, but he didn't get the chance to do that given how the episode unfolded.) However, I am indeed a "rookie" when it comes to the size of bulges different pistols make in different pockets of different pants; I've fired a pistol before, but it was years ago, and I can't say I've put one in my pocket. Would a pistol necessarily be obviously visible? On that issue I'll defer to others.

  At the same time, if we're interested in the legal question of whether the use of force was "excessive" under the Fourth Amendment, I think it's worth pointing out the legal standard is actually quite deferential to the police in these situations. The legal standard is objective reasonableness, "judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight." Graham v. Connor. The officer's subjective intent is irrelevant. Id. As the Supreme Court stressed in Graham, "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation." Thus from a legal standpoint it would have to be pretty clear (even based on a quick, split-second judgment) that the driver was not armed for Greenfield's analysis to have its full force.

  Was it that clear? Again, I'm happy to defer to others on that issue.

  UPDATE: The commenters to the thread who are firearms owners or otherwise very familiar with firearms appear to agree that Greenfield is incorrect, and that there are several popular types of handguns that would fit in the driver's pocket without causing a visible bulge. If that's right, I suppose it shows the dangers of characterizing disagreement as a contest between "reality" and an ivory-tower "fantasy world"; that kind of overblown rhetoric is fun to write, but it seems a bit silly if the ivory tower ends up being right.
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Property Law in Russian Literature:

University of Alberta property professor Russ Brown partly agrees with my post pointing out the prominence of property law in classic literature. He notes that property issues do indeed a play an important role in many classic English novels, but suggests that that is not true of classic Russian literature.

Russ is probably right to suppose that property-related themes are less prominent in Russian than in English-language literature. However, they are far from absent. Nikolai Gogol's classic work Dead Souls hinges on a point of property law to an even greater extent than Jane Austen's Pride and Prejudice.

Chichikov, the main character, is seeking to marry a wealthy heiress (an interesting parallel to Jane Austen's characters, many of whom are women who need to marry wealthy men). In order to achieve his goal, Chichikov has to prove that he himself is wealthy enough to aspire to the lady's hand. Nineteenth century Russian gentry measured their wealth in large part by the number of serfs ("souls") they owned. Lacking the funds to purchase a sufficient number of living serfs, Chichikov hatches a plan to purchase dead ones (the "dead souls" of the title) who, under Russian law, were still carried on their owners' books until the next census after their demise. The owners have an incentive to sell to Chichikov because the dead serfs were actually tax liabilities for as long as they remained on the books! Several parts of the story explore Russian attitudes to property (including of course the ownership of serfs themselves, which Gogol at that time opposed). Dead Souls is usually regarded as the first great Russian novel, and property law (along with tax law) played a key role in it.

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DOJ Files "Controversial" Brief in Voter ID Case: TPMMuckraker is raising alarm about DOJ's amicus brief filed recently in the Indiana Voter ID case. It suggests that DOJ's decision to file a brief is suspect and that the positions in the DOJ brief are somehow "extreme." Rick Hasen echoes some of these themes here.

  I confess, I don't get the problem. To be clear, I am underwhelmed by those who claim that voter fraud needs to be a major priority of DOJ. I also have no idea if I would vote for the Indiana law if I were somehow reincarnated as a Hoosier legislator. But the federal interest seems obvious enough. The Indiana law was enacted pursuant to several federal statutes regulating the electoral process, and (as I understand it) the Indiana elections will cover both state and federal races. Sounds like a strong federal interest to me, making DOJ involvement seem proper. And while I am not expert in this area, the brief on the merits appears pretty persuasive.

  Of course, that doesn't mean the Supreme Court will agree with the DOJ position (although, without going into the details, I would guess it will). But I'm puzzled as to why the filing of the brief is itself supposed to be alarming or unusual.
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Pentagon Ordering Former Chief Prosecutor at Guantanamo Not To Appear Before the Senate Judiciary Committee?

That's what Sen. Feinstein reports (linked to and quoted by TPMmuckraker: "We assured the administration that Colonel Davis would not be asked about open and pending cases. But we were told simply that Colonel Davis was active duty military, and because he was active duty military, they could issue an order he had to follow." (Recall that Col. Davis has publicly criticized the operation of the current military tribunal system, and resigned his chief prosecutor post because of his views.)

I'm sure Col. Davis does have to follow his commanding officers' orders; I can't speak to whether the Senate has subpoena powers over such officers, but to my knowledge he hasn't been subpoenaed. But I can say that, based on the facts as reported by Sen. Feinstein, this seems like a very bad move on the Pentagon's part, both politically and from a policy perspective.

