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Saturday, May 3, 2008
"Moral Consideration of Plants":
The Swiss Federal Ethics Committee on Non-Human Biotechnology's report, The Dignity
of Living Beings with Regard to Plants. A sample:
The Committee members unanimously consider an arbitrary harm caused to plants to be morally impermissible. This kind of treatment would include, e.g. decapitation of wild flowers at the roadside without rational reason.
Conclusion 3 expresses the different moral stances according to which it is unanimously held that plants may not be arbitrarily destroyed, in accordance with Conclusion 1. As 3 shows, the majority considers this morally impermissible because something bad is being
done to the plant itself without rational reason and thus without justification. A minority considers this treatment to be impermissible as well, but for another reason: because this destructive treatment of a wild flower expresses a morally reprehensible stance.
There's much more. Thanks to Manny Klausner and to this Weekly Standard article for the pointer.
Bleg for time data on colonialism:
International Olympic Committee president Jacques Rogge, in an April 26 interview in the Financial Times, urged Western patience with China's oppression of Tibet. Rogge stated that the People’s Republic of China has existed since 1949, and he noted that European colonial powers abused their colonies for a long time. He concluded: "we owe China to give them time."
Does anyone know a good source for the lengths of European colonialism on a colony-by-colony basis? Some colonial periods (e.g., Portugal's rule of Angola) were very long, while others (some of the latter European conquests in Africa) were not much longer than the nearly six decades that Rogge imputes to the PRC's colonial rule of Tibet.
I realize that one could argue about whether Rogge is correct in dating Chinese colonialism only to the time when the current regime came to power. The French government went through a complete regime change as a result of the French revolution; would French colonial masters in 1791 then be entitled to tell their colonial victims: "Please be patient with us; our regime has existed for only two years. Never mind that the previous French government put you under the French colonial thumb decades ago."
But let's just use Rogge's timeline. The Tibetans, Uighers, and Inner Mongolians have lived under PRC colonialism for nearly six decades. How long does this compare to the period of European rule of various colonies, as well as to the length of Russian/Soviet rule for the various captive nations which were part of Imperial Russia and the USSR?
Obama as Constitutional Law Professor:
Before becoming a senator and then running for president, Barack Obama spent several years as a part-time lecturer in constitutional law at the University of Chicago Law School. I haven't read anything about what he was like as a professor. A uniter (open-minded, encouraging critical questions) or a divider (not)? Overtly ideological or dispassionate and neutral? Well-prepared or lackadaisical? Any hints about his constitutional philosophy? Inquiring minds want to know! Surely this blog has some readers who took Obama's class (or perhaps were classmates of those who did and thus at least know of his reputation), and can enlighten us.
Is John McCain a Burkean Conservative?
Jonathan Rauch argues that John McCain is a "Burkean conservative," which Rauch defines as "respecting long-standing customs and institutions" and opposing "radical change." I'm a big fan of Rauch's work, but in this case I find his argument unconvincing.
Most of Rauch's evidence consists of political compromises that McCain has accepted as a senator and presidential candidate. However, as a "maverick" senator viewed with suspicion by both his own party and the Democrats, McCain had little choice but to compromise if he wanted to see any of his ideas enacted into law. Similarly, McCain had to accept some compromises and trim his sails in order to win the nomination of the Republican Party, most of whose activists were hardly enthusiastic about his candidacy.
On some issues, however, McCain has indeed endorsed "radical change" that runs counter to tradition. For example, he has repeatedly made clear that he wants far more sweeping regulation of political speech, going well beyond the compromises embodied in his McCain-Feingold law. Rauch describes the Iraq War as inconsistent with Burkean conservatism (because it was an effort at rapid transformation of a tyrannical society). Yet McCain has consistently supported the war just as enthusiastically as President Bush (albeit advocating what I think is a more effective and realistic strategy than that pursued by Bush and the Pentagon during the first several years of the conflict). If McCain becomes president, he will face fewer external constraints and will therefore be able to pursue his more radical preferences more aggressively.
Nonetheless, there is a good reason for Burkean conservatives and others opposed to rapid change to prefer a McCain victory. If McCain wins, divided government will be preserved, and divided government makes it difficult for either the President or Congress to enact radical new policy initiatives. It also plays a valuable role in constraining the growth of government. If one of the Democrats wins, he or she will have a cooperative Democratic majority in Congress (probably a bigger one than currently exists) and there will likely be several radical new policy initiatives and a major expansion of the size and scope of government. Thanks to divided government, a McCain victory might well lead to Burkean conservative results even if that isn't McCain's personal preference.
At the same time, I should note that I am not a Burkean conservative myself, and my reasons for preferring a McCain victory have more to do with the usefulness of divided government in constraining the growth of government than with any general opposition to rapid change. If time permits, I will do a follow-up post on the shortcomings of Burkean conservatism, which I think overstates the virtues of tradition and underestimates the possibility that rapid change is sometimes a good thing.
Pro-riot radio commentary from Roseanne Barr and Rush Limbaugh:
A left/right convergence in support of a reprehensible idea. At least that's my analysis, in my media column for today's Rocky Mountain News/Denver Post.
The Trials of Marc Dann:
Ohio Attorney General Marc Dann has only been in office 16 months, and he's already engulfed in scandal. Some Republicans are even talking about impeachment. But his political opponents are not the only ones up in arms. Dann's fellow Democrats (and Democratic-leaning bloggers) are also upset. On Friday, four staffers from Dann's office quit or resigned due to a sexual harassment scandal and Dann admitted to an extra-marital affair with one of his subordinates. From the Plain Dealer report: Dann, 46, a brash upstart when he won election in a near-sweep of statewide offices by Democrats in November 2006, finds himself barely holding his job just 16 months into a four-year term. His Democratic colleagues are keeping their distance, and Republicans are demanding he quit.
The affair with his 28-year-old former scheduler emerged as collateral damage from a probe into harassment charges against one of his top managers that resulted in two firings and two resignations.
Fired were Anthony Gutierrez, director of general services, and Leo Jennings III, director of communications. Edgar Simpson, chief of staff, would have been fired but resigned. The woman linked to Dann, Jessica Utovich, also quit.
But Dann did not pay the same price, despite an improper relationship that may have violated his own office policies and his role in the harassment claims that brought down his three close friends: Gutierrez, Jennings and Simpson. . . .
Dann, the state's top lawyer, said he is not sure whether he violated his own office policies by having a relationship with Utovich, an Avon Lake native. He said he engaged in the relationship during a difficult time in his marriage.
"I don't know what it [the policy] says," an emotional Dann said at the news conference. "A consensual affair is not necessarily a violation of the sexual harassment policy in my office."
He said admitting the affair to his wife, Alyssa Lenhoff, a Youngstown State University journalism professor, was punishment enough for him - even though others may have suffered worse fates by losing their jobs.
While Dann pleaded for mercy, he wasn't getting much of it early on from his Democratic colleagues.
"It is what it is. We'll see what happens from here," Secretary of State Jennifer Brunner said.
