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Saturday, December 13, 2008

Why We Don't Need World Government to Solve the World's Problems:

The recent upsurge of concern over global warming and the financial crisis has reinvigorated advocates of world government, who claim that it is the only way to solve global problems that cross state boundaries. Left to themselves, individual states might "free ride" on the efforts of others, and the issue in question might remain unaddressed. This recent piece by Financial Times columnist Gideon Rachman is one example of the argument. For a more detailed and more academic statement, see here.

This case for world government is superficially appealing, but seriously flawed. Even if world government advocates are right to assume that some global problems are too big for any one nation to solve, it doesn't follow that world government is needed to address them. The problems in question can be addressed equally effectively through cooperation between a few major powers. For example, the United States, the European Union, India, Japan, and China produce the lion's share of the world's greenhouse emissions. An agreement between these major powers could therefore drive emissions way down, even if other states sought to free ride. Similarly, these major powers have the vast majority of the world's banks and other financial institutions, and could therefore cooperate with each other to address the financial crisis (assuming, for the sake of argument, that such international regulation is necessary).

Both economic collective action theory and basic common sense suggest that cooperation between a small number of like-minded actors isn't difficult to achieve and is not likely to be plagued by free-riding. Free-riding would be inhibited by the fact that each of players knows that the whole arrangement is likely to fall apart if they don't do their share (i.e. each is big enough for it's failure to contribute to have a decisive impact). In other words, efforts at free-riding would be prevented by the knowledge that if they are attempted, there will be nothing left to free-ride on. For a fuller statement of these points and cites to relevant literature, see pp. 1241-43 of this article that I coauthored with John McGinnis.

Obviously, cooperation might be prevented not by free-riding but by honest disagreement over the nature of the problem, the kind of action needed to address it, and whether or not the costs of action exceed the benefits. However, such disagreement can also arise even within the confines of a single worldwide government. Unless that government takes the form of a dictatorship or very narrow oligarchy, it too will sometimes be prevented from acting by internal disagreement. And we can't assume that the advocates of stronger action are necessarily right. For example, the the US, China, and India may be correct in their belief that the costs of radically reducing fossil fuel emissions in the near future outweigh the benefits. In cases where action is likely to cause more harm than good, the possibility that disagreement will block it is actually a good thing. In sum, there is no reason to believe that a world government can act to solve global problems more effectively than a consortium of the world's major powers. To the extent that honest disagreement might inhibit the actions of a concert of great powers more than those of a world government, that is as likely to be beneficial as harmful.

The argument sketched out here merely suggests that world government is unnecessary. In later posts, I will explain why its establishment would pose severe dangers of its own.

UPDATE: I think many commenters are conflating free riding (a situation where actors agree on the problem and on the need to act, but try to get others to bear all the costs) with genuine disagreement over the existence of a problem, the action needed to solve it, or the relative costs and benefits of that action. My contention is that the failure to act on global warming is caused by the latter: key players such as China, India, and the US believe that the costs aren't worth the benefits. If so, world government could not solve the problem, because presumably these parts of the world would have enough clout in that government to prevent it from adopting major cuts in fossil fuel initiatives. At least that would be the case if the world government were at all democratic. Between them, these three nations have nearly half the population of the world.

Related Posts (on one page):

  1. Perils of World Government:
  2. Why We Don't Need World Government to Solve the World's Problems:
107 Comments

Twittersphere:

Hugh Hewitt is among the leading conservatives who are urging conservative or libertarian public officials and commentators to start using Twitter. The Top Conservatives on Twitter website offers a wealth of feeds to which one can subscribe. If you would like to subscribe to my feed, it's @davekopel. (Go to http://twitter.com/davekopel, and click "follow.") My twitterfeed copies the content from my RSS feed (http://www.davekopel.org/feed.xml), which supplies links to my latest articles; the twitterfeed also includes my random thoughts on various subjects. Some readers may be interested in the twitterfeed of my Independence Institute colleague Ben DeGrow (http://twitter.com/bendegrow), who writes on Colorado education issues.

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Web, not bias, offing papers:

So I argue in my column for today's Rocky Mountain News. I don't deny that there's a problem with bias in most of the MSM, nor that the bias has driven away some readers. But I reject the idea that bias is the most important factor in the mortal peril now facing so many American newspapers. As I see it, the problem has far more to do with the loss of classified advertising revenue, and with declining interest in reading. It would be nice, in a way, if the newspapers' financial problems could be traced to ideological issues, but I think that other factors are much more significant. The topic is particular interest to me these days, since on December 4, Scripps announced that the Rocky Mountain News--the paper for which I currently write, and for which my father worked full-time in the 1950s--is being put up for sale. If a buyer is not found within 4-6 weeks, Scripps will probably close the paper. Michael Roberts, the media columnist for the Denver weekly Westword, has an excellent, in-depth analysis of the situation.

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A qualified defense of Obama, Emanuel, and Obama’s staff if they did not turn in Blagojevich.

This post is not for those demented souls who think that Rod Blagojevich’s approaches were so subtle that the Obama camp did not know that they was being shaken down. My timeline, which has now become the conventional account, strongly suggests otherwise.

And this post is also not for those Kool-Aid drinkers who think that Rahm Emanuel (or other staffer) was so incompetent or drunk with power that, knowing that their boss was being shaken down, they omitted to tell him, even while collecting Obama’s list of acceptable candidates and conveying it to Blagojevich. Staffers just don’t act like that – certainly not a new staffer in a transition period in a state from which the president hails.

We don’t yet know if Obama’s staff turned in Blagojevich. If Obama’s telling the truth that he was unaware of what was going on, it’s extraordinarily unlikely that an Obama staffer reported Blagojevich, since I can’t imagine that someone in the Obama camp would have turned in Blagojevich without telling Obama first.

So, for the purpose of this post only, let’s make what may be the counterfactual assumption that none of Obama’s staff blew the whistle on Blagojevich.

As I pointed out before, the federal misprision statute has been conclusively interpreted not to punish mere silence; there must be something more for a conviction, such as accepting a benefit to keep silent. Nor would obstruction of justice be an easy charge against the Obama camp.

So we are in the realm of ethics, not criminal law.

In my opinion, whether it was reasonable for the Obama camp not to turn in Blagojevich depends on facts we don’t know yet. If Blagojevich himself offered an explicit quid pro quo in a conversation with Emanuel or David Axelrod, then I think the ethical thing would have been to turn him in to the FBI.

But if Blagojevich was careful in his discussions with the Obama staffers, and the quid pro quo was instead delivered by others, then I think that it is a close question whether the Obama camp should have called the FBI.

It is generally not prudent to make charges you can’t prove – and it would accomplish little to bring down just a Blagojevich staffer or a non-official intermediary. So, while I doubt that the Blagojevich camp’s approaches were so subtle that they were misunderstood, they may have been indirect enough that a conviction would have seemed impossible.

I think that it’s hindsight bias (based on the explicitness of the FBI’s wiretapped conversations) to think that that the Obama camp thought that, if they turned in Blagojevich, a conviction was likely.

In my opinion, while the admirable course would have been to tip off the FBI, whether the Obama camp acted so deficiently that they acted unethically turns, not just on whether they knew they were being shaken down, but on what they reasonably thought could be proved against Blagojevich himself.

One last point: according to John Kass of the Chicago Tribune, Rahm Emanuel has not yet resigned his Congressional seat. Kass speculates it’s because the power behind the governor is Jimmy DeLeo (“DeLeo is also considered by some to be the real governor of Illinois”), who is also very close to Emanuel. It's still remotely possible that Emanuel will be made a scapegoat, though frankly, he seems too ambitious to take the fall if he's not guilty of anything (and I strongly suspect he's not).

113 Comments

Friday, December 12, 2008

What did Obama Actually Promise to Disclose?

Barack Obama's promise to release a list of contacts “between the transition office and the governor’s office” commits to far less than people think. Indeed, it does not cover either of the two contacts authorized by Rod Blagojevich that were mentioned in the government's affidavit.

Nonetheless, the prevailing view is that, in his brief press conference yesterday, Barack Obama may have promised more than he can deliver.

In trying to meet the first rule of Washington scandal-management – get the facts out on your own terms, and fast – Obama may have promised something he’ll later regret, one expert warned.

“What they’re doing is either setting themselves up for inconsistencies, or creating a cache of evidence that otherwise wouldn’t exist. It never helps when you dig up the dirt in your own yard and you find stuff,” said Stan Brand, a top Washington defense lawyer.

But it’s important to parse what Obama actually said and compare it to what’s in the affidavit supporting the complaint.

I had no contact with the governor’s office. I did not speak to the governor about these issues, that I know for certain. What I want to do is to gather all the facts about any staff contacts that may have taken place between the transition office and the governor’s office, and we’ll have those in the next few days and we’ll present them. But what I’m absolutely certain about is that our office had no involvement in any deal-making around my Senate seat. That, I’m absolutely certain of, and that would be a violation of everything this campaign has been about. That’s not how we do business.

The complaint explicitly suggests two requested contacts between the Obama camp and the Governor’s camp:

1. Nov. 12: “109. On November 12, 2008, ROD BLAGOJEVICH spoke with SEIU Official, who was in Washington, D.C. Prior intercepted phone conversations indicate that approximately a week before this call, ROD BLAGOJEVICH met with SEIU Official to discuss the vacant Senate seat, and ROD BLAGOJEVICH understood that SEIU Official was an emissary to discuss Senate Candidate 1’s interest in the Senate seat. . . .

ROD BLAGOJEVICH said that “one thing I’d be interested in” is a 501(c)(4) organization. ROD BLAGOJEVICH explained the 501(c)(4) idea to SEIU Official and said that the 501(c)(4) could help “our new Senator [Senate Candidate 1].” SEIU Official agreed to “put that flag up and see where it goes.”

110. On November 12, 2008, ROD BLAGOJEVICH talked with Advisor B. ROD BLAGOJEVICH told Advisor B that he told SEIU Official, “I said go back to [Senate Candidate 1], and, and say hey, look, if you still want to be a Senator don’t rule this out and then broach the idea of this 501(c)(4) with her.” . . .

2. Nov. 13: “ROD BLAGOJEVICH asked Advisor A to call Individual A and have Individual A pitch the idea of the 501(c)(4) to “[President-elect Advisor].” Advisor A said that, “while it’s not said this is a play to put in play other things.” ROD BLAGOJEVICH responded, “correct.””

The first contemplated contact is for the SEIU official (identified by the New York Times as Tom Balanoff) to contact Valerie Jarrett or another Obama aide. According to the Times, SEIU officials recently argued that “All the official did . . . was listen to Mr. Blagojevich and his chief of staff and ferry some messages for them.” If the Times is correct, then Balanoff did ferry messages from the Blagojevich camp to the Obama camp, essentially as requested.

But this contact would not be covered by Obama’s promised disclosure since it was not “between the transition office and the governor’s office.” Remember that Obama does not count indirect contacts as contacts, as his statement at his news conference makes clear.

Nor would the second contact be covered by Obama’s promise to disclose. That was between “Individual A” and a “President-elect Advisor,” not “between the transition office and the governor’s office.”

So the affidavit alleges two times that Blagojevich asks someone to convey his corrupt offer to the Obama camp. Neither was directly “between the transition office and the governor’s office,” so neither would be covered by Obama’s disclosure promise.

So what should we expect by way of disclosure from Obama?

Even though neither contact is covered by Obama’s disclosure promise, I expect him to disclose both of them (assuming they occurred). But beyond these two (which they can’t easily escape revealing), I expect them to disclose only a fraction of the other indirect contacts between the two camps. The more explicit the corrupt offer, the more likely it was conveyed indirectly, rather than directly.

The really interesting contact is the one that probably happened on Nov. 10, which likely caused the Obama camp to withdraw Jarrett’s name within hours of their being tipped off to the shakedown attempt.

The other big thing missing from the Obama disclosure promise is a commitment to reveal when he realized that he was being shaken down. Circumstantial evidence points to Nov. 10 as the date for this, but since Obama has denied any awareness of this, I don’t expect much from the disclosure on this issue.

When the Obama camp releases its internal report, again it will be important to read what it says — and what it doesn’t say — about the comprehensiveness of the list of contacts.

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Property Rights on the Moon:

Recent unmanned lunar missions sent by China, India, and Japan have reinvigorated the longstanding debate over property rights on the Moon. Sooner or later, one or several nations will establish a permanent presence on earth's satellite. At that point, we will have to decide whether there will be private property rights on the lunar surface, or whether the entire Moon will be owned by national governments or by some international agency such as the UN. This interesting article has some comments on the issue by Romanian space law scholar Virgiliu Pop, who is a strong supporter of private property rights (HT: Instapundit):

"Homesteading is likely to transform the lunar desert in the same manner as it transformed the 19th Century United States," he said. "Space is indeed a new frontier calling for individualism rather than collectivism, and its challenges need to be addressed with a legal regime favorable to property rights."

Much remains to be discussed and perhaps decided upon by various nations, of course, as space law evolves over time.

"Property rights are a useful engine and, in all likelihood, a precondition for pushing forward the development of the extraterrestrial realms," he said. "Securing property rights would be more beneficial to humankind, compared to the alternative of keeping the extraterrestrial realms undeveloped."

As Pop suggests, private property rights on the Moon would have many of the same benefits as here on Earth. They stimulate investment, innovation, and competition. Perhaps even more important, they prevent the wanton destruction and overuse of valuable resources through a tragedy of the commons. I previously made the case for private property rights in space in this post, raising several points similar to Pop's arguments.

Pop's analogy to the nineteenth century American West is telling. Overall, the privatization of federal land in the West was a great boon to American economic development; we would have been far worse off if all the land had been left in government hands. However, tragedies of the commons did arise in the West in situations where privatization was incomplete. For example, the buffalo were nearly exterminated by hunters when they were a common resource available to all takers; only the development of privately owned buffalo herds saved the animal from extinction. Of course, there are no animals on the Moon. However, there might well be other resources there that could be wasted through a tragedy of the commons exacerbated by a lack of private property rights.

Obviously, we do not yet know whether lunar property will have much economic value. But allowing private ownership is likely the best way to maximize such value as might exist. It also will give owners strong incentives to find new and potentially more valuable uses for lunar resources. Not all of the lunar surface need be privatized. Some will surely have to remain in government hands, in order to provide various public goods. At this point, however, it is highly unlikely that government will control too little of the Moon, whereas there is a danger that private ownership will be prevented entirely.

The time to consider these issues in detail is now. Government monopolization of lunar property will be much harder to prevent after it becomes firmly established than before. Once government control becomes the norm, powerful interest groups may well block meaningful privatization.

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Madoff and the Wall Street Culture of Fraud:

The Madoff ponzi scandal is, in a way, surprising only because of its size. A friend of mine (who happens to be a plaintiffs' lawyer) and I were talking a while back about how much of "retail" Wall Street has been built on sharp practices, albeit perhaps not illegal ones (though there is plenty of that, too; see, e.g., churning).

Consider one minor example, that I think is indicative of how many on Wall Street have long done business: new issues of closed-end funds. Closed-end funds are traded on exchanges, and can sell at discounts or premiums, usually the former. When a new closed-end fund comes on the market, the usual price is $15 per share, and investors are asked to pay an additional 8%. Here's the rub: the vast majority of funds soon trade at a discount to net asset value. So if your broker sells you, or your money manager buys for you, a new issue of a closed-end fund, you typically fall behind more than 10% almost immediately: 8% plus whatever discount emerges. Why would anyone, then, recommend a new issue, or buy it for their client, instead of waiting for a few weeks after the issue comes out, and buying the fund at a discount without the 8% fee? Hint: It's not because he is looking out for his clients' best interests. (Similarly, many brokers and money managers are happy to dabble on behalf of their clients in open-end mutual funds with high sales loads, even when equivalent shares are available directly from the mutual fund company for a lower, or nonexistent, load.)

A few states--my recollection is that Michigan is one--requires that brokers act as fiduciaries for their clients, but that is rarely enforced even in those states. While there are certainly some good, honest, investment consultants and brokers out there, too many of them have the ethics, and for that matter, unfortunately, the talents, of stereotypical used car salesmen.

Related Posts (on one page):

  1. Madoff and the Wall Street Culture of Fraud:
  2. From the Website of Bernard L. Madoff Investment Securities:

Raising Schadenfreude to a High Art:

Jonah Goldberg on the Blagojevich scandal. Very funny; read it all the way through. Thanks to InstaPundit for the pointer.

89 Comments

Lessig to Harvard: We don't normally post individual law school hires, but this one seems worth noting: Larry Lessig is going back to Harvard.
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Texas Developer Who Used Eminent Domain to Acquire Property for Himself Sues Journalist Carla Main and lawprof Richard Epstein for Libel:

Back in 2006, I wrote two posts about Western Seafood Co. v. City of Freeport, a potentially important post-Kelo eminent domain case decided by the Fifth Circuit Court of Appeals (see here and here). The case became the subject of an excellent book by legal journalist Carla Main, who documented how the condemnation of the property was likely instigated by H. Walker Royall, the Texas oil millionaire who sought to acquire the land in order to build a luxury marina.

Now Royall is suing Main for libel, and also suing University of Chicago law professor Richard Epstein because Epstein wrote a laudatory blurb for the book. Tim Sandefur has the details and additional links here. As Tim points out, it is unlikely that Royall will win his suit because he is clearly a "public figure" under New York Times v. Sullivan, and a public figure cannot prevail on a libel claim unless he proves both that the statements about him were untrue and that the the defendants knew it or acted with "reckless" disregard for the truth.

CONFLICT OF INTEREST WATCH: Richard Epstein and I have worked together on some other eminent domain issues, though not on this case. I also have done a variety of eminent domain-related pro bono work for the Institute for Justice, which is representing Epstein and Main.

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"Visual Image Reconstruction from Human Brain Activity":

As best I can tell, this article in Neuron reports that an MRI can be used to determine what the subject is currently seeing, based on several hundred past MRIs done when the subject saw different random images. Pink TTentacle reports further:

The scientists were able to reconstruct various images viewed by a person by analyzing changes in their cerebral blood flow. Using a functional magnetic resonance imaging (fMRI) machine, the researchers first mapped the blood flow changes that occurred in the cerebral visual cortex as subjects viewed various images held in front of their eyes. Subjects were shown 400 random 10 x 10 pixel black-and-white images for a period of 12 seconds each. While the fMRI machine monitored the changes in brain activity, a computer crunched the data and learned to associate the various changes in brain activity with the different image designs.

Then, when the test subjects were shown a completely new set of images, such as the letters N-E-U-R-O-N, the system was able to reconstruct and display what the test subjects were viewing based solely on their brain activity.

Possible applications:

According to the researchers, further development of the technology may soon make it possible to view other people’s dreams while they sleep....

The researchers suggest a future version of this technology could be applied in the fields of art and design -- particularly if it becomes possible to quickly and accurately access images existing inside an artist’s head. The technology might also lead to new treatments for conditions such as psychiatric disorders involving hallucinations, by providing doctors a direct window into the mind of the patient....

Cool and scary. Thanks to my friend Haym Hirsh for the pointer, and to David Byrne for the mental soundtrack.

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No Soup for You, Article III Judges: Over at The BLT, Tony Mauro has an interesting post on the proposed Cost of Living Adjustment (COLA) for federal judges that would let judicial salaries adjust for inflation. The COLA increase was originally inserted into the auto bailout bill, but it was pulled because it became controversial:
  [E]ven before the Senate killed the bailout, the judges' COLA got into unexpected trouble. Some press reports on the House action portrayed it as a judicial "pay raise" that had been tucked into the House bill — rather than an adjustment that barely keeps them even with inflation. The news reports, apparently, scared off the Senate.
  “Wrong time. Wrong place,” Sen. Claire McCaskill, (D-Mo.) exclaimed on the Senate floor Dec. 11. “We have families all over this nation that are scared today, that aren’t buying Christmas presents. Federal judges get lifetime appointments and they never take a dime’s cut in pay. They die with the same salary they have today.” After that, it was little surprise that senators supporting the auto bailout began the process of pulling the judicial provision out of the bill. They did not want to jeopardize any much-needed votes. But then the whole thing collapsed anyway.
  Perhaps Chief Justice Roberts should edit his year-end report on the federal judiciary to make the case that the subprime market decline has caused a liquidity crisis in the federal judiciary. The federal judiciary needs a bailout, because is too big to fail. The report should admit that federal judges have made mistakes before, but say that the only way to get the judiciary back on its feet is to look forward. Plus, I'll bet the federal courts would be okay with a bailout in the one or two billion range. That's a bargain these days.
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More on the Illinois Attorney General's Asking the Illinois Supreme Court to Remove Gov. Blagojevich:

Here's the brief laying out the Attorney General's arguments and the motion for temporary relief pending a final decision, asking the court to "temporarily and preliminarily enjoin[ Mr. Blagojevich] from acting as Governor." Note that Abner Mikva — a former Congressman, D.C. Circuit Judge, and Clinton White House Counsel, as well as an advisor of President-Elect Obama's — is on the brief.

Mikva was also a monitor in the 2004 Ukrainian elections, which reminds me of a joke I had heard in the 1990s.

Thanks to Keith Blackwell for the pointer.

UPDATE: Here's the heart of the AG's argument about why Gov. Blagojevich should be removed for "disability" (the legal test) (PDF p. 15):

The pervasive nature, volume, and severity of the illegal acts charged in the complaint indicate that Mr. Blagojevich is unable to distinguish between his financial interests and his official duties and between illegal acts and legal conduct, rendering him incapable of legitimately exercising his authority as Governor. The nature and volume of those acts clearly evidence a disability that has rendered Mr. Blagojevich unable to serve. As a result of the federal complaint relating to his official acts, Mr. Blagojevich's future official acts -- many of which are the subject of the federal complaint -- will be subject to challenge as illegal or improperly motivated. Because the integrity of Mr. Blagojevich's future official acts will be in question, his ability to provide effective leadership has been eliminated and the state government is paralyzed.

Given the serious criminal charges that he faces, it is also very likely that Mr. Blagojevich's future official actions will not be calculated to advance the best interests of the People, but rather will necessarily be designed to improve his public standing and position with regard to the pending criminal charges. Furthermore, Mr. Blagojevich clearly will not be able to devote his attention to his official duties because of the pending charges and likely criminal trial.

Further, Mr. Blagojevich's ability to borrow money in his official capacity is compromised. The State has postponed a $1.4 billion short-term debt offering because of the uncertainty over whether the State can provide the necessary accompanying certification that no threatened or pending controversy or litigation challenge Mr. Blagojevich's title to office. The State is also at risk of having its bond rating lowered due to concerns over the pending criminal charges.

Here's more on the bond rating item.

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Harvey Silverglate to Run for Harvard Board of Overseers:

Noted civil liberties lawyer Harvey Silverglate, co-founder of FIRE, has announced that he will run for the Harvard Board of Overseers as a petition candidate. His statement is here.

Harvey is a truly principled civil libertarian and a sage and courageous observer of higher education in America. Go get 'em Harvey!

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Illinois Attorney General's Petition to Have Governor Removed:

I haven't gotten a copy of the petition; if you can point me to one, please e-mail me at volokh at law.ucla.edu. In the meantime, here's the provision of the Illinois Constitution that seems to be in play:

SECTION 6. GUBERNATORIAL SUCCESSION

(a) In the event of a vacancy, the order of succession to the office of Governor or to the position of Acting Governor shall be the Lieutenant Governor, the elected Attorney General, the elected Secretary of State, and then as provided by law.

(b) If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed.

(c) Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by notifying the Secretary of State and the Acting Governor.

(d) The General Assembly by law shall specify by whom and by what procedures the ability of the Governor to serve or to resume office may be questioned and determined. The Supreme Court shall have original and exclusive jurisdiction to review such a law and any such determination and, in the absence of such a law, shall make the determination under such rules as it may adopt.

The last sentence seems most relevant; I know of no Illinois statute on the subject, so Supreme Court Rule 382 appears to be relevant. But neither the Constitution nor the Rule clarify what constitutes a "disability," and whether the Governor's being prosecuted (but being out on bail) qualifies.

The Capitol Fax Blog has more, but not much more. The National Center for State Courts has a Backgrounder on Gubernatorial Removal and the State High Courts, but that's a national perspective, with little details about this particular item. The Backgrounder also points to In re O'Bannon (2003), in which the Indiana Supreme Court declared Gov. O'Bannon disabled, but that involved a clear disability — a coma following a stroke.

25 Comments

From the Website of Bernard L. Madoff Investment Securities:

In an era of faceless organizations owned by other equally faceless organizations, Bernard L. Madoff Investment Securities LLC harks back to an earlier era in the financial world: The owner's name is on the door. Clients know that Bernard Madoff has a personal interest in maintaining the unblemished record of value, fair-dealing, and high ethical standards that has always been the firm's hallmark.

Madoff, as readers probably know, has just been arrested for running a ponzi scheme that apparently burned through $50 billion (that billion with a "b").

Related Posts (on one page):

  1. Madoff and the Wall Street Culture of Fraud:
  2. From the Website of Bernard L. Madoff Investment Securities:
33 Comments

[David Schleicher, guest-blogging, December 12, 2008 at 12:51pm] Trackbacks
Why Is There No Partisan Competition In City Council Elections? Some Proposals:

As I’ve been blogging all week and as I argued in this paper, the lack of partisan competition in city council elections, and big city local elections generally, is a serious problem for cities themselves and for theories of localism. I have a few ideas about how cities might change their election laws or other rules to either deal with the problem of the lack of competition or to introduce more competition.

The first is to enhance the power of the Mayor relative to the council and other locally elected officers. In most cities, there are a number of elected officials, but they are elected without much real democratic input for the reasons I’ve hope I’ve explained. Mayoral and County Executive races sometimes generate some policy competition – they are big enough and individually valuable enough that there is sometimes enough coverage in the media and money spent that candidates effectively create their own brands. Centralizing power in Mayors, which already happens to a large degree, is a good thing from the perspective of enhancing democratic outcomes.