The Congressional oversight power, though it can often be abused, is quite necessary in such situations, especially when the judiciary is likely to give considerable deference to the executive (as it in considerable measure does, though some think it should give still more deference). It seems to me that for the executive to block testimony before Congress that might shed light on how the system operates, and whether it has flaws that jeopardize both defendants' rights and the system's accuracy and efficiency as a warfighting tool, both looks bad and is bad.

Thanks to Victor Steinbok for the pointer.

Related Posts (on one page):

  1. Col. Davis' Rejoinder to Brig. Gen. Hartmann:
  2. Brig. Gen. Hartmann Responds to Col. Davis:
  3. Col. Davis and the Testimony that Wasn't:
  4. Pentagon Ordering Former Chief Prosecutor at Guantanamo Not To Appear Before the Senate Judiciary Committee?
  5. Colonel Davis Speaks Out:
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Hanukkah or Chanukah (or Hanuka or Chanuka or ...)?

Some commenters asked why I use Hanukkah instead of Chanukah in my recent posts. When there are multiple transliterations, I prefer to use the more common one, and Google searches suggest Hanukkah is about five times more common than its nearest rivals.

I also tend to prefer spellings that are more unambiguously phonetic over those that are less phonetic or more ambiguous. I expect that most people know that the "Ch" in "Chanukah" is not the more common "ch"-as-in-"chair," but I imagine there are some who might not, so if all were equal I'd prefer a "H" in any event. (I know the "Ch" is supposed to represent a sound that differs from a normal English "H," but the difference isn't vast, and in my experience even my Jewish friends tend to use the more familiar English "H" sound when saying the word.) And here, the more common spelling is also the clearer one, so Hanukkah it is for me.

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Romney on Religious Tests:

It seems to me Steve Chapman at Reason Online has a good point (as did Atrios and Mark Kleiman) about "Mitt Romney's strange double standards":

Romney said there should be no religious test for this office. "A person should not be elected because of his faith nor should he be rejected because of his faith," he said.

Rejected because of his faith, no. But rejected for his lack of faith? That's another question. Romney evinces a powerful aversion to skeptics. "We need to have a person of faith lead the country," he said in February, which sounds like a religious test to me.

Now one can surely argue that a person's beliefs on religious issues are relevant to our evaluation of the person's character — of his commitment to reason, or his likely adherence to a moral code, or whatever else. (Our commenters had some very interesting thoughts on some closely related issues here and here.) Such relevance is in my experience often overestimated, but there's nothing inherently unsound about such arguments. [Sentence initially inadvertently omitted:] Likewise, one can reasonable argue that on balance one's beliefs on theological issues are in practice far enough removed from one's likely behavior on secular matters -- and that their significance is so likely to be erroneously estimated by others who have different theological beliefs -- that it's better to just exclude them from political discussion.

But it seems odd to say that challenging Romney because of his Mormon faith — for instance, "How can you believe such odd-seeming factual assertions about reality and history?," or "Your religion barred blacks from full-fledged membership until 1978, when you were 30; what was your view at the time about the morality of this prohibition?" — is somehow categorically improper, but rejecting atheist or agnostic political leaders because of their lack of religious faith would be permissible.

I realize, by the way, that Romney's "We need to have a person of faith" line was an apparently off-the-cuff response to a hostile questioner. But I haven't heard of Romney expressly or implicitly disavowing it, despite the public attention the line had gotten. Nor have I heard of anything else that suggests that Romney does not in fact take this view.

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Huckabee vs. Dual Citizens

As Governor of Arkansas, Mike Huckabee displayed a very welcoming attitude towards illegal immigrants--such as supporting a law to give subsdized in-state college tuition to illegal aliens who had lived in Arkansas for three years. Such a law would have resulted in the taxpayers of Arkansas giving a subsidy to a citizen of Mexico which could not be enjoyed by a citizen of Michigan.

Now, in the midst of a Republican nomination battle in which many voters seem strongly opposed to illegal immigration, Governor Huckabee has veered to the other extreme, and proposes to crack down on legal immigrants, as well as native-born Americans. Item 8 of his "Secure American Plan" promises to:

Impose civil and/or criminal penalties on American citizens who illegitimately use their dual status (e.g., using a foreign passport, voting in elections in both a foreign country and the U.S.).
Let's consider the second item first: a few countries (such as Italy) which recognize dual citizenship allow non-resident nationals to vote in their elections. Indeed, the Italian parliament even has several seats which are elected by Italian citizens living abroad. It seems obvious that encouraging American citizens who can vote in foreign elections to do so would be in the strategic interests of the United States. A person who resides in America, and who is a citizen of both of the United States and Italy, is probably going to be a stronger supporter of Italo-American friendship than is an Italian-only citizen living in Italy.

