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Saturday, February 16, 2008

Life Imitates Borat:

Or maybe that should be life imitates Borat imitating life:

During Carnival -or Uzgavenes, as it is known in Lithuania - Catholics from around the world congregate for a feast of foods prohibited during Lent. The festival usually involves a parade or circus, with attendees in masks and costumes. But in Vilnius - commonly known to Jews as Vilna - participants traditionally dress and act "as Jews," a feat that generally calls for masks with grotesque features, beards and visible ear locks and that is often accompanied by peddling and by stereotypically Jewish speech.

Perhaps even more shockingly, the "festivities" extend beyond the parade itself and into a Halloween-style trick-or-treating. When Simonas Gurevicius, the 26-year-old executive director of the Jewish Community of Lithuania, opened the door to his house during last year's Uzgavenes, he was greeted by two children dressed in horns and tails, reciting a song that translates as, "We're the little Lithuanian Jews/We want blintzes and coffee/If you don't have blintzes/Give us some of your money." (It rhymes in Lithuanian.)

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FBI Acts Quickly to Protect Privacy, Notify the Courts When ISP Makes Error Implementing Court Order: Of course, that's not quite the way the New York Times tells it. Instead, the Times opted for the headline, "F.B.I. Received Unauthorized E-Mail Access." But if you read the story closely, that does seem to be the real news here.
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Friday, February 15, 2008

A Very Funny Column

from Dahlia Lithwick in Slate (hat tip: InstaPundit).

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Routine Discrimination Against the Less Religious in Michigan Courts:

I've blogged about this before, but what's striking is precisely how routine such cases are in Michigan. Here's an excerpt from the latest, Kik v. Kik, 2008 WL 376404 (Mich. App. Feb. 12):

As to raising Emma [age 2.5 at the time], the trial court found that this sub-factor favored plaintiff based on the testimony that plaintiff had a stronger religious background and was more actively involved in bringing the minor child to church than was defendant. Because this finding was based on the record evidence, no error occurred with regard to this factor.

Let's set aside the broader First Amendment questions on when a court may treat a parent worse because that parent's speech (religious or otherwise) to the child seems likely to harm the child. Here, there was no finding remotely like this.

Rather, the court was simply interpreting Michigan's best-interests statute — which requires the consideration of "[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any" — as giving a preference to the more religiously active parent.

This seems to be an even clearer case of religious coercion than in Lee v. Weisman, the graduation prayer case: Under the Michigan rule, which Michigan courts often apply (see the Appendix to this article), Michigan parents know that, to maximize their chances of keeping custody of their children, they need to go to church more often. A solid violation of the Establishment Clause, I think, plus of the Michigan Constitution's religious freedom provision:

Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend ... any place of religious worship .... The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.
Words to live by — if only the Michigan courts lived by them in their child custody decisions.

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A Folding Heart Card, for Belated Valentines -- and Free of Copyright Liability

(probably). Tom Bell has it for you.

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University of Chicago Constitutional Law Professor Endorses Individual Rights View of Second Amendment:

"[Barack Obama] said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights." "'I think there is an individual right to bear arms, but it's subject to commonsense regulation' like background checks, he said during a news conference."

On the other hand,

Although Obama supports gun control, while campaigning in gun-friendly Idaho earlier this month, he said he does not intend to take away people's guns.

At his news conference, [Prof. Obama] voiced support for the District of Columbia's ban on handguns, which is scheduled to be heard by the Supreme Court next month.

Sounds like it's a pretty thin form of "individual rights" he supports — and he doesn't intend to take away people's guns, except if they're the very sort of gun that people are most likely to want to keep for self-defense purposes. (Though, to be fair, the Bush Administration's Justice Department seems to have taken a view that may amount to the same thing.) Or maybe he as President wouldn't campaign to take away people's guns, but thinks it's OK if "local jurisdictions," including federal ones, ban people from owning handguns. Hard to tell for sure.

Hat tip: How Appealing.

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Parents of Your 16-Year-Old Daughter's Boyfriend Tell You

"the dating relationship would be no contact -- no hand-holding or kissing" -- good (or that's what I'd think!).

She tells you she "[doesn't] belong in [your] home any longer because she ha[s] to fight demons every day and she belong[s] with her daddy, [the boyfriend's father]" -- not so good.

She comes to "believe[] certain objects including her teddy bears [are] possessed by demons" -- not so good, either.

The parents encourage her to leave your allegedly demon-ridden home and move in with them -- a class B misdemeanor.

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D.C. Circuit Diagrams a Sentence,

right there on p. 6 of today's U.S. v. Villanueva-Sotelo. Not sure this adds much, especially given that -- according to the court -- "[i]n the end, this grammatical observation is beside the point given that the parties, as well as relevant case law ..., are best understood as using the word 'modify' more loosely" than how it is understood "from a grammatical point of view." Still, this struck me as noteworthy. Plus the case creates a circuit split, so maybe sentence diagramming may come to the Supreme Court.

Hat tip: How Appealing.

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Criticism of a Candidate's Positions on the Issues = "Dirty Stuff"?

John Weidner (Random Jottings) (hat tip: InstaPundit) soundly critiques Earl Ofari Hutchinson's "What Will Obama Do When There's No Hillary Firewall?". "Dirty stuff," to Hutchinson, seems to consist of, well, factually accurate criticisms of policy positions. Thus, Hutchinson writes,

There was an early hint of the dirty stuff that will come his way. The instant that Obama announced his campaign last February, National Rifle Association executive vice-president Wayne LaPierre wasted no words when asked about Obama's strong support for a ban on semi-automatic assault weapons, and severe limits on handgun purchases during his tenure in the Illinois Senate.

He called Obama's pro-gun control stance "bad politics." LaPierre's admonition was an ominous warning that the powerful gun-lobby group would oppose Obama, and so would millions of other passionate gun owners that take their cue from the NRA.

And that is "dirty stuff" because ...?

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More Caselaw Online, Free:

The Public Library of Law just launched, and it reports that it provides free access to all Supreme Court cases, federal appellate cases from 1950 on, and state cases from 1997 on. You can also search through all these jurisdictions at once.

I still expect I'll use FindLaw quite a bit, because FindLaw lets one link to cases from posts, and have readers be able to follow the links without registering. But PLoL's coverage and search ability seems to be in many ways better than FindLaw's, so I think I'll be using PLoL quite a bit -- and of course those who don't have free Westlaw and Lexis will find PLoL more useful still.

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Pleading:

The Ninth Circuit "I plead the Fifth" opinion reminded me that people should plead other amendments more often.

When someone wants to stay at your house when he's visiting town, and you'd rather he didn't, you should plead the Third. (Special bonus if he's a government employee.)

When someone wants you to give him something for free, you should plead another clause of the Fifth.

When you're being told you shouldn't drink, and you want to, you should plead the Twenty-First.

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[Adam Kolber, guest-blogging, February 15, 2008 at 3:06pm] Trackbacks
Adam Kolber Signs Off:

My guest blogging stint comes to an end today. You can find my previous posts here: neurolaw, memory1, memory2, chimpanzees, punishment1, and punishment2. Let me also point you to a few topics I would have liked to have addressed in more detail, if time permitted:

Brain imaging and politics: See here and here.

Brain imaging for pain (especially chronic back pain): See here.

Doctors who use placebos deceptively: See here and here and here.

My thanks to Eugene and his co-conspirators for having me this week, and my thanks to all of you who offered thoughtful commentary on my posts!

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Update on the Petition for Certiorari in Pearson v. Callahan: Back in December, I posted the petition for certiorari in Pearson v. Callahan, No. 07-751, a Fourth Amendment and qualified immunity case that I have been working on for the Petitioners. Here's the latest on the case.

  First, the law firm of Covington & Burling is now representing the Respondent. The Counsel of Record for the Respondent is Robert A. Long, the Chair of Covington's Supreme Court practice and a former clerk for Justice Powell who has argued 14 cases before the Supreme Court.

  Second, there has been a round of briefing since the Petition was filed. On February 6, Counsel for the Respondent filed this Brief in Opposition to our Petition (.pdf, 23 pages). Finally, just today we filed this Reply Brief (.pdf, 11 pages) in response.

Footnotes and Exile:

In Russian, "a reference in a footnote" and "internal exile" (often as a form of criminal punishment) are the same word, ссылка (ssylka). Odd but true.

Or maybe not so odd, given the root "send"; the footnote sends you to another source, the exile to another city. So remember: Footnotes are the Siberia of your article (and endnotes, I suppose, the Kamchatka).

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May Singers and Composers Stop Campaigns from Using Their Songs?

John Mellencamp asked the McCain campaign to stop playing Mellencamp's "Our Country" at McCain events; the campaign agreed. Tom Scholz of Boston asked that the Huckabee campaign stop playing Boston's "More Than a Feeling" (sometimes with former Boston guitarist Barry Goudreau). "Any chance we could see a post regarding any legal or ethical issues here?," asks reader Jeff Johnson.

1. Copyright Law: Generally speaking, the owner of the copyright in a "composition" -- the music and words of the song -- has the exclusive right to control the public playing (whether live or from a recording) of the song. The owner of the copyright in the "sound recording" (a recording of a particular performance of the song) generally does not have such an exclusive right. So if Mellencamp or Scholz own the copyright in the songs, they could have a legal claim against such public performances.

2. License: However, precisely because of this many venues -- stadiums, convention centers, and the like -- have so-called "blanket licenses" via ASCAP and BMI that license the performance of all the works in ASCAP's and BMI's very large catalogs. It's been a long time since I've looked at a sample license, but I doubt there's any exclusion for political events. The performance of the song might thus have been authorized by the copyright owners (even if on reflection they might be annoyed by this particular use). I take it that the campaign could get such a license itself as well, to allow the song to be played in places that don't have their own blanket licenses (though I can't be sure, since that's a matter of ASCAP and BMI contractual licensing practices, not of formal copyright law).

3. Fair Use: Even if the performance isn't authorized, for instance because the song somehow isn't in the ASCAP/BMI catalog (unlikely for famous songs) or because no license has been gotten to cover the use, the performers could argue fair use. My sense is that if an ASCAP/BMI license is available but the campaign just didn't get it, the use wouldn't be fair -- though noncommercial, it would involve using an entire expressive work, in a nontransformative way, without paying the customary price. But oddly enough if the use was blocked precisely because of the user's politics (i.e., the copyright owner said "I don't license the song for political events," or "I don't license the song for your political events") the case for fair use would be stronger, though not open-and-shut: Precisely because the copyright owner deliberately chose not to make money off such uses, the "effect on market" fair use factor would no longer cut in the copyright owner's favor.

4. Trademark: The use of the band's or singer's name -- for instance, when the Huckabee campaign announces that it's being played by a former Boston guitarist -- likely won't infringe the band's rights regardless of whether a license has been gotten. There's just no material likelihood of confusing the public into thinking that the band endorses the campaign (the statement is just that this particular former band member endorses it, and musicians, like professors, are known to speak for themselves in political matters and not for their colleagues). Likewise, there's no material likelihood that such announcements will dilute the trademark, and in any event the trademark dilution claim probably won't apply to noncommercial uses such as this one.

5. Practical Politics: But whatever the campaign's legal rights might be here, it strikes me as very bad politics to use a song when its author -- whether or not he owns the copyright -- objects. McCain presumably wants to attract Mellencamp fans, not alienate them. Why would he want to give the liberal Mellencamp a public opportunity (with lots of likely media attention) to condemn the McCain campaign, and to explain why Mellencamp feels wronged (whether or not the wrong is a legally actionable wrong) by the campaign? So once the author of the song (or perhaps even others associated with the song) complains, it's generally speaking much better politics just to stop using it.

