Saturday, July 12, 2008

McCain and Obama vs. Peaceful Protesters:

That's the topic of my column in today's Rocky Mountain News, starting with an incident Monday in Denver. As the article makes clear, both campaigns appear to be clearly within their legal rights, because they had protesters expelled from places which are not, under current First Amendment doctrine, traditional public fora. But that doesn't mean that either campaign made the right decision.


Law Profs for the Bench:

Rick Hills is proposing a professorial non-aggression pact for judicial nominations of law professors.

Law profs agree to support any academic appointment to the federal district or appellate bench, full stop. Left law profs will endorse, say, Professor Doug Kmiec for the Ninth Circuit when a Republican occupies the White House [but Kmiec endorseed Obama -- JHA]; Right law profs will endorse, for instance, Dean Elena Kagan for the D.C. Circuit when a Democrat occupies the White House.
I'm ready to sign on (even though -- or perhaps because -- I'm quite sure I'd never be a direct beneficiary. But I'd also go Rick one better, and suggest that law professors begin urging an overall de-escalation of judicial nomination fights. In particular, it would be nice if law professors stopped providing intellectual ammunition to Senators and activist groups who wish to dress up their ideological attacks on qualified judicial nominees. In my opinion, the purpose of Senate confirmation for judges (as for ambassadors and many other positions) is to prevent against cronyism, not second-guess the President's ideological preferences.

So, I will support Prof. Hill's non-aggression pact, but I will also support well qualified nominees of either party to the federal bench, irrespective of their ideology. While I suspect I'd prefer McCain's nominees to Obama's, I think the senate should act promptly whomever sits in the White House, and should confirm those who have the objective qualifications to be federal judges or justices.


Chicago Profs Oppose Milton Friedman Institute:

A proposal to create a Milton Friedman Institute at the University of Chicago appears to have created some controversy, as reported here and here. 101 professors at the University signed a letter raising concerns about the new center. In particular, they raised concerns that it would be a "right-wing think tank" and would reinforce popular perceptions that the University of Chicago lacks ideological diversity.

Daniel Drezner has looked into the complaints about the proposed Center, and suggests an alternative explanation for the opposition: "The Milton Friedman Institute will distribute the bulk of its benefits to the department of economics, the law school, and the business school." I suspect Friedman would appreciate Drezner's take, particularly insofar as it applies a Friedman-esque analysis to the Friedman Institute's opposition.


Strange Op-Ed By Chris Hedges: The new FISA amendments compare to last year's Protect America Act by expanding judicial review dramatically, clarifying that the law cannot be used to monitor individuals inside the United States without a warrant, and imposing, for the first time, a warrant requirement on the surveillance of Americans overseas (in addition to the preexisting warrant requirement on the surveillance of Americans inside the United States). It is a major improvement over last year's law from a civil libertarian perspective. So how does former New York Times reporter Chris Hedges describe the new law? Let's take a look:
If the sweeping surveillance law signed by President Bush on Thursday — giving the U.S. government nearly unchecked authority to eavesdrop on the phone calls and e-mails of innocent Americans — is allowed to stand, we will have eroded one of the most important bulwarks to a free press and an open society.

The new FISA Amendments Act nearly eviscerates oversight of government surveillance. It allows the Foreign Intelligence Surveillance Court to review only general procedures for spying rather than individual warrants. The court will not be told specifics about who will be wiretapped, which means the law provides woefully inadequate safeguards to protect innocent people whose communications are caught up in the government's dragnet surveillance program.
  I don't know Chris Hedges, but I'm genuinely curious about whether he has actually read the law. I tend to doubt he has.

Anti-Drilling Group Supports Drilling:

The 1969 oil spill off the coast of Santa Barbara was a major catalyst for environmental reforms, and spurred the creation of GOO! (Get the Oil Out), an environmental group dedicated to opposing offshore oil drilling. But something has changed in the intervening decades.

Thirty-nine years later, GOO! is still around. But this April the group did something astonishing. It publicly supported an oil company's proposal to drill off the coast of Santa Barbara.

Houston-based Plains Exploration and Production Company proposed drilling 22 wells from a platform 4.7 miles from land. It made numerous concessions to the local environmental groups that would curtail drilling in about a decade -- and in the end even the adamantly "no-drilling" crowd agreed that the deal was beneficial for everyone. The Environmental Defense Center, a nonprofit environmental law firm, endorsed the plan. Abe Powell, president of GOO!, told the Los Angeles Times it was "good for the community." Terry Leftgoff, a former GOO! executive director, wrote in the Santa Barbara Independent the deal was "a brilliant proposal that finally gives the public something back: the certain removal of four offshore oil platforms, the decommissioning of a notorious industrial plant, and the reversion of rural land subjugated into oil development back into the public trust as parkland."

When an environmental group formed for the sole purpose of opposing offshore oil drilling warmly embraces a plan to drill off its own coast, you know something important has changed in our culture: Americans have recognized that offshore oil drilling is largely safe.

Environmentally sensitive oil exploration and extraction has been possible for quite some time. The National Audubon Society and a state affiliate first allowed oil and gas development in their preserves decades ago, on the condition that oil companies agreed to various measures to lessen the impact of such development. In one case, Audubon allowed drilling and extraction in a nature preserve too sensitive for tourism or birdwatching. In another, ten years after drilling ended it was impossible to identify where it had taken place.

I first wrote about this in 1991 after interviewing some of the preserve managers. (I can't find the op-eds online, but I found this letter.) As one described it, when Audubon was approached by an oil company, their response was essentially "you can drill if you pay us royalties and can prevent the following impacts." This prompted the oil companies to devote their energies to meeting Audubon's demands, leading to significant innovation.

Government agencies often impose requirements on oil and gas development on federal lands or offshore, but they are rarely so tailored to the specific ecological conditions of a given site. Government agencies are also less adept than private owners at negotiating these sorts of deals, particularly when constrained by broad regulatory requirements. Nonetheless, when oil companies have an incentive to reduce the environmental impacts of oil development, they are often able to do quite a bit.

Related Posts (on one page):

  1. Anti-Drilling "Snake Oil":
  2. Anti-Drilling Group Supports Drilling:

Friday, July 11, 2008

Federal Regulators Take Over IndyMac:

Back in August 2005, at the tail end of the housing bubble (but when many VC readers were still berating me for saying [or, more precisely, siding with the many "doomsayers" who were saying] there was a housing bubble), I pointed out one future source of trouble for the housing and mortgage markets:

Just read that 61% of all new California mortgages this year are interest only, no money down. This is especially important because California (like a few other states, but, unlike, say, D.C. area jurisdictions where about 50% of the new mortgages are interest only) has a law requiring that all mortgages be "non-recourse," i.e., if a mortgagee defaults on his loan, the bank cannot attach any of the mortgagee's other assets, but can only foreclose on the house. If prices drop significantly in the next couple of years, as they likely will (given that only 17% of Californians can now afford the median house), thousands of people are going to walk away from their loans and let the bank foreclose, with no bankruptcy consequences. Sure, it will ruin their credit record, but how much is a good credit record worth? Probably not $120,000 (the negative equity on a $600K loan--median single family home price in California--if prices decline a modest* 20%). Anyway, many of the loans are adjustable with "teaser" rates used to qualify the buyers, who understand that in two years they will have to refinance or sell, because they won't be able to afford the new payments. They are counting on interest rates being lower, or on being able to "flip" the house for more money, and using the proceeds to get "back in the game."

A Conspiracy reader who was an executive at Indymac emailed me that the banks were aware of this possible dynamic, but were confident that home buyers would protect their credit rating at all costs, and wouldn't default on their mortgage unless they really couldn't pay their mortgage, regardless of how far "underwater" they were. This is when I first concluded that the banking industry was out of its collective mind. (And of course, as it turns out, even in "recourse" states, "jingle mail" is an ever-growing problem, and banks rarely try to go after any assets that the borrowers may have).

UPDATE: Part of the problem, from what I can tell, is that the mortgage industry was relying on worst-case scenarios based on default rates from past housing busts, such the early 90s in California, and the 80s in Texas. Yet those were totally different circumstances, not least that those default rates were based on borrowers who generally put 20% down, and thus would think really hard before defaulting, credit rating aside.


Congratulations to Orin,

who not only has two of his articles cited in the Sixth Circuit e-mail privacy en banc, but who has the special privilege of having the dissent deride one of the citations:

Rather than address the facts and law cited by the panel’s opinion, the majority fails to cite one case dealing with electronic communications in the privacy context, instead relying on a single professor’s law review article.

Just goes to show how important that single professor's law review article must be.


Unintentional Self-Parody:

The Dallas Morning News reports:

[At a] special meeting about Dallas County traffic tickets[,] ... [c]ounty commissioners were discussing problems with the central collections office that is used to process traffic ticket payments and handle other paperwork normally done by the JP Courts.

Commissioner Kenneth Mayfield, who is white, said it seemed that central collections "has become a black hole" because paperwork reportedly has become lost in the office.

Commissioner John Wiley Price, who is black, interrupted him with a loud "Excuse me!" He then corrected his colleague, saying the office has become a "white hole."

That prompted Judge [apparently a Justice of the Peace -EV] Thomas Jones, who is black, to demand an apology from Mayfield for his racially insensitive analogy.

Mayfield shot back that it was a figure of speech and a science term.

More from Dallas Morning News columnist Steve Blow: Though Commissioner Price says that it wasn't supposed to be a big deal, and that "it’s unfortunate that Judge Thomas escalated things by asking for an apology,"

Mr. Price isn’t backing down from his initial comment. He said a racially sensitive person seeks to avoid using “black” in its many negative forms.

Mr. Blow rightly condemns Commissioner Price's position ("this kind of hypersensitivity to language really has become counterproductive to racial progress"), but goes on to say: "As a white person, I probably can’t fathom what it’s like for the color of your own skin to be synonymous with -— to quote from the The Synonym Finder -- evil, dirty, criminal, satanic, corrupt, sinister, disgraceful, foul, ghastly." But that's not what "black" in "black hole" represents; rather, it's "black" in the sense of, well, not yielding any light.

And as to Commissioner Price's riposte, quoted by Mr. Blow -- "There are always other terms to use, Mr. Price said, even for black hole. 'He could have just said "a file 13."'" -- well, yes, he could have, if he didn't want to be understood (at least by civilians).

I should note that it's possible that, in some situations, someone may use "black hole" to deliberately insult blacks, just as in some contexts you can use any innocent term with a facial expression, intonation, or contextual cue that makes the term into an insult. But nothing in the explanation from Commissioner Price suggests that this was happening here. For something in a similar vein, see the master/slave saga, discussed here, here, and here, plus the slavishly microbrouhaha. And, of course, who could forget the objection to "big bang" being "offputting to young women" in astronomy (see CNN, June 14, 1993, also quoted online here)?


[Reuters Reports] Federal Discount Window Open to Fannie and Freddie [and then backs off the story].

[According to a Reuters story, reported on CNBC about 2:45pm ET:]The Federal Reserve discount window is now open to Fannie Mae and Freddie Mac. Both stocks, which were down by huge percentages, began climbing. And the Dow has moved from down 250 points earlier today to down 100 points at 2:50ET.

UPDATE: Now Reuters is backing off the story and the DOW, which went positive at about 3:05pm ET, is off 140 points at 3:40pm ET. This week, rumors are flying on Wall Street (there was a phony one about Lehman earlier this week).


"Chipmaker Sues To Silence Security Researchers,"

in the Netherlands. For my thoughts on the First Amendment and speech that reveals security breaches, see my Crime-Facilitating Speech (Stanford Law Review, 2005), though of course the legal analysis would apply only to U.S. lawsuits.


Sixth Circuit Hands Down En Banc Decision in Warshak v. United States: The en banc Sixth Circuit has handed down its decision in Warshak v. United States, the e-mail privacy case I have blogged about. In a majority opinion by Judge Sutton, the court held that the case is not ripe for adjudication; the court therefore vacated the injunction and remanded. Warshak has already been indicted and convicted, the court reasoned, so his e-mail presumably won't be searched again. And even if a search occurs, it's impossible to know what the facts will be when a future search occurs in order to apply the Fourth Amendment to those facts. The case is therefore not ripe for adjudication. Also, there is no hardship to Warshak in not adjudicating the issue now, as he is not currently subject to regulation by the statute and he still has the alternative remedies of a motion to supress and a Bivens action. I think Judge Sutton's analysis is correct, and I'm glad to see the case resolved properly.

  Judge Martin, the author of the original panel decision, dissented. His opinion accuses the majority of not caring enough about the Bill of Rights to reach a decision on the merits. The end of Martin's dissent really turns the rhetoric up "to eleven":
While I am saddened, I am not surprised by today’s ruling. It is but another step in the ongoing degradation of civil rights in the courts of this country. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, — U.S. —, 2008 WL 2520816 (June 26, 2008). History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.
  Judge Sutton's majority opinion offers just the right response:
The dissent’s concern about the “ongoing degradation of civil rights” seems a bit overwrought. The whole point of not deciding the constitutionality of a law in an unripe setting is not to decide it—not to degrade, or for that matter uplift, any constitutional right until we are faced with a concrete, as-applied, challenge to the provision. And if it is true, as the dissent charges, that the majority has a “zeal to uphold the power of the government to intrude into the privacy of citizens”—needless to say, it is not—perhaps we should be commended for restraining ourselves by not making that view the law when we had the chance.
Indeed. I would also add that the basic principle that the original Warshak panel was understood to have established — that users generally have a reasonable expectation of privacy in their e-mails — has now been established without apparent controversy by the Ninth Circuit in Quon v. Arch Wireless.

Fred Phelps, 175 Years Ago:

OK, this wasn't funeral picketing as such, and it was a bit less outrageous than Phelps' picket signs. But only a bit.

George Beals, age 19, died of a lingering and painful disease, possibly tuberculosis ("consumption"). His father arranged an obituary in a Universalist newspaper, which said,

He was a pattern for the imitation of the rising generation.--He was one who always detested the use of ardent spirits;--he never allowed himself to use vulgar or profane language, and avoided the company of those who did;--he was modest and genteel in his deportment, and gained the love and affection of all who had the pleasure of knowing him.--He never professed any particular tenet of religion, but listened to all.--His sickness was long and tedious. He had many friends who felt anxious for his future fate; and often inquired whether he was prepared for a future state.--He invariably answered them, I know of no action of my life, which causes me the least anxiety;--and God is above the Devil, what have I to fear?--He died as he lived, sensible to the last, full of faith and hope.

Two weeks later, Origen Bacheler, the owner and editor of the Anti Universalist newspaper, decided to publish a rebuttal to an obituary (I italicize the allegedly libelous portion):


The Trumpet of the 10th inst. contains an obituary notice [describing the above notice] .... Now we are authorized to say, that this person, instead of being an example to others, and being free from the use of profanity, was actually habituated to it; that he was known to believe in Universalism; that, on his death bed, instead of saying that God was stronger than the Devil, he renounced Universalism, and gave evidence of a gracious change.

By the foregoing, the public will learn to receive the obituaries of the Trumpet with many grains of allowance....

Lovely: A young man dies, and a stranger's religious fanaticism (apparently shared by the young man's younger brother, who was the source for the rebuttal) leads the stranger to try to publicly correct the young man's obituary by accusing him of sinful conduct. As the prosecutor in the criminal libel prosecution of Bacheler put it, in flowery but sound language, "It was rarest of all that the most vile, the most malignant, the most daring, would strip off those little flowers which the hand of affection had strewed over the grave of their loved one, and scatter in their stead the rank weeds of opprobrium and disgrace."

The test for a criminal libel at the time was that a defamatory statement was libelous unless it was true, and was made with good motives and for justifiable ends. To my surprise, the jury rendered a not guilty verdict, though "requesting [the judge] to state to Mr. Bacheler that although they had brought him in not guilty, yet they did not approve the course which he had taken ..., but had acquitted him on the ground, that they did not think he had any particular malice against the deceased."

Source: Trial of the Commonwealth, Versus Origen Bacheler, for a Libel on the Character of George B. Beals, Deceased, at the Municipal Court, Boston (Boston, John H. Belcher 1829).


Hands Off Prediction Markets:

John McGinnis fears the federal government may squelch prediction markets.

An obscure government agency will soon decide whether citizens can get hold of information essential to modern democratic decision making. On Monday, the Commodity Futures Trading Commission began to analyze whether to create a safe harbor for prediction markets in the U.S., as these markets would otherwise be hamstrung by the strictures of financial trading laws. The CFTC should create the safe harbor. . .

Federal and most state laws do not generally prohibit gambling, even when the events themselves, like the outcomes of horse races, have no public benefits. Congress should therefore take the additional action of exempting prediction markets from online gambling prohibitions.

It's too bad we do not yet have the prediction market to tell us whether it is likely that the CFTC and Congress will do the right thing.


Choosing Corn Over Conservation:

It looks like the USDA is going to allow farmers to plant crops on land that was set aside for conservation purposes.

"We need more corn. That's all there is to it," said Dave Warner, spokesman for the National Pork Producers Council, one of many agricultural trade groups pressuring Agriculture Secretary Ed Schafer to change the rules of the conservation program to release land into production.