The same point applies to dual citizens of Mexico and the U.S. who live in the U.S.; more so than Mexican-only citizens who live in Mexico, the dual citizens are likely to vote for Mexican candidates who favor friendly relations with the United States. I am sure there are exceptions which could be found, but on the whole, encouraging dual citizens to vote in foreign elections would generally promote the election of pro-American candidates.

Of course the converse is also true. Persons with dual citizenship who vote in the U.S. would more likely to vote for a pro-Italy (or pro-Mexico) candidate. If we are willing to allow a particular person to be a U.S. citizen, it would be perverse (and perhaps a violation of the 15th Amendment) to try to discourage that person from voting in U.S. elections. And it would be harmful to American interests to discourage that person from voting in a foreign election.

The other part of Huckabee's promised crackdown involves persons "using a foreign passport." Under current U.S. policy, a person with dual citizenship must use her American passport whenever she enters or leaves the United States.

Current U.S. policy also explicitly states that, while dual citizenship is lawful, an American citizen cannot use dual citizenship to gain any legal advantage under American law, and the person must obey the laws of both countries. For example, the U.S. has a tourism embargo with Cuba, but France has no such embargo. If a person with dual Franco-American citizenship used a French passport to enter Cuba for a vacation, the person could properly be prosecuted under American laws forbidding tourist visits to Cuba. Accordingly, any non-innocent uses of a foreign passport by an American citizen are already covered by existing law.

What is not forbidden by current law--but what would apparently be forbidden by President Huckabee--is innocent uses of a foreign passport.For example, an American who is also a citizen of Ireland takes a vacation in Poland. At the Warsaw airport, the passport control lines for EU citizens are much shorter than the lines of non-EU citizens, so the person uses her Irish passport to enter Poland. Such use of the Irish passport does no harm to American interests, or to the woman's duties as an American citizen.

Or suppose that the women goes on a visit to Ireland. As she passes through Irish passport control, it would be more proper for her to use the passport issued by the Republic of Ireland than to use another passport. It is matter of courtesy that the person should use the passport issued by the country of admission. Indeed, the woman might need to use that passport: perhaps she wants to rent a cottage by the Irish Sea for several months and write poetry; an Irish passport allows her to do, and an American passport does not.

Only a true xenophobe would find anything wrong with the dual Irish-American citizen using her Irish passport to spend a half-year in Ireland.

I do not believe that Governor Huckabee is a xenophobe. I do believe that in his haste to distance himself from his own record on illegal immigration, he has endorsed policies which will harm native-born Americans who happen to hold dual citizenship, and will also harm legal immigrants who hold dual citizenship. His poor judgment on this issue is of direct concern to the many loyal Americans who have dual citizenship, and might also be of concern to all other Americans, as an example of a style of hasty, politically-driven decision-making which can have unintended consequences.

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Property Law in Jane Austen's Pride and Prejudice:

I recently based part of my Property final exam on Jane Austen's Pride and Prejudice. Generations of English lit professors have spilled barrels of ink over this book; but, as far as I know, most of them haven't placed much emphasis on the fact that the plot hinges on a point of property law.

The reason why it is so important for Mr. and Mrs. Bennet's five daughters to find wealthy husbands is that they cannot inherit their father's estate, since it is subject to the fee tail - a now archaic form of property estate that was required to pass through the male line. As a result, upon Mr. Bennet's death, his land (which forms the overwhelming majority of his wealth) will go to his nearest male relation, the despicable Mr. Collins. In the early nineteenth century, few women could acquire significant wealth other than by inheriting it or marrying into it; thus the Bennets' predicament. As Austen explains in Chapter 7:

Mr. Bennet's property consisted almost entirely in an estate of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation; and their mother's fortune, though ample for her situation in life, could but ill supply the deficiency of his.

This plot device is far from the only property-related issue in Pride and Prejudice. It is striking that nearly all the villains in the story (Lady Catherine de Bourgh, Mrs. Bennet, Mr. Collins, and others), are motivated in large part by a desire to acquire valuable landholdings for themselves or their children. In another part of the story, Austen censures big landowners for looking down on merchants who make their living through trade rather than from income derived from their landholdings. Similar negative views of big landowners appear in several of Austen's other novels, especially Mansfield Park and Persuasion. On the other hand, Austen wasn't completely negative in her attitude towards the landed gentry. The good qualities of one of the key positive characters in Pride and Prejudice are first revealed through the care he bestows on his estate and its tenants.

I'm not going to argue that an understanding of property law is essential to your appreciation of Jane Austen and her work. But it can certainly help! Indeed, property law is probably second only to criminal law as a legal influence on great literature. Yet another reason to study Property (not that we need any more:))! You don't see too many great novels that feature legal issues in corporate law or civil procedure.