6. Ethics: All this having been said, I don't think there's an ethical problem with the campaign's using an objecting author's song, if the use isn't infringing. Nor is there an ethical problem with the author's asking that they not use the song, even if the use isn't infringing. The main question (once the legal issues are set aside) is purely political, not ethical.

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[Adam Kolber, guest-blogging, February 15, 2008 at 8:07am] Trackbacks
Paris Hilton and Punishment Experience:

In my previous post, I suggested that our prevailing theories of punishment require us to take account of variations in prisoners’ experiences of punishment. Admittedly, we have dueling intuitions about doing so. I think most people are sympathetic to the genuine claustrophobe who has an unusually difficult time in prison (and claustrophobic symptoms are likely to fall along a wide spectrum). On the other hand, most people are unsympathetic to the spoiled rich person who is used to fine food and accommodations and therefore has an unusually difficult time in prison.

In my article, I do my best to explain this battle of intuitions. For example, perhaps a person like Paris Hilton is actually more culpable than someone else who commits the same crime. She had better alternatives to criminal behavior. She could have hired a chauffeur to drive her around. If so, there’s no puzzle in explaining why people think she should spend at least as much time in prison as an ordinary person who commits the same crime. (Put aside the possibility that Hilton actually had claustrophobia, which complicates the analysis.)

Assuming that our theories do indeed tell us to take account of variation in punishment experiences, the critical question is: what, if anything, follows from this? As some people noted in the comments, it could just mean that something is wrong with our theories. For example, a pure incapacitationist about punishment has no obligation to consider variations in experience.

Alternatively, we could decide it’s just too costly or difficult to administer calibrated punishments. For example, it would be difficult to predict in advance how a particular prisoner will experience punishment; to measure a prisoner’s subjective experiences while punishment is being imposed; to determine when a prisoner contrives to appear more distressed by punishment or the prospect of punishment than, in fact, he is; and to reach consensus over the kinds of subjective experiences that matter for assessing punishment.

We might, however, be able to craft some general policies that better take account of subjective experience. Also, while it might be too difficult to individually calibrate punishment, that may not always be the case. Here are some reasons why we shouldn’t be too quick to give up on the possibility of someday making individual calibrations:

First, outside the criminal context, we often make difficult assessments of subjective experience in the courtroom. In tort law, for example, we attempt to value subjective feelings of physical pain and emotional distress. Rather than using an objective pricing mechanism (e.g., $5,000 for a broken arm and $10,000 for a broken leg), we attempt to determine how much pain or distress a particular defendant has experienced and will experience as a result of the plaintiff’s tortious conduct. We do so, even though plaintiffs have incentives to portray themselves as suffering more than they actually do. Experts routinely testify about plaintiffs’ physical and emotional damages and help jurors weed out malingerers. We certainly disagree about how we ought to aggregate the value of various kinds of unpleasant mental states (e.g., physical pain, mental anguish, upsetting memories) and distill them all into a single dimension represented in dollars, but we nevertheless make such valuations all the time.

Second, we already spend considerable, if insufficient funds, on psychological evaluations of individual offenders. And while administrability concerns may preclude us from calibrating all punishments, there may be classes of crimes or offenders where individualized calibration is appropriate. For example, psychiatrists have made progress in diagnosing and assessing the severity of claustrophobia and in detecting those who malinger the condition. If so, perhaps subclinical levels of claustrophobia could be taken into consideration as well.

Third, emerging neuroscience technologies hold out the promise that our assessments of individuals’ subjective experiences may become more accurate. Using functional magnetic resonance imaging (“fMRI”), researchers can observe a subject’s brain while the subject experiences emotions like happiness, sadness, anger, fear, and disgust and attempt to find the neural correlates of such emotions. A number of studies purport to have found brain regions that are more active when subjects experience physical pain, and I have argued elsewhere that, in the not-too-distant future, neuroimaging may provide helpful evidence in tort cases in detecting malingered pain. Neuroscientists have also noted structural differences in the brains of people who have experienced chronic depression and in the brains of those under long-term stress, which could conceivably provide more objective evidence about a person's experiences over long periods of time.

By all means, current technology leaves much to be desired and intersubjective comparisons of utility are notoriously difficult to make. We are likely a long way from having accurate, practical means of assessing the complicated, evolving sets of experiences associated with punishment. It is better, though, to recognize the practical, ever-changing limitations on our ability to measure subjective experiences as contingent features of early twenty-first century living rather than to construct a purely objective view of punishment that builds these limitations into our theory of what punishment is really all about.

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Thursday, February 14, 2008

Thoughts on Steven M. Teles, "The Rise of the Conservative Legal Movement": I recently finished Steven M. Teles's new book, "The Rise of the Conservative Legal Movement," and I thought the VC audience might be interested in hearing about it. The book is a work of political science that looks at the major institutions within the conservative legal movement and tries to explain what makes them successful — or, in some cases, why they are not as successful as planned. You can read the introduction here, and see the Table of Contents here.

  The book's starting premise is that 30 years ago, when all of the major legal institutions were left/liberal, conservative and libertarian activists set about trying to create conservative/libertarian institutions to counter them. The book focuses heavily on what Teles sees as the leading institutions that have resulted, such as The Federalist Society, the Institute for Justice, the Center for Individual Rights, law school centers of law & economics (many funded by Olin), and George Mason University Law School. Teles' interest is in how these organizations got off the ground, what makes them successful, and what role they play. Much of the book is drawn from interviews with the founders and directors of these various institutions; Teles also draws a great deal from access he was given to their historical files.

  I found several parts of the book quite interesting, but the most interesting to me were the parts on the Federalist Society (p135-180) and George Mason University Law School (p207-219). On the Federalist Society, Teles argues persuasively that the key to its influence is in hosting a "big tent" that is open to a wide range of conservative and libertarian ideas. As Teles tells it, the Federalist Society is influential because provides a way for dispersed conservative and libertarian law students and lawyers to identify each other, get to know each other, and to establish an intellectual identity apart from the left/liberal views that tend to dominate the law schools. Teles also argues that the key to the Society's role is that it hosts debates rather than takes positions; this enables a wide range of different views to feel at home, while also focusing attention on the long-term development of ideas.

  The coverage of George Mason University Law School was fascinating in part because I knew little of the school's unusual history. Teles explains that the new George Mason University in Virginia had started a law school (in 1979) by picking up a low-ranked local law school in DC. In an effort to create a stronger law school, the University later hired law and economics scholar Henry Manne to be the new Dean of the school and gave him unusual powers to create the law school he wanted. As Teles tells it, the law school became Henry Manne's project to build a law school entirely around a libertarian vision based heavily on law and economics:
Henry Manne's project of building George Mason University law School (GMUSL) represented a very different approach to influencing the legal academy — building an alternative institution from the bottom up rather than influencing the legal academy from the top down. While the Olin programs [of law and economics at elite schools] represented a "Fabian" strategy of slowly burrowing into mainstream institutions, GMUSL followed a "Gramscian" approach of creating a parallel institution where more libertarian professors could hone their ideas without the compromises associated with elite institutions. [p.207]
  Teles contends that this experiment is moderately successful so far, although to some extent the jury is still out. On one hand, the law school has stayed largely true to its original vision, and it has made "impressive achievements" with its faculty and the U.S. News Rankings. On the the other hand, Teles contends that it's too early to say if Mason will establish itself fully as a counter to liberal institutions (and especially, more elite ones). I gather three of my co-bloggers will have some thoughts on that.

  I don't expect this book to become a best-seller; it's a serious work of political science, not a pop history. And of course the arguments Teles makes are certainly open to debate -- I'd be particularly interested in hearing from my Mason-based co-bloggers on whether they thought the coverage of Mason was accurate and/or fair. But on the whole I think this is a pretty interesting read for those who either are a part of or are just generally interested in the particular institutions that Teles is describing.
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Mead on Mearsheimer and Walt:

I've been remiss in not linking to this review by Walter Russell Mead in Foreign Affairs of The Israel Lobby:

Rarely in professional literature does one encounter such a gap between aspiration and performance as there is in The Israel Lobby. Mearsheimer and Walt fail to define "the lobby" in a clear way. Their accounts of the ways in which it exercises power, as well as their descriptions of the power it wields, are incoherent. Their use of evidence is uneven. At the level of geopolitics, their handling of the complex realities and crosscurrents of the Middle East fails to establish either the incontestable definition of the national interest that their argument requires or the superiority they claim for the policies they propose.

Among many good points Mead makes is that it's not at all clear why M & W themselves aren't part of "the lobby" as they describe it, given that they "describe themselves as pro-Israel, in that they believe in the state's right to exist. They admire its achievements and wish secure and prosperous lives for its citizens. They state categorically that the United States should aid Israel 'if its survival is in danger.'" Mead contends out that "the argument of The Israel Lobby actually seems to boil down to the point that the left wing of the lobby has a better grasp of both the Israeli and the U.S. national interests than the right wing of the lobby does." Or perhaps more precisely, anyone who disagrees with M & W on any specific Israel-related issue is part of "the lobby," while they are just enlightened and objective scholars.

As they say, read the whole thing.

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Best Pro-Hillary Video Ever:

A short video statement from a friend of mine, whose family lived, and still lives, one block from the World Trade Center. She describes Senator Clinton's role in asking the tough questions about air quality near the WTC in the weeks and months after the attack. The video is a powerful, personal, and credible testimonial to the best side of the detail-oriented Senator Clinton.

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[Eric Muller, guest-blogging, February 14, 2008 at 3:33pm] Trackbacks
How Do These Here Newfangled "Blog" Things Change A Lawyer's Handling Of A High-Profile Case?

A week from today, I'll be giving a talk to a group of North Carolina attorneys at a Continuing Legal Education program on the topic "High Profile Cases in NC: Constitutional, Ethical and Strategic Implications." (Can't imagine why anyone in North Carolina would be interested in high-profile cases these days, but hey, whatever.)

My talk will be on "How New Media Are Changing the Definition of High Profile." Lawyers will be interested in hearing about the risks and benefits that the new media (blogging, vlogging, podcasting, etc.) present for a lawyer who is handling a case with a high public profile.

One of the best ways I can think of to illustrate to lawyers the power of this "new medium" is to use it.

So, new media readers and writers, tell me: what sorts of impacts are the "new media" having on high profile cases? What does a lawyer today need to know about? Worry about? Keep track of? How can a lawyer ethically use new media to his client's benefit?

We all know about the Duke Lacrosse case, of course, and the important impacts of bloggers' work on the way the case unfolded. What other examples are out there?

(Many, many thanks to Eugene for allowing me to post this query here. I'd have done it at my own blog, but my comments are broken, and, well, I think the VC gets just a few more hits than mine.)

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Congressional Committee Asks Web Site for Information on Anonymous Posters:

The House Committee on Energy and Commerce is investigating alleged withholding of clinical trial data in a pharmaceutical trial. Anonymous posts on the CafePharma.com site suggest that posters knew about the trial results months before they were publicly released, so the House Committee on Energy and Commerce asked CafePharma for "all records relating to any posting on CafePharma.com related to the ENHANCE study, including but not limited to ... e-mail and internet protocal addresses of anyone creating such a post." (This was indeed just a letter requesting this, not a subpoena, but I take it that there was an implicit threat of a possible subpoena, and the letter speaks of the possibility that the Committee would "require" more information.)

CafePharma responds:

[W]e do not collect any user information with anonymous posts (including IP addresses). Therefore, we do not believe we will have any information to provide regarding these posts.

