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Saturday, December 20, 2008

Jeffrey Toobin Revises His Inaccurate Discussion of Kelo . . . But Not Nearly Enough:

Back in January, eminent domain scholar Gideon Kanner and I (in this post) pointed out several inaccuracies in prominent legal journalist Jeffrey Toobin's discussion of Kelo v. City of New London in his book The Nine. Among other things, we pointed out that Toobin was wrong to say that Kelo had attracted little attention until after the case came down, and wrong to attribute the enormous political backlash generated by Kelo to "the conservative movement." To the contrary, many of the strongest denunciations of Kelo came from liberals such as Ralph Nader, Bill Clinton, Howard Dean, and Maxine Waters. Numerous liberal organizations, including the NAACP, AARP, and Southern Christian Leadership Conference filed amicus briefs supporting the property owners in the case. In the general population, some 77% of self-described liberals stated in polls that they opposed the decision (data and quotes documented in this article).

Jeffrey Toobin apparently read my post, and to his credit e-mailed senior conspirator Eugene Volokh to indicate that he would make corrections in the paperback edition of his book. That paperback edition is now out, and Toobin did indeed make a minor correction, revising the text to note that "[e]ven some liberals, who regarded the decision as a symptom of authoritarian government, denounced [Justice] Stevens' [majority] opinion [in Kelo]."

This is an improvement over the previous edition of the book, where the liberal reaction against Kelo was entirely omitted. But for reasons noted by Gideon Kanner, Toobin's revised text is still highly misleading. I agree with most of Gideon's discussion, and would add two additional points:

First, Toobin's revised text misstates the reason why the liberal opponents of Kelo objected to the decision. It was not because they thought it was "a symptom of authoritarian government" but because it licenses government officials to engage in condemnations that tend to victimize the poor, minorities, and the politically weak for the benefit of influential developers and other powerful interest groups. The NAACP, AARP, and SCLC made these points in their amicus brief in the case. I linked that brief in the post that Toobin had read, so it was surely available to him.

Second, the phrase "even some liberals" gives the misleading impression that Kelo critics were a minority (perhaps a small one, given the extremely brief mention devoted to it, as compared to the much more extensive discussion of conservative critics) among liberals. In reality, the vast majority of liberal public opinion and liberal activist groups disapproved of the Court's decision. Then-Democratic National Committee Chair Howard Dean even went so far as to misleadingly denounce the decision as the handiwork of "a Republican-appointed Supreme Court" in order to disassociate liberal Democrats from it (quoted on pp. 7-8 of this article).

We all make mistakes and I am not accusing Toobin of deliberate deception here. Even so, it is unfortunate that a prominent work on the Supreme Court by one of the country's best-known legal journalists contains such significant errors about the most important Supreme Court property rights decision in many years. As Eugene Volokh pointed out in a series of posts, the first edition of the book also had a lot of other factual errors (I have not yet had a chance to check if these other errors were fixed in the paperback edition).

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The Pragmatic Conceit Nice column on The Pragmatic Conceit--A new empty wave on NRO by Stanford Law student Anthony Dick. Here is a taste:
To the extent that it performs any conceptual function at all, pragmatism seems to boil down to the more mundane concepts of flexibility, open-mindedness, and deliberation. A “pragmatist” might be said to be someone who, though inevitably laden with policy prejudices, is willing to put them aside and adapt to new situations as needed. But if this is all that pragmatism means, everybody would self-describe as a pragmatist. Nobody thinks failed policies should be continued when circumstances demand a change. But there will inevitably be disputes as to when policies have truly failed and when circumstances really demand a change, and those disputes will inevitably break down along ideological lines. Pragmatism cannot provide any neutral way to resolve our disagreements, because it cannot magically transform people into objective, dispassionate, non-ideological truth-seekers.

It is of course still possible to criticize someone for being too rigid and unreflective in his positions, but those charges are quite serious enough on their own without muddying the waters by plopping in the vague and misleading concept of pragmatism.

When people praise a policy or a politician as “pragmatic,” they’re often simply praising themselves for being open-minded. They are projecting a false pretense of objectivity, premised on the conceit that they are utterly free of ideology while their opponents are mired in prejudice. In fact, a so-called pragmatist’s support for a policy indicates only two things: that he agrees with the policy’s goal, and that he believes the policy is likely to achieve the goal in an efficient way. But these are precisely the controversies at the core of every old ideological dispute: Which goals should we strive for? And what is the best way to achieve these goals? Pragmatism as a catch phrase does not displace those ideological questions, but does a great deal to obscure them.
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Did Bush EPA's Loss Strike Down Clinton EPA Rule?

An interesting aspect of Sierra Club v. EPA, the Clean Air Act case I noted yesterday, is that the underlying regulation at issue was adopted under the Clinton Administration. The Bush Administration made some modifications of its own, largely affecting reporting and enforcement of the rule, but the underlying "SSM" exemption (for startups, shutdowns, and malfunctions) was created in 1994. Here's an excerpt from the Washington Post story on the decision:

The agency created the exemption in 1994, and Bush administration officials broadened the interpretation of the provision over time. This made it subject to judicial review, and a coalition of advocacy groups including the Environmental Integrity Project, the Sierra Club, the Louisiana Environmental Action Network, the Coalition for a Safe Environment and Friends of Hudson challenged the provision's legality in court.

"What they did is take a bad provision and turn it into an almost complete barrier to enforcement," said Earthjustice attorney Jim Pew, who argued the case on behalf of the coalition. "This was an attempt to make all of the air-toxics laws unenforceable, and they almost got away with it."

The SSM exemption's history created an interesting wrinkle in the case. It was clearly too late for environmentalist groups to challenge the rule directly, so they hitched on to the Bush Administration's more recent interpretations to secure judicial review. Even so, it's not so clear the court had jurisdiction to review the underlying rule in this case. This was a key point in Senior Circuit Judge Randolph's dissent:

According to Sierra Club, EPA’s rulemakings in 2002, 2003, and 2006 rendered enforcement of the 1994 startup, shutdown, and malfunction regulations more difficult. Even if true, that could hardly have amounted to agency “action” re-promulgating the 1994 regulations, which is what § 7607(b)(1) requires as a prerequisite for judicial review. After all, Sierra Club’s complaint is not that the 1994 regulations are now hard to enforce; it is instead that the 1994 regulations are invalid and always have been. The recent rules did not alter the exemption for startup, shutdown, and malfunction events. The new rules simply modified requirements for each source’s plan regarding implementation of the duty to minimize pollution during the exempt periods.

Thus, Randolph concluded, the Sierra Club could only challenge the Bush Administration revisions, and not the underlying exemption. Based on my initial reads, I think Judge Randolph is right. So, while I am inclined to think the Sierra Club was correct on the merits, and that the SSM exemption contravenes the Clean Air Act, I doubt the D.C. Circuit had jurisdiction to consider and overturn the underlying rule.

Related Posts (on one page):

  1. Did Bush EPA's Loss Strike Down Clinton EPA Rule?
  2. Yet Another Bush EPA Air Rule Goes Down:
  3. Another EPA Air Rule Goes Down:
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Two and a Half Thoughts About the Auto Bailout

1. Bankruptcy judge functions go to the executive. A standard feature of crisis governance, executive power rises at the expense of other branches of government—Congress and, here, the judiciary. Why give more power to the executive? A crisis is a political problem; judges lack both political expertise and democratic legitimacy. They don’t know what to do, and wouldn’t be trusted in any event. In bankruptcy, parties have an interest in creating a firm that has maximum going concern value; relative bargaining power determines how the losses are divided. But the bankruptcy judge has little power to crack the whip, and value can be squandered as parties bluff and bargain. The only case for the executive-managed reorganization is that the executive can draw on carrots and sticks to hurry the parties along, favoring those who are cooperative and penalizing those who are not. This is the positive spin on Todd’s complaint that bankruptcy is “politicized.” Bankruptcy law is one-size-fits-all and not necessarily appropriate for current conditions. Can an executive branch car-czar with broad powers function more effectively than a bankruptcy judge with limited powers? Depends who they are. If not –

2. Bankruptcy law remains the backdrop (maybe!). Managers, workers, suppliers, dealers know that if they can’t reach a deal, they end up in bankruptcy. If they are rational and can overcome bargaining costs, they should simply divide the monetary equivalent of the government’s free loan (not the loan itself, but the financial equivalent of being able to stay in business an extra couple months when the market would otherwise shut them down) prior to the hard work of reorganizing the companies.

2 1/2. Bankruptcy remains the backdrop (maybe not!). Alternatively, the players might predict that the Obama administration will maintain the federal pap—whatever interest group dynamics that compel bailout today will compel bailout tomorrow. The car industry will become a long-term Amtrak-like federal vehicle for transferring resources to politically influential, geographically concentrated people—mostly middle class or wealthy.

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More Comments on the Bailout:

The DC Fox affiliate did an interview with me Friday afternoon. The reporter has posted a story on their website with my commentary on the bailout and my opinions for what is likely to happen going forward here.

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More on Obscenity Conviction:

Eugene has already commented on the recent Fourth Circuit decision in this case (US v Whorley), but I wanted to add a comment, because there's something that really bothers me about this case. The defendant was convicted of "knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1462" -- the Protect Act of 2003. It's an outrageous and appalling precedent -- if, under current Supreme Court precedent, it is not unconstitutional, it damn well should be, and in any event it is shameful for Congress and the President to have enacted it. Why not criminalize obscene thoughts? Why not make it a crime to picture, in one's head, minors engaged in obscene acts? The reason is not that there are profound problems of proof involved in getting inside peoples' heads (though there are), the reason is that the government has no right to control what goes on inside my head. And it is a small step -- an insignificant step, in my view -- from that to the criminalization of a drawn cartoon -- the visible expression of what was going on in some cartoonists' mind. Bad law.

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Today's Quote:

On an interview broadcast on NPR this morning, Willard Wirtz — Secretary of Labor in JFK's administration — called cabinet meetings "part of the Kabuki dance of democracy." That is a great line, eh? It perfectly captures something about a bunch of institutions and arrangements — carefully orchestrated, just "for show." But it doesn't connote worthlessness; Kabuki can be very beautiful, and the Kabuki dance of democracy can be important and valuable. Any suggestions for other things that belong in the category? [My nominations: the Electoral College [the actual meeting of "the college," not the actual practice of voting on a state-by-state basis, which actually matters], the Congressional Record, . . .]

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Friday, December 19, 2008

Too Long a Litigation, Over Too Little:

Six years ago, the Rhode Island Republican Party aired a campaign commercial that the State Board of Elections claimed violated campaign finance laws. The details of the alleged violation are in yesterday's Rhode Island Supreme Court opinion on the subject, but what struck me as most interesting is the court did with it. Here's a court's discussion of the remedies available at this date, after six years of slow litigation, and what should be done as a result:

[I]f the board concludes that either party violated the state’s election laws, the remaining remedies available to the board at this late date are so insignificant and of such minimal import as to warrant the dismissal of this case in its entirety....

With respect to alleged violations of the contribution and expenditures provisions, § 17- 25-13(a) provides that “[a]ny person who willfully and knowingly violates the provisions of this chapter shall, upon conviction, be guilty of a misdemeanor and shall be fined not more than one thousand dollars ($1,000) per violation.” General Laws 1956 § 12-12-17(c) sets the statute of limitations for a misdemeanor at three years, a period that expired long ago.

However, “[t]he fact that one remedy... may have been rendered moot does not affect the viability of the case or the remaining remedies.” Section 17-25-13(b) allows the board independently to impose a fine of up to $100 for each violation of the provisions of chapter 25 of title 17. Thus, whether the advertisement constitutes a single offense or a separate violation for each of the few times that it was aired, the available remedy is de minimis.

There is much wisdom in the ancient maxim, “de minimis non curat lex.” (The law does not concern itself with trifles.). In view of what little remains at stake in this case and the negligible impact a decision would have on the parties, it would be jurisprudentially unwise for us to venture into the thicket of constitutional interpretation and statutory construction that surrounded this case when it was in its infancy. The advertisement at issue was aired for only six days, and the Republican Party immediately complied with the cease-and-desist order, raising the question whether any sanction is appropriate.

The board’s remaining remedy ... permits referral of alleged violations to the Attorney General for civil enforcement. It has been six years since the advertisement aired and the board has not referred this matter to the Attorney General for any type of action, civil or criminal. The board failed to act on the special counsel’s recommendation to refer to the Attorney General the alleged campaign contribution violation, notwithstanding the fact that the trial justice’s order specifically permitted the board to transfer any documents or information in its possession to the Attorney General.

In light of this exceptional context and the painful travel of this controversy, this case no longer presents a sufficiently genuine case or controversy to warrant further review, and it is our judgment that it should therefore be dismissed. To remand this aged case to the board for further proceedings would require this Court to decide the constitutional issues raised by the parties. We would have to wade into an ocean of First Amendment law that has become even more voluminous and complex since the events that gave rise to this case first occurred. In light of the little that remains at stake in this case and the negligible impact (if any) that a decision would have on the parties, we decline to embark on such a journey of constitutional adjudication....

The advertisement that is at the heart of this dispute was aired for several days in October 2002. Six years later, the potential for a satisfactory resolution has long since passed; the stake that each party has in the dispute has declined to virtual insignificance -- leading us to wonder, what is left? The answer is nothing. Accordingly, “we invoke our inherent power to ‘fashion an appropriate remedy that would serve the ends of justice.’” In light of the record before us, justice requires that we dismiss this unending saga and assign this election to its place in history.

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How to spend the Obama trillion: 100k per car to retrofit hybrids

My Independence Institute colleague Todd Shepherd (formerly a reporter for KOA radio) runs the Complete Colorado website. It's laid out like the Drudge Report, and it presents Colorado news--including original reporting by Todd. He's just published an article on the 2.25 billion dollars in eco-pork that ten Colorado municipalities are seeking as part of the impending "stimulus" package. Among the requests from the city of Boulder is six million dollars in order to convert 60 cars (in the city, county, and University of Colorado fleets) from ordinary hybrids to plug-in hybrids. That's a hundred thousand dollars per car. Even in eco-conscious Boulder, it is very, very unlikely that voters would approve spending their own tax money on such an ineffecient spending project.