Industry observers expect Schafer to announce his decision imminently. Whatever he decides is certain to be controversial. Environmentalists are decrying the idea of renewing farming on the land, saying that the program represents a huge taxpayer investment in conservation and that expanded cultivation might exacerbate future flooding. . . .

This week, Schafer issued an order allowing livestock to graze on millions of acres of recently flooded CRP land in the Midwest. The emergency action didn't satisfy the food industry. Robb MacKie, president of the American Bakers Association, sent a letter to Schafer on Tuesday saying the emergency grazing "simply is not enough to have any beneficial impact on high food prices."

CRP lands are also the subject of a legal dispute playing out in federal court in Seattle. This week, a federal judge there sided with the National Wildlife Federation and issued a temporary restraining order against the USDA to stop an earlier initiative that allowed limited grazing and haying on CRP lands. The merits of the case will be heard next week.

Given the high price of corn and other crops, farmers are unlikely to re-enroll their lands into CRP or other conservation programs as their existing contracts expire. (Most conservation programs effectively "rent" the land for a term of years.) This is yet another negative environmental consequence of the nation's political romance with corn-based ethanol.


Kicking the Climate Can:

It is now official. The Bush Administration will not take any action to regulate greenhouse gases before 2009. Instead it is punting the issue to the next Administration. The WaPo reports here.


The New FISA Law -- and the Misleading Media Coverage Of It: I've been studying the new FISA legislation, as well as the press coverage of it, and so far I've found a major disconnect between the two. The MSM is presenting the new legislation as a major expansion of government surveillance powers. Here is how the Eric Lichtblau of the New York Times introduced the Senate's passage of the bill:
  The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.
  The measure, approved by a vote of 69 to 28, is the biggest revamping of federal surveillance law in 30 years.
  But is that true? The new law is very complicated, and I've only been studying it for a few hours. It's quite possible that I'm missing something important. But based on my first reading, the media coverage of the new law strikes me as quite inaccurate.

  As I see it, the new law takes the basic approach of the Protect America Act of 2007 and adds privacy protections and bolsters the scope of judicial review. On the whole, the new law strikes me as pretty good legislation: It nicely responds to the widely expressed fears last year about how the Protect America Act could be implemented. and it ensures that the FISA Court will play a major role in reviewing surveillance of individuals located outside the U.S. Indeed, it seems to me that the new rules create pretty much the regime that critics of the Protect America Act wanted back in 2007.

  So the question is, why is the press coverage painting such a different picture? I think there's a reason, but it doesn't have very much to do with the new surveillance rules. In this post, I want to summarize how the new surveillance rules compare to those under the Protect America Act of 2007, and then I want to consider why the press is reporting the new law as it is.

  First, a bit of background. The legal rules for monitoring individuals outside the United States has become an important issue under FISA because many foreign Internet and telephone communications are now routed through the United States in the course of delivery. For example, a person in Pakistan who calls another person in Pakistan might have the call routed through New York. This creates an opportunity for monitoring of that communication from inside the network of the provider located in New York.

  The legal question is, what kinds of rules should govern monitoring directed at targets overseas from inside the United States? The original FISA of 1978 wasn't supposed to regulate surveillance of individuals outside the United States, but then back in those days you didn't have foreign to foreign calls routed through the U.S. So what happens when technology changes?

  The Protect America Act of 2007 required the Executive to submit plans for monitoring individuals overseas to the Foreign Intelligence Surveillance Court (FISC). The FISC would then determine whether the monitoring plans were “directed at a person reasonably believed to be located outside of the United States.” So long as it was not “clearly erroneous” that the proposals were “reasonably” so directed, the FISC had to approve the monitoring. The monitoring could occur for one year. See 50 U.S.C. §§ 1805B (2007). But the Protect America Act sunset after six months, requiring new legislation to be passed if Congress wished to authorize such surveillance in the future.

  At the broadest level, the new Act continues the basic approach of the Protect America Act while adding more judicial review in significant ways. As in the Protect America Act, the government submits monitoring plan to the FISC as to whether the monitoring plans were "directed at a person reasonably believed to be located outside of the United States." The FISC then reviews the plan to see whether it does so or not. At the same time, it looks to me like the new law has considerably more judicial review than the Protect America Act.

Related Posts (on one page):

  1. Assessing Surveillance Laws in An Era of Sunset Provisions:
  2. Strange Op-Ed By Chris Hedges:
  3. The New FISA Law -- and the Misleading Media Coverage Of It:

Responding to Bogus on His Arming America Review.--

Carl Bogus responded to an earlier post of mine. I told this story of his behavior immediately before he published a review of Arming America in the Texas Law Review:

I remember during the dispute over Arming America that Bogus was writing a review and sought my permission to cite one of my unpublished drafts. Before I called him, I confirmed that his own university library’s special collection had a copy of the published Providence Probate records that Michael Bellesiles had used – and grossly misrepresented in Arming America. I called Bogus, gave him the name and number of the reference librarian I spoke with, and tried to get Bogus to spend an hour in his own university’s library confirming that there were major problems with Bellesiles’s account before Bogus finalized his review. Bogus refused even to look at the contrary evidence I urged him to examine, a decision that in part led him to seriously misjudge the work he was reviewing.

Bogus responded to this story, not by disagreeing with anything I said, but merely by quoting some noncommittal statements from his review.

The book review I wrote stated: “A potentially damaging attack on Bellesiles probate data has been launched by James Lindgren and Justin Lee Heather. Lindgen and Heather argue, first, that probate records may not be a reliable reflection of how many people owned guns, and second, that Bellesiles has underrepresented the number of guns in the probate records. As of this writing, the Lindgren-Heather paper has not been published and Bellesiles has not responded in writing.” I provided a web address where Lindgren and Heather’s study could be obtained, and added: “Though they restrict their analysis to probate data, their criticisms about Bellesiles’s methodology are sufficiently serious to have potentially broader implications. A rush to judgment at this stage, however, would be unwise and unfair.” Carl T. Bogus, “Shootout,” 79 Texas L. Rev. 1641, 1652 (2001).

If this is all that Bogus had said on the relevant matters covered directly and by implication in his review of Arming America, perhaps that might have been adequate. But it’s worth quoting at length from Bogus’s review in the Texas Law Review to get a feel for his opinion of the book, Arming America, and his spin on the dispute over its veracity.

Bogus opened the review with this gushing praise:

It is as if Michael A. Bellesiles has overturned a table on which rested everything we thought we knew about guns in early America. The images of the rifle hanging over every American mantle; of settlers depending upon their guns to hunt and feed themselves and protect their communities against Indian attack; of Americans becoming skilled sharpshooters on farms and in the backwoods; of the colonial militia rushing from their homes with muskets in hand to face the Redcoats; of the American founders believing in an individual right to keep and bear arms; of a "wild west" inhabited by gun-toting cowboys--all of this, and more, turns out to be myth.

Bellesiles, a history professor at Emory University, is not merely upsetting the conventional wisdom of the lay public, however. What makes Bellesiles's work so important is that his evidence--much of it from his own original research--challenges what historians have traditionally believed as well.

Bellesiles explores the development of an American gun culture by following the hardware. He relentlessly focuses on the guns themselves: how many there were, who made them, who had them, where they were kept, and how they were used. Two broad themes emerge. First, rather than being symbols of rugged individualism or liberty, guns in early America were considered community property and subject to strict governmental regulation--far stricter than anything imagined today. Second, rather than being ubiquitous in the American frontier, there were, in fact, few guns in America until after the Mexican War. . . .

Bellesiles's research sheds new light on exactly how many Americans owned firearms. Bellesiles read 1,200 probate records from the frontier of northern New England and western Pennsylvania during the period from 1765 to 1790. These records are considered highly reliable because the practice was to list everything, right down to broken cups and bent spoons. Only 14.7% of the records include firearms. Moreover, fifty-three percent of the guns are described as broken or otherwise dysfunctional.

Compare Bellesiles's discovery that only seven percent of homes had working guns at the founding of the Republic with the fact that more than forty percent of American homes have guns today. . . . Bellesiles convincingly shows that few Americans had guns until after the Mexican War.

The image of an armed civilian militia also implodes under the weight of the evidence. . . .

Bellesiles's book is widely considered a work of major significance. It has been warmly greeted by some of the nation's most distinguished scholars including Garry Wills, whose review appeared on the cover of the New York Times Book Review, Edmund S. Morgan, who reviewed the book for the New York Review of Books, and Richard Slotkin, who reviewed it for Atlantic Monthly.

Garry Wills later told me that the book is a “fraud,” and in a CSPAN2 interview, he said that "People get taken by very good con men." Edmund Morgan also wrote me a letter that was less blunt than Wills, but made clear that he no longer viewed the book as correct. (Morgan based his change of heart on the same draft article by Justin Heather and me that Carl Bogus had read.)

Many of the claims that Bogus endorses in his review are false, including many of the ones quoted above. The sad fact is that, when Bogus published his review, many of these falsehoods had already been shown to be false by me, Clayton Cramer, Dave Kopel, Joyce Malcolm, and others. For example, I had already shown that the 14.7% claim that Bogus endorses was mathematically impossible.

Bogus begins his last paragraph of his Texas review with this bold statement:

Arming America is undoubtedly the most important historical work ever produced about guns in America. Bellesiles's thesis that there were few guns in early America and that America did not develop a gun culture until after the Mexican War challenges beliefs that the gun-rights community has long considered sacred.

Yet perhaps most important for today’s dispute was Bogus’s suggestion in his review that Bellesiles is being attacked so vigorously because he was telling the truth:

But the most telling indicia of the book's importance have come from those who have greeted it, not with applause, but with passionate attacks. Few books provoke this much hostility. It is as if the gun rights community decided that this was a book that had to be discredited. One is reminded of Plato's statement: "[t]hey deem him their worst enemy who tells the truth."

It is, however, truth that the attackers' claim is at stake. [Bogus then criticizes Clayton Cramer, Dave Kopel, and Joyce Malcolm, among others.]

So Bogus puts the truth of Bellesiles’s work directly at issue, but he was unwilling to go to his own library (after I confirmed with his librarian that they had the same records) to try to determine whether Bellesiles was, indeed, telling the truth. Then Bogus had the gall to slime Cramer, Kopel, and Malcolm (but not me) by suggesting that they were so worked up because Bellesiles was telling the truth about guns (if Bogus has ever publicly apologized to them, I’ve missed it).

As I explained at the time to Bogus, the published Providence records that Bellesiles used in Arming America had good indices. One had only to spend an hour or so looking up estates with guns to see that he had systematically misrepresented:

the condition of guns (contrary to Bellesiles’s claims, very few were listed as old or broken);

the gender of the decedents (Bellesiles claimed that they were all male estates);

the gender of gun owners in colonial probate inventories (contrary to Bellesiles’s claim that no women owned guns in probate inventories, when one Providence woman owned many guns);

the collective ownership of guns (Bellesiles claimed that many guns in Providence estates were listed as “King’s Arms” or “Queen’s Arms” and thus owned by the government, when only one of the many scores of guns was so listed); and

the existence of wills (Bellesiles claimed to have counted guns in over 100 wills that never existed because the decedents died intestate).

If Bogus had actually cared enough to check, it would have been obvious to him that Bellesiles was claiming in Arming America to have read dozens of wills that never existed, because the wills were not included in the probate files and the decedents were explicitly identified as dying without making a will. One doesn’t have to have any specialized knowledge to see that in dozens of cases Bellesiles's analysis was based on non-existent documents.

And the problems with the Providence Records went to issues central to the book and to Bogus's review: what condition guns were in, whether they were collectively owned, whether they were collectively stored, what sorts of individuals owned them, whether they were widely owned, whether they were too expensive to be widely owned, whether probate records were complete, and –- most importantly — whether Arming America was based on nonexistent or systematically misread sources.

But I couldn’t get Bogus to take even a cursory look at the evidence in his own library. Ultimately, Bogus's refusal to check caused him to write one of the most embarrassingly mistaken book reviews ever published in an American law review.

Bogus’s review not only raised the issue of the truthfulness of Bellesiles’s work, but quite irresponsibly suggested that particular pro-gun scholars were criticizing the book because it told the truth about guns, a grossly unfair position for a reviewer to adopt while he was refusing to take even minimal steps to inquire into the truthfulness of the work he was reviewing. As Clayton Cramer mentioned in comments to Bogus's response, Cramer had put scans of source documents up on his website, but law professors such as Bogus appear not to have been any more interested in them than he was in the Providence records.

Now Bogus has the nerve to complain about my recounting my efforts to save him from his embarrassing mistake, a complaint that lacks a denial of any of the facts that I accurately recounted.


Thursday, July 10, 2008

John McCain pisses on the third rail.--

John McCain recently called Social Security an "absolute disgrace." It is, of course, but politicians aren't supposed to say so.

Josh Marshall is on the case (tip to Kaus):

Okay, when last we checked in on the McCain Social Security is an "absolute disgrace" front, we asked you let us know if any journalist got a chance to put the question to McCain. And TPM Reader DB just flagged for me the fact that ABC's Jake Tapper managed to get an answer.

Jake runs through the play-by-play to this point and then puts the question to McCain spokesman Brian Rogers.

Remember, here's the quote.

"Americans have got to understand that. Americans have got to understand that we are paying present-day retirees with the taxes paid by young workers in America today. And that's a disgrace. It's an absolute disgrace and it's got to be fixed." . . .

And here's the explanation from McCain's guy Rogers, as elicited by Tapper ...

McCain spox Brian Rogers says that "the disgrace is our failure to fix the long-run imbalance in Social Security — a failure of leadership evidenced by our willingness to kick to problem to the next generation of leaders. He's also describing the looming and increasing demographic pressures confronting the Social Security system and Washington's utter failure to address it."

Now, this goes against the plain meaning of the words. But everybody has words come out the wrong way sometimes, or they say things they don't really quite mean. IN other words, if it's just tripping over your words, who cares. But digital video recording is a wonderful thing. And that's why we can know pretty clearly that Rogers' explanation is bogus and that this is precisely what McCain meant.

The townhall meeting where McCain said Social Security was "an absolute disgrace" was on Monday in Denver. Just yesterday McCain went on CNN and said more or less exactly the same thing on CNN.

In response to a question from CNN's John Roberts, McCain said,

"Let's describe it [i.e. Social Security] for what it is. They pay their taxes and right now their taxes are going to pay the retirement of present-day retirees. That's why it's broken, that's why we can fix it."

Social Security is in some respects a disgrace (it should become more of a pension system and less of a welfare system), but whether it will go bankrupt in a few decades depends highly on the assumed growth rate of the US economy. With much of Asia, South America, and Eastern Europe on a long-term upward trend, I'm getting increasingly less pessimistic about the financial future of Social Security.

Merits aside, I consider McCain's statement to be a political gaffe, because by pissing on the third rail of politics, McCain gives his opponents ammunition for future attacks.


Barack Obama's Four Languages.--

Via Instapundit and Kaus, I read that Barack Obama couldn’t speak Spanish. But in 1997, he claimed to a reporter that he could speak a barely passable Spanish, one of four languages that he claimed varying abilities to speak:

Chicago Daily Law Bulletin, April 26, 1997


David Heckelman

"Living in Indonesia was a fascinating time," Obama said, "because it gave me a good sense of what the Third World was like and what an emerging nation goes through." He learned to speak the Indonesian language while living there.

"I also speak a barely passable Spanish, and sometimes a barely passable English," he said, having studied the Spanish language and English literature at Occidental College in Los Angeles and at Columbia University in New York.

"I have a smattering of Swahili," he added, "because my father was from Kenya." He said he had traveled to that country to learn more about his father, who had died in 1980 and whom he had not known very well.

I know that Obama is more fluent in English than most of us.

Does anyone know how fluent he is in his other three languages, especially Spanish?


License and Exam Required to Speak for Money About History:

The Institute for Justice is challenging Philadelphia's new requirement that tour guides be licensed and take special history and geography exams. IJ seems to be exactly right on this: Such a requirement violates the First Amendment.

The government surely couldn't require that authors of history books or travel books be licensed and take exams. Nor can it require the same as to producers of travel documentary DVDs, or actors in theaters that present history/geography-related informational entertainment.

Such restrictions would be seen as unconstitutional content-based prior restraints, even if they don't purport to directly control (say, through loss of license) what is said: They bar speakers from speaking until a license is received, they are justified by the desire to prevent speech with a bad content, and they apply only to speakers who would convey a particular sort of content (history or geography in my hypotheticals).

The answer isn't any different for tours, which are likewise a form of history-/geography-related infotainment. They are speech in the quite literal sense of the word, and they are no less constitutionally protected than are books, videos, or plays.

None of this speaks to content-neutral requirements aimed at non-content-related harms, for instance requirements that theaters provide ample fire exits, or that tour operators use only licensed drivers and carry adequate liability insurance. But the Philadelphia requirements, as I mentioned, apply to speech of a particular content (tours that "provides information on the City’s geography, history, historic sites, historic structures, historic objects or other places of interest"), and they are aimed at preventing allegedly misleading content. To make things even clearer, an exemption for tour companies that educate their own guides is applicable only after a content-based judgment on the city's part -- "[i]f the Department determines that the educational program and method of evaluating tour guides is equivalent to or exceeds the written examination required by this Section" -- though even if this exemption was removed, the rest of the ordinance would still impose an unconstitutional content-based prior restraint.