UPDATE: I should note, for those who have expressed concern about this issue, that the final exam in question is over, and that in any event knowing that the characters are drawn from Pride and Prejudice would not help anyone answer the questions I based on them; the property issues in the question are not the same as those in the actual novel (unfortunately for the students, the ones on the exam are more complicated:)).

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Monday, December 10, 2007

Article III Judge Owes Blogger A Beer: Story here. Just to be clear, I am not the blogger who is owed a beer in this particular story.
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More Thoughts on the Utah Tasering Video: Friday's post on the Utah tasering video drew a flood of responses, including over 2,000 votes and about 400 reader comments. I wanted to add a few thoughts of my own. In particular, I want to argue that the video can plausibly be viewed two different ways depending on what parts of the video you focus on when you're watching.

  One way to watch the video is to focus on the 2:00 to 2:30 window and see how little the officer communicates to the driver about what is going on. The driver seems to believe that he can settle the issuance of the ticket and that signing the ticket is an admission of liability. The officer doesn't explain to him that this is wrong: He doesn't tell the driver that the place to settle the ticket is in court or by mail, and he doesn't tell the driver that Utah law allows him to arrest the driver and bring him to a magistrate if he refuses to sign. Even more oddly, after he tells the driver to exit the car the officer doesn't tell the driver that he is detaining him for that reason. As a result, the driver is totally clueless about what is happening. When the driver gets out of the car, he seems to believe that he was ordered out so they could settle the location of the relevant speed sign.

  When you watch the video with these facts in mind, the officer's use of force seems plainly unreasonable. The driver exits the car and expects to discuss the location of the speed sign. He's standing there pointing to the sign when the officer suddenly pulls out the taser; the driver is understandably shocked and instinctively backs away. Seconds later, the officer zaps the driver with the taser. In this narrative, the officer is totally out of control. That seemed to be how most readers interpreted the video: 70% saw the officer's use of force as unreasonable.

  I don't think that's the only way to interpret the video, though. Watch the video again, and this time focus closely on the 2:30 to 2:40 window. The officer has just ordered the driver out of the car so he can arrest him for failing to sign the ticket promising to pay or appear. The driver sees that the officer has the weapon out and is ordering him to submit to the officer's authority. But the driver makes perfectly clear he is not going to submit. Here's the dialogue:
Officer: Turn around and put your hands behind your back! (pause) Turn around and put your hands behind your back! Now!
Driver: What the heck is wrong with you?
Officer: Turn around! Turn around!
Driver: What the heck is wrong with you?
  Watch the driver's hands during this dialogue. Police officers are all about the hands during traffic stops; they want to see them, and they want them out in the open where they can't be grabbing a weapon. When an officer is pointing a weapon at a suspect, his greatest fear will be that the suspect has a weapon on him that he'll try to use; getting control of the situation is essential. So he's going to be paying close attention to the driver's hands.

  In this case, the driver does everything wrong with his hands. At the 2:30 mark, he puts his right hand in his right pocket; his right arm is opposite the officer, so the officer can't see what he's doing. Even though the officer has the taser drawn and is pointing it directly at the driver, the driver turns to face the officer and then starts walking away, yelling "what the heck is wrong with you?" and keeping his hand near his pocket. At 2:36, the driver seems to be fishing for something in his pocket while still walking away from the officer to get more distance between himself and the taser. Two seconds later, the officer fires the taser.

  If you focus heavily on this specific time window, the officer's use of force is highly regrettable ex post but not unreasonable ex ante. A reasonable officer is going to feel threatened by a hostile driver who won't follow his orders and instead backs away and fishes for something in his pocket. Of course, we happen to know that the driver wasn't armed, and that the driver was just nervously fidgeting. On the other hand, that seems to be the kind of conduct that reasonable officers are going to be looking for to trigger whether they need to use force.

  In sum, what makes the video so interesting is that the driver and the officer seem to be inhabiting totally different worlds. The driver is in the first world and the officer is in the second. I think we would all agree that the officer did a terrible job in the traffic stop on the whole; that guy needs a desk job pronto. But I tend to think that reasonable people could disagree on whether the use of force itself was unreasonable.
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Libby Drops Appeal:

The AP reports that Lewis "Scooter" Libby has dropped his appeal of his conviction in the Valerie Plame case.

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Woman Who Stopped New Life Church Shootings (by Shooting the Shooter) Was Volunteer:

Many press accounts have referred to her as a security guard, which sounded to me like a professional guard; but the pastor of New Life Church reports that she was a volunteer. Thanks to Call Me Ahab and David Hardy (Of Arms and the Law) for the pointer.

UPDATE: Thanks to the commenters for passing along more information -- the woman's name is Jeanne Assam; she was apparently a Minneapolis police officer for several years in the 1990s.

