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Saturday, November 22, 2008

Isn't This a Bit Premature?

CBS News reports:

A school on Long Island has been renamed Barack Obama Elementary School in honor of his historic rise to the presidency.

The move at the largely black and Hispanic school in Hempstead is among the first in what will likely be a wave of name changes around the world now that Mr. Obama has been elected president, from schools and streets to parks and mountaintops.

The prime minister of the Caribbean nation of Antigua has said he's taking measures to have the island's highest mountain peak renamed Mount Obama. In Portland, Ore., students want to rename Clark K-8 At Binnsmead school. Elsewhere on Long Island, the Clear Stream Avenue School in Valley Stream will consider a renaming resolution in December....

The name Barack Obama Elementary School was the idea of children at the former Ludlum Elementary School, according to officials at Hempstead Union Free School District....

I wish President-Elect Obama does an excellent job, and if he does, he will be worth naming things after. But right now no-one really knows whether he'll be an excellent President, a mediocre President, a poor President, or a very bad President. (Keep in mind the sobering story of the Richard M. Nixon Freeway -- the name that the Marina Freeway in Los Angeles bore for a few years in the early 1970s.)

Of course, Obama has already achieved the status of the first black President, and it's quite natural for people -- especially, but not only, blacks -- to admire and celebrate this achievement, which is indeed quite stunning given American history of not so long ago. Likewise, I'm sure American Catholics celebrated John F. Kennedy's achievement of being the first Catholic President in 1960, as did non-Catholics who welcomed this marker of the decline of anti-Catholic sentiment. Other groups have celebrated similar milestones.

But important as getting a job might be, especially under the circumstances, the ultimate goal of getting the job has to be to do the job well. That's long been the premise of antidiscrimination law, and even many supporters of race- and sex-based affirmative action endorse it: The goal is to give blacks and members of other groups the same opportunity to do important jobs well -- and to help others through doing the job well -- that others have. And until a successful candidate does the job well, however historic his successful candidacy may have been, it seems to me that people should hold off on renaming institutions and landmarks in his honor.

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What Is the Shortest Amendment in the U.S. Constitution?

An interesting trivia question, suggested by my father Vladimir. No fair peeking. (I didn't know the answer until I looked it up.)

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Friday, November 21, 2008

Should there be judicial performance evaluation for federal judges? Campaign finance limits for state judges?

Most states have commissions which evaluate the performance of state judges. Would it be a good idea to institute similar performance review of federal judges? For judicial elections, are campaign contribution/spending ceilings constitutional? What about bans on candidates personally soliciting contributions? There are the topics of a symposium issue of the Denver University law review, including a foreword by Justice O'Connor. Comments on these topics are very welcome--but only after the commenter has read at least one of the articles in the symposium.

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AG Mukasey on How to Handle Detainees:

Today's WSJ has an op-ed by U.S. Attorney General Michael Mukasey that addresses similar issues to the speech he was delivering last night at the Federalist Society's Annual Lawyers' Convention before he was incapacitated. Among other things, he called upon Congress to enact new legislation concerning the treatment and trial of detainees in accordance with the following principles:

First, Congress must make clear that release from the Guantanamo Bay military base does not mean that a detainee is entitled to enter the United States. Where a court finds that a detainee cannot be held as an enemy combatant, he should be returned to his home country or another country willing to receive him. He should not be permitted to jump the immigration line and enter this country.

Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies. Simply put, Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review. . . .

Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.

Of note, it appears that AG Mukasey is doing better, as he was released from the hospital earlier today. Like Orin, I wish Mukasey a full and speedy recovery.

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Do You Now Own, or Have You Ever Owned, a Gun?

The Politico reports on a curious addition to the Obama transition personnel questionnaire for potential appointees to the new Administration.

Tucked in at the end of the questionnaire and listed under “Miscellaneous,” it reads: “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.”

Paul Light, professor of public service at New York University, said there was no such question for potential appointees when President George W. Bush took office in 2000.

“It kind of sticks out there like a sore thumb,” Light said.

He expressed uncertainty over why it was included but surmised it was out of an abundance of caution, a desire to avoid the spectacle of a Cabinet-level or other high-ranking appointee who is discovered to have an unregistered handgun at home.

“It’s the kind of thing that, if dug out, could be an embarrassment to the president-elect,” Light said.

UPDATE: Eugene posted about this here.

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You Too Can Reject a Minnesota Senate Ballot:

Why let the Norm Coleman and Al Franken campaigns have all the fun. Thanks to Minnesota Public Radio, you can look at pictures of actual ballots cast in the Minnesota Senate race and vote on whether you think they contain votes that should be counted. In case you think it relevant, here is the Minnesota statute on determining voter intent.

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Illegal To Use the Rain Water That Falls on Your Roof?

From High Country News:

Conservation advocates, including many utilities, have embraced the idea of using water collected from roofs, and stored in cisterns or rain barrels, to reduce reliance on dwindling surface water or groundwater supplies. Yet in Utah, Colorado and Washington, it's illegal to do so unless you go through the difficult -- and often impossible -- process of gaining a state water right. That's because virtually all flowing water in most Western states is already dedicated to someone's use, and state water officials figure that trapping rainwater amounts to impeding that legal right....

Kris Holstrom, who runs an organic farm outside Telluride, Colo. ... asked the Colorado Division of Water Resources for a permit to collect runoff from building roofs -- and was denied. "They felt that the water belonged to someone else once it hit my roof," she says. "They claimed that the water was tributary to the San Miguel River" -- which runs some three miles from her place and is fully allocated to other users downstream....

Elsewhere, the practice thrives underground. In July, a store in Durango, Colo., [the Eco Home Center,] hosted about 30 people at a presentation about water harvesting. Laurie Dickson, owner of the ... Center ... readily acknowledges that she regularly sells such water-harvesting supplies as rain barrels and filters. "It's not illegal to sell the parts. It's kind of like 'don't ask, don't tell.'" ...

Thanks to Prof. Robert Sheridan for the pointer.

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Attorney General Nominee Eric Holder, the First Amendment, and Crime-Facilitating Speech:

InstaPundit points to a 1999 program in which Eric Holder -- then Deputy Attorney General, and now President-Elect Obama's choice for Attorney General -- was expressing support for "reasonable restrictions" on certain kinds of Internet speech. I thought I'd give a bit more context, especially since it relates to one of my research areas.

The recording seems to come from an April 25, 1999 Face the Nation segment discussing the Littleton massacre. Here's an excerpt from the CBS transcript:

[Host BOB] SCHIEFFER: Mr. Holder, you can also learn how to make a bomb on the Internet, on the Web. How do you police that?

Mr. HOLDER: Well, it's very difficult, given the tenor of the recent Supreme Court cases. The court has really struck down every government effort to try to regulate it. We tried with regard to pornography. It is going to be a difficult thing, but it seems to me that if we can come up with reasonable restrictions, reasonable regulations in how people interact on the Internet, that is something that the Supreme Court and the courts ought to favorably look at.

I assume that Holder was talking about what was then a bill, but was enacted four months later (Pub. L. 106-54) as 18 USC § 842(p):

(p) DISTRIBUTION OF INFORMATION RELATING TO EXPLOSIVES, DESTRUCTIVE DEVICES, AND WEAPONS OF MASS DESTRUCTION.--

(1) DEFINITIONS.--In this subsection--
(A) the term 'destructive device' has the same meaning as in section 921(a)(4);
(B) the term 'explosive' has the same meaning as in section 844(j); and
(C) the term 'weapon of mass destruction' has the same meaning as in section 2332a(c)(2).
(2) PROHIBITION.--It shall be unlawful for any person--
(A) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence; or
(B) to teach or demonstrate to any person the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of, an activity that constitutes a Federal crime of violence.

I discuss this statute, among many others, in my Crime-Facilitating Speech article in the Stanford Law Review. I conclude that subsection 2(B), which basically deals with individualized giving of crime-facilitating information to a particular person, is constitutional (much like aiding and abetting laws are generally constitutional, even when applied to speech, and even when they require only knowledge that the aid will be used in criminal ways rather than a purpose that it be so used). But I argue that subsection 2(A), even though it is limited to speakers who have the purpose of promoting violent crime by some of their unknown listeners, is not constitutional, for reasons I go into at great length.

Nonetheless, I think there are plausible arguments in favor of the constitutionality of subsection 2(A), canvassed at length in this 1997 Justice Department Report on the Availability of Bombmaking Information. So if I'm right that then-Deputy Attorney General Holder was discussing this proposal -- which seems likely -- rather than some more comprehensive attempt to restrict online speech, then it seems to me that his view of the matter is moderate and defensible, though I have come to disagree with it.

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The latest Global Trends report is out.

Here are some of its predictions for 2025, with some comments.

A global multipolar system is emerging with the rise of China, India, and others. The relative power of nonstate actors—businesses, tribes, religious organizations, and even criminal networks—also will increase.

By 2025 a single “international community” composed of nation-states will no longer exist. Power will be more dispersed with the newer players bringing new rules of the game while risks will increase that the traditional Western alliances will weaken. Rather than emulating Western models of political and economic development, more countries may be attracted to China’s alternative development model.

International legal institutions will weaken as the power of members with diverse ideological and political goals increases relative to that of the United States and the rest of the west. Consensus-based organizations (nearly all of them) will become paralyzed. As the still wealthier west finds itself increasingly outnumbered it will pull out of or subvert majoritarian institutions such as they are. Likely victims: the UN Security Council and General Assembly, the WTO, and the International Criminal Court. A “league of democracies,” a “responsibility to protect” (civilian populations from genocide), and other fantasies that can be found in political discourse from time to time today will disappear entirely. Human rights norms, however, will expand to include prohibitions on defamation of religion and of ethnic groups.

Terrorism is unlikely to disappear by 2025, but its appeal could lessen if economic growth continues in the Middle East and youth unemployment is reduced. For those terrorists that are active the diffusion of technologies will put dangerous capabilities within their reach.

Opportunities for mass-casualty terrorist attacks using chemical, biological, or less likely, nuclear weapons will increase as technology diffuses and nuclear power (and possibly weapons) programs expand. The practical and psychological consequences of such attacks will intensify in an increasingly globalized world.

The early twenty-first century civil libertarian critique of government surveillance and detention activities will seem as eccentric in 2025 as the early nineteenth century critique of the national bank seems to us today.

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Council Member Says She'll Vote Against Church Rezoning Request Because of the Church's Ideology:

The Beaufort (S.C.) Gazette reports:

A county board voted to rezone a greater Bluffton church over the objection of one County Council member who said she'll vote against it because of the Catholic church's stance on reproductive rights and other issues....

During the discussion, Laura Von Harten, who represents Beaufort and Port Royal, but is not a member of the land committee, said she won't support the rezoning when it comes before the council because official Catholic policies are an "affront to my dignity and all of womankind."

Von Harten cited the Catholic church's position against female clergy and "uterus rights" as her reason for opposing the rezoning request.

"I don't want to support anything that will perpetuate that," she said. "I just have to vote in favor of love and not hate." ...

The Catholic News Agency reports the councilwoman's quote further:

If land must be rezoned, she said, “I want it to be to create a loving inclusive mixed-use community and that's the only way I will give up rural land... I just have to vote in favor of love and against hate when I see hate.”

