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Saturday, November 15, 2008

John Coltrane Quartet Plays "On Green Dolphin Street": I haven't done any weekend jazz-blogging in a while, but here's a great clip: John Coltrane and the rhythm section of Miles Davis's 1960-era quintet playing "On Green Dolphin Street." Miles was touring through Europe at the time, with Coltrane on tenor, and this clip is of the group without Miles. Wynton Kelly is on piano, Paul Chambers is on bass, Jimmy Cobb plays drums.
The clip above is on this terrific DVD, available from Amazon. If you want to hear more audio, pick up any of the many recordings of the Miles Davis Quintet with Coltrane in Europe in 1960. Several concerts are available, and the ones I have are all pretty good, although the Stockholm concert is probably my favorite.
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Paulson is the Problem, Not the Solution:

So says my GMU Econ colleague Russ Roberts:

When no one knows how the rules of the game are going to change — and they seem to change from week to week — who wants to take a risk? Who wants to borrow money? Who wants to invest? Business and consumers are hunkering down, waiting for the storm of change to pass.

The problem isn't liquidity.

It's uncertainty.

Paulson doesn't realize that his erratic attempts at creating liquidity are creating the uncertainty that makes liquidity meaningless.

Read the whole thing--Russ's analysis seems right on to me.

It is hard to see why anyone would start a business or buy, sell, or refinance a house right now when you have no clue as to what the economic framework is going to be even a week or a month from now. And that is just the day-to-day gyrations of the Bush Administration, ignoring what Congress and President-elect Obama might have up their sleeves in two months. Would you buy a General Motors car right now?

Critics of FDR's interventions during the Great Depression have made the same point--regardless of the merits of FDR's interventions, the constant madcap experimentation and lurching around undermined the stability necessary to pull the country out of the Depression.

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Friday, November 14, 2008

"Judge: Evidence of suicide OK at Web hoax trial": The Associated Press has this update in the Lori Drew case. The case is now set to go to trial next week in Los Angeles. (For those wondering, no, unfortunately I will not be in Los Angeles to participate in the trial in person; next week is our last full week of class at GW, so much to my regret I cannot be away for this.)
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Nationwide pro-SSM demonstrations tomorrow:

Simultaneous protests are planned for small and large cities in all 50 states tomorrow in reaction to the passage of Prop 8 in California. The sites of the protests will be government buildings -- mostly city halls and other municipal facilities. (Mormon churches, I'm pleased to say, are not on the target list for tomorrow's events.)

For info on times and locations for protests in your area, go to the Join the Impact website.

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California Supreme Court "interested" in challenge to Prop 8:

That's according to the title of this story in the San Francisco Chronicle . Apparently, the state high court has ordered the state attorney general to respond to the lawsuit filed by opponents of Prop 8 last week arguing that the measure was an unconstitutional "revision" of the state constitution rather than an "amendment." (For my thoughts about the substance of the lawsuit, see my post here. For Eugene's more skeptical view of the claim, see his post here.) According to the story, the response is to be limited to the question whether the state supreme court should even hear the dispute and whether it should enter a stay, or dismiss the suit and let it be litigated initially in the lower state courts.

I know almost nothing about California state court practice and would be interested in whether those who do know more about it see this as a signal that, as the Chronicle puts it, "the justices are taking the cases seriously."

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Important New Campaign Finance Case To Be Decided by the U.S. Supreme Court:

It's Citizens United v. FEC, which the Court just agreed to hear. Here's SCOTUSblog's summary:

The new campaign finance case involves a plea by a conservative advocacy group, Citizens United, to create a new exception to a 2002 law’s ban on radio or TV ads that corporations and labor unions air close to election time, so that the ban would not apply to a feature-length movie aimed at a candidate for President or for Congress. The appeal also urges the Court to strike down the 2002 law’s disclosure requirement for election-season broadcast ads when those ads are not subject to the ban itself. And it seeks to test whether a 2003 Supreme Court decision bars all challenges to the law’s disclosure requirements, even if the challenge is an as-applied claim.

The ban at issue in the case is the so-called “electioneering communications” provision of the Bipartisan Campaign Reform Act of 2002. It bars corporations (including non-profit firms) and labor unions from using their own treasury funds to finance ads naming a federal candidate, if the ad appears on radio or TV 30 days before a primary election or nominating convention or 60 days before a general election.

Citizens United had prepared a film, titled “Hillary: The Movie,” and it released it to theaters and for store sales on DVD. It did not go forward with plans to put out the movie in TV-on-demand access on cable TV, because it feared the FEC would apply the ad ban to it. A federal District Court ruled that the movie about Sen. Clinton was the kind of radio and TV broadcast that ran afoul of the ban, interpreting it as a call to voters not to support her because she was unfit for the presidency. Citizens United also prepared a similar critical film about Sen. Barack Obama, titled “Hype: The Obama Effect,” and it, too, was released during the campaign.

Even though the presidential and congressional elections this year are over, Citizens United’s appeal to the Supreme Court appears to be still a live one because the group has indicated it plans to prepare and air such films in future campaigns. The FEC did not contend that the Court lacked jurisdiction to hear the appeal, and on Friday the Court simply “noted probable jurisdiction,” indicating that it agreed it had authority to decide the case.

The BCRA provisions requiring disclosure, all being challenged in the appeal, require any corporation or union spending more than $10,000 a year to produce or air the kind of ad covered by the law must reveal to the FEC the names and addresses of anyone contributing more than $1,000 for the ad. Another provision requires that, if an ad is not authorized by a candidate or political committee, the broadcast must also say who is responsible for its content, and provide the name and address of the group behind the ad.

The District Court said the Supreme Court’s 2003 decision in McConnell v. FEC, upholding many of the provisions in the BCRA law, upheld those disclosure requirements even if a particular radio or TV ad would not be banned under that law, and thus no new challenges to these requirements were allowed.

The jurisdictional statement asking the Court to agree to hear the case (what would be a certiorari petition if this were a certiorari case, but this one is a statutory direct appeal) is here. The FEC's response is here.

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Is the Sixth Circuit Overulling Miranda?

Yesterday, Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth Circuit wrote quite a fiery dissent in Davie v. Mitchell, suggesting that the Court was effectively overruling Miranda v. Arizona.

The majority in this case is reading the AEDPA statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Here, as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination. The capital defendant invoked both his right to silence and counsel to no avail before he was then enticed to confess.
He concluded his opinion in similar tones:
I . . . dissent from the effort by my colleagues to bury Miranda under a mountain of AEDPA rhetoric. Until the Supreme Court overrules Miranda, we should follow it, no matter how much we prefer to side with the police against the liberties created by the Fifth and Sixth Amendments.
What could have Judge Merritt so upset? The decision by Judge John Rogers, joined by Judge Guy Cole, to deny the habeas petition of Roderick Davie, who was sentenced to death for the murder of two people and the attempted murder of a third. Specifically, Judge Merritt believes Davie's confession was obtained in violation of his Constitutional rights to remain silent and have the assistance of counsel.