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Under-21-Year-Olds and Guns in Illinois:

Federal law makes it harder for 18-to-20-year-olds to get handguns, and some states prohibit it outright; yet nearly all states at least allow 18-to-20-year-olds to have long guns.

Except, it turns out, for Illinois, where state law bars 18-to-20-year-olds from possessing any gun -- including a stun gun -- unless they (1) have a parent or legal guardian's written consent, (2) haven't been convicted of any misdemeanor other than a traffic offense, and (3) the consenting parent or guardian isn't himself barred from owning a gun.

This means that if you're an 18-to-20-year-old and both your parents are dead, or if your living parent or parents have been convicted of felonies or certain misdemeanors, or if your living parent or parents have recently been mental patients, or if your living parent or parents are in the U.S. on a nonimmigrant alien visa, you can't possess any sort of gun in Illinois. If your parents are around and not disqualified, then your right to own a gun turns on your parents' permission -- something that to my knowledge doesn't happen as to anything else for adults.

Oddly, if your parents aren't nonimmigrant visitors to the U.S., but are instead foreigners who aren't in the U.S. in the first place, then they can indeed give you permission to buy a gun -- they can't just do it once they've been admitted to the U.S. under a nonimmigrant visa.

By the way, the Illinois Constitution provides, "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." The Illinois Supreme Court has held that, though handgun bans are allowed under the police power, "individual citizens" do have "a right to possess some form of weapon suitable for self-defense or recreation" (emphasis added) and "that a ban on all firearms that an individual citizen might use would not be permissible." Kalodimos v. Village of Morton Grove, 470 N.E.2d 266, 273 (Ill. 1984).

Queries: The age of majority in Illinois was 21 in 1970, when the right was enacted; it wasn't lowered to 18 until 1971. Does the right not fully apply to under-21-year-olds, the way some constitutional rights today don't fully apply to under-18-year-olds (consider the right to sexual autonomy, the right to marry, the right to abortion, which could be limited through certain kinds of parental consent laws, and likely the right to bear arms itself)? Or does the right apply to all adult citizens (unless otherwise disqualified by reason of felony conviction or the like) under today's age of majority, regardless of what the age of majority was at the time? Or has the right always extended to everyone 18 and above, regardless of the age of majority for other purposes?

Also, what would the answer be under a Second Amendment that's incorporated against the states, if such incorporation takes place? These questions would also have some importance in other states that allow long gun possession for 18-to-20-year-olds but ban handgun possession until age 21, and also as to the federal government, which makes handguns harder for under-21-year-olds to acquire.

Note also that when the age of majority was 21, presumably 18-to-20-year-olds could get a guardian if both parents were dead. Now that the age of majority is 18, I take it that it's impossible for them to get a guardian even if they wanted one in order to get the guardian's permission to own a gun.

Related Posts (on one page):

  1. Under-21-Year-Olds Banned from Possessing Any Firearms in New York City?
  2. Under-21-Year-Olds and Guns in Illinois:
43 Comments

All Those Harmed by a Federal Financial Crime Are "Victims" Protected by the Crime Victims' Rights Act

Today the U.S. Court of Appeals for the Eleventh Circuit agreed with my argument that anyone who is injured as the result of a financial fraud is a “crime victim” protected by the Federal Crime Victims’ Rights Act. The ruling, found here, could have major implications for the prosecution of financial fraud crimes in the future and will significantly expand restitution available for those crimes.

A bit of background: On December 2, 2008, Sarasota, Florida Attorney Alan E. Tannenbaum and I filed an emergency petition on behalf of Janis W. Stewart and 111 victims of a financial fraud committed by Philip William Coon. The petition challenged a ruling by U.S. District Judge Elizabeth A. Kovachevich on November 21, 2008, that these borrowers on loans from Coast Bank were not "crime victims" of Coon's criminal conspiracy because they were not specifically listed in the criminal charges against him. The petition contended that, because the borrowers suffered financial losses from the fraud, they were "crime victims" entitled to the protections of the federal Crime Victim's Rights Act, including the right to restitution. The petition cited documents showing that Coon received more than $1.1 million from his crime, which he used to buy overseas vacations, fine wine, expensive jewelry, a $20,000 piano, and other luxury items. The petition stated that "while Coon was enjoying the high life on his ill-gotten gains, the borrowers were all paying interest on the money financing it." The petition sought restitution for the borrowers.

The borrowers’ petition arose out of scheme by Coon to "skim points" off of residential mortgage loans. On November 5, 2008, Coon pled guilty to the scheme in U.S. District Court in Tampa. One hundred and twelve borrowers of these loans then filed a motion with Judge Kovachevich to be recognized as "victims" of his crime of conspiracy because they had to pay extra on their mortgages because of the crime. Judge Kovachevich denied the motion because the government's charges only specifically listed Coast Bank, Coon's employer, as the victim of the crime.

In a ruling released today, the Eleventh Circuit held that borrowers were protected “victims” under the Crime Victims Rights Act (CVRA) because they suffered financial harms because the became legally obligated to pay the point that Coon skimmed off the loan and had to pay interest on the point. The Eleventh Circuit stated: “The CVRA does not limit the class of crime victims to those whose identity constitutes an element of the offense or who happen to be identified in the charging document. . . . Under the plain language of the statute, a party may qualify as a victim, even though [he] may not have been the target of the crime, as long as [he] suffers harm as a result of the crime’s commission.”

The ruling is an important victory for crime victims. It means that all those who have been harmed by a financial crime are entitled to be protected in the federal criminal justice system. As a result, all such victims will be entitled to confer with the prosecutor on the charges, to obtain restitution for the crime, and to make a statement at sentencing about the proper punishment for the crime.

My co-counsel, Alan Tannebaum, has laid out the next steps in the case: “We intend to go back into district court and seek restitution for the victims who have been harmed by this crime. The defendant lived the high life through this crime, and the victims should not be left bearing the financial burden.”

Related Posts (on one page):

  1. All Those Harmed by a Federal Financial Crime Are "Victims" Protected by the Crime Victims' Rights Act
  2. Crime Victims Right Petition in the Eleventh Circuit
27 Comments

The Detroit Bailout:

It looks like President Bush eschewed my advice to allow the automakers to file bankruptcy. Not surprising at this point, but disheartening nonetheless (at least to me).

The best case scenario is that the strong accountability measures that have been announced will actually work to either promote reform or pave the way for an eventual bankruptcy.

Logically, the plan seems to be primarily to give the automakers an opportunity to get their ducks in a row for a prepackaged bankruptcy filing sometime in the spring. In which case, this truly was just an effort to make sure that any bankruptcy will turn out to be "orderly," although it seems like Detroit only has itself to blame for not being better-prepared for a bankruptcy filing right now.

Realistically, however, I'm afraid that isn't going to happen. Sure, President Bush talked a tough game today. But do we really think that come March the Obama Adminstration is going to stick to its guns and enforce the accountability provisions in the bailout? It seems hard to believe that two months into his administration, Obama will let these guys go down, even into a prepackaged bankruptcy.

So what seems most likely is that come March, Detroit will be no better off, and Washington will roll over the loans and provide still more cash for another six months or so. If that is so, then this action--although purportedly short-term and qualified with numerous conditions--is a huge victory for the UAW and incumbent management, who have likely bought themselves time well into 2009 before they have to deal with a reckoning.

Does this really help them beyond that? It is hard to see how. A lot of people object that consumers won't buy a car from a company in Chapter 11. But do we seriously think that many of those consumers will be a car from a company on bailout life-support? If not--and I haven't talked to anyone who thinks it makes a difference whether they are in Chapter 11 or on life-support--then it is hard to see what this action does to fundamentally transform the prospects of the automakers. In other words, bankruptcy still looks inevitable, and it is just a matter of how many billions of taxpayer dollars we're going to throw away before we get there.

But there is a more fundamental issue here. The President faced a fundamental decision whether the fate of the automakers would be decided by the well-established economic process of Chapter 11 reorganization or the ad hoc political process. He opted for the latter. And once he did, he triggered a new political dynamic. Now that the government has extended money with strings, politicians are likely to insist on the power to impose further strings. For instance, if GM wants to close a plant in a given community or discontinue orders from a given parts plant, what's to stop politicians from intervening to try to prevent that from happening?

Consider the issue of the dealers, which may prove the toughest nut to crack without bankruptcy. General consensus holds that GM has too many nameplates and too many dealers. And dealerships are hard and expensive to close because of state dealer-protection laws. But dealers are often among the most important and politically-connected businesses in a given town. After forking over all this cash, will politicians stand by and allow GM to close those dealerships?

It is hard to see how taking this out of the economic process and putting it into the political process is going to improve Detroit's long-term prospects.

All of the micromanaging provisions (like the prohibition on issuance of dividends, wage adjustments, managerial compensation, etc.) are just artificial efforts to replicate the natural processes that occur within a Chapter 11 case. (Amazingly, GM was still issuing dividends as of June of this year). Hayekians will recognize this as constructivist attempts to replicate the knowledge of time and place, with all the problems that implies.

Andrew Grossman has more on "Bush's Awful Auto Bailout" here. Andrew has had several good posts on this issue over the past week or two.

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Blogger Consensus: Card-check's chances iffy:

The National Journal's latest poll of leading political bloggers from the Left and Right is now available. They disagree sharply on the Obama stimulus. The Left's average for the right amount for the stimulus was $746 billion. The Right's average was $34 billion, with plenty of Righties, myself included, favoring "zero" as the ideal amount. I wrote: "The solution to economic problems caused by excessive borrowing is not to borrow lots more money."

As to whether Obama should push card-check legislation (the proposal to deprive employees of the right to a secret ballot vote on whether to unionize), 88% of the Left says yes, while 76% of the Right says no. The right-wing support for Obama pushing card-check comes at least partly from the belief that it will harm him politically. I agree with the political observation, but I'm much more concerned with protecting rights than with Obama's political fortunes. I wrote: "Taking away the secret ballot is a direct assault on the right of free association."

Will card check pass next year? 44% of the Left thinks so, as does 24% of the Right. Several bloggers predicted that card-check would be pushed, but would eventually be traded off to ensure passage of other items on the union lobby agenda.

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A Wider Range of Views at the WSJ:

A notable change in the Wall Street Journal editorial page since Paul Gigot took the helm has been the inclusion of more perspectives on the op-ed pages. The WSJ has run articles by prominent Democrats, such as Hillary Clinton, a drug decriminalization article by Ethan Nadelman. The latter, in particular, would never have graced the WSJ's pages under the late Bob Bartley. Today's page contains a fairly devastating take on the Bush presidency by the Claremont Institute's Mark Helprin. With a wider range of views than in times past, the WSJ is even more of an indispensible read, even when it's not publishing conspirators.

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A Welcome Bonus:

Bloomberg reports the investment bank Credit Suisse Group AG has set its end-of-year bonuses in a particularly innovative (and worthwhile) fashion. It is giving its employees some of the firm's illiquid mortgage-backed securities. This is "sheer genius," according to Megan McArdle: "If the things really are any good, they make money; if not, they take a bath along with the rest of us." Furthermore, this plan will reduce the volumne of such securities on the books at Credit Suisse. I'd like to see other banks and investment houses follow suit.

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What's a "Strong 'D'"?

From Politico:

“We just hoped the political diversity [in President-Elect Obama's cabinet] would have been stronger,” said Tim Carpenter, executive director of Progressive Democrats of America. “We see a lot of recycled Clinton folks and he gets a strong ‘D’ on the policy side. We hope he will hustle them to be more progressive.”

So is a strong "D" something better than an ordinary or weak D, like a D+ (a grade that often quite perplexed me in the message that it sent), so that Mr. Carpenter is trying to soften the blow of the D? Is it something that the speaker strongly feels is a D? Is it something that is strongly negative compared to a normal D, so it's a D-? I'm pretty sure it's not a strong "D" in the sense of Sen. Barack Obama (strong D-IL). Inquiring minds want to know.

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Fifth Circuit Upholds Sec. 526(a)(4):

The Fifth Circuit has just handed down an opinion in Hersh v. United States, upholding sec. 526(a)(4) of the Code (added by BAPCPA).

Section 526(a)(4) provides:

“(a) A debt relief agency shall not – . . . (4) advise an assisted person or prospective assisted person to incur more debt in contemplation of such person filing a case under this title or to pay an attorney or bankruptcy petition preparer fee or charge for services performed as part of preparing for or representing a debtor in a case under this title.”

The purpose of the provision was to prevent attorneys from advising their clients to incur additional debt right before filing bankruptcy (and discharging the debt). Or, as the statute indicates, to deal with the situation where lawyers would tell clients to use their credit cards to pay for the lawyers' filing fees and then discharge it.

The Eight Circuit previously had ruled that the statute constituted a facial violation of the First Amendment as a violation on free speech of the attorneys. Hersh summarizes that case as follows:

where the panel majority held “that § 526(a)(4) is substantially overbroad, and unconstitutional as applied to attorneys who provide bankruptcy assistance to assisted persons, as those terms are defined in the Code.” 541 F.3d at 794 (footnote omitted). The panel majority there reasoned that “§ 526(a)(4) prohibits attorneys . . . from advising any assisted person to incur any additional debt in contemplation of bankruptcy; this prohibition would include advice constituting prudent bankruptcy planning that is not an attempt to circumvent, abuse, or undermine the bankruptcy laws,” and that thus “[s]ection 526(a)(4), as written, prevents attorneys from fulfilling their duty to clients to give them appropriate and beneficial advice not otherwise prohibited . . . .” Id. at 793.8 Judge Colloton dissented, on the ground that the court, under authorities such as Boos v. Barry, 108 S.Ct. 1157 (1988), should have adopted a narrowing construction of “in contemplation of” bankruptcy in section 526(a)(4) to mean “with the intent to abuse the protections of the bankruptcy system,” and that as so construed section 526(a)(4) was not overbroad. Milavetz, 541 F.3d at 798-99 (Colloton, J., dissenting).