Gov. Ted Strickland suggested that there was a double-standard at play - Dann survives while others lose their jobs. Strickland, who said he was disappointed and angry, again called for an independent investigation of the harassment allegations and any links to Dann. . . .
Dann later said in an interview at The Plain Dealer with reporters and editors that he would request an outside review, something he had refused to do until now. But that didn't quiet his critics.
Ohio Republican leaders pounced. Reminded that Dann swept into office as an upset winner in November 2006 by casting the GOP as crooked and unaccountable, Republicans now say Dann is unfit to be attorney general and should quit. . . .
Republicans said that if Dann doesn't step down, they could try to impeach him. The Ohio House could bring articles of impeachment while the Ohio Senate could hold a trial and serve as jury, according to the Ohio Constitution.
But Dann vowed to continue, saying, "I haven't done anything impeachable." At least three Ohio papers ( 1, 2, 3) have called for Dann to resign. And it could get worse for the former ATL Lawyer of the Day, as the two women who originally filed the sexual harassment complaint (and others) claim Dann has yet to be candid with the public or state investigators about what he knew when, and what he did. The two women are also likely to file suit, which could lead to more unwelcome revelations. ( As if there weren't enough already.)
It is a sad day for the state of Ohio that this man is our state's top law enforcement official. He should resign and let Gov. Strickland appoint a successor.
Is California an Energy Leader?
Is California exercising energy policy leadership that other states (and nations) should follow? The Manhattan Institute's Max Schulz doesn't think so.
the state's energy leadership is a mirage. Decades of environmental policies have made it heavily dependent on other states for power; generated crippling costs; and left the state vulnerable to periodic electricity shortages. Its economic growth has occurred not because of, but despite, those policies. . . .
California's proud claim to have kept per-capita energy consumption flat while growing its economy is less impressive than it seems. The state has some of the highest energy prices in the country – nearly twice the national average – largely because of regulations and government mandates to use expensive renewable sources of power. As a result, heavy manufacturing and other energy-intensive industries have been fleeing the Golden State in droves.
The unreliable power grid is starting to rattle some Silicon Valley heavyweights. Intel CEO Craig Barrett, for instance, vowed in 2001 not to build a chip-making facility in California until power supplies became more reliable. This October, Intel opened a $3 billion factory near Phoenix for mass production of its new 45-nanometer microprocessors. Google has chosen to build the massive server farms that will fuel its expansion anywhere but in California.
And yet, despite a desperate need for more power, opposition to energy projects remains prevalent. State law prohibits the construction of new nuclear plants, and legislative efforts last summer to repeal it went nowhere. Last spring state regulators vetoed a proposal to build a liquefied natural gas terminal 14 miles off the Malibu coast.
Even renewable-energy projects meet resistance. Texas, of all places, is the nation's leader in wind-power generation. High costs, excessive regulation and environmentalist litigation have hampered California's efforts. Texas has just built lots of turbines. . . .
Californians may feel good about their environmental consciousness. But someone needs to build power plants and oil refineries to fuel their economy. Someone needs to manufacture the cars they drive, the airplanes they fly, the chemicals and resins and paints and plastics that make their lives comfortable.
Those things require energy, and lots of it.
Is Ethanol on the Wane?
With rising food prices and increased awareness of the environmental costs of corn-based ethanol, it should only be a matter of time before politicians reconsider their support for ethanol mandates, right? Perhaps this is starting to happen. The WSJ reports that two dozen Republican Senators, including John McCain, are asking the Environmental Protection Agency to ease existing renewable fuel mandates. he lawmakers said the mandates are contributing to a sharp increase in food prices. Sen. McCain has been a critic of ethanol subsidies.
"With the price of everyday meat, chicken, bread and eggs rapidly increasing, we are asking the EPA to use the flexibility that Congress gave them, because so many families cannot afford the increasing prices at the grocery store," said Sen. Kay Bailey Hutchison (R., Texas). An EPA spokesman couldn't be reached to comment.
EPA spokesman Jonathan Shradar said the agency "will review waiver requests and respond according to the law."
The move by the Republican Senate group is the latest sign that Washington's support for turning corn into motor fuel is wavering in the face of soaring food prices, despite the popularity of ethanol subsidies in farm states critical to the November election. Yet as the story notes, it is unlikely that the federal government will take action this year. Not only is this an election year, but President Bush has also reiterated his support for biofuels.
Some argue that the problem is not ethanol, as such, but ethanol made from corn. Over at Cato-at-Liberty, Indur Goklany considers the prospects of cellulosic ethanol, and finds claims that switchgrass or some other crop could alleviate our ethanol woes to be "wishful thinking." If cellulosic ethanol is indeed proven to be viable (with or without subsidies), what do people think farmers will do?
Farmers will do what they’ve always done: they’ll produce the necessary biomass that would be converted to ethanol more efficiently. In fact, they’ll start cultivating the cellulose as a crop (or crops). They have had 10,000 years of practice perfecting their techniques. They’ll use their usual bag of tricks to enhance the yields of the biomass in question: they’ll divert land and water to grow these brand new crops. They’ll fertilize with nitrogen and use pesticides. The Monsantos of the world — or their competitors, the start-ups — will develop new and genetically modified but improved seeds that will increase the farmer’s productivity and profits. And if cellulosic ethanol proves to be as profitable as its backers hope, farmers will divert even more land and water to producing the cellulose instead of food. All this means we’ll be more or less back to where we were. Food will once again be competing with fuel. And land and water will be diverted from the rest of nature to meet the human demand for fuel.
Does this mean that biomass – and farmers — should play no role in helping us meet our energy needs? Not necessarily. If farmers can profitably grow fuel rather than food through their own efforts, so be it. But we shouldn’t favor growing one over the other either through subsidies or indirectly through government mandates for so-called renewable fuels. And if anything should be subsidized or mandated, it shouldn’t be growing fuels. That would inevitably compete with food. Goklany's point that biofuel production and food production necessarily compete is unassailable, but that hardly means (unsubsidized) biofuels are a bad idea. All sorts of land-uses compete with food production, including habitat conservation. And as Goklany's own research shows, increases in agricultural productivity has enabled us to produce more food while setting more land aside for nature at the same time. In any event, Goklany is surely correct that subsidizing biofuels produced from corn, switchgrass, or anything else, will distort agricultural markets at the expense of consumers.
Why the Takings Clause Requires Compensation for Government Takings of the Property of Innocent People during Criminal Investigations:
I think my debate with Orin over the Takings Clause and seizures of property during criminal investigations is likely to enter the realm of diminishing returns soon, if it hasn't already. So in this post I will merely recap my key points and respond briefly to Orin's latest post.
I argued in my original post that the Takings Clause, which requires "just compensation" for "takings" of "private property" for "public use" requires compensation for the taking of innocent persons' property during a criminal investigation. The textual basis for this is very simple: that the Fifth Amendment does not distinguish between takings of property for use in a criminal investigation and takings for other public uses. The text simply states: "nor shall private property be taken for public use, without just compensation." There is no exception for takings related to criminal investigations or any other takings of any kind. Thus, it is reasonable and natural to assume that the text requires compensation for all takings alike, whether they occur during criminal investigations or not.