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Colonel Davis Speaks Out:

Colonel Morris Davis was the chief prosecutor for the Office of Military Commissions until he resigned his position in October. Today, in the Los Angeles Times, Col. Davis explains his decision. According to Davis, he reluctantly concluded that "full, fair and open trials were not possible under the current system" and that "the system had become deeply politicized and that I could no longer do my job effectively or responsibly." It's a powerful critique of the current system of military tribunals by someone who supports such tribunals, in principle, but has developed grave reservations about how they are operating in practice. My former colleague Amos Guiora has further comments on the AIDP blog here.

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Professor Punsihed for Views on Evolution:

Inside Higher Education notes the interesting case of Richard Colling, a biology professor stripped of certain teaching assignments because his views about evolution did not comport with those embraced by the university at which he worked.

He’s a professor at Olivet Nazarene University, in Illinois, who has been barred from teaching general biology or having his book taught at the university that is his alma mater and the place where he has taught for 27 years. A biologist who is very much a person of faith, these punishments followed anger by some religious supporters of the college over the publication of his book in which he argues that it is possible to believe in God and still accept evolution.

“I thought I was doing the church a service,” Colling said in an interview. He believes that religious colleges that frame science and faith as incompatible will lose some of their best minds, and that his work has been devoted to helping faithful students maintain their religious devotion while learning science as science should be taught. . . .

Colling’s career at Olivet Nazarene was successful until the publication in 2004 of Random Designer, his attempt to offer a philosophy in which religious people can study evolution with scientific seriousness, and scientists can embrace faith. The central idea, in short, is that one can believe that God created the universe, and in so doing created the systems that would evolve into everything that exists today. Colling acknowledges that it is not possible to believe literally in the Bible’s creation of the world in six days but argues that this need not diminish the moral force of the Bible or belief in God.

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Congress, Intelligence Oversight, and "the Gang": Marty Lederman has written a bunch of top-notch posts recently, and this post on Intelligence Committee reform is right up there. I'm not sure I agree, as I don't know much about this area, but it's certainly an interesting set of proposals.
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Word I Just Read That I Didn't Know:

Struthious, meaning "ostrich-like" or related to ostriches, depending on the circumstances. As usual, I advise against using such words — if you haven't heard of it, or other educated people you know haven't heard of it, chances are your future readers and listeners will not have heard of it — but it's good to know in case you run across it.

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Medical Self-Defense in New York Times Year in Review:

I'm pleased to report that my Medical Self-Defense article was covered in this year's New York Times Magazine Year in Review section.

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Supreme Court Oversight of the D.C. Circuit and the War on Terror: Reading the tea leaves is a great Supreme Court tradition, and in that spirit I've been thinking a bit about the Supreme Court's cert grants on the Iraq habeas cases on Friday taken together with last week's Boumediene argument. A few characteristics stand out. First, the Supreme Court seems really interested in hearing these habeas cases. Second, they're mostly from the D.C. Circuit. Third, Justice Kennedy's questions at the Boumediene argument were not particularly hostile to the government; they focused heavily on what steps the D.C. Circuit could take to ensure that the review of CSRT proceedings was adequate for habeas purposes.

  Putting these clues together, I wonder if the Court is going to start taking lots and lots of the D.C. Circuit's war-on-terror-related habeas cases. In passing the MCA/DTA, Congress and the Administration wanted to make sure these cases ended up in the D.C. Circuit rather than across the country (gotta keep'em away from Reinhardt, obviously). Meanwhile, the D.C. Circuit has been taking its time with these cases, and in some cases deciding them as if the Supreme Court wasn't just a few blocks away. The clues from the last week raise the possibility that the Supreme Court is planning on being more actively involved; perhaps one answer to the Court's low docket will be a whole lotta habeas cases over the next few years.

  This all just speculation, of course. And I don't think this suggests any particular outcome if/when the Court takes more cases. But still, those Friday grants were pretty interesting, and I wonder if there are more like it on the way.
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Rehabilitating Lochner:

I'm pleased to announce that I've signed a contract with the University of Chicago Press to write a book called Rehabilitating Lochner. The book will build on my previous Lochner-related work, such as this article and this one.

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In Today's Opinion in Watson v. United States, Justice Souter writes:
The Government may say that a person "uses" a firearm simply by receiving it in a barter transaction, but no one else would. A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola.
  In reference to Justice Souter's somewhat unusual lunchtime habits, commenter Terrivus chimes in, "If only he had also mentioned yogurt, he would have covered pretty much everything he has ever eaten." Heh.
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Kimbrough and Gall Line-Ups:

Of potential note in Kimbrough and Gall is the breakdown of the justices in each case. Each decision was 7-2 with Justices Alito and Thomas dissenting. That's not the sort of 7-2 split that one would have expected, either on either traditional right-left or formalist-pragmatist grounds.