Another is to repeal what I called in this post and the paper "the unitary party rules." If ballot lines weren’t guaranteed to the major parties and it was made easier to switch parties between elections, one strategy we might see more of is the local minority party rebranding itself at the local level. In New York, we get some of this through fusion, a process by which two or more parties endorse the same candidate (New York is the only state that permits fusion and for federal elections, I think the decisions by other states is a good thing, for reasons I laid out in a previous paper). Fusion has been central to the success of minority party candidates like Fiorella Laguardia, Rudy Giuliani and Michael Bloomberg, as they were able to disassociate themselves from the unpopular Republican Party brand in New York City by getting the endorsement of parties like the Liberal Party and the Independence Party.

However, fusion does not generate substantial party competition, as it doesn’t provide an easy-to-understand brand that is continuous across elections and down a ballot. (Also, fringe parties, like cats, will only stay herded for so long.) Repealing those unitary party rules that can be repealed – particularly automatic ballot lines for statewide parties and the limits on party switching – might do so. The idea is that the local minority party might apply for ballot access in a reformed way, under a more popular local brand – the “Development” party or “the Bloombergs” or whatever – and attract a more local-issue consistent primary base. This might generate a party with consistent policy stances across election type and across elections, and if they develop a popular set of stances, partisan competition would ensue.

I also propose thinking about something more radical, a rule that parties that bars parties registered at the statewide level (i.e. the major parties) from having a ballot line in local elections. The idea is that local-only parties would spring up (the elections would still be partisan) to contest local elections. At first, these parties might look like simulacra of the major parties but would, though competitive pressure, develop locally competitive identities over time. Again, this is not anti-party or pro-non-partisan election – I think parties are essential in world where voters are rationally ignorant of the policy stances of candidates -- but, rather, is focused on using election law to incentivize the creation of parties that are competitive at the local level and that provide heuristics that provide voters with information. (More details on this idea are in the paper.)

Now, these last two proposals would face some substantial constitutional problems. Further, they might not work. And, almost certainly, they wouldn’t pass. They do, however, highlight the central claims of the paper – that the lack of competition in local elections results in an absence of representation and dynamism in local politics, that the lack of competition is a function of the problem of party heuristics in a governmental system that has a number of different levels, that the links between these levels are caused both by the cognitive limitations of voters and by a legal regime that ensures that the same parties contest elections at all levels, and that the solutions we’ve tried, like non-partisan elections, only make things worse.

I’m not certain my solutions to this problem are the best. But I hope by identifying the problem and the causal mechanism for why there is an absence of partisan competition in big cities, I’ve spurred some thought about how we leave the governance of our cities to what’s clearly a broken electoral system. If you're interested in what a bunch of blogs and other media sources have thought about the paper, check out the links on this page and here).

Finally, I want to say thanks to Eugene, the rest of the Conspirators and especially to the readers and people who have left comments. It's been a really interesting experience and I've enjoyed it. So thanks.

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Charles Lane on Bill Ayers,

in the Washington Post (criticizing Ayers, not President-Elect Obama). Thanks to Jules Crittenden for the pointer.

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Another Senate Seat Auction,

from Iowahawk. Thanks to Patterico for the pointer.

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Blogger poll: Obama's First Year:

The National Journal has published its latest poll of leading political bloggers. The results: Majorites of left-leaning and right-leaning bloggers both agree that Obama will bring "a little" change to the way Washington works. A majority of the Left and Right agree that partisan divisions next year will either stay the same or increase. Lefties expect that conservatives will be biggest thorn in Obama's side, whereas the Righties expect Liberal Democrats to be an even bigger thorn for him.

Majorities on both sides agree that Obama's smartest course would be to "Compromise only as much as is necessary to win passage" for his agenda, and not to pad his majorities with further compromise. The Left thinks that the smartest course for Republicans would be to downplay their differences with Obama, but the Right overwhelmingly disagrees. The Left thinks that the greater risk for Obama is not tackling enough issues, whereas the right sees the greater risk in Obama's spreading himself too thin by taking on too many issues.

The Left bloggers were asked how much energy the Democrats should spend investigating the Bush administration. "A moderate amount" was the choice of 60%. The Right was asked who they would like to see become the leading voice of the Republican party next year. The winners were Bobby Jindal and Sarah Palin, each with 18%. Although I like Palin and would be happy to see her elected President, I voted for Jindal, whom I described as "Brilliant, principled, articulate."

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Cole embraces preventive detention for Al Qaeda conflict

David Cole, a longtime, trenchant critic of the Bush administration’s war-on-terror tactics, defends preventive detention, albeit with due process protections and other limitations. The world is upside down! For Cole, preventive detention is justified because the conflict with Al Qaeda is war-like enough to bring into play traditional military detention rules; more process—lawyers love process!—is needed because of the differences between this conflict and traditional war. I don’t know whether Cole has changed his mind or has always believed that the Bush administration’s basic approach was right but just went too far. Nothing in his earlier writings suggested to me the latter view but perhaps I did not parse the text carefully enough. He supports "Closing Guantanamo" (the title of his piece -- did the editors read it before publishing it?), but the purely symbolic nature of this move has become blindingly clear.

In my response, I argue that limiting preventive detention to the conflict with Al Qaeda will, in practice even if not by design, create a two-track system: preventive detention for Muslim terrorist suspects, ordinary criminal process for terrorist suspects who belong to other religions or to secular movements. Not a good way to "reboot" our relations with Muslim countries, and in tension with rule-of-law commitments to equal application of the law. Liberty will yield to equality: a general preventive detention system, modeled on that of France, lies in the future, I predict. The problem is not so much that of Muslim extremists with violent aims as the miniaturization of weapons technology, which can be exploited by terrorists of all stripes as well as ordinary criminals. Joanne Mariner defends conventional criminal processes. Bobby Chesney questions the application of Cole’s approach overseas.

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"Are You Going to AALS?": This is time of year when law professors often ask other law professors, "are you going to AALS?" (That is, the AALS annual meeting in San Diego on 1/6 - 1/10). There is no central list of who else will be there and when, so I thought I would start a thread on who plans to go and during what time window. Other lawprofs who are going are invited to leave a comment saying so, and if they like, giving the dates of their attendance. I'll start: I'll be there, arriving on 1/6 and departing on the night of 1/8.
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Thursday, December 11, 2008

Owens v. Guida and Cone v. Bell:

In his Owens v. Guida dissent, Judge Merritt suggested that prosecutorial misconduct was "typical" of the Memphis district attorney's office and referenced Cone v. Bell, another death penalty case out of Tennessee in which Judge Merritt dissented. Perhaps not coincidentally, Owens was released on Tuesday, the very same day the Supreme Court heard oral argument (for the third time) in Cone -- an argument in which Gary B. Cone's lawyers stressed alleged prosecutorial misconduct in his case.

Twice before the Sixth Circuit had granted Cone habeas relief, and twice before the Supreme Court reversed and remanded. The third time around, the Court denied Cone's habeas petition, and the Supremes granted cert again. If the press reports are any indication, they may reverse the Sixth yet once more -- only this time in Cone's favor.

The Cone argument was covered in the NYT, WaPo, and AP. My prior posts on the case are here and here.

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Bans on Tasers:

A bunch of jurisdictions -- according to a student paper I read, Hawaii, Massachusetts, Michigan, New Jersey, New York, Rhode Island, Wisconsin, plus Philadelphia, Baltimore, Chicago, and Washington, D.C. -- ban the possession of tasers. Are there any sensible justifications that I'm missing for such bans, and for bans on carrying tasers outside the home?

Obviously, they could be used for criminal purposes, whether to assist in a robbery or a rape, or just to hurt people. But at the same time, I would think they're quite useful for self-defense, in at least three different circumstances:

  1. When it's illegal to carry a gun, whether because carry licenses are generally unavailable, or because the person is 18 to 20, and licenses are only available to those 21 and older.

  2. When there's a legal obstacle to the person's possessing a gun, for instance, when the person is an ex-convict (perhaps even someone convicted of a nonviolent felony), is underage for gun purchases, or lives with someone who is an ex-convict and who might be said to "constructively possess" any guns that his housemates possess.

  3. When the defender isn't willing to use a deadly weapon, even against an attacker.

And my sense is that tasers are materially more effective than pepper spray, because they can disable the target wherever they hit him (though on the other hand my sense is that, unlike with pepper spray, they can't be quickly fired a second time).

I would think therefore that the net loss for self-defense from banning tasers substantially exceeds the net gain in any taser-related crime that would be stopped (especially since most people who would be willing to commit that crime would also be willing to violate the laws against taser possession, and it's unlikely that the taser possession will be discovered in time to prevent the crime). And I would think this should be the view even of people who take a different view about guns, since tasers are vastly less lethal than guns are.

Is there some sound reason that I'm missing for prohibiting these outright, as opposed to requiring training, licensing, or some such?

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Federalist Society Student Symposium: The Federalist Society has announced the location, topic, and some of the speakers for its annual student symposium for next year. The place and date: Yale Law School, Feb. 27-28, 2009. The topic: Separation of Powers in American Constitutionalism. Speakers: the initial list is here, with more to come. Registration is here.
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Better than a Kennedy:

Word is President-elect Obama will nominate former New Jersey Department of Environmental Protection Commissioner Lisa P. Jackson to be Administrator of the Environmental Protection Agency. This is a much better choice than Robert F. Kennedy, Jr., who had been rumored to be in the running. I am sure I will have plenty of policy disagreements with Administrator Jackson, but there is little question that she has the qualifications and temperament for the job.

[Typo fixed - "disagreements" not "agreements."]

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Referrals to the Entire Court of Lawsuits Challenging President-Elect Obama's Eligibility:

Some supporters of the lawsuits challenging President-Elect Obama's eligibility for office have made much of the fact that some Justices referred stay applications to the entire Court (see this docket entry and this one). One person e-mailed me to fault the referring justices, Justices Scalia and Thomas, for even referring the stay applications. Why not just deny them without referring them to the Court, the way Justices Souter and Ginsburg had originally denied them?

I had earlier pointed out that the overwhelming majority of all stay applications referred to the full court are denied. But I had also remembered something else about resubmissions of the stay petitions to a second Justice, which happened in both these cases. I didn't want to mention it until I had a chance to confirm it, but I just managed to do it:

[I]t is also the present practice for the Justice to whom a resubmission has been transmitted to refer the application to the entire Court for action. This practice is no longer limited to reapplications made when the Court is in session, but occurs whenever such referral is practicable and time is not of the essence. Almost uniformly the reapplications have been denied.

Robert L. Stern, Eugene Gressman, Stephen M. Shapiro & Kenneth S. Geller Supreme Court Practice 683 (7th ed. 1993) (this has long been the definitive treatise on Supreme Court procedure, often known as Stern & Gressman).

So, as I mentioned before, there's nothing at all noteworthy about Justice Scalia's and Justice Thomas's referring the stay petitions to the entire Court. It is entirely standard operating procedure, and does not reflect any judgment at all about the merits of the underlying lawsuits.

Related Posts (on one page):

  1. Referrals to the Entire Court of Lawsuits Challenging President-Elect Obama's Eligibility:
  2. Myths About Supposed Court Action About President-Elect Obama's Supposed Ineligibility:
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Senate Seat on eBay?

From the Illinois Policy Institute.

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Could Senate Refuse To Seat a Senator Appointed by Gov. Blagojevich?

Senate Majority Leader Harry Reid and Senator Richard Durbin (D-Ill.) seem to say "yes":

Please understand that should you decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

But Supreme Court precedent suggests "no": The Court held in Powell v. McCormack (1969), that "in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution," such as age and citizenship. Now perhaps the Senators are right and the Court was wrong, and perhaps today's Court would overrule Powell. But at least at this point, Powell seems to make clear that under Article I, Section 5 the Senate may determine whether the Senator should be seated solely based on the objective qualifications that the Constitution prescribes, and not based on its judgment whether Gov. Blagojevich ought to be entitled to make the appointment.

(I note that it's conceivable that if there's an allegation that the appointment is the result of a bribe, the situation might be different, but I take it that the Senators' threat isn't limited to such situations.)

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The Saxbe Fix Is In,

or at least getting there: The Congress passed a bill, S.J. Res. 46, lowering the Secretary of State's salary to its pre-raise levels, thus allowing Senator Hillary Clinton to be appointed to the office. I have no reason to doubt that the President will sign it. Here's the text of the bill:

JOINT RESOLUTION

Ensuring that the compensation and other emoluments attached to the office of Secretary of State are those which were in effect on January 1, 2007.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. COMPENSATION AND OTHER EMOLUMENTS ATTACHED TO THE OFFICE OF SECRETARY OF STATE.

(a) In General- The compensation and other emoluments attached to the office of Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007, and ending at noon of January 3, 2013.

(b) Civil Action and Appeal-

(1) JURISDICTION- Any person aggrieved by an action of the Secretary of State may bring a civil action in the United States District Court for the District of Columbia to contest the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution. The United States District Court for the District of Columbia shall have exclusive jurisdiction over such a civil action, without regard to the sum or value of the matter in controversy.

(2) THREE JUDGE PANEL- Any claim challenging the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution, in an action brought under paragraph (1) shall be heard and determined by a panel of three judges in accordance with section 2284 of title 28, United States Code. It shall be the duty of the district court to advance on the docket and to expedite the disposition of any matter brought under this subsection.

(3) APPEAL-

(A) DIRECT APPEAL TO SUPREME COURT- An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. Any such appeal shall be taken by a notice of appeal filed within 20 days after such judgment, decree, or order is entered.

(B) JURISDICTION- The Supreme Court shall, if it has not previously ruled on the question presented by an appeal taken under subparagraph (A), accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal.

(c) Effective Date- This joint resolution shall take effect at 12:00 p.m. on January 20, 2009.

I should note that, though some people think the Saxbe fix doesn't make the appointment constitutional, the bulk of recent precedent from the Legislative and Executive Branches supports its constitutionality, and the text strikes me as ambiguous on the subject. For more on this issue, including the text of the underlying constitutional provision, a bit about historical precedent, the views of some scholars, and speculation on whether the constitutionality of the appointment can be challenged in court, see here.

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[David Schleicher, guest-blogging, December 11, 2008 at 1:33pm] Trackbacks
Why Is There No Partisan Competition in City Council Elections? Implications 2 -- The Problems of Primary and Non-Partisan Elections:

If my model laid out in my paper is correct, it has dramatic implications for non-partisan elections and party primaries.

1. Non-Partisan Elections Make Things Worse, Not Better

One major piece of the Progressive movement’s response to big-city political machines was to institute non-partisan local elections. In a non-partisan election, no party preferences are listed on the ballot; candidate names appear by themselves. This is how local elections are conducted in most American localities.

If my story is right, these elections are even worse than partisan local elections. The nub of the story I laid out yesterday was that party heuristics -- the fact of party endorsement -- gave voters in local elections too little information to make an even-mildly informed decision about for whom they should vote. Given the low-information nature of individual city council races, party heuristics make up the lion’s share, if not the entirety, of the information that voters receive in local elections. If the party heuristics don’t give a great deal of information about what a candidate is likely to do, then voting won’t produce a government that represents the preferences of locals on local issues.

Non-partisan elections take the little information contained in the party heuristic at the local level and throw it out the window. If voters in partisan elections are effectively poorly informed about the policy stances of candidates, voters in non-partisan elections are completely lost.

When compared with partisan elections, non-partisan elections generate lower voter turnout, strengthen the incumbency effect and make variables like candidate ethnic, gender and other candidate status variables (such as whether a candidate’s name is preceded by an honorific) matter much more. Voters in non-partisan elections are not provided with any easy way to determine the stances of candidates on local policies and, as a result, use variables that don’t track at all to policy stances or rely on the name they’ve heard. As I summarize the research on the field in the paper, “voters in nonpartisan system do not replace the heuristic provided by party label with other, better indicators of policy stances taken by candidates - they do not learn their policy position or rely on newspaper or civic group endorsements. Instead, for the most part, voters simply remain entirely uninformed.”

Non-partisan elections make things worse, not better.

2. Majority party primaries do not replace the need for general election competition

As some of the comments have noted, most of the action in big city elections takes place in party primaries. This is true, but it takes little of the normative sting out of the problems caused by a lack of general election competition.

The problem with majority party primaries is the same as the problem with non-partisan elections -- voters are not given any information on the ballot. There are no parties internal to the Democratic or Republican Parties. Even where there are formal internal-to-a-party coalitions, there is no way to provide information on the ballot and hence voters cannot use them to engage in meaningful retrospective evaluation or to collect views of groups over time. Voters in party primaries are, hence as adrift about ideological stances of candidates as voters are in non-partisan elections. They have little information about the candidates and the ballot does not provide them any information to mitigate this ignorance.

As such, majority party primaries do not generate much ideological competition. Not surprisingly, city council primaries usually turn on incumbency, ethnicity and other candidate status variables, party organization support and money, with issue stances playing a very small role. Voters don't have the ability to vote on the issues because they have too little information, and as a result turn to less useful heuristics.

All of that said, it is better to have primary elections than not to have them (they provide some check on truly unpopular politicians). But they do not replicate, or even go much of the way towards replicating, the beneficial effects of general election competition. The conclusion I drew in the last post, that big city elections are unlikely to produce representative outcomes, is not changed by the fact of primary elections.

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Who Said It?

In case you missed it, The Daily Beast presents the game "Who Said It? Rod Blagojevich vs. Tony Soprano".

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Right To Bear Arms Relevant to Whether Possession of Gun While Under Indictment Is a Strict Liability Offense:

From State v. Clay, just handed down by the Ohio Supreme Court. (UPDATE: Link added; I'm on jury duty now, and the computer I was initially using made it hard to copy and paste link information.)

The appellant was convicted of having a weapon while under a disability under R.C. 2923.13(A)(3) because he was “under indictment” on drug charges at the time he possessed a weapon....

On March 5, 2006, at approximately 1:00 a.m. outside the Gin-Gin bar in Cleveland, appellant, Howard Clay, shot and wounded Christopher Graham. At the time of the shooting, Clay was under indictment for possession and trafficking of drugs. For the 2006 shooting, a grand jury indicted Clay on charges of felonious assault under R.C. 2903.11, firearm specifications under R.C. 2941.141 and 2941.145, and having a weapon under a disability under R.C. 2923.13, i.e., using a weapon while under indictment for possession and trafficking of drugs under R.C. 2923.13(A)(3)....

Clay argued that there was insufficient evidence to convict him of having a weapon while under a disability because he was unaware that he was under indictment at the time of the shooting.... The court of appeals affirmed the trial court’s judgment of conviction, finding that R.C. 2923.13(A)(3) is a strict-liability offense....

R.C. 2923.13 ... provides: “(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if ... (3) The person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse ....”

Because R.C. 2923.13(A)(3) has no culpable mental state [included as to the element of the person's being under indictment], the question now becomes whether the General Assembly plainly intended R.C. 2923.13(A)(3) to impose strict liability or whether R.C. 2901.21(B) [a default mental state provision] supplies the culpable mental state of recklessness....

[P]ossessing a weapon, when the weapon is a firearm, is a constitutionally protected right [under the Ohio Bill of Rights] subject only to limited restrictions. And in the instant case, it is only the additional fact of being “under indictment” that made possessing the firearm a crime under R.C. 2923.13.... Further, ... there are no “other indications outside” the language of R.C. 2923.13(A)(3) that plainly indicate an intent to impose strict liability. Specifically, we find no “strong stance” by the General Assembly against possession of firearms per se, as we found in [an earlier case] with regard to possession of child pornography....

We find that ... the General Assembly did not plainly intend to impose strict liability. Where a statute lacks [an explicitly provided] mental state and the General Assembly did not intend strict liability, the mental state of recklessness applies under R.C. 2901.21(B). Accordingly, for purposes of proving the offense of having a weapon while under a disability pursuant to R.C. 2923.13(A)(3), the mental state of recklessness applies in determining whether the defendant is aware that he or she is “under indictment.”

Because the trial court never determined whether Clay acted recklessly with regard to being aware that he was “under indictment,” we remand the cause to the trial court to determine that issue.

This echoes the First Amendment principle that strict liability is usually forbidden in cases where, but for a reasonable error (or sometimes even just honest error) about a fact, the speech would be constitutionally protected. A few cases have likewise held the same as to abortion rights, and (as here) as to gun rights. Query whether the same should be in cases where, but for a reasonable error about a fact, a sexual act would be protected by the sexual autonomy right secured under Lawrence v. Texas and under various state constitutions — the chief example of such a fact would be whether the other party is under 18; many states do provide strict liability in such situations. I blogged more about this several months ago; that post has more links to other posts discussing past cases on the subject.

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Frogs and Guns:

I rarely hear about the two together, but reading a right-to-bear-arms case I had saved years ago reminded me about the subject. The case is State v. Chaisson, 457 So. 2d 1257 (La. App. 1984), which struck down a Louisiana law providing,

No person shall carry or have in his possession any shotgun, rifle, or firearm while taking or hunting frogs during the nighttime.

The court held this violated the state constitutional right to bear arms, partly because "A nighttime hunter in pursuit of frogs could be attacked by poisonous snakes, alligators or other predators and needs to protect himself."

My own California specifically bars frog hunting with firearms, but Kentucky provides for "A statewide resident hunting license, which authorizes the holder to take or pursue wild animals, wild birds, frogs, and turtles with gun, bow and arrow, dog, or falcon." But maybe my being surprised and amused by all this is just a sign of what a city boy I am.

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I'm for Limited Government (But Only When the Other Side is in Power):

During the Bush years, we occasionally heard that liberals who had long been skeptical of federalism and limited government were gaining new appreciation for these concepts. My suspicion was that this "new apprecitation" would last only as long as the Republicans controlled the government. So, it's not surprising to read this:

Amanda Shanor, president of the [American Constituion] society's chapter at Yale Law School, said many liberal students were submitting their résumés to the transition team. After long thinking that government was controlled by conservatives and must be curbed, she said, the students "feel like government now can be potentially a huge force for social justice."

Note to Yale liberal students, and others joining the Obama Administration: any new power that you win for Obama will eventually be used, and abused, by future Republican administrations. (And for that matter, you might not ultimately be so thrilled with how Obama or future Democratic president use the power, either; it's a categorical mistake to think the fundamental problem with abusive government is who is in power, rather than the existence of the power itself, combined with human nature.)

In fairness, I should point out that conservatives are notorious for talking a great limited government game while out of power, and, once appointed to any position of governmental authority, spending every waking moment trying to increase their fiefdom. Especially irksome are conservatives who advocate limited government when in opposition, become cabinet secretaries who lobby heavily to expand their departments' budgets, and later spend their "retirement" on the conservative rubber chicken circuit bemoaning "big government."

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[David Schleicher, guest-blogging, December 11, 2008 at 8:24am] Trackbacks
Why Is There No Partisan Competition in City Council Elections? Implications 1

If my paper and previous posts are correct, it has some rather dramatic implications for local democracy. I’ll try to sketch some of them out in this post and another post later today.

1. Local Elections Can Be Less Representative Than National Ones

It is a commonplace American assumption to view local elections as better and more representative than national ones (with state elections falling somewhere between). This may be true in small towns – there is certainly something to William Fischel’s argument about the role of homevoters in smaller localities. But, if I am right, it is not true about big city elections.

One might put it this way. While small town voters may have reasons to be informed and active in politics (according to Fischel, the potential variance in the price of their home), most voters in big city elections and national elections are rationally ignorant. Their vote is unlikely to be important to the outcome and, because government is complicated, the cost of becoming informed exceeds the benefits.

But voters in national elections are provided with a coping mechanism, a bit of publicly provided information, given to them directly at the moment of voting, the party label on the ballot. As Morris Fiorina argued, voters develop “running tallies” about the parties, using retrospectice evaluations of how life has been under one party or another. That is, they gather over time about the qualities, successes and failures of each of the political parties to develop a scoresheet or tally that will provide them with guidance about how to vote in the future. As long as the parties remain relatively consistent between elections, and different from one another over time, the party heuristic will provide voters in national elections with substantial information about the candidates.

(Note: There are extensive arguments about how much party heuristics help rationally ignorant voters. For instance, check out my colleague and co-Conspirator Ilya Somin’s extensive work on voter ignorance of party labels. Even for critics of the “running tally” model, like Ilya and Larry Bartels, it is clear that party heuristics at the very least mitigate the effect of voter ignorance to some degree.)

Voters in local elections — at least those that use partisan elections — are given information too, but it is of a lower quality. If I am right, the party heuristic provides only very weak information at the local level. As a result, big city voters are left largely adrift without the tools to provide much meaningful input in local elections. Voters use party labels almost exclusively, even though they carry little information, because they don't have any other information. Given rational ignorance, this means that big city elections do not regularly generate representative outcomes.

I can put this more starkly: There is little reason to believe that the outcome of City Council or other local races bears much resemblance to the preferences of local voters about local governance. Sometimes Mayoral races will be high profile enough that they can break from this – a Bloomberg or a Cory Booker will get enough media coverage and spend enough money on ads to develop a personal brand – but most local races will look more like the Lapin-Zinberg race which I described yesterday.

This effect is not only felt statically – individual elections are not particularly representative – but dynamically. The lack of competition in local elections results in there being too little policy idea development, incubation of promising candidates and interest group mobilization. As I wrote in the paper, the reason for this is that political parties do more than just endorse candidates “they serve as the fulcrum for the creation of ideas about governance and for the development of future political leaders. They also organize groups into politically effective coalitions.” In a one-party city, there is little reason to convince the populace of new policy ideas or to try to organize new coalitions, as it is unlikely that it will matter particularly. (Quick: How many think tanks can you name that study local policy? There are a few, but not very many.) Someone who wants power would do better just scrounging for support among party hacks.