Orin then argued that this interpretation of the Fifth Amendment is inconsistent with the text of the Fourth Amendment, and I tried to explain why there is no contradiction: the Fourth and Fifth Amendment both protect property rights, but in different ways and against different threats.
Now, Orin claims that my latest post merely shows that it is possible to interpret the Fifth Amendment as requiring the government to compensate innocent property owners for takings that occur during criminal investigations, not that such an interpretation is required. I'm not sure I understand his post correctly. But it seems to me that it conflates my response to his Fourth Amendment point with the whole of my argument. If I am correct in that latest post in arguing that there is no contradiction between my interpretation of the Fifth Amendment and the functions of the Fourth Amendment, then my textualist approach to the Takings Clause stands (at least against Orin's objections): it is logical and natural to interpret it as applying to all takings of private property for public use. There is no implicit, nontextual exception for takings that occur during criminal investigations. Thus, compensation for such takings is not only permitted but required by the text. My core argument is simply that the Takings Clause says what it means and means what it says. It applies to all takings of private property for public use, not just some subset of them.
Orin also interprets my statement that the framers did not "intend" my reading as suggesting that it is merely a possible reading rather than the correct one. However, I have from the outset stated that my argument is textualist, not originalist. The sole originalist point I sought to make was that there is no compelling originalist evidence against my interpretation. That point is merely a negative defense against Orin's claim that originalism counts against my argument. My affirmative argument is textual, not originalist, and I respectfully suggest that Orin hasn't - at least so far - succeeded in refuting it.
To put the point another way, I doubt that the framers ever considered the specific problem of takings of the property of innocent people during a criminal investigation. At the same time, however, the text they enacted is clearly broad enough to cover this situation, just as it is broad enough to cover many other types of takings that were rare or even completely unknown in their day. Consider, for example, the taking of property for the purpose of building an airport. Similarly, when they drafted the First Amendment, the Framers could not and did not consider the regulation of speech on television and radio. But that does not mean that the Free Speech Clause can't apply to regulation of speech on broadcast media.
Constitutionally Permitted Versus Constitutionally Required -- A Response to Ilya:
In his latest comment, Ilya offers a way to reconcile the text and function of the Fourth and FIfth Amendments in a way that allow the Takings Clause to be used in crimimal investigations: To my mind, there is no tension between the Fourth Amendment and my interpretation of the Takings Clause. Both protect property rights to some degree, but in different ways and against different threats. The Fourth Amendment forbids "unreasonable" searches and seizures even if compensation is paid. However, the text also assumes that there are at least some "reasonable" seizures of the property of innocent people that are not forbidden. In such cases, property rights are protected (to some degree) by the Fifth Amendment's requirement of "just compensation." Thus, the Fifth Amendment protects innocent property owners in precisely those cases where the Fourth does not. This is an interesting theory, but it seems that we have shifted ground a bit. Instead of arguing that the text and text alone affirmatively mandates this reading — after all, the text is the law — Ilya now appears to be arguing that it's possible to interpret the text in a way that permits this reading. As he puts it, he "merely suggest[s] that [the Framers's written text] did not intend to preclude" his approach. But that isn't textualism: It's a policy argument made in a zone of textual ambiguity. And that's the problem, I think. It seems to me that Ilya's argument is a lawyerly effort to try to engraft a libertarian theory onto the Constitution rather than a straight textual or originalist account of what the Constitution affirmatively commands.
The Takings Clause and the Seizure of Innocent Parties' Property During Criminal Investigations:
Orin makes some interesting new points in his latest post in our debate. But I remain unpersuaded. To review, I argued that when the government seizes the property of innocent people during a criminal investigation (e.g. - to use as evidence), the government is required to pay compensation under the the Fifth Amendment's Takings Clause, which requires the payment of "just compensation" whenever "private property" is "taken for public use."
In his most recent post, Orin claims that my interpretation of the Takings Clause fails to take account of the Fourth Amendment, which protects homeowners against "unreasonable" searches and seizures:
From a textualist standpoint, the Fourth Amendment has a very explicit regulation on searches and seizures; its language was explicitly addressed to the rules that govern the "seizing" of "effects."
Given this language, it seems odd to construe the one phrase at the very end of the Fifth Amendment — "nor shall private property be taken for public use, without just compensation" — as implicitly providing another limitation of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" found in the Fourth Amendment. Further, the word "use" implies action, not just the passive act of storing something away over time (which, on the other hand, is clearly a seizure). Given that, I just don't think Ilya's reading is a natural one.
To my mind, there is no tension between the Fourth Amendment and my interpretation of the Takings Clause. Both protect property rights to some degree, but in different ways and against different threats. The Fourth Amendment forbids "unreasonable" searches and seizures even if compensation is paid. However, the text also assumes that there are at least some "reasonable" seizures of the property of innocent people that are not categorically forbidden; the Fourth Amendment says nothing about the rules governing those situations. In such cases, property rights are protected (to some degree) by the Fifth Amendment's requirement of "just compensation." Thus, the Fifth Amendment protects innocent property owners in precisely those cases where the Fourth does not. I don't know if this synergy was deliberately intended by the framers. But it is certainly a natural and logical interpretation of the text.
To recap, the Fourth Amendment protects us against unreasonable seizures by categorically banning them, but says nothing about what happens if the seizure isn't unreasonable. The Fifth Amendment, meanwhile, protects us against "reasonable" seizures that are severe enough to constitute a "taking" of property for "public use" by requiring the payment of compensation. That way, the government is allowed to take property for use in a criminal investigation when it is reasonable to do so. But it is not allowed to arbitrarily impose the cost on innocent property owners. As I noted in my very first post in this sequence, this is a classic example of one of the main purposes of the Takings Clause: "bar[ring] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armonstrong v. United States (1960). It seems to me perfectly logical to have one Amendment that forbids "unreasonable" seizures, and another that protects people against uncompensated takings of property (including some types of "reasonable" seizures).
Orin also argues that "public use" implies "action," not just "the passive act of storing something away over time." Perhaps. But seizing property and keeping it away from its owner is certainly an action. So is the act of moving the items to a government-owned facility for storage and locking it up (which certainly doesn't seem "passive" to me). And going through the stored property in order to evaluate its potential usefulness as evidence is even more clearly an action that requires "using" that property. Moreover, even "passive" storage of an item for potential future use is plausibly interpretable as "using" it as well. For example, when I store away my second pair of glasses, I am "using" it as a backup for my primary pair. If I had seized that backup pair from the rightful owner, it would surely be a "taking" for "Ilya's use." If the government does the same thing, it's a "taking" of the glasses for "public use."There may be some cases where the government seizes property for a criminal investigation in such a way that it doesn't "use" it at all; but such situations are likely to be rare if they exist at all.