Related Posts (on one page):

  1. Kimbrough and Gall Line-Ups:
  2. Three Wins for Criminal Defendants Today:
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Waterboarding Briefing:

So the Washington Post reported yesterday that the CIA briefed a "bipartisan group" of senior Congressional officials -- including Democratic Party leaders Nancy Pelosi and Jane Harmon -- about the use of "waterboarding" and other aggressive interrogation techniques back in 2002, and that at the time no objections were raised. I'm a little surprised this hasn't gotten more attention than it has. It doesn't excuse the practice, for sure -- but it does make the more recent protestations and shock expressed by Congressional leaders about the matter ring a little bit hollow.

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Three Wins for Criminal Defendants Today: The Supreme Court handed down three cases today, and all three were victories for criminal defendants in federal cases.

  In Kimbrough v. United States, the Court held by a vote of 7-2 that the 100-to-1 crack/cocaine disparity in the sentencing guidelines need not be followed by district court judges. If a trial judge thinks crack sentences are too high to achieve the purposes of the sentence, the judge is free to lower the sentence.

  In Gall v. United States the Court held 7-2 that when a district court sentences a defendant to a below-guidelines sentence, that sentence should be reviewed only under a deferential abuse of discretion standard. Applying that standard to Gall, the Court holds that it was not an abuse of discretion for the district judge to sentence the defendant to probation even though his guidelines range was 30-37 months. Taken together, Gall and Kimbrough appear to be enormous victories for opponents of the Sentencing Guidelines — at least until the political branches respond to them.

  Finally, in Watson v. United States, the Court held 9-0 that while (under an earlier precedent) trading a gun for drugs is using a gun in a drug transaction, being on the other end and receiving the gun is not use of a gun in a drug transaction.

  Incidentally, I think Gall and Kimbrough are decent candidates for the JGR Umpire Watch; these cases have a great deal of political resonance and split the Justices at least in part.

Related Posts (on one page):

  1. Kimbrough and Gall Line-Ups:
  2. Three Wins for Criminal Defendants Today:
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College Blogger Contest Deadline Approaching:

Entries for the America's Future Foundation's college blogger contest are due by December 31. As I noted here, AFF is searching for the best college-age (25 or younger) conservative or libertarian blogger. I am one of the judges, and the grand prize is $10,000. More details here.

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Spotted in New York City by Author NancyKay Shapiro:

Shapiro has more. Thanks to Hugh Greentree for the pointer.

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The Strange Canadian Human Rights Statute Might Have a Loophole.--

I've been going through the Federal Canadian Human Rights Statute and the regulations under it, as they might apply to a complaint against Maclean's.

1. Time Limitation on Actions. Section 41 provides a one-year limitation for filing complaints, though it seems to be a very soft restriction:

the Commission shall deal with any complaint . . . unless in respect of that complaint it appears . . . the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.

Were the complaints all filed within one year of Steyn's October 20, 2006 story in Maclean's? Or doesn't it matter because the story is still up on Maclean's website?

2. Grounds. Section 3 provides that religion and national origin are grounds:

For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

3. Section 13 covers hate messages sent by telephone or computer, but not by broadcasting (or, presumably, by print):

Hate messages

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

If I am reading this statute correctly (and I might not be), it seems strange--and a bit unfair--that a print magazine that also has a website, like Maclean's, can be subject to a Human Rights complaint, while a print magazine that does not have a website would not be subject to a complaint for publishing the exact same article.

Are Canadian bloggers aware that the hate speech law applies to them but not to broadcasters or to print magazines that don't put their most controversial stories on the web?

Reading the Canadian Human Rights statute literally, it appears to have a loophole. If an employee of Maclean's were to read Mark Steyn's article in its entirety on a radio station in Canada (or even just the complained-of passages), then the Hate Speech provisions of the Human Rights Statute would not apply. Any "matter" in the article would then be "communicated . . . in part by means of the facilities of a broadcasting undertaking," so then "subsection (1) . . . does not apply." Maclean's would argue that the print magazine is its main medium, so the radio broadcast would be just another secondary distribution that restored its initially protected status as a print magazine.

It is unclear whether broadcasting on a US radio station that specifically broadcasts into Canada (proved not only by strength of signal, but perhaps by having advertisers serving customers living in Canada) would count. Also, it is unclear whether the Canadian Human Rights Commission or Canadian courts would apply the statute as written in the face of such a transparent voiding of the jurisdiction of the Commission to hear the complaint under the Canadian Human Rights statute. And one would expect a new complaint to be filed for violating some other statute.

At least until this case is over, Maclean's might consider buying 15-30 minutes of time in the middle of the night once a week on a small radio station and reading stories from its magazine.