Just to anticipate some rebuttals: (1) Tour guide speech doesn't fit within the "commercial speech" zone of lowered protection, because that zone basically covers only commercial advertising, not speech sold for money (or else ordinary books, newspapers, movies, plays, and the like would generally be "commercial speech" so long as customers had to pay for them). (2) Nor can such licensing and testing systems be justified by general consumer protection rationales, or by a theory that sellers of speech are engaging in misleading advertising when they promote "historical tours" that teach bad history; again, consider the analogy of books, videos, and the like. (3) Licensing and testing is of course commonplace for professional-client business relationships, including ones that chiefly consist of speech, such as lawyer-client or psychotherapist-client relationships; but the premise there is that these involve personal advice aimed at a particular person's situation, and usually in high-stakes contexts -- they surely don't apply to tour guide / patron relationships any more than to author / reader relationships. (4) Naturally, the government as employer may impose various credentialing requirements on employees who talk on its behalf, but that's not what's going on here.

If the government is really worried about tourists' being misled, and the problems not being resolved through market pressure (tours, after all, don't like online criticisms, or people telling their hotels' concierges what a bum recommendation the concierge had given), the government can easily set up an optional "Seal of Approval" system; and tours that get the Seal will surely promote it as a sign of superiority over others that don't have the Seal. But mandatory content-based licensing and examination requirements for speakers are unconstitutional, and a very bad precedent that could easily be extended to other classes of speakers as well.


Trouble at the North Pole:

The WSJ reports on conflict among Santa impersonators.

The Amalgamated Santas, one of the nation's largest Santa groups, are dealing with a schism in their ranks. The rift has left burly bearded men accusing one another of bylaw violations, profiteering and behaving in un-Santa-like ways. Some Santas have filed complaints of wrongdoing against others in Kentucky and Pennsylvania.

The once-fraternal Santa impersonators began to split last year when a power struggle unseated their top Santa and most of his board of directors. Further polarizing the Santa world, new splinter groups have formed to woo disaffected Clauses and their allies. The new Fraternal Order of Real-Bearded Santas, for example, also welcomes "affiliates of Mrs. Clauses, Designer Beard Santas and Elves."


Laughter at the Supreme Court:

Funny article from the Weekly Standard.


Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices -- A Response to Eugene:

Yesterday Eugene was kind enough both to post a link to an essay with Mitu Gulati that I just posted and to make thoughtful comments on it. I appreciate both the posting and the comments – a big part of the fun of being an academic (or blogger) is discussing the merits and demerits of one’s ideas.

Eugene’s central point is his first one: the benefits to the candidate’s opponents of finding dirt on an announced choice are greater pre-election than post-election, because the opponents know that they might torpedo not merely the nominee but also the presidential candidate himself. I agree that the potential benefits to a candidate’s opponents of attacks on a candidate’s nominees are greater pre-election than post-election. But so are the potential costs. I will use McCain as my example, since he is behind in the current polls and thus has a greater incentive to try to shake up the race. If McCain’s opponents are perceived as unfairly attacking candidate McCain’s nominees, the public is likely to attribute the unfairness to Obama. Obama probably won’t persuade many people if he tries to say that the attacks were independent of him – people will likely believe that his people were involved in it, just as most voters believed that George H.W. Bush was involved in the Willie Horton ad. Indeed, if Obama tries to distance himself from attacks on McCain’s nominees, voters may see that as him trying to weasel out of responsibility. In other words, in the crucible of an election, when the battle between two opposing ideologies are personified in a race between two individuals, the benefits and costs of everything relating to the campaign are received/borne by those two individuals.

Now, it still may be that campaigns decide that a particular attack will win over more persuadable voters than it will deter. That’s the only cost and benefit that matter to a campaign – increasing your vote count and/or decreasing your opponent’s – and we can all imagine attacks that we think will work. But those things are very tricky to figure out in advance, and sometimes they blow up in the face of those peddling the information. It wasn’t an accident that John Edwards pointedly noted that Dick Cheney’s daughter is a lesbian – I’m sure he thought it would undercut Cheney. But my sense is that it cost his ticket more votes than it gained them. Or think about rumors that have actually circulated about the two existing candidates. My sense is that “Obama is a secret Muslim” has cost McCain more votes than it has Obama (because those who believe were largely going to vote for McCain anyway, and many in the middle find it distasteful for Obama’s opponents to try to stir up passions in this way). Or think back to the whispering campaign in 2000 that McCain was brainwashed when he was a prisoner of war in Vietnam. Some people spread it around in an attempt to tank McCain, but I think it likely turned off more people than it attracted.

Having said all that, I think that Eugene is correct to say that, pre-election, Presidential candidates are going to want to name people who are squeaky clean. The examples I gave in the previous paragraph are of attacks that many/most people would regard as unfair. But lots of aspects of one’s personal life (e.g., whether you have sex with prostitutes, or solicit sex in men’s bathrooms) are considered fair game, and presidential candidates are going to avoid people who seem to have any skeletons in their closet. This will lead to a preference for pre-election nominees who can credibly claim to be squeaky clean.

One way to achieve this is for the potential nominee or the campaign to hire an independent investigative firm to check her background. Eugene suggests that a campaign won’t find everything, but I suspect that Kroll will. Indeed, I imagine that Kroll will do at least as good a job as the FBI. But if I’m wrong about that, then the FBI could perform the background checks. They do such checks routinely, and this would just be moving up the time for a few of those checks. Eugene mentions that candidates might be worried about a hostile Administration getting information from the FBI. First, the notion of a hostile Administration releasing information in advance of a nominee’s announcement is in tension with the suggestion that opponents would want to wait to release harmful information until the announcement. Second, if information about an FBI background check were released to the public in advance of an announcement, the presidential candidate would (fairly) express his outrage at the Administration’s violation of the FBI’s processes. And I suspect that the charge would be effective – people do not like the idea of the FBI playing politics. The hostile Administration could try to remove its fingerprints from the leak. But, as with the release of unfair attacks, people will attribute the attacks to the party that benefits, and will associate that party (naturally enough) with the party’s presidential candidate.

Failing all of the above, a potential nominee could credibly claim to be squeaky clean based on a different sort of background check – the scrutiny that comes from running for office or holding other important political positions. Someone who has recently run for office can point out that her background was extensively researched by political opponents and the press, and that they found nothing. So, insofar as private or FBI vetting is unattractive, pre-election selection will tend to favor existing politicians for vetting reasons. As we note in the essay, we think that pre-election selection will favor existing politicians for another reason – presidential candidates will want to name people with a significant following (in the hope that are sufficiently popular to bring some persuadable voters to vote for the presidential candidate), and people with such a following will tend to be existing politicians who, not coincidentally, have already been subject to much scrutiny.

The larger point is that a presidential candidate will engage in a benefit/cost analysis: if he decides that the benefits to announcing a popular nominee are greater than the costs of vetting (the monetary costs will be relatively low, so we are mainly talking about the likelihood of the vetters missing something), then he will do it. For a candidate who is behind in the polls and is going to lose unless he shakes up the race, the benefit of attracting even a small percentage of voters in swing states will loom very large. If it looks like you are going to lose anyway in a winner-take-all game, your incentive is to start taking some risks. The worst that will happen is that you’ll lose, and you’re already on track to do that. And don’t forget the benefit to the voters, which is our real motivation in our essay: we as voters will learn more about the presidential candidate and the policies that the candidate’s team will likely pursue.

This post is already too long, so I'll make just one more point: it is true that the scrutiny of the future decisions made by those named as potential appointees will be very great. But right now we live in a world in which lots of decisionmakers – and most troublingly judges – may trim their sails (or, worse, change their decisions) in order to improve their chances for nomination. I would prefer a world in which I know the person whose work we need to scrutinize (the person whose is named for a position pre-election) to one in which a dozen or more politicians or judges are secretly auditioning for that same position. And if the nominee takes a leave of absence, that’s fine with me. Any way I slice it, I prefer that transparency to the opacity of a bunch of judges trying to outdo each other in currying favor with a new President.

Related Posts (on one page):

  1. Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices -- A Response to Eugene:
  2. Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices:

Voter Fraud in Alabama?

The NYT has an interesting story about a voter fraud investigation in Alabama.


"No Beer, No Civilization":

George Will thinks some folks underestimate the importance of beer.

UPDATE: Professor Bainbridge thinks it's really "No Wine, No Civilization." Redheadlaw7 likes that story better.


The Second Amendment and Sentence Enhancements for Firearms Use or Carrying in Connection With Crimes:

Another early post-Heller case, Chaleunsak v. United States, 2008 U.S. Dist. LEXIS 50852 (M.D. Tenn. July 1), quickly disposes of a challenge to 18 U.S.C. § 924(c)(1), which provides a multi-year enhancement when someone "during and in relation to any [federal] crime of violence or [federal] drug trafficking crime" "uses or carries a firearm":

Next, Chaleunsak contends that the § 924(c) charge was unconstitutional because he had a Second Amendment right to keep and bear arms. This claim is barred by the appellate waiver contained in the plea agreement. Even if the claim is not barred, the Sixth Circuit rejected the same contention in United States v. Helton, 86 Fed.Appx. 889, 892 (6th Cir. 2004) (holding § 924(c) constitutes reasonable limitation on defendant's Second Amendment rights). Consequently, this claim will also be denied as without merit.

Helton, though, is not binding precedent even within the Sixth Circuit (that's why it's in Fed. Appx. and not F.3d). It's also pre-Heller, though at least it doesn't rely on the states'-rights/militia-rights theory that Heller rejected; here's the relevant excerpt from Helton:

Finally, Helton urges us to adopt the reasoning of the Fifth Circuit's opinion in Emerson, and to hold that § 924(c) unduly infringes on Second Amendment rights. Emerson, of course, is not binding on this court, and, in any event, we note that it contemplates that Second Amendment rights may be subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Emerson, 270 F.3d at 261. Because we agree with the district court that § 924(c) constitutes just such a reasonable limitation, Helton's Second Amendment claim must fail.

So it seems to me the district court should have done its own analysis, even a cursory one, rather than just relying on the nonprecedential and cursorily reasoned pre-Heller decision in Helton.

As it happens, though, there is a good deal of caselaw on the subject of how an individual right to bear arms should affect sentence enhancements for using or carrying a firearm in connection with a crime: It's chiefly from the Washington Supreme Court, which for the last two decades has handed down a bunch of decisions under its state constitutional right to bear arms provision. I don't endorse them all, but at least they are a substantial body of law with a decent amount of analysis. Here's the most recent one on sentence enhancements, State v. Neff, 181 P.3d 819 (Wash. 2008):

A court may add time to a sentence if a defendant was armed with a firearm while committing a crime. RCW 9.94A.533(3). A person is armed while committing a crime if he can easily access and readily use a weapon and if a nexus connects him, the weapon, and the crime. State v. Schelin, 55 P.3d 632 (2002); State v. Valdobinos, 858 P.2d 199 (1993).

This nexus requirement is critical because "[t]he right of the individual citizen to bear arms in defense of himself, or the State, shall not be impaired ...." Wash. Const. art. I, § 24. The State may not punish a citizen merely for exercising this right. The State may punish him for using a weapon in a commission of a crime, though, because a weapon can turn a nonviolent crime into a violent one, increasing the likelihood of death or injury.

When a crime is a continuing crime — like a drug manufacturing operation — a nexus obtains if the weapon was "there to be used," which requires more than just the weapon's presence at the crime scene. This potential use may be offensive or defensive and may be to facilitate the crime's commission, to escape the scene, or to protect contraband. In every case, whether a defendant is armed is a fact specific decision.

Since the issue is fact specific, the facts and holdings of our prior cases are helpful. In State v. O'Neal (2007), officers searched the defendants' methamphetamine laboratory. Besides evidence of drug manufacturing, the officers found over 20 guns, body armor, night vision goggles, and a police scanner. A jury found the defendants guilty of manufacturing drugs and added a firearm enhancement. We affirmed the firearm enhancement. Since the weapons were easily accessible to protect the drugs, and since the defendants kept a police scanner in the laboratory, the jury could find that the defendants used the guns to protect the drugs, and so we upheld their conviction.

In State v. Eckenrode (2007), the defendant called the police, alerting them to an intruder in his house. He told the dispatcher he was armed and ready to shoot the intruder. When the police arrived, he was outside his home, sitting on his porch. Police investigated and found he was growing marijuana and had two firearms in his house. A jury convicted him of drug charges and gave a firearm enhancement. We affirmed his conviction and enhancement. The defendant told the dispatcher he was armed. Police found two weapons, one loaded, and a police scanner in the house. Under those facts, a jury was allowed to infer that the defendant armed himself to protect his criminal enterprise and so was allowed to find him armed while committing the crimes.

In Valdobinos, by contrast, police arrested the defendant when he offered to sell cocaine to an undercover officer. They searched his house, finding cocaine and an unloaded rifle under his bed. A jury convicted him of drug charges and a firearm enhancement. We reversed the enhancement, holding the jury could not infer from an unloaded rifle near the cocaine that the defendant was armed. Notably, however, no evidence indicated the gun was in the house to protect the drugs, as indicated by the presence of loaded weapons and police scanners in O'Neal and Eckenrode.

Here, the trial judge found that "[i]n the defendant's garage the Sheriff's department recovered ... a loaded Smith and Wesson .357 handgun, a Colt .45, [and] a Davis model P.380 firearm." He found Neff "was armed because the guns ... where [sic] readily available for offensive or defensive purposes." On these findings, he held "[t]hat defendant was armed with a firearm while he was manufacturing methamphetamine." Based on the record, a rational fact finder could agree. When they searched Neff's garage, police found two loaded pistols in a safe, which also contained four bags of marijuana. Neff held the keys to the garage. The police found a third pistol hanging from a tool belt in the garage's rafters. While it is unclear from the record whether Neff could easily reach the gun, we construe the fact in the State's favor. Finally, the officers found two security cameras and a monitor in the garage on which to view live feeds. An officer testified that the monitors were for countersurveillance.

It seems to me that the Washington Supreme Court's rule — requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn't fired or brandished) from protected possession of a gun even when a crime is in progress — is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of "nexus" requirement. But in any case, the deeper point is that some of these novel Second Amendment questions aren't novel right-to-bear-arms questions, because state courts have dealt with them under many of the 40 state constitutional provisions that clearly secure an individual right to keep and bear arms in self-defense.


The AMA, Licensing, and African-American Physicians:

The American Medical Association is reportedly going to apologize today for its history of discrimination against African American physicians. I doubt that this apology will include any reference to the fact that the AMA's control of the physician licensing process suppressed the supply of black doctors for decades. Here is a relevant excerpt from my book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal (read reviews here):

Once the AMA took control of licensing procedures, state physician licensing laws began to have marked effects on the number of black doctors. Most important, states ... forced five of the seven existing black medical schools, which educated most black doctors, to close. ... [T]he charitable foundations that supported black medical schools cut off funds to these school, and instead directed their philanthropy to the two black medical schools that survived, Howard and Meharry. Even those two schools were in danger for a time of losing their accreditations.

If licensing officials had taken the interests of the black community to heart, they could have temporarily bent standards in order to allow the other black schools to catch up. Despite [Abraham] Flexner's [author of the influential Flexner Report on medical education] dismissal of these schools as worthless, approximately half of their graduates had been able to pass their states' licensing examinations, and several of their graduates became prominent physicians.

Alternatively, licensing authorities could have pressured the other medical schools to admit black students, or at least create parallel programs for blacks. But the AMA, which controlled the licensing process, was concerned mainly with the interests of its members, who were, by strict rule, all white. Most AMA members were indifferent to the shortage black physicians, and some southern white doctors resented even the minimal competition they received from blacks....

Moreover, there was opposition in the South to allowing blacks to serve as medical personnel at all. Mississippi authorities were reputed to routinely fail black physician and dentist candidates, especially if they were not from the South....

Meanwhile, ever-increasing pre-medical educational requirements made it difficult for students from impoverished backgrounds to achieve the financial wherewithal to attend medical school. Flexner argued that his recommendations for additional pre-medical education would not discourage poor students, because non-profit medical schools, subsidized by foundations and alumni, would be able to offer six years of education for the price that for-profit schools charged for four years of education. Apparently, Flexner ... was not familiar with the concept of opportunity costs....

Not surprisingly, after 1910, the percentage of black doctors, which had been rising, leveled off. Because of the medical establishment's attitude toward blacks, which ranged from indifference to hostility, as late as the 1940s over 80% of black medical students received their education at Howard and Meharry.


Wednesday, July 9, 2008

Thanks for the Concern, But:

My wife, children, and I travel to Israel once or twice a year to visit my wife's family. (We couldn't get a flight that suited our schedule this Summer--Israel is enjoying a record tourist season--but plan to go this Winter.) Perhaps not surprisingly, when I tell people where I'm going they often express concern for my safety.