I do not mean to suggest that any government use of property in an investigation requires compensation. As I noted in an earlier post, many such uses do not infringe on property rights severely enough to constitute a "taking" of that property (e.g. - a search that does not require the government to seize the owner's property or take exclusive possession of it for any significant length of time).
Finally, Orin disputes my claim that the framers may have been unfamiliar with seizures of property owned by innocent third parties in the course of criminal investigations. He notes that they obviously did know about cases involving the forcible return of stolen goods that had found their way into the hands of innocent third parties. Orin himself suggests the logical response: "the government is acting in a very different capacity when it is retrieving stolen goods than when it is collecting evidence that just happens to belong to a third party."
To elaborate slightly on Orin's point: if the goods are stolen, the innocent third party is not the legitimate owner of those goods, and she or she isn't entitled to compensation under the Fifth Amendment because she didn't have any right to the goods in the first place. Orin also notes that even the original owner was not entitled to compensation for the time when the government had his property in its custody prior to returning it. But there is a clear difference between a case where a thief steals someone's property and the government then takes it back from the thief in order to return it to the rightful owner, and one where the government itself takes the property from an innocent person in order to use it for its own purposes. The former scenario is not a "taking" from the rightful owner (at least not by the government), and also doesn't involve any kind of "public use" of the property by the state.
Orin says that this commonsense distinction is inconsistent with this 1967 Warren Court decision. Possibly. I'm not sure if Orin means to endorse the Warren Court's reasoning or not. But either way, a case decided by the decidedly nonoriginalist Warren Court in the 1960s says very little of relevance to the original meaning of the Fourth and Fifth Amendments in 1791. It is particularly irrelevant to the Takings Clause, since the case in question does not seem to consider that clause at all.
As I noted in my previous post, my argument is primarily textual rather than originalist. I am not claiming that the Framers specifically envisioned the approach I advocate. I merely suggest that they did not intend to preclude it, and may not even have considered the specific point at issue, given that the problem it addresses was unlikely to be a common one in their time.
Friday, May 2, 2008
Illeism Legalism:
As the Washington Post reports:
Acting as his own attorney, Pellicano made his closing arguments.... [He] addressed his jury. "Hi," he said. "This is the first time I will be able to speak for Mr. Pellicano." Because of the rules of the court, Pellicano the advocate must refer to Pellicano the defendant in the third person. You are correct: It is weird.
Well, it's weird by comparison to how people talk about themselves, but it's not weird by comparison to how lawyers talk about the defendant. To a lawyer, a closing argument that's chock full of "I"'s would sound very strange, and I take it the court's concern is that it will unduly personalize the process for the jury. So it's a slightly silly affectation in normal life, but legally compulsory in this unusual context.
Thanks to Language Log for the pointer.
Is John McCain a Burkean Conservative?:
Jonathan Rauch makes the case over at TheAtlantic.com. I hope he's right. Thanks to Instapundit for the pointer.
HAPPY BIRTHDAY V: Evidence and Repose in a World of Long Copyright
Suppose you owned a piece of land and took no legal action while others used it for more than two decades. When you (or your successor) eventually tried to evict those users, would you prevail? For centuries, the doctrines of adverse possession and easements by prescription have stood in the way of such long-delayed action. These doctrines rest on a notoriously mixed bag of rationales, including protecting the expectations of users, who may or may not have been acting in good faith; promoting productive use of land; keeping title free of complications that may hinder transfer and investment; and obviating the need to decide cases on thin, stale evidence of ownership claims. But the doctrines themselves have remained a remarkably durable part of land law.
Copyright law has never had similar doctrines (nor has patent law). As long as the term of copyright remained relatively short, it arguably had little need for them. Copyrighted works were going to enter the public domain soon anyway -- after, at most, 28 or 42 or 56 years -- and they would enter the public domain even sooner if copyright holders didn't assert their continuing interest in the works by filing a renewal registration after 14 or 28 years. Now, however, copyright can last for 120 years or more, and has no renewal requirements. Thus, it is possible for a copyright owner to neglect to enforce copyright for decades, and then return and reassert ownership for decades more.
The history of "Happy Birthday to You" gives us a glimpse of what can happen when long copyright has no adverse-possession-like doctrine. The song was distributed widely for about 20 years from the early 1910s to the early 1930s without any permission from or enforcement by the Hill sisters or their publishers. It was during that period -- a period when the song was de facto in the public domain -- that it became THE standard birthday song in the United States. It is even conceivable that the lack of copyright enforcement contributed to the song's assumption of its central place in American culture. Then the putative copyright owners resurfaced and started claiming royalties, not for another decade or so until 1949, but, it now appears, for another 95 years until 2030.
The copyright community has started discussing the related and partially overlapping problem of "orphan works," but so far there's been no legislative progress on that front. The doctrine of adverse possession was actually a judicial creation, piggybacking on top of statutes of limitations. The copyright statute of limitations, however, is so short -- 3 years -- that it is unlikely that judges will ever read doctrines of adverse possession or prescription into it. The result is that copyright will likely increasingly face all of the problems -- clashing expectations, clouded title, stale evidence, use-inhibiting uncertainty -- that land ownership would have without those doctrines.
One comment earlier this week noted the evidentiary problems that arise as works under copyright get older and older. Some of those are inevitable. Others could be avoided with better Copyright Office recordkeeping policy, which has not kept up with the increasing copyright term. As I detail in my article, the Copyright Office has maintained a policy of discarding much correspondence and many deposits after a decade or two. In addition, there has never been a way for the public to learn when the Copyright Office has denied registration of a work, unless the dispute gets into the courts, because only successful registrations are assigned searchable numbers. I heard a rumor that there had been an unsuccessful attempt to register the "new" melody of "Happy Birthday to You," different from the melody of "Good Morning to All" only in that the quarter note to which "Good" was sung was split into two eighth notes to accommodate the word "Happy." The rumor is probably false, but since there's no way to search denied registrations . . . who knows?
With that, I'll conclude my series of posts about "the World's Most Popular Song." Thanks again to Eugene for giving me this opportunity, and to all of you who responded for your comments and discussion.
Supreme Court Trivia:
Which Supreme Court Justice wrote the following in a solo dissent: "A mosque in Fez, Morocco, that I have visited, is, by custom, a sanctuary where any refugee may hide, safe from police intrusion." (a) Justice Alito
(b) Justice Holmes
(c) Justice Douglas
(d) Justice Breyer
(e) Justice Thomas
Playing Radio Show That Discussed Sex = Possible Massive Legal Liability?
Reeves v. C.H. Robinson Worldwide, Inc, decided Monday by the Eleventh Circuit, is the latest case illustrating how hostile environment harassment law may suppress constitutionally protected speech. The Eleventh Circuit held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim -- which is to say, that if the jury agrees with her on the facts, it's entitled to award potentially hundreds of thousands of dollars in damages -- even though the case didn't involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally.