This dynamic harm was best summarized by famous New York City Democratic Party Tammany Hall hand George Washington Plunkitt. He noted that that occasionally "reform" campaigns could win elections, but they could not sustain a challenge to machine's control of the city: "Reform committees ... were morning glories. Looked lovely in the morning and withered up in a short time, while the regular machines went on flourishing forever, like fine old oaks."

My next post will lay out the implications of my model for non-partisan elections and for party primaries.

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The Auto Bailout Bill and the New Protectionism?

Economists believe that the Smoot-Hawley tariff law of 1930 exacerbated the Great Depression. It provoked retaliation by other countries and reduction of international trade at precisely the wrong time—during an economic contraction when demand should have been stoked rather than suppressed. Today, no one proposes an increase in tariffs, though some commentators have mischievously suggested that raising tariffs could be more effective than a fiscal stimulus (provided, I assume, that retaliation does not occur) for restarting the economy. So we have learned from our mistakes, right?

Not if the auto bailout bill is an indication. The bill applies only to “each automobile manufacturer that submitted a plan to the Congress on December 2, 2008”—which just happen to turn out to be GM, Ford, and Chrysler, not Toyota, Honda, or Nissan. The bill is a massive subsidy to American automakers alone; it will thus give them a competitive advantage vis-à-vis foreign carmakers (which, as we know, are more efficient manufacturers than the dinosaurs in Detroit). Other countries are already engaging in similar subsidy schemes, which will put American firms at a disadvantage in their markets. These beggar-thy-neighbor policies have effects similar to those of a tariff war—depending on the degree and pattern of subsidy, driving lower-cost manufacturers out of business and raising costs (in the form of regular taxes rather than tariff-inflated prices) for everyone, and hence suppressing demand.

The new wave of protectionism actually began a few months ago, when it was discovered that saving the credit market meant offering assistance to foreign banks as well as domestic banks. Many members of Congress balked and sought to limit financial assistance to American banks; otherwise, American taxpayers would end up putting money in the pocket of feckless foreign creditors rather than feckless American creditors. Differences were papered over and it remains to be seen whether Treasury doles out goodies on a discriminatory basis. (Hmm.) No doubt foreign governments are watching closely.

One can imagine a fiscal stimulus that was nondiscriminatory. The government would offer cheap loans to foreign automakers as well as domestic automakers, for example. The stimulus would benefit the Japanese and German economies as well as the American economy, but it would not give any advantage to American automakers unless their problem is really one of liquidity rather than economic fundamentals—which seems most doubtful—so the stimulus might buy a little time but eventually the American automakers would go out of business. In theory, the Japanese and German governments would also make available their stimulus packages to American companies. Don’t hold your breath. Put aside the outcry—already heard during the bank debate—against American taxpayers giving money to foreigners. Without reciprocal stimulus packages, giving aid to foreign companies is not a very effective way to help Americans (though it could raise demand for American products). Smoot and Hawley, maybe we were a little hard on you. In bad times, economic nationalism is hard to control.

Despite their perverse effects, international trade law does not ban domestic subsidies. At one time, the United States sought to change this rule. How times have changed.

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Early American Argument for Banning Carrying Concealed Weapons:

I've been trying to track down the early legal and ideological sources of bans on concealed weapons, which were enacted in many states in the 1800s. Bliss v. Commonwealth (1822) struck down an 1813 ban enacted in Kentucky, but later cases generally upheld the concealed carry bans, often on the grounds that open carry was available as an option. And in the course of my research, I ran across this interesting item, from the Richmond, Virginia Grand Jury in 1820, see Daily National Intelligencer, Sept. 9, 1820, at 2 (paragraph breaks added):

On Wearing Concealed Arms

We, the Grand Jury for the city of Richmond, at August Court, 1820, do not believe it to be inconsistent with our duty to animadvert upon any practice which, in our opinion, may be attended with consequences dangerous to the peace and good order of society. We have observed, with regret, the very numerous instances of stabbing, which have of late years occurred, and which have been owing in most cases to the practice which has so frequently prevailed, of wearing dirks: Armed in secret, and emboldened by the possession of these deadly weapons, how frequently have disputes been carried to extremities, which might otherwise have been either amicably adjusted, or attended with no serious consequences to the parties engaged.

The Grand Jury would not recommend any legislative interference with what they conceive to be one of the most essential privileges of freemen, the right of carrying arms: But we feel it our duty publicly to express our abhorrence of a practice which it becomes all good citizens to frown upon with contempt, and to endeavor to suppress. We consider the practice of carrying arms secreted, in cases where no personal attack can reasonably be apprehended, to be infinitely more reprehensible than even the act of stabbing, if committed during a sudden affray, in the heat of passion, where the party was not previously armed for the purpose.

We conceive that it manifests a hostile, and if the expression may be allowed, a piratical disposition against the human race — that is derogatory from that open, manly, and chivalrous character, which it should be the pride of our countrymen to maintain unimpaired — and that its fatal effects have been too frequently felt and deplored, not to require the serious animadversions of the community. Unanimously adopted.

James Brown, Foreman.

I should stress that I quote this as a window on attitudes of the time, not to endorse this for today. I generally support laws allowing law-abiding adults to carry concealed weapons in public; and it seems to me that the Grand Jury's strong preference for open carry over concealed carry is on balance not sound for today. But it's important to realize why bans on concealed carry — coupled with toleration of open carry — rightly or wrongly became popular in the 1800s. If any of you have pointers to specific sources from before 1822 that can shed more light on the subject, I'd love to see them.

UPDATE: I neglected to city Clayton Cramer's Concealed Weapon Laws of the Early Republic, which is quite informative on antebellum concealed carry laws; I would still love to see early specific sources on this, though, since the book has less than one would like -- though possibly nearly all that is available, for reasons that the author points out.

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Contract Law and the First Amendment:

Generally speaking, contracts between private entities are enforceable even when they restrict one party's speech; the right to free speech, like most other rights, can be waived by contract. Likewise when a contract obligates a person to do something that the person later decides is against his religious beliefs. But there is one area where the First Amendment may preclude enforcement of contracts: when enforcing the contract requires religious decisionmaking, something that secular courts are not allowed to do. Friedlander v. Port Jewish Center, decided Monday, offers a good example (some paragraph breaks rearranged):

[Rabbi Ariel Friedlander] entered into a contract with the Defendant in May of 2005 to serve as the Temple's rabbi for a period of three years. The contract provided that the Plaintiff would perform "all the customary and usual duties of rabbis of Reform Congregations of the Union of Reform Judaism." In particular, the contract specified that the Plaintiff was expected to carry out various spiritual and administrative duties that included holiday and worship services; life cycle events; educational functions; pastoral functions; temple and other community functions; membership functions; and administrative functions.

The contract also provided that "the Rabbi shall have freedom of the pulpit," and indicated that the Temple could terminate the Plaintiff's contract only "for gross misconduct or willful neglect of duty." ... On or about July 5, 2006, Sandy Ehrlich, the Temple President, sent the Plaintiff an email cataloguing a list of grievances ... includ[ing], among other issues, the congregants' dissatisfaction with: (i) the Plaintiff's infrequent readings of the Torah; (ii) the quantity and variety of liturgical music selected for religious services; (iii) changes made to the Bar Mitzvah and Bat Mitzvah services; (iv) the Plaintiff's funeral service policies; (v) the Plaintiff's inability to work with religious instructors and the Cantor; (vi) the Plaintiff's neglect of her pastoral functions; (vii) the Temple's attrition rates under her leadership; and (viii) the number of hours the Plaintiff dedicated to administrative functions.... [O]n or about August 2, 2006, the Temple officially terminated her contract.

The Plaintiff argues that the Defendant's proffered reasons for her firing did not constitute just cause under the contract because she did not commit "gross misconduct" or "willful negligence". The Plaintiff also asserts a common law claim that the Defendant's breached the covenant of good faith and fair dealing by "fabricat[ing] and exaggerat[ing] situations they thought would constitute gross misconduct and willful neglect." ...

[T]he ministerial exception plainly does not create for religious institutions a charmed existence free from liability for "their torts and upon their valid contracts." ... The Plaintiff argues instead that this is a purely secular contract case that would not require the Court to entangle itself in religious doctrine.

The Court disagrees. "The Establishment Clause forbids 'excessive government entanglement with religion.'" The Second Circuit teaches that certain claims, regardless of their "emblemata," may "inexorably entangle [the courts] in doctrinal disputes." In this sense, the fact that the Plaintiff asserts causes of action sounding in violations of state contract law does not alter the Court's analysis.

Here, adjudicating the Plaintiff's claim would ... necessarily require the Court to review the Plaintiff's performance of her rabbinical duties. This is precisely the type of inquiry that the First Amendment prohibits. The Plaintiff's duties included, among other things, selecting readings from the Torah, and establishing policies for funeral services as well as Bar Mitzvah and Bat Mitzvah services. These are purely religious matters in which the Court may not interfere....

Note, incidentally, that courts will generally enforce the decisions of arbitral tribunals chosen by parties, even if those arbitrations interpreted religious law. Had the contract, for instance, provided for arbitration by a named religious tribunal, then that tribunal could have decided whether the rabbi's actions constituted "gross misconduct or willful neglect of duty," and any monetary judgment by the tribunal would have been enforceable by a secular court. (I suspect that an order that the congregation rehire the rabbi would have been enforceable, too, though that might conceivably be a tougher question.) But a secular court cannot itself decide whether a rabbi's decisions about how often to read the Torah, what sort of liturgical music to play, and so on constitute "gross misconduct or willful neglect."

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"No Contact About His Replacement" Versus "No Contact" -- A Response to My Co-Blogger Jim: In his post below, my co-blogger Jim Lindgren wonders if Barack Obama was telling the truth when he said he had had no contact with Blagojevich at that time. In fact, Jim notes, there was a picture taken of the two of them shaking hands around then. So they must have had some kind of contact. Jim offers a pretty harsh assessment of Obama:
  Apparently, “contact” does not include a private meeting with governors in Philadelphia, or a public shaking of hands in front of the cameras.
  It is not really plausible that Obama was interested in who was replacing him in the Senate, and that Blagojevich was desperately interested in shaking down Obama for money or favors, and that Obama’s refusal to yield to Blagojevich’s bribery/extortion attempt was conveyed to Blagojevich — but somehow in over a month there was no contact between the Obama camp and the Governor’s team.
  All this leads me to wonder if Obama is becoming like Clinton?
  When Obama says that “I had no contact,” does he mean that I DID have contact, but it was indirect so I don't have to admit it to you? . . . As with Clinton, should we presume that Obama is saying something that is technically not a lie, but that the full truth is closer to the opposite of what he is trying to make us think?
  I suppose "It depends on what the meaning of the word [‘contact’] is" and "what the meaning of the word [‘aware’] is."
  I'm not sure, but I think Jim may be making a simple error here. If you follow Jim's links to the source for what Obama said, you end up back at this ABCNews post which puts the matter this way:
Asked what contact he'd had with the governor's office about his replacement in the Senate, President-elect Obama today said "I had no contact with the governor or his office and so we were not, I was not aware of what was happening."
  Note the modifier: Obama wasn't just talking about whether he had contacts with Blagojevich generally. Rather, it seems that he was talking specifically about whether he had contacts with Blagojevich "about his [Obama's] replacement in the Senate."

  You can watch the video here, and the question is asked at the 3:12 mark. Unfortunately you can't hear the question, as it was after the brief press statement was over and everyone was making noise getting up and leaving. Instead, you hear Obama calling back the crowd to order so he can respond to one question. He says: "Hold on, hold on a second guys, I'll just answer this one question." Assuming the question was whether he had had contact about Obama's replacement, the comment is much narrower than Jim suggests.

  More importantly, this apparent limitation suggests that Obama's statement is not at all inconsistent with Obama's shaking hands with Blagojevich in public or seeing him at a meeting of the Governors. Presumably Obama wouldn't discuss the sensitive question of who he wants to replace him in the Senate while lots of other people are around.

  I'll keep comments open, but I'll watch them closely: Uncivil comments will be deleted, and I'll close it up if things get too unruly.

  UPDATE: In the comments thread, Jim claims that I "didn't bother to see what [his] argument really was," and that I have misunderstood him. According to Jim, he rejects the argument that Obama was dishonest, and he is explaining that he thinks Obama is telling the truth. I suspect most readers didn't read it that way, and I certainly didn't, but of course Jim is the last word on what he meant. Given that, I refer readers to his update below for more.
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Two Ideas For Reducing the National Debt.

Under both Presidents Bush and Obama, we are generating and are likely to generate huge increases in our national debt.

There are two steps that can be taken to reduce the negative impact of this excessive spending, the first of which is quite doable politically.

1. Refinance the federal debt with long-term bonds at low interest rates. Investors around the world are buying Treasury bonds, bills, and notes because they are safe, driving 10-year Treasury rates down to about 2.7% and 30-year rates to 3.1%. The government should immediately refinance as much of the federal debt as reasonably possible at current rates (3.1%) for 30 years [instead of issuing so much short-term debt]. ([And] If there are any recallable bonds, they should be recalled and reissued at these low rates.) This would in effect reduce the federal debt substantially.

2. Sell government land. The federal government owns massive portions of the country, including the majority of Western states. Like the NY Times or other troubled companies, the government should begin an orderly sale of unused or unneeded assets, in this case, land.

UPDATE: As to the first point, I was unclear. I was suggesting that, instead of issuing as much short term debt as we are (3-month, 6 month, etc.), we issue much more 30-year debt. That would raise the interest we had to pay somewhat (because of greater supply), but interest would probably be much lower than we'll have to pay in future decades if we continue to issue so much short-term debt. The comment about recalling was merely an aside (thus it was in parentheses), adding to the main proposal.

One of the commenters below suggests funding social security for future decades with newly issued long-term debt.

As to the second point, the federal government owns over half of five Western states and over 40% of nine states:

1. Nevada 84.5%

2. Alaska 69.1%

3. Utah 57.4%

4. Oregon 53.1%

5. Idaho 50.2%

6. Arizona 48.1%

7. California 45.3%

8. Wyoming 42.3%

9. New Mexico 41.8%

10. Colorado 36.6%

Further, I contrasted the immediate debt refinancing I proposed with a more drawn-out process for selling land: "the government should begin an orderly sale of unused or unneeded assets, in this case, land." A twenty-year program to sell off a portion of nine Western states would make sense.

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Wednesday, December 10, 2008

It depends on what the meaning of the word "Contact" is.

Obama claimed Tuesday:

“I had no contact with the governor or his office and, so we were not – I was not aware of what was happening," Obama said.

Now Politico reports that he did have contact [though, to be clear to those who might not read the rest of the post, I do not think that this contact indicates that Obama discussed the Senate seat directly with Blagojevich]:

Obama and Blagojevich both attended the National Governors Association meeting last week in Philadelphia and were photographed shaking hands at the event.

Before the meeting, Blagojevich was quoted saying he had asked Obama’s transition team for federal stimulus aid of $3 billion over the next three years to help fill Illinois’ estimated $2 billion deficit.

Blagojevich and Obama not having contact in Philadelphia

Apparently, “contact” does not include a private meeting with governors in Philadelphia, or a public shaking of hands in front of the cameras.

It is not really plausible that Obama was interested in who was replacing him in the Senate, and that Blagojevich was desperately interested in shaking down Obama for money or favors, and that Obama’s refusal to yield to Blagojevich’s bribery/extortion attempt was conveyed to Blagojevich — but somehow in over a month there was no contact between the Obama camp and the Governor’s team.

All this leads me to wonder if Obama is becoming like Clinton?

When Obama says that “I had no contact,” does he mean that I DID have contact, but it was indirect so I don't have to admit it to you?

And when Obama says that “I was not aware of what was happening,” does he mean that I WAS aware of what was happening, but not to a level of certainty that I could be meet a legal “knowledge” standard beyond a reasonable doubt? (see DRJ at Patterico on this point)

And when Obama says that “I had no contact with the governor or his office and . . . I was not aware of what was happening,” does he mean that my staff DID have contact with the governor or his office and they WERE aware of what was happening?

As with Clinton, should we presume that Obama is saying something that is technically not a lie, but that the full truth is closer to the opposite of what he is trying to make us think?

I suppose "It depends on what the meaning of the word [‘contact’] is” and “what the meaning of the word [‘aware’] is.”

UPDATE: Orin disagrees with this post, but I think he misunderstands what I am saying.

After playfully showing the picture of Obama and Blagojevich shaking hands, I do not treat that trivial contact as dispositive on the issue of contact for the very reasons that Orin points to: It all depends on what the meaning of "contact" is, which, after all, is the title of my post.

That is merely the setup for the main point of the post, which is clearly stated:

It is not really plausible that Obama was interested in who was replacing him in the Senate, and that Blagojevich was desperately interested in shaking down Obama for money or favors, and that Obama’s refusal to yield to Blagojevich’s bribery/extortion attempt was conveyed to Blagojevich — but somehow in over a month there was no contact between the Obama camp and the Governor’s team.

If I thought that shaking hands were dispositive on contact, I wouldn't have to make this larger argument. Further, I go on to make it explicit that I think it likely that Obama is not lying because probably only indirect contacts were made between Obama and Blagojevich on the Senate seat.

Also, I have twice posted that I don't believe that Obama talked directly with Blagojevich about the Senate seat, a position I still hold:

My tentative conclusion is the same as I expressed yesterday (and hinted above): Obama is telling the truth when he says that he has not talked to Blagojevich about his Senate seat, but he is not ruling out staff discussions.

My post on the timeline, which is evolving into the conventional understanding of what happened when, points to many clues that indirect contacts were made between Obama and Blagojevich.

So I don't disagree with most of what Orin says except his misreading of what I'm arguing. I neither say, nor think, that meeting with governors indicates that Obama and Blagojevich talked directly about the Illinois Senate seat.

2d UPDATE, Thursday morning: Barack Obama just reiterated that he had not spoken to Blagojevich about the Senate seat and promised over the next few days to have his staff disclose any contacts between his camp and Blagojevich. Though Obama didn't admit indirect contacts yet, he implied that there were some, so we might know in a few days whether my characterization was correct. If the implications of Obama's statement today are borne out, then my characterization above will also be borne out.

BTW, Obama looks relaxed and in control -- excellent affect.

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The Role of the ACS and the Federalist Society: In Thursday's New York Times, Charlie Savage has an article on the influence of members of the American Constitution Society in the new Obama Administration, as well as the similarities and differences between the influence of the ACS and the Federalist Society. (The Post had a somewhat similar story a few days ago, as Jonathan noted, but this one quotes me so I think it is better.)
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Legal Times Blog: The BLT, The Blog of Legal Times, has had a lot of great stuff recently, including Tony Mauro's coverage of Supreme Court arguments and excellent coverage of DC legal news. It averages 7 or 8 new posts a day, so there's a lot of stuff there. Definitely worth checking out.

  UPDATE: To pick a recent post as an example, check out Obama Transition Team Pushing for Secret Legal Memos from yesterday.
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May Public University Deny Funding and Access to Groups That Discriminate Based on Religion?

This issue has come in a bunch of cases recently, some involving religious discrimination and some involving sexual orientation discrimination; the AP reports that the Eleventh Circuit heard arguments about it today, in the Beta Upsilon Chi v. University of Florida litigation. (The University's lawyer, by the way, is my friend Chris Bartolomucci, who's an extremely sharp fellow.)

I think the two decisions on which the student groups' arguments tend to rest -- Boy Scouts v. Dale, which upheld groups' right to discriminate against prospective members whose status would undermine the groups' message, and Rosenberger v. Rector, which held that public universities can't discriminate based on viewpoint in generally available student group funding programs -- are correct. But I don't think that they, put together, generally give the student groups what they want in these cases. (I set aside the more fact-specific arguments raised by some groups who claim that the university lets some groups discriminate in violation of the university's stated policies but blocks other groups from doing something similar.)

My view, as I've argued in my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), is that the government need not subsidize the student groups' right of expressive association, just as it need not subsidize abortion rights, private schooling rights, the right to lobby the government, and the like. Here's a table that illustrates this -- rows 1 and 2 discuss the Court's past holdings, rows 3 and 4 discuss situations that I assume would be easy constitutional cases, and row 5 discusses cases such as the one we're discussing here:

1. Right to abortionA state may not ban abortions,but it need not pay for them with state funds, or allow them to be performed at state-run hospitalseven if it chooses to pay for childbirth.
2. Right to free speechA state may not ban advocacy of a candidate or a legislative proposal,but it need not subsidize it through the charitable tax exemptioneven if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption.
3. Right not to marryA state may not require people to marry,but it need not give unmarried couples or platonic roommates special dorm housing,even if it subsidizes married couples by offering such housing.
4. Right to privately educate one's childrenA state may not ban private education,but it need not pay for private education,even if it pays billions for public education.
5. Right to discriminate in one's expressive associationsA state generally may not ban expressive groups from discriminating based on religion or sexual orientation in selecting members or officers,but it need not subsidize those groups,even if it subsidizes other groups.

It's true that the government may not engage in (certain kinds of) viewpoint-based subsidies, see Rosenberger v. Rector. But — as I argue in more detail in my Stanford piece — this doesn't stop the government from declining to subsidize speech in content-neutral ways, or even in content-based but viewpoint-neutral ways. And a subsidy that's open only to groups that don't discriminate based on race, religion, sex, and the like in their membership decisions is a permissible viewpoint-neutral subsidy.

True, the nondiscrimination rule reflects the enactors' viewpoint, but all laws, including content-neutral ones, do that. It also has a disparate impact on groups with a certain viewpoint, but again most speech restrictions, including content-neutrals, do that, too. The constitutionally significant point is that it is not triggered by the viewpoints expressed by the groups' speech, but rather by the groups' conduct.

I should say, by the way, that I think these nondiscrimination policies are not a very good idea, and not conducive to genuine diversity of viewpoints and ideas (which is often valuable even in high schools), especially when they apply to religion. After all, most ideological groups are free to open their membership only to people who agree with their ideology (the court gives as examples EarthCorps and the Gay-Straight Alliance), and that makes perfect sense: You want student groups to be effective voices for the ideologies they were organized to espouse, and you don't want their foes to be able to take them over or dilute their voices. Religious groups are asking only for that very same ability.

Indeed, religious groups' exercise of this ability constitutes discrimination based on religion (which is barred by this and many other such policies), and not discrimination based on environmentalism or attitudes towards gay rights (which is permitted). But in this context it makes sense, I think, to exempt religious student groups from the religious discrimination ban, precisely so they can be effective voices for their ideology just as the other groups are effective voices for theirs.

Nonetheless, while I think exempting groups this way is good policy, I think it's not a constitutionally mandated policy (and I'm inclined to say it's not mandated by the Equal Access Act, either, though I haven't spent as much time thinking about that). If you're interested in more detail on this, check out the article I cite above.

Thanks to How Appealing for the pointer. Note that this post is drawn from an earlier post that I put up when the issue was last in court.

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Second Amendment as Relevant to Defendant's Right To Sue for Declaration of His Federal Firearms Rights?

An interesting decision (Jennings v. Mukasey) that was just uploaded to Lexis, though it was handed down two and a half months ago:

Plaintiff, Bruce L. Jennings, has brought suit seeking, inter alia, a judgment from this Court declaring the status of his rights under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by those convicted of a misdemeanor crime of domestic violence. Specifically, Plaintiff asks this Court to determine whether a 1985 State court conviction for misdemeanor domestic violence prohibits Plaintiff from lawfully possessing a firearm under federal law, notwithstanding the fact that the conviction has been expunged or otherwise set aside by the State court. Because his conviction has been expunged, Plaintiff alleges that 18 U.S.C. § 921(a)(33)(B)(ii) excepts him from § 922(g)(9)’s prohibition against firearm possession.

Plaintiff has further alleged that Defendants have threatened him with criminal prosecution if he should decide to possess a firearm; that this threat of prosecution infringes upon the exercise of his Second Amendment rights; and that Defendants’ threatened prosecution has precluded him from obtaining employment in the firearms industry, in which he has had approximately thirty (30) years of experience in evaluating various designs of handguns for licensed firearm dealers....

Defendants argue that by seeking a declaration that the State court judgment setting aside and expunging Plaintiff’s conviction for misdemeanor domestic violence effects § 921(a)(33)(B)(ii)’s exception to § 922(g)(9), Plaintiff has asked this Court to “restrain the prosecutorial authority of the United States.” As a result, Defendants contend that this Court is without subject matter jurisdiction to hear Plaintiff’s case.

While the Supreme Court has observed that the executive branch has “exclusive authority and absolute discretion to decide whether to prosecute a case,” and the Fifth Circuit has noted that “courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions,” this discretion can give way where important constitutional rights are at stake....

Assuming, as the Court must at this stage in the proceedings, that Plaintiff’s conviction was duly expunged, it seems that he would clearly fall within the statutory exception in § 921(a)(33)(B)(ii) and would not be subject to prosecution under § 922(g)(9). Furthermore, in light of District of Columbia v. Heller, Plaintiff raises a viable claim that the violation of his Second Amendment right to bear arms also deprives him of the right to earn a livelihood. Taken together, the Court concludes that Plaintiff’s allegations fall within the very limited exception to the general principle of immunity, that Plaintiff is otherwise without an adequate remedy at law, and that Plaintiff would suffer irreparable harm if not permitted to proceed in the instant action....

Where the plaintiff’s suit does not seek to impose upon the fisc, but only to declare the status of fundamental constitutional rights, the requirement of a statutory waiver [of sovereign immunity] should give way....

For more on the dispute about whether Jennings' conviction has indeed been properly expunged, see the discussion here, though the Ninth Circuit in that opinion didn't conclusively deal with Jennings' claim based on the December 2005 state court order.

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Nov. 5 news story reports that Obama was to meet with Blagojevich that day to discuss Senate replacement.

From Katie Granju's comments and Instapundit comes a link to this Nov. 5 news story, reporting that "[Obama]'s meeting with Governor Rod Blagojevich this afternoon in Chicago to discuss" his Senate replacement.