The Fifth Circuit rejected that reasoning, invoking the canon of avoiding constitutional conflicts to hold that the statute survived a facial challenge, even if there were situations where it might be unconstitutional as applied:

If interpreted literally and broadly, section 526(a)(4) would raise serious constitutional problems because, as Hersh suggests, it would restrict some speech that is protected by the First Amendment. The statute does not expressly qualify its restriction on advice to situations in which incurring more debt would be an abuse of the bankruptcy system. Thus, if interpreted literally, section 526(a)(4) creates a blanket restriction on attorneys advising clients to incur any debt when intending, or contemplating whether to, file for bankruptcy under any circumstances. It would prohibit some attorney advice that would not be abusive to the bankruptcy system, harmful to creditors, or harmful to debtors.10 Thus, if interpreted literally, section 526(a)(4) may apply to speech that is protected by the First Amendment.

However, Hersh does not dispute that section 526(a)(4), even when read literally, does prohibit some speech that Congress can regulate without violating the First Amendment. The “principal purpose of the Bankruptcy Code is to grant a fresh start to the honest but unfortunate debtor.” Marrama v. Citizens Bank of Massachusetts, 127 S.Ct. 1105, 1107 (2007) (internal citation omitted). By incurring debt before bankruptcy without intending to repay the debt, a debtor can cost creditors significant amounts of money. A debtor may also disqualify himself from obtaining bankruptcy relief. See id. at 1112 (holding that a debtor cannot automatically convert his bankruptcy from Chapter 7 to Chapter 13 under section 706(a) if he acts in bad faith). Thus, Congress has an interest in preventing abuse of the bankruptcy system by both the debtors who incur debts just before filing for bankruptcy and by the people who advise them to do so. A debtor who incurs debt before bankruptcy in order to abuse the system is not one of the “honest but unfortunate” debtors that the bankruptcy system is designed to protect. Id. at 1107.

Furthermore, when a debtor incurs debt in contemplation of bankruptcy with no intention of repaying his debts or with the intention to otherwise manipulate the bankruptcy system, he may well be committing a fraudulent act that may violate federal law. See 11 U.S.C. § 523(a)(2);11 18 U.S.C. § 152(2) (“A person who . . . knowingly and fraudulently makes a false oath or account in or in relation to any case under title 11 . . . shall be fined under this title, imprisoned not more than 5 years, or both.”); Id. at § 157.12 See also Attorney Grievance Comm’n of Maryland v. Culver, 849 A.2d 423, 434 (Md. 2004) (“[b]y advising his client to obtain loans with the intention of having the debts discharged in bankruptcy, [the defendant] counseled [his client] to commit a fraudulent act,” which violated the Maryland Rules of Professional Conduct). Taking out loans without intending to repay them may also be considered theft under state law. See Henke v. State, 730 S.W.2d 117, 118-19 (Tex. App.—Corpus Christi 1987) (affirming a grain hauler’s conviction of felony theft because he took grain under a contract knowing that he would not be able to pay for it). The government may regulate or ban speech in which a person proposes an illegal transaction. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 102 S.Ct. 1186, 1192 (1982).

At the time of the Eighth Circuit's opinion I expressed the view that I thought that it had misapplied the canon of constitutional avoidance.

Eventually the Supreme Court will take up the issue and I expect that it will agree with the holding of the Fifth Circuit.

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Yet Another Bush EPA Air Rule Goes Down:

The Bush Administration's EPA has had a hard time defending its air pollution regulatory reforms in federal court (as I've noted before). Today, yet another regulation went down in (another case styled) Sierra Club v. EPA. The majority opinion by Judge Rogers, joined by Judge Tatel, begins:

Petitioners challenge the final rules promulgated by the Environmental Protection Agency exempting major sources of air pollution from normal emission standards during periods of startups, shutdowns, and malfunctions (“SSM”) and imposing alternative, and arguably less onerous requirements in their place. Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act (“CAA”), even accepting that “continuous” for purposes of the definition of “emission standards” under CAA section 302(k) does not mean unchanging, the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption.
Senior circuit Judge Randolph dissented. I hope to have more to say about the opinion later.

Meanwhile, the EPA ruled yesterday that power plant carbon dioxide emissions should not be considered in the air pollution permit approval process. I expect this decision will be the subject of litigation or a notice-and-comment rulemaking in 2009, if not both.

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Thursday, December 18, 2008

Obscenity Conviction for Adult-to-Adult E-mail About Sex With Children:

A Fourth Circuit panel just upheld the conviction, by a 2-1 vote.

There's more to the case, including actual child pornography, and obscene cartoons that depicted children (which are punishable as obscenity, albeit with a higher punishment because of the subject matter, and not as child pornography, since no actual children were shown). But the constitutional disagreement between the majority and the dissent focuses on the text in the e-mail. The text apparently wasn't an attempt to conspire to have sex with children, or an attempt to seduce someone who the sender wrongly thought was a child; the prosecution was simply based on the theory that the text was obscene, and therefore criminally punishable.

The Supreme Court precedent, I should add, is on the majority's side: Even receipt of text, and not just distribution of material or receipt or pictures, can be punished if the text is obscene — i.e., if

  1. "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest [i.e., a 'shameful or morbid interest in sex,' as opposed to ''good, old fashioned, healthy' interest in sex'],"
  2. "the work ... describes, in a patently offensive way [under contemporary community standards], sexual conduct specifically defined by the applicable [obscenity] law," and
  3. "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
See generally Kaplan v. California, 413 U.S. 115 (1973). Query whether the precedent is right, either as a substantive matter or as a matter of whether the obscenity definition is too vague to be constitutionally permissible, whether as to pictures or as to text.

Thanks to Damon King for the pointer.

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Osama:

A commenter on the Adolf Hitler Campbell birthday cake thread asked: "What if the kid's name were Osama?" Of course, I take it that the question was likely to ask, "What if the kid's name were Osama Bin Laden Campbell?" But taking the questioner at face value, I looked it up, and found that Whitepages.com reports 1342 Osamas in the U.S., 19 of the Osama Ahmeds, just a bit fewer than the 1535 Adolfs, though many more than the 14 Hitlers (as a first name, mind you) and the 219 Stalins -- Osama has apparently long been a pretty normal Arabic name.

A cool search feature, incidentally, though I don't know how reliable it is.

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Federalist Society Lawyers Convention:

I've now posted the powerpoint slide handouts that I had at the Federalist Society Lawyers Convention a few weeks ago (I've had several requests for these). They are on my website, and scroll down to the "Lectures and Presentations" section.

The Federalist Society has also posted a video of the panel on which I participated here.


"Cake Request for 3-Year-Old Hitler Namesake Denied,"

reports the AP:

Deborah Campbell, 25, said she phoned in her order last week to the ShopRite. When she told the bakery department she wanted her son's name [Adolf Hitler Campbell] spelled out, she was told to talk to a supervisor, who denied the request.

Karen Meleta, a spokeswoman for ShopRite, said the Campbells had similar requests denied at the same store the last two years and said Heath Campbell previously had asked for a swastika to be included in the decoration.

"We reserve the right not to print anything on the cake that we deem to be inappropriate," Meleta said. "We considered this inappropriate."

The Campbells ultimately got their cake decorated at a Wal-Mart in Pennsylvania, Deborah Campbell said....

The Campbells' other two children also have unusual names: JoyceLynn Aryan Nation Campbell turns 2 in a few months and Honszlynn Hinler Jeannie Campbell will be 1 in April.

Heath Campbell said he named his son after Adolf Hitler because he liked the name and because "no one else in the world would have that name." He sounded surprised by all the controversy the dispute had generated....

Yeah, right, surprised.

Thanks to Prof. David Wagner for the pointer.

Related Posts (on one page):

  1. Young Adolf Hitler Campbell and Sisters Taken into State Custody:
  2. "Cake Request for 3-Year-Old Hitler Namesake Denied,"
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Guy Montag Doe:

It turns out that the lead plaintiff in the lawsuit challenging the San Francisco public housing gun ban bears the pseudonym Guy Montag Doe, obviously a reference to the protagonist in Ray Bradbury's Fahrenheit 451. Pretty amusing, though not quite as apt as if this were a lawsuit challenging the destruction of books.

This makes me wonder: What other rhetorical pseudonyms have there been in litigation? I set aside otherwise amusing pseudonyms, such as William Woe and Xerxes Xoe, and want to focus on the ones chosen for their rhetorical force.

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November 29, 1957:

I've been listening, of late, to a wonderful recording released by Mosaic Records of the Thelonius Monk Quartet (with John Coltrane) recorded live at a performance in November 1957 at Carnegie Hall. [Great music to grade exams by!] The disc's really terrific for lots of reasons -- the performances, especially the four at the late show, are great, it's quite something to hear Monk play on a Carnegie Hall Steinway, and it's historically quite important, for it's one of the few documents from the period after Coltrane had been kicked out of Miles Davis' band and was re-learning his trade by sitting in with Monk at the Five Spot. (There's a nice little essay here, from one of the Amazon reviews of the disc).

But what really caught my eye was this. The CD set includes great liner notes, and a reproduction of the poster advertising the show. It was a benefit concert for the Morningside Community Center in Harlem, and check out the lineup: Monk, Coltrane, Dizzy Gillespie, Billie Holiday, Ray Charles, Sonny Rollins, Chet Baker, and Zoot Sims . . . Every one a legend, and the top price -- the TOP price, best seat in the house, was $3.95!! Four bucks!! Even in 1957, four bucks wasn't a helluva lot of money -- hard to imagine anyone with the slightest interest in music passing that one up.

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Pants Law:

The former D.C. administrative law judge, who sued a dry cleaner for $65 million over a lost pair of pants continues to lose.

Thanks to How Appealing for the pointer, and for posting the D.C. Court of Appeals opinion.

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Wednesday, December 17, 2008

Fed Soc Conference Near AALS: Lawprofs who are attending the AALS in San Diego in a few weeks might also be interested in dropping by the Federalist Society's annual faculty conference just down the street on January 8 and 9. Although it's technically by invitation only, my understanding is that this is a formality for lawprofs and that invitations are pretty much automatic for those in town for the AALS. Contact erin.sheley at fed-soc.org for more.

Ban on Headgear, Including Religious Headgear, in Court:

The Atlanta Journal-Constitution reports:

A Douglasville woman was jailed Tuesday after a judge found her in contempt of court for refusing to remove her hijab, the head covering worn by Muslim women.

Lisa Valentine, also known by her Islamic name, Miedah, 40, was arrested at the Douglasville Municipal Court for violating a court policy of no headgear ....

Judge Keith Rollins ordered her held in jail for 10 days, but she was released Tuesday evening. The reason for the early release wasn’t immediately clear....

Other Muslim women said the same judge has ordered them to remove their hijabs....

Halimah Abdullah, 43, said she spent 24 hours in jail in November 2007 after Rollins held her in contempt of court for refusing to remove her head covering....

Valentine said she was accompanying her 19-year-old nephew to address a citation Tuesday morning when she was stopped at the metal detector and told she would not be allowed to enter the courtroom with a head scarf....

Frustrated, she turned to leave and uttered an expletive. She said the bailiff then told her she could take the matter up in front of the judge. She said she was handcuffed and taken into Rollins’ courtroom....

It's not clear to what extent the expletive might have been punishable as fighting words (was it, for instance, "fuck you" said to the bailiff, or just a generic "fuck!" said in exasperation?), or to what extent the judge's authority to punish even non-fighting-words vulgarity in court would extend outside the courtroom (I'm inclined to say that it wouldn't be). But in any case, it seems the jail sentence at least in large part stemmed from the refusal to remove the headgear.

As with many religious accommodation questions involving Muslims, this is not a new issue. (I set aside the complicated question of William Penn's hat, and stick with more modern cases.) Judges have, for instance, applied no-hat rules to demand that parties or witnesses remove yarmulkes, see, e.g., Close-It Enterprises, Inc. v. Weinberger, 64 A.D.2d 686 (N.Y. App. Div. 1978), or their Catholic or Episcopalian priestly garb, People v. Drucker, 418 N.Y.S.2d 744 (N.Y. Crim. Ct. 1979); O'Reilly v. New York Times Co., 692 F.2d 863 (2d Cir. 1982); Ryslik v. Krass, 652 A.2d 767 (N.J. Super. App. Div. 1995). The priest cases didn't involve headgear, but one can easily imagine similar issues arising as to nuns' habits. There have been other Muslim cases, as well. See, e.g., In re Palmer, 386 A.2d 1112 (R.I. 1978); State v. Allen, 832 P.2d 1248 (Ore. App. 1992).

Some of the cases involved no-hat rules that courts imposed just a matter of general decorum, and others involved prohibitions on wearing religious garb in front of juries justified by a fear that the religious garb would prejudice or otherwise unduly influence jurors. But in all these cases (except one that involved a priest wearing priestly garb as a lawyer, see La Rocca v. Lane, 37 N.Y.2d 575 (1975), a potentially different sort of question), the courts held that the prohibition shouldn't be applied when the garb is seen as religiously mandated.

And this, it seems to me, makes perfect sense, especially when the concern is simply about decorum and not juror prejudice. (Note that this case didn't involve a jury trial.) Whatever might be the symbolism of wearing a normal hat indoors, surely there's no disrespect that's usually intended, or likely to be reasonably perceived, when someone is wearing religiously mandated garb. A judge need not feel insulted by an Orthodox Jew's wearing a yarmulke, or a Muslim woman's wearing a hijab.

So there's no important government interest really being served here. But the burden on the religious objectors is very great: This means that if they are to comply with their felt religious obligations, they can't participate in one of the most important functions of American civic life. In two of the cases discussed in the column, the religious objectors were accompanying relatives to court, itself a pretty important function. But in other cases, the religious objector may be a party, a witness, or even a criminal defendant whose presence may be legally mandated for some purposes. Even if he's not legally forced to be in the courtroom, he may still have to forgo adequately litigating his case, or defending his liberty, as the price of complying with his religious obligations.

This is precisely the sort of situation where religious accommodation makes perfect sense — just as the constitutionally specified accommodation of witnesses and officeholders who refuse to swear, and instead must affirm, makes perfect sense. As I've written before before, requests from minority religious groups for accommodation are a longstanding and respectable part of the American tradition of religious freedom. Where religious pluralism goes, multiculturalism is indeed a traditional American value. To be sure, not all religious beliefs have been accommodated, and not all should be accommodated. But when accommodation is cheap — where the only matter at stake is the judge's sense of decorum, which shouldn't even be seen as undermined by the wearing of religious headgear, as opposed to a baseball cap — and the religious objector's interests in participating in a government function are important, the religious objectors should indeed be accommodated.