How about voting in favor of First Amendment rights and not against them, or in favor of being "inclusive" of views you disagree with? Fortunately, the member has apparently acknowledged that denying a rezoning request on such a basis is improper:

Saying she intended no infringement of anyone’s religious freedom and did not intend to disparage any individual member of the Church, she added:

“I respect the rights of all people to worship in the church of their choosing. Given the history of persecution endured by members of the Catholic Church, I regret my insensitivity on this matter.”

Saying she was “truly sorry” for having “interjected” her concerns about the Catholic Church into a zoning discussion, she claimed she had “meant only an extension of my overall opposition to development that restricts access on the basis of factors such as race, age or gender but it was an inappropriate forum.”

“Please be assured that I have been reminded of the importance of separation of church and state in matters of land use, and have learned a great deal from this incident,” Von Harten continued, asking for forgiveness and pledging “to approach my duties as councilwoman from a more restrained and objective viewpoint.”

Glad to hear it, though I hope she also recognizes the importance of not discriminating against land users based on their speech, whether they are "church[es]" or not: Such discrimination is a Free Speech Clause violation, not just a matter of the "separation of church and state."

Thanks to Religion Clause for the pointer.

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The Attorney General: I was there along with about half of the other Conspirators (and many VC readers) when Attorney General Michael Mukasey collapsed tonight during his speech to the Federalist Society at its annual banquet. As I write this, we still don't know what happened, but we are all thinking of the Attorney General and of course we all wish him a very speedy recovery.
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Thursday, November 20, 2008

Eric Holder on firearms policy:

Earlier this year, Eric Holder--along with Janet Reno and several other former officials from the Clinton Department of Justice--co-signed an amicus brief in District of Columbia v. Heller. The brief was filed in support of DC's ban on all handguns, and ban on the use of any firearm for self-defense in the home. The brief argued that the Second Amendment is a "collective" right, not an individual one, and asserted that belief in the collective right had been the consistent policy of the U.S. Department of Justice since the FDR administration. A brief filed by some other former DOJ officials (including several Attorneys General, and Stuart Gerson, who was Acting Attorney General until Janet Reno was confirmed)took issue with the Reno-Holder brief's characterization of DOJ's viewpoint.

But at the least, the Reno-Holder brief accurately expressed the position of the Department of Justice when Janet Reno was Attorney General and Eric Holder was Deputy Attorney General. At the oral argument before the Fifth Circuit in United States v. Emerson, the Assistant U.S. Attorney told the panel that the Second Amendment was no barrier to gun confiscation, not even of the confiscation of guns from on-duty National Guardsmen.

As Deputy Attorney General, Holder was a strong supporter of restrictive gun control. He advocated federal licensing of handgun owners, a three day waiting period on handgun sales, rationing handgun sales to no more than one per month, banning possession of handguns and so-called "assault weapons" (cosmetically incorrect guns) by anyone under age of 21, a gun show restriction bill that would have given the federal government the power to shut down all gun shows, national gun registration, and mandatory prison sentences for trivial offenses (e.g., giving your son an heirloom handgun for Christmas, if he were two weeks shy of his 21st birthday). He also promoted the factoid that "Every day that goes by, about 12, 13 more children in this country die from gun violence"--a statistic is true only if one counts 18-year-old gangsters who shoot each other as "children."(Sources: Holder testimony before House Judiciary Committee, Subcommitee on Crime, May 27,1999; Holder Weekly Briefing, May 20, 2000. One of the bills that Holder endorsed is detailed in my 1999 Issue Paper "Unfair and Unconstitutional.")

After 9/11, he penned a Washington Post op-ed, "Keeping Guns Away From Terrorists" arguing that a new law should give "the Bureau of Alcohol, Tobacco and Firearms a record of every firearm sale." He also stated that prospective gun buyers should be checked against the secret "watch lists" compiled by various government entities. (In an Issue Paper on the watch list proposal, I quote a FBI spokesman stating that there is no cause to deny gun ownership to someone simply because she is on the FBI list.)

After the D.C. Circuit Court of Appeals ruled that the D.C. handgun ban and self-defense ban were unconstitutional in 2007, Holder complained that the decision "opens the door to more people having more access to guns and putting guns on the streets."

Holder played a key role in the gunpoint, night-time kidnapping of Elian Gonzalez. The pretext for the paramilitary invasion of the six-year-old's home was that someone in his family might have been licensed to carry a handgun under Florida law. Although a Pulitzer Prize-winning photo showed a federal agent dressed like a soldier and pointing a machine gun at the man who was holding the terrified child, Holder claimed that Gonzalez "was not taken at the point of a gun" and that the federal agents whom Holder had sent to capture Gonzalez had acted "very sensitively." If Mr. Holder believes that breaking down a door with a battering ram, pointing guns at children (not just Elian), and yelling "Get down, get down, we'll shoot" is example of acting "very sensitively," his judgment about the responsible use of firearms is not as acute as would be desirable for a cabinet officer who would be in charge of thousands and thousands of armed federal agents, many of them paramilitary agents with machine guns.

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Judge McConnell on When a Suspect Is Seized: In a decision handed down last week, United States v. Thompson, Judge Michael McConnell of the Tenth Circuit had an apt observation about the Supreme Court test for when a person is "seized" for Fourth Amendment purposes:
  According to formal legal doctrine, an encounter between an individual and the police is consensual when “a reasonable person would feel free ‘to disregard the police and go about his business.’” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991). In addressing this question, however, we must be guided by the Court’s decisions in similar cases rather than our own experience regarding how reasonable people actually respond to police investigations.[Fn1]

  [FN1: It might bring greater clarity to this area of the law if the test were framed in terms of whether the officer’s behavior is coercive rather than whether, under the circumstances, the reasonable person would feel “free to disregard the police,” which we suspect is unrealistic.]
  I think Judge McConnell is basically right here. The Supreme Court's stated test is artificial: the Justices have a sense of the kind of circumstances that they want to be regulated by the Fourth Amendment, and they haven't done a very good job of articulating that sense through a legal standard. The Court ended up adopting the "reasonable person would feel free to leave" test because it does cover a number of useful cases: If the police order someone to stay, then they have exerted control over the situation and that should be regulated, while if the police haven't made a showing of force, then that is something that the Fourth Amendment should sensibly not regulate. But the "reasonable person" formulation ends up being artificial, as Judge McConnell suggests, because (as you might guess) most people just don't feel free to walk away from a police officer.

   The Supreme Court has tried to address this problem a bit by clarifying that the standard is of a reasonable innocent person, apparently on the theory that a reasonable innocent person has no reason to fear the police. But again, that's unrealistic: most people don't feel free to walk away even if they feel they're totally innocent. I end up advising my students along the lines of what Judge McConnell suggests: Apply the test based on analogy to decided cases applying it rather than by relying on the natural meaning of its words.

  But even then, judges — and Justices — sometimes split on this. An interesting example of the split is Yarborough v. Alvarado, 541 U.S. 652 (2004), an AEDPA case where the Supreme Court divided on whether a state court had reasonably applied the law to whether the suspect was in custody for Miranda purposes (an inquiry that is very similar to when a person is seized for Fourth Amendment purposes). The majority, in an opinion by Justice Kennedy, applied the test by analogy to the facts of decided cases: From that perspective, the state court's application of the law was reasonable. The dissent, in an opinion by Justice Breyer, applied the test by relying on its formal terms: From that perspective, the state court's application of the law was unreasonable. Whether the state court application of the law was reasonable depended on whether you interpreted the doctrine by analogy to case-by-case application or as the formal test, and the Court split 5-4 on that.

  Thanks to FourthAmendment.com for the link.
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Where Barack Obama and I Agree:

In earlier posts, I have highlighted some issues on which I agree with prominent liberal politicians, such as with Hillary Clinton on Iraqi oil, and Dennis Kucinich's opposition to public subsidies for the new Yankee Stadium. I am glad to be able to add Barack Obama to this list, as he has recently taken a position on an important issue that I agree with completely:

Barack Obama has revealed his first major policy initiative: college football reform. In Obama's first televised interview since winning the presidency, he explained what's wrong with the current system, in which computers help determine the two teams that play for the national championship. "I think any sensible person would say that if you've got a bunch of teams who play throughout the season, and many of them have one loss or two losses—there's no clear decisive winner—that we should be creating a playoff system," Obama said. "I don't know any serious fan of college football who has disagreed with me on this. So, I'm gonna throw my weight around a little bit. I think it's the right thing to do."

I'm much more a pro sports fan than a college fan. But I too believe that the BCS computer system is a terrible way to determine a national championship. True champions win their bragging rights on the field.

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Drew Update: Kim Zetter has the latest on the Lori Drew trial over at Wired's Threat Level Blog.
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Bankruptcy and the Detroit Three:

Jim's excellent post notes one-half of the argument against a Detroit bailout--that it is an unusually bad case for a bailout because of the need for long-term structural reform that a bailout is not going to provide.

But the other half of an argument against a bailout is that GM (or the others, but I'll use GM to illustrate the point) presents an unusually good case for Chapter 11 reorganization. GM is, in fact, the textbook example of what Chapter 11 was invented to do. GM almost certainly will not liquidate, and if it does, then this will almost certainly be beneficial from a social perspective because it will illustrate that the resources are better deployed elsewhere in the economy.

The fundamental question for any bankrupt business is whether the business is economically failed or financially failed.

Economically Failed: If the business is economically failed, then this means that the current deployment of assets to that company is economically inefficient--i.e., the opportunity cost of using the assets in this manner is less than their current deployment. For instance, if a typewriter manufacturer were to file bankruptcy today, it is likely that the firm would be economically failed. There is a limited market for typewriters and it is shrinking. The financial, physical, and human capital dedicated to typewriter manufacturing would probably be better redeployed to other places in the economy, such as to making computers.

Financially Failed: A financially failed firm is one where the value of the current asset deployment still exceeds the opportunity cost of the assets, but the firm is temporarily unable to generate sufficient revenue to cover its costs. This might be either because revenues are too low or costs are too high. For instance, when Texaco got tagged with a gigantic liability judgment by Pennzoil, Texaco was basically a healthy enterprise with one gigantic liability to deal with. When Boston Market filed bankruptcy, it used bankruptcy to close unprofitable stores (it basically expanded too fast)--there the liabilities were the contingent liabilities of landlord claims associated with closing the stores. When the Pittsburgh Penguins filed bankruptcy, there the idea was both to deal with certain liabilities (Mario Lemieux's unproductive contract) and also to try to generate more revenues by renegotiating bad contracts for sale of concessions, etc.

The basic idea of a financially failed enterprise is that there are economic rents or "going-concern surplus" from the current deployment of assets. The idea of a Chapter 11 reorganization is to preserve this going-concern surplus or economic rents.

GM is a classic example of a firm that looks like a financially failed rather than economically failed. We have both physical capital and human capital with high firm and industry-specific value, namely factories and uniniozed work forces, which value would be lost if those assets were redeployed. It also has at least some going-concern value in its goodwill and namebrands.

What GM needs to do is shed labor contracts, retirement contracts, and modernize its distribution systems by closing many dealerships. It appears to need new management as well. Bankruptcy gives them the opportunity to do all that.

So GM will almost certainly reorganize, as will the other car companies. GM does not look like an economically-failed typewriter manufacturer at this point, but rather a financially-failed company that needs to reorganize and go forward.

Federal Assistance for a Reorganization: Which brings us to the final benefit of a reorganization over a bailout--reorganization forces a market test on the enterprise to determine what is economically valuable and what is not. A bailout will inherently be a political process. Political processes are not in any way designed to determine which assets are allocated in an economically-efficient manner.