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The Two Characteristic Edibles of Modern American Hanukkah:

Have you noticed that the main ingredients of the two characteristic edible products of modern American Hanukkah -- potato latkes and chocolate Hanukkah gelt -- were unknown to Jews for the first 1500+ years of Hanukkah?

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Sunday, December 9, 2007

Canada Restricts Freedom of Speech.--

The U.S. Department of State reports on human rights activities in foreign countries, including Canada.

The March 6, 2007 report on Canada is quite matter-of-fact in disclosing limits on freedom of speech:

Freedom of Speech and Press . . .

The Supreme Court has ruled that the government may limit free speech in the name of goals such as ending discrimination, ensuring social harmony, or promoting gender equality. It also has ruled that the benefits of limiting hate speech and promoting equality are sufficient to outweigh the freedom of speech clause in the Charter of Rights and Freedoms, which is the country's bill of rights incorporated in the country's constitution. . . .

Inciting hatred (in certain cases) or genocide is a criminal offense, but the Supreme Court has set a high threshold for such cases, specifying that these acts must be proven to be willful and public. The Broadcasting Act prohibits programming containing any abusive comment that would expose individuals or groups to hatred or contempt. Provincial-level film censorship, broadcast licensing procedures, broadcasters' voluntary codes curbing graphic violence, and laws against hate literature and pornography also impose some restrictions on the media.

A 2001 Report on Human Rights in Canada trumpeted how much easier it is to bring a human rights complaint to a Human Rights Commission than to a regular court:

Canada’s domestic human rights protections can be divided into two categories:

1) traditional civil liberties and due process rights, fundamental freedoms, and political rights, which consist essentially of constraints on governmental and legislative action; and

2) anti-discrimination laws, which prohibit discrimination on various grounds in society generally, and which apply to both public and private actors.

The application of the first category of domestic human rights protections is largely entrusted to the courts. The second category of rights, by contrast, is at least in the first instance enforced by specialized administrative bodies (i.e., the various human rights commissions).

Both the ordinary courts and the human rights commissions offer adjudication on individual complaints regarding human rights violations as well as various judicially enforceable remedies where violations are made out. However, in theory at least, the human rights commission model offers a number of advantages over the traditional courts. Typically, human rights commissions:

·are comprised of persons with expertise in human rights;

·have a broader institutional mandate, which includes promotion of and public education about human rights;

·are more accessible to complainants (they have less formal procedures and, more importantly, if they accept the complaint, the commissions will usually investigate and pursue it on behalf of the complainant);

·can initiate their own reviews of policies and practices, even where no complaint has been filed, and can issue public reports accordingly; and

·are obliged to report regularly to Parliament or to the provincial or territorial legislature, as the case may be, not only on their own operations, but also on the state of human rights in their respective jurisdictions.

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Ellington and Coltrane Behind the Scenes: No, this isn't a blog post about the classic album Duke Ellington & John Coltrane. Rather, it's a post providing links to two short clips: a 6-minute audio interview of John Coltrane from 1960 in which he discusses his music, and a 5-minute clip from 1937 about the making of a Duke Ellington record. The Coltrane interview is particularly fascinating; it was conducted soon after Giant Steps and just before Coltrane formed his quartet with McCoy Tyner and Elvin Jones.
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Federal District Court Awards $36 Million in Compensation for a Regulatory Taking Claim:

Legal scholar and eminent domain expert Gideon Kanner has two interesting posts (here and here) on a recent case in which a federal district judge awarded a property owner over $36 million in compensation for an inverse condemnation claim. For nonexperts, an inverse condemnation action is a claim by a property owner that the government has taken his property, and that he is therefore entitled to "just compensation" under the Takings Clause of the Fifth Amendment.

As Kanner explains, the City of Half Moon Bay, California flooded the owner's 24 acre tract and then forbade all development on it, citing its newly created "wetland" status as justification. As a matter of constitutional law, this is a relatively easy case. The Supreme Court made clear in Lucas v. South Carolina Coastal Council that a regulatory action that wipes out 100% of a property's economic value automatically constitutes a taking under the Fifth Amendment except under rare circumstances that probably don't apply to this case. In addition, the Court has also held that any permanent physical invasion of property by the government (see Loretto v. Teleprompter) counts as a taking, and you don't have a to be a takings law maven to figure out that deliberate flooding counts as a "physical invasion."

What is unusual about the case is the extremely large compensation award. Supreme Court precedent holds that government must pay "fair market value" compensation for a taking. Without studying the evidence closely, I can't tell whether this particular award is excessive or not, given the market value of the land in question. It will be interesting to see if the award is upheld on appeal to the Ninth Circuit Court of Appeals, which is not exactly known for its solicitude towards property rights. For now, I will only point out that the difficulty (often the impossiblity) of determining appropriate compensation levels is one of several reasons for limiting the use of eminent domain as much as possible, an argument I developed in greater detail in Part II of this article.