To be sure, under Employment Division v. Smith, which I generally approve of, such accommodation probably wouldn't be a constitutional obligation (at least unless some other constitutional right, such as a criminal defendant's right to participate in her trial, or to put on witnesses, is involved). If a judge evenhandedly cites for contempt Orthodox Jews, Catholic nuns, and Muslim hijab-wearing women who refuse to remove their headgear, his actions might not violate the Constitution. But state court systems should aspire to something more than just constitutionally minimal religious accommodation. Most judges throughout the country, I'm pretty sure, are happy to accommodate parties, witnesses, and friends and observers who want to wear religious headgear. It seems to me this judge should do the same.

UPDATE: Avi Schick reminds me of an opinion by Judge Easterbrook — a noted moderate conservative judge on the federal court of appeals for the Seventh Circuit — that I blogged about five years ago, and that Schick also wrote about (emphasis added):

Counsel for James contends that the district judge violated the first amendment by excluding from the courtroom any spectators whose religious beliefs require them to cover their heads. Because James himself did not seek to wear any form of head covering, he lacks standing to raise this contention. None of the spectators was held in contempt, and none has sued seeking a declaratory judgment. But although this appeal does not present an Article III case or controversy on this issue, the judicial branch has an interest in the prudent handling of public relations, and no formal controversy is needed to say a few words on the topic.

The Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules, see Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), and therefore does not entitle anyone to wear religious headgear in places where rules of general application require all heads to be bare or to be covered in uniform ways (for example, by military caps or helmets). See Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986). Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement.

Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority's. The best way for the judiciary to receive the public's respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating.

It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.

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Some People Have Nightmares About Falling, or Drowning.

Last night, I had a nightmare about becoming a dean. It was literally about my being about to start a deanship, though I don't recall how exactly I came to be appointed. And it was literally a nightmare: I was extremely unhappy about the situation. What triggered the nightmare, I don't know; but it just reminded me how much I'm not cut out for academic administration.

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Now There's a Kind of Scandal That We Don't Get Much of in the U.S.:

The Times of India reports:

Haryana deputy chief minister Chander Mohan, who mysteriously disappeared from public view over a month ago, was on Sunday sacked from the post ....

His removal has come shortly after media reports that he had converted to Islam and married a woman, who was a former Deputy Advocate General in Punjab. The woman has also reportedly converted to Islam....

Mohan, who is already married and has two children, surfaced on Sunday with a woman. They told a private news channel that they embraced Islam and entered into wedlock recently....

An Indian Muslim cleric has issued a religious edict condemning the marriage:

Habib-ur-Rehman, shahi imam of the Jama Masjid at Fieldganj here, said the marriage of Chand Mohammed to Fiza (earlier Anuradha Bali) was a “fraud”.

“He has done a wrong thing and this will not be accepted in Islam. No one can convert to Islam just to get married. The fatwa has been issued to caution Muslims against having anything to do with him. He should be socially boycotted,” Rehman said here.

Rehman said Chander Mohan should be booked by the Haryana government for his illegal marriage and put behind bars....

But love, Mohan asserts, will conquer all:

But the love-struck Mohan appeared unruffled by the sacking. “Positions just come and go. I am a man of commitment and am very much part of the Congress party. It's for the high command to decide what role is to be assigned to me,” he told a news conference in the state capital, Chandigarh.

“People will accept my love. Don't they in the movies? Reel and real (life) are no different,” he said.

Apparently, this behavior is not unheard of: "Hindu men, and even women, usually resort to conversion for remarriage to try and get away from messy divorces and to evade the charge of bigamy, an offence under the Hindu Marriage Act."

Thanks to Religion Clause for the pointer.

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"Illinois Supreme Court rejects [Illinois Attorney General] Madigan bid to declare Blagojevich 'unfit'":

How Appealing points to a Chicago Tribune article with this headline, and also points to the brief orders from the court on this subject. (There apparently is, and will be, no opinion explaining the judges' reasoning in detail.)

UPDATE: The Chicago Tribune's Steve Chapman says "the Illinois Supreme Court did exactly the right thing."

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An 1869 Data Point on the Second Amendment:

An Act to Protect the Owners of Firearms, from the Oregon Legislature in Jan. 26, 1869:

WHEREAS, The constitution of the United States, in article second of amendments to the constitution, declares that "the right of the people to keep and bear arms shall not be infringed;" and the constitution of the state of Oregon, in article first, section twenty-seven, declares that "the people shall have the right to bear arms for the defence of themselves and the state;" therefore;

§ 1. Every white male citizen of this state above the age of sixteen years, shall be entitled to have, hold, and keep, for his own use and defence, the following firearms, to wit: either or any one of the following named guns, and one revolving pistol: a rifle, shotgun (double or single barrel), yager, or musket; the same to be exempt from execution, in all cases, under the laws of Oregon.

§ 2. No officer, civil or military, or other person, shall take from or demand of the owner any firearms mentioned in this chapter, except where the services of the owner are also required to keep the peace or defend the state.

Naturally, this doesn't necessarily mean that exemption from execution -- which is to say exemption from seizure for payment of legal judgments -- was understood as a legally mandatory aspect of the state or federal constitutional right to bear arms; the statute was likely seen as building on the constitutional provisions, rather than implementing their literal command. But it does suggest that at least in late 1860s Oregon, the Second Amendment was seen as referring to an individual right to bear arms, including for purposes of one's "own use and defence," and covering revolvers as well as long guns.

By the way, the Oxford English Dictionary reports that a yager is a kind of rifle: "1848 H. W. HERBERT Field Sports U.S. II. 254 Throughout the South and South-West,..the yager, as it is called, or short-barrelled, large-bored piece, is universally preferred."

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Animal Cruelty and the First Amendment:

Are depictions of animal cruelty protected by the First Amendment? In July, the U.S. Court of Appeals for the Third Circuit held they are in a 10-3 en banc decision in U.S. v. Stevens. The decision, which Eugene blogged about here, struck down the federal law prohibiting the production, sale, and possession of depictions of "animal cruelty."

Now it looks like the case may go up, as the Solicitor General has filed a petition for certiorari in the case. Because the Court usually agrees to review decisions striking down federal statutes, I would think the chances for certiorari are pretty good.

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Philadelphia Freedom:

So I spent the weekend (among other pursuits) reading David Kairys' memoir, "Philadelphia Freedom." Full disclosure: David's a good friend and colleague at Temple Law School (which means that if I thought the book sucked, I would just shut up about it, not wanting to offend a friend). Turns out it's a very good read. Now, David's about as far away, politically speaking, from most of the folks who frequent the VC as just about anybody in legal academia can be - a thoroughly unrepentant, unconverted, and unapologetic Lefty of the Old School, and the book wears its politics quite brazenly and openly on its sleeve. I mean that, let it be said, as a compliment; the whole point of the book (subtitled "Memoir of a Civil Rights Lawyer"), and one that I think it achieves, is to capture a particular moment in time (late '60s - early 70s), and a particular kind of lawyering -- politically aware and "activist" -- that was in many ways emblematic of the time. Some of you, I suspect, are rendered apoplectic when reading that sort of thing, and if so, you probably want to steer clear; but David worked on some pretty interesting and important cases -- the Camden 28 anti-war case(s), Benjamin Spock's appeal to the Supreme Court, a bunch of lawsuits against Frank Rizzo's Philly cops, among many others -- and if you want to see what they looked like from the "other side," this is a fine place to start.

It's particularly interesting, I think, for those of you who are just starting out on careers in the law. There is something compelling about the "lawyer-as-activist" model that David embodied (indeed, that he helped to invent), lawyers who devote themselves to giving a damn and to using the law to right wrong. It's not (and should not be) the prerogative of the political Left - as everyone knows, places like the Institute for Justice and the Center for Individual Rights operate on very much the same model, and have been successful at righting a differently-perceived set of wrongs. The book can be read as a kind of training manual for the activist-lawyer; some of the best parts of the book, I thought, were the descriptions of the actual lawyering that needs to get done in even these very "political" cases. David's a damned good litigator, and as a damned good litigator he understood that you can make noise about the politics of a case all you want, but ultimately there's a whole lot of good ol' lawyering that needs to get done -- finding cases, reading statutes, crafting arguments -- if you want to advance your client's interest. It's a good lesson in lawyering, I think, for lawyers on any side of a case.

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Tuesday, December 16, 2008

Moran Mistaken About Particular Blagojevich-Obama Contacts.

[UPDATE: The post below points out an error by Rick Moran. He has been very gracious in acknowledging his mistake:

Jim Lindgren, whose excellent timeline on the scandal is must reading for those who wish to understand the sequence of events that eventually trapped the Illinois governor, corrects two egregious errors made in this article.

Both Advisor “A” and “B” are not Obama advisors but rather advisors to Blagojevich. The proof lies in this posting of Jim’s at Volohk Conspiracy. I will not make any excuses. The information I based those observations on was obviously erroneous and I should have been more careful. Ultimately, responsiblity for the errors is mine and mine alone.

I regret the errors and any confusion that resulted from them.]

At Pajamas Media, Rick Moran is claiming that the government affidavit shows that Blagojevich had conveyed his corrupt plan to two Obama advisors, referred to in the affidavit as Advisor A and Advisor B.

But I think that Moran is confused.

Advisor A is definitely a Blagojevich advisor (not an Obama advisor), and Advisor B is almost surely a Blagojevich advisor as well.

Here is Moran:

But we already know that at least two top advisors (Advisors “A” and “B” in the taped transcripts released in the criminal complaint against Blagojevich) had discussions with Blagojevich and his people about the Senate seat. The question isn’t whether there were “inappropriate discussions,” but what exactly was discussed between the parties.

The taped transcripts of phone calls on November 7 offer a clue or two about the issues under discussion between the two camps.

On that date, Blagojevich spoke with “Advisor A” about the seat and told him in a phone conversation that he would appoint “Senate Candidate 1 [widely believed to be Obama's first choice, his longtime friend and confidante Valerie Jarrett] in exchange for the position of secretary of Health and Human Services in the president-elect’s cabinet.”

Speculation about who “Advisor A” might be has centered on Obama’s chief of staff-designate Rahm Emanuel. . . .

Yet the affidavit describes Advisor A in item 74:

74. During another intercepted call still later on the evening of November 3, 2008, ROD BLAGOJEVICH spoke with Advisor A, a former Deputy Governor under ROD BLAGOJEVICH who is currently a lobbyist. . . .

Rahm Emanuel is a US Congressman, not “a former Deputy Governor under ROD BLAGOJEVICH who is currently a lobbyist.” Emanuel can't be Advisor A.

Advisor A is a Blagojevich advisor, not an Obama advisor. Rahm Emanuel is suspected of being a different character in the affidavit “President-elect Advisor.”

Here’s what Moran says about Advisor B:

But that wasn’t the only telephone conversation that took place on November 7 between Blagojevich and Obama representatives. Later that day, a three-way conversation was taped involving the governor, his chief of staff John Harris (also arrested), and an Obama representative identified only as “Advisor B” who, we are told, is a Washington-based consultant. Is “Advisor B” a member of the official transition team? Judging by this eye-opening conversation taped by the feds and the fact that the review cleared Obama’s “staff” of any deal-making with Blago, we very well might hazard a guess and say that Advisor B was not an official Obama staffer but could very well have been acting as a conduit between Governor Blagojevich and the Obama camp.

Since Advisor B appears to be named in the same fashion as Advisor A, Advisor B is almost certainly a Blagojevich advisor as well. Further, here are the relevant allegations, which appear to refer to Advisor B as one of the “Washington D.C.-based advisors to ROD BLAGOJEVICH”:

99. Later on November 7, 2008, ROD BLAGOJEVICH discussed the open Senate seat in a three-way call with JOHN HARRIS and Advisor B, a Washington D.C.-based consultant. . . .

101. On November 10, 2008, ROD BLAGOJEVICH, his wife, JOHN HARRIS, Governor General Counsel, and various Washington-D.C. based advisors, including Advisor B, discussed the open Senate seat during a conference call. (The Washington D.C.-based advisors to ROD BLAGOJEVICH are believed to have participated on this call from Washington D.C.).

It appears that Blogojevich scheming with Advisors A and B does not, by itself, represent contact between camps because both advisors are in Blagojevich's camp.

I left a short comment at Pajamas to notify Moran of his error.

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What the Duncan Appointment Suggests About Obama.

Tom Maguire has a great roundup of reactions to the Arne Duncan appointment. Included are these:

This pick wins raves from the Freakonomist:

Freakonomics readers will remember Arne as the hero of our chapter on teacher cheating. He was head of the Chicago Public Schools when Brian Jacob and I were investigating how teachers and administrators were doctoring standardized test sheets.

With seemingly nothing to gain and much to lose, Arne embraced our results, even allowing us to do audit testing to confirm our hypotheses. Eventually, a handful of teachers were fired.

Since then, I’ve interacted with Arne a few times, and in a variety of settings. I always walk away dazzled. He is smart as hell and his commitment to the kids is remarkable. If you wanted to start from scratch and build a public servant, Arne would be the end product.

Steve Diamond calls this a defeat for the Bill Ayers faction:

Bill Ayers and co. lost a big battle today with the announcement that Arne Duncan will be Obama's Education Secretary. Duncan is one of the "Big 4," as Ayers calls the four reform oriented school superintendents Arne Duncan, Michelle Rhee, Joel Klein and Paul Vallas. And Ayers has been part of a nationwide effort among certain self-styled "progressive" and "social justice" oriented education activists and educators to lobby against the Big 4. Ayers was, of course, plugging for race theorist, anti-union small schools advocate and education school figure Linda Darling-Hammond.

Excellent - if Bill Ayers is frowning I am smiling, since my worst fears are not being realized.

. . . From the left, if Mike Klonsky is sad, can't righties smile a bit?

Maguire points out that Vallas and Duncan were on one side of the education wars and Obama and Ayers were on the other (along with, I would add, the three foundations on which Obama and Ayers were working together).