If Obama is telling the truth, then this Nov. 5 story is wrong:

Who will fill Obama's senate seat?: Ill. governor meeting with Obama today

By Carol Sowers

Wednesday, November 05, 2008 at 10:39 a.m.

CHICAGO, ILL. — Now that Barack Obama will be moving to the White House, his seat in the U.S. Senate representing Illinois will have to be filled.

That's one of Obama's first priorities today.

He's meeting with Governor Rod Blagojevich this afternoon in Chicago to discuss it.

Illinois law states that the governor chooses that replacement. . . .

It's likely the governor will make his decision quickly so the new senator will get some seniority before newly-elected senators take office in January.

Part of the timing depends on when Obama officially vacates his senate seat.

UPDATE: In a quick Westlaw review of news stories, I can't find any support for the Nov. 5 news story quoted above. Indeed, on Nov. 5 Blagojevich held a news conference at which he said that he had not yet talked with Obama. Here is the AP version:

Blagojevich said some candidates reached out to him before the election and his administration would seek out others who could be a good choice. He also wants Obama's input.

"That would have obviously a great deal of weight on the decision that I would make," Blagojevich said.

He said he has not yet spoken to Obama, whose timeline for resigning his Senate seat was unclear Wednesday.

If Blagojevich were meeting with Obama a few hours after his news conference on Nov. 5, it would have been odd not to mention it, or at least hint in that direction.

My tentative conclusion is the same as I expressed yesterday (and hinted above): Obama is telling the truth when he says that he has not talked to Blagojevich about his Senate seat, but he is not ruling out staff discussions.

2d UPDATE: Ed Morrissey has more.

3d UPDATE: TV station KHQA has issued this release:

KHQA TV wishes to offer clarification regarding a story that appeared last month on our website ConnectTristates.com. The story, which discussed the appointment of a replacement for President Elect Obama in the U.S. Senate, became the subject of much discussion on talk radio and on blog sites Wednesday.

The story housed in our website archive was on the morning of November 5, 2008. It suggested that a meeting was scheduled later that day between President Elect Obama and Illinois Governor Blagojevich. KHQA has no knowledge that any meeting ever took place. Governor Blagojevich did appear at a news conference in Chicago on that date.

This statement doesn't say why they thought there would be a meeting or whether a meeting was scheduled for that day.

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Battle of the Bus Slogans:

From the Washington Post:

The American Humanist Association [ran] ads [in November] on 200 Metrobuses, feature a Christmasy motif and the text "Why believe in a god? Just be good for goodness' sake."

The ads offended some people who believe you can't — or shouldn't — spell "goodness" without "godness." WMATA received about 250 letters and e-mails decrying the ads, twice as many as praised them. "May all your atheist buses break down!" read one irate message....

[A rival group will now be running another set of ads, which] will feature the familiar Sistine Chapel image of God's finger reaching out to Adam along with the words "Why Believe? Because I created you and I love you, for goodness' sake. — God." ...

The organizer of the latter campaign reports that she started the campaign because she is "so tired of God and religion being attacked."

I'm all for people expressing their views on these subjects, especially in a polite form, as they seem to be doing. To be sure, some people are inherently offended by any criticism of religion, but I don't see why avoiding offense to them should be a goal of polite people who want to express themselves on this important topic. The most they can be expected to do, it seems to me, is express themselves without name-calling and personal insults.

This having been said, it's hard to imagine much persuasion going on here. To be sure, the irreligious and the religious will feel some sense of validation from the ads that they support them, and will feel encouraged to express their own views. But even this strikes me as likely to be a pretty modest effect in D.C., where both the irreligious and the religious are doubtless aware that there are many people who share their views. (In places where a group is likely to feel more isolated, public statements that support the group's views may well embolden its members to speak up, though public criticism of those statements might have the opposite effect.)

Thanks to Religion Clause for the pointer.

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"County Supervisors Back Away from Anti-Picketing Measure":

So reports the San Diego Union-Tribune, apparently with regard to the ordinance I discussed a few weeks ago:

Concerned that a proposed anti-picketing ordinance might be too restrictive -– and that it did not address the issue that inspired it -– the Board of Supervisors Tuesday backed away from the measure, but indicated it may be brought back in different form....

Under the tabled proposal, “targeted picketing” in unincorporated communities would be confined to no closer than 300 feet of the subject's residence.

[Supervisor Jeff] Stone proposed the ordinance two weeks after receiving complaints from members of the Church of Scientology, who said the group's San Jacinto compound had been the site of repeated protests, allegedly by hate groups....

Related Posts (on one page):

  1. "County Supervisors Back Away from Anti-Picketing Measure":
  2. Unconstitutional Residential Picketing Ban:
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Sources Tell ABC that Senate Candidate 5 is Jesse Jackson, Jr.

ABC is reporting that its sources say that Senate Candidate 5 is Jesse Jackson, Jr., not Emil Jones (tip to Powerline).

Senate Candidate 5 is the only one whose supporters come off badly in the government's complaint, though of course the complaint reflects things from Blagojevich's point of view.

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[David Schleicher, guest-blogging, December 10, 2008 at 10:47am] Trackbacks
Why Is There No Partisan Competition in City Council Elections? An Election Law Model

In my paper, I argue that the lack of competition in city council elections can only be explained by understanding the laws governing local elections and how they interact with voter behavior. I develop a model to explain the story.

(For those of you interested in the provenance of the thinking, the model is derived from two-stage entry models used to study tying in antitrust, and the general approach follows the “Politics as Markets” approach to studying election law rooted in the work of Rick Pildes and Sam Issacharoff).

Here’s the basic concept: Assume that there are both national and local elections in a city and that both elections use first-past the post/single member district systems (this is true almost all American cities at this point). Next, assume my last post was right. People have at least different preferences about local issues than they do about national issues. That is, members of national parties do not form strongly coherent blocks at the local level – they could not agree on a common local platform. Party can explain a little about local preferences, but not much more than that.

Given these basic assumptions, the ordinary assumptions of a Downsian model would suggest that two separate party systems would develop – Republicans and Democrats would contest national elections and either two different parties would contest local ones or the Democrats and Republicans would change their positions on local issues to become competitive at the local level. The question is why this doesn’t happen.

To explain, I need to make some assumptions about voters and to incorporate a series of common state, federal and constitutional laws. The two assumptions are that voters care more about national issues than local issues when making party identification decisions. and that individual city council races are low-salience – voters have little to no independent knowledge about city council candidates. There is substantial evidence backing up both of these assumptions (look in the paper if you’re interested ).

The laws are what I call the unitary party rules:

1. National Parties automatically receive ballot places in local elections, usually on the basis of how well they do in gubernatorial races.

2. States and political parties make it difficult to change parties between elections – there are laws limiting the ability of voters to switch parties and still vote in primaries (for a period of time), and strong limits on the ability of candidates and activists to switch parties between elections.

3. As a matter of Constitutional law, national political parties have the right to participate and use their organizational and financial muscle in local elections (even if the elections are non-partisan).

4. Primary elections are used to select candidates.

Under these laws and the assumptions above, you can see why there is no partisan competition in local elections.

In the first instance, the vote in local elections will directly track the vote in national elections. Voters with little information will use the information that the law provides to them – the party name on the ballot. If “Republican” and “Democrat” provide a non-zero amount of information about a candidate, a voter with no other information (by assumption) about the candidate will rationally use the national party heuristic to vote.

The question is why the minority local party doesn’t modify its issue stances to become popular at the local level. By assumption, the only way it could do this is if it did so on a city-wide level – individual candidates can’t get enough attention. But using primary elections makes this impossible. Local party members don’t have consistent preferences and the result is candidates that are all over the map on local issues. Further, they will have trouble attracting candidates and activists from the majority, as those candidates and activists (as well as the representative local voters who they’d have to attract to have primaries among a local issue preference-consistent group) would not choose to join the local minority party in local elections because they care more about national elections and don’t want to be penalized.

This is an inefficient outcome – local elections end up not having competition and hence don’t end up with representative results. The question then is why is there not entry?

The assumptions and laws show that there are substantial barriers to entry. A local only third party cannot attract adherents, because people care more national issues than local ones and won’t abandon their national party to contest local elections. Further, they face the ordinary limits on third parties – Duverger’s Law and the organizational muscle of the national parties. Under the model, the only way a local-only third party could get adherents is by competing in national elections as well as local elections, but national elections aren’t uncompetitive. So there is no entry and no competition

The model is a bit dry, but perhaps it can be explained through a story. This is from my paper…

The dramatic effect of the lack of information on local city council elections can be seen if one considers the case of New York City's Councilmanic District Five on the Upper East Side of Manhattan. In the 2001 local election, Gifford Miller, a powerful and well-known Democratic incumbent who directly after the election would become Speaker of the City Council, faced a relatively unknown candidate named Robert Strougo. Not surprisingly, Miller won 68 percent of the vote to Strougo's 31 percent, neatly tracking the 2-1 dominance of Democrats in the district.

In 2005, a perfect storm of factors lined up to reverse this result. First, Miller could not run for reelection because of term limits. His aide, Jessica Lappin, who had never run for public office before, was the Democratic candidate. Second, Republican Mayor Michael Bloomberg reached new heights of popularity, particularly on the Upper East Side (he would end up winning 59 percent of the citywide vote and more than 80 percent of the vote on the Upper East Side). In District Five, the Republicans nominated Joel Zinberg, a former Democrat, cancer surgeon and Yale-educated lawyer, who built his candidacy around Bloomberg's popularity, declaring his goal as furthering the Mayor's agenda. The New York Times and the New York Post endorsed Zinberg, as did Bloomberg. In the face of this, Lappin's campaign simply sounded a single theme. When asked by a local paper what differentiated the candidates, she responded, "I'm a Democrat. I mean, that's sort of the most obvious difference between us... He's a Republican, and I'm proud to be a Democrat, and I think that certainly distinguishes us."

The result of the election was a near carbon copy of the 2001 race: Lappin received 65 percent of the vote to Zinberg's 35 percent. Thus, in a district which a Republican mayor won 80 percent of the vote, the Republican city council candidate devoted to exactly the same platform as the Mayor only won 35 percent, despite being endorsed by the mayor and the major newspaper and facing a political neophyte. The only factor that mattered was the 2-1 advantage Democrats had in registration.

The story of Joel Zinberg is the story of all city council candidates: what they say and who they are matter very little to those who will vote for them. It is their party status and the popularity of that party at the national level that defines them.

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Pay automakers to cut greenhouse-gas emissions?

You probably did not notice that the auto bailout bill has such a provision. It does; it is the very provision to which Eugene drew our attention yesterday:

(g) WITHDRAWAL FROM CERTAIN ACTIONS. — The terms of any financial assistance under this Act shall prohibit the eligible automobile manufacturer from participating in, pursuing, funding, or supporting in any way, any legal challenge (existing or contemplated) to State laws concerning greenhouse gas emission standards.

Section (g) sounds like a prohibition but recall that the bill does not obligate automakers to do anything. Automakers have the option to turn down financing offered by the “czar.” Suppose, then, that automakers believe that the net present value of challenging some current or future state greenhouse gas regulation is 100. Automakers will give up this option only in return for an amount of money greater than or equal to 100. This would take the form of favorable financing terms—interest rates, or whatever. Thus, Congress—that is, the taxpayer—pays automakers not to challenge state greenhouse gas laws that presumably do or will cause automakers to reduce emissions.

You might think that automakers are in no position to demand an extra 100, but that would misconceive what is at stake here. The automakers have quite a bit of bargaining power: if the czar does not give terms that increase the value of equity, then the automakers can go out of business, causing immense suffering to the two important constituencies driving the bill—workers and creditors. Of course, the automakers will be better off with financing than without it, but the point is that they will be better off only if they are better off—meaning taxpayers must give them that extra 100 to cause them to drop positive net present value projects worth 100, on top of everything else.

Well, so what? It is surely better for the automakers to comply with state greenhouse gas laws than to challenge them, and if we have to pay them to comply with these laws, then maybe that is the best we can do. After all, the normal legal response to pollution is to tax or restrict behavior—a federal law that curbs greenhouse gas emissions (several are floating around), and not just of automakers but of everyone. The normal response would impose enormous costs on automakers at the same time that we are trying to reduce their costs! With one hand, we give by reducing the cost of credit; with the other hand, we take away by increasing the cost of production.

If you support the bailout bill as a kind of public works project, then you might have second thoughts. Wouldn’t it be better to pay people to engage in useless activity (digging and filling holes, say) than destructive activity (working in factories that emit greenhouse gases and cars that no one wants). If you support the bailout bill because you believe the public relations reason—that it is temporary financing necessary to save a healthy industry during a credit crunch—then you should be uneasy about section (g). Here’s why:

1. It almost never makes sense to pay polluters to stop polluting. That exacerbates tax distortions and encourages new entrants into the industry, who will have to paid off as well. Ask yourself how you would respond to this headline: “Congress announces that it will pay industry to stop polluting.”

2. The state laws could well be idiotic, and, even if not, inconsistent with the states’ constitutions. Why should Congress pay people not to challenge defects in state law? (At present, few, perhaps no, state laws impose meaningful restrictions on automakers but that could change in the future.)

3. Section (g) does not apply to any automaker who refuses a deal; it also cannot apply to foreign automakers. That means foreign automakers remain free to challenge the state laws (by the same token, it won’t be necessary to pay domestic automakers much to refrain from doing so).

4. State laws that restrict automakers probably will have virtually no benefit for the climate. Any sensible climate regulation has to apply to all or nearly all sources of greenhouse gases (to avoid substitution to non-regulated activities) and has to apply to the entire nation, indeed to the entire world.

For more on the bill, see Randy Picker, David Zaring ("tough oversight"? where?), and Steven Davidoff.

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OK, I Have No Good Excuse for Posting This . . .

. . . other than paternal pride [surely one of the more benign vices, and one for which kind readers will forgive me]. It's a video clip of my son Sam at his piano recital at Yale last spring: some Preludes and Fugues from Bach's Well-Tempered Clavier. It's a very home-made job, quality-wise, but there's some truly lovely playing here (though I know I'm not terribly objective on this -- duh!). Sam's always had a special relationship with Bach -- to have a 12- or 13-year-old in the house playing the 5-part fugues from the Well-Tempered Clavier, and not just playing them but playing them really beautifully -- is a strange and wondrous thing; and to my ear, his performances of Bach can stand comparison with even the great ones out there (Gould, Richter, Tureck, Perahia, ...).

And should any of you happen to find yourselves in New Haven CT this Friday evening, Sam's giving his senior recital at 8 PM in Sudler Hall. It's a wonderful program -- more Bach, some Schubert impromptus, Mozart Sonata K. 570, and the 3d Chopin Ballade. [If that's not a nice sample of the greatest achievements of Western civilization, I'm not sure what would be].

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Can Pornographers Be Prosecuted for Paying for Sex?

People sometimes ask -- if it's a crime to pay someone to have sex with your friend, or even to pay two people to have sex so you can watch, why aren't pornographers equally guilty? Well, occasionally this gets litigated, and there's a new opinion out on this from the New Hampshire Supreme Court, State v. Theriault.

New Hampshire Revised Statutes 645:2 provides, in relevant part,

I. A person is guilty of a misdemeanor if the person:

(f) Pays, agrees to pay, or offers to pay another person to engage in ... sexual penetration as defined in RSA 632-A:1, V, with the payor or with another person.

Robert Theriault approached a woman and her boyfriend, offering them $50/hour to let him videotape them having sex (while they used "temperature blankets," which puzzles me). The government didn't allege "that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video," because that wasn't required by the statute. Theriault was convicted.

The New Hampshire Supreme Court held that applying the statute this way is unconstitutional, because "the production of sexually explicit but non-obscene videos is constitutionally protected," and upholding the law in a case such as this one would interfere with producers' right to create such videos. The court heavily relied on People v. Freeman, a 1988 California Supreme Court decision that reached the same result, and disagreed with People v. Kovner, a 1978 New York trial court decision that reached the opposite result.

It's not clear to me how right the court's logic is. Generally speaking, the right to create constitutionally protected speech doesn't include the right to violate non-speech-related laws in the process -- for instance, I don't have the right to use illegal drugs in the course of my speech-producing scientific research, or to trespass on closed government property to shoot a video. There might be some modest protection offered by United States v. O'Brien (1968), but that really does offer very slight protection when the law involved doesn't mention speech, and is applied to speech entirely without regard to what the speech conveys.

At the same time, I take it that a producer would have the right to violate antidiscrimination law in choosing actors based on their skin color (notwithstanding some arguments by my colleague Russell Robinson in favor of limiting directors' rights at least in some measure in similar situations). Should a producer have an equal right to violate prostitution law? If I feel that the one perfect actor for my movie is a noncitizen who doesn't have a work authorization, may I hire him nonetheless? Do I get an exemption from child labor laws (to the extent any statutory exemption for child actors doesn't apply)?

In any case, an interesting conceptual question, it seems to me.

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The Blagojevich Timeline: Everything Fits Easily Except Obama's Monday Denial.

Most people have misunderstood the timeline of the Blagojevich Senate scandal. Pretty much everything fits except Barack Obama's statement yesterday that he knew nothing about it.

If we didn't have Obama's denial to contend with, the actions of all the parties, including those purporting to speak for Obama, are consistent with Obama and his staff learning about Blagojevich's corrupt plans on Monday, Nov. 10.

Consider the timeline, as revealed in the complaint and press reports:

1. On the weekend of Nov. 8-9, Obama lets it be known that his choice for Senate is Valerie Jarrett. Aides tell WLS-TV in Chicago and CNN, which announces Obama’s choice on Sunday. Nov. 9.

2. On Monday, Nov. 10, Blagojevich holds an incredible 2-hour conference call with multiple consultants: “ROD BLAGOJEVICH, his wife, JOHN HARRIS, Governor General Counsel, and various Washington-D.C. based advisors, including Advisor B,” discussing his corrupt schemes. He follows this with two calls with Advisor A.

3. That very night, Monday, Nov. 10, at 7:56pm, CNN reported:

Two Democratic sources close to President-elect Barack Obama tell CNN that top adviser Valerie Jarrett will not be appointed to replace him in the U.S. Senate.

"While he (Obama) thinks she would be a good senator, he wants her in the White House," one top Obama advisor told CNN Monday.

Over the weekend, Democratic sources had told CNN as well as Chicago television station WLS-TV that Jarrett was Obama's choice to fill his Senate seat.

So what happened? The likeliest scenario is that one of the many participants in Blagojevich’s Monday phone calls either floated his plans to the Obama transition team to assess their response or tipped off the Obama camp about the reckless ideas that Blagojevich had planned.

In any event, within hours of Blagojevich substantially expanding his circle of confidants, the Obama camp withdrew Jarrett’s name from consideration and attributed that withdrawal to the President's wanting Jarrett in the White House. And the Obama staffers went out of their way to depict this as Obama's choice, rather than Jarrett's, which would have been more common. The report claims Obama's involvement in the decision and suggests a direct effort to undercut the idea that Obama was pressuring Blagojevich to appoint Jarrett.

4. Moreover, by the next day, Tuesday, Nov. 11, Blagojevich already had received his answer from the Obama camp that no quid pro quo would be forthcoming: “ROD BLAGOJEVICH said he knows that the President-elect wants Senate Candidate 1 for the Senate seat but ‘they’re not willing to give me anything except appreciation. F**k them.’”

5. On Wednesday, Nov. 12, Blagojevich pitched his corrupt bargain idea to an SEIU Official who, according to Ben Smith, is President Andy Stern. [On Dec. 11, the New York Times identified the official as Tom Balanoff, head of Illinois' largest union and Obama's biggest union supporter. The SEIU official] agreed to convey the offer to the relevant actors. Blagojevich understood [the SEIU official] to be contacting Jarrett herself, the co-chairwoman of the Obama transition team:

109. On November 12, 2008, ROD BLAGOJEVICH spoke with SEIU Official, who was in Washington, D.C. Prior intercepted phone conversations indicate that approximately a week before this call, ROD BLAGOJEVICH met with SEIU Official to discuss the vacant Senate seat, and ROD BLAGOJEVICH understood that SEIU Official was an emissary to discuss Senate Candidate 1’s interest in the Senate seat.

During the conversation with SEIU Official on November 12, 2008, ROD BLAGOJEVICH informed SEIU Official that he had heard the President-elect wanted persons other than Senate Candidate 1 to be considered for the Senate seat.

SEIU Official stated that he would find out if Senate Candidate 1 wanted SEIU Official to keep pushing her for Senator with ROD BLAGOJEVICH. ROD BLAGOJEVICH said that “one thing I’d be interested in” is a 501(c)(4) organization.

ROD BLAGOJEVICH explained the 501(c)(4) idea to SEIU Official and said that the 501(c)(4) could help “our new Senator [Senate Candidate 1].” SEIU Official agreed to “put that flag up and see where it goes.”

110. On November 12, 2008, ROD BLAGOJEVICH talked with Advisor B. ROD BLAGOJEVICH told Advisor B that he told SEIU Official, “I said go back to [Senate Candidate 1], and, and say hey, look, if you still want to be a Senator don’t rule this out and then broach the idea of this 501(c)(4) with her.”

6. The complaint doesn’t say whether [the SEIU official] contacted Jarrett or other members of the Obama transition team, but it is likely that he did. [On Dec. 11, the New York Times reported that Balanoff did ferry messages from the Blagojevich camp to the Obama camp.] Whether [the SEIU official] was horrified by Blagojevich’s corrupt idea and wanted to warn Obama or intrigued by the deal and wanted to assess its chances, I can’t think of a good reason why [the SEIU official] wouldn’t have conveyed the idea to the Obama camp.

7. On Thursday, Nov. 13:

ROD BLAGOJEVICH asked Advisor A to call Individual A and have Individual A pitch the idea of the 501(c)(4) to “[President-elect Advisor].” Advisor A said that, “while it’s not said this is a play to put in play other things.” ROD BLAGOJEVICH responded, “correct.” Advisor A asked if this is “because we think there’s still some life in [Senate Candidate 1] potentially?” ROD BLAGOJEVICH said, “not so much her, but possibly her. But others.”

8. If, as seems likely, Individual A then pitched Blagojevich’s corrupt bargain to the “President-elect Advisor” and that advisor is Rahm Emanuel, as has been suggested by others, then Emanuel would then have known of the bribery attempt.

9. By 6:10pm on Friday, Nov. 14, CNN is reporting:

Valerie Jarrett tells CNN contributor Roland Martin that President-elect Barack Obama offered and she accepted a position in the Obama administration – she will be the Senior Adviser to the President and Assistant to the President for Intergovernmental Affairs and Public Liaison.

10. Nov. 14 to early December: After occasionally feeding speculation about who might fill Obama’s seat, the Obama transition team suddenly goes remarkably silent about his preference.

11. On Nov. 23, Obama’s “senior adviser David Axelrod appeared on Fox News Chicago,” answering a question about the Senate seat.

While insisting that the President-elect had not expressed a favorite to replace him, and his inclination was to avoid being a "kingmaker," Axelrod said, "I know he's talked to the governor and there are a whole range of names many of which have surfaced, and I think he has a fondness for a lot of them."

Note the language used. While on Nov. 9, Obama staffers were telling multiple news outlets whom Obama wanted for his Senate seat, by Nov. 23, Axelrod was distancing Obama not only from any individual choice, but he used the pejorative term “kingmaker” to emphasize Obama’s avoidance of any even marginally corrupt influence. It is likely that Axelrod had in mind the corrupt bargain that Obama’s camp had already turned down.

12. On Tuesday, Dec. 9, Obama denies personal knowledge of the corrupt proposal.

"I had no contact with the governor or his office and so we were not, I was not aware of what was happening."

As I’ve said before, as with Bill Clinton, Barack Obama’s words should be read carefully to see what he is saying and not saying. Apparently, Obama started to say that “we were not” “aware of what was happening," but corrected himself by saying that “I was not aware of what was happening."

That language leaves open the possibility that his staff was aware, but he personally was not. But why would Obama’s staff withhold information from him? I assume that Obama is telling the truth about not having spoken to the governor himself, since that might be easily refuted.

CONCLUSION:

From the evening of Nov. 10 until yesterday, Blagojevich, Obama, and his transition team acted in ways that are consistent with a knowledge of Blagojevich’s bribery attempt and a rejection of that attempt. What doesn't fit easily with the timeline is Obama's statement yesterday.

It should be noted that it is not a crime to fail to report a bribery attempt. The federal misprision of felony statute would seem to make it a federal crime to fail to report a federal felony:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both. 18 USC s.4.

But case law has conclusively determined that mere non-reporting is not enough. Active concealment or the acceptance of a benefit for concealing is required.

Yet, looking at this timeline of Blagogate, it seems quite possible that someone in the Obama Camp is either lying or at least not revealing what they know. I also find it hard to believe that Obama’s closest advisors were hiding major corruption from him, especially as he was making decisions about where to place Senate candidates such as Jarrett.

Something important is missing from this story. Let's hope that, whatever it is, the absent fact or explanation will allow the narrative to fit Obama's denial more naturally.

Since by all accounts, the Obama camp refused Blagojevich’s bribery attempt, it would be extremely unwise to lie about it. Remember, it’s not the crime that trips you up; it’s the cover-up.

UPDATE: My parsing of Obama's statement above gets some strong support from this LA Times interview, noted by Byron York:

It hasn't gotten a huge amount of coverage, but Obama did an interview with the Los Angeles Times yesterday. He said he had never talked about the Senate seat with Rod Blagojevich. But when he was asked whether his staff had, he clammed up. From the interview:

Q: Have you ever spoken to [Illinois] Gov. [Rod R.] Blagojevich about the Senate seat?

Obama: I have not discussed the Senate seat with the governor at any time. My strong belief is that it needed to be filled by somebody who is going to represent the people of Illinois and fight for them. And beyond that, I was focused on the transition.

Q: And that was before and after the election?

Obama: Yes.