Some have expressed concern that the credit crunch has made DIP financing temporarily unavailable. I have seen no strong evidence that this is the case, although it is certainly possible. But if this is the case, then this seems like this might be a proper place for governmental intervention--basically have the government provide the DIP financing or guarantee the DIP financing (thanks to my colleague Steve Eagle for suggesting this idea).

To the extent that there was a rationale for the TARP, it was that there was a liquidity crisis in financial markets, not a solvency crisis. The idea was to save healthy banks from a bank run, not unhealthy banks from their own bad decisions. Well, GM is unequivocally a solvency problem, not a liquidity problem. As George Will has observed, it is not a quesiton of whether GM will be allowed to fail, it already has failed.

But even though GM is insolvent, an absence of DIP financing to reorganize GM in Chapter 11 would presumably be a liquidity crisis. So whereas a straight GM bailout does not follow from the logic of the TARP, it is at least arguable that the provision of DIP financing as part of a reorganization filing is consistent with the underlying premises of the bailout. But it is crucial that this money be made available, if at all, only as part of a chapter 11 filing that forces new discipline and ideally only after a demonstration that there really is no private DIP financing available.

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Lessons of the Libertarian Party's Most Recent Failure:

It's hard to remember now, but back in the spring and summer, some libertarians were optimistic about Bob Barr's presidential campaign under the Libertarian Party banner. Barr's eventual failure exemplifies the flaws of the LP as a vehicle for promoting libertarianism.

As a former prominent Republican congressman, Barr was probably the best-known politician ever to run on an LP ticket. And libertarian-minded voters might have been expected to flock to his standard in a year when the Democrats nominated a highly statist candidate like Barack Obama, and the Republicans went with John McCain - a nominee whom most libertarians and pro-limited government conservatives viewed with great suspicion. Supporters hoped that Barr would win many more votes and raise much more money than previous LP nominees, and would effectively spread the libertarian message.

As Brian Doherty documents in this interesting recent article, Barr and the LP didn't even come close to meeting the high expectations. Barr only got about 500,000 votes, and his percentage of the total vote was lower than that achieved by three previous LP nominees, including the lackluster Harry Browne in 1996. Barr's fundraising results were also disappointing.

Brian's article discusses numerous possible causes of Barr's failure that were specific to his particular campaign. Some of these theories may be correct. In truth, however, Barr's failure is of a piece with the more general failure of the LP throughout its entire 36 year history. In that time, the Party has never gotten more than a miniscule share of the vote, and has failed to increase its share over time (the LP's best performance in a presidential election was back in 1980, and its performances in state and local races have also stagnated over time). The LP has also failed in its broader mission of fostering greater acceptance of libertarian ideas. There is little if any evidence that its efforts have increased public support for libertarianism to any appreciable extent. Such consistent failure over a long period of time can't be explained by the personal shortcomings of individual candidates. Barr's performance undercuts claims that the LP can do better simply by nominating a candidate with greater name recognition and more political experience than its usual selections.

For reasons that I explained in this post, the truth is that third party politics simply is not an effective way of promoting libertarianism in the "first past the post" American political system. That system makes it almost impossible for a third party to win any important elected offices. And such a party also can't be an effective tool for public education because the media isn't likely to devote much attention to a campaign with no chance of success.

Libertarians have had some genuine successes over the last 35 years. These include abolition of the draft (heavily influenced by Milton Friedman's ideas), deregulation of large portions of the economy (of which libertarians were the leading intellectual advocates), major reductions in tax rates (facilitated by libertarian economists, libertarian activists, and the legislative efforts of libertarian-leaning Republicans), the increasing popularity of school choice programs, increases in judicial protection for property rights, gun rights, and economic liberties (thanks in large part to advocacy by libertarian legal activists), and heightened respect for privacy and freedom of speech (promoted by libertarians in cooperation with other groups). Libertarian academics and intellectuals have also done much to make libertarian ideas more respectable and less marginal than they were in the 1960s and early 70s.

What all these successes have in common is that they were achieved either by working within the two major parties or by efforts outside the context of party politics altogether. The Libertarian Party didn't play a significant role in any of them.

Libertarians often emphasize that failed enterprises should be liquidated rather than kept going on artificial life support. That enables their resources to be reinvested in other, more successful firms. The point is well taken, and it applies to the Libertarian Party itself. For 35 years, the Party has consumed valuable resources, both financial and human. The money spent on the LP and the time donated by its committed activists could do a lot more to promote libertarianism if used in other ways.

In the current economic and political environment, libertarians face many difficult challenges, including a potential massive expansion of government. Now more than ever, we can't afford to fritter away our limited resources on failed political strategies. The time has come to admit that the LP is a failure and spend our precious time and money elsewhere.

Related Posts (on one page):

  1. Speech Before the Penn Libertarians:
  2. Lessons of the Libertarian Party's Most Recent Failure:
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DOJ and New York Police Department Fight Over Wiretapping: The New York Times reports:
  An effort by the New York Police Department to get broader latitude to eavesdrop on terrorism suspects has run into sharp resistance from the Justice Department in a bitter struggle that has left the police commissioner and the attorney general accusing each other of putting the public at risk.
  The Police Department, with the largest municipal counterterrorism operation in the country, wants the Justice Department and the Federal Bureau of Investigation to loosen their approach to the federal law that governs electronic surveillance. But federal officials have refused to relax the standards, and have said requests submitted by the department could actually jeopardize surveillance efforts by casting doubt on their legality.
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Wednesday, November 19, 2008

The Story of District of Columbia v. Heller:

Reason's Brian Doherty, has an excellent article telling the fascinating story of the origins of the lawsuit that eventually resulted in the Supreme Court's decision in District of Columbia v. Heller. Brian shows how the suit was initiated and carried forward by a small group of libertarian activists and lawyers, sometimes in the face of surprising skepticism by the NRA and other gun rights supporters.

I differ slightly with Brian in so far as I think he may overstate the extent to which Heller will actually result in increased protection for Second Amendment rights. For the reasons I set out in this Legal Times article, I think that Heller's impact may well turn out to be extremely limited. Still, the Heller litigation was at least an important symbolic victory in so far as it led the Supreme Court to recognize for the first time that the Second Amendment establishes an individual right for gun owners as opposed to a "collective right" limited to militia members.

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Why I Don't Approve of My Congressman:

Polls routinely show that most Americans give very low approval ratings to Congress as a whole, but give much higher ratings to their own representatives. Count me among the minority that would give an even lower rating to their own representative than Congress as a whole. That's because my representative is the egregious Jim Moran.

Recent data reveal that Moran is one of the biggest porkers in Congress, and second only to Pennsylvania Rep. John Murtha in reaping campaign contributions from the beneficiaries of his earmarks. Of course, that's exactly what you would expect from the man who said back in 2006 that "[w]hen I become chairman [of a House appropriations subcommittee], I'm going to earmark the shit out of it." He has certainly kept his campaign promise.

Massive earmarking hardly exhausts the list of Moran's shortcomings. He has also flirted with anti-Semitism, notoriously blaming the Iraq War on "the strong support of the Jewish community for this war with Iraq, [without which] we would not be doing this." This despite the fact that Jewish opinion has consistently been more hostile to the war than general public opinion. Such statements don't definitively prove that Moran is an anti-Semite. But they do suggest that he is either anti-Semitic or grossly ignorant about the true distribution of Jewish opinion (despite the fact that his district has Virginia's largest concentration of Jewish voters), or both. None of these three possibilities speak well of Moran, to put it mildly.

Finally, Moran is likely guilty of corruption (see, e.g., here).

There are probably some congressmen who are worse than mine. But even in a body not known for its high moral standards, there can't be too many.

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Opening Arguments in United States v. Lori Drew: Kim Zetter of Wired has the story. I feel compelled to point out the very bottom of the story, which briefly notes the side that has mostly been absent from press coverage of the case:
  Defense attorney H. Dean Steward, delivering his opening remarks, painted a very different picture. He claimed that Drew knew about the plan to create the hoax MySpace profile and manipulate Meier, but neither encouraged nor participated in it.
  Steward told the jury that forensics evidence will prove the account was not created from Drew's computer, and that no messages were sent by Drew.
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A Simple Argument Against the Auto Bailout: A Bailout Would Destroy Jobs.

I have hesitated writing about the GM bailout for two reasons. First, I like GM cars; I bought two of them in March, and every car I’ve ever bought was a GM car. Second, a professor with tenure should be somewhat circumspect in writing about the jobs of people who do not have the protections that we have.

But in watching CNBC debates on the Auto Bailout, I have been frustrated by the arguments of those who favor bailouts that government largesse will on balance lead to more employment, rather than less.

Those inclined against the bailout seem mostly to say, “When will the handouts end?”

Yet the best way to meet the “jobs argument” is with another jobs argument. Making bad, uneconomic investments in failing industries does not, on balance, preserve jobs; it tends to destroy more jobs – and more good jobs – than it saves.

If you give money to failing industries to save jobs, then you are probably taking even more jobs away from other industries who would hire or retain workers but for their higher expenses. In essence, throwing money down a hole may preserve jobs in the short term but should lose jobs in the medium and long term.

If you pay for an auto bailout with today’s tax money, then over the next couple years you are taking jobs away from lots of people currently working.

If, on the other hand, you pay for today’s auto bailout with an increased deficit, then lots of future workers will be unemployed or take worse jobs in order to pay for today’s auto workers. Again, you would be taking jobs away from lots of people (mostly in the future) to preserve the jobs of auto workers and their suppliers today.

Heavily unionized businesses usually have trouble competing with non-unionized businesses. Unions are successful in getting above-market wages and benefits, which makes it difficult for the businesses to compete. In the auto industry, there are many more dealerships than necessary. And, according to Larry Kudlow, the average compensation and benefit rate for auto workers in Detroit is $72 an hour, compared to $44 an hour for foreign car workers at US plants.

Even if two of the three Detroit automakers were to go out of business, most of their workers and the workers for their suppliers would be able to get some sort of job. That the jobs they would get would pay a lot less suggests just how much they are overpaid now. If General Motors has become a health and pension plan that makes cars on the side – in other words, unions pressured bad management to make promises they couldn’t keep – then inducing GM to go out of business should be on balance good for the economy. Any government bailout should go to the Federal Pension Benefit Guarantee Corporation, to provide money to cover partial pensions for the employees of companies in the bankruptcies certain to come.

As with so many problems, it is unlikely that GM would have made such foolish deals if the government had not forced it to bargain with striking workers, rather than simply replace them. As with mortgages in the banking industry, the federal government pressured businesses to make deals that were economically bad for the businesses involved.

If an industry is contracting and there is an oversupply of productive capacity, then the worst thing we could do is prop up that industry by taking jobs away from the healthier portions of the economy (including better run automakers). If government planners really were a lot smarter and better planners than business people (they aren’t), then the government’s strategy should be to try to drive bad businesses out of business quicker, not try to destroy the healthy companies by propping up the dying companies.

The argument that the auto unions and the auto executives have already made sufficient givebacks is not credible. And as the Congressmen pointed out, the Detroit executives could have flown to Washington on commercial flights (in first class), instead of in private planes. If a business is failing, union auto wages should be priced well BELOW what nonunion auto workers make, not well ABOVE what nonunion workers make. So until the unions have given back everything above the market value of their labor, they haven’t given back nearly enough. I don’t know enough about what goes into the $72 compensation rate, but perhaps the parties should consider having all current employees, both management and union workers, take a 50% pay cut.