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Jingle Mail:

David below comments on the new trend toward voluntary foreclosures. In the business I understand that this is referred to as "jingle mail," where the borrower simply drops the keys into the mail to return to the lender. For those who are interested, I commented a bit on the two theories of foreclosure awhile back here.

Foreclosure can occur either because borrowers can't pay their mortgage (distress theory) or because they don't want to pay their mortgage (option theory). It turns out that the prevailing theory in economics is the option theory--foreclosures rise when property values fall because borrowers then have a valuable "put" option to permit foreclosure. Most empirical work historically supports the option theory as well, rather than the distress theory. Commenters to David's post note some of the factors that at the margin would be expected to increase the value of the option, including antideficiency laws (as in California) as well as the new Mortgage Foregiveness Debt Relief Act. Of course, even where a state provides a right to recourse lenders often will not pursue it if they think that the borrower is essentially judgment-proof.

As one would expect, default and foreclosure is also substantially higher where the borrower puts down no downpayment or a minimal downpayment.

Query for readers--has anyone seen any empirical studies of whether there is any effect of antideficiency statutes on foreclosure rates? Theory suggests that there must be some effect, but I have not found any empirical work on point. Most of the states with the highest foreclosure rates right now are those with antideficiency laws. Also, if anyone knows of a single comprehensive list of states with antideficiency laws, that is something I've been looking for as well. I've found one list, but it is not terribly user-friendly.

I'm putting the finishing touches on an article on the subprime meltdown that I'll be posting in a few days for anyone who is interested. The article provides a more detailed discussion of the theoretical and empirical work around these question of foreclosure.

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Gun Control in Space?: The story is here.
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"Intentional Foreclosure":

CBS News:

For Karen Traynor, buying a condo closer to her job in San Francisco seemed like a sound financial decision. But in the last year, this home seemed to drop in value by the day - forcing Traynor to make a much more devastating decision, CBS News correspondent Sandra Hughes reports.

“It would be an intentional foreclosure,” Traynor said.

Her adjustable-rate mortgage will be reset in June. And although she can afford the $900 increase in payments, she doesn’t think it makes financial sense. “I am not doing anything illegal. I am not scamming anybody,” she said.

When real estate was booming, Traynor bought her 2-bedroom condo for $505,000 after it appraised for $520,000. Although she took out a 100 percent loan, she figured she had some equity. Now, she would be lucky to unload her property for $340,000. That’s a $165,000 loss.

“‘Everything is negotiable in business,” Traynor said. “And so this is just another business decision. I just don’t see why this is anything different.”

Someone who can afford to pay her 100% mortgage simply walking away from it to avoid a six-figure loss? At the height of the housing boom in '04-'05, who would have predicted such things?

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[Adam Kolber, guest-blogging, February 14, 2008 at 5:35am] Trackbacks
The Subjective Experience of Punishment:

Suppose that Sensitive and Insensitive commit the same crime, under the same circumstances. They are both convicted and sentenced to spend four years in identical prison facilities. In fact, their lives are alike in most respects, except that Sensitive is tormented by prison life and lives in a constant state of fear and distress, while Insensitive, living under the same conditions, finds prison life merely difficult and unpleasant. Though Sensitive and Insensitive have sentences that are identical in name—four years of incarceration—and the circumstances surrounding their punishments appear identical to a casual observer, their punishment experiences are quite different in severity.

Many theorists provide a retributive justification for punishment. They believe that offenders deserve to suffer for their crimes. They typically also believe that an offender’s suffering should be proportional to the seriousness of his offense. For example, murderers should be punished more than thieves, who should be punished more than jaywalkers. Sensitive and Insensitive, however, have committed crimes of equal seriousness, and, on this view, they should suffer the same amount. In this example, they don't. Most retributivists seem committed to the perhaps surprising outcome that we ought to take account of the differences in the punishment experiences of people like Sensitive and Insensitive.

The response that Sensitive and Insensitive should receive equal punishments for equal crimes is not itself a challenge to the calibration view. At issue is, "What does it mean to have an equal punishment?" My claim here is that the only plausible way to understand retributivist suffering is in terms of experiential suffering; so that's what would need to be equalized (if you think punishments should be equal for identical crimes).

Many consequentialist punishment theorists believe that we should punish in order to deter crime, incapacitate offenders, and rehabilitate criminals. They do not seek to maximize punishment because punishment itself has negative consequences. Among those negative consequences, many consequentialists would quite directly incorporate offenders’ negative subjective experiences into their assessments of the costs of punishment. So a cost-benefit analysis of punishing Sensitive will likely look different than a cost-benefit analysis of punishing Insensitive.

More generally, consequentialists cannot optimize their deterrence strategies without taking account of different people’s anticipated subjective experiences. A group of people who are very sensitive to the risk of suffering in prison are likely to be optimally deterred at a different level than people who are very insensitive to the risk of suffering in prison. A world with calibrated sentences makes it easier to optimally deter a larger number of people. Therefore, absent concerns about cost and administrability, consequentialists are also committed to the view that we ought to consider the differences in the punishment experiences of people like Sensitive and Insensitive.

But what about the very important concerns about cost and administrability? And how does this topic relate to neuroscience? Stay tuned . . . (The text above is adapted from this draft article. Law review editors interested in the piece are invited to contact me.)

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Wednesday, February 13, 2008

Free Speech Trumps Limits on Disclosing Public Record Information About Sex Offenders:

California version of Megan's Law orders the California Department of Justice to put on the Web information about sex offenders; but Cal. Penal Code § 290.46(j) says that:

A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.

Gerald Moerler, a teamster, is a registered sex offender (having been convicted of "lewd and lascivious acts with child under 14 years"). He claims that various fellow union members and Vons members "posted and mailed fliers in the City of Covina for the purpose of harassing Moerler," and he therefore sued for damages. (The statute provides, that "Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) ... shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney's fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).")

The California Justice Department's Megan's Law FAQ seems to be on Moerler's side, plausibly interpreting the statute as barring people from telling others about what they learned from the Web site, as a form of "use" of the information:

[Q:] I want to share with others the information I found on the Attorney General's Megan's Law Website. Does the law prohibit me in any way from sharing this information?

[A:] A person may use the information disclosed on the Attorney General's Web site only to protect a person at risk. It is a crime to use the information disclosed on the Attorney General's Internet Web site to commit a misdemeanor or felony. Unless the information is used to protect a person at risk, it is also prohibited to use any information that is disclosed pursuant to this Internet Web site for a purpose relating to health insurance, insurance, loans, credit, employment, education, scholarships, fellowships, housing, accommodations, or benefits, privileges, or services provided by any business. Misuse of the information may make the user liable for money damages or an injunction against the misuse. Before using the information disclosed on this Web site, you may want to consult with an attorney or merely suggest to others that they view the Web site for themselves.

So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one's purpose is "only to protect a person at risk." If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people — not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person, or for that matter to provide background on a litigant for a blog post — one risks damages liability or, under another provision of the statute, an injunction.

This has long seemed to me like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it's unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I'd think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record.

And though the California legislature apparently thinks it indeed may restrict speech this way, I'm pleased to report that a California trial court judge has just thrown out Moerler's case on First Amendment grounds. Unfortunately, such trial court decisions don't set a binding precedent, and may not even set a persuasive precedent given that they usually aren't published anywhere, even in Westlaw or Lexis. But if this is appealed, I expect that the California Court of Appeal will affirm, and rightly so.

By the way, to my knowledge this case hasn't been covered in the mainstream media, even though it involves the first First Amendment challenge I know of to the Megan's Law provision.

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The Mughniyah Assassination:

This interesting analysis raises three possibilities regarding Syrian involvement in the assassination of Hezbollah terrorist chief Mughniyah in Damascus: (1) Syria was the perpetrator, as part of a deal with the U.S., or at least an attempt to get in the U.S.'s good graces; (2) Someone else, most likely Israel, did it, and Syria was knowingly harboring America's second most wanted terrorist after Osama Bin Laden, which will lead to grave tensions with the U.S.; (3) Someone else, most likely Israel, did it, but the Syrian government wasn't aware that Mughniyah was there, meaning that "Assad's rule is so weak that terror groups can establish a base there, compelling the U.S. to take preventive steps." One way or another, it's likely to be a momentous event in Syrian-U.S. relations.

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The Founders' Constitution:

This year, George Mason Law School inaugurated a new, required first-year course, The Founders' Constitution, which serves as a prerequisite to the required course in Constitutional Law. A new website for the course explains:

Law school curricular development requires making guesses about the future of legal practice, but that should not mean constantly chasing the latest trend. Too much focus on the latest hot specialty runs the risk of short-changing students' appreciation of the permanent things in our legal culture. George Mason's faculty considers it crucial for students to know something about the Constitution and its creation before they attempt to understand what the Supreme Court has had to say about it. Supreme Court case law, not the Constitution itself, is what Constitutional Law courses are conventionally about.

The Founders' Constitution course will require students to read a large number of important original legal sources familiar to the founding generation, ranging from Magna Carta and the English Bill of Rights to the Federalist (and Anti-Federalist) Papers, along with constitutional debates at the Philadelphia Convention and in the First Congress. While a few law schools offer narrowly-focused elective classes dealing with constitutional history, none has a comprehensive, required course comparable to The Founders' Constitution. The course, offered for the first time in spring 2008, is a prerequisite to Constitutional Law.

Judges come and go, along with elected officials, but the Constitution endures. It is essential that future lawyers have a fundamental understanding of this central governing document.

More information about the course, including a model syllabus, is available at its website.

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Audio/video on the Amicus briefs in DC v. Heller

Heritage Foundation event last Thursday, Senators Kay Bailey Hutchinson (R-Texas) and Jon Tester (D-Montana) discuss their congressional amicus brief in D.C. v. Heller. Independence Institute iVoices.org podcast, in which I discuss the law enforcement amicus brief I wrote. Tonight on NRA News, at 11:20 Eastern Time, I will be interviewed about the brief. (The broadcast is available on Sirius 144, and on the Internet, and is available by podcast for the day after the program.)

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Dangerous First Amendment Analysis in Anti-Islam/Anti-Muslim/Anti-Arab Speech Case:

I blogged below about the details of the case — a court concludes that an employee can sue someone for repeatedly circulating in the workplace e-mail with anti-Islam/anti-Muslim/anti-Arab statements — and I've written elsewhere about why such liability is unconstitutional. But I want to focus a bit on the court's First Amendment analysis, because it's even more dangerous to free speech than some other pro-harassment-law analyses have been.

Here's how the court reasons:

Tefft contends that his emails were protected speech under the First Amendment. Specifically, he argues that the emails were a form of political speech and that he cannot be held liable for their content under Section 1981 or its state analogs. However, any restraints on speech stemming from these anti-discrimination provisions are merely incidental to the statutes’ objective of remedying racial discrimination. As the Supreme Court has noted, “[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” R.A.V. v. St. Paul, 505 U.S. 377, 389 (1992).

That's wrong because hostile environment harassment law applies to speech in these cases precisely because of its expressive content: It is the content and the viewpoint of the e-mail that creates the offensive environment. (You could imagine a hostile environment created by the nonexpressive content of someone's conduct, for instance because the conduct is unwanted touching, but that's not so here.) As I argue at length in my Cornell article, a law that applies to speech precisely because of what the speech communicates — and the harms that might flow from such communication — can't just be dismissed as "incidental" regulation.