Q: Are you aware of any conversations between Blagojevich or [chief of staff] John Harris and any of your top aides, including Rahm [Emanuel]?

Obama: Let me stop you there because . . . it's an ongoing.... investigation. I think it would be inappropriate for me to, you know, remark on the situation beyond the facts that I know. And that's the fact that I didn't discuss this issue with the governor at all.

So I was correct that Obama was indeed drawing a distinction between what he knew and what his staff might have known.

As I said above, there is something missing here. It wouldn't surprise me if Obama staffers were working with the prosecutors (from the week of Nov. 10th on), a possibility suggested in comments below. But it would surprise me if Obama staffers went to the feds without telling Obama.

2d UPDATE: I see that the Wall Street Journal's Washington Wire ("Blagojevich’s Big Conference Call and Valerie Jarrett’s Clean Break") adopts my analysis (without linking me). In particular, they accept my narrative and dating of the break in the case as happening on Nov. 10, not Nov. 12, as was the consensus before I wrote this post.

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Who are the unnamed players in the Blagojevich case?

Speculation is rampant in Illinois and in the blogosphere over the identity of the unnamed characters in the affidavit supporting the complaint.

1. Advisor A and Advisor B

Some have wondered whether David Axelrod is Advisor A or Advisor B. This strikes me as highly unlikely.

Advisor A is described in the affidavit supporting the complaint as “a former Deputy Governor under ROD BLAGOJEVICH who is currently a lobbyist.”

Advisor B is described as “a Washington D.C.-based consultant.”

David Axelrod was never “a former Deputy Governor” and he is a consultant based in Chicago, not DC.

2. Senate Candidate 1

Identified as female and described as “an advisor to the President-elect,” she is very probably Valerie Jarrett, as I noted in an earlier post.

3. Senate Candidate 2

Senate Candidate 2 is Lisa Madigan, the state attorney general.

The Allegations:

97. On November 6, 2008, ROD BLAGOJEVICH talked with Spokesman. ROD BLAGOJEVICH told Spokesman to leak to a particular columnist for the Chicago Sun-Times, that Senate Candidate 2 is in the running for the vacant Senate seat. According to ROD BLAGOJEVICH, by doing this, he wanted “to send a message to the [President-elect’s] people,” but did not want it known that the message was from ROD BLAGOJEVICH.

Thereafter, ROD BLAGOJEVICH and Spokesman discussed specific language that should be used in the Sun Times column and arguments as to why Senate Candidate 2 made sense for the vacant Senate seat. A review of this particular Sun Times column on November 7, 2008, indicates references to the specific language and arguments regarding Senate Candidate 2 as a potential candidate for the Senate seat, as discussed by ROD BLAGOJEVICH and Spokesman.

Here is part of the Michael Sneed Sun-Times column referred to in the allegations:

The latest from Blagoville: Is Gov. Rod Blagojevich toying with tossing Barack Obama's U.S. Senate seat to Illinois Attorney General Lisa Madigan, who wants Blago's job?

Putting these two together, Madigan's identity is a near certainty.

4. Senate Candidate 3

JTA, a Jewish news service, claims (with no supporting facts at all) that Senate Candidate 3 is US Rep. Jan Schakowsky.

JTA has learned that Schakowsky, the only Jewish contender to replace Obama, is the "Senate Candidate 3" in the prosecution complaint.

5. Senate Candidate 4

The Affidavit states that “Senate Candidate 4 is a Deputy Governor of the State of Illinois.” That would mean one of the following: Dean Martinez, Bob Greenlee, or Louanner Peters. Arch Pundit speculates that Senate Candidate 4 is Louanner Peters, but gives no reasons for her over the other two.

6. Senate Candidate 5

Although some have suggested that Senate Candidate 5 is Jesse Jackson, Jr., the likelier guess is Emil Jones, Obama’s “political godfather” and former mentor in the Illinois Senate. More on that later.

7. Senate Candidate 6

The Affidavit states that, “Senate Candidate 6, based on other intercepted conversations, is believed to be a wealthy person from Illinois.”

On Nov. 26, 2008, Michael Sneed’s column ran this item:

HMMM . . .

The name of wealthy businessman J.B. Pritzker, a big supporter of U.S. Sen. Hillary Clinton's presidential bid, seems to be bubbling up more frequently to the top of Gov. Blagojevich's short list to fill President-elect Barack Obama's Senate seat.

A Nov. 10, 2008 Sun-times editorial mentions two wealthy possibilities: J.B. Pritzker and Edwin Eisendrath.

8. President-elect Advisor

There is speculation that the "President-elect Advisor" is Rahm Emanuel. More on that later.

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Tuesday, December 9, 2008

Only One Law Review Publishes BOTH Obama and Kopel:

That review is the Charleston Law Review. President-elect Obama's foreword to volume 2, issue 1 (2007) is available here.

As for my own article in Charleston, it's forthcoming in volume 3, which is at the printer. But available now in final form at SSRN: Pacifist-Aggressives vs. the Second Amendment: An Analysis of Modern Philosophies of Compulsory Non-Violence.

The article begins with the observation that, domestically and internationally, there are many religious organizations and leaders who denounce self-defense, and who seek to ban or drastically restrict guns in order to impose their own morality. The article examines some leading religious pacifist philosophers, and some historical examples of how pacifism has worked in real-world conditions.

The article has high praise for John Howard Yoder (perhaps the greatest pacifist writer of all time), and for Thomas Merton (an influential advocate of non-violence, but not a pacifist). The article is more critical of Stanley Hauerwas, more critical still of Leo Tolstoy, and dismayed with the shallow and factually inaccurate writings of Tony Campolo.

The article sets the record straight on the Danish rescue of the Jews during World War II. King Christian X never wore a yellow star. The Danish response to the Nazis was very cowardly at the start, at a time when bravery might have changed the course the war. The 1943 rescue of the Danish Jews, smuggling them to Sweden, was very noble, but it was not an example of successful pacifism in action. Switzerland, which was armed to the teeth and ready to fight, ended the war with even a better record of protecting its native Jews than did Denmark.

The American Civil Rights Movement used pacifist tactics at some times, even as civil rights workers armed themselves for protection against Ku Klux Klan attacks. The slogan "violence never solves anything" is the ethical equivalent of flat-Earth geography. It is a purportedly empirical claim which is contradicted by ample and obvious evidence.

In the real world, there are plenty of brave pacifists, including the Moriori tribe of the Chatham Islands, who chose to suffer genocide rather than use violence. The article does not attempt to refute arguments that pacifism is mandated by Christian scripture, or by other sources of religious authority. Rather, the article suggests that the argument which some pacifists make--that pacifism always, necessarily, leads to better real-world results, is empirically false. In a free society, the government should not force pacifists to use force. Likewise, pacifists should not attempt to use government force to deprive other people of the means or the right of self-defense.

VC readers saw a draft version on this article on SSRN a little over a year ago. The Charleston staff did a great job with the article; it's a tighter, more precise piece thanks to their cite-checking. Thanks also to Eugene Volokh, for coining the term "pacifist-aggressives." He too has been published in a law journal which has also published Obama, namely the Harvard Law Review.

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Interesting Stat on Appellate Judges:

Ed Whelan notes the interesting fact that there are more sitting Clinton nominees on the federal appellate bench (59) than Bush 43 nominees (56) -- and that's counting as Bush nominees the three Clinton nominees that Bush renominated. The same is true of district court judges.

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Oral Argument in Arizona v. Johnson: Today the Supreme Court held oral argument in Arizona v. Johnson, a Fourth Amendment case on the stop-and-frisk power. You can read the briefs here, and the oral argument transcript is here. At its broadest level, the case raises the question of whether a police can "pat down" a suspect for weapons if the office reasonably believes the suspect poses a danger to him but there is no evidence that there is criminal activity afoot.

  In my view, the broad question in Johnson has a sense of unreality about it. If a police officer reasonably believes that a suspect is about to attack him, either with a knife or gun, then there will almost always be criminal activity afoot. In Johnson, for example, the defendant had just admitted that he was a felon, and the officer had reason to think he was concealing a weapon: Those facts alone justified a reasonable belief that criminal activity was afoot in the form of concealing a weapon (a state offense in Arizona) or being a felon in possession (state and federal). It's true that the officer testified in Johnson that she wasn't subjectively thinking about that, but that's irrelevant: The Fourth Amendment standard is reasonableness, and reasonableness is based on what a reasonable officer observed rather than what the officer was subjectively thinking. See, e.g., Devenpeck v. Alford.

  More broadly, if the suspect is truly armed and truly dangerous to the uniformed officer, that means there is cause that the suspect is likely to commit the serious crime of assaulting a uniformed police officer. Further, a lot of the scenarios that are easy to think up involve facts where it is very hard to believe there would be articulable facts the suspect is armed and dangerous: An officer can't just walk up to someone and part them down because the person won't have specific and articulable facts to believe they are armed and dangerous. So I think this problem is of more theoretical interest than practical import, and is arguably not even raised by the facts of the Johnson case.

  In my view, Arizona v. Johnson should be a very easy and narrow decision. Johnson was still seized throughout the stop because he was never given a sign that he could leave under Brendlin v. California. The officer's testimony that she thought Johnson was free to leave is irrelevant under Devenpeck and Whren (and even if it were relevant, it strikes me as pretty bogus). Also, while the Az. Court of Appeals thought the officer's intent was relevant, its conclusion was a matter of law, not a question of fact, and is therefore entitled to no deference. Given that, Johnson was seized, and the frisk was okay given the articulable facts of dangerousness. The broader conceptual questions are interesting, but not likely to arise very often and best left for another day.
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Ah, the Sixties:
“Yet, happily, all constitutional questions are always open.”
Source: Gideon v. Wainright, 372 U.S. 335, 346 (1963) (Douglas, J., concurring).
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An Interesting Social Experiment:

How many Brandeis professors will volunteer to take a 1% pay cut to help save two or three staffers' jobs?

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U Street Apartment Available for Inauguration Week:

Want to attend Barack Obama's inauguration in high style? For readers who may be interested, I have a friend who would like to rent out an apartment in the U street area of Washington, DC during inauguration week.

It is a furnished studio that can house up to two people. The location is about 5-10 minutes away from the inauguration site by public transportation, and no more than about half an hour on foot. Please contact me with a bid by e-mail if interested.

And now back to our regularly scheduled programming.


Blowing in the Wind:

A fascinating story in today's L.A. Times:

Lee [Min-bok] is equal parts meteorologist, tinkering inventor and political dissident, a man obsessed by a singular goal: to spirit messages to those left behind in his native North Korea -- 23 million countrymen living under the ironfisted rule of Kim Jong Il.

To reach the isolated society devoid of outside newspapers, radio and television, the 52-year-old defector uses a simple yet elegant method to fly under the radar of North Korean intelligence watchdogs: He sends millions of leaflets northward by way of his towering helium balloons....

The messages are reaching common North Koreans.

Park Kwon-ha, a defector and former North Korean soldier, escaped in 2005. He says the leaflets were like gold from the sky: "It cannot be overemphasized how effective the fliers are. Because the more you learn from one flier, the more you want to know." ...

"Pyongyang is apoplectic," says Marcus Noland, a North Korea scholar for the Peterson Institute for International Economics in Washington.

"These defectors are from within the system. They know exactly what to say and how to say it. And they hit a nerve. For Pyongyang, they stick the knife in and twist it."

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Owens v. Guida:

Speaking of divisions on the U.S. Court of Appeals for the Sixth Circuit, today a divided panel rejected the habeas appeal of Gaile Owens, the first woman sentenced to death in Tennessee. Among other things, the court divided over whether Owens received ineffective assistance of counsel because she failed to cooperate fully in her own defense and her attorney neglected to press what some call the "he just needed killing" defense.

Chief Judge Danny Boggs wrote the majority opinion in Owens v. Guida, joined by Judge Eugene Siler, Jr. Here is how the majority summarized the case.

Gaile K. Owens (“Owens”) is on Tennessee’s death row because she hired Sidney Porterfield to kill her husband and Porterfield successfully carried out his assignment. Owens appeals the district court’s dismissal of her petition for a writ of habeas corpus. She argues that: 1) she received ineffective assistance of counsel (“IAC”) when trial counsel failed to adequately investigate her background and failed to overcome the state’s hearsay objection to one of her penalty-phase witnesses; 2) the state violated Brady v. Maryland by failing to turn over letters between her deceased husband and his paramour; and 3) the trial court unconstitutionally prevented her from offering, as mitigating evidence, testimony that she wanted to plead guilty in return for receiving a life sentence.

We reject the first argument and hold that the Tennessee courts reasonably applied Strickland v. Washington by concluding that Owens sabotaged her own defense and that counsel’s performance is not deficient when counsel follows a client’s instructions. Likewise, we reject her second argument and hold that the Tennessee courts reasonably applied Brady because even if the letters were favorable evidence, and were suppressed by the state, Owens was not prejudiced because she could have presented other evidence of the affair but chose not to do so. Finally, we reject her third argument and hold that the Tennessee courts reasonably applied Lockett v. Ohio in refusing to admit Owens’s evidence because no court, let alone the Supreme Court, has held that failed plea negotiations may be admitted at a penalty-phase hearing. Therefore, we affirm.

Judge Gilbert Merritt wrote a strongly worded dissent. It begins:
The majority opinion slants and misconceives relevant facts and law in this case on each of the three major issues in order to uphold the death penalty. I will try to straighten out the case for the reader by introducing the actual facts and the correct legal principles to be applied. This is not a close case.

The facts about Ryan Owens’ cruel and sadistic behavior toward his wife now make an overwhelming case of domestic violence and psychological abuse in mitigation of the murder case against Gaile Owens. From the beginning, Mrs. Owens’ counsel knew that this was her best — indeed, her only — defense. Before trial, her counsel told the trial court that in his opinion: “This case has a meritorious defense in the battered-wife syndrome.” The Memphis district attorneys obviously knew that this was the defense theory. But this defense was never developed or even mentioned to the jury during the trial because of the cover-up of exculpatory evidence by the Memphis prosecutor and the complete failure of defense counsel to conduct a proper investigation of Ryan Owens’ sadistic behavior toward his wife. I will discuss the Memphis prosecutor’s cover-up of exculpatory evidence first, then defense counsel’s failure to investigate and develop the defense, and finally the refusal of the Memphis trial court to allow in evidence one of the defendant’s best lines of mitigation testimony.

The majority responds that "for many of the points of the dissent, a careful examination of the relevant part of this opinion, and the cases and portions of the record cited therein, suffices for refutation." Additional responses to the dissent are contained on pages 19-20.

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Clarified Comment Policy: VC readers who often comment here might want to note that we have clarified our comment policy (the one posted right below the comment box when you write a comment). It's the same basic policy as before, but a little clearer and shorter:
  Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
  We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
  And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.
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Is It a Crime To Trade a Senatorial Appointment Decision for a Cabinet Job?

The charges against Illinois Governor Rod Blagojevich are extremely serious, and much of them allege garden variety corruption, albeit on a massive scale. But I wonder whether one of the items should indeed form the basis for a corruption prosecution:

Rod Blagojevich has been intercepted conspiring to trade [his decision to appoint someone to] the senate seat [vacated by the President-elect] for particular positions that the President-elect has the power to appoint (e.g. the Secretary of Health and Human Services).

It's true that a cabinet position has a salary attached to it, which I believe is somewhat larger than that of the Governor of Illinois. And I agree that trading a decision to appoint someone a Senator for a pot of money is classic criminal bribery.

But my sense is that political deals of the "I appoint your political ally to X and you appoint me to Y" variety are pretty commonplace, though perhaps done with more subtlety than seemed to be contemplated here. Should these deals indeed be treated as criminal bribery? Have they generally been so treated? What if the deal didn't involve appointment-for-appointment swaps but vote-for-vote swaps or vote-for-appointment swaps — e.g., "if you vote the way I want you to vote, I'll vote the way you want me to vote" or "if you vote the way I want you to vote, I, the Speaker of the House, will make sure that you're appointed to the committee chairmanship you always wanted" or "if you solidly support me during this Congress, I'll appoint you to the Cabinet"?

Here this proposed deal seems part of a broader pattern of corruption (though this also means that the prosecution would likely do just fine if they had excluded the deal, and focused on the prospect of trading the appointment for a private-sector position). But the government's theory, I take it, would apparently treat such a deal as a federal crime — assuming the federal jurisdictional requirements are met — even if it were a standalone deal by an otherwise uncorrupt official. So that, I think, makes it worth considering how the law should treat these sorts of deals involving political appointments.

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Blackwater Indictment and Mandatory Minimum Counts for Carrying Weapons in the Line of Duty

Yesterday the Justice Department indicted five Blackwater security contractors for their role in the deaths of civilians in Iraq that arose during a firefight with Iraqi insurgents on September 16, 2007 in Baghdad.

I have played a small role in the defense of the case and thought I would post a few links that may be of interest to those following the case.

The defense view of the case is as follows:

On September 16, 2007, on the dangerous streets of Baghdad, a State Department official and her security detail were attacked by insurgents using a roadside bomb. A second security team, including our clients, was sent to assist and in the process of securing an escape route were drawn into a firefight with insurgents in Nissor Square. Iraqi insurgents do not wear uniforms, and often disguise themselves as Iraqi soldiers or police to ambush U.S. forces. The tools of these insurgents include car bombs, roadside bombs, suicide bombers and automatic weapons. Faced with this enemy, these young men were fighting for their lives in a crowded, dangerous and chaotic environment. It is an unfortunate fact of war that in a country where terrorists and insurgents hide behind civilians to attack U.S. personnel, civilian casualties will result. These casualties are not the fault of our military and security forces however, but rather the fault of the insurgents who use women and children as shields, behind which they launch their cowardly attacks. Today, prosecutors in Washington, DC, seated comfortably in the safety of well guarded offices three thousand miles away from this deadly war zone, have seen fit to second guess how these decorated veterans of the military fought for the lives of their comrades and themselves. Worse they have charged these young men with offenses which could put them in prison for the rest of their lives for their efforts to save their own lives and the lives of others.

Here you can find the full press statement from the defense team about the defense perspective on the case.

There are very substantial jurisdictional and venue arguments that the defense has raised, including in particular whether the Justice Department has jurisdiction to try State Department contractors under a law designed to cover military personnel and whether jurisdiction lies in the District of Columbia rather than Utah. Here is the defense brief on these issues.

Perhaps the most interesting issue for readers of this blog may be the fact that the Government has alleged 30 year mandatory minimum prison time offenses against the contractors for recklessly discharging their Government-issued weapons (including machine guns) during the firefight. Apart from any of the other aspects of the case, that charge particularly strikes me as overreaching.

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It appears that Obama Camp was not willing to cut a deal with Blagojevich.

Here are the government allegations that reference Blagojevich’s frustration with the Obama Camp's apparent unwillingness to pay Blagojevich for appointing Obama’s presumed favorite as Senator.

101. c. ROD BLAGOJEVICH said that the consultants (Advisor B and another consultant are believed to be on the call at that time) are telling him that he has to “suck it up” for two years and do nothing and give this “motherf**ker [the President-elect] his senator. F**k him. For nothing? F**k him.”

ROD BLAGOJEVICH states that he will put “[Senate Candidate 4]” in the Senate “before I just give f**king [Senate Candidate 1] a f**king Senate seat and I don’t get anything.” (Senate Candidate 4 is a Deputy Governor of the State of Illinois). ROD BLAGOJEVICH stated that he needs to find a way to take the “financial stress” off of his family and that his wife is as qualified or more qualified than another specifically named individual to sit on corporate boards.

According to ROD BLAGOJEVICH, “the immediate challenge [is] how do we take some of the financial pressure off of our family.” Later in the phone call, ROD BLAGOJEVICH stated that absent getting something back, ROD BLAGOJEVICH will not pick Senate Candidate 1.

HARRIS re-stated ROD BLAGOJEVICH’s thoughts that they should ask the President-elect for something for ROD BLAGOJEVICH’s financial security as well as maintain his political viability.

HARRIS said they could work out a three-way deal with SEIU and the President-elect where SEIU could help the President-elect with ROD BLAGOJEVICH’s appointment of Senate Candidate 1 to the vacant Senate seat, ROD BLAGOJEVICH would obtain a position as the National Director of the Change to Win campaign, and SEIU would get something favorable from the President-elect in the future.

d. One of ROD BLAGOJEVICH’s advisors said he likes the idea, it sounds like a good idea, but advised ROD BLAGOJEVICH to be leery of promises for something two years from now. ROD BLAGOJEVICH’s wife said they would take the job now. Thereafter, ROD BLAGOJEVICH and others on the phone call discussed various ways ROD BLAGOJEVICH can “monetize” the relationships he is making as Governor to make money after ROD BLAGOJEVICH is no longer Governor.

102. Later on November 10, 2008, ROD BLAGOJEVICH and Advisor A discussed the open Senate seat. Among other things, ROD BLAGOJEVICH raised the issue of whether the President-elect could help get ROD BLAGOJEVICH’s wife on “paid corporate boards right now.” Advisor A responded that he “think[s] they could” and that a “President-elect . . . can do almost anything he sets his mind to.”

ROD BLAGOJEVICH states that he will appoint “[Senate Candidate 1 [[Obama’s presumed favorite]]] . . . but if they feel like they can do this and not f**king give me anything . . . then I’ll f**king go [Senate Candidate 5].” (Senate Candidate 5 is publicly reported to be interested in the open Senate seat). ROD BLAGOJEVICH stated that if his wife could get on some corporate boards and “picks up another 150 grand a year or whatever” it would help ROD BLAGOJEVICH get through the next several years as Governor. . . .

104. On November 11, 2008, ROD BLAGOJEVICH talked with JOHN HARRIS about the Senate seat. ROD BLAGOJEVICH suggested starting a 501(c)(4) organization (a non-profit organization that may engage in political activity and lobbying) and getting “his (believed to be the President-elect’s) friend Warren Buffett or some of those guys to help us on something like that.”

HARRIS asked, “what, for you?” ROD BLAGOJEVICH replied, “yeah.”

Later in the conversation, ROD BLAGOJEVICH stated that if he appoints Senate Candidate 4 to the Senate seat and, thereafter, it appears that ROD BLAGOJEVICH might get impeached, he could “count on [Senate Candidate 4], if things got hot, to give [the Senate seat] up and let me parachute over there.” HARRIS said, “you can count on [Senate Candidate 4] to do that.”

Later in the conversation, ROD BLAGOJEVICH said he knows that the President-elect wants Senate Candidate 1 for the Senate seat but “they’re not willing to give me anything except appreciation. F**k them.”

UPDATE: If true, these allegations hint that Obama or his transition team were victims of an extortion/bribery attempt.

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Government Attempt to Get Newspaper Editorial Board Members Fired:

From the government's criminal complaint against Gov. Blagojevich (some paragraph breaks added):

13.... b. Defendants Rod Blagojevich and John Harris, together with others, offered to, and threatened to withhold from, the Tribune Company substantial state financial assistance in connection with Wrigley Field, which assistance Rod Blagojevich believed to be worth at least $100 million to the Tribune Company, for the private purpose of inducing the controlling shareholder of the Tribune Company to fire members of the editorial board of the Chicago Tribune, a newspaper owned by the Tribune Company, who were responsible for editorials critical of Rod Blagojevich ....

69. Intercepted phone calls reflect that Rod Blagojevich and John Harris, together with others, are corruptly using and threatening to use the powers of Rod Blagojevich’s office as Governor of the State of Illinois to exert financial pressure on the owners of the Tribune Company, the parent corporation of the Chicago Tribune newspaper, to fire Chicago Tribune editorial board members who were responsible for editorials sharply critical of Rod Blagojevich’s actions as Governor and, among other things, calling for his impeachment.....

72. On the evening of November 3, 2008, Rod Blagojevich talked to Deputy Governor A. Rod Blagojevich stated that he was concerned about possibly being impeached in the Spring and that the Chicago Tribune will be “driving” the impeachment discussion. Rod Blagojevich asked Deputy Governor A to check to see if the Tribune has recently “advocate[d]” that he be impeached. In fact, the Chicago Tribune recently had published editorials critical of Rod Blagojevich.

73. In another call between Rod Blagojevich and Deputy Governor A that occurred a short time later on November 3, 2008, Rod Blagojevich and Deputy Governor A discussed an editorial from the Chicago Tribune regarding the endorsement of Michael Madigan and calling for a committee to consider impeaching Rod Blagojevich. During the call, Rod Blagojevich’s wife can be heard in the background telling Rod Blagojevich to tell Deputy Governor A “to hold up that fucking Cubs shit... fuck them.” Rod Blagojevich asked Deputy Governor A what he thinks of his wife’s idea. Deputy Governor A stated that there is a part of what Rod Blagojevich’s wife said that he “agree[s] with.” Deputy Governor A told Rod Blagojevich that Tribune Owner will say that he does not have anything to do with the editorials, “but I would tell him, look, if you want to get your Cubs thing done get rid of this Tribune.”

Later, Rod Blagojevich’s wife got on the phone and, during the continuing discussion of the critical Tribune editorials, stated that Tribune Owner can “just fire” the writers because Tribune Owner owns the Tribune. Rod Blagojevich’s wife stated that if Tribune Owner’s papers were hurting his business, Tribune Owner would do something about the editorial board. Rod Blagojevich then got back on the phone. Rod Blagojevich told Deputy Governor A to put together the articles in the Tribune that are on the topic of removing Rod Blagojevich from office and they will then have someone, like John Harris, go to Tribune Owner and say, “We’ve got some decisions to make now.”

Rod Blagojevich said that “someone should say, ‘get rid of those people.’” Rod Blagojevich said that he thinks that they should put this all together and then have Harris or somebody go talk to the Tribune owners and say, “Look, we’ve got decisions to make now ... moving this stuff forward (believed to be a reference to the IFA helping with the Cubs sale) ... someone’s gotta go to [Tribune Owner], we want to see him ... it’s a political fuckin’ operation in there.” Deputy Governor A agreed and said that Harris needs to be “sensitive” about how he does it.