Obama’s opposing Vallas in the Chicago education wars in the 1990s may be one reason why Obama lent his support (and regular advice) to Blagojevich in 2002 when Blagojevich defeated Paul Vallas, the architect of the Chicago school turnaround, in the primaries that year.

I remember that 2002 Democratic primary as perhaps my saddest. Not only did an honest and staggering talented reformer (Vallas) get beaten by a political hack on the make (Blagojevich), but John Schmidt, a truly brilliant former Associate Attorney General from the Clinton Justice Department, lost in the primaries to the relatively lightweight Lisa Madigan, who became the Illinois Attorney General. (Schmidt was the only candidate to which my wife and I have ever donated more than a trivial amount on money.)

By appointing Duncan, Obama has now switched sides and backed what works, rather than what he was pushing in the 1990s.

Obama’s ability to learn from his mistakes is one of his best qualities, one I discussed at some length last summer. I started by pointing out that Obama had not swallowed Alinsky-style organizing whole, but rather had reversed, rejected, or reworked many of Alinsky’s central tenets.

I then turned to education reforms:

Left to his own devices, Barack Obama is an extremely thoughtful guy, who often reworks and synthesizes the influences he absorbs. If one looks at Obama's current education proposals, he has jettisoned most of the left-wing Bill Ayers-style ideas that the Annenberg Challenge pushed in the mid-1990s when Obama was its chair — probably because they didn't work.

i argued that the major exception to this pattern of learning from experience is Obama's continued support for public-private partnerships in housing:

One area where Obama has had lots of experience but where his trademark thoughtfulness has failed him is private-public housing projects. His best friends and supporters built and managed public-private projects that failed miserably.

I concluded:

Yet Obama's support for public-private housing projects is an exception. Usually, Obama learns from the failures of his reform proposals. Generally, he is a pragmatic idealist.

People should not confuse Obama's personality with his political orientation: by personality, Obama is the most reasonable, thoughtful, moderate person on either national ticket. He is definitely NOT an ideologue.

(I went on to say that by political orientation, Obama is extremely liberal or progressive for a mainstream politician, but that aspect of him is not reflected in the choice of Duncan.)

Not only is Arne Duncan a great choice for Secretary of Education, but it reflects that Obama possesses a quality that his predecessor has too little of: Obama’s genuine thoughtfulness and willingness to rethink his views.

Related Posts (on one page):

  1. What the Duncan Appointment Suggests About Obama.
  2. Obama Makes a Great Choice for Secretary of Education.
44 Comments

Extreme Tracking vs. Sitemeter:

We've long had both Extreme Tracking counters and Sitemeter, and their page view counts have generally been similar; from Dec. 6 to Dec. 11, for instance, they have been within 6% of each other. But from last Friday to this Monday, the Extreme Tracking counter has been 58% to 74% of the Sitemeter counter. (It's the Extreme Tracking counter that seems below the norm of what we'd seen during past weeks, but of course it's impossible to tell for sure who's right and who's wrong.) Any thoughts on the difference?

Note that these are page view counts, not unique visitor counts. The unique visitor counts differ as well, but I expect the measurements of what counts as a "unique visitor" to be less consistent among counters. Many thanks!

18 Comments

Bad Lawsuit from the Thomas More Law Center:

The Thomas More Law Center has just sued the government on these grounds:

1. This civil rights action challenges that portion of the “Emergency Economic Stabilization Act of 2008” ... that appropriated $40 billion in taxpayer money to fund and financially support the United States government’s majority ownership interest in American International Group, Inc. (“AIG”), which engages in Shariah-based Islamic religious activities that are anti-Christian, anti-Jewish, and anti-American. The use of these taxpayer funds to approve, promote, endorse, support, and fund these Shariah-based Islamic religious activities violates the Establishment Clause of the First Amendment to the United States Constitution.

2. This action also challenges the United States government’s broad policy and practice of approving, endorsing, promoting, funding, and supporting Shariah-compliant financial products and business plans, such as Takaful Insurance. This governmental policy and practice conveys a message of endorsement and promotion of Shariah-based Islam and its religious beliefs and an accompanying message of disfavor of and hostility toward Christianity and Judaism and their religious beliefs in violation of the Establishment Clause.

This strikes me as a very hard position to sensibly defend. Parts of the argument are just "Islam is bad" (and not just radical jihadist Islam, but any branch of Islam that asks Muslims to invest only in businesses that comply with various rules about interest, alcohol, and the like). These surely can't advance the Establishment Clause claim; the Establishment Clause applies equally to Catholicism, Protestantism, Islam, or whatever else.

And to the extent the arguments don't focus on the purported flaws of Islam, they are shockingly broad. The theory is apparently that the government may not invest in any company that, in part of its operations, provides products that are tailored to a particular religious faith, and that may be accompanied by donations to religious charities. But lots of companies do this, for the simple reason that religious consumers have their religious tastes such as consumers have other ethical or esthetic tastes.

For instance, a food processing company might have a division that produces kosher products and donates some money to Jewish-specific charities (as a way of better wooing Jewish buyers). An investment company might seek to attract conservative Christian investors by offering a fund that doesn't invest in (say) hospital chains that perform abortions, and by donating some share of its profits to religious causes. Other companies might provide funds that don't invest in munitions manufacturers, to satisfy the desires of Quaker investors. A store might sell, among other products, religiously significant garments or religious symbols. A bookstore might sell religious books alongside other books.

Under the Complaint's theory, either Islam is subject to special constitutional constraints, or -- once that constitutionally forbidden legal rule is rejected -- all of these companies would somehow be forbidden as targets of government investments. The government couldn't bail them out. It presumably couldn't invest public employee retirement funds in them. It couldn't sell religious books alongside other books in public university bookstores, or serve kosher food alongside other food in public university cafeterias.

That's plainly wrong, under any sound theory of the Establishment Clause, or even under the broadest theories suggested by Justice Brennan and other Establishment Clause maximalists. The government investment decisions don't have a "primary religious purpose," because the obvious purpose is to prop up important companies -- and have them continue making as much money as possible -- and not to advance Islam. The government no more cares about advancing Shariah through the AIG bailout than my local Ralphs supermarket cares about advancing kosher laws by selling products that are certified kosher. The "primary religious effect" inquiry has always been extremely vague, but none of the precedents applying that inquiry would treat the continued provision by AIG of products that some religious customers like as a "primary religious effect."

The "endorsement" argument doesn't make sense here, because reasonable observers wouldn't treat the government's decision to bail out AIG, including its subdivision that sells financial products that Muslims prefer for religious reasons, as an endorsement of Islam. Again, the "endorsement" test is quite vague, but this is a pretty clear example: Making money by satisfying some customers' religious preferences (and lots of other customers' nonreligious preferences) isn't an endorsement of religion. Nor does the allegation that some of the money that is raised is donated to Muslim charities affect the analysis. That donating money to religious charities is good business for AIG doesn't make it impermissible for the government (which after all wants AIG to make as much money as possible, so the government isn't left paying the bill) to invest in AIG.

The only even theoretically plausible objection in such cases, I think, arises if the government becomes too entangled in the religious decisions of the company, for instance if government officials end up supervising the programs and deciding what Shariah law truly requires, or what really is or isn't kosher. But on the facts this just doesn't seem to be so: The operational decisions related to these religiously themed products and programs are made by the company (or perhaps even by the company's subcontractors), not by government officials. There seems to be no danger that some government officer would have to engage in quintessentially religious activities. And it is government decisionmaking, not government stock ownership, that triggers the Establishment Clause, which is one reason that government employee retirement plans can invest in companies without making them state actors governed by the Free Speech Clause, the Establishment Clause, the Due Process Clause, and so on. (This distinguishes the PrawfsBlawg hypothetical of a government-chartered school, which remains a government actor, engaging in religious education.)

If someone were advancing this broad a view of the Establishment Clause in some other case -- or trying to narrow the argument by limiting it only to certain Christian denominations, as the Complaint is trying to narrow the argument by stressing the supposed vices of Islam -- I would think that the Thomas More Law Center would and should protest. It's too bad that it's backing this argument here.

46 Comments

Inspirational Clips from the Moving Picture Institute The Moving Picture Institute "identifies and nurtures promising filmmakers who are committed to protecting and sustaining a free society, and supports their work through grants, travel scholarships, awards, internships, training workshops, and networking opportunities." As part of it's mission, it has initiated "Moving Minutes," a series of clips about liberty from popular films. After you sign up, a bimonthly e-mail containing links to videos of inspirational moments in film will be sent to you bimonthly. Sign up information is here. They have graciously shared with me the YouTube links to their first four clips. After viewing them, I am now looking forward to receiving my bimonthly inspirational lift. So can you.

"Liberty Will Reign" from the HBO miniseries John Adams:



"Age of Freedom" from the 300:



"The Pursuit of Happiness" from Rocky Balboa:



And "The Weathermen" from Indoctrinate U:

Related Posts (on one page):

  1. 40 Inspirational Speeches in 2 Minutes:
  2. Inspirational Clips from the Moving Picture Institute
14 Comments

Obama Makes a Great Choice for Secretary of Education.

Barack Obama's latest choice — Arne Duncan as Secretary of Education — is a serious guy and an effective administrator. While I doubt that Duncan will push vouchers, he is in favor of charter schools and he is not beholden to education unions.

From what I've seen of Duncan, Obama has made a great choice.

A more expert endorsement here (via KJ Lopez at the Corner).

UPDATE: Obama just made an eloquent introduction of Duncan. Biden is speaking perfunctorily now (at least he's doing better than yesterday when he referred to returning to the days of President Gore).

2d UPDATE: Duncan pointedly thanked Mayor Daley, who really has supported reforming the Chicago schools (not insignificantly by appointing Duncan over objections that the job should go to a minority).

The first press question was from ABC about the economy (again the reporter's name was read from a list). The second question was from a reporter who might have been from the Tribune or Sun-Times. Obama declined to answer the reporter's Blagojevich question, pointing to his promise to the US Attorney. The third question came from Mary Ann Ahern, a local NBC-TV reporter, asking about education. The last reporter (selected by name without Obama knowing where she was) also seemed local and asked about appointments generally.

Related Posts (on one page):

  1. What the Duncan Appointment Suggests About Obama.
  2. Obama Makes a Great Choice for Secretary of Education.
213 Comments

LawProfs for the Bench:

University of Richmond law professor Carl Tobias thinks that President Obama should consider appointing legal academics to the federal courts of appeals.

President Obama has vowed both to practice bipartisanship and to appoint excellent judges. One fertile source of nominees who possess the requisite expertise and temperament to be outstanding appellate jurists is the faculties of the 200 American law schools. Because legal scholars' work closely resembles that of circuit judges, choosing academics will allow President Obama to select candidates who are essentially known quantities, and to be confident that they possess the skills necessary to be distinguished federal appeals judges.

59 Comments

What is a “financial institution”?

If the Senate has nixed the auto bailout bill, how can Treasury announce that it will nonetheless go ahead and bail out the automakers? The answer turns on an interpretation of TARP, which authorizes the government to purchase securities in “financial institution,” defined as follows:

The term “financial institution” means any institution, including, but not limited to, any bank, savings association, credit union, security broker or dealer, or insurance company, established and regulated under the laws of the United States or any State, territory, or possession of the United States, the District of Columbia, Commonwealth of Puerto Rico, Commonwealth of Northern Mariana Islands, Guam, American Samoa, or the United States Virgin Islands, and having significant operations in the United States, but excluding any central bank of, or institution owned by, a foreign government.

David Zaring says that “financial institution” is essentially defined as any “institution,” given that the statute does not limit it to banks and other firms that we ordinarily think of as “financial institution.” Others, such as Mike Rappaport, argue that the “not limited to” language encompasses institutions like hedge funds or other institutions “that deal[] with financial matters.”

But doesn’t an automaker deal with financial matters? They certainly lend money; and they borrow money as well. Of course, the same can be said about all business institutions. What matters currently is not whether a firm borrows and lends, but whether it borrows or lends a lot. The collapse of the automakers, which owe tens of billions of dollars, matters more for the financial system than the collapse of any number of tiny banks though the latter are indisputably financial institutions.

In resolving statutory interpretation questions like this one, courts don’t just read the dictionary; they also look at other statutes. Consider 31 U.S.C. 5312, which also defines “financial institutions”:

(2) "financial institution" means-- (A) an insured bank (as defined in section 3(h) of the Federal Deposit Insurance Act (12 U.S.C. 1813(h))); (B) a commercial bank or trust company; (C) a private banker; (D) an agency or branch of a foreign bank in the United States; (E) Any credit union; (F) a thrift institution…

[So far, so good. Rappaport-like in the narrowness of the definition.]

(G) a broker or dealer registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.); (H) a broker or dealer in securities or commodities; (I) an investment banker or investment company; (J) a currency exchange; (K) an issuer, redeemer, or cashier of travelers’ checks, checks, money orders, or similar instruments; (L) an operator of a credit card system; (M) an insurance company; (N) a dealer in precious metals, stones, or jewels;

[?? What’s this doing here?]

(O) a pawnbroker; (P) a loan or finance company; (Q) a travel agency;

[Travel agency?!]

(R) a licensed sender of money or any other person who engages as a business in the transmission of funds, including any person who engages as a business in an informal money transfer system or any network of people who engage as a business in facilitating the transfer of money domestically or internationally outside of the conventional financial institutions system; (S) a telegraph company;

[Telegraph company?]

(T) a business engaged in vehicle sales, including automobile, airplane, and boat sales;

[Hey!]

Of course, elsewhere in the U.S. Code the term is defined more narrowly and intuitively; the point for present purposes is that how Congress understands “financial institution” or any other term depends on what it is trying to accomplish. This statute addresses financial reporting, and Congress had in mind something about who should report and who shouldn’t, rather than who is really a “financial institution” and who is not. A court interpreting TARP will think in the same way. A financial institution for TARP purposes is an institution that holds financial assets (virtually all businesses) that have importance for the credit crisis, with “importance” a matter of case-by-case determination left to Treasury. Automakers collectively owe more money than most individual banks do; their financial health clearly matters to the resolution of the financial crisis, which is what TARP is for. With Chevron deference to the Treasury’s reasonable interpretation, this would not be a hard case.