But even setting aside the doctrine, consider the implications of what the court is saying. Just as discrimination based on religion and other criteria is barred in employment, it's also banned in education and in public accommodations. That's the reason for the spate of campus speech codes written in "hostile educational environment" terms, lawsuits based on alleged "hostile educational environments" and lawsuits based on alleged "hostile public accommodations environments" — for instance, when a bar, library, club, or other business engages in (or simply allows) speech that offends some patrons based on religion, sex, race, and the like. And the court's First Amendment analysis would apply to those things precisely the same way, because all these doctrines are structurally identical, and "any restraints on speech stemming from these anti-discrimination provisions are merely incidental to the statutes’ objective of remedying racial discrimination."

There would thus be no First Amendment problem with imposing liability on a university that tolerates anti-Islam/anti-Muslim/anti-Arab speech (or for that matter anti-Christian speech, anti-Mormon speech, and the like). There would be no First Amendment problem with imposing liability on a library that doesn't properly filter access to material that might offend Muslim patrons, or on a bar that posts supposedly blasphemous material on its walls, or on a restaurant that doesn't censor patrons' anti-Muslim statements when fellow patrons object to such statements.

Finally, the court goes on to say:

The Supreme Court has found that sufficiently severe or pervasive harassment on the basis of a prohibited category, including religion, race, or national origin, constitutes “employment discrimination” and is therefore actionable under federal law. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (“[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends [the] broad rule of workplace equality.”). Accordingly, the First Amendment does not preclude Plaintiff’s discrimination claims.

Well, such speech also constitutes "educational discrimination" and "public accommodation discrimination" (on the theory that tolerance of an offensive environment based on a criterion equals discrimination based on that criterion) when it happens at universities and at places of public accommodation. But that the speech violates a statutory rule is only the start of the inquiry — the question is whether the First Amendment trumps that statutory rule in some situations.

And the Court has never answered that question. Meritor and Harris didn't consider the First Amendment arguments; Meritor didn't involve speech, and though Harris did involve speech (speech that quite likely could be punished), no First Amendment arguments were raised at trial or before the court of appeals — the First Amendment was raised only in the Supreme Court brief, and therefore rightly ignored by the Court. "It is [the Supreme Court's] practice to decline to review those issues neither pressed nor passed upon below," and it's clearly settled that "cases cannot be read as foreclosing an argument that they never dealt with." As to R.A.V., see here for why it doesn't resolve the constitutionality of harassment law as applied to otherwise protected speech (i.e., speech that doesn't fit within exceptions such as fighting words or threats).

Related Posts (on one page):

  1. Dangerous First Amendment Analysis in Anti-Islam/Anti-Muslim/Anti-Arab Speech Case:
  2. Anti-Islam/Anti-Muslim/Anti-Arab Speech May Lead to Damages Liability:
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Reform Judaism and Public Schools:

I just came across a detailed demographic survey of the D.C.-area Jewish community, which has a wealth of very interesting data. The most interesting statistic I came across relates to Reform Judaism and public schools. Traditionally, organized Reform Judaism was vigorously opposed to Jewish day schools because of an ideological belief in both assimiliation and also public schooling, as such. While that opposition has lessened, one still often hears Reform Jewish leaders talking about the supreme importance of public schools, and only a handful Jewish day schools under Reform auspices exist (though to be fair, "community" schools around the country often have a large Reform contingent). At least in the D.C.-area Jewish community, Reform Judaism has successfully discouraged its adherents from sending their kids to Jewish day schools--only 3% of children of Reform Jews attend Jewish day schools, as opposed to 15% for Conservative, 11% for Reconstructionist, and even 7% for "Just Jewish," usually the least-affiliated demographic category. On the other hand, Reform Judaism has been less successful in encouraging fealty to public schooling--22% of children in Reform Jewish households send their kids to non-Jewish private schools. So 25% of D.C.-area Reform Jews send their kids to private school, but only an eighth or so of those send them to Jewish day schools.

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The Fifth Circuit Ban on Sex Devices:

The 2-1 Circuit Court of Appeals decision against the Texas ban was rightly decided, at least according to an article that Glenn Harlan Reynolds and I wrote for the Hastings Constitutional Law Quarterly. The 5th Circuit decision relies, reasonably, on Lawrence v. Texas. Although our article is pre-Lawrence, we suggest that such cases amount to a judicial re-invigoration of traditional understandings of the police power--and a rejection of view that state authority is a limitless ocean in which a few islands of rights may be found. Rather, the police power is itself finite, and simply is not broad enough to reach conduct such as that banned by the Texas statute.

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[Adam Kolber, guest-blogging, February 13, 2008 at 1:35pm] Trackbacks
Chimp Intelligence:

Eugene mentioned that I wrote some years about the cognitive abilities of apes. I don't plan to say much about the topic, but you may enjoy watching this amusing video clip of a chimp trying to remove a peanut from a plastic tube.

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Military Brief in DC v. Heller:

A group of retired military officers, mostly Generals or Admirals, has filed an amicus brief in District of Columbia v. Heller.

Part I of the brief looks at framing of the Second Amendment, and importance of federal control of the militia for national defense. The brief argues that DC's theory allows the states (including DC acting in a state-type role) to destroy the effectiveness of the militia by preventing citizens from having arms. The brief suggests that DC's argument is contrary to the constitutional plan for federal militia supremacy.

Part II argues that the widespread citizen gun ownership is essential to the national defense, because soldiers who have prior experience with gun use as civilians make much better marksmen. Because handguns are common in military use, handgun experience is highly relevant. This is similar to the police training argument that I made, on behalf of law enforcement firearms training associations, in my own brief, although the military argument is much more extensive.

Finally, the brief explains how citizens, even those not serving in the standing army, contribute to the national defense. Examples are the American Revolution, the Battle of New Orleans, and the defense of Alaska and Hawaii after Pearl Harbor. There is also a good discussion of Switzerland during WWII.

The Appendix includes letters to the National Rifle Association by Presidents Roosevelt, Truman, Eisenhower, and Kennedy, and by several FDR officials, thanking the NRA for its role in promoting civilian marksmanship as a means of aiding national security.

No brief filed by Petitioner or its amici addresses these issues.

Below the fold: Maryland Governor Herbert O'Connor's March 10, 1942 radio address, asking for volunteers from, inter alia, the "membership rolls of Rifle Clubs, Trap Shooting Associations, Skeet Clubs and sportsmen's groups of every type" to help defend Maryland against potential German incursions, such as saboteurs. "[T]he volunteers, for the most part, will be expected to furnish their own weapons....The Maryland Minute Men, armed with weapons with which they are thoroughly familiar from long use, operating in a community in which they are accustomed to every road and trail and stream, and aroused to fighting pitch by the knowledge that they are serving to protect their own homes, their family and all that they hold dear in life, will prove a staunch defense against any enemy activity."

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Anti-Islam/Anti-Muslim/Anti-Arab Speech May Lead to Damages Liability:

Bruce Tefft is a counter-terrorism adviser hired by the NYPD, and he had a habit of sending department-wide e-mails harshly critical of Muslims, Islam, and apparently Arabs:

These email briefings stated that Muslims and Arab Americans were untrustworthy and could not reliably serve in law enforcement positions or handle sensitive data. For example, Tefft sent emails stating that “a good Muslim ... can’t be a good American”; “[w]ithout Islam, there wouldn’t be any Islamic Terror”; and, “[b]urning the hate-filled Koran should be viewed as a public service at the least.” Tefft also attached his own comments to articles he forwarded. Attached to an article entitled “Al-Qaeda Wants to Repeat 9/11 in Israel,” he commented: “Makes one wonder how many Muslim pilots the US National Guard, Reserves, and/or US Air Force have flying around US Cities.” In another article entitled “Has U.S. Threatened to Vaporize Mecca?” he added, “Excellent idea, if true.” ...

In addition to the emails, Tefft directly stated to Plaintiff’s colleagues that they should not trust Plaintiff or any other Muslim in law enforcement because “Muslims have no place in law enforcement.”

So plaintiff — a NYPD Intelligence Division police officer — sued the city and Tefft personally for tolerating and creating a hostile work environment. ("Plaintiff, an Arab-American, alleges that he was forced to read almost daily emails sent by Tefft, a counterterrorism adviser hired by the New York City Police Department ..., that contained racially and religiously discriminatory content targeted at Arabs and Muslims.") Plaintiff also alleged that other city employees made anti-Arab and anti-Muslim statements, though it's not clear whether they were to plaintiff specifically or to coworkers generally. But he didn't just sue the city for the aggregate of all this speech; he sued Tefft personally based on Tefft's own e-mails. Such personal liability generally isn't allowed under Title VII, but is allowed under 42 U.S.C. § 1981 and seems to be allowed under New York law.

Last week, the federal district judge in this case (Doe v. City of New York & Bruce Tefft) held that plaintiff's case may go forward — that, if the facts are as the plaintiff alleges them to be, Tefft can be financially liable based on the anti-Islam/anti-Muslim/anti-Arab speech. Such speech could be, under the relevant legal standard, be "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" based on religion and ethnicity for the plaintiff and for a reasonable person. And the damages in such cases could easily go into the hundreds of thousands of dollars or more.

This, I think, well illustrates what I've been arguing for 15 years: In many (though certainly not all) contexts, hostile environment harassment law violates the First Amendment. Here a court is saying that speech can lead to massive liability because of the viewpoint that it expresses, and the offensive environment that the viewpoint causes. The speech doesn't fit within any exception to First Amendment protection — for instance, it's not "fighting words" (a narrow exception that's limited to one-to-one speech likely to cause a fight, and that generally excludes political advocacy conveyed to a broad group of listeners), nor is it incitement to lawless action. The government isn't just acting as employer to restrict speech by its employees (an area in which it has a freer hand); the court is enforcing a law created by the government acting as sovereign, a law that equally applies to private employers.

What's more, the effect of the law is to pressure all employers — on fear of government-imposed liability — to suppress such viewpoints, and to pressure employees not to express such viewpoints. Employers are now on notice that tolerating viewpoints harshly critical of Islam, Muslims, and Arabs can lead to liability. True, individual statements won't lead to such liability (usually), but an employer can't just tell employees: "Say what you please, so long as your speech, aggregated with the speech of others (speech that you might not even know about), is not severe or pervasive enough to create an offensive work environment based on race, religion, and the like." The employer has to restrict each individual statement, in order to prevent liability based on the aggregate of statements.

And, as I said, the law doesn't just apply to police departments. It applies to any employer: private security companies, think tanks, universities, newspapers, law firms, and any other place where people discuss these issues, whether the issues are closely related to work or are just talked about by employees who talk politics at work. And I stress again that this is the government as sovereign imposing such a viewpoint-based restriction (both on employees directly, and on employers, hoping that it will lead employers to suppress employee speech). Private employers, like private newspapers, colleges, churches, commercial landlords, service providers, and others, are free to restrict speech on their property. But the First Amendment should stop the government from coercively pressuring these private entities into suppressing such speech.

Finally, note that employers and speakers can get no reassurance from the fact that the speech here was unusually frequent ("almost daily emails"). "Severe or pervasive" is a vague term, but it's clear that even statements that happen once every month or two can qualify. Consider, for instance, Schwapp v. Town of Avon, a Second Circuit case holding that "ten racially-hostile incidents of which [plaintiff] allegedly was aware during his 20-month tenure" — of which only four occurred in his presence — were enough to create a potential harassment case.

For more on how much speech harassment law can punish or coercively deter, see here. For more on the First Amendment doctrinal issues raised here, see here.