The only job-saving justification I can think of for a Detroit bailout is if the problem were only temporary; then destroying jobs might be imprudent. If Detroit’s business model were strong, if there were little or no overcapacity, and if Detroit’s problems were only temporary, then one could reasonably think that a bailout might be efficient. But there is no temporary market failure here to redress. Detroit’s problems have been here since the late 1970s.

Anyone who thinks that giving money to a company losing 2-3 billion dollars a month — with overpaid workers and overpaid executives – would usually save jobs in the long run, rather than lose them, doesn’t understand economics.

UPDATE: I see that David Yermack said it better.

In 1993, the legendary economist Michael Jensen gave his presidential address to the American Finance Association. Mr. Jensen's presentation included a ranking of which U.S. companies had made the most money-losing investments during the decade of the 1980s. The top two companies on his list were General Motors and Ford, which between them had destroyed $110 billion in capital between 1980 and 1990, according to Mr. Jensen's calculations.

I was a student in Mr. Jensen's business-school class around that time, and one day he put those rankings on the board and shouted "J'accuse!" He wanted his students to understand that when a company makes money-losing investments, the cost falls upon all of society. Investment capital represents our limited stock of national savings, and when companies spend it badly, our future well-being is compromised. Mr. Jensen made his presentation more than 15 years ago, and even then it seemed obvious that the right strategy for GM would be to exit the car business, because many other companies made better vehicles at lower cost. . . .

Over the past decade, the capital destruction by GM has been breathtaking, on a greater scale than documented by Mr. Jensen for the 1980s. GM has invested $310 billion in its business between 1998 and 2007. The total depreciation of GM's physical plant during this period was $128 billion, meaning that a net $182 billion of society's capital has been pumped into GM over the past decade -- a waste of about $1.5 billion per month of national savings. The story at Ford has not been as adverse but is still disheartening, as Ford has invested $155 billion and consumed $8 billion net of depreciation since 1998.

As a society, we have very little to show for this $465 billion. . . . Yet one can only imagine how the $465 billion could have been used better -- for instance, GM and Ford could have closed their own facilities and acquired all of the shares of Honda, Toyota, Nissan and Volkswagen.

The implications of this story for Washington policy makers are obvious. Investing in the major auto companies today would be throwing good money after bad. Many are suggesting that $25 billion of public money be immediately injected into the auto business in order to buy time for an even larger bailout to be organized. We would do better to set this money on fire rather than using it to keep these dying firms on life support, setting them up for even more money-losing investments in the future.

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President-Elect Obama Taps into the ACS: It looks like the Obama Administration may end up hiring a number of employees and directors of the American Constitution Society. Not only are several of its advisors and directors likely heading to the new administration, but today the ACS announced that Lisa Brown, Executive Director of the ACS, will be the new White House Staff Secretary. Congratulations to Lisa for landing such an important position.
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"Singapore to Compensate Kidney Donors":

BioEdge reports:

Singapore is to allow compensation for kidney transplants and for eggs. A government proposal has been approved by a bioethics committee and legislation will be introduced early next year. The committee declared that reimbursement for kidney donation was acceptable as long as it is not "an undue inducement, nor amounting to organ trading".

What exactly this means for kidneys is difficult to fathom. According to the BMJ, a sum of S$10,000 [currently about $6500 US -EV] was mentioned. According to the Straits Times, the health minister, Mr Khaw Boon Wan, mentioned "at least a five-figure sum, possibly even six-figure" as appropriate reimbursement. This would include expenses, such as transport and medical costs, as well as loss of earnings. Also, the donor should be covered for follow-up medical costs and higher insurance premiums as a result of losing a kidney....

The committee has recommended that the reimbursement scheme begin with donors who are Singapore citizens and permanent residents....

I'm not sure that sums like these are adequate or fair, but it sounds to me like a step in the right direction. For my thinking on the subject, see this chain of posts, especially those starting with "Medical Self-Defense and Bans on Payment for Organs."

UPDATE: James Wimberley (at The Reality-Based Community) blogs about Spain's way of increasing organ donations, which seems to focus on internal hospital procedures. If it works, that's great; but I'm pretty sure it wouldn't be enough to clear out the waiting lists, so compensation would still be needed -- and eminently justified -- on top of the Spanish solution. Thanks to Victor Steinbok for the pointer.

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The Report on the Clinton Pardons That Called Eric Holder's Conduct "Unconscionable": In its NRO editorial on Eric Holder, the NRO editors pointed out the congressional report that had described his conduct in the Marc Rich pardon as "unconscionable." I haven't seen the report linked to online, but you can find the report here: Justice Undone: Clememcy Decisions in the Clinton White House (2002), by the House Committee on Government Reform chaired by Dan Burton. (Search for "unconscionable" to get to the key section.)

  The report offers a combination of factual reporting and speculation, and it contends that Holder's action in the Marc Rich pardon was "unconscionable" mostly because it bypassed the career attorneys who clearly opposed the pardon:
  One of Holder's primary duties in the pardon process was to make sure that the views of the Justice Department were adequately represented in the pardon process. In addition, as a Justice Department employee, he was bound by federal regulations that required the Justice Department to review pardon petitions before they were presented to the White House. Finally, as a simple matter of prudence, Holder should have ensured that he knew something about the pardon before he took action that substantially assisted the chances that the pardon would be issued. By helping Quinn circumvent the Justice Department, Holder ensured that his own prosecutors would not be able to express their opinion about the Rich case. In so doing, Holder disserved his own Department, as well as the statutes he was sworn to uphold.
  I'm not sure what the statutes were that were allegedly violated (I haven't read the full report yet), but I did want to just flag the report for readers who are interested in following the Holder nomination.
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California Supreme Court Agrees To Decide Constitutionality of Prop. 8:

The AP reports:

California's highest court agreed Wednesday to hear several legal challenges to the state's new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.

The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court's decision in May that legalized gay marriage.

All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change....

The court directed [Attorney General Jerry] Brown and lawyers for the Yes on 8 campaign[, who had joined the challengers in arguing that the court should consider the case,] to submit their arguments for why the ballot initiative should not be nullified by Dec. 19. It said lawyers for the plaintiffs, who include same-sex couples who did not wed before the election, must respond before Jan. 5. Oral arguments could be scheduled as early as March ...

I think it's good that the California Supreme Court agreed to decide the case, and get it resolved sooner rather than the later. It's important to know what the law is on this, especially given the likelihood that Prop. 8 invalidates same-sex marriages that had been entered into after the earlier court decision but before Prop. 8's enactment. I also think that the California Supreme Court will reject the state constitutional challenges to Prop. 8, and conclude that Prop. 8 amends the state constitution in a way that supersedes the court's interpretation of the preexisting constitutional provisions. (Here's my response to the "unconstitutional revision" argument, but I think the other arguments I've heard about are unlikely to prevail, either.)

Of course, Prop. 8 can't overrule any federal barriers to its enactment. I think there are no such federal barriers, but it's not as clear to me that the California Supreme Court will agree. [UPDATE: After a correction from Rick Hasen, I now think that the California Supreme Court is highly unlikely to reach this question, given the issues that it ordered briefed and argued.] And if the California Supreme Court invalidates Prop. 8 on federal constitutional grounds, for instance on the grounds that it's precluded by the Romer v. Evans decision or that the federal constitution bars discrimination against same-sex marriages, then the issue will be reviewable by the U.S. Supreme Court (and I think the U.S. Supreme Court will indeed agree to review it).

Thanks to How Appealing for the pointer.

UPDATE: Rick Hasen (Election Law Blog) reports that, contrary to my suggestion, "it does not appear that an argument that the measure violates the federal constitutional guarantee of equal protection is fairly before the court in its review." Reviewing the issues listed in the court's order granting a hearing leads me to think that Rick is likely right.

Rick also says, "It is also noteworthy that the California Supreme Court denied a stay request pending briefing in this case, with only Justice Moreno voting to grant a stay. That is some indication, though not necessarily a very strong one, that the court will vote to uphold Prop. 8 (the reason is that one of the factors in determining the grant of a stay is likelihood of success on the merits)."

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An Economic Bright Spot?:

According to Wikipedia, Americans consumed 138 billion gallons of gasoline in 2006. Now that gas is down about $2 a gallon, that puts $276 billion extra in the hands of consumers relative to what was expected earlier this year. Combine that with reductions in the price of home heating oil, plus reductions in the price of other imported commodities, and the benefit to consumers dwarfs the $150 billion stimulus package enacted earlier this year, which had the downside of coming out of the U.S. Treasury. Meanwhile, 10 year Treasury bonds are yielding under 3.4%, a potential boon for people looking to take out mortgages or refinance. (I read somewhere that the S&P 500 is now yielding more than the 10 year T-bill for the first time in many, many years; probably a great buy signal for stocks for those with courage and a long-term perspective.)

That doesn't mean that all the doom and gloom is wrong. But the declines noted above are a bright spot, at least for the U.S. economy.

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The Case for Accepting Obama's Nomination of Eric Holder for Attorney General:

Like co-blogger Orin Kerr, I tend to believe that Republicans shouldn't fight the confirmation of Eric Holder, Obama's nominee for attorney general. Most of the objections to Holder articulated by the National Review and other conservatives seem to be ideological in nature. I too believe that Holder is wrong on many issues. But that is not enough reason to justify opposing his nomination.

In the past, I have argued that senators can legitimately consider ideology in deciding whether or not to support presidential judicial nominees. Executive branch nominations, however, are a different matter. Federal judges are not the president's subordinates. They belong to an independent branch of government. The president isn't entitled to a judiciary that defers to his preferences. By contrast, cabinet officers and other executive officials are supposed to follow the president's policies and take his orders. Therefore, it is important that the president be able to choose people who share his policy priorities. Conservative advocates of the unitary executive should be among the first to appreciate the importance of allowing the president to choose his own top advisers. Realistically, any attorney general nominated by Obama will likely be a liberal Democrat; after all, that is what Obama is himself.

Senators might still be justified in rejecting a cabinet nominee if he were clearly unqualified for the job, showed evidence of serious moral depravity, or had ideological proclivities that are dangerously far removed from the mainstream. I don't think Holder qualifies on any of these counts. He is obviously qualified for the job, and seems to be a fairly conventional left-wing Democrat. I'm not a fan of his apparent role in President Clinton's pardons of Marc Rich and others; but as far as I know there is no evidence that Holder did anything illegal or seriously unethical in these cases.

Holder would not be my choice for AG. But he is an unsurprising choice for a liberal Democratic administration, and his flaws are nowhere near serious enough to justify setting aside the president's prerogative to choose his own cabinet personnel.

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"Let Detroit Go Bankrupt": In yesterday's New York Times, Mitt Romney offered up an interesting essay arguing that Congress should not try to bail out the Big 3 automakers.
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Interesting Analysis of Minnesota Senate Race Vote Totals

John Lott has an interesting analysis of recent corrections of "typos" in the vote totals in the Minnesota Senate race, found here. Its seems like the corrections have disproportionately favored Democrat Al Franken. Sounds like this is something that will bear watching.

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Responding to the National Review on Eric Holder: The National Review Online has posted an editorial criticizing Obama's apparent pick of Eric Holder as Attorney General. NRO's bottom line: "To be blunt, Holder is a terrible selection. If there’s any Obama cabinet nomination that Republicans feel moved to oppose, this should be it."