***

There have been a number of recent posts on comments, and comments on comments, almost all negative. For my part, comments have corrected errors and directed me to valuable scholarship and commentary of importance for my work. Thanks!

Update:

More from Randy Picker here and here.

28 Comments

WSJ Column:

I have a column in today's WSJ, "Bankruptcy Is the Perfect Remedy for Detroit" (may be subscriber).

For those who like newfangled media, I expect that I'll be on CNBC sometime today talking about it as well.


Caroline Kennedy:

December 16, 2008

Jerry MacArthur Hultin

President, Polytechnic Institute of New York

Dear Pres. Hultin:

I am writing to inform you that I have decided to offer myself for consideration for the Chaired Professorship in Physics and Chemistry at your distinguished institution. As you are no doubt aware, my father, Benjamin Post (1911-1994), held this position for many years (when the institution was known as "Brooklyn Polytechnic," or more familiarly, "Brooklyn Poly") and was an important part of the x-ray crystallography unit that helped establish Poly's pre-eminence in that field. Though I have chosen a different career path up to this point, I believe that, for many reasons I would be happy to discuss with you in person, the time is now ripe for me to ascend to the position that has been waiting for me, and I for it, all these years. I look forward to working with you and your colleagues as we embark down this new road together.

Sincerely yours,

David G. Post

107 Comments

Hyde Parker Barbara Flynn Currie to Head Blagojevich Impeachment Panel.

Barbara Flynn Currie, the majority leader of the Illinois [General Assembly], has been chosen to run the Blagojevich impeachment committee. She is very smart, seemingly very honest, and (I seem to recall) a friend and ally of fellow Hyde Parker Barack Obama. She is not viewed as a machine politician, but rather as a moderately liberal reformer.

Currie is the widow of long-time Chicago law professor David Currie (and she is my local state representative).

Currie

Currie and Blagojevich

.

16 Comments

Monday, December 15, 2008

AP Story Errs in Reporting "Actual Malice" Standard:

From an AP story:

The Supreme Court has rejected a plea by former Army scientist Steven J. Hatfill to revive his libel lawsuit against The New York Times over columns falsely implicating him in the deadly 2001 anthrax attacks.

The justices did not comment Monday in turning down Hatfill's appeal of a unanimous ruling by the 4th U.S. Circuit Court of Appeals, based in Richmond, Va. A three-judge panel affirmed a lower court's dismissal of the libel claims on the grounds that Hatfill is a public figure and failed to prove that columns written by Nicholas Kristof were malicious....

No, actually the panel reasoned that Hatfill failed to prove that the columns were published with what libel law calls "actual malice": "that The Times had knowledge that the columns were false or published them with reckless disregard of whether they were false." "Actual malice" is thus a legal term of art that has little to do with what English speakers actually call malice (in the sense of ill will).

So this is partly the fault of the lawyers. You'd hope that "malice" in law would mean what "malice" means in English, but if it doesn't, at least you'd hope that "actual malice" would actually mean that. No such luck.

But mass-market journalists' job is to translate jargon into English, and to know jargon when they see it. Unfortunately that didn't happen here.

More broadly, keep an eye out for this sort of slip: When you hear "malice" talked about in articles about libel lawsuits, it probably means "knowledge the statement was false, or reckless disregard of whether it was false." Except, unfortunately, when it doesn't, since sometimes "malice" even in libel lawsuits does really mean "malice" in the sense of "ill will." Arggh.

Thanks to Bill Poser (Language Log) for the pointer.

UPDATE: Added a link to the panel opinion (sorry to have omitted it originally); that should help answer people's questions about why the panel concluded Dr. Hatfill was a "limited-purpose public figure."

32 Comments

Political Ignorance and the 2008 Election:

The conservative "How Obama Got Elected" website has put up survey data from polls conducted by Zogby and Wilson Research that show extensive political ignorance among Obama votes (HT: my colleague Lloyd Cohen). For example, some 57% (in the Zogby poll) to 59% (Wilson poll) of Obama voters didn't known that the Democrats controlled Congress at the time of the election. By contrast, 63% of McCain supporters got this question right in the Wilson survey (Zogby did not conduct a separate survey of McCain supporters on this issue). Similarly, the Zogby results showed that the vast majority of Obama voters were unaware of various negatives about Obama and vice presidential nominee Joe Biden; McCain voters scored better on these questions. Ignorance about Democratic control of Congress is particularly important, because understanding of that fact might have led voters conclude that the Democrats shared at least some responsibility for the financial crisis and other recent policy failures. This information might not have prevented them from putting Obama in the White House; but it could well have led them to forego giving the Democrats greatly expanded congressional majorities.

The "How Obama Got Elected" authors argue that this shows that political ignorance was a major factor in Obama's victory. To an extent, it probably was. However, Democrats can easily point to comparable ignorance by Republican voters. For example, in 2004, a high proportion of Bush voters believed that large-scale WMD caches or programs had been found in Iraq, despite considerable evidence to the contrary.

More generally, it is not surprising that voters on both sides are often ignorant about a wide range of issues. As I have often pointed out in my scholarship (e.g. here), it is in fact rational for most voters to be ignorant about politics because of the very low probability that any individual vote will change electoral outcomes. In addition, voters have little incentive to do an unbiased evaluation of the information they do have. As a result, "political fans" often act like sports fans, overvaluing information that supports their preferred "team" and ignoring or downplaying anything that makes the team look bad. Such bias may explain why Obama voters in the Wilson survey were less likely to know information that reflected badly on the Democrats, whereas McCain voters had the opposite bias (e.g. - a smaller percentage of McCain voters than Obama voters knew that McCain had been implicated in the Keating Five scandal). As the "How Obama Got Elected" site notes, "in general, the voters did universally worse on questions where the negative information was about their candidate."

Of course, voters were not ignorant across the board:

Ninety-four percent of Obama voters correctly identified Palin as the candidate with a pregnant teenage daughter, 86% correctly identified Palin as the candidate associated with a $150,000 wardrobe purchased by her political party, and 81% chose McCain as the candidate who was unable to identify the number of houses he owned. When asked which candidate said they could "see Russia from their house," 87% chose Palin, although the quote actually is attributed to Saturday Night Live's Tina Fey during her portrayal of Palin during the campaign. An answer of "none" or "Palin" was counted as a correct answer on the test, given that the statement was associated with a characterization of Palin.

Conservatives will no doubt argue that these Palin negatives stuck in the voters' minds because of media bias. That may be true to some extent. But it is probably more likely that they became well known because they were "human interest" stories that could grab the attention of ordinary voters who find complex policy issues boring. There is a long history of polling data showing higher knowledge levels about human interest stories than policy stories. For example, two of the most widely known facts about the first President Bush was that he hated broccoli and owned a dog named Millie.

Widespread political ignorance and bias give partisans plenty of data that demonstrates' the ignorance of their opponents' voters. Unfortunately, they tend to ignore the reality that their own side's voters are usually just as bad.

The true lesson of political knowledge polls is not that either Democrats or Republicans are uniquely ignorant, but that we should reduce the power of government. That way, fewer important decisions will be made under the influence of electoral processes where ignorance, bias, and irrationality play such an enormous role.

UPDATE: Some commenters point to this post by Nate Silver as supposedly discrediting the Zogby results. I don't think it does. Silver says nothing that disproves the results themselves; he merely claims that the poll was commissioned by John Ziegler, a conservative political activist with supposedly nefarious motives (conducting a "push poll" to prejudice survey respondents against Obama). The claim that the survey was a "push poll" is dubious because, as Zogby points outs, it was conducted after the election.

But even if Ziegler's motives were exactly as as Silver suggests, that in no way proves that the poll is methodologically flawed. In particular, Silver doesn't even mention what I think is the single most striking finding: that the vast majority of Obama supporters didn't know which party controls Congress. Silver does suggest that some of the other questions are factually inaccurate, but provides no proof of that. I agree that a few are probably poorly worded; but I don't think I need to prove that every question on the survey is methodologically sound to show that the overall results of the poll demonstrate a fairly high (though predictable) level of political ignorance.

120 Comments

Becker and Posner Debate the Auto Bailout:

Richard Posner and Gary Becker have interesting posts debating the auto bailout. Despite some reservations, Posner supports a bailout. Becker on the other hand oppose it and argues that going into bankruptcy is the best solution to the Big Three's problems. ON balance, I am much more persuaded by Becker's arguments. But both sides make good points and are well worth reading.

This part of Becker's post provides a compelling answer to one of the most important pro-bailout arguments:

GM and the other carmakers have claimed that bankruptcy would have a particularly big effect on sales because consumers would fear that their warranties on the cars they bought could not be honored in the future. Whether this is true or not would depend on whether consumers expect these companies to emerge from bankruptcy in the future as stronger rather than weaker companies compared to a bailout. If they expect bankruptcy to lead to better labor conditions for the company and smaller debts, bankruptcy would give consumers more rather than less confidence that their warranties would be honored in the future. Furthermore, car prices would only have to fall a little to offset any fears about future warranty protection since car buyers are not willing to pay a lot for warranties.

But suppose for this and possibly other reasons, customers did reduce their demand for cars of the bankrupt American car producers. What would that mean? Presumably, they would not stop buying cars, but they would instead shift their demand toward the closest substitutes; namely, American-made cars of Toyota, Honda, Nissan, and other foreign carmakers. Their share of American made cars is over one third and rising, so bankruptcy of the big 3 might speed up this growth in their share. What that mainly means is increased employment of autoworkers in Tennessee and other states where foreign producers congregate relative to employment of autoworkers in Michigan, Ohio, and other Midwestern states where the factories of the American car producers are mainly located.

45 Comments

Will Obama release staff contacts with Blagojevich's emissaries?

There is an old joke about the man who loses his car keys one night. He looks for his keys, not where he dropped them, but under the streetlight because the light is better there.

The U.S. Attorney's complaint and affidavit disclose Blagojevich's alleged conspiracy to use unofficial intermediaries to convey what he wanted from Obama without disclosing that it was part of a corrupt bargain. So far Obama has said absolutely nothing about whether he plans to release any conversations that he and his staff had with these unofficial emissaries from Blagojevich in which it may have been suggested that Blagojevich wanted a job with SEIU or a new private foundation.

In essence, Obama has promised to release a list of staff contacts with people who were not directed to shake him down, but has not indicated whether he will release a list of contacts with those who were directed to shake him down.

Next week, we may get an idea whether Obama plans to stonewall the press on his staff's most relevant contacts, probably none of which would have been recorded by the FBI. If Obama decides to stonewall the press, we may soon get an idea whether the press will let him get away with it. Without seeing full transcripts of the wiretaps, which may never come out, we may not learn whether the intermediaries ever reported back to Blagojevich on any of their discussions with Obama staffers.

In the comments below, I'd particularly like to hear whether VC readers (especially some of Obama's most uncritical supporters) think that Obama should release all his staff's contacts with unofficial emissaries from Blagojevich — and whether you think Obama will do so next week.

Related Posts (on one page):

  1. Will Obama release staff contacts with Blagojevich's emissaries?
  2. Interpreting the Obama Team's Press Release.
51 Comments

Interpreting the Obama Team's Press Release.

As he promised, Barack Obama had his staff prepare a report of contacts between his staff and the office of Governor Blagojevich. And it was ready for release in a timely fashion when the U.S. attorney's office asked that the report's release be delayed for a week.

Dan Pfeiffer, the Communications Director of Obama transition team released the following statement (via Politico):

"At the direction of the president-elect, a review of Transition staff contacts with Governor Blagojevich and his office has been conducted and completed and is ready for release. That review affirmed the public statements of the president-elect that he had no contact with the governor or his staff, and that the President-elect's staff was not involved in inappropriate discussions with the governor or his staff over the selection of his successor as U.S. senator.

"Also at the president-elect's direction, Gregory Craig, counsel to the Transition, has kept the U.S. Attorney's office informed of this fact-gathering process in order to ensure our full cooperation with the investigation.

"In the course of those discussions, the U.S. Attorney's office requested the public release of the Transition review be deferred until the week of December 22, in order not to impede their investigation of the governor. The Transition has agreed to this revised timetable for release."

As before, it's important to read this new release, both for what it says and what it doesn't say.

The press release says that "the President-elect's staff was not involved in inappropriate discussions with the governor or his staff over the selection of his successor as U.S. senator."

While this statement seems on a casual reading to be a denial of contact, it actually implies the opposite: that there were contacts but they were not "inappropriate." As I've argued before, everything points to the Obama camp rejecting any corrupt bargains that may have been offered to them.

It would seem that there are contacts mentioned in the report; otherwise, there would be nothing to hold back for a week. Would it have killed them to admit that there were contacts between the Obama staff and Blagojevioch and his staff (which they couldn't yet disclose), but these contacts were not inappropriate? It's as if the Obama camp are responding to a discovery request and they just can't bring themselves to be fully forthcoming.

As I noted before — and today's release underscores — Obama has not promised to release any information about contacts between his staff and unofficial emissaries of Blagojevich, including the very contacts detailed in the wiretaps:

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.” . . .

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.

If weekend news stories are correct and Rahm Emanuel (quite appropriately) conveyed a list of candidates that Obama considered acceptable, then this would underscore just how narrowly Obama defines "contact."

It would seem highly likely that Obama had input into the list of candidates (David Axelrod's statement three weeks ago implies that he did) and that Emanuel conveyed the list at Obama's direction. (If Emanuel came up with the list all by himself and conveyed it to Blagojevich without Obama's permission, I doubt that Obama would want him around as Chief of Staff, and the coverage of the campaign suggests that Obama is a hands-on administrator.)

If all this is correct, then Obama's agreeing on a written list of Senate candidates acceptable to him and asking his chief of staff to convey that list orally or in writing to Blagojevich does not constitute "contact" in Obama's mind. Working on a message to a governor and asking it to be conveyed would seem to count as "contact" to me. If these news reports are true, was it really candid to say, "I had no contact with the governor or his office"?

Obama's delay today is fully proper. But we will have to wait to see his report to tell whether Obama is going to release the staff contacts most relevant to the unsuccessful shakedown attempt.