Related Posts (on one page):

  1. Dangerous First Amendment Analysis in Anti-Islam/Anti-Muslim/Anti-Arab Speech Case:
  2. Anti-Islam/Anti-Muslim/Anti-Arab Speech May Lead to Damages Liability:
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Facing Lou Gehrig's Disease: Over at Prawfs, Dan Markel reprints an extraordinary message from lawprof Steven Gey about his experiences living with Lou Gehrig's Disease. Read it. One always hopes to never find oneself in that same boat, but if we find ourselves there someday, we should be lucky to bring to it even just a small part of Gey's spirit and grace.

  You can donate to the fight against Lou Gehrig's Disease here.
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"When You Pry Them from My Cold, Dead Hands":

A reader writes (semi-jocularly), "is it true that dildos have meaningful constitutional protection but that guns [do not] (notwithstanding their textual protection)?" Well, remember that this is the Fifth Circuit, which held in U.S. v. Emerson that the Second Amendment does secure an individual right -- so both dildoes and guns are protected there.

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Dildoes Going to the Supreme Court?

The Texas ban on dildoes -- yes, it expressly mentions "dildo" -- has just been struck down by the U.S. Court of Appeals for the Fifth Circuit. The law, the court held, violates Lawrence v. Texas right of "adult consensual sexual intimacy in the home."

On this, the Fifth Circuit disagrees with the Eleventh Circuit, which upheld a similar Alabama law last year. Sounds like there's a solid split, so there's a decent chance that the U.S. Supreme Court will step in to resolve this (though there's of course no guarantee).

Thanks to the invaluable How Appealing for the pointer.

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[Adam Kolber, guest-blogging, February 13, 2008 at 8:18am] Trackbacks
Freedom of Memory, Part 2:

In my last post, I discussed efforts to identify and develop pharmaceuticals to dampen aspects of memory in ways that might be practical for treating recent trauma. Some of the discussion was a bit sci-fi. But I ended the post promising to discuss a true story of memory erasure that shows why the discussion is not as sci-fi as you might have thought.

Dr. Scott Haig has described the following events which occurred over ten years ago: A young mother went to him for a bone biopsy. Rather than having general anesthesia, as would be typical, the patient wanted just local anesthesia. According to Haig, “She was adamant about not going under, but agreed to ‘some sedation’ if we thought it was necessary.” Also, the patient agreed to have an anesthesiologist in the room “just in case.”

Haig removed the tissue sample and had it sent immediately to a pathologist at the hospital. The pathologist was not expected to make an on-the-spot diagnosis. Rather, Haig wanted to confirm that he had removed an adequate sample before closing up the patient’s wound.

Now it starts to gets interesting. The pathologist, in another part of the hospital, contacted Haig through an intercom system in the operating room. The pathologist, not realizing that the patient was conscious, started discussing the sample in very grave terms. Before Haig could convey the fact that the patient was able to hear every word being said (the intercom was only working in one direction), the pathologist revealed that the patient had a very bad form of cancer and said so without the kind of kid gloves he might have used if he thought the patient were awake.

The patient began shrieking, “Oh, my God. Oh, my God. My kids.” At this point, the story gets really interesting. The anesthesiologist decided to inject the patient with an anesthetic called propofol. In addition to its anesthetic effects, propofol “erases” (that’s a direct quote) the patient’s memory of events that precede it by a few minutes. Here’s what happened next, according to Haig:

Ten minutes later Ellen [the patient] woke up, happy and even-keeled, not even knowing she'd been asleep. From the recovery room she was home in time for dinner. "The procedure went smoothly, but we'll have to wait for the final pathology reports," I said, which was not exactly the whole truth, but it let me get the oncology people cued up, a proper diagnosis, and Ellen herself emotionally prepared. I would give her the bad news at a more appropriate time.

The ending was not quite happy; it was a recurrence of the cancer she'd had years before — fairly rare for that type of tumor. Ellen died of it about six years later. I confess I never told her about the incident with the intercom.

Over a decade later, I'm still not sure that was right.

The story illustrates a number of the issues I raised earlier about memory dampening. The above facts make for a great issue spotter exam question, and I’ll sketch a few thoughts about it.

First, there’s an issue of informed consent. It seems like the anesthesiologist’s injection was outside the scope of the patient’s consent. This is not entirely clear, however, as it might depend more precisely on what the patient said 10+ years ago. She agreed to have an injection if her doctors thought it was really necessary, though she probably envisioned the need to arise from physical pain, rather than emotional distress. There is an emergency exception to the informed consent doctrine, and perhaps the patient might have thrashed about in some clearly dangerous way if she were not sedated. Barring that possibility, however, it seems questionable to apply the emergency exception under circumstances that arguably contradict the patient’s earlier request.

Assuming that the injection was outside the scope of consent, medical personnel could have liability for failure to obtain informed consent under a theory of negligence or even tortious battery. (On an exam, you might want to allude to criminal law theories of battery and/or poisoning, though I suspect prosecutors would be unlikely to pursue this case, especially given what seem to be benevolent motives on the part of the doctors.)

Second, there’s a question of whether any medical personnel can be liable for negligently inflicting emotional distress, given the failure of the intercom system to work properly and/or the pathologist’s failure to confirm the patient’s state of anesthesia before discussing her case in the brusque manner that he did. My impression is that this claim would fail (but I’ll be interested to hear if there are contrary opinions).

Third, by erasing the patient’s memory, the anesthesiologist not only eased her emotional distress, he also erased some of the evidence that could be used against him. This raises legal questions about evidence tampering (e.g., obstruction of justice, spoliation of evidence) and factual questions about the anesthesiologist’s mental state when he provided the injection. Obstruction of justice seems like a longshot (what upcoming judicial proceeding was obstructed?), but perhaps there is some evidence tampering-related offense or tort here. What’s interesting is that the act which eases the patient’s pain is the same act that eliminates the evidence. So even if the anesthesiologist could possibly face criminal liability, he could attempt to raise a choice-of-evils defense.

Those are some quick thoughts about the case (adapted from a future article in the new Springer journal Neuroethics). Feel free to add more to the analysis in the comments.

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How Bad Are Biofuels?

Two new studies published in Science (here and here) suggest that the use and production of biofuels substantially increases greenhouse gas emissions, particularly if such fuels are produced from food crops. Unlike prior studies, these reports sought to account for the loss of carbon storage due to the land conversion necessary to grow biofuel feedstocks. Once this factor is taken into account, both studies found, conversion to biofuels are big greenhouse losers. As the New York Times reported:

The destruction of natural ecosystems — whether rain forest in the tropics or grasslands in South America — not only releases greenhouse gases into the atmosphere when they are burned and plowed, but also deprives the planet of natural sponges to absorb carbon emissions. Cropland also absorbs far less carbon than the rain forests or even scrubland that it replaces.

Together the two studies offer sweeping conclusions: It does not matter if it is rain forest or scrubland that is cleared, the greenhouse gas contribution is significant. More important, they discovered that, taken globally, the production of almost all biofuels resulted, directly or indirectly, intentionally or not, in new lands being cleared, either for food or fuel.

“When you take this into account, most of the biofuel that people are using or planning to use would probably increase greenhouse gasses substantially,” said Timothy Searchinger, lead author of one of the studies and a researcher in environment and economics at Princeton University. “Previously there’s been an accounting error: land use change has been left out of prior analysis.”

The actual studies are not all bad news for biofuels, however. Both suggest that the production of biofuels from waste products could produce greenhouse gas reductions, and one of the studies suggests potential GHG emission savings from the production of biofuels from perennial grasses. Neither study has anything good to say about corn-based ethanol.

If we want to know the full environmental toll of biofuels there are additional factors to consider. Particularly when biofuel production requires the use or conversion of cropland, as with corn-based ethanol, these costs include increased water use (which is becoming a problem in parts of the midwest) and the loss of migratory bird habitat. The bottom line is that the energy "solution" most favored by the political class is no solution at all.

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Martin Peretz Supports Barack Obama:

I can't find a proper link right now, but former New Republic owner Martin Peretz is supporting Obama for president. Left-wing bloggers rather frequently accuse Peretz of being a "right-winger," and a "neocon" because he has rather hawkish pro-Israel views. I'm not sure why having such views makes one a "right-winger", but if it does, then I take it that Peretz is the charter and likely only member of "Right-wingers for Obama."

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Suing to Recognize Democratic Delegates from Michigan and Florida:

Watching election coverage last night, the idea was raised a couple of times that if the Democratic nomination comes down to the wire, Hillary Clinton might sue in order to try to have the Michigan and Florida delegates recognized at the convention.

Anyway, my question is whether Clinton would have any basis for a winning lawsuit to have the delegates recognized. Does anyone know what would be the basis for her claim and its odds of success?

I haven't seen this written up anywhere else, so please point me to an analysis if I just happened to miss it.

Karl Rove seemed to suggest that the Democratic Party would simply recognize them out of political expediency--but that seems like it would be quite controversial in light of the fact that she was the only one who was on the ballot in Michigan, so there seems like a real fairness issue there not to mention the precedent it would set.

One other interesting point Rove made that I hadn't been aware of is that in Texas delegates are allocated by state Senate district, but that then number of delegates are based not on the percentage of Democratic vote in the district but the actual number of Democratic votes in the district. He notes that this dramatically reduces the relative weight of Hispanic districts in the state because even though they vote heavily Democratic they tend to have much lower turnout than in other parts of the state. He argues that this weighting probably favors Obama because it essentially weights votes from districts with many black voters more heavily than with many Hispanic voters even if they win a comparable number of districts with a comparable percentage of votes (he implied that black voter numbers in Texas are substantially higher than Hispanic voter numbers). I have been amazed at the amount of complexity and variety that states use in this presidential nomination process.

Update:

Rick Hasen had a piece in Slate last week that addresses this and other "crazy" aspects of the primary caucus season here. His prediction is that courts would be unlikely to intervene in an internal party debate on this question.

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District Attorneys, the ABA, and precedent in DC v. Heller

In the Supreme Court's Second Amendment, the American Bar Association filed an amicus brief in support of the DC handgun and self-defense ban. The brief argued that respect for stare decicis should compel the present Court not to recognize the Second Amendment as an individual right.

A related brief was filed by the District Attorney of San Francisco, joined by 17 other District Attorneys (including 5 from New York, and 4 from California). The brief makes its own argument about stare decisis, and warns that affirming the D.C. Circuit's recognition of an individual right would lead to vast challenges to federal and state laws against gun possession by convicted criminals, as well laws providing sentence enhancements for use of a firearm in a crime.

These arguments are addressed in pro-Heller amicus brief of the Maricopa County District Attorney, which is joined by 12 other District Attorneys (including Hamilton County, Ohio, and Carroll County, Maryland).

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Tuesday, February 12, 2008

NJ v. EPA and the EPA's Failed Mercury Policy:

Last week, in NJ v. EPA, the D.C. Circuit invalidated the Bush Administration's regulations establishing regulatory limits and a voluntary cap-and-trade program for mercury emissions from power plants, as I noted here. The opinion was a decisive loss for the Bush Administration, if not for the industry. The Bush Administration's regulatory strategy was significantly less aggressive than that initially set in motion under President Clinton (albeit in the waning days of his administration), and now the EPA will have to do it again.

Whatever one's opinion of the need for greater controls on mercury emissions or the use of cap-and-trade for this sort of pollutant, the D.C. Circuit's opinion makes abundantly clear that the Bush EPA's effort was illegal. Indeed, after reading the opinion it is not at all clear to me that the EPA even tried to comply with the Clean Air Act's requirements in writing their rules.