  NRO makes two basic arguments against Holder. First, he is a "conventional" liberal. According to NRO,
[Holder] is convinced justice in America needs to be “established” rather than enforced; he’s excited about hate crimes and enthusiastic about the constitutionally dubious Violence Against Women Act; he’s a supporter of affirmative action and a practitioner of the statistical voodoo that makes it possible to burden police departments with accusations of racial profiling and the states with charges of racially skewed death-penalty enforcement; he’s more likely to be animated by a touchy-feely Reno-esque agenda than traditional enforcement against crimes; he’s in favor of ending the detentions of enemy combatants at Guantanamo Bay and favors income redistribution to address the supposed root causes of crime.
  In any other time, Holder would simply be an uninspired choice. But these are not ordinary times — we face a serious, persistent threat from Islamist terrorists. At the same time, Democrats have expressed outrage over both the alleged politicization of the Justice Department and the reckless disregard of its storied traditions. For these times, it is difficult to imagine a worse choice for AG than Eric Holder.
  I don't know Holder well (I once shook his hand, I think), and I don't have any particular reason to defend him. But I don't quite follow the argument here. Holder's views sound a lot like President-Elect Obama's, which are in turn more or less the views you might expect to be held by a Democrat appointee. Isn't that what you would expect from a Democratic President? Of course, you don't have to vote for the Democratic nominee: I didn't. But the Democrat won, and surely the standard for measuring who would be a good pick for AG has to factor this into account. Also, to the extent the NRO is arguing that Holder is too political or somehow has "recklessly disregarded" DOJ's traditions, the editorial hasn't even bothered to provide evidence for it. (Having served under Holder myself at DOJ for 2 and a half years, I can say that I never thought of him as political.)

  Next, NRO argues that Holder played too much of a role in controversial pardons and commutations that President Clinton granted. The lead example is of the Marc Rich pardon, which was the subject of a Congressional report that labeled Holder's role "unconscionable." But the NRO leaves out that the report was directed by Dan Burton, a ferocious Clinton critic who was famous for believing that Vince Foster was murdered (you may recall Burton as the guy who reenacted Foster's death in his backyard by shooting a pumpkin that was supposed to stand in for Foster's head in order to help show Foster must have been murdered). A report championed by Dan Burton hardly seems like a neutral source for a judgment like that.

  More broadly, the idea that Holder somehow furthered the Rich pardon to help himself become AG never quite made sense to me. Holder was already a natural pick for AG in a Democratic administration, and it's unclear why he would have thought that helping Jack Quinn with a private client would help get him that job — or how giving the pardon that the President wanted to grant a "neutral leaning favorable" review would be a way of helping Quinn. The story just doesn't make sense. I am certainly open to hearing more about it: Maybe there are details to the story that remain unknown that make the criticism of him more understandable. I trust the confirmation hearings will go through these issues again, and that certainly seems fair. But based on what we know so far, the case that Holder's conduct was "unconscionable" seems pretty weak to me.

  I recognize, based on yesterday's post on Holder, that this post is likely to enrage a number of our more partisan Republican readers. Holder is a "Dem," after all, and some Republicans are eager to get back in the aggressive posture of attacking the Dems with whatever they can. But in my experience, Holder was an honorable and apolitical public servant. It might serve Republican party interests to go on the attack against him, but it doesn't strike me as either fair or honorable to do so.
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Tuesday, November 18, 2008

Just When Was That Revolver Manufactured?

KETV (Omaha) reports:

U.S. attorneys had a conundrum on their hands -- they had the evidence to prove a convicted felon was in possession of a gun, but they couldn’t prove the gun was a gun.

What [they] had on their hands was an American double-action revolver that was manufactured between 1880 and 1941.

The problem is that federal code states that the weapon is not a firearm unless it was manufactured after 1896....

I take it the reference is to 18 U.S.C. §§ 921-922, which ban felons from possessing firearms, but define "firearm" to exclude any "antique firearm," which is to say "any firearm ... manufactured in or before 1898." (The 1896 date appears to be an error in the news report.) So indeed the prosecutors didn't have the evidence to find the defendant guilty beyond a reasonable doubt of possessing a firearm manufactured after 1898, which is what the statute requires.

Fortunately for the prosecution, the felon-in-possession statute also bars felons from possessing ammunition, and the defendant was convicted of that.

Thanks to Sean Sirrine for the pointer.

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Engleman v. Murray and Extraterritorial Enforcement of Arrest Warrants: The Eighth Circuit decided a very interesting Fourth Amendment case yesterday involving extraterritorial enforcement of warrants: Engleman v. Murray. The case end up creating some interesting tensions in Fourth Amendment law, so I thought I would blog a bit about it.

  First, the facts. Engleman made a 911 call to report a prowler, and he gave the address of the home where he was calling as "24512 Van Fleet Road, Siloam Springs, Arkansas." The call was routed to the Arkansas local police, who learned in the course of the call that there was an Arkansas warrant out for Engleman's arrest. The police ended up going to the home and searching for Engleman to execute the Arkansas warrant. In the home, though, the officers were told that the home was actually inside Oklahoma, not Arkansas. Indeed, believe it or not, it turns out that while the mailbox of the home is in Arkansas — and thus the mailing address of the home is in Arkansas — the Oklahoma/Arkansas line cuts through the property and the home itself is actually located in Oklahoma. (What is this, a law school exam?) The police arrested Engleman under the Arkansas warrant, and Engleman then sued the police for violating his Fourth Amendment rights by carrying out the Arkansas warrant in Oklahoma.

  In a divided opinion by Judge Gruender, joined by Judge Beam, the Eighth Circuit concluded that under the originalist framework articulated by the Supreme Court in Virginia v. Moore, the Arkansas warrant was invalid in Oklahoma. Under the English common law, warrants had no force outside their territory:
At the time the Bill of Rights was adopted, a warrant issued in one English county was not valid in another county unless a justice of the peace in that county “backed” the warrant. See William Blackstone, 4 Commentaries *292. “[W]hen a warrant is received by the officer he is bound to execute it, so far as the jurisdiction of the magistrate and himself extends.” Id. at *291; see Blatcher v. Kemp, (1782) 126 Eng. Rep. 10, 10 n.a (Maidstone Assizes) (“No constable can act under a warrant, out of his district . . . .”); R v. Chandler, (1700) 91 Eng. Rep. 1264, 1265 (K.B.) (“[W]here a precept or warrant is directed to men by the name of their office, it is confined to the districts in which they are officers.”). Under a historical understanding of the Fourth Amendment, the jurisdiction of the issuing judge and the executing officer is limited, and a warrant is not valid if an officer acts outside of that limited jurisdiction. See Lawson v. Buzines, 3 Del. (3 Harr.) 416, 416 (Sup. Ct. 1842) (concluding that “a constable of the city . . . has no authority out of the city limits” to execute an arrest warrant issued in that county); Copeland v. Isley, 19 N.C. (2 Dev. & Bat.) 505, 505 (1837) (“[A]n officer must proceed to arrest at some place actually in his own county . . . .”).
  The court then concluded that qualified immunity nonetheless applied because under the circumstances, the officers could reasonably believe that they were in Arkansas, not Oklahoma, and therefore had authority to carry out the warrant. (Confusingly, at the end of the opinion the court says that because the officers reasonably believed that they were in Arkansas, they reasonably relied on the warrant and did not violate the Fourth Amendment but that qualified immunity applied because the right was not clearly established — more on this in a moment.) Judge Bye dissented, arguing that the officers should have known they had no authority to do what they did.

  A few thoughts and reactions to the case. First, it's fascinating that the court here, and a few other courts recently, are construing Virginia v. Moore as requiring an originalist analysis of the reasonableness of a search or seizure. Lower courts usually ignore methodological advice like that, and instead engage in either reliance on precedent or the balancing approach to reasonableness. Is Moore going to signal a more widespread reliance on originalism in Fourth Amendment law in the lower courts? Time will tell, but it might.



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"Texas A&M International University in Laredo Fired a Professor for Publishing the Names of Students Accused of Plagiarism":

So reports the Daily Texan. The post at issue is here. The syllabus for the course stated, "No form of dishonesty is acceptable. I will promptly and publicly fail and humiliate anyone caught lying, cheating, or stealing. That includes academic dishonesty, copyright violations, software piracy, or any other form of dishonesty." True to his word, the professor -- an untenured and apparently part-time adjunct professor -- was indeed "promptly and publicly ... humiliat[ing]" the students who he believed were cheating; the university is paraphrased as stating that the professor "was terminated for violating the Family Educational Rights and Privacy Act, a federal law that prohibits the release of students’ educational records without consent."

I can't speak to whether FERPA indeed applies here. But I'm inclined to say that a university wouldn't be violating academic freedom -- or, as to public universities, the First Amendment -- if it provided that a faculty member generally may not publicize embarrassing things he learns about specific named students as a result of his teaching, even including dishonest conduct by those students. Inside Higher Ed has more, including this:

Adding to the buzz has been an e-mail message sent to department chairs by someone in the administration (the provost denies knowing anything about it, and an article Wednesday in the Laredo Morning Times attributed it to deans) in which the chairs were reminded to tell faculty members that any F grades for plagiarism should be reviewed by the honors council and that professors need to always think about students’ due process rights before seeking to punish them.

Several faculty members, speaking privately because they didn’t want to anger administrators, said that they were taken aback by the way the university appeared to be viewing plagiarism as an issue requiring more due process for students, not more support for professors. For the university to follow the dismissal of an adjunct with this reminder, they said, left them feeling that they couldn’t bring plagiarism charges. Further, many said that they believed it was a professor’s right to award an F to a plagiarizer and that this should not require an honors council review.

Several e-mail messages are circulating among faculty members, expressing concern that their right to assure academic integrity is being undercut. Despite how widespread a problem plagiarism is among students, these e-mail messages say, the university is looking the other way and sending a public message to students that they are the victims when a professor takes plagiarism seriously....

Pablo Arenaz, provost at the university, said he was distressed that some faculty members are concerned about the university’s commitment to academic integrity. Asked whether a professor has the right to award an F to someone caught copying, Arenaz said that was “up to interpretation.”

It seems to me that if it's just "up to interpretation" whether a professor could give a student an F for cheating, then there is indeed reason to be "concerned about the university's commitment to academic integrity."

Thanks to Paul Caron (TaxProf Blog) for the pointer; follow that link to see links to the professor's defenses of his position (for instance, this one.

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The Declaration of Independence and God:

A conversation I had today reminded me of something I meant to blog about: The Declaration of Independence, many argue, contemplates a Creator God, not a God who sets forth rules for human behavior, who judges such behavior, or who intercedes in human events, whether directly or subtly. And this, the argument goes, reflects the general attitudes of the Framers or at least of the political system they wished to establish.

But I don't think this is a sound way of reading the Declaration. It's true that the opening paragraphs refer to "Nature's God" and a "Creator":

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

But even this Creator of course is seen as endowing people with "unalienable Rights," which seems to suggest a Creator as arbiter of morality and rights. And, more importantly, consider the closing paragraph:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. -- And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

God is thus not just Nature's God and the Creator, but also the "Supreme Judge of the world," to whom people may appeal to judge or witness "the rectitude of [their] intentions," and whose "Divine Providence" is said to "protect[]" them."