Rod Blagojevich said there is nothing sensitive about how you do it and that it’s “straight forward” and you say “we’re doing this stuff for you, we believe this is right for Illinois [and] this is a big deal to [Tribune Owner] financially” but what Rod Blagojevich is doing to help Tribune Owner is the same type of action that the Tribune is saying should be the basis for Rod Blagojevich’s impeachment. Rod Blagojevich said Tribune Owner should be told “maybe we can’t do this now. Fire those fuckers.”

Deputy Governor A suggested that Rod Blagojevich say, “I’m not sure that we can do this anymore because we’ve been getting a ton of these editorials that say, look, we’re going around the legislature, we gotta stop and this is something the legislature hasn’t approved. We don’t want to go around the legislature anymore.” Rod Blagojevich agreed and said that he wants Harris to go in and make that case, “not me.” Deputy Governor A agreed and said that he likes it. Rod Blagojevich asked Deputy Governor A to put the list of Tribune articles together....

76.... Rod Blagojevich stated that “our recommendation is fire all those fucking people, get ‘em the fuck out of there and get us some editorial support.”

There’s a good deal more factual detail in the complaint — have a look if you're interested. Thanks to Sean Parnell of the Center for Competitive Politics for the pointer.

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SEIU ties in the Gov. BLAGOJEVICH Complaint.

I've been trying to sort out in my mind what SEIU's involvement might be. Here are the main SEIU-related allegations of facts supporting the government's complaint:

109. On November 12, 2008, ROD BLAGOJEVICH spoke with SEIU Official, who was in Washington, D.C.

Prior intercepted phone conversations indicate that approximately a week before this call, ROD BLAGOJEVICH met with SEIU Official to discuss the vacant Senate seat, and ROD BLAGOJEVICH understood that SEIU Official was an emissary to discuss Senate Candidate 1’s interest in the Senate seat.

During the conversation with SEIU Official on November 12, 2008, ROD BLAGOJEVICH informed SEIU Official that he had heard the President-elect wanted persons other than Senate Candidate 1 to be considered for the Senate seat.

SEIU Official stated that he would find out if Senate Candidate 1 wanted SEIU Official to keep pushing her for Senator with ROD BLAGOJEVICH. ROD BLAGOJEVICH said that “one thing I’d be interested in” is a 501(c)(4) organization. ROD BLAGOJEVICH explained the 501(c)(4) idea to SEIU Official and said that the 501(c)(4) could help “our new Senator [Senate Candidate 1].” SEIU Official agreed to “put that flag up and see where it goes.”

110. On November 12, 2008, ROD BLAGOJEVICH talked with Advisor B.

ROD BLAGOJEVICH told Advisor B that he told SEIU Official, “I said go back to [Senate Candidate 1], and, and say hey, look, if you still want to be a Senator don’t rule this out and then broach the idea of this 501(c)(4) with her.”

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[David Schleicher, guest-blogging, December 9, 2008 at 12:43pm] Trackbacks
Why Is There No Partisan Competition in City Council Elections? Why The Fact That Most Residents Are in One Party Can't Explain the Phenomenon:

As I noted in my last post, there have been a few efforts to explain the lack of partisan competition in city council elections. Probably the most intuitive explanation is that, in most big cities in the country, most residents vote for Democratic candidates for President, so why shouldn’t they vote exclusively for Democratic candidates for City Council?

It is true that in almost all major American cities, one party is dominant. However, as I argue here, this, it turns out, can’t explain the lack of competition either, at least on its own. In order for national political preferences to explain the lack of competition at the local level, we would need a reason why the party that is in the minority locally doesn’t change its stripes – at the local level – to become more attractive. That’s what Downs would predict, yet it doesn’t happen at the local level.

One reason that a local party might not do this is that national parties exert extremely strong control over local branches to stop them from modifying their platforms in order to compete. It is a bit unclear why a national party would do this – after all, they generally want their local branches to succeed. That said, there certainly are some disciplining forces, notably the limits local dissenters have when trying to climb the electoral ladder.

However, even if parties do exert control over their local branches, stopping them from deviating from the national party too dramatically, local segregation by national party preferences could explain the complete and total lack of local party competition in City Council elections only if preferences on national issues and local issues are extremely consistent. If they are not, the majority party’s coalition would fracture occasionally, leading a group of dissident majority party members into the hands of the local minority party now and again. When combined with the ability of the local minority party to deviate for national dictates somewhat, national preferences could only explain the lack of local competition if Democrats and Republicans form clear and very distinct groups at the local level on local issues.

Although the data is a bit spotty, what information we do have shows that preferences on national issues are not strongly tied to preferences on local issues. In the paper, I present all sorts of evidence -- polling data, studies of turnout -- that shows this. One notable piece of evidence comes from newspaper editorial boards. These boards can be presumed to have informed, complete preferences on political issues. If they have different endorsement patterns in national and local elections, it would suggest that national party preferences do not predict local policy preferences all that well. And indeed this is the case. Newspapers with heavy Democratic tilts in federal elections – like the New York Times or Newsday – have substantially less pronounced tilts at the local level. On the other hand, the Daily News, which has been consistently pro-Republican in New York City local elections, has a very slight pro-Democratic endorsement pattern in federal elections.

Further, the “they’re all in one party anyway” concept can’t explain the divergence between executive and legislative levels of competitiveness. And, moreover, the idea that national and local preferences track one another closely just doesn’t pass the sniff test. On key local issues, one cannot identify the Democratic or Republican position. Mayoral control of the schools? Broken Windows policing? Using zoning policy to limit substantially the heights of buildings or to require large minimum lot sizes for houses? Bond issues for stadiums? This is the stuff of local politics, and there is little consistency across party members on these and other key urban issues.

Preferences on local issues just don’t track preferences on national issues very closely. And as a result, they cannot explain the total lack of partisan competition in City Council elections – at least by themselves. Tomorrow, I’ll attempt to sketch an understanding that does.

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"Justice May Be Blind, but in San Antonio It's Naked, Too":

So reports the Associated Press, discussing a restored sculpture that is "on display ... in front of the Bexar County Courthouse." The naked — except for the blindfold — 4-foot sculpture was apparently bought by Bexar County in 1896. Jenny B. Davis (Tex Parte Blog) has more on the statue's history.

Thanks to How Appealing for the pointer.

UPDATE: For the classic naked statue joke, though one completely unrelated to justice -- except the poetic kind -- see here.

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Holiday Sale: An Open Senate Seat From Illinois.

A portion of the criminal complaint against Illinois Governor Rod Blagojevich is on Smoking Gun.

I’ve never met Blagojevich, but I once met the man who made him Governor, David Axelrod. In the primaries, Blagojevich beat a good man (whom I was favoring), Chicago Public Schools Superintendent Paul Vallas. Vallas had done a terrific job improving Chicago schools, while fighting some of the very different school reforms of the three foundations on which Bill Ayers and Barack Obama worked together. But, as we’ve seen in the last year, Axelrod is a master campaign manager and Blagojevich ran on a platform of change – more particularly, ending “pay to play.”

Not only does the complaint refrain from making allegations of wrongdoing by Obama and the Obama transition team, at one point Blagojevich is recorded expressing frustration with the idea that Obama might expect his Senate candidate to be appointed without giving anything in return except gratitude.

The most interesting of the allegations involves SEIU, the ACORN-related union that has been close to Obama for many years. It appears that SEIU might have been pushing for the Senate slot the candidate whom Obama was thought to support. The complaint does not identify that candidate, though she is described as female and an Obama aide. My guess from clues is that she is Valerie Jarrett, who may have pulled out from consideration.

Eventually, Blagojevich was angling for one of two possibilities:

1. Obama to set up a $10 to $20 million non-profit organization for Blagojevich to run after he left office, perhaps with money from Warren Buffet or Bill Gates.

2. A three-way deal in which Blagojevich appoints Obama’s choice as Senator and SEIU hires Blagojevich’s wife for its Change to Win organization, and then hires Blagojevich to run Change to Win when he leaves office for several hundred thousand dollars a year.

The complaint alleges that Blagojevich did meet with SEIU about the Senate seat, but it's unclear whether any corrupt deal was discussed with SEIU.

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Does the Proposed Auto Bailout Violate the Petition Clause of the First Amendment:

The proposed bill provides, among other things,

(g) WITHDRAWAL FROM CERTAIN ACTIONS. — The terms of any financial assistance under this Act shall prohibit the eligible automobile manufacturer from participating in, pursuing, funding, or supporting in any way, any legal challenge (existing or contemplated) to State laws concerning greenhouse gas emission standards.

My friend, Notre Dame lawprof Rick Garnett, asks: Does this violate the First Amendment? Here are a few tentative thoughts:

1. The Petition Clause: To begin with, filing nonfrivolous lawsuits is generally protected by the First Amendment, which protects "the right of the people ... to petition the Government for a redress of grievances." This is solidly established First Amendment law. I can't speak to any original meaning evidence on the subject (since I haven't investigated the matter), but the precedent is clear.

2. Conditioning Grants on Refraining from First Amendment-Protected Activity: It's also well established that the government generally may not condition a grant of money on the speaker's refraining from the use of the speaker's own unsubsidized money for First Amendment-protected activity. That's the holding of FCC v. League of Women Voters (1984). (League of Women Voters was a 5-4 decision, but one the Court has not retreated from, and has indeed cited favorably.) The government is free to attach certain strings (though not all strings) to the use of government-provided money. That's what justifies the decision in Rust v. Sullivan allowing the government to subsidize only speech about contraceptives and not speech about abortion, the limits on electioneering by nonprofits that benefit from the charitable tax exemption, and the like. But the government generally can't limit what subsidy recipients do with money they get from nongovernmental sources.

To be sure, because money is fungible, this League of Women Voters principle in effect does stop the government from making sure that its subsidies aren't indirectly used for certain speech. If the government gives someone $1 million, and the speaker continues speaking using what is ostensibly its own money, that speech will still be much facilitated by the government grant — the $1 million will free up money that the recipient would otherwise have had to spend, and will let the recipient use that freed-up money for its own speech. But the Court considered that argument in League of Women Voters and rejected it.

3. Ban on Viewpoint Discriminatory Conditions Attached Even to Government-Provided Money (So Long as The Money Is Used for Private Speech): It's also possible that the government may not attach viewpoint-discriminatory conditions to the use of its own money, so long as the money is used for private speech — which would here include petitioning the government via the court system — rather than the government's own speech. That's suggested by Legal Services Corp. v. Velazquez (another 5-4 opinion). But Locke v. Davey concludes that this principle is limited to programs that are intended to "encourage a diversity of views from private speakers." Given that the funding program here is aimed not at encouraging a diversity of views, but rather at funding GM's general operation (incidentally including a wide range of GM litigation and speech that would normally happen in the course of GM's general operation, except for this one particular kind of litigation position on GM's part), perhaps Locke v. Davey governs instead of Velazquez.

* * *

In any case, those are my tentative thoughts on the subject. Some of the cases I cite were controversial when decided, and may remain controversial now; nor do I vouch for their correctness as a matter of sound constitutional logic. Moreover, while there are structural similarities between this situation and some of the past cases, it's pretty clear that they were decided in contexts vastly different from this one, and it's not clear how far the Court would take those cases' logic here. Finally, it's odd that the government would be free to constrain GM's speech if it simply nationalized it — or, if you prefer, bought all its stock — but not if it took the less intrusive step of offering it various financial benefits (though that might be an oddity that is an inherent part of unconstitutional conditions doctrine in this area).

So I don't know what should be the right result as a matter of deep constitutional principles, or even what is doctrinally mandated here. But I hope that the cases I cite above provide something of a starting point for analysis.

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District Court Suggests Second Amendment May Protect Possession of Firearms in Public:

From Lund v. Salt Lake City Corp., 2008 U.S. Dist. LEXIS 98722 (D. Utah Dec. 4):

By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution and Article I, § 6 of the Utah Constitution (recognizing the "individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes," subject to the power of the Legislature to define the "lawful use of arms."). See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008) ("There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.") ....

This doesn't contradict the Heller Court's assertion that concealed carry might be limited on the historical grounds that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

Here are a few excerpts from the rest of the decision, that help show what this Fourth Amendment case was about:

On November 25, 2006, plaintiff Miles Lund was visiting Liberty Park, a public park located in downtown Salt Lake City, and feeding the ducks that gather on the large pond in the southeast quadrant of the park. Responding to a report of a man with a gun at the park, Officer Curdie arrived, identified Lund as the suspected man with a gun, and approached Lund from behind. When Officer Curdie first saw Lund, he was facing away from Curdie and feeding the ducks in the pond. Curdie drew his firearm, pointed it at Lund and verbally ordered Lund to raise his hands above his head. Lund heard an officer say "Get your hands up or I'll shoot you," placed his left hand on his head, and told Officer Curdie that he was physically unable to raise his right arm above his head. Lund held his right arm away from his body, as high as shoulder level, but could not reach his head. Officer Curdie ordered Lund to go into a kneeling position. Again, Lund told Curdie that he was physically unable to get into a kneeling position. Lund made no hostile or threatening movements or gestures while responding to Officer Curdie's commands, and was described by one witness as being very cooperative.

At the same time, Officers Max Nelson, Jeremy Crowther, Christopher Johnson and Jeremie Foreman had arrived at the scene, and Officers Nelson and Crowther drew their weapons and also held Lund at gunpoint. Officer Nelson told Officer Curdie that he wanted to have Officer Crowther place Lund under arrest. Disregarding this, Officer Curdie holstered his weapon, approached Lund from behind, pinned Lund's arms and shoulders in a "bear hug" embrace and knocked Lund to the ground. Lund's head hit the ground, sustained an abrasion to his forehead and broke his glasses. He was then handcuffed, lifted by the handcuffs, dragged across the sidewalk and placed roughly on a park bench. He then fell off the bench to the ground, in extreme pain caused by the handcuffs forcing his immobile right shoulder into posterior extension.

Lund was found to have no weapon of any kind on his person, and was subsequently released without charge. He was subsequently diagnosed in March of 2007 as having a large intracranial hematoma that more likely than not was the result of his head striking the ground on November 25, 2006, and required surgical treatment....

No one at the scene had observed Lund carrying, brandishing or threatening anyone with a firearm or other weapon in any fashion, and no weapon was found. [Footnote call to the footnote about gun rights that I quoted above; the footnote also discusses Utah statutes' general provision for licensed concealed carry. -EV] Moreover, Officer Curdie was not alone in facing the perceived threat of an unseen weapon. Other officers were present at the scene, two of whom were already holding Lund at gunpoint when Officer Curdie decided to tackle him to the ground. All of them were available to assist Curdie in taking Lund into custody. According to plaintiff Lund's factual allegations, here taken as true, Lund had complied with Officer Curdie's commands as best he could, explained why he could not fully comply and made no threatening movements or gestures towards Curdie or anyone else at the scene. Lund did not actively resist arrest; nor did he attempt to evade arrest by fleeing the scene.

By pointing their weapons at Lund, the officers made an immediate threat of use of deadly force -- which itself represents the use of force under the Fourth Amendment -- in seizing Lund and taking him into custody. See Holland ex rel. Officer Curdie decided to further escalate that use of force by physically taking Lund down to the ground, based upon facts from which Curdie inferred an immediate risk of injury -- factual allegations that Lund disputes. Based upon plaintiff Lund's version of the facts, and considering factors such as the severity of the alleged crime at issue, whether Lund posed an immediate threat to the safety of the officers and others, and whether Lund was actively resisting arrest or attempting to evade arrest by flight, Curdie's escalation of the use of force in taking Lund into custody was unreasonable and excessive....

22 Comments

District Court Upholds Ban on Machine Gun Possession:

See U.S. v. Hamblen (M.D. Tenn. Dec. 5):

At the same time it recognized a Second Amendment right for an individual to bear arms, the Heller Court limited the scope of that right within the context of its own opinion:

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

* * *

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. United States v. Miller, 307 U.S. 174 (1939), said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’

Thus, the Heller Court made clear that the Second Amendment right it recognized did not include possession of weapons by certain categories of individuals, or possession of weapons in certain places, or possession of certain types of weapons. The Court specifically discussed the types of weapons that were not protected by the Second Amendment in distinguishing the Miller case:

Read in isolation, Miller’s phrase ‘part of ordinary military equipment’ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.... We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns....

The conclusion that the Heller Court did not extend Second Amendment protection to machine guns, in particular, is supported by the lower federal courts that have addressed the issue. In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant’s possession of a machine gun was not protected by the Second Amendment under Heller: “Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.”

In United States v. Gilbert, 286 Fed. Appx. 383, 2008 WL 2740453 (9th Cir. July 15, 2008), the Ninth Circuit approved a jury instruction that an individual does not have a Second Amendment right to possess a machine gun or a short-barreled rifle. The court explained that under Heller, “individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did ...” The Petitioner argues that the limitations placed on the Second Amendment right to bear arms by the majority opinion in Heller can not square with the Court’s earlier decision in Miller. Whatever merit there is to that argument, however, this Court is bound by the Heller opinion as written.

46 Comments

Yankees Ask for $259 Million in Additional Government-Backed Bonds for New Stadium:

During recessions, many people have to make do with less money than usual. But not major league baseball owners. The New York Yankees have just asked New York City for an additional $259 million in tax-exempt government-backed bonds to finance the construction of their new stadium. This comes on top of the $940 million in previously approved bonds and up to $450 million in direct government spending on the project. Even prior to the current funding request, the new Yankee stadium had already gotten more government subsidies than any other stadium project in American history. The rival Mets are also asking for additional government bond for their new stadium, albeit a much smaller amount.

I previously criticized government funding of the new Yankee Stadium here, here, and here. In my first post on the subject two years ago, I summarized the overwhelming evidence that sports stadium construction provides few if any broader economic benefits to the community, and noted that Yankees ownership chose to build the new stadium primarily because it will increase luxury box revenue for the team. The old Yankee Stadium - built entirely with private funds - was perfectly adequate for most fans' needs, and indeed a great place to see a game. Unlike in some other cases, the government officials who granted the money can't even claim that the team would leave the city if they refused. It's not as if the Yankees would depart the biggest and most lucrative market in all of baseball.

In fairness to the Yankees, many other professional sports teams have successfully lobbied for government subsidies for their stadiums. The Yankees have managed to extract more money than any of the others. But it's more a difference in degree than kind.

UPDATE: New evidence suggests that public financing for the new Yankee Stadium was secured in part by promising free luxury box seats and other perks to aides of NYC Mayor Michael Bloomberg:

When it comes to getting a luxury box at the new Yankees and Mets stadiums, Mayor Michael Bloomberg's aides appear willing to play ball.

Recently released internal e-mails between the mayor's aides, city lawyers and Yankees officials show that City Hall gave the team even more parking spaces than had been negotiated previously, plus the rights and revenue from three billboards near the stadium in exchange for a suite.

For months, the city had publicly played down the importance of having exclusive use of the suite, but the e-mails obtained and released by state Assemblyman Richard Brodsky show luxury boxes in both ballparks were "a big issue to the mayor," as one official put it....

When city officials were angling for exclusive suites, their list of demands included perks such as free food, the e-mails show.

"Yankees said they don't want to pay for food for our suite," wrote Seth Pinsky, who was then the executive vice president of the city's Economic Development Corp., in an e-mail to Dan Doctoroff, then a deputy mayor. "My position is: if others get food with their suites, so should we."

In a separate conversation, city lawyer Joseph Gunn wrote Yankees officials to say, "if others get food as part of a base price, then so does nyc." It wasn't clear whether the Yankees gave in.

Related Posts (on one page):

  1. Yankees Ask for $259 Million in Additional Government-Backed Bonds for New Stadium:
  2. Where Dennis Kucinich and I Agree:
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May a Court Consider, in Denying Bail, That Any Jewish Defendant Is Entitled to Israeli Citizenship and May Therefore More Easily Flee?

That's the issue in U.S. v. Rubashkin, a magistrate judge's bail decision that relies partly on the statement that,

Under Israel's "Law of Return," any Jew and members of his family who have expressed their desire to settle in Israel will be granted citizenship.

Nor does the opinion point to other factors that closely link Rubashkin to Israel, the way that any defendant could be closely linked to a foreign country in which he has lived a long time; the focus is on Rubashkin's ethnicity and the legal consequence that it has in Israeli law, not on his citizenship or his past life history.

The court does point out that "It is believed that [someone else who might have been in on the same crime,] Hosam Amara, a Muslim with Israeli citizenship, fled to Israel, possibly through Canada," that defendant had traveled to Canada recently, and that there was other evidence suggestive of a possible desire to flee. But it's pretty clear that the Israel link in the opinion was based not on the person's actual connections to Israel but rather his being Jewish and thus being eligible for Israeli citizenship.

I'm inclined to agree with the memorandum in support of the defense motion challenging this on constitutional grounds. Whatever might be the proper consideration of race or religion in investigation, or even in brief stops, it seems to me that it can't be considered in deciding on a defendant's presumptive constitutional right to bail. And, as the memorandum argues,

[T]here are clearly narrower, tailored measures, that would be effective rather than subjecting Jews to a different set of standards. Rather than locking Jews up with greater frequency, the United States could rely on the general array of bail conditions, and then utilize the valid, streamlined, regularly-invoked extradition treaty with Israel in those few cases where the defendant actually flees. Certainly it is better to have the government on rare occasion be forced to resort to this streamlined extradition treaty than to brand over five million Americans as bail risks. The government should not be permitted to invoke the Law or Return in the case of every Jewish defendant, including defendants who may not be aware of it, or have no interest in moving to Israel. Otherwise, the government slurs Americans because of a law passed by a foreign country over which these Americans have no control and which they may have no desire to invoke.

Naturally, it would be interesting to see any government documents in the case, especially if they suggest some backstory that would cast the magistrate judge's detention order in a different light. My quick search through the docket, though, revealed no such government documents, and the government response to the defense motion is not due for some time yet. If any readers have more on this story, please let me know. And if you yourself want to know more about the details of the case, check out the documents I linked to above. (If you're curious, the defendant is accused of various charges related to bank fraud and to immigration violations — and related immigration fraud — by the employees of the kosher meat packing and food processing company that he ran.)

Thanks to Religion Clause for the pointer.

Related Posts (on one page):

  1. Bail Granted in Rubashkin:
  2. May a Court Consider, in Denying Bail, That Any Jewish Defendant Is Entitled to Israeli Citizenship and May Therefore More Easily Flee?
54 Comments

The Misconceived Assumption About Constitutional Assumptions: My paper, The Misconceived Assumption About Constitutional Assumptions, has now been posted to SSRN. It addresses what has, for me, been a vexatious issue concerning the original meaning of the Constitution: speaking solely descriptively, does this meaning include the background assumptions held (by whom?) at the time the writing was enacted and/or amended? This turned out to be a surprisingly difficult question to answer, but is essential for anyone who is interested in the content of original meaning--whether to embrace or reject that content as binding on interpreters today. Here is an abstract of the paper:
Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.

In this paper, I examine the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and controversies. Rather than present a normative argument on behalf of originalism, I merely try to identify what the original meaning of the text really is--in particular, the circumstances in which background assumptions become a part of that meaning. While this analysis should be of obvious interest to originalists, it should also be of interest to any nonoriginalist who believes that the original meaning of the text is at least one factor or "modality" of constitutional interpretation to be balanced against other considerations.

In Part I, I explain how express and implied in fact terms provide the meaning of both written contracts and written constitutions. In Part II, I distinguish this meaning of the text from the background assumptions that can result in the failure of a contract when circumstances arise about which the text is silent. Unlike contracts, however, with constitutions "failure" is not an option. Further, while background assumptions can be relevant to interpreting the meaning of ambiguous terms in both contracts and constitutions, most sustained disputes over constitutional terms concern, not the interpretation of ambiguity, but the construction of terms whose meaning is vague.

In Part III, I consider how one's approach to the construction of vague terms will depend on one's theory of constitutional legitimacy-that is, what makes a constitution "binding." If, like contracts, the legitimacy of constitutions is based on original consent of the governed then, as with contracts, background assumptions can be viewed as silently conditioning that consent. On the other hand, if constitutional legitimacy is based on the justice of imposing laws on a nonconsenting public, then odious background assumptions are irrelevant to construing vagueness. This divide is illustrated by the antebellum debates over the constitutionality of slavery. Finally, in Part IV, I apply this analysis to three background assumptions: (1) that there are unenumerated natural rights, (2) that there is an unenumerated police power of states, and (3) that certain interpretive methods would be employed by courts.
Download it here.
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[David Schleicher, guest-blogging, December 9, 2008 at 5:40am] Trackbacks
The Lack of Partisan Competition in City Council Elections? The Problematic Current Explanations:

As I noted in my last post, the absence of partisan competition in city council elections in big cities at the seat-by-seat level or for control of overall local legislatures poses a substantial challenge to our understanding of what parties do. Although under-studied, people have attempted to explain why there is no such competition before.

These explanations come in two flavors, one focusing on the types of issues in local politics and the other focusing on the voters who make up the local electorate. As I explain in my paper, I don’t think either of them provides an adequate explanation for the lack of competition in these elections – but let’s take each of them in turn. (I’ll handle the first in this post and the next in a subsequent post).

Explanation 1: “There is No Democratic or Republican Way to Pick Up Garbage.”

The quote is attributed to Fiorella LaGuardia, but the sentiment is common – local issues are somehow inherently non-political. Economist Paul Peterson formalized this intuition in his influential book City Limits. He argued that the threat of exit meant that cities can’t redistribute wealth – you can’t tax Peter to spend on Paul because Peter will just leave town. The result was that local government policy is limited to providing universally-desired public services and goods and allocating them among the citizenry, like funding a public park and putting it a neighborhood. Debate over these “developmental” and “allocational” policies, though, can’t give rise to political party divisions, as “developmental” policies do not inspire disagreement, and allocational policies only inspire neighborhood vs. neighborhood conflict, or ethnic group conflict and not the ideological conflict that is necessary for political party competition.