Here is how Judge Rogers describes the circumstances surrounding the confession.

At approximately 8:30 a.m., Davie was arrested, read his Miranda rights, and transported to the police station. At approximately 9:05 a.m. at the police station, Detective Hill read Davie his Miranda rights with Lieutenant Carl Blevins present. Davie initialed the rights form but refused to sign the waiver. At that point, the officers made no attempt to interrogate Davie. At approximately 9:59 a.m., Captain Downs and Blevins entered the interrogation room and again advised Davie of his Miranda rights. Davie initially made some comments, he ultimately declined to speak further with the officers, and the interview ceased. At approximately 12:15 p.m., authorities again questioned Davie. Davie provided some information to police, including the fact that he had his gun with him that morning, but he did not confess to the crime. At 12:35 p.m., Davie indicated that he had nothing more to say and the interview ceased. At approximately 2:00 p.m., Davie indicated that he wanted to speak with Detective Vingle. After Vingle advised him of his Miranda rights, Davie confessed. See 686 N.E.2d 245, 256 (Ohio 1997). At no time during the relevant events did Davie ask for a lawyer.
Based upon these facts (discussed in far greater detail in Judge Cole's concurrence), and the degree of deference federal courts are required to show state courts under AEDPA, Judges Rogers and Cole concluded Davie's confession was voluntary, particularly because he initiated the discussion with the police that led to the confession. Indeed, "even under a nondeferential analysis," Judge Rogers wrote, "the police did not violate Davie's constitutional rights under Miranda v. Arizona. Judge Merritt obviously disagreed, in part because Davie never signed a waiver of his rights.

This case strikes me as something of a close call, and is largely dependent upon how one characterizes the repeated interactions between Davie and the police. If one thinks these interactions were relatively benign and non-coercive, the majority is correct. If, on the other hand, the repeated interactions with the police were more menacing — Judge Merritt characterizes each interaction as a "confrontation" — then Davie's confession may have been obtained in violation of Miranda. Given the deferential standard of review under AEDPA, however, this means the majority is probably correct as a matter of law. And although I live in the Sixth Circuit, I am not about to lose sleep about this alleged erosion of Miranda.

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Karl Rove on the Election:

Interesting analysis of the election results from Karl Rove in yesterday's WSJ. After noting the big increase in minority turnout for Obama he notes the big story on the Republican side--the decline in turnout about Republican voters:

Then there were those who didn't show up. There were 4.1 million fewer Republicans voting this year than in 2004. Some missing Republicans had turned independent or Democratic for this election. But most simply stayed home. Ironically for a campaign that featured probably the last Vietnam veteran to run for president, 2.7 million fewer veterans voted. There were also 4.1 million fewer voters who attend religious services more than once a week. Americans aren't suddenly going to church less; something was missing from the campaign to draw out the more religiously observant.

In a sign Mr. Obama's victory may have been more personal than partisan or philosophical, Democrats picked up just 10 state senate seats (out of 1,971) and 94 state house seats (out of 5,411). By comparison, when Ronald Reagan beat Jimmy Carter in 1980, Republicans picked up 112 state senate seats (out of 1,981) and 190 state house seats (out of 5,501).

In the states this year, five chambers shifted from Republican to Democrats, while four shifted from either tied or Democratic control to Republican control. In the South, Mr. Obama had "reverse coattails." Republicans gained legislative seats across the region. In Tennessee both the house and senate now have GOP majorities for the first time since the Civil War.

Republicans staying home thus squares the circle that Ilya has noted--namely the apparent increase in turnout among young voters and minorities while the absence of a noticeable increase in turnout overall.

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Peter Robinson on the Erosion of Economic Liberty:

here, commenting primarily on the erosion of economic liberty:

Over dinner with Milton Friedman several years before he died, I offered the great man a compliment. He refused it.

I had just re-read God and Man at Yale, the 1951 book in which William F. Buckley Jr., denounced the leftist attitudes he had encountered among the Yale faculty and administration as an undergraduate. Buckley singled out the department of economics as the most collectivist department on the campus. "Today," I said, "nobody would call the economics department at a major university 'collectivist.'"

Academia as a whole may have continued its long, sorry wobble to the left, I continued, but the economics profession had proved an exception, moving the other way. Departments of economics across the country now grasped the importance of free markets. "Mises, Hayek, Stigler and you," I told Friedman. "You've transformed the intellectual climate. You've won."

Friedman shook his head. "We may have won the intellectual battle," he replied, "but in practical politics, it's difficult to see that we've had any effect at all."

Government spending had continued to grow, he explained. After a pause during the Reagan years, regulations had once again proliferated. For a moment, Friedman grew silent. Then he looked at me.

"The challenge for my generation," he said, "was to provide an intellectual defense of liberty. The challenge for your generation is to keep it."

As Peter notes, the decline of principled commitment to economic liberty has been a bipartisan affair.

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Thursday, November 13, 2008

Campaign Contribution Disclosure and Technological Change:

Paul Sherman of the Institute for Justice raises an interesting set of questions:

When discussing the Buckley and Brown holdings on disclosure, I think it's important to keep in mind that both decisions were written years before the Internet made campaign-finance data easily available to anyone with an idle curiosity in your political activity. In 1976 the average donor probably didn't have much to fear from having their contributions disclosed, because the cost of accessing that data was relatively high. But when that data can be accessed with just a few keystrokes, methods of retaliation that are already virtually impossible to detect or prove suddenly become very low cost. How can I demonstrate to a court, for example, that I was denied a job because I made a contribution to a disfavored candidate or ballot initiative? With employers routinely performing Google searches of job applicants, is it unreasonable to think this happens with some frequency?

I don't know the answers to these questions, or to the broader question of what should happen to campaign finance law in light of these questions. But I do think these are much worth considering.

For more from the Institute for Justice on this, see Disclosure Costs: Unintended Consequences of Campaign Finance Reform, and Campaign Finance Red Tape: Strangling Free Speech and Political Debate.

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Disclosure of Contributors to Ballot Measures:

The Ninth Circuit has upheld California laws that mandate the disclosure of contributions to ballot measure campaigns (see here and here). But Buckley v. Valeo (1976) and Brown v. Socialist Workers' 74 Campaign Committee (1982) held that "the First Amendment prohibits the government from compelling disclosures [of campaign contributions] by a minor political party that can show a 'reasonable probability' that the compelled disclosures will subject those identified to 'threats, harassment, or reprisals.'"

Presumptively, the same rule should apply as to compelled disclosures of contributions to ballot measure committees -- but does it apply even when the ballot measure may well win (as opposed to a "minor political party," which is nearly sure to lose)?