Related Posts (on one page):

  1. Will Obama release staff contacts with Blagojevich's emissaries?
  2. Interpreting the Obama Team's Press Release.
22 Comments

Deep Inside the Second Circuit's First Amendment "National Security Letter" Opinion

rests what strikes me as the heart of the substantive First Amendment analysis -- and it's a nugget that merits more discussion than it's likely to get.

First, some background (which I guess means I'm burying the nugget, too). The the opinion involves a federal statute that lets the government issue special subpoenas (called "National Security Letters") while prohibiting the recipient -- usually a phone company or an Internet Service Provider -- from disclosing the existence of the NSL.

This is one of the issues I discussed in my Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005). Publicizing the existence of this sort of government surveillance can seriously interfere with the investigation, for instance by informing criminals and terrorists that they're under suspicion and that certain phones, bank accounts, or tactics are no longer safe to use.

But such publicity can also substantially inform public debate about government action and possible government abuse. Concrete and timely examples of alleged abuse -- whether or not the alleged abuse rises to the level of illegality or unconstitutionality -- may be necessary to persuade the public or opinion leaders to press for changes in government policies: A general complaint that some unspecified abuse is happening somewhere will naturally leave most listeners skeptical. And even if the revelation of the surveillance is only delayed for some months or years, rather than being prohibited forever, such a delay may make it much harder to get timely political action, especially since people tend to be much less interested in alleged abuses years ago than in alleged abuses that are happening right now.

So should the speech be protected because it's valuable to public debate, despite the potential harm to law enforcement or even national security? Or should law enforcement and national security prevail despite the potential harm to informed public debate on the merits of the surveillance tactics? That's the tough question that the Crime-Facilitating Speech article tries to deal with, as to this question and as to others, and that the Second Circuit was asked to confront.

Now at first the Second Circuit's decision seems like a victory for free speech maximalists, because the court holds both reads the statute narrowly and concludes that even in its narrowed version it is procedurally flawed. As our first post on the subject said, the court held that,

[We] rule that [the relevant provisions] are unconstitutional to the extent that [1] they impose a nondisclosure requirement without placing on the Government the burden of initiating judicial review of that requirement, and [2] rule that subsections 3511(b)(2) and (b)(3) are unconstitutional to the extent that, upon such review, a governmental official’s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations is treated as conclusive.

So there have to be extra procedures: A means for the recipient to demand that the Government quickly ask a court to review the NSL, and independent review by the court of the Government's arguments. This early story likewise focuses on the procedure, and understandably so, since that's what the bulk of the court's opinion discusses.

But what about the substance? May the government indeed order you not to, for instance, go to the newspapers to complain -- with details -- that you're being dragooned into turning over information that you believe the government shouldn't be able to demand? Here's the court's answer, on pp. 46-47 of the 55-page opinion:

A demonstration of a reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities, will virtually always outweigh the First Amendment interest in speaking about such a limited and particularized occurrence as the receipt of an NSL and will suffice to maintain the secrecy of the fact of such receipt.

What's more, this strikes me as the extent of the substantive First Amendment analysis on this point (except for a brief mention on p. 37 that "no governmental interest is more compelling than the security of the Nation"). The passage I just quoted has no footnotes and no citations attached to it.

To be sure, many people might conclude that such a passage needs no citations, and that of course the First Amendment is virtually always trumped by "reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities." But that's not entirely clear, it seems to me. Even in wartime, the First Amendment protects some speech that may indeed jeopardize national security (see, for instance, the wartime election hypothetical). Likewise, whether the government may punish speakers who publish classified information that is leaked to them (as opposed to people who breached secrecy agreements that they voluntarily entered into as a condition of government employment) is at least a difficult question, though a recent district court case (U.S. v. Rosen) answered the question "yes," at least in some circumstances.

Nor is it clear that the free speech interest is much less because the statement is about "limited and particularized occurrence as the receipt of an NSL" -- general arguments about government power and alleged government abuses often rest on specific "limited and particularized" facts, such as the fact that the government has tried to coerce a particular entity to reveal a particular item of information. Even the opinion acknowledges, on p. 36, that the factual information "is relevant to intended criticism of a governmental activity," and thus has substantial First Amendment value. There's thus some reason to think that the circuit's "will virtually always outweigh the First Amendment interest" statement would apply to other constitutionally valuable speech as well.

So I think there's a good deal more that needs to be discussed here, and that I hope that future courts will indeed discuss it, whether while applying the procedures that the Second Circuit mandates (especially if those procedures can be applied informatively in a published opinion), while considering the matter in other circuits, or while reviewing the Second Circuit's decision (if the Supreme Court agrees to hear the case). And in the meantime, we should be conscious about the Second Circuit's substantive conclusion -- one that authorizes a pretty significant speech restriction -- and not just its procedural conclusion.

Related Posts (on one page):

  1. Deep Inside the Second Circuit's First Amendment "National Security Letter" Opinion
  2. Nondisclosure Orders and the First Amendment:
14 Comments

Web Hate: Over at The American Conservative, Freddy Gray comments on how often Internet comments are nasty and over the top:
[A] disturbingly high number of people who comment . . . under web articles are mad and nasty and best ignored. Look around the web: it is often astonishing to see the levels of hatred and viciousness that the most harmless words can engender. The Internet places none of society’s constraints upon its users, so webman resorts to his default human setting: outright, depraved hostility. It’s quite scary when you think about it.
  I think there are two somewhat distinct factors at play here. Gray notes one that is widely understood, that the usual social constraints are gone. If you're anonymous, you don't have to fear people will judge you for being an ass.

  I think there's a second factor that is less often noted, but that is also important: The web brings people into close contact with other people that they don't actually know, and it's much easier to be nasty to someone you don't personally know than someone you do. Most of us connect with people we meet in real life. The personal meeting humanizes the other person. They smile at us; we smile at them; we all feel a bit more together than before. Online, most exchanges are among people who haven't met each other in person, and who are therefore unusually inclined to envision the worst in others and are more likely to be nasty to them.

  Hat tip: Arkady
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Obama Press Conference on Energy and Environment.

Barack Obama is introducing his Energy and Environmental team.

So far there have been two press questions, neither about the Blagojevich scandal.

UPDATE: The third question was from an NPR reporter, who asked about Rahm Emanuel.

Obama had a prepared list of news reporters and he read their names from his list when calling on them; in at least two cases, Obama seemed not to know where they were in the room. I wonder whether this was agreed on with the particular reporters ahead of time, including what they were allowed to ask about.

After declining to answer the Emanuel question, noting Fitzgerald's request not to release Obama's staff report, Obama ended the press conference.

2d UPDATE: The comments below were mostly non-substantive and many were abusive, so I deleted them (including the reasoned ones) and closed comments on this post. That such an innocuous post could generate such a response is disappointing.


Do We Need a Czar of Czars?

Now the we have a financial bailout czar and soon a car czar to go with the drug czar, maybe we need a higher-level czar to police all the others. As Slate's Mickey Kaus puts it:

We need a Czar Czar, to crack the whip on all the czars. ... P.S.: Also a federal czar policy. Right now, czar decisions are made on an ad hoc, case-by-case basis, with no attempt at czar harmonization.

Government by czar didn't work out too well in Russia, and it isn't going so great in this country either. So I have a better idea: Why don't we have our own February Revolution and get rid of all the czars? If we can avoid following that up with a communist coup, as the Russians did, we might be in good shape.

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Supplement to Motion to Dismiss in Lori Drew Case: A few moments ago, this supplemental memorandum to the Rule 29 Motion to Dismiss was filed in the Lori Drew case.
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Liberal Justices Prevail in First 5-4 of the Term: The Supreme Court has handed down Altria Group v. Good, a preemption case on cigarette labeling for "light" cigarettes. The Justices split 5-4. Justice Stevens wrote the majority opinion: It concludes that the smokers' state law fraud claim against Philip Morris for misleading claims about light cigarettes was not preempted by federal legislation known as the Federal Cigarette Labeling and Advertising Act. Justice Thomas dissented, joined by Roberts, Alito, and Scalia, and concluded that the state fraud claim was preempted by the Act.
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Australian Court Provides Notice of Default Judgment Via Facebook:

From The Sydney Morning Herald:

Master Harper of the [Australian Capital Territory] Supreme Court ordered that a default judgement could be served on defendants by notification on Facebook [via the defendants' Facebook accounts].

A default judgement is given by the court where the defendant does not appear in court to defend the case....

Usually [notification about the default judgment to the losing party] is done by way of personal service or the mailing of the judgement to the defendant's home. However, service can be difficult where the defendant is not easily located.

Courts do allow service by way of email and in the recent Sonny Bill Williams and NRL matter, the court made an order for "substituted service" by allowing certain court documents to be served on Sonny Bill by text message to his mobile phone....

Thanks to BNA's Internet Law for the pointer.

UPDATE: Some laugh-out-loud items in the comments to this post; check them out.

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Nondisclosure Orders and the First Amendment: The Second Circuit has handed down an opinion on when nondisclosure orders served on an ISP comply with the First Amendment. The opinion both interprets and in some ways rewrites Congress's work with National Security Letters. Here's the key:
[We] rule that subsections 2709(c) and 3511(b) are unconstitutional to the extent that they impose a nondisclosure requirement without placing on the Government the burden of initiating judicial review of that requirement, and (5) rule that subsections 3511(b)(2) and (b)(3) are unconstitutional to the extent that, upon such review, a governmental official’s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations is treated as conclusive.
Hat tip: Howard.
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Carols for the holidays:

There are a number of Latin renditions of "Rudolph the Red-Nosed Reindeer" — this site collects a bunch, both in the main text and in the comments. The first version is listed as "translator unknown, widely repeated on the Internet," and indeed, this is the version I first came across. Dissatisfied with the Latin grammar and rhymes, I instead wrote the following — loosely based on the original but substantially altered — which you are free to use in caroling this holiday season:

Rudolpho cervo erat
Nasum ruber lucensque;
Quicumque hunc videret
Hunc diceret candere.

Alii cervi omnes
Semper hunc deriserant;
Cum misero Rudolpho
In ludis non luserant.

Sanctus Nicholas dixit
Sub festum nubilum:
"Naso claro, Rudolphe,
Hodie carrum ducesne?"

Tum cervi clamaverunt,
"Omnibus dilectus es!
Rudolphe rubri nasi,
In historiam descendes!"

For an entirely original one — though this one is a lot harder to sing — try my rewriting of the same carol in the style of Catullus (hendecasyllables). I'm going from memory here, so I hope this is right:

De Rudolpho cervo rubri nasi

Lucens et rubicundum erat Rudolpho
Cervo nasum, aliquo umquam idem vidente
Quod et fulgere saepe diceretur.
Irridere alii hunc iocis solebant
Cervi, cum quibus haud ei licebat
Ludos ludere idoneosque cervis.
Sub festum nubilosum honore Christi
Tum Sanctus Nicholas ei appropinquat --
"Carrum duc hodie, Rudolphe," dicit,
"Tuo tam nitido calente naso?"
Cervi omnes igiturque diligebant,
Clamabantque, "Ruber Rudolphe magne,
Superstes tua fama erit per aevum!"

(Note: I previously announced both of these poems on this blog five years ago.) If anyone ever feels like arranging this, please let me know!

UPDATE: Commenter Joe Power points us to the Old English version about Hrodulf:

Hwæt, Hrodulf readnosa hrandeor --
Næfde þæt nieten unsciende næsðyrlas!
Glitenode and gladode godlice nosgrisele.
Ða hofberendas mid huscwordum hine gehefigodon;
Nolden þa geneatas Hrodulf næftig
To gomene hraniscum geador ætsomne.
Click on the link for the rest of it, and the very amusing translation!

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Did the NSA Call Records Program Cause the Major Controversy Within DOJ, and If so, What Does It Tell Us About the Legal Issues?: Back in 2005 to 2006, the press reported on two major warrantless surveillance programs. The first became known as the Terrorist Surveillance Program, and involved real-time wiretapping of the contents of telephone and Internet communications that happened to be routed through the U.S. even though at least one of the participants (and most often, both) were actually located outside the U.S. The second program was sometimes referred to as the NSA Call Records program, and it involved the disclosure of non-content "metadata" about calls and e-mails from U.S. service providers to the NSA.

  Ever since the news leaked about the now-infamous Gonzales and Card visit to then-AG Ashcroft at the GW Hospital, it has been assumed that the episode and the threatened resignations that followed concerned the TSP, not the call records program. But now Newsweek is reporting that "the program" at issue in that case was actually the NSA Call Records program, not the TSP:
  Two knowledgeable sources tell NEWSWEEK that the clash erupted over a part of Bush's espionage program that had nothing to do with the wiretapping of individual suspects. Rather, Comey and others threatened to resign because of the vast and indiscriminate collection of communications data. These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country's largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004. The program's classified code name was "Stellar Wind," though when officials needed to refer to it on the phone, they called it "SW." (The NSA says it has "no information or comment"; a Justice Department spokesman also declined to comment.)
  The NSA's powerful computers became vast storehouses of "metadata." They collected the telephone numbers of callers and recipients in the United States, and the time and duration of the calls. They also collected and stored the subject lines of e-mails, the times they were sent, and the addresses of both senders and recipients. By one estimate, the amount of data the NSA could suck up in close to real time was equivalent to one quarter of the entire Encyclopaedia Britannica per second. (The actual content of calls and e-mails was not being monitored as part of this aspect of the program, the sources say.) All this metadata was then sifted by the NSA, using complex algorithms to detect patterns and links that might indicate terrorist activity.
  . . . By 2003, Yoo had moved on, and a new head of the OLC, Jack Goldsmith, began reviewing his work. Goldsmith found Yoo's legal opinions justifying the program flawed. His reasons are based on a mind-numbingly complex area of federal law, but the basic analysis comes down to this: the systematic collection and digital transmission of huge amounts of telephone and e-mail data by the government constitutes "electronic surveillance" under the Foreign Intelligence Surveillance Act, the exclusive law governing domestic spying in national-security cases. For such activities, FISA requires a court-approved warrant. Therefore, the program was illegal.
   Back when we were assuming that the TSP was the real issue, my best guess was that Goldsmith had rejected the Article II theory for the TSP and instead was only willing to allow a narrower program under the rationale that the AUMF justified the program in narrower form. But if the Call Records program was the real issue, then it may be time to revise that a bit.