Fear not! In January 2002, in the middle of the Intifada, a writer pointed out that "the risk of road death in the United States is nearly eight times higher than the risk of death from terrorism in Israel." Multiple that figure by about ten to update things. Moreover, the death rate from road accidents is lower in Israel (I assume because the country is more compact and people walk a lot more--the roads are worse, and so are the drivers), and I'm far less likely to be a victim of violent crime in the Tel Aviv area where I spent most of my time in Israel than in the DC area where I live.

So, if you find out that I'm going to Israel, don't worry about me. But are you sure you want to drive up to the Cape this weekend? I hear the roads are very dangerous! And don't pick up any hitchhikers! I hear the U.S. is crawling with serial killers.


Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices:

Our own Stuart Benjamin, and my former colleague Mitu Gulati, have a new draft article urging the creation of such a norm:

Imagine that it is fall 2008. John McCain has been 4-8 points behind Barack Obama in every poll for the last five months, except for a small post-convention bounce for McCain that soon dissipated. If McCain does not do something to change the dynamic of the presidential race, he will lose. One of his advisers suggests that he announce whom his top cabinet members will be, and whom he plans to nominate to the Supreme Court. If he can propose one or more nominees who will appeal to a key constituency, then maybe he can attract enough of those voters to help him in the general election.

There are risks to this move. Some voters whose favored candidates for cabinet and Court spots are not on the list will be dismayed. But McCain is behind in the polls and is looking to the strategy that might turn things around. If the odds are that he is going to lose, why not name names?

The presidential candidates claim that they will nominate better people than their competition will. But they are almost never pushed to name names prior to the election. When the matter of naming names comes up, candidates sidestep. Obama said, for example, that “I don’t want to tip my hand” by naming possible nominees. Instead, he explained that he wanted Justices who would “follow ... clear legal precedent” and, where the law was unclear, would consider the interests of “those who are vulnerable in our political system” and “stop giving the executive branch carte blanche” to do whatever they want. Elsewhere, he announced that he wanted Justices who would have “empathy.” In sum, he provided little more than vague generalities as to who his Justices were likely to be –- even though the implicit suggestion in his “I don’t want to tip my hand” statement is that he and his advisers already have a set of names for the Court that they are thinking about. There may be personal benefits to Obama from not tipping his hand –- he can keep a variety of his supporters working hard on his campaign in the hope of being chosen as nominees. But the benefits to society of candidates being forced to show their cards prior to the election may be greater still.

It is trite to say that the current system of presidential nominations is flawed. The question is how to make it better. For those of us who have no direct power to effectuate change, the solution has to be one that can be achieved without the need for resources, votes, lobbyists, and the like. The idea will strike many as nutty. But asking candidates to name names may yield real answers, and the process of asking and answering may produce meaningful changes.

Our hope is to induce competition between the presidential candidates over who would pick the better nominees. There are barriers to inducing this competition. But they might be surmountable when one candidate is significantly behind in the polls and is willing to take some risks. The key is to consider how pre-election choices might differ from what we would expect from that same President once elected. The implications are big. For instance, we might move from the current state in which Supreme Court nominees are almost all youngish sitting federal appeals court judges who have little in the way of a controversial publications record to a model of older and more interesting non-judges.

I think this is an intriguing idea, and I agree that it would be valuable for voters to have more specific information about the candidate's plans, rather than vague generalities. Still, I doubt such a plan would work, for several related reasons that have to do with the realities of the campaign process, and the incentives that it creates.

1. To begin with, my sense is that there'll be much more incentive with the proposed system to find something damaging about a candidate's nominees. Right now, if some group torpedoes a judicial or Cabinet nominee, what do they accomplish? They blacken the Administration's eye, they might make it a little harder for the Administration to implement other parts of the agenda, and they may get a marginally better nominee from their perspective — but not much better, since the nominee will be selected by the same President.

What's more, they know that to defeat the judicial nominee or especially a Cabinet nominee, they need something very damaging to get over the presumption that the President's selections should be approved. That's why some nominations don't even yield very serious battles. What would the Republicans have really gained from blocking Ginsburg or Breyer, especially since both were generally seen (correctly so) as moderate selections?

But if future nominations are announced before the election, there's always a strong incentive to try to find problems with the prospective nominee, because it might help decide the election: It might make the candidate look like a poor judge of character, and at the very least it will distract from the candidate's affirmative message and put him on the defensive. Think the Rev. Wright fracas, only much more so, since the "he's just my minister, and there are many things on which I strongly disagree with him" defense won't really work with someone whom the candidate selects as a nominee for high office.

So I'd imagine that for nearly every nominee, except perhaps those who are clearly peace offerings to the opposition (e.g., a moderate and well-liked Republican selected by a Democratic nominee), the other side's opposition research team — both the formal team on the other campaign and also the various uncontrollable outside advocacy groups — will go into overdrive. Anything the opposition finds might offer some chance of helping defeat the candidate, and even if it's a tiny chance, it might be politically worth airing. Plus, as the authors point out, in a close election the prospect of swinging even a few close states might be a strong incentive for the campaign to do something. Likewise, there'd be plenty of incentive to find some dirt on the candidate's announced nominees even if it only swings a few votes in West Virginia, Tennessee, and Florida.

2. Now of course all this is already done with regard to the candidate, the candidate's Vice-Presidential choice, and perhaps a few other top advisors. But here this would be done with regard to several other people, including people who the authors hope will not already be insiders. The campaign might thus not know all the dirt that might be learned about them.

And while of course nominees already have to be vetted after the election, there will be two differences here. First, there might be more need to find every little speck of potential dirt, because there'll be a lot of incentive for the other side to find it. And, second, the vetting team will be much less effective: The candidate won't have the FBI to do the work for him. He'll have to use his own staff, who might be less effective. Telling lies to his staff won't be a crime, and my sense is that many people are more reluctant to say "no comment" to the FBI than they would be to campaign staffers (especially staffers from a campaign they dislike). Of course, the FBI could be told, as I understand the Secret Service is as to protective measures, that it must do the same vetting work for the campaigns as they do for the Administration; but then there will be obvious worries about a hostile Administration learning things about the campaign through its FBI agents.

3. Relatedly, say the campaign approaches someone who does know some dirt about a nominee, but who doesn't likely the campaign — say, for instance, the Obama campaign approaches a McCain partisan to ask what he knows about a former colleague whom the campaign is considering as a nominee. The partisan might have a strong incentive to sandbag the campaign — to be unreachable when they come to him, but once the announcement is made, to leak the dirt to the media in order to do the most possible damage to the candidate. (There's some incentive to do this even with the current post-election vetting system, but there'll be more incentive to do it under a pre-election announcement system, and it may be easier for the partisans to avoid talking to — or even lie to — the campaign vetters than to the FBI.)

4. And these problems will likely be further exacerbated by another phenomenon: People like talking about personalities (by which I mean especially scandalous or controversial actions by the people, as well as pure "personality" character traits) more than about policies. That's most obvious for the important but boringly technical and detailed policies, such as health care reform or social security reform. But I think that's even true more broadly — juicy gossip about people will draw more eyeballs than discussion even of sexy issues.

Maybe that's because the sexy issue discussion is probably not new to most people; how much new is there to say about abortion or affirmative action or gun control? Or maybe it's for other psychological reasons. But my sense is that it's broadly believed that personality discussions are already a huge distraction from policy discussions, in lots of contexts, including elections. The proposal, it seems to me, will exacerbate this problem.

Now the authors are right that the question is what the discussion of the nominees' personalities will displace. If serious issues related to the nominees' personalities will displace frivolous issues related to the candidates' personalities, or fluff pieces, or some horse-race issues, then that would be fine. But my sense is that on balance there's a serious risk that any new personality issues, especially about fresh-meat personalities and not the candidates and candidates' entourage (which will already have been talked to death during the primaries), will displace policy questions.

5. Finally, these reasons suggest that the intrusion on the nominees' lives and careers will be even more serious than the paper acknowledges it would be. First, the nominees would have to realize that they'll be becoming targets for some of the most expert opposition researchers (or, according to those researchers' enemies, character assassins) in the world — and more so than happens even now, for the reasons mentioned above. Second, they'll realize that anything they will do in the coming months will be especially flyspecked for errors and controversy. Even if a judge, for instance, recuses himself from "politically sensitive" cases, that might not be enough: Every line in every opinion will be looked at to see if it could be twisted to suggest some problem (e.g., the judge's being too pro-criminal-defendant or some such).

Third, they'll realize that anything they will do in the coming months will also be scrutinized for possible political sail-trimming. Say a liberal judge writes a surprisingly pro-prosecution opinion; people will speculate that maybe he changed his vote (or at least his wording) to keep from jeopardizing the campaign that has pre-nominated him. Or imagine that your private-practice lawyer has been prenominated this way; would you trust that he's looking out for your best interest, or would you worry that he's adjusting his publicly available comments and filings to make sure that they don't create possible political problems?

True, there's some risk already when a lawyer or a judge is known to be short-listed. But the pressure on a nominee to adjust his behavior (or the possibility that he will be seen as having adjusted his behavior) would surely be higher if he knows he has been preselected than if he just thinks he has a 10% chance of being selected. I suspect this is already a risk when people are nominated after the election, and are seeing their nomination languish for months. But it seems to me the risk would be even greater here.

So concerns two and three suggest that any nominee would have to basically take a leave of absence from his job for the several months between nomination and election; maybe that's not so, but I expect that this would be the best bet all around. But concern one would still remain.

Related Posts (on one page):

  1. Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices -- A Response to Eugene:
  2. Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices:

More on Guns in Post Office Parking Lots:

Monday, the magistrate judge in U.S. v. Dorosan, which I blogged about here, issued a further opinion, including this on the Second Amendment question (which is whether the federal government could criminalize the bringing of guns onto post office property, including leaving them in a car parked in the parking lot):

The Court has considered defense counsel's argument that Dorosan's vehicle is an extension of his home; however, that result obtains only when the vehicle is not parked on postal property where access is restricted. In this case, the restricted employee parking and loading area where Dorosan parked his vehicle during his shift bears signs that advise all who enter the gates, as follows:

Vehicles and their contents brought into, while on, or being removed from restricted nonpublic areas are subject to inspection. A prominently displayed sign shall advise in advance that vehicles and their contents are subject to inspection when entering the restricted nonpublic area, while in the confines of the area, or when leaving the area. Persons entering these areas who object and refuse to consent to the inspection of the vehicle, its contents, or both, may be denied entry; after entering the area without objection, consent shall be implied. A full search of a person and any vehicle driven or occupied by the person may accompany an arrest.

An area, such as the Gretna Post Office's employee parking lot, which bears warnings the likes of that aforestated can hardly be analogized to "home sweet home" or an extension of same. By the same token, privately owned vehicles parked on such "postal property" cannot be reasonably be considered an extension of home. The "postal property" at issue more closely approximates one of those "sensitive places" excepted by the Supreme Court in Heller, the Court's latest opinion addressing the Second Amendment "right to bear arms." Certainly a loaded semi-automatic weapon, even if secured in the locked glove compartment of a privately owned vehicle, creates an opportunity for violence on such "postal property" -- i.e., a "sensitive" area where access is restricted for reasons of facilitating the movement of inbound and outbound mail entrusted to the USPS.

[Footnote, moved: In Heller, the Supreme Court cautioned that "nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places ...." District of Columbia v. Heller (holding that the Second Amendment of the Constitution of the United States secures the fundamental right of all Americans to bear arms).]

Eradicating the potential for deadly workplace violence and ensuring the safety of both Government employees and the public on "postal property" is exactly the security measure that the regulation at issue was designed to effect. The regulation is an adjunct of the Postal Service's policies and more particularly the "zero tolerance" of workplace violence. Indeed, many of those who use postal facilities, including postal workers, do so from necessity, not choice; many members of the public must go to a post office to conduct their business and personal correspondence, carrying cash for stamps or money orders. Postal employees must enter and exit the postal property at issue carrying the U.S. mail.

As previously addressed in this Court's prior opinion, the postal regulation at issue (39 C.F.R. § 232.1(l)) passes Second Amendment constitutional muster and is reasonable as applied to Dorosan. The Government has a significant interest in protecting the integrity of the purposes to which it has dedicated the property (facilitating postal transactions) and ensuring the security of postal employees and the public who must: (1) visit postal property to conduct official and personal business; (2) wait single file in roped off lines inside of postal facilities; (3) idle in vehicles single file in "snorkel lanes" 21 on postal property to use "drive and drop" mail receptacles placed outside of the Post Office building; and (4) carry cash or other legal tender for stamps, money orders, passports and other goods and services provided by the United States Postal Service.

Noting the fact that there were no signs prominently displayed outside of the Gretna Post Office building publishing the regulation's prohibition against carrying firearms (§ 232.1(l)) or animals (§ 232.1(j)) on "postal property," the defendant argued that the statute was vague, overly broad and unconstitutional as applied to the defendant. More particularly, defense counsel suggested that the regulation effectively outlaws conduct including matriculating the drop box lane in a vehicle with either a firearm or an animal safely stowed within its confines. The undersigned Magistrate Judge expresses no opinion whatsoever as to the constitutionality of regulation's ban on carrying firearms or animals in public areas without official purpose -- i.e., operating a vehicle through the "snorkel lane" of the Gretna Post Office while accompanied by a pet Shih Tzu, other non-seeing eye dog or, perhaps, armed with a loaded handgun stowed in the glove compartment. Neither of those issues are before the Court in this case, which involves the prohibited conduct of carrying and storing firearms without official purpose in the gated/restricted access employee parking, loading and unloading area of the subject "postal property."


Carl Bogus Responds:

Prof. Carl Bogus passed along this response to Jim's earlier post criticizing Prof. Bogus, and updated it in light of Jim's further post this morning:

On June 26, 2008, James Lindgren attacked me personally on this website. His attack had two prongs.

First, he said I revealed myself to be “at best uniformed” because I cited a peer-reviewed study, namely, Colin Loftin, Ph.D., et al., “Effects of Restrictive Licensing of Handguns of Homicide and Suicide in the District of Columbia,” 325 New Eng. J. Med. 1615 (1991). Lindgren said that study “should not be taken seriously.” He wrote: “A simple Google search would have revealed why. According to Dean Payne’s re-analysis, if you use Loftin’s homicide and suicide data, adjust for population changes (as you must), and use per capita rates (as you must), the DC ban is associated with more deaths after the ban, not fewer.” Lindgren provided a link to this critique, which did not identify Dean Payne or even make clear whether “Dean” is a first name or title. As far as I know, Payne’s critique was never published by anyone other than himself. Lindgren added: “That the New England Journal of Medicine would publish a time-series article that did not account for population changes over roughly a two-decade period is embarrassing, but then peer review seems to suffer when gun control articles are involved.”

In fact, Loftin and this team did two analyses, one using per capita rates. The original study states: “As a check against possible effects of changes in the population, we conducted a similar analysis using annual mortality rates. …[T]here was an abrupt decline in both suicides and homicides by firearms that coincided with the implementation of the restrictive licensing law. The reductions were specific to fatalities involving guns in the District of Columbia. No similar reduction was observed in homicides and suicides committed without guns, nor were there reductions in the adjacent areas of Maryland and Virginia, where the provisions of the law were not in effect.... [T]he analysis of mortality rates indicates that the declines in homicides and suicides by firearms were not due to changes in characteristics of the resident population. The population estimates are, of course, subject to error, and complex changes in high-risk groups are also possible. Nevertheless, the population at risk was the same for both gun-related and non-gun related mortality. Therefore, the differences between the rate of mortality by firearms and that of mortality due to other causes cannot be attributed to a failure to study the appropriate population.” Id. at 1616, 1618, and 1619.

Some researchers have raised other questions about whether the Loftin study should have been designed differently, and Loftin and his team have defended their methodological choices. The bottom-line is that many knowledgeable researches consider the Loftin study valuable and continue to cite it.

Here is the second prong of Lindgren’s attack: “I must confess that, unfortunately, this isn’t the first time that Carl Bogus has had trouble with inconvenient evidence. I remember during the dispute over Arming America that Bogus was writing a review and sought my permission to cite one of my unpublished drafts. Before I called him, I confirmed that his own university library’s special collection had a copy of the published Providence Probate records that Michael Bellesiles had used – and grossly misrepresented in Arming America. I called Bogus, gave him the name and number of the reference librarian I spoke with, and tried to get Bogus to spend an hour in his own university’s library confirming that there were major problems with Bellesiles’s account before Bogus finalized his review. Bogus refused even to look at the contrary evidence I urged him to examine, a decision that in part led him to seriously misjudge the work he was reviewing.” The book review I wrote stated: “A potentially damaging attack on Bellesiles probate data has been launched by James Lindgren and Justin Lee Heather. Lindgen and Heather argue, first, that probate records may not be a reliable reflection of how many people owned guns, and second, that Bellesiles has underrepresented the number of guns in the probate records. As of this writing, the Lindgren-Heather paper has not been published and Bellesiles has not responded in writing.” I provided a web address where Lindgren and Heather’s study could be obtained, and added: “Though they restrict their analysis to probate data, their criticisms about Bellesiles’s methodology are sufficiently serious to have potentially broader implications. A rush to judgment at this stage, however, would be unwise and unfair.” Carl T. Bogus, “Shootout,” 79 Texas L. Rev. 1641, 1652 (2001).