Relatedly, just how much of a showing of "harassment" and "reprisals" would opponents of same-sex-marriage have to show in order to justify such an exemption? I take it that the theater boycott incident I mention below wouldn't by itself suffice, nor would it if it's coupled with the hotel boycott we blogged about a few months ago. But, given Brown, how many such incidents -- or what types of incidents -- would be required? Does there have to be evidence of violence, police abuse, or firings by employers? Or would evidence of public boycotts of the contributor's business, or the contributor's employer, qualify?

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Boycott Threats Lead to Resignation of Theater Artistic Director Who Contributed to Anti-Same-Sex-Marriage Initiative:

The Sacramento Bee reports:

Scott Eckern, artistic director for the California Musical Theatre, resigned Wednesday as a growing number of artists threatened to boycott the organization because of his $1,000 donation to the campaign to ban gay marriage in California....

Los Angeles-based and Tony Award-winning composer Marc Shaiman ("Hairspray") wrote a blog saying he would never allow any of his shows to again be licensed or performed by California Musical Theatre while Eckern was employed there....

Speech calling for such boycotts is itself constitutionally protected. It neither is nor, in my view, should be illegal for people to refuse to patronize a theater because of the artistic director's political views. It likewise isn't illegal, and shouldn't be illegal for copyright owners to refuse to license their works for such reasons. I don't think there's a constitutional right to refuse to license the work under such circumstances, but I wouldn't support a ban on such refusals.

California law does bar employers from firing their employees for the employees' political activity, which would surely include contributions to political campaigns, and it doesn't seem to have an exception for situations where the employees' activity has caused boycotts or other losses to the employer. (See Cal. Labor Code §§ 1101-02, which has been read fairly broadly.) But it appears that Eckern resigned without being forced to do so by his employer.

Still, it seems to me that this story helps provide a counterpoint to the criticism of people and organizations who boycotted the Dixie Chicks for their statements. For more on the general topic of boycotts for speech, see my Deterring Speech: When Is It “McCarthyism”? When Is It Proper? (PDF pp. 11-30).

UPDATE: More thoughts on this from Adam B at DailyKos.

Related Posts (on one page):

  1. Proposition 8 Donor Maps,
  2. Campaign Contribution Disclosure and Technological Change:
  3. Disclosure of Contributors to Ballot Measures:
  4. Boycott Threats Lead to Resignation of Theater Artistic Director Who Contributed to Anti-Same-Sex-Marriage Initiative:
209 Comments

Social Work Graduate Student at SUNY-Binghamton Facing Punishment for Criticizing Department and Its Relationship with City Housing Authority:

The Foundation for Individual Rights in Education so reports:

Binghamton University's Department of Social Work ordered the suspension of a master's student for one year with no guarantee of return, required him to apologize, and demanded that he publicly disavow his own views after he put up posters challenging the department for having hired the executive director of the Binghamton Housing Authority (BHA)—an agency the student thought was responsible for social injustice. Student Andre Massena, who remains in school pending an appeal, has turned to the Foundation for Individual Rights in Education (FIRE) for help....

On August 25, 2008, Massena put up posters on campus claiming that a woman and her children had been unjustly evicted from their home by the BHA. Under the pseudonym "JUSTICESPEAKS," the poster called the BHA "inhumane" and noted that its executive director, David K. Tanenhaus, is an adjunct professor at the school's Department of Social Work. The poster encouraged readers to call the department "to let them know what you think."

Massena chose anonymity after hearing stories from other students in the department about students being unjustly "advanced" (expelled) from the program. When interrogated about the posters, Massena exercised his right to anonymous speech by declining to acknowledge authorship -- a decision ultimately cited as the official reason for Massena's punishment.

One week later, Massena received a "Written Plan" from his department. It failed to specify any alleged violations, but nevertheless assigned him shockingly onerous and unconstitutional requirements to complete in order to continue his master's program....

And a SUNY document posted by FIRE strongly supports the view that the student is being retaliated against for his speech:

This written plan was created in the spirit of a strengths-based commitment to Mr. Massena’s professional and personal growth, with the hope of all parties moving forward in a positive manner.

Specific actions to be undertaken by Mr. Massena and the dates by which these actions must be completed follow:

1. Mr. Massena will withdraw from all MSW courses for which he is enrolled for the fall term of 2008. He will take a two-semester leave of absence (Fall 2008 and Spring 2009) from the MSW program, in order to reflect upon his readiness to enter the field of social work as a professional practitioner, given his actions during late August, 2008, and the likely as well as possible consequences (both immediate and long-term) of his actions to various individuals, the Dept. of Social Work, Binghamton University, the Greater Binghamton community, and his own professional development....

5. By September 30, 2008, a formal statement of retraction will be written by Mr. Massena, to be signed and dated by him, and forwarded to the President of Binghamton University, the Binghamton University Dept. of Social Work, and the Binghamton Housing Authority, indicating that he does not agree with, and regrets the sentiments expressed in the following statement, which he promoted, initially, by distributing posters/leaflets at the University Downtown Center that said: “We will in no way, shape, or form apologize for any harm or inconvenience this poster may cause Binghamton Housing Authority or Binghamton University and their affiliates.”

6. Mr. Massena will make every effort possible and will inform Profs. Bronstein and Wiener of his efforts to end the process whereby students, service providers and community members approach the Dept. of Social Work in an effort to alleviate “wrong” they may see as occurring at the Binghamton Housing Authority....

7. By September 30, 2008, Mr. Massena will acknowledge verbally to Dr. Bronstein and Dr. Wiener that he understands that he is entitled to his opinions, and that taking responsibility for the harm that his actions have and may have caused is not the same as having these opinions.

8. By May 8, 2009, Mr. Massena will have completed an APA-formatted, 10-12 page critical reflection paper .... The subject of this paper will be: “effective professional strategies in the ethical practice of ‘macro’ social work in the early 21st century.” Mr. Massena will be provided with an initial reference for this paper (a scholarly essay by Olson) by Dr. Wiener, and the essay by Olson will be the foundational premise from which Mr. Massena’s essay begins. Mr. Massena will be responsible for finding four additional “outside sources” to support his self-reflections; the development of his “professional use of self” will be evident in the paper, and the “outside” references are not meant to “trump” his own “voice.” In contrast, his “voice” should have primacy....

Perhaps there are more facts that suggest that Mr. Massena misbehaved in ways other than just criticizing the city and linking the department to the city's actions (on the grounds that "Binghamton Housing's Director holds a [master's] degree in social work and is currenly teaching social work at [SUNY-Binghamton]"); but neither FIRE nor the report points to them, and I have found FIRE to be highly credible and thorough in its accounts in the past. And beyond that, the report's orders to Massena suggest that SUNY was indeed complaining about the content of the criticism ("Mr. Massena will make every effort possible and will inform Profs. Bronstein and Wiener of his efforts to end the process whereby students, service providers and community members approach the Dept. of Social Work in an effort to alleviate “wrong” they may see as occurring at the Binghamton Housing Authority") and the effects of that content, rather than some unspecified other misbehavior. Seems to me like a clear violation of the First Amendment and of student academic freedom principles.