To be sure, one can only draw so much from a single historical document; for instance, it's possible that particular references in the document were seen as largely rhetorical flourishes (though I'm not sure that this is so, since my sense is that very many educated Americans of the Framing generation did indeed have a pretty conventional understanding of God as creator, judge, and source of protection). But those who focus on the Creator and Nature's God language in the document do often try to draw something from that one document. And if we look to the document, we see it discussing God as judge and protector, and not just God as creator.

I should note that I say all this as a secular person; it's not that I want the Declaration to reflect this sort of religious sensibility -- I'm just reporting on the sensibility that it appears to me to in fact reflect.

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Analyzing Colorado Election Results:

Here's a new podcast in which Jon Caldara and I have a quick discussion of Colorado's election results, including the defeat of several tax increase ballot issues, and the defeat of Marilyn Musgrave. It's a little over 7 minutes long, and available in MP3 on iVoices.org.

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Eric Holder Reportedly Tapped for Attorney General: Newsweek is reporting that Eric Holder has been picked to be Obama's nominee for Attorney General. This is a very good pick, I think: Holder was my favorite of the folks who had been mentioned as being on the short list. Holder was the Deputy AG back when I was at DOJ during Clinton's second term, and my impression at the time was that he was smart and professional. A very good choice, I think.
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Eric Holder Apparently Obama's Choice for Attorney General.

Here's a profile of Holder from the American Lawyer in June 2008.

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Gay marriage in D.C. next year?

Yes, says openly gay D.C. city council member David Catania, a former Republican who holds an at-large seat. According to a website called DCist, Catania is confident that the city council will support the measure when it convenes in January and that the mayor will approve it.

Catania knows his city's politics much better than I, but I wonder whether his confidence is fully justified. Given the strong opposition to same-sex marriage among blacks, as demonstrated most recently in their 70% support for Prop 8, the city council in an overwhelmingly black city might get cold feet as the vote nears. Another open question is whether, even with an enlarged Democratic majority, Congress would overrule the city's recognition of same-sex marriages.

Related Posts (on one page):

  1. And now, D.C.:
  2. Gay marriage in D.C. next year?
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Two More Early References to the Right To Bear Arms,

in 1816 arguments to a jury. The first is by defense lawyer Joseph Reed Ingersoll, who would eventually become a prominent Congressman:

I think it is apparent ... [t]hat after the attack, and threats, and the avowal of an intention of the part of captain Carson to take away his life, he had a right to bear arms on the plainest principles of self-defence....

Having the right of access to the house, he was justifiable in protecting himself by the only means which reduce the powerful to a level with the weak. The constitutions, both of the Federal government and of the commonwealth of Pennsylvania, secure to every citizen, the right to bear arms, and the only question that remains, is whether the exercise of the right be compatible with disretion.

The second is by another defense lawyer, William Rawle, a prominent early American lawyer who would nine years later write a treatise that likewise supported the individual rights view of the right to bear arms and of the Second Amendment:

There is only one circumstance remaining worthy of notice; that of arming himself. The constitution of this state has expressly secured the right to carry arms. In Art. IX, Sect. XXI, "the right of the citizens to bear arms, in defence of themselves and the state, shall not be questioned."

The right, in defence of the state is, where foreign invasion occasions it to be in danger; that of defence of themselves continues through their lives, and, therefore, there is not any thing in opposition to Richard Smith's bearing arms, not against the officers of the law, but against the lawless attack of an individual he had to fear. If, in a conversation with another, attacked by him, he had caught up and fired that pistol, in fear of his person suffering great bodily harm, the law would have considered it as excusable homicide. Does his carrying that pistol, after Carson's previous attempt on him, for self defence, make him culpable? No -- the constitution allows it, especially when the assistance of the magistrates could not be obtained; it follows, that the use of this pistol was not unlawful when accompanied with these circumstances. Suppose he had been taken up for carrying a pistol in his bosom, and upon complaint being made to some of the learned magistrates, he had defended himself, by saying, he carried it in fear of his life; or were to say even, I do not carry it -- it is in my chamber -- the judge would answer, pursue, uniformly, the same conduct; you are perfectly justifiable, and have a right to be armed in your own defence.

Trials of Richard Smith Together with the Arguments of Counsel, the Charges and Sentence of the President 157, 205 (1816).

These are small pieces of evidence, but I ran across them and thought I'd note them, especially since they are from only 25 years after the Bill of Rights was ratified, and since the second is one of the few sources that discusses the "in defence of themselves and the state" locution that's common in state constitutions. And the quotes help support, I think, the view that the Second Amendment was widely understood as securing an individual right to bear arms, including in self-defense, to the point that lawyers could confidently and casually assert this even in cases where they didn't have that much to gain from it: If Ingersoll wasn't sure that his audience would agree that the Second Amendment secured such a right, he could easily have just relied on the state constitutional right, which was the one most directly relevant in this state prosecution.

An interesting tidbit: The prosecutors were Jared Ingersoll -- defense lawyer Joseph Ingersoll's father -- and one Edward Ingersoll, who I take it was also related, though I'm not sure exactly how.

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My Favorite Zeugma:

Thanks to commenter Dan Simon, who reminded me of this zeugma, from the famous English radical (and hero to the American revolutionaries) John Wilkes. The Earl of Sandwich apparently exclaimed to Wilkes something like, "I don't know whether you will die on the gallows or of the pox" (the "pox" referring to syphilis). Wilkes then replied,

That depends on whether I embrace your Lordship's principles or your mistress.

The quote is often attributed to Benjamin Disraeli, but the source I cite above is from 1839, when Disraeli was just beginning his political career; if the statement had indeed been from Disraeli rather than Wilkes, it seems unlikely that an 1839 source would label it as being Wilkes's.

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Speech at Drexel Law School Tommorrow:

For readers in the Philadephia area who may be interested, I will be speaking at Drexel Law School tommorrow, at 5:30 PM in Room 140, on "The Future of Federalism." Come one, come all!

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Romanette:

Tony Mauro at Legal Times alerted people last week to this exchange at oral argument:

MS. SAHARSKY [of the Solicitor General's office]: What I'm suggesting, Your Honor, is that the "that" refers to everything that is in Romanette (i) and (ii) up to the break with "committed by." So that it is an offense that is a misdemeanor and has as an element "committed by." You know, these — these two different clauses both modify "offense," just as a grammatical matter, not looking at this Romanette (i) and (ii), but just looking at that sentence.

CHIEF JUSTICE ROBERTS: Romanette?

MS. SAHARSKY: Oh, little Roman numeral.

CHIEF JUSTICE ROBERTS: I've never heard that before. That's — Romanette.

A lawyer teaching a Justice a new word at oral argument is rare, partly because the Justices know pretty much all the words they need to know, and partly because no lawyer wants to either confuse a Justice or be seen as showing off. So I suspect that Ms. Saharsky used the word entirely without thinking about it: To her, it was quite normal, though to the Chief Justice it was unknown (as it was to me and to some other lawyers I've talked to).

So what's going on? The word is in no dictionary that I could find. It appears in no Nexis-searchable publication. A Google search for "Romanette" in English-language pages revealed fewer than 35 pages that used the word before Monday, once all the false positives (the names of people, horses, green bean varieties, blinds, and the like) were removed.

And yet the word, with precisely the meaning Ms. Saharasky used, appears in six court opinions, from federal court in Oklahoma, bankruptcy courts in Texas and Pennsylvania, and state courts in Minnesota, plus ten sources in Westlaw's TP-ALL database (all in practitioner journals, not in traditional law reviews). And the Google hits — mostly from legal documents — come from a similarly wide range of sources: the minutes of a Novato, California City Council meeting, a manual of contract drafting, a transcript of an Idaho Senate commitee meeting, and more. What's more, all but a few use the word as matter-of-factly as Ms. Saharasky did, without any indication that the word is anything novel and unusual; the remaining ones are queries about what the word means or brief discussions of its meaning.

The earliest source I could find is this 1993 book on Corporate Internal Investigations; apparently the word seemed commonplace to the author even then. Most of the sources are from the last five years, but some go back to the 1990s. And I suspect that the word's ratio of spoken/written uses is probably much higher than for many other words, because it's a way of verbalizing written symbols. In writing, we can just say "subsection (ii)," but when we pronounce it, we need something more than that, and for some people "Romanette" is that something more. This suggests that the term might be more common than my Google search suggests.

Still, what strikes me about the term is that many of its users seem to assume that it's widely known, even though many other experienced lawyers — pretty much all of the handful of lawyers that I've run this by — have never heard of it. One can expect this for some terms widely known by lawyers but not by laypeople (such as "conclusory"); many users of such terms might think the whole world knows the term because so many of their friends are lawyers.

But how would a term such as "Romanette" become so commonplace in some widely dispersed legal circles, to the point that its users assume that it's widely known, but so unknown to others within the same profession? Did it arise at some particular law school, or in some law firm, or among users of some particular drafting manuals, and thus seem common to people who have been exposed to it but unknown to others? Or am I mistaken in my conjecture, and the users of the word like it so much — or think it's so good for showing off — that they use it even though they know many listeners don't understand it?

If you have some answers to these questions, I'd love to hear them in the comments.

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"French Court Reverses Virgin Annulment":

I blogged about the case in June; an appeal court just reversed the original decision yesterday:

A French appeal court overturned Monday a ruling that annulled the marriage of a Muslim couple after the husband discovered his bride was not a virgin, the husband's lawyer said....

His wife, who admitted to him she had had pre-marital sex, said she accepted the annulment....

State prosecutors had said they were not against allowing the split if it were possible to replace the "discriminatory motive" of loss of virginity with a more general one, such as mistaken identity....

My thinking on the matter remains what it was in June:

In principle, it seems to me that a spouse should be free to divorce the other spouse when the marriage was based on a lie. I think it's silly to care about whether one's bride was a virgin, but people are entitled to care about qualities that I think are irrelevant, as well as the indubitably relevant quality of truthfulness. Given this, it seems to me not very important whether this is called a divorce or an annulment, especially given that as I understand it French law generally allows no-fault divorce, at least when there's mutual consent.

Now I would be troubled if the law saw lack of virginity as a quality that is "essential" but other things as qualities that aren't "essential." That would be an endorsement by the legal system of the unsound view that virginity is extraordinarily important in a wife. I would also be troubled if the law encourages disputes about exactly what was said by one spouse to the other, since I suspect this would lead to lots of lying and not much truth-finding.

But if the couple agrees about the facts, and agrees that, to quote the AP's paraphrase of the court ruling, "in this particular marriage, virginity was a prerequisite," then allowing the annulment seems to me fine. In fact, it's better for the court to focus on what was essential to the parties rather than to select which qualities are "objectively" essential and which aren't objectively essential. I'm a big believer in decisionmaking using objective standards in lots of situations — but two people's decision about what's important to them about a spouse doesn't strike me as a situation that calls for such objective standards. And, I stress again, if the parties could have gotten divorced in any event, why the strong objection to letting them get an annulment instead?

Now I understand that there is a lot of insistence on virginity in many Muslim families (and some non-Muslim ones, though my sense is that in France this insistence is likely much less common among the non-Muslim population). As I said before, I think this is a bad basis for choosing a spouse, and I suspect that a cultural acceptance of this basis leads to all sorts of emotional pain. On top of that, my guess is that the virginity rule is definitely not applied in a sex-neutral way, which makes it even more improper in my view.