Rather, her complaints, as described by the Eleventh Circuit were chiefly related to "sexually crude language that offended her." A fairly small part of the incidents involved sex-based insults ("bitch," "whore," and once "cunt") used to refer to women customers and another employee behind their backs. There was also casual use of the word "dick," and some sexually themed jokes (and one song) with pretty vulgar language, overheard discussions about pornography, masturbation, and sex; one incident in which Reeves saw pornography on a coworker's computer; and the following:
Reeves was also offended by a radio program that was played every morning on the stereo in the office [a morning program on Birmingham's 107.7 FM during 2002-03, according to one brief -EV]. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women’s nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “sexual tyrannosaurus rex.” When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.
The Eleventh Circuit expressly rejected the argument that, to constitute discriminatory harassment "based on" sex, speech had to actually specifically target the plaintiff as a woman (or, in other contexts, as a black, Catholic, or whatever else). There's a good deal of circuit precedent for this rejection -- but the consequence is that any speech, including radio programs, overheard conversations, and the like, that is "particularly offensive" to people because of their sex, race, religion, and so on is punishable. The sexually themed material, the court concluded, "was discussed in a manner that was ... more degrading to women than men," which I take it reflects the view in plaintiff's brief that "In these discussions, women were objectified and demeaned." And because it implicitly expressed such degrading views, it could be punishable as harassing based on sex.
As a matter of good manners, and sound business management, I gladly condemn people who expose unwilling colleagues to such speech. The employer -- a private entity that's not bound by the First Amendment -- was free to restrict the speech, just as private Internet service providers, schools, churches, malls, and householders are generally free to restrict speech on their private property (setting aside a few contrary state laws that are not relevant here).
But here the government is saying that this speech is legally actionable, because it supposedly reflects a "degrading" perspective on women. The speech does not fit within any First Amendment exception -- there is no such exception for vulgarity, including relatively nonpolitical vulgarity (understandable, given the impossibility of defining the boundaries of such an exception). The government ought not be able to limit it, including through threat of massive civil penalties, whether the penalties are imposed on the speaker or on property owners that tolerate the speech. Yet this is exactly what happens here.
What's more, the logic of the case (which expressly draws on racial harassment caselaw and not just sexual harassment caselaw) extends far beyond talk of sex. The reasoning would apply even more forcefully to sexist political statements, sexist criticisms of politicians, racist political statements, racist criticisms of politicians, radio shows that condemn Islam and Muslims, radio shows that condemn atheism, and the like. And harassment law has indeed been used in the past to impose liability based on such political, religious, and social commentary, see here and, most recently, here (anti-Islam, anti-Muslim, and on occasion anti-Arab political statements).
On top of that, while harassment claims are generally not easy for plaintiffs to win, they have a perfectly predictable deterrent effect on employers, who don't want to risk losing them (or even litigating them). If you're an employer, you hear about this case, and then someone complains about allegedly sexually themed, religiously offensive, sexist, or racist radio programs being played, or overheard lunchtime conversations, what would you do?
I'm pretty sure that if you're rationally worried about litigation, you'd order that the radio playing and the conversations stop, for fear of government-imposed liability, and not just out of good manners or a desire to promote morale. I generally don't fault employers for reacting this way. But I do fault the legal system for imposing this sort of content-based, viewpoint-based deterrent to speech.
Of course, many people are understandably upset about having to work around this sort of vulgarity, or for that matter around political speech that they find offensive based on religion, race, sex, and the like. But, as I've argued at length, preventing such offense -- whether in private workplaces, private educational institutions, privately owned places of public accommodation, or private housing complexes -- by punishing or imposing liability for speech (outside the narrow existing First Amendment exceptions) is not something that the government should be allowed to do.
I should also mention that the special First Amendment status of broadcast radio, under which some restrictions on vulgarities and even on content that simply discusses certain sexual themes have been upheld, is not relevant here -- the case didn't turn on this, and would have come out the same way if it had involved cable radio, or Internet radio, or CDs, or any other fully protected medium. (I think the lower protection for broadcast radio is itself unsound, but that's a separate matter.) I should also mention that the defendant didn't raise the First Amendment here, and the court therefore didn't discuss it.
Thanks to Michael Masinter for the pointer.
More on the Takings Clause and Criminal Procedure:
In making his argument for using the Takings Clause to provide compensation for investigative seizures beyond the return of the physical property itsef, Ilya writes: Since I am more a textualist than an originalist, I think it highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. All require the payment of "just compensation." Since there were no professional police forces or extensive government evidence-gathering in the 1780s, the Founders may never have been confronted with a situation like that in AmeriSource; as a result we may never be able to discover their specific opinions on the matter (if indeed they had any). However, the text of the Fifth Amendment is more than broad enough to cover these cases. And it is the text, not the subjective intentions of the Framers, which is the law. I find this argument weak on both textualist and originalist grounds. Let's start with the textualist claim. There are two paragraphs of text here, the Fourth and the Fifth Amendments: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Ilya writes that he finds it "highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the 'public use' of investigating crime and other kinds of takings." But I don't think the failure to make that distinction can fairly be read as including both categories instead of excluding one. From a textualist standpoint, the Fourth Amendment has a very explicit regulation on searches and seizures; its language was explicitly addressed to the rules that govern the "seizing" of "effects." Given this language, it seems odd to construe the one phrase at the very end of the Fifth Amendment — "nor shall private property be taken for public use, without just compensation" — as implicitly providing another limitation of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" found in the Fourth Amendment. Further, the word "use" implies action, not just the passive act of storing something away over time (which, on the other hand, is clearly a seizure). Given that, I just don't think Ilya's reading is a natural one. Second, Ilya's speculation that the Framers didn't experience seizures of property owned by innocent third parties seems off the mark, too. One of the more prominent uses of warrants at English common law was to retrieve stolen goods; its use was discussed in Entick v. Carrington, 19 Howell's State Trials (1765), the English decision that more than any other case inspired the passage of the Fourth Amendment. In these cases, the legitimate owner of the stolen goods would complain to the local magistrate that his goods had been stolen; the magistrate would issue a warrant allowing the government officials to go and retrieve the goods from the person who stole them so they could ultimately be returned to the property owner. During these cases, the government would have control over the property for a period of time, and the property owner was ultimately entitled to return of the original property. But I don't know of any instances in which decreases in value of the property obtained pursuant to the warrant due to the passage of time or the resulting inconvenience was referenced as some sort of "taking" requiring "just compensation." As best I can tell, such matters were considered matters of the common law power to conduct reasonable searches and seizures, not takings. But wait, you're thinking: the government is acting in a very different capacity when it is retrieving stolen goods than when it is collecting evidence that just happens to belong to a third party. Perhaps. But if you think that, then you should blame the Warren Court for overruling the common law "mere evidence rule" in Warden v. Hayden. The Fourth Amendment's prohibition on warrants for mere evidence — as opposed to contraband or fruits of crime — originally acted to avoid fact patterns like than in Amerisource. If Warden v. Hayden was wrongly decided, that is a matter for the Fourth Amendment to fix rather than the Takings Clause.