Related Posts (on one page):

  1. SUNY-Binghamton "Abandons Attempt to Suspend or Expel" Student Critic:
  2. Social Work Graduate Student at SUNY-Binghamton Facing Punishment for Criticizing Department and Its Relationship with City Housing Authority:
70 Comments

Interesting Question on Incoming Administration's Questionnaire for Those Seeking High Posts:

Question 59:

Do you or any members of your immediate family own a gun? If so, provide complete ownership and registration information. Has the registration ever lapsed? Please also describe how and by whom it is used and whether it has been the cause of any personal injuries or property damage.

(See the New York Times article.) Naturally, the Administration is entitled to know a great deal about its prospective high-ranking members, especially with regard to possible violations of the law, both for its own sake and in order to anticipate possible political problems. And the questionnaire certainly asks about a lot more than just guns, e.g., question 46, "Have any members of your family or close social or business associates been arrested for, charged with and/or convicted of a crime, other than a minor traffic violation? If so, please identify and describe each such arrest, charge or conviction. Please provide the same information for anyone under your professional supervision, or anyone of your superiors." Still, it struck me as interesting that gun ownership and gun registration was one of the things that they'd specifically ask about. It also struck me as interesting, though perhaps necessary given the reasonable worry about political blowback should the facts come out, that people would be told to report (1) gun ownership not just by themselves but also by immediate family members, and (2) possible hitherto undisclosed criminal conduct by their immediate family members (which likely includes adult children and possibly parents or siblings, though that's hard to tell).

UPDATE: As some commentators have pointed out, most states don't require registration for guns, but I understood the question as asking about registration information, if any: If the guns don't need to be registered and have never had to be registered (because the people had only owned guns in no-registration jurisdictions), then the registration information would be "no registration required," and the answer to "has the registration ever lapsed?" would be "no."

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Military Commissions and National Security Courts After Guantanamo

My colleague Professor Amos Guiora has just written an interesting essay about what to do with the Guantanamo detainees. Here is an abstract:

In the aftermath of 9/11, definitional uncertainty as to the status and rights of detainees has contributed to unending violations of civil and political rights for thousands of individuals held world-wide either directly by, or on behalf of, the United States. While various terms have been used to label detainees including "enemy combatant," "illegal belligerent," and "enemy belligerent," all fail to define the rights such individuals should be granted. Admittedly, this process has been made more difficult by a continued inability--perhaps unwillingness-- to define the conflict in a consistent manner. Is this a war? Is this a "war on terror"? Is this police action? Considering this definitional uncertainty, the critical question becomes where to appropriately try these detainees--how to try these individuals while protecting classified intelligence and also maintaining individual rights.

In this essay, I propose that detainees are neither prisoners of war nor criminals in the traditional sense; rather they are a "hybrid" of both. To that end, I recommend that the appropriate term for post 9/11 detainees is "individuals suspected of involvement in terrorism." This definition adopts aspects of both the prisoner of war and criminal law paradigms, thereby creating what I have called a "hybrid paradigm." The hybrid paradigm seeks to balance--or maximize--the legitimate rights of the individual with the equally legitimate national security rights of the state. Furthermore, it seeks to move beyond the amorphousness that has defined much of the debate over the last seven years.

To try these individuals, I suggest a hybrid "domestic terror court" that would allow for an in camera review of confidential intelligence information presented by the prosecutor and a representative of the intelligence services. A properly constituted domestic terror court--comprised of judges schooled in understanding intelligence reports and intelligence gathering procedures, and aware of the necessity of preserving constitutional rights--is the proper starting point in moving forward with post 9/11 terrorist prosecutions. The proposed hybrid paradigm will ensure both the state's obligations to keep intelligence and matters of national security confidential as well as the defendant's right to a fair trial.

You can find the full paper on SSRN here. Sounds like an interesting idea to me.

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Wikipedia Law:

From Flores v. Texas (Oct. 23, 2008) (unpublished memorandum):

Appellant’s first three points of error relate to the trial court’s exclusion of evidence requested by appellant. That is, appellant complains about the exclusion of evidence concerning (1) the “John Reid” technique that allegedly results in false confessions, (2) the “circumstances” surrounding appellant’s written confession, and (3) his wife’s conversations with police, which were said to be contained on a compact disc. We hold that appellant has failed to preserve these complaints for appellate review.

In order to preserve a complaint concerning the exclusion of evidence, a defendant generally must make an offer of proof or file a bill of exception to make the substance of the evidence known. See Tex. R. Evid. 103(a)(2); LaHood v. State, 171 S.W.3d 613, 621 (Tex. App.-Houston [14th Dist.] 2005, pet. ref’d). Otherwise, as here, we cannot assess whether the exclusion was erroneous or harmful. LaHood, 171 S.W.3d at 621. However, appellant failed to make an offer of proof, or file a post-trial bill of exception, to preserve his complaint to the trial court’s exclusion of evidence.[3]

[Footnote 3:] Appellant suggests that we may take judicial notice of information posted on a “reliable website.” We decline appellant’s invitation to take judicial notice of the Wikipedia entry for the “John Reid technique.” See James Glerick, Wikipedians Leave Cyberspace, Meet in Egypt, Wall St. J., Aug. 8, 2008, at W1 (“Anyone can edit [a Wikipedia] article, anonymously, hit and run. From the very beginning that has been Wikipedia’s greatest strength and its greatest weakness.”) (emphasis added).

An interesting and reasonable result, which supports the view that Wikipedia shouldn't be relied on for contested questions. For certain uncontroversial matters (such as that the capital of Armenia is sometimes spelled Erevan), citing Wikipedia is probably fine, given that the time of judges, staff attorneys, and law clerks is valuable and best not spent on tracking down The Perfect Source. But when the matter is subject to reasonable dispute, there should either be a hearing -- as with other facts about the details of a case -- or a more elaborate discussion (as with so-called legislative facts that a court uses to determine the meaning of statutory language, develop various common-law rules, and the like).

Thanks to BNA's Internet Law News for the pointer.

21 Comments

The Car of the Future:

Orin: Does that mean we won't be getting the real car of the future?

17 Comments

Wednesday, November 12, 2008

Batman vs. Batman:

Variety reports:

The mayor of [Batman,] an oil-producing city in southeastern Turkey, ... is suing ... Christopher Nolan and Warner Bros. for royalties from mega-grosser "The Dark Knight."

Huseyin Kalkan, the pro-Kurdish Democratic Society Party mayor of Batman, has accused "The Dark Knight" producers of using the city's name without permission....