But, as I said, people are entitled to choose their spouses based on any reason at all, and to my knowledge French law allows them to agree to divorce based on any reason at all (again, at least if both agree). Saying that they may also annul the marriage based on any misrepresentation that they saw as material strikes me as no different: It's an accommodation of people's choices about whom to have a tremendously important relationship with, and we should generally accommodate those choices even when we think they are partly unwise — I say partly because while the insistence on virginity strikes me as unsound, the concern about the lie strikes me as much more proper — or reinforce unsound community attitudes.

Thanks to Religion Clause for the pointer.

Related Posts (on one page):

  1. "French Court Reverses Virgin Annulment":
  2. "Outcry After French Court Rules on Virginity":
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Detroit Bailout Plan B:

Yesterday I noted Scrappleface's plan for a Detroit bailout ("Make Better Cars").

Last night at dinner a friend suggested a bailout plan B in the same spirit. One person noted that the United States in fact has a very successful and prosperous automotive industry--it is just located in places like Alabama and South Carolina now instead of Detroit.

To which another person observed that maybe that provides the roadmap for Detroit's new bailout plan:

First, get many billions of dollars of taxpayer dollars to tide them over for a couple of years.

Second, get card-checked enacted.

Third, send some burly fellows to Alabama and South Carolina to "persuade" the workers there to join the UAW.

Voila--once we make foreign manufacturers as inefficient and sclerotic as the Big Three then the problem is solved!

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A Bad Year for Mavericks:

2008 will surely go down in history as a terrible year for mavericks. First, the Jason Kidd trade failed to give the Dallas Mavericks the boost they needed to advance deeper into the playoffs. Then, superstar Dirk Nowitzki had another mediocre postseason. On the political front, "maverick" John McCain was soundly beaten in the presidential election, and fellow self-proclaimed maverick Sarah Palin wasn't able to help the Republican ticket anywhere near as much as McCain must have hoped.

And now, Mavericks owner Mark Cuban has been charged with insider trading. And corporate law maven Steve Bainbridge believes that the SEC has a "pretty good case" against him. At this point, the mavericks of the world can't wait for 2009.

UPDATE: Mavericks also can't be happy that their longtime rival, the Iceman, is likely to run for governor of New Mexico. It doesn't look like there will be any strong maverick candidate to put up against him.

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Does the Anti-Gay Marriage Backlash Prove that Judicial Review is Ineffective?

In recent years, leading scholars such as Michael Klarman and Gerald Rosenberg have argued that judicial review is rarely if ever effective in protecting rights that aren't supported by the political branches of government and majority public opinion. The political backlash against the Massachusetts Supreme Judicial Court's 2003 gay marriage decision has seemingly added fuel to these revisionists' fire.

As Jeffrey Rosen argues in a recent New Republic debate that the Goodridge decision led to a massive political backlash, with some 30 states enacting anti-gay marriage amendments to their constitutions as a result. The most recent setback was the passage of California Proposition 8, which reversed a pro-gay marriage California Supreme Court decision. Rosen concludes that judicial review has set back the cause of gay marriage more than it advanced it. In a recent updated edition of his book The Hollow Hope: Can Courts Bring About Social Change?, Gerald Rosenberg - perhaps the leading academic advocate of the view that judicial review is largely ineffective - argues that the gay marriage battle provides further evidence for the validity of his thesis. Judicial decisions that run counter to majority opinion, he claims, actually undermine the rights they seek to protect by generating political backlashes and diverting valuable resources away from more promising strategies.

In my view, the Klarman-Rosenberg thesis is greatly overstated, and the gay marriage battle actually proves that courts can have a significant impact even in some cases where their decisions run counter to majority public opinion. Richard Just puts the point well in his response to Rosen:

I think it's important to point out that the gay rights movement has not worked exclusively through the courts. The reason it sometimes appears that the gay marriage movement has focused on the courts is because those are the only places it has actually had success. Thanks to courts, we have marriage equality today in two states (Massachusetts and Connecticut); without courts, we would have marriage equality in no states. Would the gay rights movement really be better off with no court-imposed gay marriage--and therefore no gay marriage at all?

You blame the 2003 Massachusetts decision for leading to gay-marriage bans in 30 states. I would put the numbers a bit differently. In states where courts have imposed gay marriage, we are now two for three in terms of making the ruling stick. (We lost in California. But in Massachusetts, where polls swung in favor of gay marriage within a year of the first same-sex marriage, we have effectively won. And likewise in Connecticut, where voters this week rejected calls by conservatives to hold a constitutional convention for the purpose of overturning the state supreme court's ruling on marriage equality.) By contrast, in states where courts have not imposed gay marriage, we are zero for 47. And, in many of these states (New York, for instance), this has not been for a lack of effort on the part of gay activists and the politicians allied with them.

The crucial point here is that in 29 of the 30 states that passed anti-gay marriage amendments, there wasn't any legal gay marriage anyway. Thus, gay marriage advocates didn't actually lose much in these states. To be sure, the enactment of these amendments may make it more difficult to adopt gay marriage in the future. Rosen emphasizes this point. However, it's important to remember that most state constitutions are actually easy to amend. That's why the anti-gay marriage forces were able to pass their amendments so quickly. In many states, a state constitutional amendment is an only slightly greater obstacle to legal change than a statute. From a pro-gay rights standpoint, the adoption of gay marriage in two states and its near-adoption in California was likely worth the cost of making gay marriage slightly more difficult to enact in some 30 states where it was unlikely to be adopted in the near future anyway.

Moreover, both Just and Rosen undervalue the extent to which the pro-gay marriage court decisions have shifted the parameters of the political debate. With the relatively radical gay marriage option now on the table, other pro-gay rights measures such as civil unions seem moderate by comparison. Thus, civil unions are now supported by the majority of the general public, and even by some social conservative politicians, including George W. Bush. It is difficult to imagine this result coming about so quickly without the pro-gay marriage judicial decisions.

None of this proves that the state supreme court decisions requiring gay marriage were correctly decided. It does, however, show that judicial power is often more potent than the Klarman-Rosenberg thesis suggests. To be sure, courts are unlikely to protect rights that are completely bereft of support elsewhere in society. If not for the liberalization of popular attitudes towards gays over the last 50 years, there would never have been enough pro-gay judges to reach decisions like Goodridge. But although the courts are not completely free of outside constraints, they can indeed sometimes protect rights that are opposed by majority opinion and by the political branches of government. Co-blogger David Bernstein and I tried to outline the conditions under which that might happen in this 2004 Yale Law Journal article criticizing Klarman. Although we didn't focus on the gay marriage battle specifically, many of our points apply to it as well.

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Monday, November 17, 2008

Bailouts and Slippery Slopes:

An interesting post by Mario Rizzo (Think Markets).

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The Countrywide VIP Scandal:

It's been widely reported that Countrywide Mortgage had a special VIP program that provided various discounts to well-connected elites who could help Countrywide politically, most famously Sen. Christopher Dodd.

Is anyone else reminded of that horrible [IMHO] Sylvester Stallone movie Cop Land, about a town full of corrupt police officers, who were accomplices to all sorts of illegal mayhem? When I saw this movie, my girlfriend and I laughed out loud when it was revealed that the police officers were all bought off with "low interest mortgages" provided by the mob. Maybe the screenwriters had their fingers closer to the pulse of American corruption than I realized!

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"Human drama fills case called landmark on Internet": The Associated Press has this story on the Lori Drew case. Jury selection will begin in the case tomorrow. (Hat tip: Howard Bashman)
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Rather’s Lawsuit Reveals Embarrassing Fact About CBS: CBS Was Fair in Picking Panelists for Its Outside Investigation of Rather.

The New York Times has a story on Dan Rather’s lawsuit against CBS with the shocking revelation that the names of some potential outside investigators were vetted with Republicans. This was an (apparently scandalous) attempt both to be fair and to be seen as being fair.

If Rather’s CBS group treated Republicans unfairly in its story, and if CBS wanted Republicans to think that their outside investigation fairly examined their complaints, then it would have been irresponsible for CBS NOT to have picked at least one committee member who would be seen by Republicans as ensuring a fair investigation of their complaints.

In other words, in its investigation of Rather’s fraudulent report, CBS did not want to repeat the error that led to Rather’s mistake – relying on an ideologically monolithic, left-leaning investigative team.

I read the CBS outside report when it came out. I thought they bent over backwards to be fair and generous to the Rather team.

The only even marginally embarrassing revelation in today’s New York Times story is this one sentence:

Other documents, meanwhile, suggest that Ms. Mason, who reported to Mr. Heyward [at CBS], was getting updates from panel investigators on some of their findings, at a point when CBS News was telling outsiders that the network was staying out of the investigation.

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Responding to Tax Protesters: Do you know someone who believes that they don't have to pay income taxes because income taxes are voluntary, wages are not income, or the income tax is unconstitutional? My collegue Jon Siegel has a website that offers remarkably patient and thorough responses that show why these arguments are wrong. The site has been up for a long time, apparently, but I just learned of it today and I figured others might find it interesting or helpful (or just amusing). Jon also has a blog: Law Prof on the Loose.

  UPDATE: In the comment thread, commenter Ex-Fed adds a story of an amusing judicial reaction to tax protestors:
When I was a prosecutor, I had [a tax protestor] who claimed that the United States District Court did not have jurisdiction over him because the courtrooms had American flags with gold fringes, which established that they were admiralty courts and not courts of general jurisdiction. Judge Hupp, God rest him, wryly said "I'll pretend you're a boat."
Nice.
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More on Sarah Palin's Syntax, and Its Critics:

Mark Liberman at Language Log -- not a supporter of Palin's politics, I think -- has a characteristically thoughtful, evenhanded, and persuasive post on the subject.

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X-Ray Body Scans, Inmate Visits, and the Fourth Amendment: Back in late August, a federal court in Illinois handed down an interesting opinion on the Fourth Amendment implications of X-ray body scans, Zboralski v. Monahan (Moran, J.). The court ultimately didn't reach a decision, but rather called for more facts. But as far as I know, this is the very first case on how the Fourth Amendment applies to X-ray body scans, so I thought I would blog a bit about it.

  First, the facts. Zboralski is a frequent visitor to the Illinois Department of Human Services' Treatment and Detention Facility, where she visits her husband who has been civilly committed. The facility has a policy that all visitors must be subject to a patdown to ensure that the visitors are not bringing drugs or weapons to the individuals detained.

  Zboralski complained that a particular guard repeatedly touched her inappropriately when she came to visit. A facility employee told Zboralski that if she didn't want to be patted down, she could be subject to an X-ray body scan instead. The facility had a Rapiscan X-ray machine that was purchased to do body scans of inmates in lieu of strip searches, and the employee offered Zboralski the option of being scanned instead of patted down.

  Zboralski agreed. She was scanned in a number of later visits, as well, in part because confusion at the facility apparently led to the guards believing that Zboralski could only be admitted to the facility if she agreed to a body scan (without the option of a pat down). Indeed, it seems that in her later visits, Zboralski was told that she could only enter the facility if she agreed to an X-ray body scan.

  It's not totally clear from the opinion, but it looks like the X-ray body scan is the "Rapiscan Secure 1000," a new x-ray machine that identifies items underneath a person's clothing or in pockets. I found a sample image of a person scanned by the machine online, and it looks like this:


  Zboralski went home and researched the machine on the Internet, and she realized that the facility employees had essentially seen her naked through the scanning device. She objected to the scanning, although for a few weeks the guards continued to require her to be scanned when she visited her husband. Zboralski then sued, claiming that the scanning as a condition of entering the facility violated her Fourth Amendment rights.