College Teacher Fired Over Loyalty Oath:
The LA Times has an interesting story on a Cal State Fullerton instructor, Wendy Gonaver, who was fired for refusing to sign the state's loyalty oath.
the day before class was scheduled to begin, her appointment as a lecturer abruptly ended over just the kind of issue that might have figured in her course. She lost the job because she did not sign a loyalty oath swearing to "defend" the U.S. and California constitutions "against all enemies, foreign and domestic."
The loyalty oath was added to the state Constitution by voters in 1952 to root out communists in public jobs. Now, 16 years after the collapse of the Soviet Union, its main effect is to weed out religious believers, particularly Quakers and Jehovah's Witnesses.
As a Quaker from Pennsylvania and a lifelong pacifist, Gonaver objected to the California oath as an infringement of her rights of free speech and religious freedom. She offered to sign the pledge if she could attach a brief statement expressing her views, a practice allowed by other state institutions. But Cal State Fullerton rejected her statement and insisted that she sign the oath if she wanted the job.
Apparently this is not an isolated incident.
In February, another Cal State instructor, Quaker math teacher Marianne Kearney-Brown, was fired because she inserted the word "nonviolently" when she signed the oath. She was quickly rehired after her case attracted media attention.
It is hard to know how many would-be workers decline to sign the pledge over religious or political issues. Some object because they interpret the pledge as a commitment to take up arms. Others have trouble swearing an oath to something other than their God.
I don't know as much about this area of the law, but I find it hard to believe that this policy could survive a court challenge, particularly since (as the story notes) the Cal State system applies the oath requirement more stringently than is required. Other state agencies apparently allow individuals to qualify the oath or attach explanatory statements.
Anti-Evolution Teaching as "Academic Freedom":
The WSJ reports that anti-evolution forces have adopted a new stealth strategy to undermine the teaching of evolution in public school science classes: "academic freedom." The story reports on "academic freedom" legislation that would protect high school science teachers who challenge evolutionary theory in their classes.
The academic-freedom bills now in circulation vary in detail. Some require teachers to critique evolution. Others let educators choose their approach -- but guarantee they won't be disciplined should they decide to build a case against Darwin.
The common goal: To expose more students to articles and videos that undercut evolution. Most of this material is produced by advocates of intelligent design or Biblical creationism, the belief that God created man in his present form. . . .
Those promoting the new bills emphasize that academic freedom doesn't mean biology teachers can read aloud from the Book of Genesis. "This doesn't bring religion into the classroom," said Florida state Rep. D. Alan Hays, a Republican.
The bills typically restrict lessons to "scientific" criticism of evolution, or require that critiques be presented "in an objective manner," or approved by a local school board.
Evolution's defenders respond that there are no credible scientific critiques of evolution, any more than there are credible alternatives to the theory of gravity. The fossil record, DNA analysis and observations of natural selection confirm Darwin's hypothesis that all life on Earth evolved from a common ancestor over four billion years.
In the scientific community, while there may be debate about the details, the grand sweep of evolution is unassailable. "There's no controversy," said Jay Labov, a senior adviser for education and communication with the National Academy of Sciences.
Unlike some critics of "Intelligent Design" and other creationist theories, I am not convinced that teaching alternatives to evolution necessarily violates the Establishment Clause. That said, these bills make for horrible public policy, as there is nothing scientific about these "alternatives" to evolution. Encouraging attacks on evolution in high school science classes promotes academic fraud not "academic freedom." If school boards or state legislatures want public school students to be exposed to competing theories about the origins of life -- a question evolutionary theory does not address -- they should do it in a world religion or social studies class and leave science alone.
Ex-Detainee Becomes Suicide Bomber:
Reuters reports that relatives of a former Guantanamo detainee claim he became a suicide bomber in Iraq. What does this prove? Nothing really, but I'm sure partisans in the debate over Guantanamo and the treatment and detention of alleged enemy combatants will see this as evidence that confirms their respective points of view. On the one hand, Abdullah Saleh al-Ajmi may have been a dangerous enemy combatant all along, and should never have been released. On the other hand, he may have been wrongfully detained in the first place, only to become radicalized by his (mis)treatment by the U.S. military. In other words, we either had a terrorist and let him go, or we created one.
Federalist Society Conference on Consumer Credit Regulation:
The Federalist Society is hosting a Conference on current issues in consumer credit regulation on Tuesday May 20, from 9:30-2:00 at the National Press Club.
The details and registration information is here. Confirmed participants include Jennifer E. Bethel, Allen Fishbein, Paul Leonard, Allen Ferrell, Oliver I. Ireland, Thomas A. Durkin, and Todd J. Zywicki.
There will be two programs, the first on subprime lending and the second on credit cards.
The Takings Clause and Compensation for Innocent Property Owners Who have their Possessions Seized During Criminal Investigations:
In his interesting post responding to my critique of the Federal Circuit's AmeriSource decision, Orin argues that the Takings Clause does not require compensation in these cases.
Orin claims that "the argument that the Takings Clause applies is hard to make from an originalist perspective [because] Innocent third parties have long had their property rights interfered with in criminal investigations." There is a big difference between having your property "taken for public use" (the term used in the Fifth Amendment) and merely having it "interfered with." A search of a house is not a taking. There is, however, a taking if the government kicks you out of your house and takes control of it - either permanently or for an extended period of time. To my knowledge there is no evidence that the framers and ratifiers of the Bill of Rights accepted the view that there isn't a taking in cases where the government actually seizes the property of innocent third parties during a criminal investigation, as opposed to merely "interferes" with it. As the Court explained in Bennis, there were some early cases when the courts tolerated a seizure of property that had been used in criminal activity by a person whom the owner had entrusted it to. But that is very different from the seizure of property that the owner had never entrusted to a wrongdoer who went on to use it to commit a crime.
I recognize, of course, that the line between taking and interference may sometimes be fuzzy. But that doesn't mean that there aren't cases that clearly fall on one side or the other. Seizing someone's property and holding it for months (as happened in AmeriSource) is clearly a taking. Since I a more a textualist than an originalist, I think it highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. All require the payment of "just compensation." Since there were no professional police forces or extensive government evidence-gathering in the 1780s, the Founders may never have been confronted with a situation like that in AmeriSource; as a result we may never be able to discover their specific opinions on the matter (if indeed they had any). However, the text of the Fifth Amendment is more than broad enough to cover these cases. And it is the text, not the subjective intentions of the Framers, which is the law.
Orin also contends that "allowing such claims under the Takings Clause would be quite difficult to administer" because property rights of innocent people are so often "interfered with" during investigations. Part of this concern may be mitigated by the distinction between takings and interference discussed above. However, I don't deny that there will be at least some administrative problems. But the government can mitigate these by establishing a system of administrative compensation that can, in most cases, obviate the need for litigation. As a practical matter, property owners are unlikely to sue for recovery of small losses because of the cost of litigation. Some administrative costs will arise anyway. But that is an inevitable consequence of the enforcement of any constitutional right. For example, as Orin knows better than I, Fourth Amendment enforcement raises all kinds of difficult administrative problems arising from the difficulty of determining whether the police had adequate reasons for searching a particular location at the time they did it.