The mayor is prepping a series of charges against Nolan and Warner Bros., which owns the right to the Batman character, including placing the blame for a number of unsolved murders and a high female suicide rate on the psychological impact that the film's success has had on the city's inhabitants.

Former natives of Batman are also said to have encountered obstacles when attempting to register their businesses abroad....

Thanks to Jacob Berlove for the pointer.

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Flooogle:

Orin beat me to it, but I also found the story about using Google's search data as a way to detect flu outbreaks to be pretty interesting. My response, I must say, is a little different from Orin's - he found it "creepy," on the grounds that we might not "want Google establishing such a cozy relationship with the federal government." I recognize there's serious potential for abuse -- but on the other hand, take a look at this:

[Taken from the NY Times' story] That's a fairly extraordinary public health tool -- one that, according to the Times story, "may be able to detect regional outbreaks of the flu a week to 10 days before they are reported by the Centers for Disease Control and Prevention." And, at least if there's been no disclosure of personally identifiable information, that's some pretty useful stuff, and I'm not sure I'm so unhappy if the Centers for Disease Control have access to it. It's a very big and very important "if," to be sure, but I would hope that Orin's proposed "Search Engine Privacy Act" statute won't throw this particular baby out with the bathwater.

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Will Obama Appoint A "Car Czar"? From Politico.com:
  President-elect Barack Obama wants a high-profile point person to oversee reforms in the ailing auto industry, according to members of Obama’s transition team.
  Specifics about the proposal remain unclear. But the transition team says Obama suggested to President Bush on Monday that aid to the auto industry could be coupled with the appointment of “someone in charge of the auto issue who would have the authority” to push for reforms. The details came from a more extended readout of the White House meeting provided Tuesday.
  The person would assist in efforts to create an “economically viable auto industry,” a transition aide said – a move that could alleviate concerns about protecting taxpayer interests if more money is directed to assist automakers.
  I don't know about you, but I really look forward to purchasing my new U.S. Government Model 1 Car when the new models are introduced in 2011. Of course, the Model 1 will be the only car legally sold in America by then, so if you want a car, that will be the only one to buy. (You could try buying a used car, but can you afford the $30,000 fine to be levied if the FBI catches you purchasing a used car?) I am sure the Model 1 will be a great car, though, so no worries. In fact, I found a video of the prototype of the Model 1 here, so see for yourself:

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First Opinion in an Argued Case in OT08: That was quick -- the Supreme Court has handed down its first signed opinion of the new Term, Winter v. NRDC, a case argued just a month ago about the standards for a preliminary injunction. In the dog-bites-man department, the Court reversed a Ninth Circuit panel of Reinhardt, Betty Fletcher, and Dorothy Nelson that had enjoined aspects of U.S. Navy sonar training exercises. But what explains the hurry in getting out the complicated set of opinions so quickly? SCOTUSblog explains:
The Court had heard argument in the case on Oct. 8, and moved comparatively rapidly to prepare the opinions because the specific round of sonar exercises the Navy is conducting are to be finished by January, at the latest.
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Tuesday, November 11, 2008

You Can Take My Money, But Leave the Laptop Alone:

A former colleague passes along this gem of a story:

Arizona State University student Alex Botsios said he had no problem giving a nighttime intruder his wallet and guitars.

When the man asked for Botsios' laptop, however, the first-year law student drew the line.

"I was like, 'Dude, no -- please, no!" Botsios said. "I have all my case notes . . . that's four months of work!"

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"Inside a U.S. Hostage Rescue Mission,"

from the Army Times. Thanks to Max Boot (Commentary's Contentions blog) for the pointer.

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U.N. Human Rights Council Appointee Is a 9/11 Doubter:

That's Princeton Prof. Robert A. Falk, U.N. Human Rights Council "Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel," and author of this newspaper article published Sunday discussing his "doubts surrounding the true character of the events surrounding the 9/11 attacks." Not entirely news, given his past writing on the subject, but it was news to me.

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Debating Prop 8 and its aftermath:

There's an interesting ongoing debate at The New Republic between Jeffrey Rosen and Richard Just over the litigation approach to getting gay marriage. Basically, Rosen dislikes the emphasis on litigation and Just thinks it has been valuable.

Elsewhere, the ever-wise Jon Rauch has some thoughts on how the growing protests over Prop 8 may help move attention away from courts and toward a genuine political movement. Or as he puts it, "Goodbye Thurgood Marshall, hello Martin Luther King." I hope he's right, though it's too early to tell how much staying power these protests are going to have in the absence of concrete results. One big difference I see: MLK led the black civil rights movement from churches. We're picketing them.

UPDATE: The L.A. Times weighs in, cataloguing the mistakes of the No on 8 campaign.

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Barack Obama and Executive Power:

One of the main flaws of the Bush Administration was its claim to virtually unlimited wartime executive power. To what extent will Barack Obama depart from Bush in that respect? Some, including co-blogger Eric Posner, believe that Obama will basically stick to the Bush position. Others, including many liberal Democrats, expect a radical departure from the last eight years.

I take an intermediate view. Obama is unlikely to resuscitate the more extreme Bush positions. But neither is he likely to depart from them as much as some of his most fervent supporters want.

On the first point, it's important to remember that most of the Bush Administration's really extreme assertions of untrammeled executive power have already been repudiated in a series of Supreme Court decisions (Hamdi, Hamdan, Boumediene), and in some cases by the Bush Justice Department itself (as in the case of Jack Goldsmith's retraction of the infamous "torture memo"). It seems to me highly unlikely that Obama will try to revive Bush Administration doctrines that even Bush himself was forced to retreat from. Moreover, he will have little practical need to do so. For the foreseeable future, he will have a Democratic Congress eager to give him a free hand. Thus, he won't need to cut them out of the policy loop in order to pursue the policies he wants; after all, his preferences are likely similar to theirs. One of the striking failings of the Bush Administration was its unwillingness to share power with Congress even when Congress was controlled by its political allies. As Goldsmith argued in his book The Terror Presidency, this stance undermined political support for Bush's policies and led to a series of court defeats that ultimately constricted executive power more than a more cooperative approach to Congress might have. Obama is too smart a politician not to draw the appropriate lesson from these debacles.

On the other hand, I think that Obama is unlikely to restrict wartime executive power as much as some left-liberals and libertarians would want. Like most presidents, Obama probably won't easily accept restrictions on powers that he himself is going to wield. Moreover, past experience shows that liberal Democrats are far from unwilling to act on broad theories of executive power. Few if any Bush claims of executive power went as far as Bill Clinton's argument that he could wage war in Kosovo without any kind of congressional authorization. Kosovo was the only war in recent American history that was begun without majority support in Congress.