My apologies for the delay posting the original version of Prof. Bogus's message, which he sent July 3; there was a bit of a miscommunication here on our end.


Collective Rights bleg:

Thanks to District of Columbia v. Heller, we now have unanimous agreement that the "collective rights" theory of the Second Amendment is incorrect. All nine Justices agreed that the Second Amendment guarantees an individual right; the Justices simply disagreed about the scope of the individual right. Nothing in the dissent claims that there is now, or even has been, a scintilla of evidence from the Founding Era, or from Supreme Court precedent, in support of the "collective right."

Justice Stevens' dissent complained that the majority in Heller was upsetting the reliance interest of hundreds of judges, as well as legislators and members of the public regarding what Stevens claimed to be the settled interpretation of the Second Amendment. However, many of the lower court judges and other persons who rejected the Standard Model of the Second Amendment did so by adopting the "collective right" theory. Because the Heller majority and dissent agreed that there was no reasonable basis for the "collective right" theory, I suggest that the reliance interests of "collective rights" believers deserved no consideration by the Supreme Court. In contrast, if one believes Justice Stevens' claim that the Supreme Court had always (until Heller) used the "narrow" individual right theory (the right is only individuals in state militias), then Justice Stevens would have at least raised a plausible issue regarding the reliance interests of "narrow" individual rights believers.

I would like to create a consolidated list of all judicial decisions which adopted the "collective rights" theory. It would be nice to supplement the list with statements from legislators, journalists, academics, etc., claiming that "collective rights" is the only valid meaning of the Second Amendment. So I encourage commenters to supply as many citations as they would like. It would be ideal if the citations followed conventional Bluebook format, and included a brief parenthetical quote from the source.


More Signs of a Non-Delegation Doctrinal Revival?

It turns out that Judge Janice Rogers Brown is far from the only one concerned provisions of the Indian Reorganization Act violates the non-delegation doctrine. As noted by an astute reader and this commenter to my prior post, over a dozen states have been actively pushing non-delegation challenges to the IRA, and it appears they may have lined up some significant support. Consider the following:

First, in 1995 a panel of the U.S. Court of Appeals for the Eighth Circuit held that the IRA constituted an unconstitutional delegation of legislative authority in Department of the Interior v. South Dakota. The Supreme Court granted certiorari, vacated and remanded the case back to the Secretary of the Interior in response to a change in the federal government's interpretation of the statute. Justices Scalia, Thomas and O'Connor dissented, however, arguing that the Court should have heard the merits of the non-delegation challenge.

Non-delegation challenges to federal land acquisition under the IRA have continued since, but the Supreme Court has yet to show any interest in resolving the issue. In 2000, for instance, the Supreme Court denied certiorari in Roberts v. United States. Interestingly enough, the petition for certiorari advancing the non-delegation arguments was written by none other by Chief Justice John Roberts, who was then in private practice.

Even more recently, several states have pressed non-delegation challenges to the IRA. Utah's petition for certiorari in Utah v. Shivwits Band of Paiute Indians, for instance, was supported by seventeen state amici. A similar number of states supported certiorari in Carcieri v. Kempthorne, another case which raised the non-delegation issue. The Court has accepted this case for next term, but declined to grant cert on the non-delegation issue.

All of this suggests that there may yet be a live non-delegation challenge to the Indian Reorganization Act out there, and that Judge Brown's dissent in the MichGo case may not be quite as much of an outlier as it may at first appear.

Related Posts (on one page):

  1. More Signs of a Non-Delegation Doctrinal Revival?
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Which Non-Profits Are Accountable?

The NYT reports on how two non-profit organizations — ACORN and the Points of Light Foundation — responded to the discovery of embezzlement or other financial irregularities.

Acorn chose to treat the embezzlement of nearly $1 million eight years ago as an internal matter and did not even notify its board. After Points of Light noticed financial irregularities in early June, it took less than a month for management to alert federal prosecutors, although group officials say they have no clear idea yet what the financial impact may be.

A whistle-blower forced Acorn to disclose the embezzlement, which involved the brother of the organization’s founder, Wade Rathke.

The brother, Dale Rathke, embezzled nearly $1 million from Acorn and affiliated charitable organizations in 1999 and 2000, Acorn officials said, but a small group of executives decided to keep the information from almost all of the group’s board members and not to alert law enforcement.

Dale Rathke remained on Acorn’s payroll until a month ago, when disclosure of his theft by foundations and other donors forced the organization to dismiss him. . . .

Wade Rathke stepped down as Acorn’s chief organizer on June 2, the same day his brother left, but he remains chief organizer for Acorn International L.L.C.

He said the decision to keep the matter secret was not made to protect his brother but because word of the embezzlement would have put a “weapon” into the hands of enemies of Acorn, a liberal group that is a frequent target of conservatives who object to its often strident advocacy on behalf of low- and moderate-income families and workers.

Wade Rathke is right. It doesn't look so good for ACORN.

By contrast, consider what happened at the Points of Light Foundation:

Officials at Points of Light began looking into complaints about a store the organization operated on eBay and by late June had discovered what its president and chief executive, Michelle Nunn, called “abnormalities” in the business practices of an independent contractor hired to run the store, which did a brisk business auctioning travel packages and items donated to the organization.

The travel auctions were stopped immediately, Ms. Nunn said, and the store was shut down a short time later. Points of Light also posted a statement on its Web site last weekend about the problems and contacted the United States Attorney’s Office in Washington, as well as people who had bought the travel packages.


Richard Morrison Confirmed as Tax Court Judge:

My former co-clerk Richard Morrison has been confirmed as a Judge on the United States Tax Court. Rich has held a variety of senior posts in the DOJ Tax Division over the past several years.

Our third co-clerk for Judge Smith on the 5th Circuit is now a movie screen writer in Hollywood. You really can do anything with a law degree. And with a clerkship with Judge Smith you can be anything--a professor, judge, or movie writer. Anything, it appears, except a career practicing lawyer.


Rock and Roll, Copyright Department:

On a friend's recommendation, I watched Peter Bogdanovich's wonderful documentary on the early years of Tom Petty & the Heartbreakers (called 'Runnin' Down the Dream') which just aired on the Sundance cable channel. [I'm a huge Petty fan, as it happens - a good deal of his stuff ranks up there with the truly great masterpieces of rock and roll, imho]. It turns out that Petty played a not-insignificant role in a rather important legal development in the mid 80s.

Petty, like a LOT of musicians, had been so happy to get any recording contract at all, when the band was just getting started, that he didn't think much about what it was that he was doing. He had signed a "publishing" contract — as Petty describes it in the film, he really didn't know, when he signed the contract, exactly what "publishing" meant, assuming that it had something to do with the distribution of sheet music; little did he know that the "publishing" contract he signed had basically transferred his future royalty payments for all public performance of his songs (include their "performance" on the radio, where the really big bucks are) forever.

It's an old story, of course, and we've all heard it a million times. But Petty fought back in an interesting, and somewhat novel (at the time) way: he declared bankruptcy. A bankrupt is allowed to void all "executory" contracts — contracts to be performed in the future — so as to allow the "fresh start" that bankruptcy is supposed to provide. Petty had to get the court to declare that his publishing contract was an executory contract. It's a nice little legal issue. If he had "transferred his copyright" to the publishers, then it's clearly not an "executory contract" that the court can declare void; if you sell you house in 2007 and declare bankruptcy in 2008, you don't get your house back. But if the contract is treated as an "assignment of his ongoing royalties" to the publisher, that's a different story — that's a contract to be performed in the future, and he can get out of that one.

Petty (and a number of other artists at around the same time) were successful in persuading the courts to void these publishing deals (allowing them, of course, to renegotiate them on far better terms).

What I find particularly interesting about the episode is the way Petty talks about it in the film - which he does, at length, and quite eloquently. To Petty, the significant thing about the fight was that he had signed the publishing contract "under duress" — forced to swallow outrageous and onerous terms by a greedy corporate monster — and he clearly feels vindicated by his victory in court. He may be right that he had been forced to swallow outrageous and onerous terms by a greedy corporate monster. But that's not why he won — it had nothing to do, in fact, with why he won. He won because the contracts were executory and therefore voidable — duress and the rest of it had nothing to do with that. Except, of course, that it was the "duress," and the perceived unfairness of it all, that helped strengthen his cojones to fight it in the first place.


Should the Supreme Court Take Advantage of the Web?

The recent mistake by the Supreme Court in the Kennedy case (missing a federal law authorizing the death penalty for child rape) has prompted this interesting idea from law professor Tom Smith over at The Right Coast. He suggests that the Supreme Court should post its decisions on the Web before they become final, to take advantage of bloggers who might discover errors:

Is there a way that the Court could take advantage of current social technologies to dramatically improve its understanding of the relevant law in any given case? Of course there is, but I'm not holding my breath. You could, for example, post all of the briefs in wiki format, or something similar, and then sift through the results. But any procedure you could come up with could be gamed, and it seems unlikely the federal judiciary could ever bring itself to modify its procedures to really take advantage of Web 2.0 sorts of tech, at least not until we are on Web 6.0 or so, or indeed before the Singularity gets here anyway. Perhaps some law clerk will be drafting the opinion and his computer will say back — "No, no, you're getting that wrong. There is a federal law on this — here, I'll send you the cite."

The "wisdom of crowds" is a well-documented phenomenon. It would be nice if the Supreme Court (among other important institutions) could figure out how to harness it.

When I was a judge, I tried to take advantage of the wisdom of others in a very modest way. I circulated "tentative" written rulings to the parties before holding oral argument, and then at the argument asked the parties whether they saw anything wrong with my proposed decision. Perhaps the Supreme Court could read the merits briefs in a case, release tentative opinions to the general public, and then hold oral argument — followed by revisions of the opinions if the arguments (and perhaps supplemental briefing) disclosed any errors.

Update: Law prof Jason Mazzone has made a similar suggestion to this a few years back, available at this link.

Related Posts (on one page):

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A second look at the effect of the DC gun ban.--


When the Heller case came out, Carl Bogus pointed to a “careful study” by Colin Loftin, et al., (325 New Eng. J. Med. 1615 (Dec. 5, 1991)), showing a huge drop in homicide resulting from the DC gun ban. I cited criticisms of that study. Tim Lambert responded on his own blog, apparently thinking that I had been unfairly hard on the Loftin study.

Now that I’ve had a chance to look at some of the DC data, I think that in my original post I was much too easy on the Loftin study. There are even more problems with the Loftin study than I originally thought.

In response to Bogus’s endorsement of the Loftin study, I cited an analysis by Dean Payne:

According to Loftin's numbers, adjusted to a per-capita basis, the District's post-ban benefit vanishes altogether. Its proportionate rate reductions are smaller than those achieved by its neighbors. . . .

Loftin's report dismisses a number of confounding factors, but fails to present adequate justification for doing so. Despite claims to the contrary, the presented measure of lives saved by the District's restrictive handgun policy is structured such that it is inherently contaminated by:

- lives saved by a region-wide drop in homicide and suicide rates from other causes, affecting both study areas;

- lives saved by the population exodus from the District;

- killings in which non-firearms means were substituted for firearms. My analysis suggests that essentially all of the benefit perceived by Loftin is the result of this or similar contamination.

Finally, the study period ends in 1987, just as Washington DC began suffering a continuing homicide wave that earned it the dishonor of being the Murder Capital of the United States.


Tim Lambert defended the Loftin study. First, Lambert claimed: “the study did not conclude that the reductions were caused by the ban since it is possible that some other factor was the cause.”

Actually, I think Lambert is wrong here. The Loftin study rejected other explanations as implausible, concluding without any qualification that “the law reduced gun-related suicides and homicides substantially and abruptly.” The study also claimed, “The data from the District of Columbia provide strong evidence that restrictive licensing of handguns reduced gun-related homicides and suicides” in DC, but not necessarily in other jurisdictions.

Second, Lambert wrote:

While the numbers given in Loftin's paper were for numbers of homicides and suicides rather than rates, Loftin et al state that they get similar results if age adjusted per-capita rates are used. (This corrects for change in the age structure of the population as well as its size.) The results for age adjusted per-capita rates were given in [unpublished] supplementary material.

Lambert then presents these rates, which were directly standardized for a control variable, age.

But the claim I endorsed was about the necessity of using homicides rates, rather than counts, without making any claims about other control variables, such as age. Lambert does not present any Loftin data on rates without age adjustments, so I have no reason to think that Payne was incorrect in the claim that I cited.


So what’s wrong with adjusting rates for control variables like age, gender, and race that might affect the conclusions? Nothing at all; indeed, the failure to control for major demographic changes is one of the two chief defects of the Loftin study. Again, it’s embarrassing that a scholarly journal would publish a study on changes in homicides without adjusting for important demographic changes in DC, in particular race.

Let me explain: African Americans have much higher homicide victimization rates than Whites (nationally, about 5-7 times as high in the 1976-87 period). According to the Current Population Survey data, in the pre-gun ban period, there averaged about 97,000 more African Americans in DC than in the post-ban period. That 18% drop in African Americans between periods should be associated with a drop nearly that large in homicides in DC, which needed to be controlled for, but it wasn’t in the Loftin study.

This one error by itself could account for the results reported by Loftin et al. Indeed, had Loftin controlled for race, it is likely that the DC gun ban would have been associated with a statistically significant increase in homicides, rather than the opposite.


The other big problem with the Loftin study is the choice of periods. As Payne noted, the study period ends in 1987 just as homicides in DC are exploding. DC homicides went from 147 in 1985 to 194 (1986) to 225 (1987) to 369 (1988) to 434 (1989) and to 472 in 1990. If data through 1990 (or even 1989) had been included in the post-gun ban period (the study appeared on December 5, 1991), the reduction effect reported would have disappeared and almost certainly the opposite association (increased homicide) would have been shown.

In other words, the results reported in the Loftin study are merely artifactual. They are artifacts of the failure to control for racial demographic changes and the choice of study periods. Making either of these changes should have been sufficient to eliminate or reverse the direction of the effect reported by Loftin et al. in their paper (whether expressed in counts or rates or age-adjusted rates).


Another serious problem, one that may prevent any persuasive time series analysis, is that the DC data are not “well behaved.” The huge increase in homicides in the late 1980s is probably not the result of the gun ban (but rather crack cocaine and gangs), yet without looking at comparable major cities (which the Loftin study does not do), it is impossible to get even a rough sense of whether Washington, DC, fared worse than other cities without gun bans.

Yet that is not the only troublesome pattern in the data. After peaking in the 1971-74 period at an average of 266 homicides in DC, homicides dropped precipitously to 235 in 1975 and 188 homicides in 1976 (the law banning guns took full effect after legal challenges on Feb. 21, 1977; it was also enforced for over two months in 1976: September 24, 1976 - December 8, 1976).

Thus, there was already a strong downward mini-trend in force when the gun ban took effect. Indeed, for the first six years of the gun ban (1977-1982), in only one year (1979) did the number of homicides fall below the 188 homicides recorded in 1976, a year mostly before the ban took effect Is this mini-trend real or just artifactual? If it’s real, then the gun ban might have fairly quickly put an end to a then recent, but strong downward trend in the data. But one can’t really tell whether this mini-trend is real, even by looking at monthly data. What all this suggests is that the often-difficult decision about what curved shape to fit to time series data can determine whether one gets an upward or downward deviation from the trendline.

Actually, I think that, until the mid-1980s, the DC homicide counts fairly nicely fit the numbers of African Americans in DC, rather than Loftin's gun ban hypothesis. As homicides jump substantially from 178 in 1967 to 266 per year in the 1971-74 period, the number of African Americans in DC makes a similar jump from 385,000 in 1967 to 583,000 in the 1971-74 period, thus increasing the population most highly victimized. By 1976, the number of homicides has fallen to 188 while the number of African Americans has also fallen substantially to 444,000 (remaining within 36,000 of that figure through 1987).


In short, I was too easy on the Loftin et al. study when I blogged about it in June.

The reported results are merely artifacts of serious failures in its research design. The failure to control for race and the choice of time periods to study entirely drive the direction and the strength of the reported effects. Unfortunately, however, the data are ultimately not well enough "behaved” to justify a full, careful time series analysis that might persuade a cautious researcher of the probable real effect of the DC gun ban – whatever that might have been.

UPDATE: Carl Bogus responds to my first post on this issue here.


Tuesday, July 8, 2008

Poor Exercise of DWI Discretion:

Yesterday, I posted about a woman arrested for DWI when she hadn't had a drop to drink. Now here's a case where an ex-cop was three or four sheets to the wind and caused a multi-car accident, and yet was not subjected to any alcohol test, and almost escaped drunk driving charges altogether.