If the award does stand up on appeal, Half Moon Bay may find it hard to pay. As Kanner notes in his first post, the city's annual budget is only $10 million. Perhaps the city fathers should have weighed their potential legal liability more carefully before deciding to cause the flooding of the property in question in the first place.

UPDATE: The court's opinion is available here.

UPDATE #2: My use of the term "deliberate flooding" may have been somewhat misleading. In reality, as the court explains in its opinion (pp. 35-37), city officials were aware that the area in question would flood if they failed to perform proper maintenance on their own nearby facilities; yet they chose not to do so. It is therefore fair to say that they deliberately caused the area to be flooded as a consequence of their alteration of nearby property. However, it is not clear whether that was their preferred outcome, or merely a byproduct of their pursuit of other objectives. The difference between these two scenarios is legally immaterial.

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Canadian Islamic Congress Website Reveals Its Views.--

The Canadian Islamic Congress (CIC) has filed human rights complaints against Maclean’s for publishing an excerpt from Mark Steyn’s America Alone.

The lawyer who filed the complaint, Faisal Joseph, explained his motivations:

"Muslims in this country are getting tired of this," said Joseph, who is representing the congress [CIC]. "What we've noticed since Sept. 11 is that some media out there are publishing false and misleading information and it's gone from talking about Islamic extremists or terrorists to linking the religion to criminality. These kinds of mistruths can cause a backlash . . . (and) deeper divisions between Muslims and non-Muslims."

From a quick perusal of the CIC website, it is interesting how much information the CIC puts forward that Steyn might have made part of his argument. The biggest differences are that the CIC sees increasing Islamic influence positively and Steyn sees it negatively.

In the last story from CIC's website above, they report bringing Yvonne Ridley and "her campaign against the West" to speak at fundraising dinners for the CIC.

The other pieces from the CIC website quoted above assert in part that:

A. Muslims are "the fastest-growing religious and cultural group."

B. "Perhaps the biggest challenge facing 21st-century Canada . . . [is that] more than half of our new immigrants come from non-Christian nations."

C. "[A]mong the major non-Christian religions, Islam is one that does not make a formal distinction between the secular and spiritual life . . . ."

D. "A staggering 90% of Canadian Muslims are foreign-born."

E. "Canadian Muslims . . . have forever changed the professional and technological landscape of our nation."

F. The traditional populations of European countries are declining as birthrates fall and they must now focus on attracting new immigrants to preserve their economies and infrastructures."

G. "Islamic schools . . . are publicly funded in British Columbia, Manitoba, Alberta and Quebec."

H. "An overwhelming majority of women representing the mainstream Muslim community support faith-based schools. In fact, Muslim mothers usually insist on Islamically educating their children . . . ."

I hope that the CIC's complaint is made available online, so that we can see which factual mistatements Faisal Joseph is referring to. It would seem that Steyn's opinions and attitudes are the primary insults to Islam and Muslims.

UPDATE: As noted by a Thomas Holsinger in the comments, Mark Steyn has now posted at The Corner that "Anyone interested in reading in full the Canadian Islamic Congress' case against me and my Maclean's colleagues can find it here."

Steyn then links the Report that I analyzed, not a human rights complaint. Also, Steyn's article is just one of 19 articles or columns criticized in the Report. Are the human rights complaints based on just one article or on all 19?

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Free Speech Challenged in Canada.--

In what could become the most important free-speech in Canada in decades, a group of current and recent law students from Osgoode Hall have spearheaded an attack on 19 magazine articles and columns critical of radical Islam (and in some cases, of moderate Islam as well) that were published in Maclean’s, Canada’s leading news weekly. First, the students published a report under the auspices of the Canadian Islamic Congress (CIC) on the articles that offended them: Macleans Magazine: A Case Study Of Media-Propagated Islamophobia.

Then the CIC filed a human rights complaint with federal and provincial authorities against Maclean’s for one article published last year, "The Future Belongs to Islam," an excerpt from Mark Steyn’s book America Alone.

Both the Canadian federal and the British Columbia Human Rights panels have agreed to hear the complaints.

I have been unable to find a copy of the complaints online, but the Report that preceded the complaints is available. The Appendix to the Report quotes substantial passages from Steyn’s article that the CIC report found offensive. Most of the last few paragraphs of Steyn's article were singled out by the CIC, so here they are in context:

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Lederman on Whitehouse on NSA Surveillance: Over at Balkinization, Marty Lederman offers a very thoughtful and informed response to Senator Whitehouse's recent statement about the OLC surveillance memos.
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