  In particular, it sounds like Yoo wrote a really sloppy memo that the NSA Call Records program did not constitute "electronic surveillance" under 50 U.S.C. 1801(f). 50 U.S.C.1801(f)(2) describes as "electronic surveillance" (for which a warrant is ordinarily required) as "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." If you were a really sloppy lawyer, and you wanted to say that the NSA Call Records program was legal, you could probably write a memo concluding that the program didn't implicate FISA's prohbition on warrantless wiretapping because it didn't intercept any "contents." As described in the Newsweek story, the evidence collection was limited to e-mail headers and non-content phone records. Therefore no "contents."

   But if you were a decent lawyer, you would realize that these arguments are pretty bad. First, subject lines of e-mails are pretty clearly contents rather non-content information. Second, and more importantly, the definition of "contents" in FISA is different than the more intuitive distinction used in the criminal context of the Wiretap Act. 50 U.S.C. 1801(n) provides:
“Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
  Note that in the national security setting, "contents" includes "any information concerning the identities of the parties to such communication." Although there aren't any cases on this, that I know of, "any information" is pretty broad. Presumably that includes information such as e-mail addresses that would be non-content information in the criminal law setting.

  In light of this, it seems that the major dispute at the Ashcroft hospital visit was about whether the NSA Call Records program was collecting "contents" for purposes of FISA (and perhaps only in the background the issue of whether Article II trumped FISA). Comey and Goldsmith realized that the program was clearly "electronic surveillance," even though Yoo's memo argued that it was not and therefore was outside FISA. Comey and Goldmsith might have then insisted on changes in the program to make it a more plausible reading of the FISA statute: subject lines of e-mails would be out, for example, and perhaps actual e-mail addresses as well. The narrower program would then not trigger FISA's prohibition on "electronic surveillance," and might have instead operated under the Pen Register statute (either its exceptions or one universal pen-trap order). Only then could the Attorney General certify that the program was legal (actually not an obvious question, but that's an issue for another post). That's my speculation, at least.
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Thomas Tamm Was the TSP Leaker: Earlier news reports had tagged Justice Department lawyer Thomas Tamm as a suspect in the investigation into who leaked the Terrorist Surveillance Program to the New York Times back in 2005. In the latest Newsweek, Tamm admits that he was the leaker and makes his case for why he did it. (In the small world department, Tamm and I started working at DOJ on the same day in October 1998. I remember him from the 1st day briefing. Strange.)
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Sunday, December 14, 2008

Perils of World Government:

In my last post, I tried to explain why world government isn't necessary to solve the global problems that are often cited as a justification for it. In this post, I will explain why world government is not only unnecessary, but potentially dangerous.

Critics of world government always run the risk of looking like members of the black helicopter brigade who think that the UN/Council on Foreign Relations/Masonic conspiracy is about to take over the world. So let me say at once that I don't believe there is any great conspiracy to establish world government, that I don't expect a world government to emerge for at least several decades (if ever), and that if it is created at all, any world government is likely to be very weak - at first. Nonetheless, there is no question that many influential opinion leaders are warming to the idea of world government because of fear caused by international problems such as global warming and the financial crisis. Therefore, it is worth our while to critically examine it.

In ascending order of gravity and descending order of likelihood, world government poses three major dangers: stifling of diversity and competition; elimination of the possibility of emigration and "voting with your feet"; and the rise of global totalitarianism.

I. Stifling Diversity and Competition.

The whole world is far more diverse than any one nation-state. A world government will necessarily have to trample some of this diversity in order to impose one-size-fits all policies. If it doesn't do so, there would be no point in establishing a world government in the first place. However, given the incredible diversity of the world's people and cultures, it will be difficult to adopt any policy that doesn't inflict severe harm on at least some groups. The problem of dissident minorities has been difficult to address within individual nation-states; it would be far more severe under a world government.

Stifling diversity might also undermine beneficial competition between nation-states. Currently, national governments compete with each other to attract business, investment, and trade, and productive workers. This to some degree incentivizes states to adopt more effective economic policies and reduces their ability to impose excessive taxes and regulations. It also promotes policy innovation, as a successful innovator can get ahead in the economic race (as Britain did in the 19th century; the US in the 20th, and the "Asian Tigers" more recently). A world government would not be subject to this kind of competitive pressure and it could facilitate the organization of a cartel among nation-states to undercut competition at their level as well. Many central governments in federal systems already do this in order to stifle competition between subnational governments under their jurisdiction.

II. No Exit: The Danger of Losing the Ability to Vote With Your Feet.

Throughout history, the option of emigration has been a tremendous boon to people forced to live under corrupt, backward, or oppressive regimes. The United States has taken in millions of such migrants from all over the world. If a world government becomes oppressive, falls victim to corruption, or adopts poor economic policies that stifle opportunity, there will be nowhere else to go. We will be stuck with that government, or at least have no recourse other than violent rebellion.

Perhaps this danger may be somewhat mitigated if the world government is democratic; if we can't exercise exit rights against it, we can still resort to "voice" and vote the bastards out. Unfortunately, however, there is no guarantee that a world government will be democratic or that it will stay democratic over time even if it is initially set up to be that way. Moreover, even democratic regimes can adopt pathological policies for a variety of reasons, including widespread political ignorance among the voters, who might not be able to tell apart good policies and bad ones. It is dangerous to trust even a democratic government so much that we are willing to forego any possibility of exit if things go badly. And of course a world government could easily take the form of a dictatorship or oligarchy.

III. The Menace of Global Totalitarianism.

I leave the least likely but most deadly scenario for last: A world government might become totalitarian. And that totalitarianism could potentially be far worse and more longlasting than any oppressive regime we have seen before. Obviously, a world government is highly unlikely to start off totalitarian. However, we know from history that totalitarian political movements can seize power in a previously relatively free society during a crisis. That is what happened in Germany, Italy, Japan, Russia (relatively free during the last years of czarism, when political rights were greatly expanded), and elsewhere. The chances of this happening at any one time are very low. But over decades or centuries, the cumulative risk that it will happen sooner or later rises. It is true that no totalitarian movement has ever taken power in an advanced, long-established democracy. However, any world government established in the next century or so is likely to preside over a population most of which has never lived in such a democracy. The average level of political development in the world is a lot closer to 1920s Germany or 1917 Russia than to the modern US or Western Europe. And it is likely to remain that way for a long time to come.

Historically, the greatest threat to the longevity of totalitarian regimes has been the presence of rival, relatively free societies. Such rivals might forcibly overthrow the totalitarian regime (as happened with Germany). Even if they don't do so, their example might lead to restiveness among the totalitarian state's subjects and to the adoption of reforms that bring the system down (as happened in the Soviet bloc).

By now, I think you can see where this is going. Once established, a global totalitarian regime wouldn't face either of these risks. There will be no rival government that could overthrow it or provide an example of a successful, relatively free society. For that reason, a global totalitarian regime could easily last longer and be more oppressive than any we have seen before. For a more detailed discussion of the threat of totalitarian world government, see this excellent article by Bryan Caplan. As Bryan points out, the combination of world government and future technological developments could greatly increase the likelihood of a global totalitarian state.

Is this scenario actually likely to happen? Even given the initial establishment of world government, I would guess that the probability of global totalitarianism within the next century or two is far less than 50%. Nonetheless, the consequences are so catastrophic that even a relatively small risk of global totalitarianism should give us pause.

After all, advocates of world government claim that it is needed to cope with a variety of potential catastrophes, many of which also have a relatively low probability of occurring (e.g. - an environmental disaster so severe that it might destroy modern civilization). The point cuts both ways. If it is valid at all, the precautionary principle should apply to political risks no less than to environmental ones. As George Orwell put it in 1984, global totalitarianism would be "a boot stamping on a human face - forever." We should think long and hard before agreeing to take even a small risk of that happening.

UPDATE: Some commenters doubt that anyone important actually supports world government. However, the idea does have a good many prominent advocates. This article, linked in my last post, cites a number of recent works advocating world government by prominent scholars such as Daniel Deudney, Alexander Wendt, and David Held. In the international law field, many prominent writers, such as Anne-Marie Slaughter and Harold Koh, support proposals for "global governance" which would give international institutions enough power to make them roughly equivalent to a world government. Other prominent world government supporters include Jacques Attali, leading French intellectual and adviser to several French Presidents including Nicolas Sarkozy, who believes that "some form of global government cannot come too soon."

Obviously, few political leaders have endorsed such views. But many - especially in Western Europe - do support major expansions in the power of international institutions that point in that direction. World government is not likely to be established any time soon, if ever. But the concept has enough support to be taken seriously.

63 Comments

Commenting About Commenting: In his 2000th post at Simple Justice, Scott Greenfield expresses his frustration with moderating comment threads:
  [I]t's the one aspect of this Blawg that makes me think I should hang it up. It gets unbearably tedious after a while, and sometimes painful to watch a topic veer off onto a tangent because the one commenter didn't get it (while insisting, always, that he did). . . .
  The comments are often as more fun than the post itself. It pains me to acknowledge this, but it's true. I enjoy the comments most of the time, and that's why I engage commenters regularly. But I don't enjoy the emails I receive after I ban someone, or delete or edit a comment, accusing me of intellectual rape. I don't need this from people who have never contributed to the discussion here and whose thoughts are, in my view, less than worthy of much discussion. I will tolerate a lot more from people who I like and have been regular contributors, even when they get testy with me. I won't tolerate much from people I don't know or don't like. That's how things work in real life, and they are no different here.
  Blogs are still pretty new, so blog comment threads are, too. But I wonder if we're beginning to see a trend in comment sections already. As a blog becomes more popular, it becomes harder and more frustrating to moderate comment threads. There are just too many commenters out there to moderate each thread really effectively. Bloggers who try to moderate in good faith end up wasting great deal of time on a handful of individuals who feel that the world has wronged them somehow and that blog commenting is an effective form of revenge.

  For most high-traffic blogs, useful comment threads just aren't realistic. The two choices become an unmoderated thread or no comment thread at all. (A blog that has extremely high traffic numbers can try a Slashdot-like ranking system to try to bring attention to the best comments, but that requires enough traffic and the right reader culture to make it work.)

  If I'm right about all of this, readable and useful comment threads may end up largely only on blogs with traffic in the range of around 1,000 to 10,000 hits a day. Traffic below that usually won't generate enough commentary, and traffic above that usually won't allow effective moderation. My vague sense is that we're pretty much seeing this already, although I can't say that with certainty, as I only read a dozen or so blogs regularly. But I wonder if the realities of comment moderation will cement this trend over time.

Related Posts (on one page):

  1. Comments Off:
  2. Developing a Comment Culture:
  3. Commenting About Commenting:
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Second Amendment Book Bomb on Monday:

Monday is Bill of Rights Day. It is also the day for the Second Amendment Book Bomb, for Stephen Halbrook's outstanding new book The Founders’ Second Amendment: Origins of the Right to Bear Arms.

After the success of the Ron Paul "money bombs" last fall (when Paul supporters all made donations on a single day), Ron Paul supporters used the same concept this spring to launch a "book bomb," which turned Rep. Paul's book into the #1 best-seller on Amazon.com, and sent it to the top of the N.Y. Times bestseller list. Now, Dr. Paul is leading the campaign for a book bomb for another author.

On Monday, Stephen Halbrook will be speaking at the Independent Institute, in Oakland, California. (The Independent Institute is not related to the Independence Institute, which is where I work, in Golden, Colorado.) They are launching the book bomb, with an ambitious objective of one million sales for Halbrook's book.

I read the Halbrook book when it was in page proofs earlier this year. It is by far the best historical examination of the Second Amendment in the Founding Era. No matter how advanced your knowledge of the Second Amendment, you will learn a great deal from this book. Alan Gura used the book extensively in preparing his brief in D.C. v. Heller.

The Founders’ Second Amendment: Origins of the Right to Bear Arms is an excellent gift for anyone you know who is interested in the Second Amendment or legal history. It is also a fine gift for your local school library.

Over the last 30 years, Stephen Halbrook has done more than any other scholar to bring to light the history of the Second Amendment. He has a 3-0 record in the Supreme Court, and in Heller, he wrote the Congressional amicus brief on behalf of 55 members of the Senate, the Senate President (Richard Cheney), and 250 members of the House of Representatives.

From the Book Bomb link, you can learn more about the book, and have the opportunity to order the book from Amazon.com, BarnesandNoble.com, or BooksAMillion.com.

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Sunday Song Lyric: The notorious Bettie Page died on Thursday. The 1950s pin-up icon inspired movies and congressional hearings, and a little gem of a song by BR5-49. Here's the first verse:
You came to New York City back in Jack and Neal's day
All the lights of old Times Square they flickered on the Great White Way
Straight from Tennessee and in the rarest beauty form
You walked before the Klaw and caused a nationwide storm
Oh, after he remembered you from 1952
All the boys down at the pool hall had a calendar or two
Forty odd years later you'll still up and going strong
But I can't help wondering just where it is you've gone
Here's a live performance.
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Some Timely Banking Humor:

So Akhbar, a peasant farmer in, say, Bengladesh, walks into his little village's local micro-credit bank, looking for a loan for (the equivalent of) 100 bucks or so to open up a little business. "Do you have collateral?" the Banker asks. "What's collateral?" Akhbar replies. So the Banker gives him a little lesson on banks and banking and how loans work and all that. "So, do you own any property?," the Banker asks. "No," Akhbar replies. "Any tools?" "No." "Equipment?" "No." "Do you have any cows?" "Yes - I have some cows." "How many cows do you have?" "About 100."

So the bank's happy and gives Akhbar his $100.

A year later, Akhbar comes back to the bank with some money in his hand. He peels off a few bills to pay back the $100, and a few more to pay the interest - and he still has some money in his hand. So the Banker gives him another little finance lesson, explaining to Akhbar that if leaves the money with the bank, it will grow. And Akhbar asks: "How many cows do you have?"

[thanks to Eleanor Sebastian]

43 Comments