District Court Wrongly Follows Pre-Heller "Collective Rights" Circuit Precedent:

Here's U.S. v. Lewis, from the District of the Virgin Islands:

Malik Ostalaza ... and his co-defendant, Ronald Lewis, Jr., were charged in May, 2008 in a five-count indictment. Count One charges Ostalaza with possession of a firearm with an obliterated serial number, in violation of Title 18, Section 922(k) of the United States Code (“Section 922”). Counts Four and Five charge Ostalaza with unauthorized possession of a firearm, in violation of Title 14, Section 2253(a) of the Virgin Islands Code [which essentially appears to be a ban on possessing a firearm without a license -EV]. Ostalaza is not charged in Counts Two and Three.

Ostalaza now argues that Counts One, Four and Five should be dismissed because they violate the Second Amendment of the Constitution. In his motion, Ostalaza neglects to substantiate that argument with citations to any authority. Instead, Ostalaza points to District of Columbia v. Heller, a case that was pending before the Supreme Court at the time his motion was filed. Ostalaza states only that he “reserves the right to challenge” the indictment on Second Amendment grounds.

In United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997), the Court of Appeals for the Third Circuit explained that “the Second Amendment furnishes no absolute right to firearms.” Relying on its decision in Rybar, in United States v. Willaman, 437 F.3d 354, 356-57 (3d Cir. 2006), cert. denied, 547 U.S. 1208 (2006), the Third Circuit rejected the defendant’s contention that Section 922 violates the Second Amendment. In reference to the defendant’s argument that Rybar “is simply bad law,” the Willaman Court stated that “plainly [Rybar] is binding on this panel.”

[Footnote: Moreover, while the Supreme Court acknowledged in Heller the right of the individual to possess a firearm unconnected with service in a militia, the Court also held that that right is not unfettered. See 2008 U.S. LEXIS 5268, at *95 n.26 (identifying “presumptively lawful regulatory measures” and noting that the Court’s list of those measures “does not purport to be exhaustive”).]

It may well be that the defendant didn't provide enough argument to support his motion to dismiss. I'm also pretty sure that the courts will find that the right to keep and bear arms isn't substantially burdened by the ban on knowingly possessing a firearm with an obliterated serial number; and they may well uphold the Virgin Islands license requirement, or conclude that only someone who has tried to get a licensed but been denied one is entitled to challenge the requirement.

But the court's reliance on precedent strikes me as quite weak: Rybar was decided by the Third Circuit on the theory that the Second Amendment only protects gun possession when it has a "connection with militia-related activity." Heller rejects that theory, which means that Rybar and Willaman are no longer good law.

Certainly in the Third Circuit (and to my knowledge in all other circuits) "a subsequent panel may depart frm a previous panel's decision if required to do so by an intervening Supreme Court decision," Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc., 2008 WL 2420729 (3rd Cir. June 17) (paraphrasing earlier precedent). I take it that district courts can and should do the same: "[W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority[,] ... a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

So I don't think the district court was entitled to punt the matter to the pre-Heller collective-rights precedent. It needed to do the Heller analysis (or, if appropriate, decline to deal with the Second Amendment question, if the litigant hadn't adequately argued it). And simply saying that under Heller the "right is not unfettered" isn't an adequate justification for the court's decision, either: Obviously some fetters are permissible but others aren't, so the question is why these particular gun controls are justified given the Heller reasoning.

UPDATE: I should note that, technically speaking, the Second Amendment might not apply to the Virgin Islands of its own force: The Insular Cases from the early 1900s held that only some constitutional rights apply to such territories, and the jury rights (grand jury, criminal jury, and civil jury) and the Second Amendment have often been seen as not being included. Nonetheless, Congress has expressly applied "the first to ninth amendments inclusive," except the Grand Jury Clause, to the Virgin Islands.


More Judges Who Think They are Funny: Via Prawfs. My own plea to the federal judiciary: Please stop with the rhymes, pop lyrics, and other cute stuff. Thanks, a reader.

Was Obama A "Professor"? My offhand comment about Barack Obama having been a "professor" at the University of Chicago triggered some surprising feedback: Was Obama really a professor, the questions run, or was he just an instructor or some kind of lecturer? I had thought this question was resolved a long time ago, but I guess not. Anyway, the University of Chicago Law School put out the following press release on the question a while back:
From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track. The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School's Senior Lecturers has high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined.
So the school says he was a professor; he was carrying a full teaching load; he was teaching serious courses like con law; and (if I recall correctly from my time visiting at Chicago) he had a permanent faculty office in the law school. Labels are funny things in academia, as Tim Wu has discussed. But to my mind, Obama was a professor.

An 1830 Source Casually Assuming the Individual Rights View of the Second Amendment:

For an analysis similar to what I quoted below -- down to the analogy between the limits on the right to bear arms and the limits on the freedom of the press, see the argument of Ichabod Bartlett (a leading New Hampshire lawyer, Congressman, and speaker of the New Hampshire House of Representative) in Upham v. Hill (1830):

What is liberty of person? — liberty of speech? Are we not free? But have we a right to knock down and trample upon all whom we may dislike? ... We have too the right of bearing arms. And if we are not permitted to throw a brand into our neighbor's dwelling — or discharge our rifle upon the passers by in the street — we could as well complain of being enslaved — as to say the press is shackled, because it may not, by falsehood, assault the character of any and every citizen, when and where its conductors may choose.

This clearly assumes the right to bear arms as an individual right to possess or carry a gun (it's not clear which). This is weaker evidence than the views of Judge Martin, because it's only a lawyer's argument to a jury. But a skilled lawyer such as Bartlett would make such an argument (especially given the easy availability of other analogies) only if he thought the right to bear arms would be uncontroversially seen as an individual right by the jurors.

Note also that this had to be a reference to the Second Amendment or to some national consensus about the right to bear arms, and not to a state constitutional provision: New Hampshire had no right to bear arms provision in its state constitution until 1982.


Another Early 1800s Source Supporting the Individual Rights View of the Second Amendment:

From H.P. Nugent, An Account of the Proceedings had in the Superior Court of the Territory of Orleans, against Thierry & Nugent for Libels and Contempt of Court 43-44 (Philadelphia 1810), relating statements by Judge François Xavier Martin, then a territorial judge and eventually a Chief Justice of the Louisiana Supreme Court:

It is true, said he [Judge Martin], the constitution secures the liberty of the press, but it likewise secures the liberty of keeping arms; now, as the liberty of keeping arms is not the liberty of killing or maiming whom we please, so is not the liberty of the press, the liberty of publishing libels....

It was for the second time during the trial, that judge Martin compared the liberty of the press to the right of keeping arms, and argued that as one was not the liberty of killing or maiming, neither was the other that of publishing libels.

The Louisiana Supreme Court went on in the 1850s -- after Judge Martin was dead -- to likewise characterize the Second Amendment as an individual right, but it looks like this view was taken by a leading Louisiana judge as early as 1810. The reference is in passing, but it just reflects, it seems to me, the uncontroversial nature of the assertion at the time; and though it's second-hand (Judge Martin's words are paraphrased, not quoted), the tangential nature of the assertion adds credibility to it, since the author had little reason to misreport it.

I haven't seen this mentioned anywhere else, so I thought I'd post it. If any of you know of a source that talks about it, please let me know so I can give it proper credit. I know of no relationship between H.P. Nugent and Ted Nugent.


The Future of Quoting Lyrics in Judicial Opinions: Over at Convictions, Adam White notes that Chief Justice Roberts' recent citation to Bob Dylan has been one-upped by the following introduction from a new D.C. Circuit opinion by Judge Janice Rogers Brown:
BROWN, Circuit Judge:
  Forty years ago Jimi Hendrix trilled his plaintive query: “Is this love, baby, or is it … [just] confusion?” JIMI HENDRIX, Love or Confusion, on ARE YOU EXPERIENCED (Reprise Records 1967). In this False Claims Act case, we face a similar question involving a mortgage subsidy program initiated in that era: Is this fraud, or is it … just confusion? K & R Limited Partnership says it is the former, alleging that during the last 15 years, MassHousing has knowingly submitted excessive claims for subsidy payments to the federal government. The district court granted summary judgment for MassHousing, United States ex rel. K & R Ltd. P’ship v. Mass. Hous. Fin. Agency, 456 F. Supp. 2d 46 (D.D.C. 2006), and we affirm because there is no genuine issue as to whether MassHousing knew its claims were false.
  If the trend of quoting lyrics popular when the judge was a young adult keeps up, we can imagine a lot of passages from judicial opinions of the future.

  For example, here's a possible opening passage from an OSHA opinion from the DC Circuit in 2025:
ADLER, Circuit Judge:
  The Department of Labor’s Occupational Safety and Health Administration (OSHA) promulgated new rules for General Working Conditions in Lunar Employment. The petitioners claim that the new rules do not satisfy the statutory requirements of workplace safety -- in the words of Men Without Hats, that they do not dance "the Safety Dance." MEN WITHOUT HATS, Safety Dance, on RHYTHM OF YOUTH (Statik Records 1982) ("And we can act like we come from out of this world, Leave the real one far behind, And we can dance"). Finding no error, we affirm.
  And here's a possible opening for a Ninth Circuit sentencing appeal from 2035:
ROWLEY, Circuit Judge.
  The defendant in this case was convicted of felony distribution of narcotics. At sentencing, the defendant claimed that his aspirations for lawful employment render criminal punishment inappropriate in his case. The defendant's aspirations resemble Snoop Dogg's dream "to own a fly casino, like Bugsy Siegel, and do it all legal, and get scooped up by the little homie in the Regal." TUPAC SHAKUR FEAT. SNOOP DOGGY DOGG, 2 Of Amerikaz Most Wanted, ALL EYEZ ON ME (Death Row Records 1996). Because we are bound by the Supreme Court's recent Eighth Amendment jurisprudence, we are required to vacate the conviction.
  Any guesses on what judicial opinions from 2050 might look like?

Ah, for the Gracious Courtliness of the Past:

E.P. Thompson's chapter on "Rough Music" in Customs in Common (1991), reports on this incident:

The Reverend Charles Jeffrys Cottrell, JP, the Rector of Hadley in Middlesex, was driven in 1800 to take legal action when he received in the post a portrait of a gibbeted parson with his genitals exposed, inscribed "O what a miserable Shitting Stinking Dogmatick Prig of an April fool I do appear."

This stemmed from a tax dispute, of course.


Jack Rakove vs. Me on the Second Amendment,

at BloggingHeads. Here's my main disagreement with Jack: Unless I'm mistaken, Jack thinks that (1) the Second Amendment secures a right only to members of the militia, not to the people as a whole, and (2) the "militia" doesn't mean pretty much all law-abiding adults (or white male adults, in 1789, though the Fourteenth Amendment surely changed that) at least until age 45, but is rather left entirely for Congress to define. The militia, Jack seems to be arguing, "was what [the Framers] meant to allow future Congresses, in their wisdom, to replace."

Yet this means that the Second Amendment secures a right against Congress -- but secures it only to those people whom Congress chooses to empower this way. That, in my view, is a mighty odd reading of the Second Amendment, which basically lets it be nullified by the very body that it was created to constrain.

And unless I'm mistaken, Jack basically acknowledged that the Amendment was indeed this empty. I think his view is that it's a remnant of an earlier, pre-1789 view of rights as hortatory provisions, a view that made its way into the Bill of Rights in the Second Amendment but not in the First Amendment, the Fourth Amendment, and the like. In any case, watch our discussion and see what you think.


Interior Wins ESA Listing Case:

The Bush Administration has had an extremely difficult time defending decisions not to list species as "threatened" or "endangered" under the Endangered Species Act (ESA). I suppose it was about time that they won one. Well, they did. In American Wildlands v. Kempthorne, the U.S. Court of Appeals for the D.C. Circuit upheld the Administration's decision not to list the westslope cutthroat trout as a threatened species.


Is It Love or Confusion?

Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit opens an opinion released today quoting Jimi Hendrix.

Forty years ago Jimi Hendrix trilled his plaintive query: “Is this love, baby, or is it … [just] confusion?” JIMI HENDRIX, Love or Confusion, on ARE YOU EXPERIENCED (Reprise Records 1967). In this False Claims Act case, we face a similar question involving a mortgage subsidy program initiated in that era: Is this fraud, or is it . . . just confusion?

Alas, the rest of the brief opinion is not all that interesting.


"The Islam of Democracy":

An odd-sounding phrase I saw in a late 1700s American polemic, Columbian Centinel, June 18, 1791:

We are told, that the copy from which an edition of this work [Paine's Common Sense] was reprinted at Philadelphia, was furnished by the Secretary of State [Jefferson], and was accompanied by a letter, from which the following extract has been published in most of our newspapers. "I am extremely pleased to find that it is to be re-printed here, and that something is at length to be publicly said, against the political heresies which have sprung up among us. I have no doubt our citizens will rally a second time round the standard of Common Sense."

I confess, Sir, I am somewhat at a loss to determine, what this very respectable gentleman means by political heresies. Does he consider this pamphlet of Mr. Paine's as the canonical book of political scripture? As containing the true doctrine of popular infallibility, from which it would be heretical to depart in one single point? The expressions, indeed, imply more; they seem, like the Arabian prophet, to call upon all true believers in the Islam of democracy, to draw their swords, and, in the fervour of their devotion, to compel all their countrymen to cry out, "There is but one Goddess of Liberty, and Common Sense is her prophet."

The author was Publicola, which is generally thought to be a pseudonym for John Quincy Adams (see, e.g., N.H. Gazette, Sept. 10, 1827), then just shy of his 24th birthday. Also, according to Robert J. Allison's The Crescent Obscured: The United States and the Muslim World 40 (2000), the "heretic Jefferson had in mind" was Jefferson's rival and John Q. Adams' father, John Adams.


A Nice Bit of Slippery Slope Rhetoric,

which I hadn't seen before; it's from Robinson & Warren v. State, 38 Ark. 641 (1882) (Eakin, J., dissenting). The judge is objecting to a majority decision upholding a statute under which owners of stores that sell liquor are held strictly liable for illegal sales by their partners or employees. Here's the passage (paragraph breaks added); the key rhetoric is in the last paragraph:

There is no telling how far reaching the range of the decision, just rendered, may be. The case in judgment is very trifling. But the decision is not confined to dram-shops and their owners. Its immediate effect will be to include every wholesale dealer in the State, who sells by clerk, or by agents in other towns, and those who have interests or shares in the business, whether widows or not, and make each or any, and all of them liable to be dragged before the criminal tribunals and punished, if the lowest sub-agent or employee anywhere, even the porter who sweeps the stores, should some day sell liquor to a minor.

If the mere interest in the liquor sold, fixes the liability, where is the line to be drawn? Why may not a lady, retaining an interest in a deceased husband's drug store, find it necessary to follow her Sunday devotions, by an appearance next day in the criminal court, to be punished for a crime committed whilst she was at prayer, by a good-natured clerk who sold a drink to a boy companion? Will she be told she ought not to be in that business?

The ulterior effects of the decision in unsettling old well-defined safe-guards of liberty, cannot be calculated. Bad precedents are like arrows shot from a bow. They cannot be controlled after they have left the string. Their logical sequence often runs terribly away to consequences never dreamed of. Better stand on the old foundations, and walk in the old ways. I distrust the social advantages promoted by decisions of this nature. Timeo Danaos, et dona ferentes. [I fear the Greeks even if they bring gifts.] They have the fair semblance of hand maidens of morality. They may be wooden horses, unwittingly drawn within the citadel of the Bill of Rights. I think they are.


Yet Another Early Post-Heller Second Amendment Case:

Johnson v. United States (E.D. Mo. July 2, 2008), summarily rejects a felon's Second Amendment challenge to the federal ban on felons' possessing firearms:

Moreover, on June 26, 2008, the Supreme Court completely foreclosed Movant's Second Amendment ... constitutional challenge to this statute:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Johnson, who was representing himself, had felony convictions from the mid-1990s for assault with a deadly weapon, theft, and escape from custody. The pistol that he possessed in 2005, when he was arrested for being a felon in possession of a firearm, had been stolen. Because of Johnson's criminal history, which also included "a series of traffic and drug-related misdemeanors, and an additional misdemeanor resisting arrest," he was sentenced to eight years in prison.


Monday, July 7, 2008

Arrested for DWI without Drinking:

Radley Balko reports on a woman who was arrested for DWI after refusing a roadside sobriety test even though she had not one drop to drink. Her blood test came back 0.0, but the police officer's report described a woman who almost had to be drunk. One possibility is the officer recited boilerplate indications of alcohol consumption. Another is the officer had a vendetta against the woman's husband -- a DWI defense attorney who was in the passenger seat when she was pulled over. Balko reports, you decide.


How Significant Is Lands Council Decision?

The more I think about it, the more I think Lands Council v. McNair is an important decision. Here are some other assessments from the Jackson Hole Star Tribune:

U.S. Agriculture Department Undersecretary Mark Rey, who oversees the Forest Service, called this "the most important decision involving a Forest Service environmental case in the last two decades," saying it restores the ability of federal agencies, not meddling judges, to exercise discretion over timber sales.

"The judges established a much more limited framework for judicial review of Forest Service decisions -- a framework that's much more consistent with the standard use by other circuits," Rey told The Associated Press. "The court says its role is not to act as a panel of scientists. They wanted to move back to a more appropriate role."

Timber industry representatives said this will help stop judges from asserting their opinions over the decisions of Forest Service managers.