The theory is neat, but it has a problem: there is no reason to believe it’s true.

First, although the threat of exit limits redistributionary policies, exit is less of check on local policies the denser and bigger cities get. The reason is what economists call “agglomeration economies,” (i.e. the attraction to living to close to other in terms of reduced transportation costs for goods, access to large labor markets and knowledge spillovers), which mobile residents balance against “congestion costs” (e.g. the cost of housing, the increased incidence of crime in dense areas). In a place like New York or Chicago, while public policies still effect whether people leave the city, the benefits of urbanity and the costs of congestion make up a big part of the decision about where to locate – bigger at least than a citizen choosing between two suburbs. (Studies of the Tiebout model -- based on similar intuition -- show that there is more capitaliztion of policies into home prices in the suburbs than in dense urban areas). This means that, particularly when combined with transaction costs of moving, big cities have more policy slack than Peterson acknowledges.

However, that’s not the big problem with Peterson’s theory. Even accepting Peterson’s premise, there is no reason to believe that “developmental” policies – the provision of public and club goods – can’t give rise to partisan politics. At the national level, there are partisan debates about the provision of public goods all the time. National defense is a public good, but differing views of it are, quite naturally, part of the division between the two major national parties.

Put a bit more formally, there is no reason there cannot be partisan debates about how a given public good or service can best be provided and whether something is, in fact, a useful public good. There are certainly such debates between scholars and between cities (and no evidence of sorting based on preferences for means of providing these goods). For instance, there is a long-running debate about whether broken windows policing reduces crimes more or less than community policing or other police strategies. Or take the question of what produces local economic growth: Richard Florida and Joel Kotkin have continuously argued for more than a decade about (and advised cities on) what types of policies are likely to create a conducive atmosphere for business and entrepreneurship, giving entirely opposite prescriptions. People disagree about which policy is most likely to produce a desired end – low crime, a good local business climate. This could be the subject of partisan debate, and hence generate policy competition between the parties, but it just doesn't.

Similarly, there are all sorts of urban policy debates about what is a useful developmental policy. Should local schools be used to promote civic responsibility? Are orderly, organized cities along the City Beautiful ideal better or worse than the seemingly-disorganized “sidewalk ballet” Jane Jacobs noticed in her West Village neighborhood? Is it nicer to live in a city with a major sports team, and hence fund a stadium with local taxes, or to live in a city without one? Debate on both of these types of questions rage among scholars and activists, between cities, and even occasionally in big-time Mayoral races, and there is no reason why political parties couldn’t line up on one side of these issues or another. But they do not.

The absence of partisan competition in local elections can’t be explained solely by the types of issues at stake in local elections – there needs to be another explanation.

12 Comments

An Analysis of United States v. Comprehensive Drug Testing: On December 18th, the en banc 9th Circuit will hear oral argument on an important case involving how the Fourth Amendment applies to the search and seizure of computers. You can read the revised panel decision here, and download the petition for rehearing here (5.2mb). I've written a lot about these issues and I worked extensively on them back was at the Justice Department in 1998-2001. Given my writing and past work in the area, I wanted to blog some thoughts about the case.

I. The Facts

  The facts of the case are quite complicated, but here at the basics. The government has been investigating steroid use in baseball, and it obtained warrants for computers owned by the third party company, Comprehensive Drug Testing, that ran the steroid tests. The warrant sought the records of 10 specific players, combined with any "[a]ll manuals, pamphlets, booklets, contracts, agreements and any other materials detailing or explaining" the "administration of Major League Baseball’s drug testing program."

  During the execution of the warrant, much of the day was spent in negotiation between the government and CDT as to exactly where the information was located and how it could be copied. The government ended up not taking any equipment, but it did copy a directory of files, called the Tracey directory, that contained a lot of records beyond the mere 10 specific players sought in the warrant. There is some dispute among the parties (and the judges in the panel opinion) as to why the government copied the entire directory rather than stay onsite and only copy the records of the 10 players. Although the facts are kind of unclear on this, it looks like the government ended up looking through the Tracey directory for evidence within the scope of the warrant, and then discovered lots of stuff involving other players' steroid use and sought to expand the investigation on that basis.

  In this case, CDT and the Major League Players' Association have challenged the search warrants and the expanded investigation, arguing on behalf of the other players' interests. Rather than waiting for charges to be filed, which would then lead to a motion to suppress, the groups are trying to assert the Fourth Amendment rights of the unindicted players outside the scope of the initial 10 players using the procedural vehicle of a Rule 41 motion for the return of property unlawfully seized. The question is, should the motion be granted and the investigation preemptively stopped in its tracks? Or should the government be allowed to proceed?

II. Introduction to the Two Big Issues

  This case is particularly interesting because it ends up at the intersection of two distinct problems that I used to deal with a lot when I worked at the Justice Department. As I noted in an earlier article on computer warrants, computer warrants are usually executed in two stages: the physical search stage and the electronic search stage. First, the government goes and takes the files away (the physical stage), and second, the governments searches through the files obtained for the evidence sought by the warrant (the electronic stage). This raises two distinct problems in cases like CDT. At the physical stage, the problem is how to minimize the intrusiveness of the on-site search at operating third-party business. At the electronic stage, the problem is how to minimize the intrusiveness of the off-site search.

34 Comments

Pride and Prejudice, the Facebook Feed: It's here, via Kieran Healy.
4 Comments

Monday, December 8, 2008

Greg Maddux Retires:

Although it is a deviation from our normal focus on law and politics, I thought I would take this opportunity to note Greg Maddux's retirement from baseball. Maddux's record shows that he was probably the greatest pitcher of the post-World War II era. He won 355 games (more than any other postwar pitcher) finished with a 3.16 ERA an impressive 32% better than league average, and won four straight Cy Young Awards. In the postwar era, his peak period (roughly 1992-98) is equalled only by the peak years of Pedro Martinez, Sandy Koufax, and Roger Clemens. Of these, only Clemens also matched Maddux' longevity. Clemens' career stats are probably slightly better than Maddux's. However, we now know that the last 10 years of Clemens career were tainted by steroids use, which leaves Maddux as clearly the best clean pitcher of his era.

Maddux also is impressive because he achieved all this without having a great arm by major league standards. He's an inspiration to overachievers everywhere.

78 Comments

Is Arnold Evidence of "Ideological Warfare"?

The WaPo article I noted below on ideological divisions on the U.S. Courts of Appeals highlights the case of United States v. Arnold as an example of [how] President Bush's nominees have altered the ideological balance of the Sixth Circuit.

In June 2005, two federal appellate judges here ordered Joseph Arnold released from a 21-year prison sentence after ruling that there was no credible evidence he had threatened to shoot his girlfriend's daughter with a pistol.

But Arnold's relief was fleeting. Prosecutors appealed to all of the judges on the U.S. Court of Appeals for the 6th Circuit. And the full court, dominated by appointees of President Bush and other Republican presidents, reversed the initial appellate ruling, saying the evidence presented by prosecutors was sufficient to merit Arnold's conviction.

While there are quite a few cases in which the Sixth Circuit divided [purely] along political lines (several of which have been the subject of VC blog posts), Arnold is not among them. All four dissenters were Democratic nominees, and six of the seven judges who signed Judge Jeffrey Sutton's majority opinion in full were Republican nominees, but the seventh was Clinton-nominee Martha Daughtrey. Furthermore, two judges — Eric Clay (Clinton) and Richard Griffin (Bush 43) — concurred in part and dissented in part. [What confounds the Arnold-as-political-split narrative even further is that Judge Daughtery is generally considered a quite liberal judge Ronald Lee Gilman, who dissented, is generally considered the most moderate of the Clinton nominees to the court. So Arnold is not a case of a stereotypical right-left split.]

Another curiosity about the piece is that there is little mention of the longstanding nature of ideological divisions on the Sixth Circuit — divisions (and associated allegations of judicial misconduct) that pre-date the confirmation of many Bush nominees. Nor is there any mention of allegations that some activists sought to delay the confirmation of Bush nominees to the Sixth Circuit with an eye toward influencing particular cases. [My point is not to down play the division on the Sixth Circuit divisions — I've posted on it extensively (and was even quoted in the Post story. But I do not think the Sixth Circuit's divisions are due to Bush's nominations.

Ed Whelan has more on the article here.

UPDATE: I've revised the post a bit as indicated.

FURTHER UPDATE: It also seems to me that Arnold is a relatively poor example of how Bush's judicial nominations have altered the Sixth Circuit's balance. As discussed above, Arnold did not involve a typical ideological split among the judges. Nor does it represent a recurring issue on which the court's doctrine has changed over time as the court's ideological balance has shifted. In this regard, I think a case involving an ineffective assistance of counsel claim and/or the application of AEDPA to habeas claims would would have better illustrated the Post article's point. These are issues that clearly divide the Democratic and Republican nominees on the court, and they are issues on which the Court's approach has changed due to changes in its composition.

Patterico has more on the Post's treatment of the Arnold case here.

Related Posts (on one page):

  1. Is Arnold Evidence of "Ideological Warfare"?
  2. "Ideological Warfare" on the Sixth Circuit:
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KopBusters Reality Show: RawStory has an interesting post on what apparently is a new reality show, KopBusters. As I understand it, the idea behind the show is to give police officers an opportunity to engage in misconduct: If an officer takes the bait, the show films the officer engaging in the misconduct and creates a show about it. [UPDATE: Some of the details about the show and the first episode seem sort of fishy at this stage, so perhaps it is best to approach this story with a healthy skepticism.]

  KopBusters describes their first episode as follows:
  KopBusters rented a house in Odessa, Texas and began growing two small Christmas trees under a grow light similar to those used for growing marijuana. When faced with a suspected marijuana grow, the police usually use illegal FLIR cameras and/or lie on the search warrant affidavit claiming they have probable cause to raid the house. Instead of conducting a proper investigation which usually leads to no probable cause, the Kops lie on the affidavit claiming a confidential informant saw the plants and/or the police could smell marijuana coming from the suspected house.
  The trap was set and less than 24 hours later, the Odessa narcotics unit raided the house only to find KopBuster's attorney waiting under a system of complex gadgetry and spy cameras that streamed online to the KopBuster's secret mobile office nearby.
  The attorney was handcuffed and later released when eleven KopBuster detectives arrived with the media in tow to question the illegal raid. The police refused to give KopBusters the search warrant affidavit which is suspected to contain the lies regarding the probable cause.
H/t: FourthAmendment.com

  UPDATE: You can watch a local TV news segment about show and this particular sting here.

Related Posts (on one page):

  1. KopBusters Hoax Looks Like It Was a Hoax Itself:
  2. KopBusters Reality Show:
61 Comments

MySpace Founder Lied About Age on His MySpace Profile, Violating Terms of Service: This is old, but pretty interesting if you're following the Lori Drew case.
49 Comments

Bush Administration Imperils Last of the Legislative Vetoes:

Last week, the Bureau of Land Management announced the repeal of a regulation that required the emergency suspension of mining on BLM lands. The Center for Biological Diversity immediately decried this "last-minute attempt to roll back environmental regulations." The CBD and other environmental groups had filed suit to enforce the regulation so as to prevent uranium mining near the Grand Canyon.

On the surface, this action would seem to fit a familiar narrative about the Bush Administration's last-minute efforts to relax environmental regulations for industry's benefit. Digging a bit deeper reveals something more. The BLM's move may please the mining industry, but it also eliminates a deeply troubling — and almost certainly unconstitutional — regulation from the books.

The regulation allowed one of two Congressional committees to force the BLM to alter the treatment of designated federal lands when either committee determined there were "emergency" circumstances. In effect, a single Congressional committee could, acting alone, overrule administrative action and alter the legal status of existing mining claims. If a unicameral legislative veto is unconstitutional, as the Supreme Court held in INS v. Chadha, then a unilateral congressional committee veto is clearly out of bounds as well.

Interestingly enough, the regulation had been on the books for quite some time. While its constitutionality had been challenged, it had escaped judicial invalidation largely because the few courts that looked at it were able to avoid confronting the provision head on. In any event, were a court to consider it now — perhaps in the CBD's challenge to the uranium mine mentioned above — I don't think there's much question it would agree with the Bush Administration that this regulation had to go.

17 Comments

Buy My Book!!

After having worked on it for about a dozen years of so (more like fourteen, but who's counting?), my book, In Search of Jefferson's Moose: Notes on the State of Cyberspace, is finally going to see the light of day some time around the middle of January.

The book has a simple premise: to recreate Jefferson’s analysis of the New World (as he set it forth in his Notes on the State of Virginia) for the "new world" of cyberspace. It sounds pretty outlandish, and I guess it is — but I think it actually works pretty well (though I leave that to you to decide that for yourself). Along the way, we uncover some pretty interesting things about the Internet, and about Jefferson — about network design, Jefferson’s plan for governing the Western Territory, about the protocol stack and the canals of France, about distributed routing, end-to-end design, and the Louisiana Purchase. And about why Jefferson had a moose shipped to him in Paris while he was serving as US minister to France, and why we should care about that.

Early reviews (a.k.a. "jacket blurbs")(including one from the VC's own E. Volokh!) have been pretty complimentary:

“Now and then, ingenious insight yields an authentic work of genius. David Post’s musing about cyberspace, the law, history, and a great deal more has produced such a work, conceived and written in the finest Jeffersonian spirit.” Sean Wilentz, Princeton University, author of The Rise of American Democracy and The Age of Reagan

“Reading this beautifully written and extraordinary work today is what it must have been like to know or read Jefferson then. Post has crafted an experience in understanding that allows us to glimpse the genius that Jefferson was, and to leave the book astonished by the talent this extraordinary writer is.” Lawrence Lessig, Stanford University, author of Code and Other Laws of Cyberspace and Remix

“A fresh, insightful, and eminently readable look at cyberspace policy. It’s surprising and fascinating how much the debates of 200 years ago continue to be relevant today and continue to be echoed today, even in media about which Jefferson and Hamilton could not have dreamed.” Eugene Volokh, UCLA, founder, The Volokh Conspiracy

"Jefferson’s Moose is brilliant - and a joy to read. It is the book of a career: sweeping in scope, without dropping a stitch of detail. No one but David Post could have produced this sparkling analysis of the relationship between the world and worldview of Thomas Jefferson and today’s puzzles of cyberspace.” Jonathan Zittrain, Harvard University, author of The Future of the Internet­ — And How to Stop It

I figure that any book that Sean Wilentz, Larry Lessig, and Euguene Volokh all like must have something going for it . . . I also think that VC readers are pretty much in the bullseye of my target audience — I imagine that there are lots of you who consider yourself serious Jeffersonians out there (and I can promise you all that you'll learn something new about a side of Jefferson you didn't know too much about), and the fact that you're a VC reader probably means you have more than a passing interest in the Internet and things cyberspatial. There's lots of stuff in there to debate and discuss; I'm setting up a book website (now under construction) for that purpose, and I'm genuinely hopeful that the book will help return Jefferson to the center of the intellectual debate about governance and society.

As I mentioned, the book won't be out for another 6 weeks or so, but if you're an early adopter type, you can pre-order it here:

Don't worry — I'll remind you again. :) But I'm looking forward to hearing what you all have to say about the book, and the overall project.

[Thanks to early commenters -- I'll have more to say about how the book evolved over time, and how one writes intelligently about something that changes as quickly as the Internet changes, in future postings. And because it's not clear that the image link to the pre-order page is working properly, here's another, more straightforward bit of HTML code that should take you there:

In Search of Jefferson's Moose: Notes on the State of Cyberspace

DGP]

23 Comments

Pro-plaintiff textualism?

I'm not an expert on civil rights law or anything, but just looking at the D.C. harassment case that Eugene just linked, it looks like a more literalist reading of the D.C. Code would have been kinder to the plaintiff.

1. Analysis under the D.C. Code

Here's what the district judge says:

Plaintiff's sexual harassment claims fail because she was not an “employee” within the meaning of the DCHRA. The DCHRA defines an employee as “any individual employed by or seeking employment from an employer.” D.C.Code § 2-1401.02(9). The statute defines an employer as “any person who, for compensation, employs an individual....” D.C.Code § 2-1401.02(10) (emphasis added). Plaintiff did not satisfy this definition, as she was not working for compensation, nor was she seeking a paid job.

Now consider the relevant D.C. code provisions:

(9) "Employee" means any individual employed by or seeking employment from an employer.

(10) "Employer" means any person who, for compensation, employs an individual, except for the employer's parent, spouse, children or domestic servants, engaged in work in and about the employer's household; any person acting in the interest of such employer, directly or indirectly; and any professional association.

So say A is an unpaid intern for company B. Consider (10) in isolation: Is B an employer? It seems that it is, because B really does employ other people (aside from A) for compensation. So B qualifies as someone who, for compensation, employs an individual. (If you think this is weird, see the Title VII analysis below, where "employer" is defined objectively, without regard to who might happen to be the claimant.)

Now consider (9). Is A an employee? There's definitely an "employer" in the picture, B; the remaining question is whether A was "employed by or seeking employment from" B.

The verb "employ" doesn't seem to be defined in the Code. So now go back to (10), which talks about someone "who, for compensation, employs." It seems there ought to be a concept of uncompensated employment, or else the qualifier "for compensation" would be superfluous. I would think that the definition of "employ" would be the common meaning, something like telling someone to do something as part of one's business.

So I would think that B is an employer (whether or not he is an employer of A), and A is perhaps a person who is employed by B (though not for compensation). If the court had engaged in this more literal reading, it might not have dismissed the D.C. Code sexual harassment claim. Instead, it apparently reads subsection (10) to include a provision that the employment of the plaintiff itself must be for compensation:

The text of the DCHRA clearly provides that the employment must be “for compensation.” See D.C.Code § 2-1401.02(10) (defining an employer as “any person who, for compensation, employs an individual ... [or] any person acting in the interest of such employer, directly or indirectly”).

2. Analysis under Title VII

The district court also gets support from its position from Title VII, relying on local D.C. precedent saying that Title VII should be considered in interpreting the D.C. Code. And then it cites three Title VII cases:

See, e.g., O'Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir.1997) (college student volunteering as an intern at a hospital as part of her academic studies was not an employee under Title VII); Neff v. Civil Air Patrol, 916 F.Supp. 710, 712 (S.D.Ohio 1996) (“unpaid volunteers are not employees within the protection of Title VII”); Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 221(4th Cir.1993) (volunteer firefighter found to be an employee under Title VII because, while she did not receive direct compensation, she received other benefits such as a disability pension, survivor's pension for dependents, and tuition reimbursement).

To get the "employer" and "employee" definitions from Title VII, we look at 42 U.S.C. 2000e:

(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . .

(f) The term “employee” means an individual employed by an employer . . . .

So here, too, B would be an "employer" under (b) — because "employer" is defined with respect to all employees he has, not with respect to his relationship with any particular claimant. And under (f), we get the same ambiguity, where we don't know what "employed" means. As I said above, I'd think that "employed" would incorporate some usual meaning — except that in the D.C. case, there's a reason for inferring the existence of "unpaid employment," while arguably you may decide otherwise in defining "employ" for Title VII.

What do those Title VII cases say? The first one, O'Connor v. Davis, says (citations omitted):

The definition of the term “employee” provided in Title VII is circular: the Act states only that an “employee” is an “individual employed by an employer.” However, it is well established that when Congress uses the term “employee” without defining it with precision, courts should presume that Congress had in mind “the conventional master-servant relationship as understood by the common-law agency doctrine.” . . .

Where no financial benefit is obtained by the purported employee from the employer, no “plausible” employment relationship of any sort can be said to exist because although “compensation by the putative employer to the putative employee in exchange for his services is not a sufficient condition, ... it is an essential condition to the existence of an employer-employee relationship.”

The next case, Neff v. Civil Air Patrol, says:

In order to determine whether a person is an “employee” and therefore a proper plaintiff under Title VII, the Sixth Circuit considers whether the “economic realities” of a situation make the putative employee “susceptible to the kind of unlawful practices that Title VII was intended to remedy.”

and decides that the economic reality of not getting paid is what makes the difference. In other words, in the absence of statutory guidance, they use purposivist reasoning to conclude that liability for sexually harassing interns wouldn't further the presumed goals of Title VII.

The third case, Haavistola v. Community Fire Co. of Rising Sun, cites prior cases from other circuits, expressly citing the legislative history to the effect that we should rely on dictionary definitions of "employee" and "employer." And Webster's Third (attention Scalia!), says an employee is "one employed by another usu. in a position below the executive level and usu. for wages." From this "usu.", the court extracted a necessary condition!, concluding that in the absence of wages, there's no employee.

Bottom line: Some of these Title VII cases use non-textualist analysis to decide against the unpaid intern claimant. Some do use textualist analysis, but not necessarily good textualist analysis. Under a proper textualist analysis, maybe, for Title VII, one might conclude that explicit compensation is necessary to be "employed."

But there's no reason for the same analysis to apply to the D.C. Code, because the D.C. Code does mention employment for compensation — as I mentioned above, suggesting that compensation isn't necessary for employment to exist.

So this is one of many cases where a textualist analysis could actually be pro-claimant — a result that's usually labeled "liberal" in civil rights cases — contrary to the common perception of textualism as being a conservative methodology.

For more on this, see my recent article, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 NYU L. Rev. 769 (2008).

Related Posts (on one page):

  1. Pro-plaintiff textualism?
  2. Not Illegal in D.C. to Sexually Harass Interns:
22 Comments

[David Schleicher, guest-blogging, December 8, 2008 at 12:32pm] Trackbacks
Why Is There No Partisan Competition in City Council Elections? An Outline:

My paper, “Why Is There No Partisan Competition In City Council Elections? The Role of Election Law,” starts with an assertion of fact: There is no partisan competition in city council elections in big cities. By this, I mean two things. First, there are rarely individual seats that are contested between political parties in city council races. And, second and more importantly, there is almost never competition for control of the overall legislature.

Although Mayoral races in big cities are not exactly paragons of competition, they are much more competitive by comparison – for instance, in New York, 3 of the last 5 mayoral races were decided by only a few percentage points. Over the same period, Democratic control of the City Council went from 44 of 51 to 49 of 51. Further, in 2005, there were no City Council races where the winner received less than 60% of the vote. (I apologize in advance for all the New York City examples -- it's the city with the most available data and research about local voting patterns. That said, the fundamental story is not different in other cities with partisan elections.) Cities that use non-partisan elections – where candidates appear on the ballot with no partisan identification – feature even less competition in their city council races.

The lack of partisan competition in local elections is such a long-standing feature of American political life that it doesn’t earn much notice nowadays. However, it is a major challenge to the dominant theoretical understanding of how political parties operate. In Anthony Downs’s famous model, political parties are like business firms, except instead of maximizing profits they maximize votes. The way they do this is by altering their platform – if a party is unsuccessful at a level of government, we should expect it to change its stripes such that it becomes more popular.

Regardless of how they do it, our expectation is that political parties will try to win elections and, as a result, power should alternate between parties (in a system that uses first-past-the-post vote counting and single-member districts, this likely means power passing between two parties, as explained by Maurice Duverger). In political markets, as in economic markets, monopoly isn’t a normal condition – it needs to be explained.

The monopoly control of one party over municipal elections needs an explanation too. Tomorrow’s posts will address the two dominant existing explanations -- that local issues are inherently non-partisan in nature or that the dominance of one party in national elections in a city explains why there is not competition at the local level. I will show that these explanations are unable to explain the lack of competition, at least on their own.

On Wednesday, I will lay out my model, which tries to explain the lack of partisan competition at the local level through an analysis of the interaction between local election laws and predictable aspects of voter behavior. Thursday’s posts will address the implications if I’m right and will explain why neither party primary competition nor non-partisan election competition is an adequate replacement for general election competition in terms of generating representative policy outcomes or policy innovation. Friday’s post will suggest some policy options for introducing competition into local elections, from the simple to the radical.

I’ll try to answer your comments where possible (I've already gotten a number of really excellent comments that I will address as I go). Again, if you’re not willing to wait or would like a more thorough treatment, you can download the full article here.

8 Comments

Not Illegal in D.C. to Sexually Harass Interns:

I just saw a squib for Evans v. Washington Center for Internships and Academic Seminars, 2008 WL 4937007 (D.D.C. Nov. 19), holding that:

Plaintiff's sexual harassment claims fail because she was not an “employee” within the meaning of the [D.C. Human Rights Act]. The DCHRA defines an employee as “any individual employed by or seeking employment from an employer.” The statute defines an employer as “any person who, for compensation, employs an individual....” Plaintiff did not satisfy this definition, as she was not working for compensation, nor was she seeking a paid job. Moreover, while this issue has never been decided under the DCHRA, it has consistently been held under Title VII that an unpaid intern is not an employee.

Well, OK, the plaintiff was an intern at a chiropractor's office, but naturally that wasn't the first sort of employer that came to mind when I read the summary .... And, just to be extra precise, this case also reflects that it is not a violation of the federal Title VII to sexually harass interns in D.C. or elsewhere.

Related Posts (on one page):

  1. Pro-plaintiff textualism?
  2. Not Illegal in D.C. to Sexually Harass Interns:
21 Comments

Why Isn't Vice-President-Elect Biden Affected by the Emoluments Clause?

Several people have asked: Why isn't Vice-President-Elect Joe Biden presumptively barred from the Vice-Presidency by the Emoluments Clause (which we discussed in connection with Hillary Clinton's nomination to be Secretary of State)? Apparently the Vice-President's salary was raised during the term for which Senator Biden was elected (I haven't independently confirmed that is so, but I will assume it for purposes of this post). Would that mean that he can't hold that job, at least unless a Saxbe Fix temporarily lowers the salary to its earlier level?

No, because the Emoluments Clause says (emphasis added),

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ....
Senator Biden is not being appointed, but has rather been elected -- or, if you prefer, will almost certainly be voted into office as Vice-President on Dec. 15 by the Electors chosen by the voters of each state.