  Notably, it was agreed from the outset that the X-ray body scan was a search that violated Zboralskis reasonable expectation of privacy. The question was how invasive a search it was, and therefore what kind of cause was needed to conduct one as a condition of entrance to a prison or other place of detention — rendering the search constitutionally "reasonable" in that setting. Judge Moran began by noting that courts have generally held that a physical "pat down" could be permitted as a condition of entrance to a prison. On the other hand, courts have held that a strip search is more invasive and that at least reasonable suspicion is required that the person is carrying contraband. Judge Moran thus framed the question as being whether the body scan was more like a patdown or more like a strip search.

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SUNY-Binghamton "Abandons Attempt to Suspend or Expel" Student Critic:

The Foundation for Individual Rights in Education (FIRE) reports:

Binghamton University (formerly SUNY–Binghamton) has abandoned its attempt to suspend or expel a student who put up posters challenging the Department of Social Work. The department had ordered that social work master's student Andre Massena leave the program for one year with no guarantee of return, required him to apologize, and demanded that he publicly disavow his own views after his pseudonymous posters challenged the department for having hired the executive director of the Binghamton Housing Authority (BHA) -- an agency Massena thought was responsible for social injustice. When Massena appealed, the department's chair added entirely new allegations and recommended his expulsion. The department dropped the charges late Friday, one day after the Foundation for Individual Rights in Education (FIRE) took the case public.

For more on this case, see the FIRE press release and its links, or the post linked to below under Related Posts.

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"The Insider Trading Charges Against Mark Cuban":

A detailed analysis from my colleague Prof. Stephen Bainbridge (BusinessAssociationsBlog.com), who (among other things) is the author of Securities Law: Insider Trading.

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Urging the Obama Administration To Kill Pirates:

Sounds like good advice from Kenneth Anderson (Opinio Juris):

["]International Maritime officials say at least 83 have been attacked off Somalia this year, with 33 of them hijacked. The pirates are currently holding about 11 ships, including a Ukrainian cargo vessel carrying 33 tanks.["]

I’ll post more on this later, but let me put out a query now: Might piracy be a relatively easy place for the Obama administration to demonstrate its approach to use of force, multilateralism, and international law? ...

Meanwhile, the British have instructed their navy to ignore pirates, out of the remarkable fear that any captured Somali pirates might have asylum claims on metropolitan Britain. I am not alone in thinking this an ignominious day for Britain. But it is a double whammy for unintended consequences: it is unlikely that it was ever intended that asylum law would be read to create a municipal duty for Britain regarding detentions for piracy off the coast of Africa -- but it was equally unlikely that it was ever contemplated that a state would appeal to asylum law in order to abandon what might otherwise be seen as an affirmative international law duty to maintain the law of the seas....

I had a conversation with a US Navy officer ... who suggested that the best military course of action would be to equip some number of civilian vessels as decoys -- heavily armed and carrying marines. The best thing, he said, would be for Somali pirates to attack, and then be aggressively counterattacked, in a battle, not the serving of an arrest warrant -- sink their vessel and kill as many pirates as possible. It would send a message to pirates that they could not know which apparently civilian vessels might instead instead counterattack....

[T]here are a number of ways in which an Obama administration might make its mark here.

  • One is to act in a way to demonstrate that the operation is a military one within the traditional law of the sea responding to piracy -- one fights and detains any who survive in order to prosecute, but the operation is not law enforcement as such. (And the law used to prosecute could usefully be the traditional law of piracy -- common enemies of humanity, etc.)

  • Second, the US can demonstrate the traditional US commitment to the rule of international law on the high seas and freedom of the seas.

  • Third, it can act with allies and friends -- India, for example -- to create patrols and the reinforcement of multilateral sovereign duties; many countries find their vessels and interests at stake here. It might even manage to re-acquaint the British government with its international law obligations, by making clear through joint declarations of states undertaking patrols that asylum is not an option.

  • Fourth, it might even find a way that the US could support the ICC without triggering the usual issues for the US, by sending (or at least opening discussions on sending) captured pirates to trial at the ICC. (I should report, full disclosure, that I am, alas, one of those recalcitrants who think the US should stay out of it, support the servicemen’s protection act and oppose its repeal, oppose de-de-signing of the Rome Statute, etc., but am interested in seeing ways in which the US might still usefully cooperate with the ICC on mutual matters of international justice; although I think a traditional customary law court-martial of pirates at sea followed by (televised) hanging has its advantages, too.)

Read the whole post.

Thanks to InstaPundit for the pointer.

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"German Police, Worried About a Violent Backlash,

told the professor to move his religious-studies center to more-secure premises." So reports the Wall Street Journal:

Muhammad Sven Kalisch, a Muslim convert and Germany's first professor of Islamic theology, fasts during the Muslim holy month, doesn't like to shake hands with Muslim women and has spent years studying Islamic scripture. Islam, he says, guides his life.

So it came as something of a surprise when Prof. Kalisch announced the fruit of his theological research. His conclusion: The Prophet Muhammad probably never existed.

Muslims, not surprisingly, are outraged. Even Danish cartoonists who triggered global protests a couple of years ago didn't portray the Prophet as fictional. German police, worried about a violent backlash, told the professor to move his religious-studies center to more-secure premises....

Prof. Kalisch's religious studies center recently removed a sign and erased its address from its Web site. The professor, a burly 42-year-old, says he has received no specific threats but has been denounced as apostate, a capital offense in some readings of Islam....

I naturally have no idea whether Muhammad existed or not; I leave such matters to historians (which could certainly include theologians, if they're doing good history). The conventional wisdom appears to be that he did indeed exist. "[O]nly a few scholars have doubted Muhammad's existence. Most say his life is better documented than that of Jesus.... The Prophet differed from the flawless figure of Islamic tradition, Prof. [Tilman] Nagel says, but 'it is quite astonishing to say that thousands and thousands of pages about him were all forged' and there was no such person."

But the only way one can trust the judgment of professionals on this is if they're free to challenge conventional wisdom, and to respond to such challenges. Even if Prof. Kalisch is wrong, and badly so, we can't know that he's wrong unless he is free to provide his evidence and his conclusions and others are able to rebut them (or support them).

Thanks to Religion Clause for the pointer.

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Hillary Clinton as secretary of state?

In light of the bipartisan enthusiasm that has met this rumor, it might seem churlish to recall that Clinton has little foreign policy experience. You might remember the who-has-less-foreign-policy-experience debate during the primary; if you don’t, click here for a sobering reminder.

It’s not as though the Democrats lack qualified people. Take the rusty-nail-and-broken-glass-chewing Richard Holbrooke, who would be a good choice notwithstanding the Nobel peace prize nominations he has received. Holbrooke has his detractors, but his performance in the Bosnian crisis was impressive and he has tremendous experience. Unfortunately, he backed the wrong horse; now the horse will get the job that he deserves.

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"Memo to Detroit: Make better cars":

Scrappleface on a Detroit bailout:

“Here’s my proposal to rescue U.S. automakers,” said Rep. Pelosi. “Memo to Detroit: Make better cars.”

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Sunday, November 16, 2008

The government’s response to the financial crisis and 9/11 compared.

A paper (coauthored with Adrian Vermeule) is here; some of the ideas I contributed to it originated as posts on this blog. The abstract follows.

This essay compares crisis governance and emergency lawmaking after 9/11 and the financial meltdown of 2008. We argue that the two episodes were broadly similar in outline, but importantly different in detail, and we attempt to explain both the similarities and differences. First, broad political processes and constraints operated in both episodes to create a similar pattern of crisis governance, in which Congress delegated large new powers to the executive. We argue that this pattern is best explained by reference to the account of lawmaking in the administrative state offered by Carl Schmitt, as opposed to the standard Madisonian view. Second, within the broad constraints of crisis politics, the Bush administration asserted its authority more aggressively after 9/11 than in the financial crisis. Rejecting competing explanations based on legal differences, the nature of the threat, or other factors, we attribute the difference to the Bush administration's loss of popularity and credibility over the period between 2001 and 2008 and to the more salient and divisive distributive effects of financial management.

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Greg Craig Selected as White House Counsel: The Washington Post reports, via How Appealing:
President-elect Barack Obama has chosen Washington lawyer Gregory B. Craig, who served as President Bill Clinton's lead attorney during the 1998 impeachment proceedings, to be his White House counsel, according to an individual involved with the transition.

Craig has been a longtime adviser to former president Clinton and Sen. Hillary Rodham Clinton, but became a close adviser to Obama during the campaign, reportedly serving as the stand-in for Sen. John McCain during debate preparations.
Craig is a partner at Williams & Connolly, and you can access his law firm bio here.
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Return of Layaway:

The great consumer credit story of the past 30 years has been the general substitution of credit cards as a source of consumer credit for old-fashioned forms of credit, such as installment borrowing, personal finance companies, and layaway. Two years ago Wal-Mart, which had been one of the last major retailers to offer layaway, discontinued that service.

It that vein, it is interesting to note that both Kmart and Sears have announced that this Christmas they'll be reviving layaway. The reason seems clear--because of the credit crunch, consumers are having trouble using their credit cards. Credit lines are being reduced and credit issuance is tightening up. As this preferred line of credit dries up, consumers are rolling back the clock to some of the older forms of credit, such as layaway. The end result is that a lot of consumers will "borrow" just as much as they have in the past, but it will just take a different form.

I've remarked before that just once I'd like to see a January press release that says "Credit card debt reaches all-time high; layaway and retail installment credit reach all-time low." But, of course, financial reporters don't seem to recognize this substitution effect. Perhaps this year the revival of layaway will help them to see that.

BTW, I've never been able to find any really good data or sources on layaway. My impression is that at its height, it was a highly significant part of the consumer credit economy. But I've never seen any measurements. It may be that it was lumped in with other installment debt. But if anyone knows of any good sources that discuss the development and peak size of layaway, I'd be interested in references.

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Don't Bail Me Out Bro:

South Carolina governor Mark Sanford writes in the WSJ that the federal government should not bail out state and local governments pinched by the current economic crisis. Whatever one's view of the financial bailout measures enacted thus far, Sanford argues, allocating additional funds to state and local governments rewards behavior, such as unconstrained spending increases, and will do little to improve economic conditions. He also notes that a bailout would reward fiscally irresponsible states (e.g. California, which nearly doubled state spending in ten years) at the expense of those states that exercised greater fiscal restraint. A better way to ease the pressure on state budgets, Sanford suggests, is to reduce federally imposed unfunded mandates, such as those associated with the REAL ID act. I am all for reducing excessive federal mandates, but I doubt it would do all that much to help those states in the most dire fiscal straits.

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Sunday Song Lyric: The other big ballot proposition news from California this year was the passage of Proposition 2, requiring more humane confinement conditions for farm animals, particularly chickens, pregnant pigs, and calves raised for veal. The full impact of the measure is a bit unclear, but could be quite significant, and not just for chickens.


One VC reader suggests a song lyric in honor of Prop 2's passage: "Animals" by Talking Heads. It's a great choice -- a characteristically quirky David Byrne composition from Fear of Music, one of the Heads' pre-Stop Making Sense, Eno-produced albums. Here's a taste:

They’re never there when you need them
They never come when you call them
They’re never there when you need them
They never come when you call them down down down down.

I know the animals . . . are laughing at us
They don’t even know . . . what a joke is
I won’t follow . . . animal’s advice
I don’t care . . . if they’re laughing at us.
The full lyrics are here.
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