"We think it's a landmark case," said Tom Partin, president of the Portland, Ore.-based American Forest Resource Council. "It speaks volumes that 11 judges out of the 9th Circuit came up with this decision ... saying that the panel screwed up and that the judges aren't supposed to second-guess the forest managers."

Earth Justice, a nonprofit environmental law firm that's monitored this case but didn't represent the plaintiffs, contends claims by logging advocates and Rey are premature that this decision will radically shift the balance of power toward the agency and away from environmental groups.

"I don't know that it changes the law at all, frankly," said Todd True, from the group's Seattle office. "Environmental groups or anyone else asking the courts to review government action have always had the burden to show that the government acted arbitrarily and that it failed to consider some factor that's important. I don't think this decision says that these agency scientists get a free pass and can do whatever they want to, and the courts have to accept it."

Related Posts (on one page):

  1. How Significant Is Lands Council Decision?
  2. Lands Council v. McNair:
  3. Ninth Circuit Overrules Ecology Center:

Colburn on Navy Sonar Case:

Jamison Colburn has two posts on Dorf on Law discussing Winter v. NRDC, in which the Supreme Court will hear the Navy's challenge to a court injunction limiting the use of a high-powered sonar system that may harm whales.

In his first post, Colburn considers what, precisely, would constitute the sort of "emergency" that could justify the Navy's failure to complete an environmental impact statement under the National Environmental Policy Act.

For perhaps strategic and perhaps tactical reasons, then, the Navy has never argued (at least in this case) that its active sonar is benign. What it argues is that the risks to marine life are justifiable under the governing law and that, if necessary, they can be authorized by the President under his authority as Commander in Chief. Which this President did. Proudly. And it turns out that, at least on the face of the rules at issue, the statutory and regulatory arguments may hold a fair bit of water. . . .

Let us suppose the Department of Defense had decided from the start to find whatever means it could to exempt its operation from the public, proceduralistic routine of an EIS. Let us even suppose that it had done so with the White House’s blessing. Should they have made better legal arguments or was this simply a matter of not anticipating the appellate panel they got (B. Fletcher, Reinhardt, and Nelson)? Was it an “emergency circumstance” that a district judge unexpectedly favored NRDC’s claims about the sonar? If not, then consider this: could the Navy have simply delayed scheduling the training exercises to leave inadequate time for an EIS within its “preparedness” criteria—seemingly triggering Section 1506.11 in the most pristine, protected sense possible? All of that was and is completely within the power of the Executive to manipulate.

His second post then considers the Winter case's potential impact on NEPA and whether the law's procedural requirements remain an effective deterrent to environmentally harmful government action.
NEPA has always been an analytical requirement only—it does not and has never required that one decision be made instead of another. Don’t be fooled, though. Its normative core has always piggy-backed on a part of the country’s ‘overlapping consensus’ that almost certainly creates a presumption in favor of environmentally cautious decisions (that part of America that says “don’t take any unnecessary risks with nature or our natural resources”). Having to document and publish a “detailed statement” justifying the use of this extremely powerful sonar is its own kind of deterrent. In the Sonar Case, the Supreme Court has agreed to decide whether an agency’s effort to avoid discussing such trade-offs in public is due deference in its own right—notwithstanding a preexisting judicial action on the same matter. The agency in this case has played the trump of all trumps and it will be most interesting to see how the Court responds.
For those interested in the case, both posts are worth a read.

Related Posts (on one page):

  1. Colburn on Navy Sonar Case:
  2. Supremes to Take on Navy Sonar:

The War on Drugs vs. The War on Terror:

Josh Strawn has an interesting post on how the War on Drugs is undermining the War on Terror, citing data showing that the misguided US poppy eradication campaign in Afghanistan has enabled the Taliban to earn enormous profits from the illegal drug trade. Most of these profits are only possible because the US and its allies have prevented competition from legal suppliers by targeting their poppy fields.

I have often blogged on the same subject myself see e.g. here and here. As I explained in earlier posts, the poppy eradication campaign not only increases the Taliban's profits from the drug trade, but also antagonizes the numerous Afghan peasants who depend on poppy cultivation for their livelihood. As a result, some of these people have been driven into the arms of the Taliban, and others are at least unwilling to provide information and other aid to the US and the Afghan government.

It is long past time that we prioritized the war against the enemies who want to kill us over the war against those who merely want to us sell us opium.

UPDATE: It's worth nothing that Christopher Hitchens made a similar argument back in 2004 - at a time when the negative consequences of the drug war in Afghanistan were not as clear as they are now. His warning was certainly prescient (HT: VC reader Joe Bingham).


Who Would Obama Nominate to the Supreme Court?: Over at Prawfs, Andrew Siegel had put together a list of potential Obama nominees to the Supreme Court if Obama wins in November and a Justice resigns. I think Andrew's list is particularly thoughtful; it's probably as close as we can get at this point to a prospective Obama "short list." Here's the list:
1) Diane Wood
2) Elena Kagan
3) Merrick Garland
4) Cass Sunstein
5) Teresa Wynn Roseborough
6) Leah Ward Sears
7) Sonia Sotomayor
8) Deval Patrick
9) Eric Holder
10) Barrington Parker, Jr.
  I'll add my own uninformed guesses and random thoughts to everyone else's:

  1) I would guess that Diane Wood and Merrick Garland would be the most easily confirmed if nominated. Both have a solid reputation for being extremely smart and liberal-but-not-overwhelmingly-ideological. Both are experienced judges and reasonably known quantities. They fall roughly into the Ginsburg/Breyer category, and I suspect either would be easily confirmed.

  2) As many have noted, Sonia Sotomayor is absolutely perfect on paper — female Hispanic from Yale Law who is a former prosecutor and Bush 41 nominee to the District Court. But I agree with Andrew's suggestion that many overestimate her chances. Sotomayor is a solid judge, but my sense is that she hasn't brought a lot of pizzazz to the Second Circuit. I would guess Obama the former law professor would aim for someone with more star power. (Plus, while Bush nominated her to the SDNY, it was only as part of a deal; she was a Moynihan pick, not a GOP pick. So I don't think her Bush 41 nomination to the District Court would actually mean anything.)

  3) My own guess is that a President Obama would nominate Deval Patrick, currently the Governor of Massachusetts, if one of the male Justices retired. Here's my thinking. First, Patrick and Obama share similar stories, and I understand they are friends. Second, Patrick's career reveals the kind of empathy and activism that Obama has said he values and that is harder to find among the career judges. Third, Patrick has more charisma than most of the others on the list.

  It's true that some interest groups on the left might not think Patrick is their ideal candidate. In particular, he is neither a woman nor Hispanic. But I can't imagine many on the left would object to a Patrick nomination: he has the potential to become a real liberal lion in the Justice Marshall mold, and my sense is that this is what most activists on the liberal side want more than anything else. It's true that conservatives would oppose Patrick, but a popular President with a friendly Senate can probably take that kind of risk.

  Anyway, that's my random speculation, probably not worth the e-paper it's printed on.

Stock prices of Fannie Mae and Freddie Mac fall sharply.

Today the value of Fannie Mae and Freddie Mac have fallen about 16-18% in part because of new accounting rules that might force them to bring questionable off-balance sheet assets onto their books. This would leave them so undercapitalized that they would need to raise massive amounts of cash to avoid a huge government bailout.

Bloomberg reports (nonunique link):

Freddie Mac and Fannie Mae plunged in New York trading and their credit-default swaps rose as concerns grew the two largest U.S. mortgage-finance companies may need to raise more capital to overcome writedowns and satisfy new accounting rules.

Freddie Mac fell as much as 29 percent and Fannie Mae dropped as much as 26 percent, reaching their lowest price in 13 years, after Lehman Brothers Holdings Inc. analysts said in a report today that an accounting change may force them to raise a combined $75 billion in capital. Speculation that the companies may take further writedowns also weighed on the stock, said John Tierney, a credit strategist at Deutsche Bank AG in New York.

"There's probably an accumulation of events today that has focused investor selling," said Christopher Sullivan, who oversees $1.3 billion as chief investment officer at United Nations Federal Credit Union in New York.

Today's declines extend Fannie Mae's drop this year to 62 percent and Freddie Mac's to 66 percent. Washington-based Fannie Mae so far has raised $6 billion in capital to offset writedowns on mortgages it owns or guarantees. Freddie Mac, based in McLean, Virginia, raised $13.5 billion since December and said last week plans to add $5.5 billion probably won't be fulfilled until late next month. . . .

FAS 140

The new FAS 140 rule that seeks to stop companies keeping assets in off-balance sheet entities may force Fannie Mae and Freddie Mac to bring mortgages back onto their books, requiring them to put up capital, Lehman analysts led by Bruce Harting wrote in a note to clients today.

Fannie Mae would need to add $46 billion of capital and Freddie Mac would need about $29 billion, the Lehman analysts wrote.

The companies will probably get an exemption from the rule because it would be "very difficult" for them to raise that amount of capital, the analysts said.

Note that, even if Fannie and Freddie obtain an exemption from new accounting standards, that doesn't make them adequately capitalized. That just allows them to continue to pretend that they are.

In other news concerning the financial health of Fannie Mae and Freddie Mac, consider this change proposed by Barack Obama. In the Boston Globe’s story about Barack Obama’s strong support for funneling government money to real estate developers (who often abandon the properties they build with government money) is this paragraph urging the “siphoning” of profits from Fannie Mae and Freddie Mac:

Obama has continued to support increased subsidies as a presidential candidate, calling for the creation of an Affordable Housing Trust Fund, which could distribute an estimated $500 million a year to developers. The money would be siphoned from the profits of two mortgage companies created and supervised by the federal government, Fannie Mae and Freddie Mac.


Did Roe v. Wade Reduce Crime?

John Lott has this very interesting article about the thesis that Roe v. Wade reduced crime. The thesis has been most prominently advanced by economists John Donohue and Steven Levitt. They argue that Roe lead to declining crime rates by reducing the number of "unwanted" children. These unwanted children would have entered their crime-prone years shortly after 1990 — thereby explaining why crime rates began declining in the early 1990s.

Lott has some interesting responses. I found particularly powerful Lott's rejoinder that, when crime-rate declines are analyzed by age group, the Roe theory falters:

The "abortion decreases crime" theory runs into even more problems when the population is analyzed by age group. Suppose that liberalizing abortion in the early 1970s can indeed explain up to 80 percent of the drop in murder during the 1990s, as Donohue and Levitt claim. Deregulating abortion would then reduce criminality first among age groups born after the abortion laws changed, when the "unwanted," crime-prone elements began to be weeded out. Yet when we look at the declining murder rate during the 1990s, we find that this is not the case at all. Instead, murder rates began falling first among an older generation — those over 26 — born before Roe. It was only later that criminality among those born after Roe began to decline.

Lott goes on to contend that Roe actually increased crime, by increasing out-of-wedlock births. Social science has established a very clear link between single-parent families and crime. Lott concludes that any reduction in crime because of fewer crime-prone "unwanted" children was far outweighed by the increase in single-parent families. His conclusion seem reasonable to me.


Bleg on WWII English pacifism:

I believe I have read--but I can't recall where-- that during the Second World War, some English pacifists proposed that when the Nazi troops arrived in England, unopposed by military resistance (thanks to pacifist policy), they should be greeted with Christian love. Such a greeting would be disarming, and the Nazis, seeing that the invaded population were Christian friends rather than belligerents, would realize the error of the war-like Nazi ways.

Does anyone have a citation or other information about this proposal?

MORE BLEG: How a good article or book chapter on Frantz Fanon's influence in promoting racist violence and other terrorism? There's mention of this scattered in many sources, but how about a consolidated, extended treatment?


People Who Argue that the First Amendment Does Not Protect Symbolic Expression:

I was hoping I might ask our readers for some research help here -- I am looking for (1) authors, columnists, academics, politicians, or especially prominent bloggers, who (2) argue that the First Amendment protects only "speech" and "press" and therefore doesn't protect any symbolic expression, and (3) argue this outside the specific contexts of U.S. flag desecration or nude dancing.

I already have examples (including Judge Robert Bork and Senators Orrin Hatch and Dianne Feinstein) as to flagburning, and can find plenty for nude dancing. I'm looking for (A) people who make this argument as to other forms of symbolic expression, such as wearing armbands, flying other flags, and the like, or (B) people who make this argument broadly, without reference to flagburning as such.

I'm also not looking for disputes as to whether a particular form of conduct (e.g., wearing one's hair a particular way, or refusing to let military recruiters onto one's campus) is sufficiently symbolic to qualify for protection. Rather, I'm looking for arguments that sound like categorical assertions that the First Amendment protects only what is literally "speech" or "press" -- or, perhaps more broadly, that the First Amendment protects only expression in words -- and that it doesn't protect other symbolic expression. Many thanks!


One More Early Post-Heller Second Amendment Opinion:

The brief decision from Senior Judge Milton Shadur is in the newly filed lawsuit challenging Chicago's handgun ban, McDonald v. City of Chicago (N.D. Ill.); it's minor, but I thought I'd note it nonetheless, because it might foreshadow what we might see in the future in this important case:

This newly-filed action has been assigned to this Court’s calendar. From a reading of the Complaint it appears that plaintiffs’ counsel may view this litigation--which is entitled to serious consideration on its own merit--as a vehicle for some other purposes as well. This memorandum order is issued sua sponte to strip the Complaint of some surplusage--listed in the order of appearance, rather than in any effort to rank the stricken allegations in terms of importance--that does not conform to the directive of Fed. R. Civ. P. 8(a) as to the content of a federal complaint.

1. Because yesterday’s Supreme Court decision in District of Columbia v. Heller, No. 07-290, 554 U.S. __, 2008 WL 2520816 (U.S. June 26) requires no independent justification for the ownership and possession of firearms under the Second Amendment (see Complaint ¶34), all but the first sentence of each of Complaint PP1 through 4 are stricken.

[Footnote, slightly moved: Nothing in the Supreme Court's opinion addresses the registration and licensing requirements targeted by the Complaint (see Heller, 2008 U.S. LEXIS 5268, [WL] at *28 n.26 and *30), and no view is of course expressed here as to such substantive issues.]

2. Complaint ¶8 appears to reflect an inaccurate characterization of the form of government that is prescribed for the City of Chicago. Absent some showing to the contrary by plaintiffs’ counsel, that paragraph will be stricken, Richard Daley will be dismissed as a defendant and all of the Complaint’s references to “Defendants” will be converted to singular form.

3. Because 28 U.S.C. §§2201 and 2202 are not independent sources of federal subject matter jurisdiction, reference to those sections is stricken from Complaint ¶9.

4. Complaint ¶¶40 through 45 are stricken as patently inappropriate.

5. All of the Complaint’s references to “Cause of Action” are also stricken. In that respect, see NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992)).

Here are the relevant portions of the complaint:

1. Plaintiff Otis McDonald is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. McDonald resides in a high-crime neighborhood and is active in community affairs. As a consequence of trying to make his neighborhood a better place to live, Mr. McDonald has been threatened by drug dealers.

2. Plaintiff Adam Orlov is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Orlov is a former Evanston, Illinois, police officer. As a police officer, Mr. Orlov was entrusted with a handgun for the purpose of defending himself and others from violent crime.

3. Plaintiff Colleen Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Ms. Lawson’s home has been targeted by burglars.

4. Plaintiff David Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Lawson’s home has been targeted by burglars....

40. Many Chicago gun owners fail to re-register their firearms every year. Among these recently was Alderman Richard Mell, whose firearms became unregisterable when he failed to timely renew his registration certificates.

41. Accordingly, Alderman Mell proposed an ordinance amending the law to permit, for one month, lapsed guns to be re-registered if their owners had attempted to re-register their guns between May 1, 2007 and April 1, 2008, a period that would have covered his lapsed firearm registrations.

42. Defendant Mayor Daley endorsed Mell’s proposal, stating: “A lot of people go back and forth to their summer homes ... A lot of people move their shotguns. A lot of ’em are bird hunters, gun collectors.... They move ’em back from Wisconsin, Michigan, [other] parts of Illinois.”

43. Defendant Mayor Daley added: “It’s one time [for] one month ... You want to have ’em register. There’s nothing wrong with that ... People want to just register. A lot of ’em bring ’em back from hunting trips. So, why not?”

44. Speaking of Alderman Mell’s desire to re-register his lapsed guns, Defendant Mayor Daley stated: “He has a home in Wisconsin. He brings ’em back and forth. He’s not running out with a shotgun and hurting people.

45. The proposed re-registration amnesty bill was passed by the Chicago City Council, with the amnesty period extended to 120 days. The fee for re-registering a lapsed firearm under the amnesty bill is $60.00.”

My questions: (1) The main issue in this case is to what extent the Second Amendment applies to the states via the Fourteenth Amendment. It's at least conceivable that the Amendment might apply to the states differently than it does to the federal government; this is an unlikely result, but one the Court reached in the early 1970s as to the Jury Trial Clause, which has been read as requiring unanimous juries in federal prosecutions but not state prosecutions. If this is so, then is it clear that the remaining sentences of paragraphs 1 through 4 are surplusage? Or is the judge simply assuming that the Second Amendment is either fully incorporated or not at all incorporated, so that Heller view -- which is that the right to keep and bear arms doesn't require any special justification on the claimant's part -- is dispositive?