That said, Orin and I might well agree on the issue of administration more than we disagree. Orin writes:
I tend to agree with Ilya that the government should provide compensation in cases such as that raised by the Federal Circuit case. Plus, a statutory regime could be written to make it much more administrable.
I think that Orin is right on both of these counts. A statutory regime of compensation would be highly desirable and might well be enough to provide adequate compensation to property owners. It could also obviate some of the administrative difficulties of case by case litigation. However, it is unlikely that the government will have any incentive to enact such a scheme unless the judiciary starts enforcing the "just compensation" requirement of the Takings Clause in these cases. If Orin and I are right to believe that the administrative difficulties can be overcome by a statutory or administrative compensation procedure, then judicial enforcement might help facilitate that happy outcome.
Finally, Orin argues that my position - if adopted by the Court - would lead to a narrowing of the exclusionary rule. This aspect of the matter is beyond my expertise, so I can't comment on it intelligently.
Unfortunately, I will be on the road most of tommorrow, so may not be able to continue this debate. However, I may return to it on Saturday if additional points occur to me at that time.
The Takings Clause and Criminal Investigations:
Ilya raises some truly fascinating questions below in his post on whether the Takings Clause should require compensation for losses suffered by innocent individuals in the course of searches and seizures permitted in criminal investigations. I wanted to add some thoughts from a different perspective. First, I would think that allowing such claims under the Takings Clause would be quite difficult to administer. Innocent third parties have their property interests interfered with in criminal investigations all the time; a single seizure justified by a warrant could implicate the property rights of dozens of different people or more. If each seizure can trigger takings claims, the administrative and litigation costs of resolving these claims would quickly become prohibitive. I recognize that some might like this result. But I would guess that no one confirmable as a Supreme Court Justice would agree, making it unlikely that the Supreme Court would adopt such a rule. Second, I would think the argument that the Takings Clause applies is hard to make from an originalist perspective. Innocent third parties have long had their property rights interfered with in criminal investigations; houses get searched, property gets seized. But I'm not aware of any argument based on the original public meaning of the Takings Clause that the clause was deigned to address collateral damage in criminal investigations. My sense is that at the time of the Framing, such questions were understood as Fourth Amendment issues, not Fifth Amendment issues. Given that, I think the argument would have to be based on language from recent precedents, not original meaning. Finally, if the Supreme Court did recognize such claims under the Takings Clause, there is a good chance that they would also rearrange not-insignificant chunks of criminal procedure law to adjust to the shift. Ilya argues that Takings compensation would be a good thing in criminal investigations so the government internalizes costs of investigations. But most of criminal procedure law has been created to try to deter police investigations using the exclusionary rule. A dramatic expansion in civil liability would likely lead to a cut-back in the scope of the exclusionary rule. Whether that's good or bad may be a matter of opinion, but I think it's worth noting that the idea could have consequences far beyond the Takings clause. Just to be clear, I'm not defending the status quo as a matter of policy. I tend to agree with Ilya that the government should provide compensation in cases such as that raised by the Federal Circuit case. Plus, a statutory regime could be written to make it much more administrable. But I think there are some difficulties reaching that result through the Takings Clause. In any event, it's a very interesting set of issues -- thanks to Ilya for raising them.
Is there a Taking When the Government Seizes the Property of Innocent People During a Criminal Investigation?
As a general rule, if the government appropriates your property, it is considered a taking of private property for public use under the Fifth Amendment and the state must pay you "just compensation." This is true even if the government has a very good reason for taking your property (e.g. - it needs it for vital infrastructure or for a military base). As the Supreme Court famously explained in Armstrong v. United States (1960), the Takings Clause is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."
Unfortunately, the U.S. Court of Appeals for the Federal Circuit has recently ruled that this principle does not apply in a case where the government appropriates the property of innocent people as part of of a criminal investigation. In AmeriSource Corp. v. United States (hat tip: my soon-to-be colleague T.J. Chiang), the Court held that there is no taking and no compensation is required in a case "when the government seizes an innocent third party’s property for use in a criminal prosecution but never introduces the property in evidence, and it is rendered worthless over the course of the proceedings." In this case, the government seized some $150,000 of drugs belonging to the AmeriSource Corporation for use as evidence in a criminal case against another firm. By the time the government decided that it no longer needed the drugs (which were never actually introduced into evidence), they had been rendered worthless by the passage of their expiration dates. Although AmeriSource was never even accused of any wrongdoing, it will get no compensation whatsoever for the loss of this valuable property.
I. Public Use and the Police Power.
The Federal Circuit's ruling may ultimately be correct under current Supreme Court precedent. But some of its reasoning is extremely dubious. The Court's main argument is that there is no taking here under the Fifth Amendment because, when the government seizes property for use in a criminal investigation, it is exercising its "police power" (which, includes, among other things, law enforcement) not taking property for a "public use," as the text of the Amendment indicates. However, the Supreme Court has ruled in several cases (most notably Berman v. Parker and Hawaii Housing Authority v. Midkiff) that the scope of public use is "coterminous with the scope of a sovereign’s police powers" (Midkiff, 467 U.S. 229, 240-41 (1984)). I think that this is an overly broad interpretation of "public use," but it does clearly indicate that the mere fact that a government action involves the police power doesn't mean that it can't also be a taking for a public use. Thus the Federal Circuit is wrong to draw a sharp dichotomy between "public use" on the one hand and "police power" on the other.
II. Supreme Court Precedent.
That said, the Federal Circuit may be on more solid ground in relying on the Supreme Court's extremely permissive jurisprudence on asset forfeitures. For example, in Bennis v. Michigan (1996), The Supreme Court held that there was no taking in a case where Mr. Bennis' car was confiscated because he had engaged in illegal sex with a prostitute in the vehicle. Although Mrs. Bennis was a co-owner of the car and she had not been convicted of any crime, the Supremes held that she wasn't entitled to any compensation for the loss of her interest in the car. I think that Bennis was wrongly decided. But obviously the Federal Circuit had to obey this Supreme Court precedent.
Whether Bennis does in fact determine the outcome of the present case is a close call. Unlike in Bennis, the property seized in AmeriSource was not connected to any wrongdoer whatsoever. Thus, the two cases might be considered different. The Bennis decision did not rule that the absence of any wrongdoing by any of the owners would lead to a different outcome. But it also didn't preclude that possibility. Indeed, Bennis explicitly relied on "a long and unbroken line of cases holds that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use." Unlike in Bennis, there was no such illegal use of property by AmeriSource. On balance, therefore, I think that AmeriSource can be distinguished from Bennis, but I don't blame the Federal Circuit too much for failing to do so.