Another area where Obama is likely to take a broad view of executive authority is in responding to the economic crisis. Here, he might be tempted to exclude Congress to some extent in order to act swiftly and to minimize interest group pressures (which would not necessarily preclude the executive from using "emergency" measures to reward its own favored interest groups). I predict that left-liberals won't object to sweeping executive authority in the economic field as much as they do on national security, though I hope some of them will prove me wrong. Conservatives may not like it, but those who defended the Bush Administration against charges of overreaching might find it difficult to object without being inconsistent. I, on the other hand, will be more than happy to criticize excessive Obama claims of executive authority when I think necessary, because I was critical of Bush as well (e.g. here and here). I hope that Obama won't give me too much occasion to do so, but I'm not especially optimistic on that score.

Related Posts (on one page):

  1. Barack Obama and Executive Power:
  2. Will the Obama administration repudiate Bush-era legal opinions?
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Google To Track Flu Searches and Report Them to Feds?: This report at Drudge strikes me as pretty creepy:
  GOOGLE will launch a new tool that will help U.S. federal officials "track sickness".
  "Flu Trends" uses search terms that people put into the web giant to figure out where influenza is heating up, and notify the Centers for Disease Control and Prevention in real time.
  GOOGLE claims it would keep individual user data confidential: "GOOGLE FLU TRENDS can never be used to identify individual users because we rely on anonymized, aggregated counts of how often certain search queries occur each week."
  It's legal for Google to do this: From a legal standpoint, when you send a query to google, that query belongs to them and they can voluntarily disclose it. But do we want Google establishing such a cozy relationship with the federal government? I don't. I've thought about writing an article calling for a Search Engine Privacy Act, to prevent unauthorized use and disclosure of search queries. Stories like this make me think I may put that on the front burner rather than the back burner.
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Obama's Antitrust Policy:

Josh Wright has some predictions and commentary here.

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"Intelligence Policy to Stay Largely Intact": Siobhan Gorman of the Wall Street Journal reports:
  President-elect Barack Obama is unlikely to radically overhaul controversial Bush administration intelligence policies, advisers say, an approach that is almost certain to create tension within the Democratic Party.
  Civil-liberties groups were among those outraged that the White House sanctioned the use of harsh intelligence techniques -- which some consider torture -- by the Central Intelligence Agency, and expanded domestic spy powers. These groups are demanding quick action to reverse these policies.
  Mr. Obama is being advised largely by a group of intelligence professionals, including some who have supported Republicans, and centrist former officials in the Clinton administration. They say he is likely to fill key intelligence posts with pragmatists.
  "He's going to take a very centrist approach to these issues," said Roger Cressey, a former counterterrorism official in the Clinton and Bush administrations. "Whenever an administration swings too far on the spectrum left or right, we end up getting ourselves in big trouble."
As I noted yesterday in yesterday's thread on Gitmo, the devil is in the details. But this sounds promising to me. Thanks to commenter wyswyg for the link.
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It is plausibly thought that Guantanamo Bay has become an albatross and for symbolic reasons must be closed.

As discussions continue, the following facts should be kept in mind.

1. If some detainees are released or tried in civilian courts, many others will not be released because they are too dangerous, and will not receive regular civilian trials because of security issues. Many other such people—highly dangerous and identifiable if at all only with confidential intelligence methods—remain at large, including Osama bin Laden himself.

2. The Obama administration will not repudiate its right to detain enemy soldiers for the duration of hostilities—an age-old incident of military power that virtually no one rejects. If you can kill enemy soldiers, you certainly should be able to detain them.

3. The Obama administration will also not repudiate the proposition that the conflict with Al Qaeda and affiliates is a military conflict. It follows that the Obama administration will retain the right to detain members of Al Qaeda “for the duration of hostilities,” whatever that means, especially those scooped up outside the United States in war zones like Afghanistan.

4. It will continue to be necessary to detain Al Qaeda suspects without trying them for substantial periods of time, even if ultimately everyone will be tried or released. In some cases, it will take a long time to renegotiate repatriation agreements with countries of origin; in other cases, no country will accept them; in still other cases, military authorities will want to hold them while evidence is accumulated, hostilities are contained, or interrogations take place.

5. If current and future detainees are not kept in Guantanamo Bay, they will be kept somewhere else. Currently, the United States military holds detainees in prison camps in Afghanistan and (for the time being) Iraq. As far as I know, no one has proposed transferring these thousands of people to secure detention camps on American territory, as was done during World War II. These extraterritorial detention centers have no symbolic potency; there is no pressure to close them. Thanks to recent Supreme Court cases, detention on American territory creates legal hazards that the Obama administration will want to avoid--namely, that dangerous people imported from far away will have to be released onto American territory.

6. The foreign detention camps are dangerous, unpleasant places because they are located in dangerous, unpleasant areas. So shutting Guantanamo Bay will almost certainly increase the hardships both for future detainees and for the soldiers who must guard them—-even if the Obama administration takes a softer line than the Bush administration and detains fewer people for less time, and tries a greater portion of them in civilian courts.

Hurrah for symbolism!

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Monday, November 10, 2008

News You Can Use--Peanut Allergies:

A new study of Jewish children in Israel and the UK suggests that early exposure to peanuts significantly reduces the risk of peanut allergy. What the article describing the study doesn't say is that most Israeli infants are introduced to a peanut snack called "Bamba" as one of their first foods. We started giving Natalie Bamba at around eight months, contrary to our doctors' recommendations. My wife said at the time, "I don't care what the doctors here say. Where is the evidence that peanut allergies are caused by early exposure to peanuts? [There is none, just a theory.] We all ate Bamba as babies in Israel growing up, and I never even heard of peanut allergies until I moved to the U.S."

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Additional Evidence on Voter Turnout:

This article reports on studies by political scientist Curtis Gans that show that voter turnout this year increased only modestly, at most. As Gans points out, there was a significant increase in the raw total of votes from about 122.3 million in 2004 to as many as 128.5 million this year. However, he calculates that there was only a slight increase in percentage turnout of those eligible. As I pointed out in this post, there was a 4.7% increase in the number of people eligible to vote between 2004 and 2008. Taking the upper range of Gans' estimate of total votes in 2008, we see a 5.0% increase since 2004, almost exactly equal to the population increase.

Gans suggests that there may been lower turnout among Republicans since 2004, offsetting higher turnout by Democrats. However, the decline in the Republican percentage of the electorate is likely instead due to the fact that fewer people identify as Republicans than in 2004. Only 28% of Americans now self-identify as Republicans, compared to 33% in 2004. This decline in Republican identification is actually larger than Gans' estimate of the decline in the percentage of Republicans in this year's voter turnout (a fall to 28.7% from 30% in 2004).

As I mentioned in my last post on this subject (linked below), some other scholars are making different predictions, and I think we might still end up with final numbers showing a modest increase in turnout. But it looks like there was not the massive increase that Democratic activists and much of the media have been trumpeting. Ironically, however, this is actually good news for the Democratic Party. It suggests that Obama's victory was not the result of a one-time, unusually high turnout by first-time and "sporadic" voters. It may also be good news for those of us who believe that the objective of increasing voter turnout is overrated and oversold.