This status of the Vice-Presidency as an elective rather than appointive office is also reflected by the constitutional title — used in the Twentieth Amendment — of "Vice President elect." The Emoluments Clause applies only to appointed officers, just as does the Appointments Clause. ("[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.")

There's also something of a debate about whether the Presidency and the Vice-Presidency are considered "Office[s]" for the purpose of various constitutional clauses. But I need not engage that debate here, because the limitation to "appointed" offices settles the matter (though the debate might become relevant for a Vice-President who is nominated by the President and confirmed by the Senate pursuant to the Twenty-Fifth Amendment, in the event the elected Vice-President dies, resigns, is impeached, or becomes President).

13 Comments

Blogger polls: Obama cabinet, and automaker corporate welfare:

The National Journal's latest surveys of left-leaning and right-leaning bloggers are now available. Regarding the auto bailout, almost all left-leaning bloggers support it, provided there are major concessions from management only, or from management plus the unions. Right leaning-bloggers are strongly opposed, although a minority do favor a bailout if there are concessions by everyone. My own view was, "The auto companies and the unions need to renegotiate their retirement and medical programs. A bailout will impede, rather than assist, the necessary restructuring of the auto business."

On the Obama cabinet, the Lefties and Righties both like Treasury Secretary Geithner (a topic on which I was a minority, since he seems poised to continue the Bush policy of corporate welfare for the financial industry). The Right liked Defense Secretary Gates, and the Left liked Secretary of State Clinton. The biggest gap was on Attorney General Holder, who got a B+ from the Left and a D+ from the Right. In light of Obama's primary campaign rhetoric, I thought that the Gates/Clinton duo is a much more hawkish, pro-defense team than might have been expected. As for the Attorney General nominee, I wrote that "Holder served as No. 2 to one of the worst, most lawless attorneys general in U.S. history. His role and his lies in the Elian Gonzalez abduction were despicable." Although the poll didn't ask, I would also put Alberto Gonzalez in the group of "worst, most lawless attorneys general in U.S. history." Thank goodness he's not on the Supreme Court.

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Hamburger, Part 5: The Common Law Concepts of Law & Judicial Duty

When I read Philip Hamburger’s Law & Judicial Duty, it occurs to me that in 50 years, most of our scholarship will be long forgotten, but this book will still be read.

In my fifth selection from the introduction of the book, Hamburger suggests his main argument. For the extensive evidence supporting these claims, I’m afraid that you will have to read the book:

Law and Judicial Duty

The evidence reveals the importance of the common law ideals of law and judicial duty. It shows that these two ideals, taken together, required judges to hold unconstitutional acts unlawful. In pursuing the evidence, therefore, this book cannot focus on a distinct power to hold acts unconstitutional, but rather must more generally study the nature of law and of judicial office as understood by common lawyers.

The initial question concerns the obligation of law and especially constitutions. Long before Americans declared their independence, many English lawyers understood that the law made by the people, their "constitution," was of higher authority and obligation than other human law in their jurisdiction. Not merely the arrangement of government, this sort of constitution was the most fundamental part of the law of the land, and although many men questioned its application to Parliament, many others understood it to limit Parliament and thus to render any unconstitutional government act unlawful and void.

The second question regards judicial office and, in particular, judicial duty. Judges in America did not have to create for themselves a power over constitutional law, for already in England judges had a duty to decide in accord with the law of the land, including the constitution. The judges appreciated the functional benefits of this duty, such as its protection of liberty, but they understood it more basically to be part of their office, to which they were bound by their oaths. Judges therefore assumed they had no choice but to decide in accord with the law of the land. Accordingly, even in England they sometimes had to hold unconstitutional acts unlawful. Although judges faced obstacles in the law itself barring them from holding acts of Parliament unlawful, their duty to decide in accord with the law of the land was general, and thus where not barred by the obstacles relating to Parliament, their duty reached all types of government acts, regardless of whether the acts were executive, judicial, or legislative. As a result, both before and after Independence, judges were bound by their duty to hold unconstitutional American statutes unlawful.

Judicial duty was both more general and more mundane than what has come to be understood as judicial review, and it therefore had greater authority and more balanced implications. If there was a distinctive judicial power of review, it must have come from the judges themselves, and this has led to the conclusion that judicial review is of questionable authority. It has even led to the conclusion that judges, having created the power, can exercise it with either restraint or vigor, as seems to them required by different circumstances. Judicial duty, however, arose from the very office of a judge, and it thereby simultaneously strengthened and confined judicial decisions: It gave strength to judicial decisions about the constitutionality of government acts, and it confined the judges to making such decisions in the same way they made any other decisions—in accord with the law of the land.

Historically, it will be seen that the common law ideals of law and judicial duty developed not merely in reaction to local or transient considerations of policy, but more generally in response to underlying worries about the obligation of law and the role of judges, which in turn rested on deeper anxieties about human nature. It was widely assumed that human law existed within a hierarchy that reached from God down to man and that therefore even human law had a divinely derived obligation. Yet how human law acquired this binding force and how judges should decide about law were matters of profound dispute. Some theologians and academically minded lawyers had a high enough view of human potential that they suggested rulers and judges could partly transcend the rough, earthly texture of human law. Most common lawyers, however, pursued approaches less trusting of their rulers and judges and more grounded in the law of the land, and they thereby developed ideals of law and judicial duty that served the function of limiting government far more effectively than the high-minded ideals elaborated by their academically inclined contemporaries.

In the end, such ideals—whether academic or more narrowly legal—were responses to problems that might not be entirely susceptible of solutions. Men could use their ideals to rise above their worst tendencies, but they could never afford to forget that lurking below even the best of their ideals were problems as enduringly worrisome as men themselves. Their solutions therefore could never be perfect, and even if the common law solution avoided the dangers of the more academic approaches, this is not to say that it could rise above the nature of men.

More to come . . . .

4 Comments

"Ideological Warfare" on the Sixth Circuit:

Today's Washington Post features a front-page article detailing the effect of President Bush's nominees on federal appellate courts, focusing on the U.S. Court of Appeals for the Sixth Circuit. It's an interesting piece, as is this companion article on the politics of judicial nominations going forward, but I worry that it might exaggerate the ideological or partisan divisions among appellate judges, even if only because it focuses on the unusually divided Sixth Circuit.

The heart of the article focuses on the Sixth Circuit, and it portrays a Court unusually riven along ideological lines, particularly on criminal justice issues. This perception of the Court is widespread (indeed, I've blogged extensively about it), but the article suggests at least some judges see it this way too. It even quotes one judge to that effect.

Under 6th Circuit rules, full court, or "en banc," hearings are allowed in order to ensure "uniformity of the court's decisions" when separate panels of three randomly appointed judges disagree, or when questions of "exceptional importance" are at stake. But some of the court's Democratic appointees allege that the Republican-appointed majority is grabbing and reversing cases whenever those judges disapprove of the social consequences of the Democratic appointees' rulings.

"Anytime two of us show up on a panel and they don't like it, they yank it," said one Democratic-appointed judge on the circuit, who spoke on the condition of anonymity to avoid directly provoking colleagues. . . .

Ideological trench warfare is frequently on display in the 6th Circuit's austere fourth-floor hearing room in the Potter Stewart Courthouse here, which shifted to Republican-appointee control in mid-2005. Rulings sling around words such as "absurd," "rash," "meritless," "Pollyannaish," "unconscionable," "careless," "overwrought" and "alarming" -- from jurists on each side, directed at the judgments of colleagues appointed by the other political party. Tensions between Democratic and Republican appointees have become so intense that they no longer regularly lunch together at the city's University Club.

The story also discusses the impact of Bush nominees on the appellate courts as a whole. After eight years of judicial appointments by George W. Bush, Republican nominees are the majority of judges on most Circuits. This is what one would expect after eight years of a GOP President (and Republican control of the White House for 20 of the last 28 years). I've written about the current balance of nominees on the federal appellate courts and the likely effect of Obama's Presidency here.

I should note that the story contains one small error. It characterizes the Sixth Circuit's October en banc decision in Republican Party v. Brunner as a 9-6 decision decided along party lines, counting Judge Helene White, who was technically nominated by Bush, as a Democratic nominee as she had been a Clinton nomination to the Sixth Circuit and her nomination was part of a deal with Senate Democrats. Although some news outlets initially reported the decision as 9-5 or 9-6 (because, due to time pressures, the initial opinion was released before all of the judges had registered their vote or filed opinions), the decision was actually 10-6, and one Clinton appointee, Judge Ronald Gilman, voted with the majority. The Supreme Court subsequently overturned the en banc decision.

Related Posts (on one page):

  1. Is Arnold Evidence of "Ideological Warfare"?
  2. "Ideological Warfare" on the Sixth Circuit:
19 Comments

An interesting restaurant for your next outing:

Check out this video restaurant review. "I'm kind of on a budget, so I'm looking for cheap, but flavorful, penis." This is work-appropriate. Hat tip: Paul Eremenko.

UPDATE: For "work-appropriate," substitute "arguably work-appropriate, depending on your workplace.

9 Comments

Loser-pays system:

The Manhattan Institute has released Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve the American Legal System, by my friend Marie Gryphon. From the executive summary:

Effects of Loser Pays

This paper infers from its examination of the scholarly literature how loser pays would affect the American legal system:

  • Almost every economist who has studied loser pays predicts that it would, if adopted, reduce the number of low-merit lawsuits.

  • A loser-pays rule would encourage business owners and other potential defendants to try harder to comply with the law. Doing so should produce fewer injuries.

  • Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle. . . .

Litigation Insurance

This paper provides an overview of how litigation insurance would ensure access to justice for poor and middle-class plaintiffs under an American loser-pays system:

  • In loser-pays jurisdictions, insurance covering the legal costs of the plaintiff can be purchased at the same time that a lawsuit is filed for a reasonable premium advanced by a plaintiffs' attorney as part of the ordinary costs of litigation.

  • After recently scaling down its legal aid services, which were funding civil litigation for poor plaintiffs, England witnessed massive growth in its litigation insurance market; the same thing is likely to happen in the United States if it adopts a loser-pays rule.

To be successful in the United States, a loser-pays reform must be designed to reduce the number of nuisance lawsuits, control overall litigation costs, promote settlement, and ensure access to justice for plaintiffs with strong legal claims. To achieve these disparate goals within the existing American legal system, this new Manhattan Institute proposal incorporates a modified offer-of-judgment rule, which ties the amount of any fee award to the size of the parties' settlement offers, and advocates the removal of legal barriers to the establishment of a robust litigation insurance industry in new loser-pays jurisdictions.

Extra bonus: A foreword by Giuliani. Extra extra bonus: My name in the acknowledgments. Download of the week!

72 Comments

[David Schleicher, guest-blogging, December 8, 2008 at 5:29am] Trackbacks
Why Is There No Partisan Competition in City Council Elections? The Role of Election Law



First, I want to thank Eugene and all the other Conspirators for the opportunity to post this week. It should be fun.

This election year featured all sorts of historic and surprising events. One of the stranger debates, however, dealt with an election that will take place in 2009. The New York City Council debated and ended up passing a revision to the city’s term limits law that gave its members and other city officials, most prominently Mayor Michael Bloomberg, the ability to run for a third term in office.

That politicians would act in a way that -- whatever the merits -- ended up benefiting themselves is not particularly odd or surprising. Even so, this decision took some serious chutzpah on the part of the Council. The two-term limit was passed in a popular referendum and then reaffirmed in a subsequent referendum, in which voters explicitly chose a two-term limit over a three-term limit. What was particularly surprising about the debate, though, is that the revision had the support of much of the city’s goo-goo establishment: its newspapers, prominent supporters of term limits like Ron Lauder, who funded the original term limits referendum campaign, and its business leaders, which had pushed the idea from the start. 
The very groups we might expect to oppose such a move were actually the forces behind it.

It is clear that the reason for the change, and the reason it was supported by all of these groups, is the overwhelming popular support for Mayor Bloomberg (he had the support of nearly 70 % of New Yorkers before the term limits revision and still had nearly 60% support after).

However, even popular Presidents don’t generate much support for repealing the 22nd Amendment. What differentiates this situation is that Bloomberg had no logical successor. If a President is popular at the end of his term, voters can support a co-partisan and get many of the same policies. At the city level, that’s not so – there is no Republican or Independent successor to Bloomberg, as there is almost no consistency in the policy stances of co-partisans on local issues. 
 Further, there is little reason to think that the crucible of electoral competition will force politicians to adopt popular policies – even at the Mayoral level, general election competition is spotty and below that it is almost non-existent. To get Mayor Bloomberg’s policies, city residents have to vote for Mike Bloomberg; there is no substitute. Thus, the decision to extend term limits made sense to those who support Bloomberg, even those like Ron Lauder, who also support term limits.

We take this state of the world for granted. But there has been little effort to explain the oddly uncompetitive nature of big city electoral politics, and the efforts that have been made have been unsatisfactory. My paper, “Why Is There No Partisan Competition In City Council Elections? The Role of Election Law,” tries to provide a serious, theoretical treatment of the lack of partisan competition. Although it is directly aimed at the question of city council elections, if it is successful, it should explain much more about urban politics.

My next post will provide an outline for a week of posts. I look forward to spending the week with all of you.

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"Medicare To Cover Prescription Handguns?"

Story here; thanks to GeekPress for the pointer.

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Paris Airport Bleg: Pardon the bleg, but I wonder if Paris-based (or just Paris-familiar) readers can help me with something. I'm flying to Israel to give a talk at Tel Aviv University Law School next week, and when I fly back to the States on Saturday, December 20th, I will have a 12-hour stopover at Paris's Charles de Gaulle Airport. My flight from Tel Aviv arrives in Paris at 10pm, and my flight to DC departs at 10 am. So here's the bleg: Any ideas for stuff I realistically could do out in Paris during that stopover, preferably things involving good beer? I don't speak any French and don't know Paris, but going out for a few hours seems like more fun than just sitting in the airport overnight or getting a nearby hotel room to crash.

(While I am in shameless bleg mode, I, too, know of a great apartment rental in Arlington for the Obama inauguration that is soon to go up on CraigsList — e-mail me if interested. No, it's not mine...)
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Anh Cao Becomes First Vietnamese-American Ever Elected to Congress:

It's not as big an ethnic milestone as Barack Obama's victory in the presidential election, but congratulations are in order for Louisiana Republican Anh Cao, who recently became the first Vietnamese-American elected to Congress. Cao defeated the scandal-plagued Democratic incumbent William Jefferson, who is under indictment for a a variety of crimes.

Interestingly, Vietnamese-Americans are among the few minority groups who generally don't vote Democratic (Republican identifiers outnumber Democrats by 2-1 in the Vietnamese community). Cuban-Americans and Russians are among the other exceptions. Almost certainly, the experience of living under communism accounts for the similar political orientations of these three otherwise disparate groups. That experience tends to make them more hawkish on foreign policy and less supportive of government intervention in the economy in the domestic realm. The article about Cao linked above notes that his father was imprisoned in a communist "reeducation camp."

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Sunday, December 7, 2008

"Because of the Internet, all points of view can live forever.": The Chicago Tribune has a story, via Howard, arguing that the Internet is helping to keep alive the very silly rumors that Obama's birth certificate has been forged and that he is ineligible for the presidency:
  This is a different army at work, in an environment increasingly influenced by the Internet.
  "It's only being mentioned by a relative few, by the real die-hard, anti-Obama crowd," said Michael Harrison, editor and publisher of Talkers magazine, the trade bible of the talk-radio industry. "On mainstream talk radio, it's not a big deal right now. I think it's run its course."
  "But," Harrison added, "we live in a time that, because of the Internet, all points of view can live forever."
  I suspect that when we get to the bottom of the Obama birth certificate story, we will learn that Obama's true mother is Bristol Palin. I mean, have you noticed that that there are no photographs available of Bristol Palin in 1961, the year Obama was born? What is the media hiding?
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Is Piracy Terrorism?

Douglas Burgess Jr. makes the interesting argument that pirates are a type of terrorist and should be treated as such.

The solution to piracy lies in the very nature of piracy itself. The Roman lawmaker Cicero defined piracy as a crime against civilization itself, which English jurist Edward Coke famously rephrased as “hostis humani generis” — enemies of the human race. As such, they were enemies not of one state but of all states, and correspondingly all states shared in the burden of capturing them. . . .

Pirates are not ordinary criminals. They are not enemy combatants. They are a hybrid, recognized as such for thousands of years, and can be seized at will by anyone, at any time, anywhere they are found.

. . . Are pirates a species of terrorist? In short, yes. The same definition of pirates as hostis humani generis could also be applied to international organized terrorism. Both crimes involve bands of brigands that divorce themselves from their nation-states and form extraterritorial enclaves; both aim at civilians; both involve acts of homicide and destruction, as the United Nations Convention on the High Seas stipulates, “for private ends.”

It is an interesting argument, but it may have a faulty premise. As Kevin Jon Heller notes, while pirates may be enemies of all states, that does not make them the same as terrorists.

The defining feature of terrorism is precisely that it is committed not for private ends, but to intimidate a civilian population or to influence government policy. Indeed, over the long and troubled history of efforts to create a general definition of terrorism, that is perhaps the only aspect of the definition that has never seriously been in doubt. . . .

Pirates have no politics. They are, therefore, not terrorists.

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The 75th Anniversary of Stalin's Terror Famine and the Genocide-Mass Murder Distinction:

Cathy Young, a fellow Russian emigre, has a fascinating article on the 75th anniversary of Stalin's terror famine of the 1930s. Some 6 to 10 million peasants were deliberately starved to death by the Soviet government as part of its campaign to force the peasantry to accept the collectivization of agriculture.

Unfortunately, as Young points out, proper commemoration and public understanding of this horrendous atrocity has been partially forestalled by an ongoing dispute between the Russia and Ukrainian governments. The Ukrainians claim that this case of mass murder amounts to "genocide" because Stalin deliberately targeted Ukrainian peasants in order to prevent any possible resurgence of Ukrainian nationalism. The Russian government notes that many of the victims were members of other ethnic groups (including millions of ethnic Russians), and therefore argue that there was no genocide, but "merely" a mass murder.

Despite the current Putin government's efforts to minimize the scope of Soviet atrocities and play up the supposed positive aspects of the communist era, the Russians do not deny that millions of people were deliberately starved to death during the collectivization campaign. Instead, they focus on denying the "genocide" charge. As Young puts it, "it seems that the only time Russia's government remembers the Russian victims of the Terror-Famine is when it needs them to counter Ukrainian claims [of genocide]."

The ridiculous nature of this dispute highlights the arbitrariness of distinguishing between genocide and "mere" mass murder, and of holding that the former is somehow far worse than the latter. I have written about the issue before in this series of posts.

To the millions of peasants who died in the terror famine, it hardly matters whether they were targeted on ethnic grounds or merely because they were "class enemies" and "kulaks" who were considered obstacles to Stalin's plans. Moreover, given that Kulak and class enemy status was largely determined by family background (and both were defined broadly enough to include virtually all peasants whose families owned even a small plot of land), one cannot even make the claim that a genocide targets people for characteristics they cannot change, while more traditional communist mass murders target people based on mutable attributes.

On a more personal note, I recently discussed this dispute with my grandmother, who actually lived through the famine in early 1930s Ukraine (though she is not Ukrainian). She reacted with incredulity. "How can anyone doubt there was a genocide," she said, "I saw the starving and dying people myself!" I tried to explain to her the genocide-mass murder distinction embedded in current international law as neutrally as I could, noting some of the justifications offered for it. She, of course, was unmoved, and continued to see the distinction as a dubious contrivance. I have to agree.

UPDATE: I should note, in response to commenters, that there are clearly cases where Soviet policy could be considered genocide under the international law definition thereof. Examples include Stalin's deportation of the Crimean Tatars and other defined ethnic groups from the Crimea. This led to thousands of deaths, and clearly targeted the Tatars on ethnic grounds.

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Now It's Their Turn:

The Washington Post reports that members of the American Constitution Society are likely to be as prominent in the Obama Administration as members of the Federalist Society were in parts of the Bush Administration.

Eric H. Holder Jr., an ACS board member, has been nominated to be attorney general. Executive Director Lisa Brown has been tapped to be White House staff secretary, a key slot that involves reviewing all documents that go before the president. Board member Teresa Wynn Roseborough has been prominently mentioned as a possibility for several jobs in the Obama administration, including solicitor general.

"What that means is that the organization's core function of developing and promulgating legal ideas and social policy will have a more receptive audience than it has had in the past eight years," said Paul M. Smith, a District lawyer who is chairman of the ACS board.

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Subsidies Versus Conservation:

The Washington Post reports on what we've known for a while: the combination of agriculture subsidies, ethanol subsidies, and high ag prices are causing widespread loss of important migratory waterfowl habitat.

Fighting the trend is an array of hunting and conservation groups. The political circumstances in the West have forced them to try to protect the grassland without making it a national park or a federal preserve. "There is still strong resistance in the West to extending federal ownership of land," said Ken Cook, president of the Environmental Working Group.

Scott Stephens, director of conservation planning for Ducks Unlimited, estimates that the Prairie Pothole Region of the Dakotas and Montana could lose an additional 3.3 million acres of native grassland to farming over the next five years if prices stay high and federal policy does not change.

Pat Comer, an ecologist with NatureServe, a nonprofit scientific research organization, said the concern is less with the total acreage lost than with the fragmentation of bird habitat. "We're beginning to affect habitat needs," he said.

High ag prices, inflated by subsidies, make conservation particularly difficult. Among other things, the inflated prices make government conservation payments less appealing.

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Sunday Song Lyric: Maybe I'm just way out of touch, but I was a bit underwhelmed by this year' Grammy nominations for "Record of the Year," and just because one is the subject of plausible copyright infringement allegations. Of the nominees, I have a soft spot for Robert Plant and Alison Krauss. I am an old fan of Led Zeppelin, and I admire Plant's effort to innovate musically (especially when it would be easier, and perhaps even more lucrative, to feed off of LedZep fandom and join endless reunion tours).


Interestingly enough, the song for which Plant and Krauss were nominated is an old Plant-Jimmy Page composition, "Please Read the Letter" off of their collaborative album, Raising Sand. Here are a bit of the lyrics:

Caught out running with just a little too much to hide
Maybe baby, everything's gonna turn out fine
Please read the letter, I nailed it to your door
It’s crazy how it all turned out, we needed so much more

Too late, too late, a fool could read the signs
Maybe baby, you’d better check between the lines
Please read the letter, I wrote it in my sleep
With help and consultation from the angels of the deep

Please read the letter that I wrote
Please read the letter that I wrote
Here's the video, a live performance, and a comparison of the Plant-Page and Page Krauss versions.
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Remembering Pearl Harbor 2008 I write this as I look out my 29th floor hotel room in the direction of Pearl Harbor. My wife and I came to Oahu, Hawaii to celebrate our 29th anniversary on December 2nd. Although it is a coincidence that we are still here on December 7th, it still feels eerie. On Wednesday, we visited the USS Arizona Memorial, which was a moving experience. Arriving just before 7am to stand in line, the tour buses continued to unload groups behind us. We were in the first group to see the film that begins the journey to the wreck of the Arizona. Comprised solely of original footage, the film examines not only the attack itself but also its antecedents. It is entirely descriptive and remarkably fair. For example, it describes both the brutal Japanese invasion of China and the less frequently noted oil embargo imposed on Japan by the U.S. in response. It also candidly describes the various ways in which the US command was unprepared for and ignored warnings of the impending disaster. I cannot find that video on-line but here is another describing the attack using original Japanese and American footage of which a surprising amount exists.



After the film, the group somberly headed for the boat to take us to the Memorial which straddles the sunken Arizona. From the deck of the Memorial, one can see the base of a gun turret emerging from the water.

Gun Turret Base

For some reason it is particularly disturbing to see the oil slick on the surface of the water; it is still oozing from the ship, which had been fully fueled when sunk. Three sailors briefly hoisted American flags taken from two Fed Ex boxes over the Memorial to be lowered, folded and returned to their senders.

Hoisting the flags over the Arizona

From the Memorial can be seen the USS Missouri, an Iowa class battleship a third larger than the Arizona, that was being built at the time of Pearl Harbor and on which the Japanese surrender was signed in Tokyo Bay. The guides refer to these as "bookends" marking the first and last days of WWII. Although not there during the attack, it is useful to see the ship close by because it conveys the size of the battleships that were lined up on December 7th, 1941 in way that cannot otherwise be imagined by looking at the open water of the harbor.

The Missouri as seen from the Arizona Memorial

Our visit to the Memorial was a very quiet and emotional experience (click to enlarge picture).

List of Casualties

It is captured by the following video I located on YouTube:



In the visitor's center several survivors of the attack were seated at a table signing autographs. More than the usual number were there in advance of the annual ceremonies to take place on December 7th.

Pearl Harbor Survivors

We then took a bus to the USS Missouri where we received what turned out to be a private tour of 5 levels of the ship. One reason I was interested in this tour was because I have seen Under Siege many times. Although I am no Stephen Seagal fan, I really like this film, maybe because Tommy Lee Jones and Gary Busey are such excellent bad guys. Before even starting the tour, however, I learned that the film was not shot on the Missouri, but on the USS Alabama. During the tour it became pretty obvious that none of the recognizable locations--such as the bridge or "Broadway"--looked anything like the film. This film shows the Missouri in action in the first Gulf War, including the loading of its 16 inch guns.



The tour culminated in the "surrender deck" where the Japanese command signed the articles of surrender. Reproductions of the articles were exhibited including the Japanese copy on which the Canadian representative had signed on the wrong line. As a result, several lines of typed names were crossed out and other names hand printed in and initialed. Even the ends of wars are not without errors. Here is a contemporary newsreel describing the ceremony.



The Missouri--Big Mo--is privately operated and maintained. The website can be found here.
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