III. Why Compensation Should be Required.
Much more problematic is the failure of the Supreme Court to properly apply the Takings Clause to innocent property owners who have their property appropriated by the state in the course of criminal investigations. Even if the government has a legitimate need for the items in question (e.g. - because they are important evidence), denying compensation is a classic example of "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Apprehension and punishment of criminals is a general public interest and the costs should be paid by the public as a whole, not arbitrarily imposed on individual property owners who were unlucky enough to get caught up in an investigation. There is also no doubt that the government is "using" the property in question. Therefore, there is every reason for the courts to conclude that private property appropriated during a criminal investigation has indeed been taken for "a public use" and that the Fifth Amendment therefore requires compensation for the owners.
Some might fear that the government will be hamstrung by having to compensate all owners of evidence used in investigations. Perhaps the cost will be too great. In reality, however, there is always a cost when the government takes property away from owners. The only question is whether the owners will be forced to bear that cost or whether it will be borne by the public fisc. If the government is forced to pay compensation, it may have stronger incentives to correctly balance the benefits of appropriating the items in question against the costs imposed on innocent owners. It is actually a good thing if the government is deterred from seizing property that is of great value to owners, but perhaps of only marginal use to the prosecutors' case. Currently, the government can afford to ignore the costs imposed on innocent owners completely, unless the latter happen to have a lot of political clout. That is both unfair to property owners and likely to promote the use of investigative tactics whose costs to the innocent outweigh their benefits in promoting the conviction of the guilty.
UPDATE: It is worth noting that these cases seem to bring out some of the worst instincts of both conservative and liberal judges. The liberals tend to support the government because of their general tendency to devalue constitutional property rights. The conservatives do the same because of their general reluctance to support anything that might impede law enforcement. That said, three liberal justices signed on to Justice Stevens' excellent dissent in Bennis. One conservative (Justice Kennedy) also voted that way. Another (Justice Thomas) wrote a concurrence suggesting that the case should be construed relatively narrowly. Hopefully, the Court will limit or overrule Bennis in a future decision. I suppose I should emphasize that the above points about conservative and liberal jurists don't necessarily apply to conservatives and liberals more broadly. For example, many liberals outside the Court were outraged by the Kelo decision, which was supported by all four liberal justices on the Court itself.
UPDATE #2: Economist David Friedman (son of Milton) makes some good points in his comment on this post.
The Genetic Information Nondiscrimination Act:
Today, the House of Representatives passed the Genetic Information Nondiscrimination Act (GINA) by a vote of 414-1, joining the Senate, which passed the bill last week 95-0. In addition to prohibiting discrimination in employment on the basis of genetic conditions, GINA prohibits health insurerance companies from denying coverage or determining premiums based on a customer's gentic information, which is defined broadly to include family history of health conditions.
The Act provides important protections, not only for customers in the individual health insurance market, but also for small employment groups with one or more individuals who have a high likelihood of suffering a genetically-linked illness. (Federal law prohibits health insurers from discriminating against any individual in the group insurance market, but the expected costs of covering the individual can be spread equally across all members of that group). The Act also will remove a disincentive for healthy individuals to take genetic tests because of fear that knowing the results will cause insurability problems.
In an op-ed piece in last Saturday's Los Angeles Times (here), I argue, however, that the law does not go far enough, because it still allows discrimination in coverage and pricing of insurance based on any conditions the individual customer has or has had in the past. Hopefully, GINA will be the initial step toward a legal regime in which health insurance premiums are community rated within age bands, with differential pricing allowed for risky behaviors that are individually controllable (such as smoking) in order to minimize moral hazard.
The Record-Setting Presidency of George W. Bush:
CNN.com has the scoop.
Thursday, May 1, 2008
Victims of Communism Day:
Today is May Day, the primary holiday of communist parties and regimes. Last year, I put forward my proposal to transform May Day into Victims of Communism Day, in honor of the 100 million or more people murdered by communist regimes in the USSR, China, Cambodia, and elsewhere.
In this short 2005 article, political scientist Rudolph Rummel, a leading authority on mass murder, summarizes the massive death toll of communism in the twentieth century, which he conservatively estimates at some 110 million dead. This figure greatly exceeds the deaths attributable to all of the 20th century's wars combined, as well as all the deaths caused by the 20th century's many brutal noncommunist dictatorships. As Rummel also points out, the communists also have the dubious distinction of establishing the single most lethal regime relative to the size of the population it ruled: Pol Pot's Cambodia.
In addition to honoring the victims of communism, the proposal can also serve as a much-needed reminder of the dangers of allowing the state to seize control of the economy and civil society - just as Holocaust Memorial Day serves as a useful reminder of the dangers of racism and anti-semitism.
UPDATE: As I mentioned in my original May 2007 post, it is likely that this idea was proposed by others first, so I don't claim originality for it. Catallarchy/Distributed Republic, for example, has been commemorating the victims of communism on May Day for several years. Unlike me, they have not, as far as I can tell, proposed that Victims of Communism Day be made an official holiday similar to Holocaust Memorial Day; they instead simply commemorated the day on their blog. That said, their idea was similar enough to mine that I don't object if they take the lion's share of the credit for it. I wouldn't be surprised if someone else came up with a similar idea even earlier. What should matter is the merit of the proposal, not who came up with it first.
Happy Birthday IV: When is the use of an anecdote irresponsible?
Taking a breather from arcane copyright doctrine, here's an issue that's not specific to copyright, or even to law at all. What is the proper role of anecdotes in making policy arguments?
Suppose that I'm arguing that the term of copyright is too long, and I say, "because of Congressional pandering to special interests in Hollywood, even 'Happy Birthday to You' is still under copyright!!!" Why is this example likely to carry particular persuasive force? In part, because the audience probably makes false assumptions. "Happy Birthday to You" is one of the few songs that most people still learn as children, at home, from family and friends, far from the commercial world of iTunes and Vh1. That will cause many people to lump it with songs like "Mary Had a Little Lamb" and "Twinkle, Twinkle, Little Star," though the latter are considerably older. And many people may also assume that if "Happy Birthday to You" is under copyright, the copyright owner could demand a license for singing it at a family birthday party — outrageous! — though private performances have never been regulated by copyright. I discuss this sort of problem with the use of anecdotes in my article, I can't say that I have the answer.
Taking a hard line, one might say that all anecdotes and examples should be accurate and typical (and not foreseeably misleading) or they shouldn't be used. The requirement of being typical may be impossible to meet, however. Members of a group may be diverse enough that none of them is really "typical," and anecdotes can be misleading in very subtle ways.
Meanwhile, we human beings may be built in such a way that statistics often don't move us enough to take appropriate action. Specific examples, as supplements to numbers and percentages, may actually be necessary to engage us to respond adequately. So it's not clear that minimizing the use of anecdotal argument would even theoretically be optimal, given that we are who we are.
Here's a possible rule of thumb: small deviations of examples from the typical are inevitable, and just need to be accepted; medium-sized deviations should be accompanied with a proviso ("not all cases are like hers"); atypical examples should be avoided; and there should be some effort to figure out how typical an example is |