On December 20, 2000, as the Clinton Administration was coming to a close, the EPA listed coal-fired utilities as a source of mercury emissions under Section 112(c) of the Clean Air Act (CAA), a decision that would require regulating mercury emissions as hazardous air pollutants under the Act. The Bush Administration did not agree with this approach to controlling mercury emissions, preferring a less stringent and more flexible regulatory strategy than that contemplated by the Clinton Administration. So in 2004 the Bush EPA sought to chart a different course -- one that would rely upon a voluntary cap-and-trade regime rather than stringent technology-based controls -- and that's where the problems began.

Section 112(c)(9) of the CAA only allows the EPA to delist a pollution source once the agency makes specific findings. Specifically, 112(c)(9) requires the EPA to determine that "emissions from no source in the category . . . exceed a level which is adequate to protect public health with an adequate margin of safety and no adverse environmental effect will result from emissions from any source." This is a difficult standard to meet in any case, particularly so in the case of mercury. Yet rather than try and comply with this standard, and make the requisite findings, the EPA instead contended that it did not need to comply with the plain language of the law, prompting the D.C. Circuit to compare the agency's reasoning to that employed by Lewis Carroll's Queen of Hearts.

The NRDC's John Walke, with whom I agree on relatively little, is unsparing in his critique of the EPA's position. He also notes that the EPA's cavalier approach to statutory interpretation is hardly unique to this case. It is disturbingly common.

there is a prevalent strain within EPA -- fostered by but not limited to political appointees – that approaches the responsibility of statutory interpretation with a linguistic relativism that verges on nihilism. Under this EPA school of thought and practice, words in statutes mean whatever EPA wants them to mean. While legal doctrines afford federal agencies discretion in areas where they are considered expert, for example in scientific matters, EPA abuses these doctrines in order to distort the act of reading the English language into a policy play thing. This is precisely why one sees courts resorting to rebukes that sound “like a civics lesson by an exasperated instructor” and “The Collected Works of Lewis Carroll” to characterize the absurdities of EPA’s positions.
This has been a problem within the EPA for quite some time, in administrations of either political stripe. Yet this problem may be compounded by two factors somewhat unique to this administration: 1) the minimal attention paid to environmental policy questions, and 2) an expansive view of executive authority. Combined with the EPA's traditional resistance to statutory constraints, the result is an agency out of control and without adult supervision.

Related Posts (on one page):

  1. NJ v. EPA and the EPA's Failed Mercury Policy:
  2. Court Voids EPA Mercury Rules:
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No Trespassing Law in China?: My colleague Donald Clarke offers up this interesting post at Conglomerate.
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Obama Wins in Md, Va, DC: News update here. That makes it eight straight primary wins for Obama, I believe.
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Nordhaus & Shellenberger on Break Through - Event & Webcast:

Tomorrow, February 13, the Center for Business Law and Regulation at the Case Western Reserve University School of Law is sponsoring "An Environmental Breakthrough? The Challenge of Climate Change, the Death of Environmentalism, and the Politics of Possibility" featuring remarks by Ted Nordhaus and Michael Shellenberger. Professor Ted Steinberg and I will provide commentary. The event begins at 4:30 and will be webcast live. More details are available here.

Related Posts (on one page):

  1. Nordhaus & Shellenberger on Break Through - Event & Webcast:
  2. Responding to Shellenberger & Nordhaus on Climate:
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Icy Rain Interferes With Primary Voting in Washington Area: Unfortunately, the terrible weather in DC right now got in the way of my primary vote, too. In my case, I left work at about 6:10 to make it to the polls that closed at 7; but what should have been a 15-minute trip home turned into a parking lot on the way out of the District. There was no way I was going to make it to the polls before they closed — each 3-minute cycle of the lights was averaging just one car advancing — so I turned around after two blocks of it and headed back to the office to work for a few more hours. Very frustrating.

  UPDATE: It occurs to me that this experience brings up an interesting argument in favor of the Electoral College system. Bad weather or national emergencies in part of the country can alter voter turnout in various regions. Under the electoral college system, bad weather or natural disasters that cause low turnout in a particular state will not lessen the political power of those in that state or area. So, for example, if there's a major storm on the East Coast on election day, the votes of those on the East Coast still have the same net effect. Assuming those who make it to the polls are representative, local weather won't have an effect. The events can still have an effect to the extent those who make it to the polls aren't representative, of course.
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The New Stern & Gressman:

Tony Mauro (law.com) reports:

The latest edition of the unquestioned bible for Supreme Court practitioners has arrived — all 1,427 pages of it. [Roy Englert Jr. of Robbins, Russell, Englert, Orseck, Untereiner & Sauber adds, “Considering how universally it’s accepted, it’s more like the Bible, the Quran, the Bhagavad Gita, and the Talmud all rolled into one.”]

The ninth edition of Supreme Court Practice has just been published by BNA Books, and its girth is a testament to the increased complexity of Supreme Court advocacy, even — or especially — as its docket declines. In 1986, when the Court was deciding twice as many cases as it is now, the sixth edition of the book ran a mere 1,030 pages. The first edition in 1950 was 553 pages long and cost $7.50. The latest edition goes for $455.

It is a soup-to-nuts guidebook to everything lawyers need to know about petitioning, briefing, and arguing before the Supreme Court, with insights into the best ways of getting favorable attention from the Court at every stage.

One unnerving footnote reports that lawyers have fainted during oral argument on at least three occasions through history and advises, “Preparation, food, and sleep should stave off similar embarrassments.” ...

Of course, that's just the funny bit; the rest of the book is a detailed and technical discussion of everything you need to know about Supreme Court practice, whether about cert petitions, merits briefing, stay applications, or whatever else.

Note that my Mayer Brown colleagues Stephen Shapiro, Kenneth Geller, and Timothy Bishop are coauthors of the book, though they did not ask me to mention it.

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Errors Brief in DC v. Heller:

A brief of the Citizens Committee for the Right to Keep and Bear Arms, and for several scholars, takes an unusual approach. As far as I know, it's the first brief of its kind in a Supreme Court brief (although my knowledge of amicus briefs is far from comprehensive). Written by Washington state lawyer Jeff Teichert, the "Errors Brief" focuses entirely on refuting what it sees as plain errors in the briefs of DC and DC's amici. The 9000 word limit drastically reduced the number of items which could be addressed, and the brief chooses to address some items at relatively great length, rather than greatly shrinking certain discussions so as to address more items briefly.

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Senator versus Senator:

Unless something very unexpected happens, the presidential race this year will be between Senator John McCain and either Senator Hillary Clinton or Senator Barack Obama. Has there ever been an election in which both major party candidates were sitting Senators? I can't think of one, but I defer to those with more voluminous knowledge of such things.

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Article V:

Article V of the U.S. Constitution provides:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

I have a question about the provisions at the end, such as "Provided that no Amendment... that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Could an Amendment be adopted by the standard amendment process (2/3 of both Houses pluses 3/4 of states) that amended this final clause providing that no state shall be deprived of its equal Suffrage without its consent? So, for instance, could Article V be amended to allow deprivation of a state's equal suffrage such as by majority vote?

It is not obvious to me either way. My initial intuition was that the 2/3 clause was the general rule that could be invoked to modify the "equal suffrage" clause as a subordinate rule. But then as I thought further, it seemed to me that they are simply two co-equal provisions and that neither takes precedence over the other. If the latter, then presumably the only way to get rid of equal suffrage withouth the deprived state's consent would by revolution (presumably followed by a new constitutional convention). Although it is not obvious to me why the general provisions of Article V would not apply to this particular provision.

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How the Justices Vote: In Presidential primaries and elections, that is, not in cases.

  I personally find the second Justice Harlan's approach the most commendable. Justice Harlan refused to vote in Presidential elections to make it harder to mentally pick sides as to which Presidents he favored and which he did not. I'm probably in the minority in applauding this, but I think it sends just the right signal about how Supreme Court Justices should approach the other branches.
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Goldwater vs. the Solicitor General, in DC v. Heller:

The brief of the Goldwater Institute in District of Columbia v. Heller is another brief that merits study by persons interested in seeing a model of a first-rate Supreme Court brief. Lawyers on the brief are led by Bradford Berenson, of Sidley & Austin, and by Clint Bolick, of Goldwater.

The brief's focus is responding to a section in the Solicitor General's brief, which had argued for intermediate scrutiny as a the standard of review in Second Amendment cases. The Goldwater brief is not a brief of firearms law experts; it is the brief of Supreme Court precedent experts, and it cites a vast number of cases to make its argument that strict scrutiny is the proper standard.

The Goldwater brief has an inherent advantage, since it devotes all 9000 words to a topic which the Solicitor General covered in just a few pages. But even with the limited space available, the Solicitor General's brief was surprisingly shallow. The SG brief more or less declares its intermediate scrutiny test by fiat, and for support pointed to some election law cases.

Yet a short, well-written brief from the Libertarian National Committee points out, the cases cited by the Solicitor General themselves have a strict scrutiny standard. (Strict scrutiny for an "undue burden" on voters, intermediate scrutiny for everything else.) The Solicitor General brief just pointed to the intermediate scrutiny part of the election cases.

My guess is that there was something odd in the drafting of the Solicitor General brief. The brief was filed electronically late in the day when it was due. (UPDATE: A VC reader points out that the meta-data for the SG's PDF says that the file was created at 9:14 PM on January 11, the due date.) The brief has no Table of Contents or Table of Authorities--both of which are required by Supreme Court rules. My guess would be that there was no time to prepare these mandatory parts of the brief because the brief took a sudden change in direction, perhaps on the day it was due, and all the available time was consumed by trying to cobble together an intermediate scrutiny section of the brief. Just a guess, but the absence of a TOC and TOA surely suggests that there was some unanticipated time crunch at the end. (UPDATE: Another commenter says that the SG frequently files late, and adds the TOC and TOA later.]

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Tom Lantos Dies at 80: Tom Lantos, the California Congressman and a Holocaust survivor, has passed away at the age of 80. The San Francisco Chronicle has an obituary:
  In the nearly 60 years Tom Lantos spent in the United States, he never lost his Hungarian accent, his love for animals or his stubborn belief that political leaders have a duty to speak out against tyranny or oppression, wherever it occurs.
  Lantos, the Democratic congressman from San Mateo for 27 years, died Monday morning at Maryland's Bethesda Naval Hospital from cancer of the esophagus. He was 80. He championed the causes of those who often had no other voice, whether they were in Tibet, Darfur, China or anywhere else in the world.
  As a teenage boy in Hungary, Lantos escaped from Nazi labor camps and the genocide of the Holocaust, which took the lives of most of his family. It was a time he never forgot and that shaped the rest of his life.
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GW Law Student Group Blog: Some of my former students recently started a new student group blog.
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[Adam Kolber, guest-blogging, February 12, 2008 at 5:07am] Trackbacks
Freedom of Memory, Part 1:

Suppose we could erase memories we no longer wish to keep. In such a world, the victim of a terrifying assault could wipe away memories of the incident and be free of the nightmares that such memories often cause. Some memories, however, even quite unpleasant ones, are extremely valuable to society and ought not be eliminated without due consideration. An assault victim who hastily erases memory of a crime may thereby impede the investigation and prosecution of the perpetrator. In a world with memory erasure, our individual interest in controlling our memories may conflict with society’s interest in maintaining access to those memories. We tend to think of our memories as our own in some fundamental way. No one else should have the right to control such an important aspect of our minds. But what if we really could manipulate our memories? Is it so clear that our memories are entirely our own?