Related Posts (on one page):

  1. Additional Evidence on Voter Turnout:
  2. There (Probably) Was No Great Increase in Voter Turnout this Year:
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Update in United States v. Lori Drew: The Associated Press has a report on today's hearing in the Lori Drew case.
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"Muslims' Free Speech 'Threatened'":

A headline from the BBC News site. The story describes this report, from the Centre for Social Cohesion, which closes by suggesting ways in which "European governments ... [should] promote greater religious and social harmony by demonstrating that they see Muslims and those of Muslim background as full and complete citizens."

Thanks to InstaPundit for the pointer.

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My First Obama-related E-mail Scam:

You had to know it was coming; here's what I found in my inbox a few minutes ago. Thirty million dollars, and he can't even spell "Barack Obama"! But note: this proposal"is not like scam mails that is being sent in the internet by Africans." Why am I not convinced?

Hello and good day,

I am contacting you because of the confidentiality and urgency that this mail demands. My name is Montgomery Levi James, a Citizen of United States of America and an ex military man. I know that this mail might come to you as a surprise since we do not know each other in the past but accept it as act of destiny. This proposal is not like scam mails that is being sent in the internet by Africans.

My reason for contacting you is to assist me and also partake in this life time opportunity that presented itself right now. Please do not delay in responding to this mail because time is of utmost importance to our success.

I was privileged to be part of silent campaigners for the newly elected president of United States of America Barrack Obama. Right now that the election is over there is an outstanding donation in the tune of $30M which is privately deposited with Military Relief Group.

I have set the machinery for the smooth release of this fund by processing all legal documents in a neutral name like yours in place. I cannot do this on my own because it is going to raise dust and I do not want anybody to know about this fund or have it traced in my account or name. Be informed that with your participation it is 100% risk free and I am assuring you that your interest will be protected at all times even in the future.

For your assistance and participation you will receive 30% of the total amount. Please contact me on my private email address for confidentiality on (j.mery@live.com)

When I hear from you I will give you more details regarding this project and your role that will guarantee us the needed success within the limited time frame which will not exceed ten working days.

Include your direct telephone for easy communication.

Yours faithfully, Montgomery James Levi (RTD)

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Eugene Volokh to Speak Tonight at the University of Utah

Tonight Eugene will be delivering the 2008 William H. Leary Lecture at the University of Utah S.J. Quinney College of Law at 6:00 p.m. In his talk, he will walk through the Heller opinions and explore how the justices (both the majority and the dissenters) turned originalist theory into practice and what important (but often unspoken) decisions they made along the way. He will also explore how the decision is relevant to all fields of constitutional law.

VC readers in the area may want to attend what is sure to be an outstanding talk.

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Obama Administration to Create Hybrid System to Try Gitmo Detainees?: The Associated Press reports on preliminary planning among Obama advisors about what to do with the Gitmo detainees:
  President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice. . .
  Under plans being put together in Obama's camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts.
  A third group of detainees - the ones whose cases are most entangled in highly classified information - might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. . . .
  The plan being developed by Obama's team has been championed by legal scholars from both political parties. But it is almost certain to face opposition from Republicans who oppose bringing terrorism suspects to the U.S. and from Democrats who oppose creating a new court system with fewer rights for detainees.
  I think there are a range of plausible ways to handle the Guantanamo detainees, and the devil is in the details. But I tend to think a hybrid system like this sounds promising. Plus, it's a breath of fresh air to have an incoming President who actually plans to act on Gitmo rather than preserve the status quo.

  Thanks to How Appealing for the link.
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Credit Where Credit is Due:

On Friday, Michael Gerson had a column where he praises "The Decency of George W. Bush" and touts what he sees as Bush's accomplishments:

Initial failures in Iraq acted like a solar eclipse, blocking the light on every other achievement. But those achievements, with the eclipse finally passing, are considerable by the measure of any presidency. Because of the passage of Medicare Part D, nearly 10 million low-income seniors are receiving prescription drugs at little or no cost. No Child Left Behind education reform has helped raise the average reading scores of fourth-graders to their highest level in 15 years and narrowed the achievement gap between white and African American children. The President's Emergency Plan for AIDS Relief has helped provide treatment for more than 1.7 million people and compassionate care for at least 2.7 million orphans and vulnerable children. And the decision to pursue the surge in Iraq will be studied as a model of presidential leadership.

Pretty thin gruel at best, it seems to me, and Gerson makes clear that in praising the surge he also recognizes that the initial conduct of the war was poor. And even these are somewhat dubious accomplishments in terms of their long-run consequences, such as the long-term budgetary impact of the prescription drug entitlement and further expansion of federal control over education with No Child Left Behind.

Having said that, and stacked against the manifest screw-ups of the the past 8 years, I would give the Bush Administration credit for two things. I leave aside things that are more partisan, such as changing the judiciary, to focus on things that I think that would gain general acclaim (as Gerson does).

First, if you had told me on September 12, 2001 that seven years later we'd be able to say that there would be no major terrorist attacks on American soil in the next seven years I would've thought you were naive or crazy. Now I don't know how much credit the Bush Administration directly gets for this. And I share some of the criticisms that perhaps they went too far at times in terms of infringements on civil liberties to bring about this result. But in retrospect I really do think it has been a major accomplishment that we have not been hit by another terrorist attack in that time. Relatedly, it seems to me that the Bush Administration gets some substantial credit for Qaddafi's decision in 2003 to renounce terrorism and a general increase in deterrence against countries engaged in state-sponsored terrorism.

Second, I give him credit for using his political capital trying to raise the issue of social security reform. He did so in a ham-handed and bungling way, but right at the outset of the second term he tried to address the long-run solvency of social security. For which he had his headed handed to him and then gave up. The fear is that may mean that social security reform (and entitlement reform generally) is dead for at least another generation. I think he deserves credit for doing the right thing on trying to do this, even though he failed in the end.

Finally, Bush may be given some credit for pushing through an agenda on tax cuts. On the other hand, since he made no effort to reduce spending, these tax cuts are almost by definition somewhat temporary. Friedman used to observe that the real tax burden on the economy was the level of spending, because the spending has to be paid for eventually. So while Bush reduced taxes, this is not likely to be a long-term accomplishment.

Moreover, it is one thing to increase spending and government debt if it is for long-term investments that will recoup themselves, such as Reagan's defense buildup in the 1980s (which allowed subsequent reductions in the 1990s by winning the Cold War) or investments in infrastructure or similar things that increase economic growth. But little of Bush's spending was investment, as opposed to pure current consumption, and so a lot of it was nothing more than borrowing against future taxes to fund lower taxes today. So I give some credit, but modest, on this front.