(2) Why doesn't the material related to the reregistration ordinance potentially undermine the strength of the government's likely argument that the ordinance's constraints on law-abiding citizens are really needed to fight crime (quite independently of the digs at the supposed self-dealing by Chicago officials)? True, it might prove to be irrelevant, but that's not clear now. Or is it just that the proper place for introducing such matters is at trial and in pretrial motions, rather than in the complaint?


Another Early Post-Heller Second Amendment Case:

It's U.S. v. Dorosan (E.D. La.), in which defendant -- a postal worker -- was found guilty last week of possessing firearm on postal property. The postal worker had a gun in the glove compartment of his car, which was parked in the Post Office lot; but this was found because a postal inspector, Norbert Lewis, "discovered a black canvas bag on the workroom floor next to a letter case for Route 5301. Said route was worked by the defendant ... on the previous day. Lewis did not know to whom the bag belonged so he opened the bag and found a magazine with twelve (12) rounds or .40 caliber hand gun ammunition and three (3) empty shell casings in the bag."

The magistrate judge's opinion rejecting Dorosan's Second Amendment challenge was filed last Monday; the discussion is fairly long, but I thought I'd offer a few excerpts:

Both Heller and Emerson [the 2001 Fifth Circuit case that anticipated the Heller individual rights ruling] ... make it clear that the “right to bear arms” –- albeit an individual fundamental right of all Americans secured by the Second Amendment –- is not unlimited....

The Property Clause of the United States Constitution grants Congress the right to regulate federal property. It provides: “The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the territory or other Property belonging to the United States....” The Fifth Circuit has routinely upheld federal regulations that are designed to promote workplace and public safety on government property....

Clearly, 39 C.F.R. § 232.1(1)[,] which bans possession of weapons solely on postal property is not unconstitutional as applied. Neither Heller nor Emerson involved gun control regulations banning possession of “arms” on federal property. Indeed, the Supreme Court in Heller described the District’s statute as a law that “totally bans handgun possession” extends to the home and “requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.

The regulation at issue in this case is far more limited in application in that it (1) applies only on the confines of properly noticed postal property, (2) is sanctioned by both the Property and Postal Clauses of the U.S. Constitution and (3) falls within the Heller Court’s category and non-exhaustive list of excepted longstanding prohibitions on carrying firearms –- i.e., “sensitive places such as schools and government buildings.”

Indeed, federal law (OSHA) requires employers to abate workplace hazards and encourages employers to take measures to prevent gun-related injuries. Surely, the United States Postal Service would be remiss if it failed to practice what federal law requires. Without question, § 232.1(1) bolsters the United States Postal Service’s zero tolerance for workplace violence and is a regulation designed to maintain safety and order on postal property. 18 U.S.C. § 930 (a), which prohibits possession of dangerous weapons, serves the same purpose within federal facilities. Congress has the authority to regulate safety of the post office and its property, notwithstanding the individual right to bear arms in the home, “where the need for defense of self, family and property is most acute.”

The ban at issue does not affect the right of all individuals to bear arms at home or traveling in a vehicle to and from work through high crime areas. Its reach does not extend beyond the noticed, gated confines of United States Postal Services’ property. It is narrowly tailored to effect public and workplace safety solely on postal property consistent with the Property and Postal Clauses. Similarly, 18 U.S.C. § 930(a) criminalizes knowing possession of dangerous weapons, but only within the confines of a federal facility/building. Regulations forbidding the possession or carrying of firearms “in sensitive places” such as federal and/or postal property abound; these longstanding prohibitions have been upheld.

I think the invocation of an enumerated Congressional power as a counterweight to an individual right -- what I call the Constitutional Tension Method -- is a mistake. All things that Congress does must theoretically be pursuant to some enumerated power. The D.C. gun ban was enacted, indirectly, through the enumerated power to legislate for the District of Columbia (though Congress exercised that power by letting the D.C. City Council enact ordinances, subject to the possibility of Congressional repeal). The point of the Bill of Rights, whether we're talking about the First Amendment or the Second or the Fourth or any other, was to constrain Congress in the exercise of its powers. (I wrote about this in the First Amendment context in this article.)

I also think the argument based on federal health and safety law is at the very least too cursory, and likely unsound. The USPS "would be remiss if it failed to practice what federal law requires," but federal law doesn't require gun bans by employers, and even if it did there would still be the question of whether such a requirement is constitutional under the Second Amendment. The court just seems to be assuming that the federal law is constitutional, without explaining why this is so.

Nonetheless, the other arguments may well be correct, especially given the language in Heller; I can't speak with complete confidence about the subject. I just wanted to flag my disagreement with the reliance on the enumerated power and on OSHA.

Note: While I was at first skeptical about the claim that "The ban at issue does not affect the right of all individuals to bear arms at home or traveling in a vehicle to and from work through high crime areas," I take it that the court is assuming (quite likely correctly) that Dorosan could have parked the car on a public street outside the post office.


Man Gets 4,060 Year Prison Sentence:

For sexual assault of three teenage girls. The judge ordered the sentences to be served consecutively. He'll be eligible for parole in 3029.


The Bill of Rights in Film:

In honor of the 4th of July holiday, Rotten Tomatoes has posted a list of films that put the first ten amendments to the constitution in "cinematic context." They're film guys, but VC readers should know a little more about the law, so give us your recommendations for film scenes that capture the significance of those rights enumerated in the first ten amendments.


One of The First Post-Heller Second Amendment Opinions:

Mullenix v. BATF (E.D.N.C. July 2, 2008):

Plaintiff is a federally-licensed firearms dealer, and alleges that the ATF arbitrarily denied him permission to import a reproduction of a World War II-era German machinegun[, the BD44]....

Title 18, section 925(d) of the United States Code provides that certain types of firearms may be imported into the United States. Among these are firearms “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” ... [T]he ATF determined that the BD44 was not importable under section 925(d)(3) because it was not “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” Plaintiff challenges the ATF's decision. Plaintiff argues that the ATF's interpretation of section 925(d)(3) is arbitrary and capricious, and seeks damages for lost income resulting from his inability to sell BD44s to prospective military re-enactors....

Plaintiff first argues that “[a]ll bans [on gun ownership] are clear unconstitutional infringements to the right to own and bear arms.... [In Heller,] the Supreme Court rejected the notion that the Second Amendment right is unlimited:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right [to keep and bear arms] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

In light of Heller, plaintiff's facial challenge to section 925(d) fails.

Alternatively, plaintiff contends that, although Congress has the power to regulate the individual right to keep and bear arms, “regulation” of that right is limited to reasonable time, place, and manner restrictions. According to plaintiff, Congress may not “regulate” his individual right to keep and bear arms by declaring that he may not own certain types of arms, and he may accordingly own almost any type of weapon he chooses (including the BD44) so long as he complies with reasonable time, place, and manner restrictions. See [plaintiff's brief] at 7-8 (“[N]ever does Congress have the right ... to ban the ownership of any defensive arm equivalent or superior to that used by the standing armies of the United States.”).

Unfortunately for plaintiff, the Supreme Court rejected this argument in Heller. See Heller at *26 (construing United States v. Miller, 307 U.S. 174 (1939), to hold that “the type of weapon at issue [a sawed-off shotgun] was not eligible for Second Amendment protection”); id. (“Miller stands ... for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”); id. at *27 (finding it a “startling reading” of Miller to suggest “that the National Firearms Act's restrictions on machineguns ... might be unconstitutional”); id. at *28 (“[T]he right [is] not a right to keep and carry any weapon whatsoever....”). Accordingly, in light of Heller, the court rejects plaintiff's challenge to section 925(d), and rejects plaintiff's claim that the Second Amendment entitles him to possess the BD44 in this case.

Not a surprising result, or likely an important one, but it is one of the first, so I thought I'd note it.

UPDATE: When I posted this, I labeled this the "first" post-Heller Second Amendment opinion -- forgetting that Lexis sometimes has unpublished cases that Westlaw doesn't, and neglecting (for no good reason) the fact that some unpublished cases never make their way to Lexis or Westlaw and a few others take some time to get posted. I've revised the title accordingly, and will blog shortly on at least one earlier post-Heller Second Amendment case. Thanks to commenter ClosetLibertarian for reminding me about this.


Sunday, July 6, 2008

Post Calls for Kennedy Rehearing:

On Saturday, the Washington Post called for the Supreme Court to rehear its decision in Kennedy v.Louisiana holding unconstitutional the death penalty for child rape.

There was quite a goof in the court's 5 to 4 decision on June 25 banning the death penalty for those who rape children. The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that "37 jurisdictions -- 36 States plus the Federal Government -- have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child." Actually, only two years ago, Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of an act of Congress based on the erroneous claim that the statute did not exist.
The Post notes that the various parties failed to identify the recently enacted UCMJ provision, so it does not place all the blame on the Court. The SG's office and the various parties were asleep at the switch -- as was the mainstream media, which only picked up the story after a blogger noted the mistake.

The Post supported the Court's Kennedy decision, but argues rehearing is necessary for the Court's crediblity. As the Post's editors explain, "The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations." Even if the Court reaches the same result, it should not mischaracterize federal law.


Lands Council v. McNair:

I've finally had the chance to read through the U.S. Court of Appeals for the Ninth Circuit's en banc opinion in Lands Council v. McNair. I think it could be quite a significant environmental case, even beyond the federal land management issues it directly addresses.

Of initial note is the court’s simple disposition: an 11-0 en banc reversal of a divided three judge panel. While the composition of en banc panels on the Ninth Circuit is randomly determined, it is still striking that not one of the eleven judges sided with the original panel. In the original panel opinion, Judge Ferguson wrote the majority, joined by Judge Reinhardt. Judge Milan Smith dissented, prompting a responsive concurrence from Judge Ferguson. Now it appears Judge Smith has had the lat word as the author of the en banc opinion. In this opinion he was joined by Chief Judge Kozinski and Judges Rymer, Kleinfeld, Hawkins, Silverman, McKeown, Fisher, Berzon, Clifton and N. Randy Smith.

The case grew out of a challenge to the selective logging of some 3,800 forest acres in Idaho as part of a larger project to help improve forest health, reduce fire risks, and recreate the forest’s historic composition. According to the plaintiffs, the USFS had failed to comply with the National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA) in developing its plans. A district court had denied the plaintiff’s request for a preliminary injunction, but a three-judge panel of the Ninth Circuit reversed. The en banc court vacated the injunction, finding that the original panel had overstepped its bounds.

From the outset, the opinion makes clear that its purpose is to reorient aspects of the Ninth Circuit’s environmental jurisprudence, at least with regard to federal land management. As Judge Smith summarized:

In essence, Lands Council asks this court to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty. As we will explain, this is not a proper role for a federal appellate court. But Lands Council’s arguments illustrate how, in recent years, our environmental jurisprudence has, at times, shifted away from the appropriate standard of review and could be read to suggest that this court should play such a role.
As I noted in my prior post, the en banc court explicitly overruled its prior decision in Ecology Center v. Austin which had effectively required the USFS “to always ‘demonstrate the reliability of its scientific methodology’ or the hypotheses underlying the Service’s methodology with ‘on the ground analysis,’” when making projections about the likely impact of forest management projects. [Judge McKeown, who dissented in Ecology Center was on the en banc panel.] According to Judge Smith’s opinion, Ecology Center adopted overly expansive interpretations of circuit precedent, invented a legal requirement “not found in any statute or regulation,” and “defied well-established law concerning the deference we owe to agencies and their methodological choices.”

The en banc court also reins in the Ninth Circuit’s NEPA jurisprudence quite significantly. Specifically, the court found that prior panels had adopted unduly rigorous standards for the Environmental Impact Statements (EIS) NEPA can require.

We have previously faulted the Forest Service for not addressing uncertainties relating to a project “in any meaningful way” in an EIS. [citations omitted] But none of NEPA’s statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS. Thus, we hold that to the extent our case law suggests that a NEPA violation occurs every time the Forest Service does not affirmatively address an uncertainty in the EIS, we have erred. [citations omitted] After all, to require the Forest Service to affirmatively present every uncertainty in its EIS would be an onerous requirement, given that experts in every scientific field routinely disagree; such a requirement might inadvertently prevent the Forest Service from acting due to the burden it would impose.
While the opinion focuses on implementation of the NFMA and NEPA, it is likely to have a broader impact in environmental cases. The Ninth Circuit has been an outlier in environmental law. Among other things, the Ninth Circuit has applied NEPA’s requirements in a more rigorous fashion, giving federal agency actions significantly more scrutiny do than other circuits (not to mention the Supreme Court). Last week’s opinion is a significant rebuke to this approach and should herald somewhat more deferential review of agency actions in environmental cases.


Judge Brown's Non-Delegation Doctrinal Revival:

It is not very often that the non-delegation doctrine is raised in federal appellate litigation, and perhaps for good reason. The Supreme Court has not looked favorably upon a non-delegation challenge to federal agency action in decades. Yet in a recent case before the U.S. Court of Appeals for the D.C. Circuit, Michigan Gambling Opposition v. Kempthorne, the appellants pressed a non-delegation challenge to aspects of the Indian Reorganization Act (IRA), and actually managed to secure one judge’s vote.

Michigan Gambling Opposition (MichGO) challenged the Bureau of Indian Affairs (BIA) decision to take approximately 150 acres of land in Michigan and place it in trust for use by an Indian tribe for the construction and operation of a casino. According to MichGo, the provisions of the IRA upon which the BIA relied constituted an unconstitutional delegation of legislative authority to the agency. Specifically, MichGO argued, Section 5 of the Act’s authorization for the BIA to acquire land “for the purpose of providing land for Indians” lacks an “intelligible principle” to guide the agency’s implementation of the Act’s delegation of authority.

Two judges on the panel, Douglas Ginsburg and Judith Rogers, found this argument wholly unconvincing. Their per curiam opinion noted that an “intelligible principle” may be derived not only from the statutory text, but also its purpose, “factual background” and “statutory context.” Further, they noted, the Supreme Court has been quite permissive in its enforcement of the nondelegation doctrine, and has upheld far broader delegations than that contained in the IRA. (Indeed, some commentators suggest that the doctrine is all but a dead letter.) The opinion also noted that the First, Eighth, and Tenth Circuits had also rejected nondelegation challenges to the IRA within the past ten years.

Judge Janice Rogers Brown was convinced by MichGo’s arguments, however. As she explained in her dissent:

Like other courts that have rejected nondelegation challenges to § 5 [citations omitted], the majority nominally performs a nondelegation analysis but actually strips the doctrine of any meaning. It conjures standards and limits from thin air to construct a supposed intelligible principle for the § 5 delegation. Although I agree the nondelegation principle is extremely accommodating, the majority’s willingness to imagine bounds on delegated authority goes so far as to render the principle nugatory. Analyzing the statute using ordinary tools of statutory construction, as the Supreme Court has always done in nondelegation cases, I am forced to conclude § 5 is unconstitutional.
And she concludes:
Section 5 gives the Secretary unguided authority to transfer areas of land from the jurisdiction of state and local government to that of various bands of Indians. None of the foregoing implies BIA has exercised its authority wantonly. But the question is not what it has done, but what it has authority to do. The authority was Congress’s to give, and the boundaries were for Congress to provide as well. Since it has failed to do so, I am forced to conclude § 5 of the IRA is an unconstitutional delegation.
One might expect such an argument from an academic – indeed there are several academics who have written quite powerfully on the need to reinvigorate the nondelegation doctrine in administrative and constitutional law. Yet given the Supreme Court’s reluctance to endorse even the most tepid nondelegation principles, it is somewhat surprising to see these arguments aired by a federal appellate judge. Will Judge Brown's opinion be a lonely and singular dissent? Or could it be a herald of a doctrinal revival?

Related Posts (on one page):

  1. More Signs of a Non-Delegation Doctrinal Revival?
  2. Judge Brown's Non-Delegation Doctrinal Revival:

Sunday Song Lyric: We're in the Scottish highlands for a wedding. (Kilt picture may follow.) We saw the Eilean Donan Castle yesterday. The castle was featured in Highlander, one of those films that has an oddly enduring popularity, but that also seems like an appropriate source for this week's song lyric. Here's the opening of Queen's "Princes of the Universe" that was featured in the movie.
Here we are, born to be kings
We're the princes of the universe
Here we belong, fighting to survive
In a world with the darkest powers

And here we are
We're the princes of the universe
Here we belong, fighting for survival
We've got to be the rulers of your world

I am immortal
I have inside me blood of kings
I have no rival
No man can be my equal
Take me to the future of new earth
Here are the full lyrics, and here is a movie video of the song.

Fascism in the U.S. Courts!

Just noticed this today:

See here for more details. Proof positive, it seems to me. Of everything.

UPDATE: After I linked to the Wikipedia entry, someone deleted the section I was linking to; fortunately, commenter Anderson posted a link to the old version of the entry, and I've revised this post to link to that. That sort of thing is one of the problems with linking to Wikipedia, though it's not that serious a problem when it comes to topics such as this.