Neuroscientists are working to develop drugs that dampen the emotional intensity of traumatic memories. Some research suggests that propranolol, a drug already approved by the FDA for treating hypertension, can dull the emotional pain associated with the memory of an event when taken within six hours after the event occurs. Researchers are now conducting larger studies with propranolol to test these preliminary results and to explore whether propranolol can safely be used to ease traumatic memories from the more distant past. While we already have lots of other drugs that affect the formation of memories once you start taking the drug (common in certain forms of anesthesia, for example), there isn’t much we can do to affect memories that have already formed. And that's what we'd need to treat past trauma. So it's possible that propranolol could fill an important niche.

If propranolol does affect the emotional valence of memory, the effects are probably modest. And it is unclear whether propranolol also dampens factual associations with memories (the PDR lists short-term memory loss as a side effect of the drug). But even if propranolol falls flat, some more potent drug is likely to step into its place. In 2004, U.S. veterans received benefits payments for PTSD totaling $4.3 billion. Clearly, there’s lots of interest in finding comparatively inexpensive pharmaceutical methods of easing or preventing the emotional distress associated with bad memories.

How, if at all, ought the law to change in a world where we can dampen factual or emotional aspects of memory? Memories serve two distinct roles in the legal system. First, they play an indispensable role in fact-finding. We gather memories in depositions, trial testimony, police investigations, lineups, and more to help establish the underlying facts that set the entitlements of disputing parties. We value these memories principally for the information they can provide. Second, memories and their associated affective states can themselves form part of a claim for damages. If you injure me and cause me to have upsetting memories, I can sometimes seek redress for the intentional or negligent infliction of the emotional distress associated with those memories.

So, memory-dampening drugs that affect factual recall could raise interesting legal questions relating to obstruction of justice, spoliation of evidence, hearsay evidence, the value of eyewitness testimony, and more. Drugs that affect the emotional valence of memories raise questions about informed consent, mitigation of emotional distress, the valuation of the harm of erasing memories that should have been kept and the harm of keeping memories that should have been erased, and more. There are also plenty of interesting questions of constitutional law, many of which straddle both factual and emotional aspects of memory.

Admittedly, the technology will have to improve before we have to confront these issues on any regular basis. Nevertheless, drugs like propranolol have already been tested on human subjects who show up in the emergency room with trauma from assaults and car accidents. Suppose, as seems quite plausible, that there is civil or criminal litigation associated with some of those assaults and car accidents. Even if propranolol has no significant effects on memory, courts will at least need to explore and address the scientific validity of claims made about propranolol. After all, a good attorney will certainly ask a witness who participated in one of these studies, “So, is it true that you participated in an experiment by a researcher at Harvard Medical School into drugs that alter the intensity of memories?” We are thus confronted with legal and ethical issues related to memory dampening even before we have effective memory-dampening technologies.

Moreover, in my next post, I’ll discuss a true story that raises several interesting legal and ethical questions related not to some weak form of memory dampening but to what we can fairly call memory erasure. Not only is the story not science fiction, it’s over ten years old! Stay tuned . . . (In the meantime, you can find my much fuller account of the above discussion with citations here. My article challenges some of the ethical claims of the President's Council on Bioethics, which is highly skeptical of the merits of memory dampening.)

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State-level Battle of the Attorneys General in DC v. Heller

Thirty-one state Attorneys General filed an amicus brief in support of Heller. Part I.A. is a solid textual and historical argument for the Second Amendment as a meaningful individual right. Well-written, but I'm not sure it adds much to the treatment of these issues in Respondent's brief. Part I.B. adds some material on post-Miller cases in which the Supreme Court acknowledged the Second Amendment as similar to other Bill of Rights provisions (e.g., Konigsberg, Eisentrager).

Part II supports the D.C. Circuit's having found the handgun and self-defense bans to be facially unconstitutional, and takes on the Solicitor General's argument for intermediate scrutiny in Second Amendment cases. The Attorneys Genera argue for strict scrutiny. In Part III, the Attorneys General reassure the Court that none of the laws which the Solicitor General worried about (felon-in-possession ban, machine gun ban, undetectable firearms ban) would be endangered by strict scrutiny.

On page 23, note 6, the Attorneys General likewise signal that they are not worried that the Second Amendment would endanger appropriate gun controls in the states, for the Attorneys General announce that the Second Amendment should be incorporated.

The brief serves as counterpoint to a pro-Petitioner amicus brief filed by 18 big-city District Attorneys, which warned that affirming the D.C. Circuit's decision would unleash a dangerous set of challenges to gun controls.

Five state Attorneys General had filed a brief in support of D.C. That brief also argues against making the Second Amendment enforceable against the states (based on the argument that the Second Amendment is a federalism protection).

At Concurring Opinions, Michael O'Shea has created maps showing the 31 pro-Heller states, the 14 neutrals, and the 5 pro-DC states.

It may be that the incorporation issue explains why some state Attorneys General stayed neutral, rather than join the 31. It is also interesting that Illinois, which joined New York's amicus brief in favor of D.C.'s cert. petition, is neutral at the merits stage.

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The Continuing Columbia Eminent Domain Controversy:

Columbia student Evan Daar has an interesting article about the ongoing controversy surrounding Columbia's efforts to use the threat of eminent domain to condemn property it covets in New York City's Manhattanville area, which is mostly occupied by poor and lower middle class African-Americans. Daar notes that Columbia's plans have attracted protest from across the political spectrum. In my view, rightly so. While the university has backed off its initial threats to have the state condemn residential property, it is still threatening to use eminent domain to condemn commercial property in the area if the owners won't sell "voluntarily" (i.e. - under the threat of condemnation proceedings should they refuse Columbia's purchase offers).

I blogged extensively about this controversy in previous posts (see here and here). In this post, I gave some more general reasons why universities should not be allowed to use eminent domain to acquire property.

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Monday, February 11, 2008

Battle of the Attorneys General in DC v. Heller:

In January, former Attorneys General Janet Reno and Nicholas Katzenbach, joined by 11 former important US DOJ lawyers filed a brief in support of the DC handgun ban. The brief argues that from the 1930s until 2001, the US Department of Justice had the position that the Second Amendment does not guarantee an individual right. The brief argues that the DOJ supported the "collective right" theory, and appears unaware that this theory has been abandoned even by gun control groups and their academic allies. (The replacement is "narrow individual right," a right which applies only to persons actually on duty in a state militia.)

Today a counter-brief was filed on behalf of two former Attorneys General (Edwin Meese and William Barr), two former Acting Attorneys General (Stuart Gerson, under Clinton; and Robert Bork, under Nixon), and several other former high-ranking DOJ lawyers.

The brief begins by describing three different cases (under Presidents Andrew Johnson, Ulysses Grant, and Benjamin Harrison) in which the the US DOJ took the litigation position that the Second Amendment is a broad individual right. Next, the brief quotes FDR's AG Homer Cummings, testifying in support of the proposed National Firearms Act of 1934, who explained that the Act was not a violation of the Second Amendment because it taxed and registered machine guns and short shotguns, but did not ban them. The Reno brief had attempted to claim that Cummings was discussing the scope of congressional Article I power, but omitted the fact that Cummings was answering a Representative's question about the NFA "escaped" from the "provision in our Constitution denying the privilege to the legislature to take away the right to carry arms."

There then follows an intricate analysis of positions in DOJ briefs in future years, Office of Legal Counsel memoranda, and Presidential bill-signings. The argument is that, contrary to the Reno brief's claims, the Executive Branch position was not consistent with the position of Attorney General Katzenbach that there is no individual right to arms.

Part II responds to arguments raised by the Reno brief, and by the current Solicitor General, that the rule announced by the D.C. Circuit, invalidating the handgun ban, would threaten federal laws against possession of guns by convicted felons, or against machine guns. Part III urges the Court to confine its ruling to DC's ban on handguns in the home, rather than addressing restrictions on uncommon guns.

Both of the former DOJ briefs might be viewed in a broader context. One of the officials in the Reno brief is former Solicitor General Seth P. Waxman. On Aug. 22, 2000, Waxman wrote a letter affirming the position which the DOJ had taken in the Fifth Circuit's Emerson case, that the Second Amendment is no bar to the federal government taking away people's guns. Indeed, at oral argument before the Fifth Circuit, the DOJ position had been the Second Amendment does not even prevent the disarmament of an on-duty militiaman. Waxman became the first Solicitor General in history to have his words reprinted on presidential campaign billboards. Thanks in part to the NRA publicizing Waxman's words, George Bush won narrow victories, and thus the election, in strongly pro-gun states such as West Virginia. The results of the 2000 election represent "a constitutional moment" repudiating the Waxman/Reno view of the 2d Amendment--just as an overly restrictive view of the 1st Amendment was repudiated by the public in the election of 1800 (which also was very close, and was contested for months after the polls closed). Today, even Senator Hillary Clinton has moved away from the Reno/Waxman position; in the final Nevada debate, she stated: "You know, I believe in the Second Amendment. People have a right to bear arms."

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Historical briefs in DC v. Heller:

The brief of Academics for the Second Amendment discusses the drafting and ratification of the Second Amendment. It argues that the history clearly points to an uncontroversial individual right to arms for private purposes, and argues that DC's theory of the Amendment's meaning is based on proposals which Madison and Congress rejected. My favorite part of the brief is its use of the phrase "a tub to the whale."

A brief from the Institute for Justice supplies the history of the Reconstruction Congresses, and of the 14th Amendment. It shows that (whatever implications one might draw about incorporation), the understanding of the Second Amendment at that time was that it was a personal right to arms for private purposes, particularly the purpose of defending the homes of freedmen from Klan attacks.

And a brief for the President of the Pennsylvania Senate provides the history of the right to arms in that state.

These briefs counter arguments raised by DC and by its amici historians. As both these briefs acknowledge, proving that the 1776 Pennsylvania Constitution right to arms was not a right to self-defense arms is essential to their cause. Strangely, they cite a forthcoming article in a Rutgers law review, written by a protege of Saul Cornell, which appears to have not been made available, in its pre-publication form, anywhere the public can review. Keeping that article out of sight of Heller and his amici perhaps betrays a grave lack of confidence in whether that article's claims could withstand serious scrutiny. I am unaware of any pre-publication article that has been cited by Heller and his amici which is not already available on SSRN or another public web site.

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[Adam Kolber, guest-blogging, February 11, 2008 at 3:36pm] Trackbacks
Neurolaw Generally:

My thanks to Eugene for inviting me to guest blog about law and neuroscience, sometimes referred to as "neurolaw." The neurolaw literature is typically addressed to one of two very different sets of issues. The first set is about responsibility. In particular, scholars ask whether we can justifiably hold people responsible for actions that are caused by activities in their brain for which they are not themselves responsible.

Consider the subject of this medical case study, who had no prior history of unusual sexual behavior. At around age 40, he began to demonstrate pedophilic behaviors (e.g., he made sexual advances toward his prepubescent stepdaughter). The man was found guilty of child molestation and given the opportunity to successfully complete a sexual addiction treatment program in lieu of going to jail. Unfortunately, he made sexual advances toward others in the treatment program and was forced to leave the program. Prior to being sent to jail, he complained of severe headaches and was taken to the hospital. Doctors soon discovered that he had a brain tumor in his orbitofrontal cortex. After the tumor was surgically removed, his sexual behavior returned to normal. You have to read the full case study for all the details. The bottom line, though, is that the study authors think it quite likely that the tumor played a causal role in the subject’s inappropriate behavior.

Many of my students have the intuition that the man should not be deemed criminally responsible for his sexual activities while he had the tumor. He is certainly not responsible for having the tumor, and it seems like the crime would not have happened but for the tumor. In most jurisdictions, however, I think the subject would be unlikely to mount a successful insanity defense.