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Sunday, November 9, 2008

More on fractional reserve banking.

Walter Block posts a response to my earlier post. He still says that borrowing money from a depositor is like selling a “square circle”: it is a “logical contradiction.” It’s not, as long as the contract right is defined correctly.

A and C enter the following contract. A is to give C $100 and agrees that C may do various things with it – lend it out, invest it, whatever. The contract provides further that A may demand cash up to $100 (never aggregating more than $100) from C at any time. C must satisfy the demand in cash to A if C has cash on hand; if not, C must liquidate his assets up to A’s demand and pay the proceeds to A. If, even after liquidating his assets, C does not have enough to satisfy A’s demand, he must pay what he has, and A’s ability to satisfy his claim is contingent on C obtaining additional assets.

Block says that C is “bankrupt” the moment that he accepts A’s cash and turns around and loans out part or all of it to another party, B. This is not true as a matter of law or economics. C’s loan to B is worth something and appears as an asset on C’s balance sheet. It’s perfectly possible that if A demands his $100 back on day 2, C will be able to sell the loan and use the proceeds to pay back A and even make a profit.

Still, if Block is right, I’d think libertarians would be troubled by the thought of a vibrant market, going back many, many years, in square circles, involving millions of sophisticated people on both side of the transaction, endorsed by thousands of common law judges who are responsible for all our other precious contract and property rights. It’s not a result of fraud in the sense of deceit, Block says (even though that is what fraud means). It is a kind of “fraud” where both parties, with full knowledge of a transaction that is internally contradictory, nonetheless decide to go through with it. If I offer to sell you a square circle, would you buy? With delusional behavior on such a grand scale, fractional banking would be the least of our problems.

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1938 Gallup Polls on Jews.

Glenn notes that today is the 70th Anniversary of Kristallnacht.

To remind you of US sentiment at the time, consider these Gallup Poll results from Nov. 22, 1938, nearly two weeks after that night.

Do you approve or disapprove of the Nazi's treatment ... Of Jews in Germany?

5.6% Approve
88.2% Disapprove
6.2% No Opinion

Should we allow a larger number of Jewish exiles from Germany to come to the United States to live?

21.2 Yes
71.8% No
7.0% No Opinion

Though only 6% of the American public approve of German actions, only 21% favor taking in more Jewish exiles.

That may be because of the attitudes toward Jews revealed in this poll from earlier in 1938 (April 27):

Do you think the persecution of the Jews in Europe has been their own fault?

10.9% Entirely
54.0% Partly
35.1% Not at all

(After being asked: “Do you think there is likely to be a widespread campaign against the Jews in this country?”): Would you support such a campaign?

11.7% Yes
88.3% No

So in April 1938, 65% of Americans thought that the persecution of Jews in Europe had been partly or completely their own fault. And 12% would support “a widespread campaign against the Jews in this country.”

Source: all polls courtesy of the GallupBrain, subscription required.

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What to do on FedSoc Eve:

The Federalist Society's annual conference in Washington, D.C., opens on Thursday, November 20. The evening before, the Mason Law Federalist Society and American Constitution Society are co-hosting a symposium on D.C. v. Heller. The events takes place from 5-8 p.m. at GMU Law School, in Arlington, Virgnia. Speakers include Steve Halbrook, Nelson Lund, Clark Neily, John Frazer, and me, on the side of the Standard Model, and Alan Morrison, Dennis Henigan, and others, on the opposite side. My presentation, in the panel "Looking Back at the History of the 2nd Amendment," will be about the natural law roots of the Second Amendment; it's the topic of my forthcoming article in the Syracuse Law Review. The event is free, although if you want the 3 CLE credits, there is a $25 fee. Registration is here.

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Post Script on Greenwald: Glenn Greenwald has yet another post up defending his description of me as an apologist for lawless and radical Bush policies. As you might expect, it is highly dismissive: My arguments are a "transparent and ludicrous" straw man; I am ignorant; I am willfully distorting his views; I am just like John Yoo, etc. (That's a third mention of myself and Yoo together, for those counting at home.) My original goal in responding to Greenwald was to see if there was any substance to back up the bluster. I think it's fair to say that question has been answered, so it's time to move on.

  A final thought: In the unlikely event that someone reads Greenwald's summary of my positions instead of my own writings, I should point out that Greenwald's description of my view on Al Marri is quite inaccurate. My views of the case are a lot like Judge Traxler's in the en banc decision; read my old posts on the case for more.

  UPDATE: To be specific, contrary to Greenwald's claim, I reject the idea that the Executive branch has some sort of inherent Article II authority to detain citizens and legal residents inside the United States outside the criminal justice system. Greenwald imagines that I endorse that Article II position and then devotes half of his post to saying how it justifies his description of my views. But I have never taken that position, and it is not my view. Just to clarify, my view is that Ex Parte Milligan settled over a century ago that such powers to detain citizens don't exist. Milligan is one of the great civil liberties decisions in constitutional law, and I think it is absolutely right. It is unclear to me why Greenwald thinks I am taking a different view, but he is wrong to imagine that is the case.

  Following up on my posts on al Marri from last year, my view is that (a) the AUMF authorizes the detention of al Qaeda members if the appropriate due process protections are followed, and (b) the due process protections for non-citizen, non-legal residents in the U.S. are properly determined under the Hamdi balancing approach. This was the view of Judge Traxler in his en banc opinion, and I think Judge Traxler was right about this. The reasoning would not apply to U.S. citizens detained in the U.S., as they would be covered by Milligan rather than Hamdi, but it would apply to U.S. citizens in war zones abroad (the holding of the Supreme Court in Hamdi). I'm not really sure what the right level of due process protection is under Hamdi; the Hamdi balancing approach is pretty vague, and there's a wide range of plausible ways to apply it ranging from pretty high due process protections to lesser protections. There doesn't seem to be a clear answer to this based on current law, and I don't have any easy answers to it, but something like Judge Traxler's approach is at least a not-implausible outcome.

  Anyway, I don't know whether Greenwald is interested in whether he is accurately stating my views, but I did want to explain Greenwald's misrepresentation for readers.

Sunday Song Lyric: I first heard a song by The Cure some twenty-five years ago -- and apparently they're still going. Robert Smith & Co. have just released their 13th studio album, 4:13 Dream, and it appears to be getting good reviews.


I haven't heard The Cure's new stuff, but I'm still a fan of the old. "Boys Don't Cry" was released almost thirty years ago. It was their second single, and still one of their best. The lyrics begin:

I would say I'm sorry
If I thought that it would change your mind
But I know that this time
I have said too much
Been too unkind

I try to laugh about it
Cover it all up with lies
I try and laugh about it
Hiding the tears in my eyes
Because boys don't cry
Boys don't cry
Here are the original video and live clips from 1984 and 2008.
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