If these issues about responsibility sound familiar, it’s because they are. This side of neurolaw often rehashes ancient questions about free will and agency (often without recognizing the questions as such). I do think that neuroscience offers a new perspective from which to explore these issues, and it goes something like this: As an empirical matter, our willingness to attribute responsibility to an actor (like the guy described above) tends to weaken when the person's actions seem to be caused by factors external to the actor. The more that we understand the causal mechanisms of human behavior, many of which will eventually be understood in neuroscientific terms, the less we tend to attribute responsibility to human agency. So, even if we’ve known for a very long time that our behavior is caused by events and circumstances beyond our control, somehow being made better aware of those causes seems to diminish, again as an empirical matter, our attributions of agency to particular human beings. These are not philosophical claims; they’re claims about human psychology. Nevertheless, interesting questions arise about what, if anything, follows from these psychological claims, assuming that they’re accurate.

My own work has principally focused on the second set of issues in neurolaw – namely, issues related to the legal and ethical implications of new neuroscience technologies. In this regard, I plan to blog about: (1) emerging pharmaceuticals to dampen traumatic memories, (2) the use of brain imaging to assess subjective experiences like pain, (3) the importance of subjective experience (esp. suffering) to our theories of punishment, and if time permits (4) the placebo phenomenon and whether we can use deception to obtain it.

My Neuroethics & Law Blog celebrates its three-year anniversary this month. Just over three years ago, I had a conversation with Orin Kerr in Old Town, San Diego about starting a new blog on neuroethics. Orin encouraged me to plunge in, and I’m pleased to thank him on his home turf for doing so.

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"Has Anyone in this family even seen a chicken?":

Speaking of Arrested Development...

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Law Enforcement Brief in DC v. Heller:

Today the Independence Institute filed my amicus curiae brief with the United States Supreme Court, in the case of District of Columbia v. Heller.

The Independence Institute brief is joined by a broad coalition of law enforcement: the Maryland State Lodge of the Fraternal Order of Police (by far the largest rank-and-file police organization in Maryland), 29 of California’s District Attorneys, the San Francisco Veteran Police Officers Association, the Texas Police Chiefs Association, the Southern States Police Benevolent Association, and many others.

Notably, the lead amici in the brief are the two national organizations of police firearms instructors, the International Law Enforcement Educators & Trainers Association (ILEETA) and the International Association of Law Enforcement Firearms Instructors (IALEFI). The brief explains how widespread civilian ownership of handguns contributes to the efficiency and success of police firearms training.

Part One of the brief summarizes the vast body of evidence showing how law-abiding citizens with handguns contribute to public safety. Surveys of criminals and of law-abiding citizens both indicate that defensive gun use is frequent in the United States, and provides a substantial deterrent to crime. Most notably, because approximately half of all American homes have a gun, only 13% of American home burglaries take place when the victim is home. In nations where handgun ownership is rare or illegal, the home invasion rate is about 50%.

A large number of confrontational burglaries (nearly a third) result in assaults or rapes, so defensive gun ownership in the home also reduces the assault and rape rates. The assault reduction alone makes the U.S. violent crime rate about 9% lower than it would be if home invasions took place at the rate typical in other countries. But in DC, the use of any gun for self-defense in the home is illegal.

DC and its amici claim, in effect, that ordinary, law-abiding citizens are too hot-tempered and clumsy to own a handgun for home protection. Part II of the brief refutes this invidious prejudice. The brief shows that the large majority of murders, including domestic homicides, are committed by people who already have criminal records--not by previously-law-abiding citizens. A half-century of data show that gun accidents have declined by 86% in the U.S.

Before the 1976 handgun ban, only 1/2 of 1% of crime gun seized by the D.C. police were lawfully-registered to District residents. Thus, the DC City Council cracked down on a population group (gun owners who obeyed the city's registration and licensing laws) which had almost nothing to do with the city's crime problem.

Part III relies on practical police experience to explain why handguns are the best arms for home defense, particularly in an urban area such as Washington, D.C.

Part IV suggests that strict scrutiny is the proper legal standard of review for most Second Amendment issues. Precedents from the U.S. Supreme Court and from state supreme courts point to the unconstitutionality of the DC ban on handguns and on self-defense.

Social science data about self-defense were little discussed in the briefs of D.C. and its amici, except that the American Public Health Association (APHA) brief does have a section arguing against Gary Kleck's figure of 2.5 million annual defensive gun uses. Some empirical issues related to the law enforcement brief are also discussed in the American Academy of Pediatrics brief, and the D.C. brief itself.

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Adam Kolber, Guest-Blogging on Law and Neuroscience:

I'm delighted to say that Adam Kolber of the University of San Diego School of Law, will be guest-blogging this week on law and neuroscience. Prof. Kolber writes and teaches about neuroethics, bioethics, and criminal law. I first learned about him from reading his fascinating Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening; he has also written on the ethics of clinical placebo deception, pain detection and privacy, organ transplant rules, and the treatment of apes in standing law.

Prof. Kolber is also the author of the Neuroethics & Law Blog, and, this school year, the Laurance S. Rockefeller Visiting Fellow at Princeton University.

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The Faculty Lounge: It's been a while since a new general-interest law prof group blog was launched, but here's a promising one to check out: The Faculty Lounge. Its bloggers are Dan Filler, Laura Appleman, Al Brophy, Kathleen Bergin, Kevin Noble Maillard, and Calvin Massey.
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Sunday, February 10, 2008

The "Failed State" Brief in DC v. Heller:

On behalf of several association of private security guards and detectives, and the Buckeye Firearms Foundation, a brief in DC v. Heller supplies the facts of the appalling mismanagement and institutional incompetence of DC's Metropolitan Police Department. Almost everyone who lives or works in the District of Columbia is well aware that the District's government performs very poorly compared to almost all other big-city governments in the United States. Nevertheless, the Buckeye brief is shocking.

The four core empirical subparts of the brief are titled: "The MPD Has A Significant Problem Hiring And Retaining Qualified Police Officers." "The MPD Has A Significant History Of Mismanagement." "The District's '911 System Is A Joke'." and "The MPD Has A Significant History Of Corruption." Every one of these points is proven beyond a reasonable doubt, relying almost entirely on reports in Washington newspapers.

Moreover, although paying for security, through a private security guard firm, is still legal in DC, the MPD controls the licensing of security guards, and works hard to suppress the private security business through licensing abuse, and by prosecuting security guards on specious charges.

The brief then points out that the DC government enjoys civil immunity from persons who are injured because the MPD's non-feasance, even when persons were injured because they relied on false promises from DC 911 operators that help was on the way.

Thus, the decent, law-abiding citizens of the District have no other recourse but to protect themselves (or to hire security guards, if the , and, the brief argues, the Court should recognize the right of the District's citizens to do so themselves.

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Jews for the Preservation of Firearms Ownership brief in DC v. Heller:

In the Supreme Court handgun ban case, the brief for Jews for the Preservation of Firearms Ownership presents an argument on a highly emotional topic in a very sober and solid manner. Gun bans do not always lead to genocide: Luxembourg bans all guns--and provided the sculpture of the destroyed revolver with a twisted barrel that now adorns the plaza outside the United Nations. The gun-hating government of the Duchy has not attempted genocide against is disarmed subjects. However, as the JPFO brief shows, governments which do perpetrate genocide do work hard to disarm the victims beforehand.

Addressing this argument is something which the anti-gun lobbies have rather conspicuously avoided over the years. In 1995, I participated in a international gun control symposium New York Law School; for my contribution, I wrote a favorable review of JPFO's book Lethal Laws. The staff of New York Law School Journal of International and Comparative Law contacted gun control groups, and solicited an article to counter mine. There were no takers.

While the pro-ban amicus briefs in DC v. Heller do anticipate some of the arguments (e.g., gun control's racist roots, Gary Kleck's figure of 2.5 million annual defensive gun uses) which were expected to be raised by Heller or his amici, none of the pro-ban briefs address the genocide issue. The closest thing to a counter-brief is that of by the Educational Fund to Stop Gun Violence, filed on behalf of a large number of organizations, including several Jewish ones. The brief argues that the Second Amendment could not possibly have been written to protect the means of resistance to tyranny. The EFSGV brief and the JPFO brief both provide evidence from Founding Era writings to support their respective arguments.

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Sunday Song Lyric: Amy Winehouse received six nominations for tonight's Grammy Awards, more than any other artist save Kanye West. Still, most speculation has focused not on whether she will win any Grammys, but whether she'd be able to show up and perform at the 50th Anniversary show as scheduled. Coming out of rehab (despite her cries she won't go, go, go), Winehouse was initially denied a visa to enter the U.S. due to "use and abuse of narcotics." A visa was finally obtained at the last minute, but too late for her to make the trip. So now the troubled and talented singer is slated to perform via satellite.


Most of Winehouse's nominations are for her song "Rehab." It's a good song, but those lyrics are no longer operable. So instead here's a taste of her follow-up single, "You Know I'm No Good":

Meet you downstairs in the bar and heard
Your rolled up sleeves and your skull t-shirt
You say what did you do with him today?
And sniff me out like I was Tanqueray

Cause you're my fella, my guy
Hand me your stella and fly
By the time I'm out the door
You tear men down like Roger Moore

I cheated myself
Like I knew I would
I told ya, I was trouble
You know that I'm no good.
Here are the full lyrics, and the video.
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Nelson Lund brief in DC v. Heller:

On behalf of the Second Amendment Foundation, George Mason law professor Nelson Lund has written a meticulous textual analysis of the Second Amendment, in the Supreme Court handgun ban case, District of Columbia v. Heller.

In the tightly-written brief, Lund argues that every permutation of the militia-only interpretation of the Second Amendment leads to obviously absurd results. (Not only as a practical matter, but as a matter of textual interpretation.)

He urges that the language from United States v. Miller, suggesting that "'private citizens might have a right to possess weapons that are 'part of the ordinary military equipment or [whose] use could contribute to the common defense'" be treated as dicta. When Miller was decided, he observes, ordinary soldiers and ordinary citizens both owned bolt-action rifles; today, the Miller test would create a constitutional right to machine guns.

Lund explains the preamble of the Second Amendment as an "ablative absolute or nominative absolute. Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended. The usual function of absolute constructions is to convey some information about the circumstances surrounding the statement in the main clause."

A telling example is provided by Article 3 of the Northwest Ordinance:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

This provision – ratified by the same Congress that drafted the Second Amendment – attests to a belief in the beneficent effects of schools and education. But it does not imply that "[r]eligion, morality, and knowledge" are their only purpose.
[Side note: the inclusion of this quote in the briefing can be traced to independent scholar David Young having seen the quote above the entrance Angell Hall, at the University of Michigan. It is a perfect example of the importance of inscribing in stone the noblest statements of public virtue, so that those statements will be known to future generations, and will be used to encourage liberty and responsible self-government.]

As for the rest of the brief, it merits the reader's careful study. No brief in this case is as lucid. As a former Supreme Court clerk, Lund writes with the precision that is typical of Solicitor General briefs. It is not uncommon for briefs (on whatever issue) to puff up themselves with bombast and extravagent language. The Lund brief is a superb example of how to write authoritatively but not pompously; for the latter mode betrays an underlying insecurity about the correctness of one's argument.

There are many excellent briefs on both sides of District of Columbia v. Heller. The readers of this weblog include lawyers of varying degrees of experience, and law students; some of them have an interest in Second Amemdment issues, while almost all of them aspire to improve their brief-writing. If you want to read a model Supreme Court brief, this is the brief to read.

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